ORD 20-896 - Granting ExteNet Systems Franchise Agreement ORDINANCE NO. 20-896
AN ORDINANCE of the City of Federal Way, Washington, granting
ExteNet Systems LLC, its affiliates, successors and assigns a
nonexclusive franchise to occupy the rights-of-way of the City of Federal
Way,Washington,within the specified franchise area for the purposes of
constructing, maintaining, operating, replacing, and repairing a
telecommunications network in,across,over,along,under,through and
below the City of Federal Way.
WHEREAS,ExteNet Systems LLC has requested a franchise from the City of Federal Way,
in order to locate a telecommunications network, including small wireless facilities and wireline
facilities, within the rights-of-way; and
WHEREAS, the City Council of Federal Way finds that it is in the public interest to grant
such a franchise, which will specify the rights and duties of ExteNet Systems LLC; and
WHEREAS, RCW 35A.47.040 permits the City of Federal Way to grant nonexclusive
franchises for the use of public streets, bridges or other public ways for, inter alia, conduits,wires,
and appurtenances for transmission of signals and other methods of communications; and
WHEREAS, in granting such a nonexclusive franchise, the City of Federal Way reserves
such other powers and authorities granted to Washington code cities by general law and specifically
reserves its right to adopt further regulations under its police powers.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. Definitions
Where used in this Franchise the following terms shall be defined as follows::
1.1 "City" means the City of Federal Way, Washington, a municipal corporation of the
State of Washington, and its respective successors and assigns.
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1.2 "Council" means the City of Federal Way Council acting in its official capacity.
1.3 "Director"means the Public Works Director,or designee,of the City of Federal Way
Public Works Department.
1.4 Force Maj eure Event: Circumstances beyond the control of a party including strikes,
lockouts, sit-down strike, unusual transportation delays, riots, floods, washouts, explosions,
earthquakes, fire, storms, weather (including inclement weather which prevents construction),
epidemic casualty, acts of the public enemy,wars,terrorism,insurrections,and any other similar act
of God event.
1.5 "Facilities" or "Facility" means one or more elements of Franchisee's
telecommunications network,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 unless otherwise specifically approved by the City.For the purposes
of this Franchise the term "Facilities" includes Small Wireless Facilities. Unless otherwise
specifically stated in a section, "Facilities" or "Facility" shall encompass both Small Wireless
Facilities and wireline services used to provide the Services.
1.6 "Franchise Area"means the rights-of-way of the City.
1.7 "Franchisee"means ExteNet Systems LLC and its respective successors and assigns if
consented to by the City of Federal Way as provided in Section 26.2herein.
1.8 "FWRC" means the Federal Way Revised Code.
1.9 "Rights-of-Way"means land acquired or dedicated for public roads and streets, but
does not include: (a) State highways; (b) land dedicated for roads, streets,and highways not opened
and not improved for motor vehicle use by the public; (d) Federally granted trust lands or forest
board trust lands; (e) lands owned or managed by the state parks and recreation commission; (f)
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Federally granted railroad rights-of-way acquired under 43 U.S.C. § 912 and related provisions of
federal law that are not open for vehicular use; or(g)leasehold or City-owned property to which the
City holds fee title or other title and which is utilized for park, utility, or a governmental or
proprietary use and not primarily for road, street, or highway use. Franchisee is still required to
obtain a lease or similar agreement for the usage of any City or third party owned poles, conduit,
fixtures, or structures.
1.10 "Services"shall include:(i)high speed data and fiber optic services,internet protocol-
based services,internet access services,conduit and dark fiber leasing,telephone,and data transport
services and(ii)the infrastructure development to be used for Small Wireless Facilities. Services do
not include those personal wireless services and associated facilities or infrastructure that fall outside
of the definition of Small Wireless Facilities (i.e. macro facilities).
1.11 "Small Wireless Facilities"means a personal wireless services facility as defined in
FWRC 19.256.020. Small Wireless Facilities shall also include all necessary cables, transmitters,
receivers,equipment boxes,backup power supplies,power transfer switches,electric meters,coaxial
cables, wires, conduits, ducts, pedestals, antennas, electronics, and other necessary or convenient
appurtenances used for the specific wireless communications facility. Equipment enclosures with
equipment generating noise that exceeds the noise limits allowed in the Codes or associated permit
are excluded from "Small Wireless Facilities."
Section 2. Grant/Acceptance
2.1 Grant of Franchise. The City hereby grants to Franchisee the nonexclusive right to
enter upon the Franchise Area for the limited purpose of constructing, operating, excavating,
installing,maintaining,restoring, replacing and repairing Facilities within the Franchise Area.This
Franchise is specifically limited to the right for Franchisee to install Facilities owned and operated by
Ordinance No. 20-896 Page 3 of 50
Franchisee.Nothing contained within this Franchise shall be construed to grant or convey any right,
title, or interest in the Rights-of-Way to Franchisee other than for the purpose of providing the
Services, nor to subordinate the primary use of the Right-of-Way as a public thoroughfare. If
Franchisee desires to expand the Services provided within the City, it shall request a written
amendment to this Franchise; provided, however, that Franchisee may not offer Cable Services as
defined in 47 U.S.C. § 522(6) under this Franchise.
2.2 Acceptance bv-Franchisee. Franchisee shall have no rights under this Franchise,nor
shall Franchisee be bound by the terms and conditions of this Franchise, unless Franchisee shall,
within thirty (30) days after the effective date of this Franchise, file with the City its written
acceptance of this Franchise and all of its terms and conditions.In addition,Franchisee shall submit
proof of insurance obtained and additional insured endorsement pursuant to Error! Reference
source not found., and shall provide the City with the name and contact information for the
Franchise manager pursuant to Section 26.7. The administrative fee pursuant to Section 21 is due
within thirty (30) days of receipt of the invoice from the City.
Section 3. City Pro erty/Non-Ecitisive Franchise
3.1 rJy Lrol���Ut ,.This Franchise does not and shall not convey any right to Franchisee to
install its Facilities on, under, over, across, or to otherwise use City-owned or leased properties of
any kind outside the Franchise Area, or to install Facilities on, under, over, across or otherwise use
any City-owned or leased property within the Franchise Area other than the Rights-of-Way. Further,
no right to install any facility, infrastructure, wires, lines, cables, or other equipment, upon private
property without the owner's consent is granted herein. If Franchisee desires to use City-owned
structures,physical facilities,parks,poles(including,but not limited to,utility poles and light poles),
Ordinance No. 20-8.96 Page 4 ref 50
conduits, fixtures, or real property located within the Rights-of-Way, it shall enter into a separate
lease or license agreement with the City.
3.2 Non-Exclusive Franchise.This Franchise is not an exclusive Franchise and shall not
be construed to in any manner prohibit the City from granting other and further Franchises in,under,
over, upon, and along the Franchise Area, nor from exercising such other powers and authorities
granted to the City by the Washington State Constitution and general law,including the City's right
to adopt future regulations under its police powers. 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-Way, thoroughfares and other public properties of every type and description.
Sectimi 4. Term
Subject to Franchisee filing its acceptance pursuant to Section 2.2,the term of this Franchise
shall be for a period of ten (10) years commencing on the effective date of this Franchise, unless
terminated earlier pursuant to this Franchise or other applicable law.
Section 5. Location of Facilities
5.1 1.ocatiwi. The Facilities, excluding Small Wireless Facilities, permitted by this
Franchise shall be installed underground,except as approved per the variance procedures established
in Section 11.05.080 of the FWRC. Small Wireless Facilities permitted by this Franchise shall be
installed consistent with the City's standards, including but not limited to, Chapter 19.256 FWRC
and the City of Federal Way Development Guidelines. The location of the Facilities, their depths
below surface of ground, their height above the surface of the ground, or grade of a Right-of-Way,
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and any related existing equipment to which the Facilities are connected shall be depicted on a map
and submitted to the City within thirty(3 0)days after the installation of the Facilities.Upon written
request of the City,Franchisee shall update such map to reflect actual or anticipated improvements to
the system.Any such map(or update thereof)so submitted shall be for informational purposes only
and shall not obligate Franchisee to undertake any specific improvements, nor shall such map be
construed as a proposal to undertake any specific improvements.
5.2 WSDOT.To the extent that any Rights-of-Way within the Franchise Area are part of
the state highway system ("State Highways") are considered managed access by the City and are
governed by the provisions of Chapter 47.24 RCW and applicable Washington State Department of
Transportation ("WSDOT") regulations, Franchisee shall comply fully with said requirements in
addition to local ordinances and other applicable regulations. Without limitation of the foregoing,
Franchisee specifically agrees that:
A. Any pavement trenching and restoration performed by Franchisee within State
Highways shall meet or exceed applicable WSDOT and City requirements;
B. Any portion of a State Highway damaged or injured by Franchisee shall be
restored, repaired, and/or replaced by Franchisee to a condition that meets or exceeds applicable
WSDOT and City requirements; and
C. Without prejudice to any right or privilege of the City,WSDOT is authorized
to enforce in an action brought in the name of the State of Washington any condition of this
Franchise with respect to any portion of a State Highway.
5.3 GIS Data.At such time as Franchisee develops or employs Geographic Information
System("GIS")technology,Franchisee shall submit the information required in Section 5.1 above in
digital GIS format, showing the location of its Facilities within the Franchise Area.
Ordinance No. 20-896 Trace 6 of j0
5.4 Design 1 1arkiiigs. In the event the City desires to design new streets or intersections,
renovate existing streets, or make any other public improvements, Franchisee shall at the City's
request, provide the location of Franchisee's Facilities within the Franchise Area by either field
markings or by locating the Facilities on the City's design drawings, and shall provide all other
reasonable cooperation and assistance to the City.
