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Council PKT 05-03-2005 Specal/Regular A Federal Way City Council Meeting AGENDA COUNCILMEMBERS Dean McColgan, Mayor Jeanne Burbidge Jack Dovey Eric Faison Jim Ferrell Linda Kochmar Mike Park CITY MANAGER David H. Moseley Office of the City Clerk May 3, 2005 1. II. III. 1. II. Ill. a. h. c. d. e. IV. AGENDA FEDERAL WAY CITY COUNCIL Council Chambers - City Hall May 3, 2005 (www.cityr!f[ederalway,com) * * * * §pecial Meetin2 - 5:00 1!:!!h CALL MEETING TO ORDER PARKS & RECREATION COMMISSION INTERVIEWS ADJOURNMENT ~ular Meetin2 - 7: 00 1!:!!h CALL MEETING TO ORDER PLEDGE OF ALLEGIANCE PRESENT A TraNS ProclamationlNational Elder Law Month Proclamation/National Women's Health Week Certificate of Recognition/Federal Way AmeriCorps Team Introduction of New Employees/City Manager Emerging Issues/City Manager CITIZEN COMMENT P/,EASE COMPLETE THE PINK SUP & PRESENT TO THE CITY CLERK PRIOR TO SPEAKING, Citizens maJ! address City Council at this time, When recognized hy the Mayor, please come forward to the podium and state your namelbr the record. ¡>LEASE LIMIT YOUR REMARKS TO THREE (3) MINUTES. ine Mayor may interrupt citizen comments that continue too long, relate negative~y to other individuals, or are otherwise inappropriate. (Page J ol3) v. V1. VII. VIII. CONSENT AGENDA Items listed below have heen previous~y reviewed hy a Council Committee of three members and brought hefore jùll Counciljbr approval; all items are enacted hy one motion, Individual items may be removed by a Councilmemher/or separate discussion and subsequent motion. a. Minutes/April 19, 2005 Regular Meeting 2003 Citywide Pavement Marking Pro1ect Acceptance 1 sl A venue South at South 3l ill Street Access Management b. c. PUBLIC HEARING Disposal of Surplus City Propertv/Klahanee Lake Community/Senior Center . Staff Report . Citizen Comment (3-minute limit) . City Council Action ~ Resolution CITY COUNCIL BUSINESS a. Parks & Recreation Commission Appointments Washington State Department of Transportation 1-5 Hay Lane Project/ Work Hours b. INTRODUCTION ORDINANCES a. Council Bill #368/Cingular Franchise Agreement AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, GRANTING NEW CINGULAR WIRELESS PCS, LLC, A DELAWARE LIMITED LIABILITY COMPANY, A NONEXCLUSIVE FRANCHISE TO OCCUpy RIGHTS-OF-WAY OF THE CITY OF FEDERAL WAY, WASHINGTON, WITHIN THE SPECIFIED FRANCHISE AREA FOR THE PURPOSES OF INSTALLATION, OPERATION, MAINTENANCE AND REPAIR OF ITS WIREL,ESS COMMUNICATIONS FIXTURES AND RELATED EQUIPMENT, CABLES, ACCESSORIES AND IMPROVEMENTS IN A PORTION OF '1'HE RIGHTS-OF-WAY WITHIN AND THROUGH TIlE CITY OF FEDERAL WAY. b. Council Bill #369/Christian Faith Center franchise AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, GRANTING CHRISTIAN FAITH CENTER A NONEXCLUSIVE FRANCHISE TO OCClJPY RIGHTS-OF-WAY OF THE CITY OF FEDERAL WAY, W ASIHNGTON, WITHIN THE SPECIFIED FRANCHISE AREA TO CONSTRUCT, MAINTAIN, REPAIR, OPERATE, AND REMOVE CABLE, VOICE, DATA, MECHANICAL, SPRINKLER AND FIRE ALARM CONDUITS WITHIN AND THROUGH CERTAIN RIGHTS-OF-WAY AND STREETS WITHIN THE CITY OF FEDERAL WAY, (PaRe 2 of3) IX. X. Xl. a. h. XII. CITY COUNCIL REPORTS CITY MANAGER REPORT EXECUTIVE SESSION Collective Bargaining/Pursuant to RCW 42.30.140(4)(a) Property Acquisition/Pursuant to RCW 42.30.110(1 )(b) ADJOURNMENT ** THIi: COUNCIL MA Y ADD AND TAKE ACTION ON OTHER ITEMS NOT LISTED ON THIi: AGli:NDA *1< THE COMPLETE AGENDA PACKET IS AVAILABLE FOR REVIEW AT CITY HALL AND ON THE CITY'S WEBSITE UNDER CITY COUNCIL MEETING AGENDA AND PACKETS-YOU MAY ALSO E-SUBSCRIBE TO RECEIVE ONGOING NOTIFICATION OF CITY COUNCIL UPDATES (Page 3 of3) e~ .~~ p ,~ Fëderal Way CERTIFICATE OF RECOGNITION Presented to The Federal Way AmeriCorps Team In honor and recognition of your diligence and devotion to better our community; your unwavering service to benefit the youth of our city; and for your participation in making the city s 2005 Martin Luther King, Jr. celebration another successful event. The Federal Way City Council further recognizes the city s AmeriCorps Team as a motivational force in encouraging other organizations to rise to a higher level of service. Dated this 3rd day of May, 2005. Dean !vfcColgan, Mayor Linda Kochmar, Deputy Mayor Jeanne Burbidge, Councilmember Jim Ferrel/, Counci/member Jack Dovey, Councilmember Mike Park, Counci/member Eric Faison, Councilmember b 13 MEETING DATE: May 3, 2005 ITEM#:JL ~) mm__m.._.-"""-"""""""'""""""""""""",,, -"-"""""""""""""""""'" """"'""",,-,__""__m_m"___-----"m.. ,,-""""""""""'_"mm -""-"-"""""""""""'-'- mm___m_..m_.._,__"""""""""""""",..- mm__mm_"""-"-"""""""""""'_m..___.._"-"-""-""""", CITY OF FEDERAL WAY City Council AGENDA BILL SUBJECT: CITY COUNCIL MEETING MINUTES m...._..mmm_m...,.,...,m""""""""","""""""""""""____m"mm_"--"-"_m,," """"""",,""""""""""""""""""'" m..-__m.._________mm"'_"""""""""""""'m____m"m__...._.."""""'"""""""""""" .._____mm- m_m___m___.."_",,,,""""""""" ..m..__mm_"_""""""""""'__mm- CATEGORY: œ1. CONSENT 0 RESOLUTION 0 CITY COUNCIL BUSINESS BUDGET IMPACT: 0 ORDINANCE 0 PUBLIC HEARING 0 OTHER Amount Budgeted: Expenditure Amt.: Contingency Req'd: $ $ $ ..-..--..-___.._"m_"","""""""""""'" -,-""-"""""""""""""""""""..,, m".._m_..----______mm ,-."""""""""""""".. m"""""""""""'_m....__m.._m______.."-""""""""""""" m_""""""""""""""..__m_.._m_"..."--"""""""""""'" mm__..m"_""""""""""",,-,,, ATTACHMENTS: Draft minutes of the City Council regular meeting held on April 19, 2005 , "m..mmmmm"mmmmm"m_" """"""""""""""_""m..__mmm"m..__m""m....__----""""""',,""""""',,""'" SUMMARY /BACKGROUND: mm__.._mm.."-"""'-"""""""""""""'" mm___mm-"""""""""""""""..m__m_mm"__"...-",."""""""""",,,,,,-"..___mm- ,,"""""""""""""_"mm mm_-""-"""""""""""""_mm.._m_""""""""""""",~ Official City Council meeting minutes for permanent records pursuant to RCW requirements. m"_"""""""""""",,_,,.._'m """""""""""""""""" mm__....m__....",.m"""""""""""""""_...m" """"""""""""""",.. mm__mm..____,---""""""""", CITY COUNCIL COMMITTEE RECOMMENDATION: N/A mm_____m..--.._..m" """"""""""""""""",,- ,,""""""""""""""""'-"'- "m.."",_""""""""""""'m____..___m.." """""""""'____.._m_.._"" mm""-.-"""""""""""m- mm_____m..___"_-",,,""""""" PROPOSED MOTION: "I move approval of the minutes of the City Council regular meeting held on Apri119, 2005" ~~~~~~~~: ~- (BELOW TO BE COMPLETED BY CITY CLERKS OFFICE) m_"""""""""'---------"m" COUNCIL ACTION: 0 APPROVED 0 DENIED 0 TABLED/DEFERRED/NO ACTION 0 MOVED TO SECOND READING (ordinances only) COUNCIL BILL # 1 ST reading Enactment reading ORDINANCE # RESOLUTION # REVISED - 05/10/2001 Federal Way Ci(y Council Regular Meeting Minutes AprilS. 2005 - Page 1 oj'S FEDERAL WAY CITY COUNCIL Council Cham hers - City Hall April 19, 2005 - 7:00 p.m. Draft Minutes 1. CALL ,MEETING TO ORDER Mayor McColgan called the regular meeting of the Federal Way City Council to order at 7:04p.m. Recognized in the audience were members of both the Federal Way Fire Department and Des Moines Fire Department. Councilmcmbers present: Mayor Dean McColgan, Deputy Mayor Linda Kochmar, and Councilmemhers Jeanne Burbidge, Jack Dovey, Jim Ferrell, Eric Faison and Mike Park. Stan present: City Manager David Moseley, City Attorney Pat Richardson, and City Clerk Chris Green. II. PLEDGE OF ALLEGIANCE Mayor McColgan called upon the Federal Way and Des Moines Fire Department personnel to lead the Hag salute. III. PRESENTATIONS a. Proclamation/Sister City Hachinohe Incorporation Anniversary Mayor McColgan read aloud the proclamation, and presented it to Mark Freitas of the Federal Way Sister City Association. Mr. Freitas thanked the Council and the City for their support. b. Proclamation/Youth Recognition Week Mayor McColgan read aloud the proclamation, and presented it to members ofthe Youth Commission. Vice~Chair Chelsea Wolbert updated the Council on many of the programs being planned by the Commission. c. ProciamationlPublic Health Week Mayor McColgan read aloud the proclamation, and presented it to Allene Mares and