5.5 One Call_ Locator Service. Prior to doing any work in the Franchise Area, the
Franchisee shall follow established procedures,including contacting the Utility Notification Center
in Washington and comply with all applicable State statutes regarding the One Call Locator Service
pursuant to Chapter 19.122 RCW. Further, upon request from a third party or the City, Franchisee
shall locate its Facilities consistent with the requirements of Chapter 19.122 RCW.The City shall not
be liable for any damages to Franchisee's Facilities or for interruptions in service to Franchisee's
customers that are a direct result of Franchisee's failure to locate its Facilities within the prescribed
time limits and guidelines established by the One Call Locator Service regardless of whether the City
issued a permit.
Section 6. Noninterference of Facilities
6.1 Maintenance of Facilities.Franchisee agrees to maintain its Facilities and perform any
and all activities authorized by this Franchise: (1) so as not to unreasonably interfere with the free
passage of traffic; (2) in accordance with the laws of the State of Washington and FWRC
requirements,Franchise provisions,regulations,resolutions and rules,as now existing or as hereafter
amended; and (3) as required by the Director. This requirement applies whether the work is
performed by the Franchisee, its agents, employees, subcontractors, or other third parties at
Franchisee's direction.
Ordinance No. 0-896 C'agr 7 qf 50
6.2 Interference with Use of the Streets.When installing,locating,laying,or maintaining
Facilities,apparatus,or improvement,Franchisee shall not interfere with the use of any street to any
greater extent than is necessary,and shall leave the surface of any such street in as good condition as
it was prior to performance by Franchisee of such work. Any Facility, apparatus, or improvement
shall be laid, installed, located, or maintained in conformance with instructions given by, and to the
satisfaction of the City. In any event,Franchisee shall, at its own expense, and to the satisfaction of
the City in accordance with the terms of the right-of-way permit, restore to City,standards and
specifications any damage or disturbance caused to the Rights-of-Way or any City property as a
result of Franchisee's construction or operations.
Section 7. 1 ec i ii-enient to Obtain Permits & Work in the Right ht of Way
7.1 Perniits and PeniiiIApp]icatiops. Franchisee shall,at its expense, obtain allpermits,
including but not limited to rights-of-way permits and small wireless facility permits, and pay all
permit fees required by applicable City ordinances, regulations, resolutions, and rules prior to
commencing any work within the Franchise Area. The manner of excavation, construction,
installation, backfill, and temporary structures such as, but not limited to, traffic turnouts and road
obstructions shall meet the standards of the FWRC and be satisfactory to the Director.All traffic
control shall be in accordance with the right-of-way permit and shall be in accordance with the
Manual on Uniform Traffic Control Devices ("MUTCD").
7.2 Epicrgeiiev ILellpir In the event of an emergency in which
Franchisee's Facilities within the Franchise Area are in a condition as to immediately endanger the
property, life,health, or safety of any individual,Franchisee may take action immediately to correct
the dangerous condition without first obtaining any required permit so long as: (1) Franchisee
informs the City of the nature and extent of the emergency, and the work to be performed,prior to
Ordinance No. 20-896 Page 8 of S0
commencing the work; and (2) such permit is obtained by Franchisee as soon as practicable
following cessation of the emergency.
7.3 Design Standards for Wireless Services and Undergrounding Facilities. Franchisee
shall adhere to the City's Design and Construction Standards for the deployment of Small Wireless
Facilities,and shall underground its wireline Facilities and/or place its wireline Facilities within the
pole as may be required by such design standards and this Franchise. Franchisee shall not be
permitted to erect new poles, except as permitted pursuant to Chapter 19.256 FWRC.
A. Franchisee acknowledges and agrees that if the City allows the placement of
Facilities above ground the City may,at any time in the future,require the conversion of Franchisee's
aerial facilities to an underground installation or to be relocated at Franchisee's expense if the
existing poles on which Franchisee's Facilities are located are designated for removal due to a City
projects as described in Section 12. This Franchise does not place an affirmative obligation on the
City to allow the relocation of such Facilities on public property or in the Right-of-Ways nor does it
relieve Franchisee from any FWRC provision(s) related to the siting of wireless facilities.
B. Franchisee shall not be required to underground any portion of the Facility that
must technically remain above-ground to operate. If the City requires undergrounding of wirelines
(either telecommunications or electrical)and allows Franchisee's Facilities to remain above ground,
then Franchisee shall fully cooperate with the City and modify the affected Facilities to incorporate
the placement of wireline services underground and internal to the pole if the replacement pole is
hollow (for example, electrical and fiber) or otherwise consistent with a design plan agreed to
between the City and Franchisee, at no cost to the City.
C. Franchisee shall not remove any underground Facilities that require trenching
or other opening of the Rights-of-Way,except as provided in this Section 7. Franchisee may remove
Ordinance No. 20-396 Pcge 9(�f`50
any underground Facilities from the Rights-of-Way that have been installed in such a manner that it
can be removed without trenching or other opening of the Rights-of-Way, or if otherwise permitted
by the City. Franchisee may remove any underground cable from the Rights-of-Way where
reasonably necessary to replace,upgrade,or enhance its Facilities,or pursuant to Section 12. When
the City determines, in the City's sole discretion, that Franchisee's underground Facilities must be
removed in order to eliminate or prevent a hazardous condition, Franchisee shall remove such
Facilities at Franchisee's sole cost and expense. Franchisee must apply and receive a permit,
pursuant to Section 7.1,prior to any such removal of underground Facilities from the Rights-of-Ways
and must provide as-built plans and maps pursuant to Section 8.3.
7.4 Work in than.... Raglit,s-of-"k ay. During any period of relocation, construction or
maintenance, all work performed by Franchisee or its contractors and subcontractors 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. Franchisee shall at all
times post and maintain proper barricades, flags, flaggers, lights, flares and other measures as
required for the safety of all members of the general public 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.
7.5 Coordination of Activities. Franchisee shall meet with the City and other franchise
holders and users of the Rights-of-Way upon written notice as determined by the City, to schedule
and coordinate construction in the Rights-of-Way. All construction locations, activities, and
schedules shall be coordinated, as ordered by the City to minimize public inconvenience,disruption
or damages.
Ordinance No. 20-896 Page 10 of 50
Section 8. Standard of Performance
8.1 Backfilling Requirements. The Franchisee shall not excavate for a distance of more
than one hundred feet (100')without immediately backfilling and compacting to surface grade and
City standards. Backfilled trench areas within a driving lane must be patched, either temporarily or
permanently, before the end of the day in which they have been opened. Trench areas within the
Right-of-Way,but not within a driving lane,must also be patched within the time limits specified by
the City on the right-of-way use permit. Final surface restoration shall be completed within thirty
(30) days and shall be equal to or better than the surface condition prior to permit issuance.
8.2 Asphalt Overlay.Any asphalt overlay completed within the Franchise Area during the
five (5) year-period immediately prior to the date of permit application shall not be open cut by
Franchisee unless required by an emergency and subject to the provisions of Section 7.2 above.
Franchisee shall install new asphalt overlay on any street that is open cut,whether in an emergency
or otherwise, for a minimum of one (1)block (approximately 500 feet) in length in both directions
from the open cut, unless determined otherwise by the Director.
8.3 As-Built Nihii)s. Within fifteen (15) days of completion of any installation or
modification of Franchisee's Facilities within the Franchise Area, Franchisee shall submit to the
Director plans,stamped by a Professional Engineer licensed by the State of Washington,showing the
"as-built"location of the Facilities.These plans and maps shall be provided at no cost to the City and
shall include hard copies and digital files in Autocad or other industry standard readable formats that
are acceptable to the City and delivered electronically. Franchisee shall warrant the accuracy of all
plans, maps, and as-builts provided to the City.
Ordinance No. 20-896 Page l l of 50
8.4 Joint Trench. If Franchisee shall at any time plan to make excavations in any area
covered by this Franchise,Franchisee shall afford the City,upon receipt of a written request to do so,
an opportunity to share such excavation, PROVIDED THAT:
A. Such i oint use shall not unreasonably delay the work of the Franchisee 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. Franchisee may deny such request for safety reasons.
8.5 Open Utility Trenches. Franchisee shall be entitled to reasonable access to open
utility trenches when the City is constructing new utility trenches,provided that such access does not
interfere with the City's placement of utilities or increase the City's costs.Franchisee shall pay to the
City the actual cost to the City resulting from providing Franchisee access to an open trench,
including without limitation the pro rata share of the costs of access to an open trench, additional
costs, as determined by the City, attributed to Franchisee due to Franchisee's request to access the
utility trenches,and any costs associated with the delay of the completion of a public works project.
Further, the City may deny such requests if:
A. Such joint use unreasonably delays the work of the City;
B. The parties cannot agree on terms and conditions; or
C. Granting access to the utility trench creates a safety concern.
8.6 AddidwiLd DU tsr°CoridUi„l. Franchisee shall inform the City with at least thirty (30)
days' advance written notice that it is constructing, relocating, or placing ducts or conduits in the
Rights-of-Way and provide the City with an opportunity to request that Franchisee provide the City
Ordinance No. 20-896 fare 12 gf.50
with additional duct or conduit and related structures necessary to access the conduit pursuant to
RCW 35.99.070.
8.7 Tree 1Tr tnini . Franchisee may trim trees upon and overhanging on the Rights-of-
Ways, streets, alleys, sidewalks, and other public places of the City so as to prevent the trees from
coming in contact with Franchisee's Facilities. The right to trim trees in this Section 8.7 shall only
apply to the extent necessary to protect Franchisee's Facilities. Franchisee shall ensure that its tree
trimming activities protect the appearance, integrity, and health of the trees to the extent reasonably
possible. Franchisee shall be responsible for all debris removal from such activities.All trimming,
except in emergency situations,is to be done after the explicit prior written notification and approval
of the City and at the expense of Franchisee.Franchisee may contract for such services,however,any
firm or individual so retained must first receive City approval prior to commencing such trimming.
Nothing herein grants Franchisee any authority to act on behalf of the City,to enter upon any private
property, or to trim any tree or natural growth not owned by the City. Franchisee shall be solely
responsible and liable for any damage to any third parties' trees or natural growth caused by
Franchisee's actions.Franchisee shall indemnify,defend,and hold harmless the City from third-party
claims of any nature arising out of any act or negligence of Franchisee with regard to tree and/or
natural growth trimming,damage,and/or removal.Franchisee shall reasonably compensate the City
or the property owner for any damage caused by trimming, damage, or removal by Franchisee.
Except in an emergency situation, all tree trimming must be performed under the direction of an
arborist certified by the International Society of Arboriculture, unless otherwise approved by the
Director.
8.8 Safety. Franchisee shall, at all times, employ professional care and shall install and
maintain and use industry-standard methods for preventing failures and accidents that are likely to
Ordinance No. 20-896 Page 13 of 50
cause damage, injuries, or nuisances to the public. All structures and all lines, equipment, and
connections in, over,under, and upon the Rights-of-Ways, wherever situated or located, shall at all
times be kept and maintained in a safe condition.Franchisee shall comply with all federal,State,and
City safety requirements,rules,regulations,laws,and practices,and employ all necessary devices as
required by applicable law during the construction, operation, maintenance, upgrade, repair, or
removal of its Facilities.By way of illustration and not limitation,Franchisee shall also comply with
the applicable provisions of the National Electric Code, National Electrical Safety Code, FCC
regulations, and Occupational Safety and Health Administration ("OSHA") Standards. Upon
reasonable notice to Franchisee, the City reserves the general right to inspect the Facilities to
evaluate if they are constructed and maintained in a safe condition.
8.9 Additional Safety Stamdards.
A. Franchisee shall endeavor to maintain all equipment lines and facilities in an
orderly manner, including, but not limited to, the removal of all bundles of unused cable on any
aerial facilities.
B. All installations of equipment, lines,and ancillary facilities shall be installed
in accordance with industry-standard engineering practices and shall comply with all federal, State,
and local regulations, ordinances, and laws.
C. Any opening or obstruction in the Rights-of-Way or other public places made
by Franchisee in the course of its operations shall be protected by Franchisee at all times by the
placement of adequate barriers,fences,or boarding,the bounds of which,during periods of dusk and
darkness, shall be clearly marked and visible.
8.10 Stop Work: Order. On notice from the City that any work is being performed contrary
to the provisions of this Franchise,or in an unsafe or dangerous manner as determined by the City,or
Ordinance No. 20-896 Page 14 of'50
in violation of the terms of any applicable permit, laws, regulations, ordinances, or standards, the
work may immediately be stopped by the City. The stop work order shall:
A. Be in writing;
B. Be given to the person doing the work or posted on the work site;
C. Be sent to Franchisee by overnight delivery;
D. Indicate the nature of the alleged violation or unsafe condition; and
E. Establish conditions under which work may be resumed.
Section 9. Survey Markers and Monuments
9.1 SLai•vey Market's alld M'0111 nienis. Franchisee shall, using a licensed surveyor,
immediately replace all markers or monuments disturbed during any work by Franchisee within the
Franchise Area. Franchisee shall pay all costs associated with such lost, destroyed or disturbed
monuments or markers. In accordance with RCW 58.24.040(8), no cadastral or geodetic survey
monument may be disturbed without a valid permit to remove or destroy a survey monument,issued
by the Washington State Department of Natural Resources. Permit applications can be obtained on
the DNR Public Land Survey Office website.The permit application must be stamped by a registered
Washington State Land Surveyor. Franchisee shall obtain the permit to remove or destroy a survey
monument as necessary.All costs to obtain and comply with the permit shall be paid by Franchisee.
9.2 SurfaceMarkin s/Stakes. Prior to Franchisee commencing any excavation work
within the Franchise Area, Franchisee shall reference all monuments and markers relating to
subdivisions, plats, highways, and other surveys. The reference points shall be located so that they
shall not be disturbed during the Franchisee's operations under this Franchise. The method of
referencing these monuments or other points shall be approved by the City before placement. The
construction shall be made as expeditiously as conditions permit, and as directed by the City. The
Ordinance No. 20-896 Page 15 cif 50
cost of monuments or other markers lost,destroyed,or disturbed,and the expense of replacement of
the monuments, shall be borne solely by the Franchisee. A complete set of reference notes for
monuments and other ties shall be filed with the City.
Section 10. Work of Subcontractors and Contractors
Franchisee's contractors and subcontractors shall be licensed and bonded in accordance with
State law and the City's ordinances, regulations, and requirements. Work by contractors and
subcontractors are subject to the same restrictions, limitations, and conditions as if the work were
performed by Franchisee. Franchisee shall be responsible for all work performed by its contractors
and subcontractors and others performing work on its behalf as if the work were performed by
Franchisee and shall ensure that all such work is performed in compliance with this Franchise and
applicable law.
Section 11. l i ht of City to Coinplete Work
11.1 Noji-Comp �agc�s.,��'��o Pe1(( IT �.l t y. In the event Franchisee fails to comply
with any applicable federal, state or City laws, ordinances, rules, regulations, or standards or with
any of the terms of this Franchise, or if such work by Franchisee endangers property or the public
and such noncompliance continues for a period of ten (10) days after Franchisee receives written
notice from the City regarding the noncompliance,the City may,but in no event is the City obligated
to,order any work completed,including without limitation Franchisee's obligation to repair pursuant
to Section 13 herein and Franchisee's obligation to remove or relocate facilities pursuant to Section
12 herein. If the City causes such work to be done by its own employees or by any person or entity
other than Franchisee,Franchisee shall,upon the City's written request, immediately reimburse the
City for all reasonable costs and expenses incurred by the City in having such work performed,
which costs may include the City's reasonable overhead expenses and attorneys'fees;however,the
Ordinance No. 20-896 Page 16 of 50
City shall not have any electrical work accomplished by any person or entity other than Franchisee or
a qualified and licensed electrical contractor.
11.2 p quer eric y +r as I' °1't,n-nc 1 by Cit�r.The City retains the right and privilege to cut or
move any Facilities located within the Rights-of-Way of the City, as the City may determine to be
necessary, appropriate, or useful in response to any public health or safety emergency. Consistent
with Section 21.2, Franchisee shall reimburse the City for the costs associated with the repair.
11.3 No L%abili y for Damage. The City shall not be liable for any damage to or loss of
Facilities within the Rights-of-Way as a result of or in connection with any public works, public
improvements,construction, grading, excavation,filling, or work of any kind in the Rights-of-Way
by or on behalf of the City, except to the extent directly and proximately caused by the sole
negligence or intentional misconduct of the City,its employees,contractors,or agents.The City shall
further not be liable to Franchisee for any direct,indirect,or any other such damages suffered by any
person or entity of any type as a direct or indirect result of the City's actions under this Section 11
except to the extent caused by the sole negligence or intentional misconduct of the City, its
employees, contractors, or agents.
Section 12, Required Relocation o4'_Facilities
12.1 City Rene vat oji ofR iglit .The City reserves the right to use,occupy and enjoy all or
any part of the Franchise Area,either above,below,or adjacent to the Facilities,for any purpose.The
rights reserved herein include,without limitation,the construction,installation,and/or maintenance
of any electrical,water,sewer or storm drainage line,traffic signals,street lights,trees,landscaping,
bicycle paths and lanes, equestrian trails, sidewalks, other pedestrian amenities, and other public
street and Right-of-Way improvement projects.
Ordinance No. 20-896 Pcgge 17 of 50
12.2 Relocation. The City may require Franchisee,and Franchisee covenants and agrees,
to protect, support,temporarily disconnect,relocate,remove,and/or modify its Facilities within the
Rights-of-Way when reasonably necessary for construction,alteration,repair,or improvement of the
Right-of-Way for purposes of public welfare, health, or safety. These projects may include,but are
not limited to,improving the Rights-of-Way for traffic conditions,dedications of new Rights-of-Way
and the establishment and improvement thereof,widening and improvement of existing Rights-of-
Way, street vacations, roadway construction, change or establishment of street grade, or the
construction of any public improvement or structure,or as otherwise necessary for the operations of
the City, regardless of the type of entity (public or private)performing the project. Collectively all
such projects described in this Section 12.2 shall be considered "Public Improvement Projects."
Except as otherwise provided by law, the costs and expenses associated with relocation or
disconnections ordered pursuant to this Section shall be borne by Franchisee.
12.3 Notice of Public ImprovemerA Projects. If the City determines that the project
necessitates the relocation of Franchisee's existing Facilities, the City shall provide Franchisee in
writing with a date by which the relocation shall be completed (the "Relocation Date") consistent
with RCW 35.99.060(2). In calculating the Relocation Date,the City shall consult with Franchisee
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. Franchisee shall complete the relocation by the Relocation Date,
unless the City or a reviewing court establishes a later date for completion, as described in RCW
35.99.060(2). To provide guidance on this notice process, the City will make reasonable efforts to
engage in the following recommended process,absent an emergency posing a threat to public safety
Ordinance No. 20-896 Page 18(Y'50
or welfare or an emergency beyond the control of the City that will result in severe financial
consequences to the City:
A. The City will consult with the Franchisee in the predesign phase of any Public
Improvement Project in order to coordinate the project's design with Franchisee's Facilities within
such project's area.
B. Franchisee shall participate in predesign meetings until such time as(i)both
parties mutually determine that Franchisee's Facilities will not be affected by the Public
Improvement Project or (ii) until the City provides Franchisee with written notice regarding the
relocation as provided in subsection 0 below.
C. Franchisee shall,during the predesign phase,evaluate and provide comments
to the City related to any alternatives to possible relocations. The City will give any alternatives
proposed by the Franchisee full and fair consideration,but the final decision accepting or rejecting
any specific alternative shall be within the City's sole discretion.
D. The City will provide Franchisee with its decision regarding the relocation of
Franchisee's Facilities as soon as reasonably possible, endeavoring to provide no less than ninety
(90) days prior to the commencement of the construction of such Public Improvement Project;
provided,however,that in the event that the provisions of a state or federal grant require a different
notification period or process than that outlined in this Section, the City will notify the Franchisee
during the predesign meetings and the process mandated by the grant funding will control.