Vivian Stevenson of Public Health of Seattle/King County. Ms. Stevenson presented the City with a 15th year birthday card. Federal Way City Council Regular Meeting Minutes April 5, 200.5 ~ Page 2 (~f 5 d. Introduction of New Employees/City Manager City Manager Moseley introduced the following new employees: Marianne Stiles, who is the new Administrative Assistant for the Public Works Department. She most recently worked at the Pacific Northwest Economic Region, a Seattle non-profit. She is a graduate of Western Washington University. Police Records Specialist Dallas Allen, who most recently worked for Pacific Lutheran University as an Accounts Receivable Specialist. She has Bachelor of Arts degrees in both Law and Justice and Political Science from Ccntral Washington University. Police Records Specialist Neenah Flodin, who has been working as temporary employee in the position since December 2004 and has been an Explorer in the department since 2001. She is currently pursuing her Associate of Applied Science degree in Administration of Criminal Justice at Highline Community College. Police Records Specialist Suzanne Mortell, who most recently worked for Law Enforcement Support Agency in Tacoma and has extensive clerical experience. Suzanne has taken courses in Accounting from Knapp Business College. Ms. Stiles, Ms. Allen, and Ms. Flodin were all in attendance. e. Emerging Issues/City Manager . Federal Way & Des Moines Fire Departments Merger Update City Manager Moseley called upon Chief Al Church ofthe Federal Way Fire Department and Chief Jim Polhamus of Fire Protection District #26 in Des Moines to give an update on a possible merger of the two organizations. IV. CITIZEN COMMENT Lana Bostic, Darlene Zuerlein, H.David Kaplan, Bonnie Knight-Graves, and c.T. Purdom: Expressed their support for the new community center. -'oanu Piquette: Ms. Piquette suggested that a mu1ti~purpose room for the community center would provide community organizations such as Rotary and Federal Way Symphony with a venue to hold fundraising events such as their annual auctions. Donna Welch: Thanked the Mayor for signing the proclamation of Red Hat Society Day, and expressed her support of the new cOIllImmity center. Federal W(~)! Ci()! Council Regular Meeting Minute.f April 5, 2005 - Page 3 of 5 Helen Woodke, Aaron Blake, Kim Blake, and Darryl Genest: As representatives of various track clubs around Federal Way, they expressed their support for the community center and urged the COlillcil not to cut the indoor track out of the budget. v. CONSENT AGENDA a. b. Minutes/AprilS, 2005 Re~ular Meeting -Approved Vouchers - Approved Monthly Financial Report/february 2005 - Approvell Council Bill #365/VSNL Telecommunications rranchise - Approved Orclinance #05-485 Council Bin #366/Sign Code Amendment - Approved Ordinance #05-486 Council Bill #367/Permit Signs on Sports Field Fences Code Amendment - Approved Ordinance #05-487 City Hall Janitorial Contract - Approved FUSION Funding Request from 2005-2006 Human Services General Fund - Approved Dumas Bay Centre Catering - Approved Lloyd Enterprises, Inc. Request for Amending Designated Truck Route Ordinance - Approved Federal Justice Assistance Grant Application/Public Safety WiFi Coverage Expansion - Approved c. d. e. 1'. g. h. 1. J. k. MOTION BY DEPUTY MAYOR KOCHMAR TO AIJPROVE CONSENT AGENDA ITEMS (a) through (k) AS PRESENTED; SECONDED BY COUNCILMEMBER PARK. The motion passed as follows: VI. Burbidge Dovey Faison Ferrell Koclllnar McColgan Park yes yes yes yes yes yes yes CITY COUNCIL BUSINESS a. City Manager 2005 Performance Goals Regarding Item 1 (b) Han Woo-Ri: With the consensus of Council, Councilmember Dovey recommended adding the words "The City Manager will provide a report within sixty (60) days ofthc end of the festival regarding a succession plan, so that Council can make a decision regarding next year's festi val." MOTION BY COUNCILMEMBER DOVEY TO APl>ROVE THE CITY MANAGER 2005 PERFOl{MANCE GOALS WITH THE ADDED CRITERIA; SECONDED BY DEl>UTY MAYOR KOCHMAR. The motion passed as follows: Federal Way City Council Regular Meeting Minute,,' April 5, 2005 - Page 4 of 5 . Burbidge Dovey Faison Ferrell yes yes yes yes Koehmar McColgan Park yes yes yes b. Community Center 100% Design Approval & Authorization to Bid Deputy Mayor Koehmar and Councilmember Burbidge expressed their support for the new community center. Councilmember Ferrell expressed his opposition to the project. MOTION BY COUNCILMEMBER BURBIDGE TO APPROVE THE 100% DESIGN OF THE NEW COMMUNITY CENTER TO INCLUUE BIn ALTERNATES AS PRESENTED ON MARCH 22, 2005 ANn GIVE AUTHORIZATION TO ADVERTISE THE PROJECT FOR BID; SECONDED BY COUNCILMEMBER FAISON. The motion passed as follows: Burbidge Dovey Faison Ferrell yes yes yes no Kochmar McColgan Park yes yes yes VII. CITY COUNCIL REPORTS Cmillcilmember Faison: He expressed his support for the new community center. The next Finance, Economic Development, and Regional Affairs Committee meeting will take place on April 26th at 5:30p.m. Councill11ember Dovey: The next Land Use/Transportation Committee meeting will take plaee May 2nd. The main topic will be on the issue ofthe parking of oversized vehic1es in residential zones. Cmillcilmember Burbidge: The next Parks, Recreation, Human Services, and Public Safety Committee meeting will take place May 9th at 5:30p.m. This morning she attended a meeting ofthe South County Area Transportation Board. They discussed Sound Transit's long range planning, and received updates on improvement plans for State Routes 164 and 169 and general legislative transportation funding. Tomorrow she will be attending a special meeting of the Joint Resolution Committee to discuss a possible revamping of the Community Development Block Grant Consortium structure. Deputv Mayor Koehmar: April 21 st the Fire Department will be giving a presentation on its Class 2 rating, which will benefit local businesses in the form of insurance rates. She also reported that early today the City dedicated the new artwork in city hall designed by artist Norie Sato. Councilmember Parle The Han Woo-Ri Festival is nearly a month away; he was happy to report that as of April 9th, that due to the generous contributions ofmàny people and organizations, the Ban Woo-Ri organizing eol11mittee has raised enough money to meet Federal Way City Council Regular Meeting Minllte,ç April 5, 2005 - Page .5 of 5 their íìnancial ~oal for the event. The next Han Woo-Ri Executive Board meeting will take place April 2il at 6:30p.m. in City Hall. Councilmembcr Ferrell: He and several Councilmembers attended the Jim Webster Memorial Field dedication ceremony at Celebration Park on April 9th. Tomorrow night he will be attending the Suburban Cities Association Public Issues Committee at Renton City Hall. Mayor McColgan: The Volunteer Recognition Dinner will take place on April 2211d at Northwest Church. He and the rest of the Council recently attended the Federal Way Crossings ground breaking at the former Evergreen Truck Stop. I-le also encouraged citizens to take part and attend the Han Woo-Ri Festival next month. The Federal Way Sister City Baseball Team wi11 be holding an auction fundraiser on May 7th at Saghalie Junior High School. Proceeds will fund the team's trip to Haehinohe, Japan to participate in a sister city baseball tournament. VIll. CITY MANAGER REPORT City Manager Moseley reported that for those wishing more information or to purchase tickets for anyofthe Han Woo-Ri events can go to their website at www.hanwoorifcstival.com. The Police Department will be performing bomb squad exercises at the Federal Way Crossings site in the next couple of weeks. There will not be an executive session for tonight. IX. AD J 0 URNMEN T There being nothing further to discuss, Mayor McColgan adjourned the regular meeting of the Federal Way City Council at 8:31 p.m. N. Christine Green, CMC City Clerk MEETING DATE: May 3rd, 2005 ITEM# - JLÇÞ CITY OF FEDERAL WAY City Council AGENDA BILL SUBJECT: AG# 03-141,2003 Citywide Pavement Marking Project ~ Project Acceptance CATEGORY: BUDGET IMPACT: I8J CONSENT D RESOLUTION D CITY COUNCIL BUSINESS 0 ORDINANCE 0 PUBLIC HEARING 0 OTHER Amount Budgeted: Expenditure Amt.: Contingency Req'd: $128000.00 $99226.89 included mm.