E. After receipt of such written notice,Franchisee shall relocate such Facilities to
accommodate the Public Improvement Project consistent with the timeline provided by the City and
at no charge or expense to the City. Such timeline may be extended by a mutual agreement.
Ordinance No. 20-896 Page 19 g1'50
12.4 Franchisee's Duties. Within the time frame established by the City under
Section Error! Reference source not found.requiring relocation,Franchisee shall raise,lower,or
move such Facilities within the Franchise Area to the location or position directed by the City, to
cause the least interference with the improvement,repair,or alteration contemplated by the City and
to conform to such new grades as may be established. If the City improves a Right-of-Way,
Franchisee shall, upon receipt of notice, replace the Facilities located in the improved subgrade of
the improvement with substitute Facilities conforming to the specifications for the improvement of
the Right-of-Way. The relocation of the Facilities shall be at the Franchisee's sole cost and expense
except as otherwise provided in RCW 35.99.060.
12.5 Delay. Franchisee shall be solely responsible for the out-of-pocket costs incurred
by the City for delays in a Public Improvement Project to the extent the delay is caused by or arises
out of Franchisee's failure to comply with the final schedule for the relocation(other than as a result
of a Force Majeure Event or causes or conditions caused by the acts or omissions of the City or any
third party unrelated to Franchisee. Franchisee vendors and contractors shall not be considered
unrelated third parties). Such out-of-pocket costs may include,but are not limited to,payment to the
City's contractors and/or consultants for increased costs and associated court costs, interest, and
attorneys' fees incurred by the City to the extent directly attributable to such Franchisee's caused
delay in the Public Improvement Project. Franchisee shall indemnify, hold harmless, and pay the
costs of defending the City, in accordance with the provisions of Section 22, against any and all
claims, suits, actions, damages, or liabilities for delays on City construction projects caused by or
arising out of the failure of Franchisee to remove or relocate its Facilities as provided in this Section
12; provided, that Franchisee shall not be responsible for damages due to delays caused by
Ordinance No. 20-8.96 Page 20 of j0
circumstances beyond the control of Franchisee or the sole negligence, intentional misconduct, or
unreasonable delay of the City or any unrelated third party.
12.6 'bird-Early Relocg�Caoii . The provisions of this Section 12 shall in no manner
preclude or restrict Franchisee from making arrangements it may deem appropriate when responding
to a request for relocation of its Facilities by any person or entity other than the City,or a third-party
on behalf of 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.
12.7 Relocation-Franchisee Owned Structures. The cost of relocation of any Franchisee
owned poles or structures shall be determined in accordance with the requirements of RCW
35.99.060(3)(b),provided,however,that the Franchisee may opt to pay for the cost of relocating its
Small Wireless Facilities in order to provide consideration for the City's approval to site a Small
Wireless Facility on Franchisee owned structures or poles in a portion of the Right-of-Way
designated or proposed for a Public Improvement Project. For this Section 12.7, designation of the
Right-of-Way for a Public Improvement Project shall be undertaken in the City's Comprehensive
Plan in accordance with the requirements of Ch. 36.70A RCW. The Comprehensive Plan includes,
but is not limited to,the Transportation element or Transportation Improvement Plan(TIP),Capital
Facilities element,utilities element and any other element authorized by RCW 36.70A.070 and RCW
36.70A.080. The parties acknowledge that this provision is mutually beneficial to the parties,as the
City may otherwise deny the placement of the Small Wireless Facility at a particular site because of
the cost impact of such relocation and the conflict with the City's Comprehensive Plan.
12.8 "1 hird Par ly Str-pC_Wre�SIf the request for relocation from the City originates due to a
Public Improvement Project, in which structures or poles are either replaced or removed, then
Ordinance No. 20-896 Page 21 cif 50
Franchisee shall relocate or remove its Facilities as required by the City at no cost to the City,subject
to the procedures in this Section 12. Franchisee acknowledges and agrees that, to the extent
Franchisee's Facilities are located on poles owned by third-parties,the City shall not be responsible
for any costs associated with requests arising out of a City Public Improvement Project.
12.9 Locate.Upon request of the City and in order to facilitate the design of City street and
Right-of-Way improvements, Franchisee agrees, at its sole cost and expense, to locate, and if
reasonably determined necessary by the City,to excavate and expose its Facilities for inspection so
that the Facilities'location may be taken into account in the improvement design.The decision as to
whether any Facilities need to be relocated in order to accommodate the City's improvements shall
be made by the City upon review of the location and construction of Franchisee's Facilities.The City
shall provide Franchisee at least fourteen(14)days'written notice prior to any request for excavation
or exposure of Facilities.
12.10 C'Ayt s Costs. If Franchisee fails, neglects, or refuses to remove or relocate its
Facilities as directed by the City following the procedures outlined in this Section 12,then upon at
least ten (10) days' written notice to Franchisee, the City may perform such work or cause it to be
done, and the City's costs shall be paid by Franchisee pursuant to Section 21.
Section 13. Damage Repair
In case of damage by the Franchisee, its agents or employees or by the Facilities of the
Franchisee to Rights-of-Way,or to public and private improvements within or adjacent to Rights-of-
Way,the Franchisee agrees to repair the damage at its own cost and expense. The Franchisee shall,
upon discovery of any such damage,immediately notify the City. The City will inspect the damage,
and set a time limit for completion of the repair. If the City discovers damage caused by the
Franchisee to Rights-of-Way,or to public and private improvements within or adjacent to Rights-of-
Ordinance No. 20-896 Page 22 gf'SQ
Way, the City shall give the Franchisee notice of the damage and set a time limit in which the
Franchisee must repair the damage.In the event the Franchisee does not repair a Right-of-Way or an
improvement as required in this section, the City may repair the damage pursuant to Section 11 of
this Franchise.
Section 14. Default
14.1 Remedws. The City may elect, without any prejudice to any of its other legal rights
and remedies,to obtain an order from the superior court having jurisdiction compelling Franchisee to
comply with the provisions of this Franchise and to recover damages and costs incurred by the City
by reason of Franchisee'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 Franchisee 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. Provided, further, that by entering into this Franchise, it is not the intention of the City or
Franchisee to waive any other rights,remedies,or obligations as otherwise provided by law equity,or
otherwise, and nothing contained herein shall be deemed or construed to affect any such waiver.
14.2 Notice and Cure,Dama es. If Franchisee shall violate,or fail to comply with any of
the provisions of this Franchise, or should it fail to heed or comply with any notice given to
Franchisee under the provisions of this Franchise, the City shall provide Franchisee with written
notice specifying with reasonable particularity the nature of any such breach and Franchisee shall
undertake all commercially reasonable efforts to cure such breach within thirty(3 0)days of receipt of
notification. If the parties reasonably determine the breach cannot be cured within (30)thirty days,
the City may specify a longer cure period, and condition the extension of time on Franchisee's
submittal of a plan to cure the breach within the specified period,commencement of work within the
Ordinance No. 20-896 f cgc 23 of 50
original thirty(30)day cure period,and diligent prosecution of the work to completion.If the breach
is not cured within the specified time, or Franchisee does not comply with the specified conditions,
City may, at its discretion, (1) commence revocation proceedings pursuant to Section 14.3, or (2)
claim damages of Two Hundred Fifty Dollars ($250.00)per day against the Franchisee or bond set
forth in Section 24, or (3)pursue other remedies as described in Section 14.1 above.
14.3 Revocation of Franchise.If Franchisee 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 Franchisee by the City under the provisions of this Franchise, then
Franchisee shall, at the election of the Federal Way 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 Franchisee.
Section 15. 11eploN,ment of Facilities
15.1 CityRctains A�a�avx�l � l�,ltla � . The City shall have the authority at all times to
control by appropriately exercised police powers through ordinance or regulation, consistent with 47
U.S.C. § 253,47 U.S.C. § 332(c)(7)and the laws of the State of Washington,the location,elevation,
manner of construction, and maintenance of any of Franchisee's Facilities, and Franchisee shall
promptly conform with all such requirements,unless compliance would cause Franchisee to violate
other requirements of law. This Franchise does not prohibit the City from exercising its rights under
federal, state or local law to deny or give conditional approval to an application for a permit to
construct any individual Facility.
15.2 City A Limvals prid,Pe ip its. The granting of this Franchise is not a substitute for any
other City required approvals to construct Franchisee's Facilities in the Rights-of-Way ("City
Approvals"). The parties agree that such City Approvals (except Right-of-Way use permits as
Ordinance No. 20-896 Page 24 ref 50
described in Section 7 of this Franchise) are not considered use permits, as that term is defined in
RCW 35.99.010. These City Approvals do not grant general authorization to enter and utilize the
Rights-of-Way but rather grant Franchisee permission to build its specific Facilities. Therefore,City
Approvals are not subject to the thirty(3 0) day issuance requirement described in RCW 35.99.030.
The parties recognize that this provision is specifically negotiated as consideration for designating
the entire City as the Franchise Area. Such City Approvals shall be issued consistent with the Codes,
state, and federal laws governing wireless communication facility siting and may be in addition to
any permits required under Section 7.1.
15.3 rei r nce for Existig lnlrastniettrre; Site Specific Nyyreemeiils.
A. Franchisee shall utilize existing infrastructure in the City whenever possible
and consistent with the design, concealment, and siting of the Codes. The erection of new poles or
structures in the Right-of-Way may only be permitted if no other alternative space feasible for the
installation of the Facility is available. In the event that existing infrastructure is not available or
feasible for a Facility,or if the City prefers new poles or infrastructure in a particular area of the City,
then Franchisee may request the placement of new or replacement structures in the Rights-of-Way
consistent with the requirements of the Codes.
B. Franchisee acknowledges and agrees that pursuant to RCW 35.21.860,
Franchisee may be required to enter into a site-specific agreement or lease for any of the following:
(i) The placement of new poles or structures in the Right-of-Way
regardless of height, unless the new structure is the result of a mandated relocation;
(ii) The placement of replacement structures when the replacement is
necessary for the installation or attachment of the Facilities. the replacement structure is higher
Ordinance Na. 20-896 Page 25 Uf`50
than the replaced structure, and the overall height of the replacement structure and the Facility is
more than sixty feet; or
(iii) The placement of Facilities on poles structures owned by the City
located in the Right-of-Way.
C. Replacement poles or structures which remain substantially similar to existing
structures or deviate in height or design as permitted within the FWRC are permissible provided that
Franchisee,or the pole owner at the Franchisee's request,removes the old pole or structure promptly,
but no more than ninety (90) days after the installation of the replacement pole or structure.
D. This Section 15.3.4 does not place an affirmative obligation on the City to
allow the placement of new infrastructure on public property or in the Rights-of-Way, nor does it
relieve Franchisee from any Code provision related to the siting of wireless facilities.
15.4 Concealment.Franchisee shall construct its Facilities consistent with the concealment
or stealth requirements as described in the Codes, as the same exist or are hereafter amended, or in
the applicable permit(s),lease, site specific agreement,or license agreement,in order to minimize the
visual impact of such Facilities.
15.5ligille Faciliics lett . The parties acknowledge that it is the intent of this
Franchise to provide general authorization to use the Rights-of-Way for Small Wireless Facilities.
When considering whether a proposed modification is a substantial change under Section 6409(a)of
the Spectrum Act, 47 U.S.C. § 1455(a), the parties acknowledge that the designs as illustrated in a
Small Wireless Permit,including the dimensions and number of antennas and equipment boxes and
the pole height are intended and stipulated to be aesthetic conditions to minimize the visual impact of
the Small Wireless Facilities, and specifically to utilize concealment elements intended to maintain
the look of a utility or light pole to which the Facilities are attached.
Ordinance No. 20-896 Page 26 af'50
15.6 Inventory. Franchisee shall maintain a current inventory of Facilities throughout the
Term of this Franchise. Franchisee shall provide to the City a copy of an inventory report within
thirty(30) days after a request by the City. The inventory report shall include GIS coordinates, date
of installation, type of pole used for installation, description/type of installation for each Facility
installation and photographs taken before and after the installation of the Facility and taken from the
public street. Facilities that are considered Deactivated Facilities,as described in Section 25.2,shall
be included in the inventory report and Franchisee shall provide the same information as is provided
for active installations as well as the date the Facilities were deactivated and the date the Deactivated
Facilities were removed from the Right-of-Way. The City shall compare the inventory report to its
records to identify any discrepancies, and the parties will work together in good faith to resolve any
discrepancies. Franchisee is not required to report on future inventory reports any Deactivated
Facilities that were removed from the Right-of-Way since the last reported inventory and may
thereafter omit reference to the Deactivated Facilities.
15.7 tMaUtliorized Facilities. Any Small Wireless Facilities installations in the Right-of-
Way that were not authorized under this Franchise or other required City Approval ("Unauthorized
Facilities") will be subject to the payment of an Unauthorized Facilities charge by Franchisee. The
City shall provide written notice to Franchisee of any Unauthorized Facilities identified by City staff
and Franchisee shall either (i) establish that the site was authorized, or (ii) submit a complete
application to the City for approval of the Unauthorized Facilities.Upon notice of the Unauthorized
Facility, Franchisee shall be charged Five Hundred Dollars ($500.00) per day per Unauthorized
Facility("Unauthorized Facility Penalty").The Unauthorized Facility Penalty shall be waived in its
entirety if Franchisee can establish that the site was in fact authorized. The Unauthorized Facility
Penalty shall be suspended upon the submission of a complete application to the City requesting
Ordinance No. 20-896 Page 27 of'50
approval of the Unauthorized Facility. If the application for such Unauthorized Facilities is denied as
the final decision, then the Unauthorized Facility Penalty will resume until the Unauthorized
Facilities are removed and Franchisee shall remove the Unauthorized Facilities from the City's
Right-of-Way within thirty(30)days after the expiration of all appeal periods for such denial. Upon
the conclusion of any matter involving an Unauthorized Facility, City shall provide Franchise an
invoice detailing the total amount of the Unauthorized Facility Penalty, if any, which penalty
Franchisee shall pay within thirty(30)days after receipt of notice thereof.This Franchise remedy is
in addition to any other remedy available to the City at law or equity. Notwithstanding the foregoing,
an Unauthorized Facility Penalty pursuant to this Franchise shall not be assessed if Franchisee
received City Approval for the Small Wireless Facilities but such Small Wireless Facilities are
technically inconsistent with the City Approval;provided,however,Franchisee is still required to fix
any inconsistencies with the permit requirements and that this provision does not restrict the City's
other enforcement rights.
15.8 Graffiti Abatement. As soon as practical,but not later than seven(7) days from the
date Franchisee receives notice or is otherwise aware,Franchisee shall remove all graffiti on any of
its Facilities of which it is the owner of the pole or structure or on the Facilities themselves attached
to a third-party pole (e.g., graffiti on the shrouding protecting the radios). The foregoing shall not
relieve Franchisee from complying with any City graffiti or visual blight ordinance or regulation.
15.9 Emissions Reports.
A. Franchisee is obligated to comply with all laws relating to allowable presence
of or human exposure to Radiofrequency Radiation("RFs")or Electromagnetic Fields("EMI's")on
or off any poles or structures in the Rights-of-Way,including all applicable FCC standards,whether
such RF or EMF presence or exposure results from the Facility alone or from the cumulative effect
Ordinance No. 20-896 Page 28 q/'.50
of the Facility added to all other sources operated by Franchisee or on behalf of Franchisee on or near
the specific pole or structure. Franchisee shall comply with the RF emissions certification
requirements of FWRC 4.23.020(2).
B. Nothing in this Franchise prohibits the City from requiring periodic testing of
Franchisee's Facilities,provided that such testing is not requested on any one Facility more than once
in a calendar year,unless as otherwise required by a permit or due to a modification of the Facility.
The City may inspect any of Franchisee's Facilities and equipment located in the Rights-of-Way. If
the City discovers that the emissions from a Facility exceeds the FCC standards,then the City may
order Franchisee to immediately turn off the Facility or portion thereof committing the violation,
until the emissions exposure is remedied. Such notification shall be made orally by calling 866-892-
5327 and by written notice pursuant to Section 26.7. Franchisee is required to promptly turn off that
portion of the Facility that is in violation, no later than forty-eight (48) hours after receipt of oral
notice. Franchisee shall reimburse the City for any costs incurred by the City for inspecting the
Facility and providing notice as described in Section 21.
15.10 Interference with Public Facilities. Franchisee's Facilities shall not physically
interfere or cause harmful interference, as defined in 47 CFR 15.3(m), with any City operations
(including, but not limited to, traffic lights, public safety radio systems, or other City
communications infrastructure), or the emergency communications operation or equipment. If the
Facilities cause such harmful interference,Franchisee shall respond to the City's request to address
the source of the interference as soon as practicable,but in no event later than forty-eight(48)hours
after receipt of notice. The City may require, by written notice, that Franchisee power down the
specific Facilities, or portion thereof, causing such interference if such interference is not remedied
within forty-eight (48) hours after notice. If, within thirty (30) days after receipt of such written
Ordinance No. 20-896 Pagre 29 q1'50
notice from the City of such interference,Franchisee has not abated such interference, such Facility
may be deemed an Unauthorized Facility and subject to the provisions of Section 15.7 or removal by
the City consistent with Section 11.2.
15.11 Interference with Other Facilities. Franchisee is solely responsible for determining
whether its Facilities interfere with telecommunications facilities of other utilities and franchisees
within the Rights-of-Way. Franchisee shall comply with the rules and regulations of the Federal
Communications Commission regarding radio frequency interference when siting its Facilities within
the Franchise Area. Franchisee,in the performance and exercise of its rights and obligations under
this Franchise shall not physically or technically interfere in any manner with the existence and
operation of any and all existing utilities, sanitary sewers, water mains, storm drains, gas mains,
poles,aerial and underground electrical and telephone wires,electroliers,cable television,and other
telecommunications,utility,or municipal property,without the express written approval of the owner
or owners of the affected property or properties, except as expressly permitted by applicable law or
this Franchise.
Section 16. Limited Rifts
This Franchise is intended to convey only a limited right and interest to Franchisee in the
Franchise Area. This Franchise is not a warranty of title or conveyance of any ownership interest in
or to the Franchise Area to Franchisee. The City reserves the right to limit or exclude Franchisee's
access to a specific route,Right-of-Way or other location when,in the judgment of the Director there
is inadequate space(including,but not limited to,compliance with ADA clearance requirements and
maintaining a clear and safe passage through the Rights-of-Way), a pavement cutting moratorium,
unnecessary damage to public property, public expense, inconvenience, interference with City
utilities, or for any other reason determined by the Director.
Ordinance No. 20-896 Page 30 of S0
Section 17.. Eminent Domain
The existence of this Franchise shall not preclude the City from acquiring by condemnation,
in accordance with applicable law,all or a portion of Franchisees Facilities within the Franchise Area
for the fair market value thereof. In determining the value of such Facilities, no value shall be
attributed to the right to occupy the Franchise Area conferred by this Franchise.
Section 18. Vacation
If at any time the City,by ordinance,vacates all or any portion of the Franchise Area,the City
will not be liable for any damages or loss to the Franchisee by reason of such vacation.The City shall
notify Franchisee in writing not less than thirty (30) days before vacating all or any portion of the
Franchise Area, if Franchisee has Facilities within such area planned for vacation and the City is
aware of Franchisee's Facilities in such area through the submission of as-builts required in Section
8.3. The City may, after thirty(30) days written notice to Franchisee, terminate this Franchise with
respect to any such vacated area. At Franchisee's request, the City will, if practicable, reserve an
easement for Franchisee's existing facilities to continue to use the vacated area. Franchisee must
provide to the City information necessary for the City to reserve such easement within the thirty(30)
day period.