__."...."".."...""""""" m".._.m.m'__""'__..mm....._.. ATTACHMENTS: Memorandum to the Land Use and Transportation Committee dated April 18th, 2005 ,"""""""""'"""""""".."mm. """..,_m"....m._...mm.._m'__"_""---""m mm._.._mm........__mm"_"..m SUMMARYIBACKGROUND: If City Council should accept the 2003 Citywide Pavement Marking Project perfonned by Stripe Rite, Inc. as complete. mm.__._mmm"".mmm_""""""""""""""""""""" """"""""""'"""""mm...._.__....mm.__m"._..."" mm'_"""'-"--"m.. mm.__.._..._m......._'m... """'-""""""""""""""""""'" CITY COUNCIL COMMITTEE RECOMMENDATION: At its April 18th, 2005 meeting, the Land Use and Transportation Committee forwarded the following staff recommendations: 1. To forward the above staff recommendation to the May 3rd, 2005 City Council Consent Agenda. ...._.__m._""...--,-",.""""""""""""""""..,.. mm._.._m..""."""""""""""'" ....m_._mmmm_mm.. """","'""""",.,"'"".."".. mm.__m_mm_m._mm'-_m.__m.." PROPOSED MOTION: "1 move to Authorize final acceptance of the completed 2003 Citywide Pavement Marking Project, performed by Stripe Rite, Inc. in the amount of $99,226.89 as complete." C~AGERAPPROVAL: ~--- (BELOW TO BE COMPLETED BY CITY CLERKS OFFICE) """"""""""""""""""""""""""'""""""""",m",..".m COUNCIL ACTION: 0 APPROVED D DENIED 0 T ABLED/DEFERRED/NO ACTION 0 MOVED TO SECOND READING (ordinances only) COUNCIL BILL # 1 ST reading Enactment reading ORDINANCE # RESOLUTION # REVISED - 05/10/2001 CITY OF FEDERAL WAY MEMORANDUM DATE: TO: VIA: April 18, 2005 Land Use and Transportation Committee David H. ~ Manager Rick Perez, P.E., City Traffic Engineer fft AG# 03-141, 2003 Citywide Pavement Marking Project - Project Acceptance FROM: SUBJECT: POLICY QUESTION: Should the City Council accept the 2003 Citywide Pavement Marking Project perfonned by Stripe Rite, Inc. as complete? BACKGROUND: Prior to release of retainage on a Public Works construction project, the City Council must accept the work as complete to meet both State Department of Revenue and State Department of Labor and Industries requirements. The 2003 (extended for 2004) contract with Stripe Rite, Inc. is complete. The final construction contract amount is $99,226.89. This is $28,773.11 below the $128,000.00 (including contingency) budget that was approved by the City Council on April 6, 2004. OPTIONS: 1. Authorize final acceptance of the completed 2003 Citywide Pavement Marking Project, perfonned by Stripe Rite, Inc., in the amount of $99,226.89 as complete. 2. Do not authorize final acceptance of the completed 2003 Citywide Pavement Marking Project, perfonned by Stripe Rite, Inc. as complete and provide direction to staff. STAFF RECOMMENDATION: Staff recommends forwarding Option 1 to the May 3,2005 City Council Consent Agenda for Approval: Authorize final acceptance of the completed 2003 Citywide Pavement Marking Project, perfonned by Stripe Rite, Inc., in the amount of $99,226.89 as complete. COMMITTEE RECOMMENDATION: Forward the above staff recommendation to the May 3, 2005 City Council Consent Agenda. ,,'.I\I,,:-2i.)OS'A-I ,-os JOW (';I;,-w;<I< pavement markiHg. final "ecrpt.dor MEETING DATE: May 3rd, 2005 ITEM# .=L~ (6.") CITY OF FEDERAL WAY City Council AGENDA BILL SUBJECT: 1 st Avenue S. at S 31th Street Access Management CATEGORY: BUDGET IMP ACT: [Z] CONSENT 0 RESOLUTION 0 CITY COUNCIL BUSINESS 0 ORDINANCE 0 PUBLIC HEARING 0 OTHER Amount Budgeted: Expenditure Amt.: Contingency Req'd: $ $2500 $ "m.._.._._mm.._._.._...._m""""""""""""""""""" ATTACHMENTS: Memorandum to the Land Use and Transportation Committee dated "April 18th, 2005. m"..__.._mmm._m..._..."" """"""""""""""""" """""""""""..".......--_"._....m_._._mm_m_.._mm. """""""'"".",..""""",,, .......__..mm...._..m.._m_mm. SUMMARYIBACKGROUND: A citizen comment before the City Council on March 15,2005, raised the concern of the safety of the access to the commercial businesses on the northwest comer of 1st Ave. S at S. 312th Street. Two businesses are located here: a 7-11 store with gas pumps, and a Papa Johns' takeout pizza store. The stores share two driveways on each street, located immediately adjacent to the comer of the intersection, and 75 feet beyond these, as shown in Attachment A. Under current code, a new development would be permitted only one driveway on each street, and each would be restricted to right-in/right-out access only. Should the City restrict left turns from commercial businesses on 1 st Ave. S north of312th St.? """""""""""mm.._m"..._.._mm..____.-"-"-"""""" """""""""""""""""""" mm._m..._...".."_._._mm. mm.__m....._.."--...-_..._..m.. mm._m__m._.__mmmm_m...."_mm_m.._m......_."m. CITY COUNCIL COMMITTEE RECOMMENDATION: At its April 18th, 2005 meeting, the Land Use and Transportation Committee forwarded the following staff recommendations: 1. Option #3: Install raised curbing as signing to restrict left turns. mm."...,...""""""""""""""""""""","""""m..,,_mm.._.__._....._mm..._m".. """"""""""""""""""",."""...... m....__mm..__.m..._....... "m..__....m."..._mm. ,...."""""....,....".""..""'."..-""". PROPOSED MOTION: "I move to install raised curbing and signage to restrict left turns." """""""""""""""""""".m,_,,_....m.._._.m_._mm. ~ mm._m.._..m_...___._m._m_mm_.._m.... CITY MANAGER APPROVAL: (BELOW TO BE COMPLETED BY CITY CLERKS OFFICE) COUNCIL ACTION: 0 APPROVED 0 DENIED 0 T ABLED/DEFERRED/NO ACTION 0 MOVED TO SECOND READING (ordinances only) COUNCIL BILL # 1 ST reading Enactment reading ORDINANCE # RESOLUTION # REVISED - 05/10/2001 ",.- CITY OF FEDERAI~ WAY MEMORANDUM DATE: TO: VIA: FROM: SUBJECT: Apti118,2005 Land Use and Transportation Committee David H. ~anager Rick Perez, P.E., -t:~ ~r~c Engineer ~ rt Avenue S at S 31Zh Street Access Management POLlCY QUESTION: Should the City restrict left turns from commercial businesses on 1st Avenue S north of S 312th Street? BACKGROUND: A citizen comment before the City Council on March 15, 2005, raised the concern of the safety of the access to the commercial businesses on the northwest cornier of 1st Avenue S at S 312th Street. Two businesses are located here: a 7-11 store with gas pumps, and a Papa Johns' takeout pizza store. The stores share two driveways on each street, located immediately adjacent to the comer of the intersection, and 75 feet beyond these, as shown in Attachment A. Under current code, a new development would be pemùtted only one driveway on each street, and each would be restricted to right-inlright-out access only. The collision history demonstrates the highly variable nature of collision expenence in relatively low~volume conditions, as shown in the table below: Year Number of Collisions 1997 0 1998 0 1999 4 2000 1 2001 0 2002 1 2003 3 2004 3 Of the twelve reported collisions from 1997 through 2004, only two would not have been preventable by left-turn restrictions. Nine of the ten involved left turns out of the driveways onto 1 st A venue S. No driveway-related collisions occurred on SW 312th Street. The two businesses have been notified by letter that potential access restrictions are under consideration. OPTIONS: Options Positives Negatives 1. No Action . No impact to business access . No safety improvement 2. Install striping and signing revisions to . Low construction cost to . Reduces business access restrict left turns (See Attachment B) implement ($1000) . Requires police . Improves safety if not violated enforcement to assure effectiveness in improving safety 3. Install raised curbing and signing to . Self-enforcing . Reduces business access restrict left turns (See Attachment C) . Improves safety . Moderate construction cost to implement ($2500) "j, Staff Recommendation: Staffrecomrnends forwarding Option 3 to the May 3, 2005 City Council Consent Agenda for Approval: Install raised curbing