Section 19. +Coni liance with :Lai)�s
19.1 Gei7eral. Franchisee shall comply with all applicable federal, state and City laws,
franchises,resolutions,regulations,standards,policies and procedures,as now existing or hereafter
amended or adopted, including without limitation the State Environmental Policy Act; provided,
however, that if any term or condition of this Franchise and any term or condition of any City law,
code, franchise, resolution, regulation, standard, procedure, permit, or approval are in conflict, the
term or condition of this Franchise will control.
Ordinance No. 20-896 Page 31 of 50
19.2 Future City of Federal Ws Rega��jation.Franchisee acknowledges that the City may
develop rules,regulations,ordinances,and specifications for the use of the right-of-way which shall
govern Franchisee's Facilities and activities hereunder as if they were in effect at the time this
Franchise was executed by the City and Franchisee covenants and agrees to be bound by same.
19.3 Franchise Fees.Franchisee hereby represents that its operations as authorized under
this Franchise are those of a telephone business as defined in RCW 82.16.010,or service provider as
defined in RCW 35.99.010.As a result, the City will not impose a franchise fee under the terms of
this Franchise,other than as described herein.The City hereby reserves its right to impose a franchise
fee on Franchisee if Franchisee's operations as authorized by this Franchise change such that the
statutory prohibitions of RCW 35.21.860 no longer apply or, if statutory prohibitions on the
imposition of such fees are removed.In either instance,the City also reserves its right to require that
Franchisee obtain a separate franchise for its change in use,which franchise may include provisions
intended to regulate Franchisee's operations, as allowed under applicable law.
19.4 Taxes. Franchisee stipulates and agrees that certain of its business activities are
subject to taxation as a cellular telephone service and that Franchisee shall pay to the City the rate
applicable to such taxable services under Chapter 3.10 FWRC,and consistent with state and federal
law. The parties agree that if there is a dispute regarding tax payments that the process in Chapter
3.10 FWRC shall control.The parties agree that nothing in this Franchise shall limit the City's power
of taxation as may exist now or as later imposed by the City. This provision does not limit the City's
power to amend Chapter 3.10 FWRC as may be permitted by law.
Section 20. Guarantee
Franchisee shall guarantee work completed by the Franchisee under this Franchise for a
period of 2 years against settlement or repair including Facilities and right-of-way restoration. This
Ordinance No. 20-8.96 Page 32 of'50
guarantee shall apply only to such settlement or repair that the City attributes to Franchisee's
Facilities, actions or omissions.
Section 21. Charge for Administrative Costs
21.1 Adininistrative Fee.Franchisee shall pay a one-time fee for the actual administrative
expenses incurred by the City that are directly related to the receiving and approving this Franchise
pursuant to RCW 35.21.860, including the costs associated with the City's legal costs incurred in
drafting and processing this Franchise. Such administrative fee shall be offset against the fee deposit
required pursuant to FWRC 4.22.040; provided, however, if the administrative fee exceeds the fee
deposit,then the Franchisee shall remit such additional amounts within thirty(3 0)days of receipt of
an invoice from the City. No construction permits shall be issued for the installation of Facilities
authorized until such time as the City has received payment of this fee. Franchisee shall further be
subject to all permit fees associated with activities undertaken through the authority granted in this
Franchise or under the laws of the City. Where the City incurs costs and expenses for review,
inspection, or supervision of activities, including but not limited to reasonable fees associated with
attorneys,consultants,City Staff and City Attorney time,undertaken through the authority granted in
this Franchise or any ordinances relating to the subject for which a permit fee is not established,
Franchisee shall pay such costs and expenses directly to the City in accordance with the provisions of
Section 21.3.
21.2 Emerger a.Repair Costs. In addition to Section 21.1, Franchisee shall promptly
reimburse the City in accordance with the provisions of Section 21.3 and Section 21.4 for any and all
costs the City reasonably incurs in response to any emergency situation involving Franchisee's
Facilities, to the extent said emergency is not the fault of the City.
Ordinance No. 20-896 Page-53 o1'50
21.3 RcImbu st,wn,iept q l.xp ns�:s. Franchisee shall reimburse the City within sixty (60)
days of submittal by the City of an itemized billing for reasonably incurred costs, itemized by
project,for Franchisee's proportionate share of all actual,identified expenses incurred by the City in
planning,constructing,installing,repairing,altering,or maintaining any City facility as the result of
the presence of Franchisee's Facilities in the Rights-of-Way. Such costs and expenses shall include
but not be limited to Franchisee's proportionate cost of City personnel assigned to oversee or engage
in any work in the Rights-of-Way as the result of the presence of Franchisee's Facilities in the
Rights-of-Way. Such costs and expenses shall also include Franchisee's proportionate share of any
time spent reviewing construction plans in order to either accomplish the relocation of Franchisee's
Facilities or the routing or rerouting of any utilities so as not to interfere with Franchisee's Facilities.
21.4 Calculation-of Costs.The time of City employees shall be charged at the hourly rate
specified in the applicable Code, schedule, or other City adopted regulation.Any other costs will be
billed proportionately on an actual cost basis. All billings will be itemized so as to specifically
identify the costs and expenses for each project for which the City claims reimbursement.A charge
for the actual costs incurred in preparing the billing may also be included in said billing.At the City's
option, the billing may be on an annual basis, but the City shall provide the Franchisee with the
City's itemization of costs, in writing, at the conclusion of each project for information purposes.
Section 22. Indemnification
22.1 Franchisee releases,covenants not to bring suit, and agrees to indemnify,defend,and
hold harmless the City,its officers,elected and appointed officials,employees,agents,volunteers and
representatives from any and all claims, costs, judgments, awards, or liability to any person, for
injury or death of any person,or damage to property caused by or arising out of any acts or omissions
of Franchisee, its agents, servants, officers, or employees in the performance of this Franchise and
Ordinance No. 20-896 Page 34 caf`50
any rights granted within this Franchise. The indemnification shall include, but is not limited to,
Franchisee indemnifying, defending and holding the City harmless from any and all claims, costs,
judgments, awards or liability to any person arising from radio frequency emissions or radiation
emitted from Franchisee's Facilities located in the Rights-of-Way,regardless of whether Franchisee's
equipment complies with applicable federal statutes and/or FCC regulations related thereto. These
indemnification obligations shall extend to claims that are not reduced to a suit and any claims that
may be compromised, with Franchisee's prior written consent, prior to the culmination of any
litigation or the institution of any litigation.
22.2 Inspection or acceptance by the City of any work performed by Franchisee at the
time of completion of construction shall not be grounds for avoidance by Franchisee of any of its
obligations under this Section 22.
22.3 The City shall promptly notify Franchisee of any claim or suit and request in writing
that Franchisee indemnify the City. Franchisee may choose counsel to defend the City subject to this
Section 22.3. City's failure to so notify and request indemnification shall not relieve Franchisee of
any liability that Franchisee might have,except to the extent that such failure prejudices Franchisee's
ability to defend such claim or suit. In the event that Franchisee refuses the tender of defense in any
suit or any claim, as required pursuant to the indemnification provisions within this Franchise, 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 Franchisee,
Franchisee shall pay all of the City's reasonable costs for defense of the action, including all expert
witness fees,costs,and attorney's fees,and including costs and fees incurred in recovering under this
indemnification provision. If separate representation to fully protect the interests of both parties is
necessary, such as a conflict of interest between the City and the counsel selected by Franchisee to
Ordinance No. 20-896 Page 35 of 50
represent the City,then upon the prior written approval and consent of Franchisee,which shall not be
unreasonably withheld, the City shall have the right to employ separate counsel in any action or
proceeding and to participate in the investigation and defense thereof, and Franchisee shall pay the
reasonable fees and expenses of such separate counsel,except that Franchisee shall not be required to
pay the fees and expenses of separate counsel on behalf of the City for the City to bring or pursue any
counterclaims or interpleader action,equitable relief,restraining order or injunction. The City's fees
and expenses shall include all out-of-pocket expenses, such as consultants and expert witness fees,
and shall also include the reasonable value of any services rendered by the counsel retained by the
City but shall not include outside attorneys' fees for services that are unnecessarily duplicative of
services provided the City by Franchisee. Each party agrees to cooperate and to cause its employees
and agents to cooperate with the other party in the defense of any such claim and the relevant records
of each party shall be available to the other party with respect to any such defense.
22.4 Except to the extent that damage or injury arises from the sole negligence or willful
misconduct of the City, its officers, officials (elected and appointed), employees or agents, the
obligations of Franchisee under the indemnification provisions of this Section 22, and any other
indemnification provision herein shall apply regardless of whether liability for damages arising out
of bodily injury to persons or damages to property were caused or contributed to by the concurrent
negligence of the City, its officers, officials (elected and appointed), employees or agents and the
Franchisee. Notwithstanding the proceeding sentence,to the extent the provisions of RCW 4.24.115
are applicable,the parties agree that the indemnity provisions hereunder shall be deemed amended to
conform to said statute and liability shall be allocated as provided therein. It is further specifically
and expressly understood that the indemnification provided constitutes Franchisee's waiver of
immunity under Title 51 RCW, solely for the purposes of this indemnification, relating solely to
Ordinance No. 20-4.46 Page 36 of5D
indemnity claims made by the City directly against the Franchisee for claims made against the City
by Franchisee's employees. This waiver has been mutually negotiated by the parties.
22.5 Notwithstanding any other provisions of this Section 22,Franchisee assumes the risk
of damage to its Facilities located in the Rights-of-Way and upon City-owned property from
activities conducted by the City, its officers, officials (elected and appointed) agents, employees,
volunteers,elected and appointed officials,and contractors,except to the extent any such damage or
destruction is caused by or arises from any solely negligent,willful misconduct, or criminal actions
on the part of the City,its officers,officials(elected and appointed)agents,employees,volunteers,or
elected or appointed officials, or contractors. In no event shall the City be liable for any indirect,
incidental, special,consequential,exemplary,or punitive damages,including by way of example and
not limitation lost profits, lost revenue, loss of goodwill, or loss of business opportunity in
connection with its performance or failure to perform under this Franchise. Franchisee releases and
waives any and all such claims against the City,its officers,agents,employees,volunteers,or elected
or appointed officials, or contractors. Franchisee further agrees to indemnify, hold harmless and
defend the City against any claims for damages, including,but not limited to,business interruption
damages, lost profits and consequential damages,brought by users of Franchisee's Facilities as the
result of any interruption of service due to damage or destruction of Franchisee's Facilities caused by
or arising out of activities conducted by the City,its officers,officials(elected and appointed)agents,
employees or contractors.
22.6 The provisions of this Section 22 shall survive the expiration, revocation, or
termination of this Franchise.
Ordinance No. 0-896 Page 37 oj'50
Section 23. Insurance
23.1 Franchisee shall procure and maintain for so long as Franchisee has Facilities in the
Public Ways,insurance against claims for injuries to persons or damages to property which may arise
from or in connection with the acts or omissions of Franchisee. Franchisee shall require that every
subcontractor maintain substantially the same insurance coverage with substantially the same policy
limits as required of Franchisee. Franchisee shall procure insurance from insurers with a current
A.M.Best rating of not less than A. Franchisee shall provide a copy of a certificate of insurance and
additional insured endorsement to the City for its inspection at the time of acceptance of this
Franchise, and such insurance certificate shall evidence a policy of insurance that includes:
A. Automobile Liability insurance with limits of no less than $5,000,000
combined single limit per occurrence for bodily injury and property damage;
B. Commercial General Liability insurance,written on an occurrence basis with
limits of no less than $5,000,000 per occurrence for bodily injury and property damage and
$5,000,000 general aggregate including personal and advertising injury, blanket contractual;
premises;-operations;independent contractors;products and completed operations;and broad form
property damage; explosion, collapse and underground (XCU);
C. Pollution liability shall be in effect throughout the entire Franchise term,with
a limit of one million dollars ($1,000,000)per occurrence, and two million dollars ($2,000,000) in
the aggregate;
D. Workers'Compensation coverage as required by the Industrial Insurance laws
of the State of Washington and Employer's Liability with a limit of $1,000,000 each
accident/disease/policy limit. Evidence of qualified self-insurance is acceptable; and
Ordinance No. 20-896 d'og .fib'gf'50
E. Excess Umbrella liability policy with limits of$10,000,000 per occurrence
and in the aggregate. Franchisee may use any combination of primary and excess to meet required
total limits.
23.2 Payment of deductible or self-insured retention shall be the sole responsibility of
Franchisee. Franchisee may utilize primary and umbrella liability insurance policies to satisfy the
insurance policy limits required in this Section 23. Franchisee's umbrella liability insurance policy
shall provide "follow form" coverage over its primary liability insurance policies.
23.3 The required insurance policies,with the exception of Workers'Compensation and
Employer's Liability obtained by Franchisee shall include the City,its officers,officials(elected and
appointed),employees,agents,and volunteers("Additional Insureds"),as an additional insured with
regard to activities performed under this Franchise by or on behalf of Franchisee, with coverage at
least as broad as Additional Insured Managers Lessors of Premises ISO form CG 20 11. The
coverage shall contain no special limitations on the scope of protection afforded to the Additional
Insureds. In addition, the insurance policy shall contain a clause stating that coverage shall apply
separately to each insured against whom a claim is made, or suit is brought, except with respect to
the limits of the insurer's liability. Franchisee shall provide to the City upon acceptance a certificate
of insurance and blanket additional insured endorsement. Receipt by the City of any certificate
showing less coverage than required is not a waiver of Franchisee's obligations to fulfill the
requirements. Franchisee's required general and auto liability insurance shall be primary insurance
with respect to the City. Any insurance,self-insurance,or insurance pool coverage maintained by the
City shall be in excess of Franchisee's required insurance and shall not contribute with it.
23.4 Upon receipt of notice from its insurer(s)Franchisee shall provide the City with thirty
(30) days prior written notice of any cancellation of any insurance policy, required pursuant to this
Ordinance No. 20-896 Page 39 of 50
Section 23. Franchisee shall, prior to the effective date of such cancellation, obtain replacement
insurance policies meeting the requirements of this Error! Reference source not found.. Failure to
provide the insurance cancellation notice and to furnish to the City replacement insurance policies
meeting the requirements of this Section 23 shall be considered a material breach of this Franchise
and subject to the City's election of remedies described in Section 14 above. Notwithstanding the
cure period described in Section 14 above, the City may pursue its remedies immediately upon a
failure to furnish replacement insurance.
23.5 Franchisee's maintenance of insurance as required by this Section 23 shall not be
construed to limit the liability of Franchisee to the coverage provided by such insurance,or otherwise
limit the City's recourse to any remedy available at law or equity. Further,Franchisee's maintenance
of insurance policies required by this Franchise shall not be construed to excuse unfaithful
performance by Franchisee. If Franchisee maintains higher insurance limits than the minimums
shown above, the City shall be insured for the full available limits of Commercial General and
Excess Umbrella liability maintained by the Franchisee, irrespective of whether such limits
maintained by the Franchisee are greater than those required by this contract or whether any
certificate of insurance furnished to the City evidences limits of liability lower than those maintained
by the Franchisee.
23.6 The City may review all insurance limits once every three years during the Term and
upon prior written notice to and review by Franchisee, may make reasonable adjustments in the
limits upon thirty (30) days' prior written notice to Franchisee. Franchisee shall then issue a
certificate of insurance to the City showing compliance with these adjustments.
23.7 As of the Effective Date of this Franchise, Franchisee is not self-insured. Should
Franchisee wish to become self-insured at the levels outlined in this Franchise at a later date.
Ordinance No. 20-896 Page 40 of 50
Franchisee or its affiliated parent entity shall comply with the following: (1)provide the City,upon
request, a copy of Franchisee's,or its parent company's,most recent audited financial statements,if
such financial statements are not otherwise publicly available; (2)Franchisee or its parent company
is responsible for all payments within the self-insurance program; and (3) Franchisee assumes all
defense and indemnity obligations as outlined in the indemnification section of this Franchise.
Section 24. Bond
24.1 Construction Performance wBond. Franchisee shall furnish a performance bond
("Performance Bond") written by a corporate surety reasonably acceptable to the City equal to at
least 120%of the estimated cost of constructing Franchisee's Facilities within the Rights-of-Way of
the City prior to commencement of any such work or such other amount as deemed appropriate by
the Director. The Performance Bond shall guarantee the following: (1) timely completion of
construction; (2)construction in compliance with all applicable plans,permits,technical codes,and
standards; (3)proper location of the Facilities as specified by the City; (4)restoration of the Rights-
of-Way and other City properties affected by the construction; (5) submission of as-built drawings
after completion of construction; and(6)timely payment and satisfaction of all claims,demands,or
liens for labor,materials, or services provided in connection with the work which could be asserted
against the City or City property. Said bond must remain in full force until the completion of
construction,including final inspection,corrections,and final approval of the work,recording of all
easements, provision of as-built drawings, and the posting of a Maintenance Bond as described in
Section 24.2. Compliance with the Performance Bond requirement of the City's current Design and
Construction Standards shall satisfy the provisions of this Section 24.1.
24.2 Maintenance Bond. Franchisee shall furnish a two (2) year maintenance bond
("Maintenance Bond"), or other surety acceptable to the City, at the time of final acceptance of
Ordinance No. 20-496 Page 41 cif 50
construction work on Facilities within the Rights-of-Way. The Maintenance Bond amount will be
equal to ten percent (10%) of the documented final cost of the construction work, but in no event
shall a bond of more than$250,000 be required. The Maintenance Bond in this Section 24.2 must be
in place prior to City's release of the bond required by Section 24.1. Compliance with the
Maintenance Bond requirement of the City's current Design and Construction Standards shall satisfy
the provisions of this Section 24.2.
24.3 Franchise Bond. Franchisee shall provide City with a bond in the amount of Fifty
Thousand Dollars ($50,000.00) ("Franchise Bond") running or renewable for the term of this
Franchise,in a form and substance reasonably acceptable to City. In the event Franchisee shall fail to
substantially comply with any one or more of the provisions of this Franchise following notice and a
reasonable opportunity to cure, then there shall be recovered jointly and severally from Franchisee
and the bond any actual damages suffered by City as a result thereof, including but not limited to
staff time, material and equipment costs, compensation or indemnification of third parties, and the
cost of removal or abandonment of facilities hereinabove described. Franchisee specifically agrees
that its failure to comply with the terms of this Section 24 shall constitute a material breach of this
Franchise. The amount of the bond shall not be construed to limit Franchisee's liability or to limit
the City's recourse to any remedy to which the City is otherwise entitled at law or in equity.
Section 25. Abandonment
25.1 Where any Facilities or portions of Facilities are no longer needed,and their use is to
be discontinued, the Franchisee shall report within thirty (30) days such Facilities in writing
("Deactivated Facilities")to the Director. This notification is in addition to the inventory revisions
addressed in 15.6. Deactivated Facilities, or portions thereof, shall be completely removed within
ninety (90) days and the site, pole or infrastructure restored to its pre-existing condition. This
Ordinance No. 20-896 Berg e 42 (.a1'50
requirement shall include the removal of any underground Facilities within the Rights-of-Way unless
otherwise agreed to by the City. Franchisee must apply and receive a permit,pursuant to Section 7.1,
prior to any such removal of Facilities from the Rights-of-Ways.
25.2 In the event that the use of any part of the Facilities are discontinued for any reason
for a continuous period of six(6)months or more, or in the event such Facility has been installed in
any Right-of-Way or other public place without complying with the requirements of this Franchise or
other City ordinances, the provisions of Section 15.7 shall govern.