and signing to restrict left turns. Committee Recommendation: Forward the above staff recommendation to the May 3, 2005 City Council Consent Agenda. ~ (IJ II. -c ~æ ~ ~ cv II. -c ~æ ~ cu II. -c ~æ MEETING DATE: May 3, 2005 ITEM# "JZ[ CITY OF FEDERAL WAY City Council AGENDA BILL SUBJECT: Surplus of Klahanee Lake Community and Senior Center (KLCC) CATEGORY: BUDGET IMPACT: 0 CONSENT X RESOLUTION D CITY COUNCIL BUSINESS 0 ORDINANCE X PUBLIC HEARING D OTHER Amount Budgeted: Expenditure Amt.: Contingency Req'd: $ $ $ ATTACHMENTS: Staffmemorandul11 to FEDRAC at its April 12, 2005 regular meeting, SUMMARY/BACKGROUND: See attached FEDRAC staff report. CITY COUNCIL COMMITTEE RECOMMENDATION: 1) Request that the full City Council hold a public hearing on May 3, 2005, to discuss whether or not to surplus KLCC; and if so, whether to market the building now, or wait until the new community center is completed; 2) recommend that the full City Council approve the attached resolution; 3) recommend to declare the KLCC as surplus and begin marketing the building now. PROPOSF,I> MOTION: "I move to approve the attached resolution, declare the Klahanee Lake Community and Senior Center as surplus, and begin marketing the building now." CITY MANAGER APPROVAL: ~ \ (BELOW TO BE COMPLETED BY CITY CLERKS OFFICE) COUNCIL ACTION: D APPROVED 0 DENIED D T ABLED/DEFERRED/NO ACTION 0 MOVED TO SECOND READING (ordinances only) COUNCIL BILL # ST l' reading Enactment reading ORDINANCE # RESOLUTION # ..__..._...._-"",.~-~ REVISED - 05/10/2001 CITY OF FEDERAL WAY MEMORANDUM Date: To: Via: From: April 8, 2005 Subject: lopment and Regional Affairs Committee David H. Mos anager Iwen Wang, Mana ement Services Director :t-t/Ù Surplus of Klahanee Lake Community and Senior Center (KLCC) Policy Question: I. Should the City surplus KLCC? II. Should the City market the building now, or wait until the new community center is completed? Background: The City purchased KLCC in 1993 for $700,000 to use as an interim community center. It subsequently invested $780,000 to convert the warehouse facility into a functional community center for a total investment of$I.48 million. Of this $1.48 million, $400,000 is funded by a Community Development Block Grant. I. Should the City Surplus KLCC? Although the Council has not taken any official surplus action it the past, it has previously decided to replace KLCC with a new community center once it is completed. We have also included $800,000 of the sales proceeds from KLCC to be used for development of the new center. Since funding is needed to complete the new community center, staff recommends that the Council move forward and take official action declaring KLCC surplus from City needs in the foreseeable future. Attached is a draft resolution for such a declaration; the City will publicize and conduct a public hearing of this intent as required by state law. II. Timing of Marketing: With the intent of continuing CUlTent recreation programs at KLCC until the new center is completed, there is a potential timing issue in which the cash flow from its sale is available. At the same time, investors have a sense of urgency to lock in today's favorable interest rates and snatch up good investment properties. Because of these considerations, staff believes the City should consider the timing options in marketing KLCc. 1. Qualitative Comparison: Option 1: Actively market the building. Pros: a. Favorable market conditions: We have had a number of inquiries, consistent with local brokers' recommendations. b. The "sale and lease back" is a favorable consideration for investors and can boost the sales price. c. Better timing of providing cash flow for the new community center. Cons: a. Cost of leasing back. b. Uncertainty of lease period. If there is a delay in construction or other unexpected startup issues, it may increase the required lease terms and cost. k:\fedrac\2005\O412\klcc.doc C -/ . . c. Potential programming impact. Owner/occupant buyers, which this building is most likely to attract, would likely want to use the facility as soon as possible after purchase - which may make leasing back difficult or may require the City to reduce or move its programs to other temporary facilities. d. More complex transaction. Sale and lease back is very common in the commercial real estate market, particularly for investment properties. The complexity would increase for the purchaser, who will also use the building. Option 2: Market the building after the new community center is complete and the KLCC is vacated. Pros: a. Will not incur leasing cost. Assuming the City will lease the building back from July 1, 2005 through March 31, 2007, the leasing cost could be between $150,000 - $200,000. b. Will not affect programming. Marketing the building near or after completion of the new community center will al1ow a smooth transition of programming between facilities. c. Simple transaction. The transaction can be a straightforward "as is" sale of the building. Cons: a. Uncertain future market conditions. We know that current market conditions are very favorable in the office market history. We don't know how the market will be in two years. As a special use facility, KLCC will be harder to sell in a slow market. b. Delay in cash flow for the new community center. While this is an issue, it is not a critical one as the City has the capacity and authority to make short-tenn interfund loans in order to bridge the timing difference in cash flow. 2. Financial Comparison: Hypothetical Comparison of Financial impact on timing of the sales Option 1 Option 2 Interest Rate Effect: Annual Mortgage Payment Amount can be fmanced over 15 years at 5% and 7.5% $ 85,000 $ 882,271 $ 85,000 $ 750,305 Projected Proceeds: Assumed price difference due to interest rates Higher price £fom "lease back" (@10% of lease value) Proceeds from Sale of Building Potential Costs: Interest Cost for Cash Flow Loan @ 1.75%, 1.75 year Leasing expense, 10,000 sq ft @ 9/sf, 1.75 year Net Realized Value $ 882,271 $ 750,305 15,750 $ 898,021 $ 750,305 (22,978) (157,500) $ 740,521 $ 727,327 3. Conclusion: With the above assumptions, the financial considerations for either market timing are not significantly different. However, the analysis does not consider the length of time it may take to sell the building, which could be extended if market conditions change dramatically from today. The leasing expenses used in the financial analysis may be used to lease the KLCC back from the new buyer; it may also be used as a funding source to obtain other temporary facilities in order to k:\fedrac\2005\O4 \ 2\k\cc.doc (, '-2 . . continue existing programs. However, this would require more flexibility and coordination from recreational operations and could still have an impact on programming. Staff believes it would be advisable to market the KLCC now instead of deferring it until after the completion of the new community center, because: 1) The programming impact potentially depends on the buyer 2) The City has more control over programming and use of the facility, but no control over the market. 3) The value of real property is very sensitive to interest rates. Recommendation: Staff recommends that Council declare the KLCC surplus and begin marketing the building now. Attachment: KLCC Surplus Resolution. COMMITTEE ACTION: Forward staff recommendation to full Council, conduct a public hearing to declare the KLCC surplus at the'May 3rd regular council meeting, and being marketing the building now. . APPROVAL BY COMMITTEE: ~ø~~ / Committee Member k:\fedrac\2005\O412\k1cc.doc (.-3 RESOLUTION NO. DRAFT Y~7/ ~ A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DECLARING PROPERTY LOCATED AT 33901 9TH AVENUE SOUTH AS SURPLUS AND AUTHORIZING ITS DISPOSAL. WHEREAS, the City of Federal Way owns the property located at 33901 9th Avenue South legally described as: LOT 16-A OF SHORT PLAT NO. 876019, ACCORDING TO THE SHORT PLAT RECORDED UNDER KING COUNTY RECORDING NO. 7608310626. WHEREAS, the property is surplus to the needs of the City of Federal Way; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY HEREBY RESOLVES AS FOLLOWS: Section L Property Declared Surplus. The property described above is declared surplus to the needs of the City of Federal Way. Section 2. Disposition of Surplus Property, Staff, under direction of the City Manager's designee, is instructed to negotiate a sale of the property for the best available price or transfer to another govemmental agency in accordance with RCW 39.33.010 subject to final approval by the City CounciL Section 3. Severabilityo If any section, sentence, clause or phrase of this resolution should be held to be invalid or unconstitutional by a eourt of competent jurisdiction, such invalidity or unconstitutíonahty shall not affect the validity or constitutionality of any other section, sentence, clause or phrase ofthis resolution. Res. # -' Page 1 C-Y '. Section 4. Rati fication. Any act consistent with the authority and prior to the effective date of the resolution is hereby ratified and affinned. Section 5. Effective Date. This resolution shall be effective immediately upon passage by the Federal Way City CounciL RESOL VED BY THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, this day of , 2005. CITY OF FEDERAL WAY MAYOR, DEAN McCOLGAN ATTEST: CITY CLERK, N. CHRISTINE GREEN, CMC APPROVED AS TO FORM: CITY ATTORNEY, PATRICIA A. RICHARDSON FILED WITH THE CITY CLERIC PASSED BY THE CITY COUNCIL: RESOLUTION NO. k:\reso\surplus Klahanee Res. # -' Page 2 C-b MEETING DATE: May 3, 2005 ITEM# .11// - (ßJ CITY OF FEDERAL WAY City Council AGENDA BILL SUB,JECT: PARKS & RECREATION COMMISSION APPOINTMENTS CATEGORY: D CONSENT D RESOLUTION ['gJ CITY COUNCIL BUSINESS BUDGET IMPACT: D ORDINANCE D PUBLIC HEARING D OTHER Amount Budgeted: Expenditure Amt,: Contingency Req'd: $ $ $ A TT ACHMENTS: none SUMMARY/BACKGROUND: At a special meeting on May 3, 2005, the City Council will interview applicants to tìll three 3-year positions on the city's Parks & Recreation Commission. The Council wilJ contïrm their new appointments during that evening's regular meeting. CITY COUNCIL COMMITTEE RECOMMENDATION: nla PROPOSED MOTION: I hereby move the appointment of the following persons to the city's Parks & Recreation Commission: Three 3-year terms expiring April 30, 2008 ~ (The City Clerk will arrange for introductions and presentation ofthe appointment certitìcates for the new appointees at the May 1 ih regular meeting) CITY MANAGER APPROVAL: .~ (BELOW TO BE COMPLETED BY CITY CLERKS OFFICE) COUNCIL ACTION: D APPROVED D DENIED 0 T ABLED/DEFERRED/NO ACTION 0 MOVED TO SECOND READING (ordinances on~y) COUNCIL BILL # ST I' reading Enactment reading ORDINANCE # RESOLIJTION # REVISED - 05/1012001 MEETING DATE: May 3rd, 2005 ITEM# JfJLa) CITY OF FEDERAL WAY City Council AGENDA BILL SUBJECT: WSDOT 1-5 BOY Lane Project Work Hours _....m..__..._..-""-""" m_m__..__..m......._mm.._._.._.____m_____.-----"'-'---'--_."."-"""...",-""-,.,_........_,,_..m_...._-_.......,.,,..,,....,...-........ .....-.-.---__.._._m..__.__-.-.-........ ......_...mm..._._.. ._..._m.., ... .....__..._m_._._m... ......_m.__.__-....--...-.....,. .......-.---_._.__m.... CATEGORY: BUDGET IMPACT: 0 CONSENT fZ] RESOLUTION Jšl CITY COUNCIL BUSINESS 0 ORDINANCE 0 PUBLIC HEARING 0 OTHER Amount Budgeted: Expenditure Amt.: Contingency Req'd: $ $ $ ~~s~:?~~--==~=-~=~ -= SUMMARYIBACKGROUND: Washington State Department of Transportation (WSDOT) submitted a request for a variance to the work hours for their 1-5 HOY lane project. In order to minimize their number of weekday nights from approximately 40 to 50 to one weekend starting Friday night to Monday morning. The Community Development Department granted the requested variance except for Saturday nights due to Federal Way City Code Division 3 Section 22~ 1 006 "Development Activities and Heavy Equipment Operations" prohibition of work hours Saturday night from 8:00pm to 9:00am Sunday morning. Joan effort to work cooperatively with WDSOT and not violate Federal Way City Code, staff has developed a resolution ¡City Council consideration. The proposed resolution would grant a limited variance specific to the project for work on "atUrday night from 8:00pm to 9:00am Sunday ifWSDOT agrees to take steps to minimize noise levels in the evening hours with particular attention to Saturday night and to notify residents along 1-5 adjacent to the work zone. The resolution will be provided prior to the City Council meeting. """""".""""""".---._.._"._m_..""",..".......-....------.-'-'-""--""""".....,..,.."....---.-----,.-..., ""....-..---------.____._m...,.,..-,--..-..----.-".... '.""---------...-..-"".,.."...-.---""..." "...,.---.-----....,..."",..,-----.. CITY COUNCIL COMMITTEE RECOMMENDATION: N/A ,--"-""-""",-,.""'...""..-----..------..-..,,-,,,, """.." ..,..,---~_._--_._._.__..,_..,.." """'......-.-.---.----- -....."'.."'. "'....- -.---.----..-....."" .-"-----..---,,.. "".,.""-,--"---"""""",".-..__._m..._."",,,,.--.----..""."".."."-,,...---- PROPOSED MOTION: "I move to approve the draft resolution granting WSDOT a variance to the work hours for Saturday nights from 8:00pm to 9:00am Sunday for the 1-5 HOY lane project." ~~:::;;;;~~---~--~ (BELOW TO BE COMPLETED BY CITY CLERKS OFFICE) ..,.." -"--'----"""'.""'" COUNCIL ACTION: 0 APPROVED 0 DENIED 0 l' ABLEDIDEFERRED/NO ACTION n MOVED TO SECOND READING (ordinances only) COUNCIL BILL # ST l' reading Enactment reading ORDINANCE # RESOLUTION # --.", REVISED - 05/1012001 11' ~ DRAFT ~/5/ÕS- A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, GRANTING A NOISE AND WORK HOUR Y ARIANCE FOR WORK TO BE DONE BY THE WASHINGTON STATE DEPARTMENT OF TRANSPORT A TION ON THE 1-5 HOY PROJECT DURING RESTRICTED WEEKEND HOURS. WHEREAS, the Federal Way City Code (FWCC) Section 22-956 contains nighttime environmental noise standards and adopts the maximum environmental noise levels identified in Washington Administration Code (WAC) Section 173-60-080; and WHEREAS, in accordance with the City's nuisance law codified under FWCC Sections 10- 26 and 10-27, FWCC Section 22-1006(a) sets out the times when it is a violation to engage in any development activity or to operate any heavy equipment; and WHEREAS, FWCC Section 22-1006(b) authorizes the Director of Community Development to grant revocable, written permission to engage in a development activity or to operate heavy equipment between the hours of 8:00 p.m. and 7:00 a.m. on Monday through Friday and 8:00 p.m. Friday through 9:00 a.m. Saturday, or from 9:00 a.m. to 8:00 p.m. on Sundays or holidays observed by the city; and WHEREAS, the Director of Community Development does not have the authority to grant an exemption to the work hour restrictions not covered-by FWCC Section 22-1 0O6(b); and WHEREAS, the Washington State Department of Transportation (WSDOT) is currently widening the existing 1-5 North and South bound inside lanes to add High Occupancy Vehicle (HOY) lanes; and Res. # -' Page 1 WHEREAS, the project includes pavement rehabilitation, bridges and structures widening, drainage upgrades, water detention/quality facilities, noise walls, illumination upgrades, and other items ofroadway safety; and WHEREAS, WSDOT has requested permission to continue work on the project Saturday and Sunday nights, thus working an entire weekend; and WHEREAS, it is much safer for WSDOT workers to work in the middle of the night when traffic is reduced; and WHEREAS, it is estimated that the amount of work that could be completed by WSDOT workers in one weekend would take up to 50 nights to complete; and WHEREAS, 50 nights of work would result in much more noise and traffic disruption overall than one weekend of work; and WHEREAS, Enchanted Parks opens for business the weekend of May 28, 2005, and work in this area of the freeway could interfcre with business; and WHEREAS, WSDOT complied with state regulations by publishing a notice of the noise variance request in the Federal Way