25.3 Any property of Franchisee remaining in place thirty (30) days after such notice,
termination or expiration of this Franchise shall be considered permanently abandoned.The City may
extend such time not to exceed an additional thirty (30) days. Any costs incurred by the City in
safeguarding such Facilities or removing the Facilities shall be reimbursed by Franchisee.Nothing
contained within this Section 25 shall prevent the City from compelling Franchisee to remove any
such Facilities through judicial action when the City has not permitted Franchisee to abandon said
Facilities in place.
25.4 Any property of Franchisee permitted by the City to be abandoned in place shall be
abandoned in such manner as the City shall prescribe.Upon permanent abandonment of the property
of Franchisee in place,the property shall become that of the City,and Franchisee shall submit to the
City Clerk an instrument in writing,to be approved by the City Attorney,transferring to the City the
ownership of such property.
25.5 The provisions of this Section 25 shall survive the expiration, revocation, or
termination of this Franchise.
Section 26. General Provisions
26.1 .1"Dtir g,�niem. This Franchise contains all of the agreements of the Parties with
Ordinance No. 20-896 Page 43 of'50
respect to any matter covered or mentioned in this Franchise and no prior agreements or
understandings pertaining to any such matters shall be effective for any purpose.
26.2 Modification.No provision of this Franchise may be amended or added to except by
agreement in writing signed by both of the Parties.
26.3 AssJ�miiieiit.
A. This Franchise may not be directly or indirectly assigned, transferred, or
disposed of by sale, lease, merger, consolidation or other act of Franchisee, by operation of law or
otherwise, unless approved in writing by the City, which approval shall not be unreasonably
withheld, conditioned or delayed. The above notwithstanding, Franchisee may freely assign this
Franchise in whole or in part to a parent, subsidiary, or affiliated entity, unless there is a change of
control as described in Section 26.313 below, or for collateral security purposes. Franchisee shall
provide prompt, written notice to the City of any such assignment. 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. For purposes of this Section,no assignment or transfer of this Franchise shall be
deemed to occur based on the public trading of Franchisee's stock; provided, however, any tender
offer,merger,or similar transaction resulting in a change of control shall be subject to the provisions
of this Franchise.
B. Any transactions that singularly or collectively result in a change of more than
fifty percent (50%) of the: ultimate ownership or working control of Franchisee, ownership or
working control of the Facilities, ownership or working control of affiliated entities having
ownership or working control of Franchisee or of the Facilities, or of control of the capacity or
Ordinance No. 20-896 P6ge 44 of 50
bandwidth of Franchisee's Facilities, shall be considered an assignment or transfer requiring City
approval. Transactions between affiliated entities are not exempt from City approval if there is a
change in control as described in the preceding sentence. Franchisee shall promptly notify the City
prior to any proposed change in, or transfer of, or acquisition by any other party of control of
Franchisee. Every change, transfer, or,acquisition of control of Franchisee shall cause a review of
the proposed transfer. The City shall approve or deny such request for an assignment or transfer
requiring City's consent within one-hundred twenty (120) days of a completed application from
Franchisee,unless a longer period of time is mutually agreed to by the parties or when a delay in the
action taken by the City is due to the schedule of the City Council and action cannot reasonably be
obtained within the one hundred twenty (120) day period. In the event that the City adopts a
resolution denying its consent and such change,transfer,or acquisition of control has been affected,
the City may revoke this Franchise, following the revocation procedure described in Section 14.3
above. The assignee or transferee must have the legal, technical, financial, and other requisite
qualifications to own,hold, and operate Franchisee's Services. Franchisee shall reimburse the City
for all direct and indirect costs and expenses reasonably incurred by the City in considering a request
to transfer or assign this Franchise, in accordance with the provisions of Section 21.3 and Section
21.4, and shall pay the applicable application fee.
C. Franchisee may,without prior consent from the City: (1)lease the Facilities,
or any portion, to another person; (2) grant an indefeasible right of user interest in the Facilities, or
any portion, to another person; or (3) offer to provide capacity or bandwidth in its Facilities to
another person,provided further,that Franchisee shall at all times retain ownership over its Facilities
and remain fully responsible for compliance with the terms of this Franchise, and Franchisee shall
furnish,upon request from the City, a copy of any such lease or agreement,provided that Franchisee
Ordinance No. 20-896 Page 45 gf'50
may redact the name, street address (except for City and zip code), Social Security Numbers,
Employer Identification Numbers or similar identifying information, and other information
considered confidential under applicable laws provided in such lease or agreement, and the lessee
complies,to the extent applicable,with the requirements of this Franchise and applicable City codes.
Franchisee's obligation to remain fully responsible for compliance with the terms under this Section
26.2 shall survive the expiration of this Franchise but only if and to the extent and for so long as
Franchisee is still the owner or has exclusive control over the Facilities used by a third party.
26.4 No. ...Waiver.Failure of either party to declare any breach or default by the other party
immediately upon the occurrence thereof,or delay in taking any action in connection therewith,shall
not waive such breach or default, but such party shall have the right to declare any such breach or
default at any time.Failure of either party to declare one breach or default does not act as a waiver of
such party's right to declare another breach or default.
26.5rovt,t; iii Law. This Franchise shall be made in and shall be governed by and
interpreted in accordance with the laws of the State of Washington.Venue for any dispute related to
this Franchise shall be the United States District Court for the Western District of Washington, or
King County Superior Court.
26.6 Atithori(i(y. Each individual executing this Franchise on behalf of the City and
Franchisee represents and warrants that such individual is duly authorized to execute and deliver this
Franchise on behalf of the Franchisee or the City.
26.7 Designated Contact. Franchisee shall designate a Franchise manager as a single point
of contact for Franchise related questions,including but not limited to questions related to Franchise
compliance, scheduling and construction. Such information shall be provided at the time of
Or dinw7ce No. 20-896 Page 46 of..50
acceptance of this Franchise. Franchisee shall be responsible for updating the Franchise manager
and his/her contact information if such information changes.
26.8 Notices.Any notices required to be given by the City to Franchisee or by Franchisee
to the City shall be delivered to the parties at the following addresses:
CITY OF FEDERAL WAY EXTENET SYSTEMS LLC
Attn: Public Works Director Attn: Franchise Manager
33325 8th Avenue South 3030 Warrenville Road, Suite 340
Federal Way, WA 98003 Lisle, Illinois 60532
with a copy to: Invoices:.
CITY OF FEDERAL WAY ExteNet Systems, Inc
Attn: City Attorney Attn: CFO
33325 8th Avenue South 3030 Warrenville Road, Suite 340
Federal Way, WA 98003 Lisle, Illinois 60532
Any notices shall be delivered personally to the addressee of the notice or sent by United
States certified mail, postage prepaid, to the address set forth herein. Any notice so sent shall be
deemed received three (3) business days after the date of mailing.
26.9 C' ;liotl„s. The respective captions of the sections of this Franchise are inserted for
convenience of reference only and shall not be deemed to modify or otherwise affect in any respect
any of the provisions of this Franchise.
26.10 .Reiiiedie Any remedies provided for under the terms of this Franchise
are not intended to be exclusive but shall be cumulative with all other remedies available to the City
at law, in equity or by statute.
�w....„
26.11 Hazardous Substances. Franchisee shall not introduce or use any hazardous
substances(chemical or waste),in violation of any applicable law or regulation,nor shall Franchisee
allow any of its agents, contractors or any person under its control to do the same. Franchisee will be
Ordinance No. X0....896 Page 47 qJ'50
solely responsible for and will defend,indemnify and hold the City,its officers,officials,employees,
agents and volunteers harmless from and against any and all claims, costs and liabilities including
reasonable attorneys'fees and costs,arising out of or in connection with the cleanup or restoration of
the property associated with Franchisee's use,storage,or disposal of hazardous substances,whether
or not intentional, and the use, storage, or disposal of such substances by Franchisee's agents,
contractors or other persons acting under Franchisee's control, intentional or not.
26.12 FAA. Franchisee acknowledges that it, and not the City, shall be responsible for the
premises and equipment's compliance with all marking and lighting requirements of the FAA and the
FCC.Franchisee shall indemnify and hold the City harmless from any fines or other liabilities caused
by Franchisee's failure to comply with such requirements. Should Franchisee or the City be cited by
either the FCC or the FAA because the Facilities or the Franchisee's equipment is not in compliance
and should Franchisee fail to cure the conditions of noncompliance within the timeframe allowed by
the citing agency, the City may either terminate this Franchise immediately on notice to the
Franchisee or proceed to cure the conditions of noncompliance at the Franchisee's expense.
Section 27. Severabillity
If any section, sentence, clause, or phrase of this Franchise should be held to be invalid or
unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not
affect the validity or constitutionality of any other section, sentence, clause, or phrase of this
Franchise.
Section 28. Ratification
Any act consistent with the authority and prior to the effective date of this Franchise is hereby
ratified and affirmed.
Ordinance No. 20-896 Ptage 48 of 50
Section 29. Effective Date
This Franchise shall take effect and be in full force thirty (30) days after its passage and
publication, according to law (see Effective Date below).
PASSED by the City Council of the City of Federal Way this 1st day of September, 2020.
CITY OF FEDERAL WAY:
FERRELL, MAYOR
ATTEST:
1-4 ai�""7
CAC IL COURTNEY, '-, CITY CLERK
APPROVED AS TO FORM:.
J. RYAN CALL, CITY ATTORNEY
FILED WITH THE CITY CLERK: 08/05/2020
PASSED BY THE CITY COUNCIL: 09/01/2020
PUBLISHED: 09/04/2020
EFFECTIVE DATE: 10/04/2020
ORDINANCE NO.: 20-896
Ordinance No. 20-896 Page 49 of 50
ACCEPTANCE:
The undersigned hereby accepts all the rights and privileges of the above granted Franchise
and acknowledges that such rights and privileges are subject to and limited by all of the terms,
conditions and obligations contained therein.
DATED this day of _ ...m ..........� 20
EXTENET SYSTEMS, LLC
By:
Its: .� .... ....
Ordinance No. .20 896 Page 50 of`50