Mirror on September 11,2004 and mailing a Noise Variance Request Notification Flyer to the residents within 300 feet of the proposed project area on September 10,2004; and WHEREAS, the City was notified that WSDOT would like to start work in May 2005 and work through the hours prohibited in FWcc Section 22-1O06(a); and WHEREAS, WSDOT has indicated that it will attempt to schedule its work, weather permitting, for the least impact to Enchanted Parks, other businesses and the citizens of Federal Way; Res. # ----' Page 2 NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY HEREBY RESOLVES AS FOLLOWS: Section 1. Noise and Work Hour Variance. The City Council hereby grants a noise and work. hour variance for the hours of 8:00 p.m. Saturday through 9:00 a.m. Sunday, and 8:00 pm Sunday through 7:00 a.m. Monday for the work to be done by the Washington State Department of Transportation during those weekend hours on the I-5 HOV lane project. Neighboring citizens will benefit from having this work completed in one weekend rather than over 50 nights. WSDOT will benefit from having a safer work environment. Local businesses will benefit from having the work completed prior to the summer season beginning. Section 2. . Grant of Authority. The City Council hereby grants the Director of Community Development the authority and discretion to grant any additional exemptions to the work hour restrictions not covered by FWCC Section 22-1 006(b) to WSDOT for the completion of the 1-5 HOV project. Section 3. Severability. If any section, sentence, clause or phrase ofthis resolution 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 resolution. Section 4. Ratification. Any act consistent with the authority and prior to the effective date of the resolution is hereby ratified and affimled. ,Section 5. Effective Date. This resolution shall be effective immediately upon passage by the Federal Way City Council. Res. # -' Page 3 RESOLVED BY THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, this day of ,2005. CITY OF FEDERAL WAY MAYOR, DEAN McCOLGAN ATTEST: CITY CLERK, N. CHRISTINE GREEN, CMC APPROVED AS TO FORM: CITY ATTORNEY, PATRICIA A. RICHARDSON FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: RESOLUTION NO.: K:\Resolution\WSDOT (-5 HOV Res. # -' Page 4 MEETING DATE: May 3, 2005 ITEM#_Y/II ' (~ ) CITY OF FEDERAL WAY City Council AGENDA BILL SUBJECT: Proposed Cingular Franchise CATEGORY: BUDGET IMPACT: 0 0 0 CONSENT RESOLUTION CITY COUNCIL BUSINESS !ZJ ORDINANCE 0 PUBLIC HEARING D OTHER Amount Budgeted: Expenditure Amt.: Contingency Req'd: $0.00 $ $ .....""""""""""""'",, ATTACHMENTS: Memorandum dated Apri126, 2005 to the Finance, Economic Development and Regional Affairs Committee, Proposed Franchise ."".",,.. ....................................................""""""""""",."...................-..."........-................................. SUMMARY /BACKGROUND: The basic terms of the proposed franchise are as follows: 1. Equipment. The franchise would permit Cingular to place wireless transmitting facilities and related appurtenances in the City owned or controlled rights.of-way. 2. Consideration. Cingular will pay the City's administrative costs and expenses in preparing and approving the franchise and any permits. Cingular will also relocate its facilities at the City's request, at Cingular's cost, and repair any damages it causes to the right-of-way, also at its own cost. 3. Insurance. Cingular will maintain insurance of $5 Million combined single limit for commercial general liability, $5 Million for automobile insurance and a minimum of $1 Million for Employers liability insurance. 4. Term. The term of the proposed franchise is 10 years, consistent with franchises the City has granted to Olympic Pipeline, for pipeline maintenance; AT&T (now Comcast), for cable; Puget Sound Energy; Tacoma Public Utilities; Weyerhaeuser, Sprint, Metromedia and Williams (for fiber optic cable); AT&T Wireless Services and VoiceStream (for wireless facilities). 5. Bond. The proposed franchise requires Cingular to post a bond in the amount of $50,000 before commencing any work within the City to guarantee perfonnance of construction, maintenance or repair in accordance with any pennits required by this Franchise. CITY COUNCIL COMMITTEE RECOMMENDATION: Approve the proposed Franchise. PROPOSED MOTION: "I move the proposed Franchise to second reading and approval at the next regular meeting 011 May 17,2005" CITY MANAGER APPROVAL: .~ (BELOW TO BE COMPLETED BY CITY CLERKS OFFICE;) COUNCIL ACTION: 0 APPROVED 0 DENIED 0 TABLED/DEFERRED/NO ACTION 0 MOVED TO SECOND READING (ordinances only) COUNCIL BILL # ST l' reading Enactment reading ORDINANCE # RESOLUTION # 3(ç¿; K:\AGNDITEM\2005\Cingular Franchise CITY OF FEDERAL WAY MEMORANDUM DATE: April 26, 2005 TO: Finance, Economic Development and Regional Affairs Committee David H. Mo~e . nager \'lJ Karen Kirkpatrick) eputy City Attorney VIA: FROM: SUBJECT: Proposed Cingular Franchise Policy Issue Should the City grant Cingular Wireless PCS, LLC (Cingular) a Franchise to occupy Rights- of~ W ay of the City ofF ederal Way, for the purposes of installati on, operation, maintenance, and repair of its wireless communications fixtures and related equipment, cables, accessories and improvements in a portion of the Rights-of-Way within and through the City of Federal Way? Background The basic terms of the proposed franchise are as follows: 1. Equipment. The franchise would permit Cingular to place wireless transmitting facilities and related appurtenances in the City owned or controlled rights-of-way. A current proposal is for a facility on a replacement utility pole with a height of 49 feet and three panel antennas measuring 56 inches by 8 inches. 2. Consideration. Cingular will pay the City's administrative costs and expenses in preparing and approving the franchise and any permits. Cingular will also relocate its facilities at the City's request, at Cingular's cost, and repair any damages it causes to the right-of-way, also at its own cost. 3. Insurance. Cingular will maintain insurance of$5 Mi Ilion combined single limit for commercial general liability, $5 Million for automobile insurance and a minimum of$l Million for Employers liability insurance. 4. Term. The term of the proposed franchise is 10 years, consistent with franchises the City has granted to Olympic Pipeline, for pipeline maintenance; AT&T (now Comcast), for cable; Puget Sound Energy; Tacoma Public Utilities; Weyerhaeuser, Sprint, Metromedia and Williams (for fiber optic cable); AT&T Wireless Services and VoiceStream (for ~I wireless facilities). 5. Bond. The proposed franchise requires Cingular to post a bond in the amount of $50,000 before commencing any work within the City to guarantee perfonnance of construction, maintenance or repair in accordance with any pennits required by this Franchise. Options 1. Recommend approval of the Ordinance and forward to the full council for first reading at the May 3,2005 meeting. 2. Recommend rejection of the Ordinance. 3. Recommend modification of the Ordinanee and forward to the full council for first reading at the May 3, 2005 meeting. Staff Recommendation Approve the Ordinance and forward to the full council for first reading at the May 3,2005 meeting. (Option I) Committee Recommendation Forward option--L to the full City Council for placement on the May 3,2005 City Council Agenda for first reading with a "do pass" recommendation. K:\agnditem\fedrac\Cingular ordinance G¿ ~cþ dd-~~ L .--.4- /" ~.- DRAFT S73/ós- ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, GRANTING NEW CINGULAR WIRELESS PCS, LLC, A DELAWARE LIMITED LIABILITY COMPANY, A NONEXCLUSIVE FRANCHISE TO OCCUpy RIGHTS-OF-WAY OF THE CITY OF FEDERAL WAY, WASHINGTON, WITHIN THE SPECIFIED FRANCHISE AREA {I'OR THE PURPOSES OF INSTALLATION, OPERATION, MAINTENANCE AND REPAIR OF ITS WIRELESS COMMUNICATIONS FIXTURES AND RELATED EQUIPMENT, CABLES, ACCESSORIES AND IMPROVEMENTS IN A PORTION OF THE RIGHTS-OF-WAY WITHIN AND THROUGH THE CITY OF FEDERAL WAY. '. WHEREAS, the New Cingular Wireless PCS, LLC, a Delaware Limited Liability Company, ("Franchisee") has requested a Franchise from the City of Federal Way, in order to place wireless transmitting facilities and related appurtenances in the City owned or control1ed 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 Franchisee; and WHEREAS, RCW 35A.47.040 et. seq. and RCW 35.99 et seq. pem1Ìt 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 Agreement, the City of Federal Way reserves such other powers and authorities granted to Washington code cities by general law; ORD# -"...-.---- , 1 of 26 pages NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS: Section 1. Definitions Where used in this Franchise the following tenns 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. 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 "Facilities" means: (i) wireless communications facilities, including, but not limited to, electronic equipment, radio transmitting and receiving apparatus, and supporting equipment to be located on a pole on a certain public right of way, base station transmitting cabinets, radio frequency antennas and locating antennas, (ii) underground fiber optic telecommunication lines or similar lines, and (iii) any appurtenances necessary to connect the lines or similar lines to the existing switched telephone network all as shown on Exhibit A. 1.5 "Franchise Area" means only that portion of the City owned or controlled rights- of-way located in the City of Federal Way and shown in Exhibit A attached hereto (excluding privately owned property), and/or any other areas approved by the Federal Way City Council and incorporated into this Ordinance via amendment. 1.6 "Franchisee" means New Cingular Wireless PCS, LLC, a Delaware limited liability company, and its respective successors and assigns if consented to by the City of Federal Way as provided in Section 27 herein. 1.7 "FWCC" means the Federal Way City Code. ORD # --,,---' 2 of 26 pages Section 2. Gran t/ Acceptan ce 2.1 Grant of Master Agreement. The City hereby grants to Franchisee the nonexclusive right to enter upon the Franchise Area for the limited purpose of constructing, excavating, installing, maintaining, restoring, upgrading, and repairing Facilities within the Franchise Area. This Franchise is specifically limited to the right for Franchisee to install Facilities owned and operated by Franchisee.. This Franchise does not pennit Franchisee to lease, rent, or otherwise allow use of conduits, space or capacity provided by the Facilities for or to cable and other third-party cable or telecommunications providers, and Franchisee covenants and agrees that it will not do so. 2.2 Acceptance by Franchisee. Franchisee shall have no rights under this Franchise, nor shall Franchisee be bound by the tenus and conditions of this Franchise, unless Franchisee shall, within sixty (60) days after the effective date of this Franchise, file with the City its written acceptance of this Franchise and al1 of its terms and conditions. Section 3. Non-Franchise Area City Property 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 public roads, streets, avenues, alleys and highways. Additionally, this Franchise does not convey any right to Franchisee to install its Facilities on, under, over, across private property or any other governmental authorities' property or on any other person or entity's poles or apparatus, and Franchisee is responsible for obtaining any authorizations, agreements or consents from private property owners, any other govemmental authorities and any other persons or entities. ORD # -~-' 3 of 26 pages Section 4. Term Subject to Franchisee filing its acceptance pursuant to Subsection 2.2, the tenn of this Franchise shall be for a period of ten (10) years commencing on the effective date of this Franchise, unless tenninatedearlier pursuant to this Franchise or other applicable law. Notwithstanding the foregoing, Franchisee may terminate this Franchise, and remove its facilities, at any time upon at least 9O-days written notice to the City. Section 5. Location of Facilities 5.1 Location. In addition to the other requirements of this Franchise, Franchisee shall submit to the City an "as-built" plan for each Facility, including any underground portion(s) of the Facility and appurtenances, their depths below surface of ground or grade of a right-of-way, and any related existing equipment (such as cellular or personal communication service antennae) to which the Facility is connected, within thirty (30) days of the installation of each Facility. Any fiber line or conduit permitted by this Franchise which runs from the pole in the rights-of-way to the equipment shed or building on private property shall be installed underground. Upon written request of the City, Franchisee shall update such "as-built" plan to reflect actual or anticipated improvements to any of Franchisee's Facilities. Any such "as-built" plan (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 GIS Data. At such time as Franchisee develops or employs Geographic Information System ("GIS") technology, Franchisee shall submit the infoffi1ation required in Subsection 5.1 above in digital GIS format. 5.3 Design Markings. In the event the City desires to design new streets or intersections, renovate existing streets, or make any other public improvements, Franchisee shal1, ,40[26 pages ORD# at the City of Federal Way's reasonable 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. 5.4 Utilities. Nothing herein is intended to relieve the parties of their respective obligations arising under Chapter 19.122 RCW or other applicable law with respect to detennining the location of utility facilities prior to construction. Section 6. Noninterference of Facilities Franchisee agrees to maintain its Facilities and perfonn 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 City Code requirements, Franchise provisions, regulations, resolutions, rules, and publicly available policies of general applicability as now existing or as hereafter amended; and (3) as required by the Director in accordance with the foregoing or given public health, safety and welfare. Thisrequiremcnt applies whether or not the work is perfonned by the Franchisee, its agents, employees, subcontractors, or other third parties at Franchisee's direction. Section 7. Requirement to Obtain Permits 7.1 Pennits and Permit Applications. Franchisee shall, at its expense, obtain all pennits, including rights-of-way permits, and pay all pennit fees required by applicable City ordinances, regulations, resolutions, publicly available policies, and rules prior to commencing any work within the Franchise Area. Franchisee pennit applications shall show the position and location of the proposed Facilities to be constructed, laid, installed, or erected at that time, show their relative position to existing rights-or.way or property lines upon prints drawn to scale, designate rights-of-way by their names and improvements, such as, but not limited to, sidewalks, curbs, gutters, shoulders of ORD# , 5 of 26 pages roadway, ditches, paved roadways, roadways to property lines, turnouts, parking strips, telephone or electric distribution poles, and water pipes existing on the ground to be occupied, or as otherwise reasonably required by the Director. The Franchisee shall specify the class and type of materials to be used, equipment to be used, and method of safeguarding and facilitating the public traffic during construction. Materials and equipment shall be in new or like new condition for its type and kind. 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 FWCC and be reasonably satisfactory to the Director. All traffic control shall be in accordance with the rights-of-way pennit, and shall be in accordance with the Manual on Unifornl Traffic Control Devices (MUTCD). The Franchisee shall indicate on any permit application the time needed to complete the work. The time needed to complete the work is subject to approval by the City, which shall not be unreasonably withheld, as a condition of the issuance of the permit or approval.. 7.2 Emergency Exception to Penn it Requirement. 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 immediate1y to correct the dangerous condition without first obtaining any required permit so long as: (I) Franchisee informs the City of the nature and extent of the emergency, and the work to be perfonned, prior to or concurrent with commencing the work; and (2) such permit is obtained by Franchisee as soon as reasonably practicable following cessation of the emergency. Section 8. Standard of Performance The Franchisee shall not excavate [or a distance of more than one hundred feet (100') without immediately backfilling and compacting to surface grade and city standards. Backfilled ORD# , 6 of 26 pages trench areas within a driving lane must be patched, either temporarily or pennanently, before the end of the work day in which they have been opened. Trench areas within the rights-of-way, but not within a driving lane, must also be patched within the time limits specified by the City on the rights-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 pennit issuance. 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 Subsection 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 (I) block (approximately 500 feet) in length in both directions from the open cut, unless determined otherwise by the Director in accordance with FWCC regulations or Department of Public Works internal policies. Within forty-five (45) days of completion of any installation of Franchisee's Facilities within the Franchise Area, Franchisee shall submit to the Director plans, stamped by a Professional Engineer or surveyor licensed by the State of Washington, showing the "as-built" location of the Facilities. Section 9. Survey Markers and Monuments Franchisee shall, at its sole cost and expense, and usmg a licensed surveyor, timely replace or repair all markers or monuments displaced or damaged as a result of any work by Franchisee within the Franchise Area. Section 10. Surface Markin2:s/Stakes Prior to Franchisee commencing any excavation work within the Franchise Area, Franchisee shall using a licensed surveyor reference all monuments and markers relating to subdivisions, plats, highways, and other surveys. The reference points shall be located so that , 7 of 26 pages ORD# they shall not be disturbed during the Franchisee's operations under this Franchise. The Franchisee shall be responsible for the cost of repairing or replacing monuments or other markers lost, destroyed, or disturbed as a result of any work by Franchisee within the Franchise Area. A complete set of reference notes for monuments, markers and other ties shall be filed with the City. Section 11. Ri1!ht of City to Complete Work In the event Franchisee fails to comply with any applicable federal, state or City laws, ordinances, rules, regulations, publicly available policies, or standards or with any of the tenns of this Franchise, and such noncompliance continues for a period of thirty (30) 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 8 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, 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, within sixty (60) days. However, the City shall not have any electrical work accomplished by any person or entity other than Franchisee or a qualified and licensed electrical contractor. Section 12. Notice to Franchisee of Work by City 12.1 City Reservation of Rights. 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 consistent with the terms and conditions of this Franchise. The rights reserved herein include, without limitation, the construction, installation, and/or maintenance of any electrical, water, sewer or ORD# -.--' 8 of 26 pages stonn drainage line, traffic signals, street lights, trees, landscaping, bicycle paths and lanes, equestrian trails, sidewalks, other pedestrian amenities, and other public street improvement projects.. This Franchise is not an exclusive Franchise and shall not be construed in any manner to 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. Franchisee shall operate the Facilities in a manner that will not cause interference to the City, and other lessees, franchisees, or licensees of the Franchise Area whose use predates this Franchise. In addition, with respect to lessees, franchisees or licensees whose operations commence after installation of the Facilities hereunder, Franchisee shall not make any change in its operations that causes or is intended to cause material interference with such lessees, franchisees or licensees. All operations by Franchisee shall be in compliance with al1 Federal Communications Commission ("FCC") regulations. Pursuant to FWCC Section 22-971 as it now exists or is hereafter amended, the City may issue pennits for and enter into franchises and leases that allow Idcation or collocation of other telecommunications facilities in the Franchise Area, and Franchisee consents to same, provided however, that the location or collocation must occur in compliance with said FWCC Section 22- 971 as it now exists or is hereafter amended. In the event that any such location or collocation results in interference with Franchisee's operations, and provided that Franchisee has substantially complied with the provisions of this Franchise, the City agrees to take reasonable steps to cause the interfering party to eliminate such interference, including, but not limited to, revoking the interfering party's permit(s) or approval(s). In case of interference between two or more wireless carriers, the City shall give ORD# , 9 of 26 pages priority to the wireless carner who was first in time at the particular location where the interference is being experienced. In the event that the interference is not eliminated within thirty (30) days of notice to City by Franchisee, Franchisee may terminate this Franchise immediately and pursue any and all remedies available to it against the interfering party. 12.2 City's Duties. The City may require Franchisee to relocate one or more of its Facilities in the Franchise Area when reasonably necessary for construction, alteration, repair or improvement of the right-of-way for purposes of public welfare, health or safety, (hereinafter collectively referred to as "Improvement Project"). In the event the City requires Franchise to relocate one or more of its Facilities, the City shall: A. Within a reasonable time, which shall be no less than one hundred eighty (180) days, prior to the commencement of the Improvement Project, provide the Franchisee with written notice requiring it to relocate its Facility. The Franchisee shall complete relocation of its Facilities so as to accommodate the improvement project at least ten (10) days prior to commencement of the improvement project, unless the City or a court establishes a later date for completion, after a showing by the Franchisee that the relocation cannot be completed by the date specified using best efforts and meeting safety and service requirements. B. In the event of an emergency posing a threat to public safety, health or welfare, or in the event of an emergency beyond the control of the City, the City shall give the Franchisee written notice to relocate as soon as practicable. The Franchisee shall relocate its Facilities within a reasonable time period specified by the Public Works Director, unless a court establishes a later date for completion, after a showing by the Franchisee that the relocation cannot be completed by the date specified using best efforts and meeting safety and service requirements. ORD# --' 10 of26 pages 12.3 As part of any notice to relocate, the City shall provide the Franchisee with copies ofthe plans and related infonnation for the improvement project necessitating the relocation and shall identify reasonable alternative locations in the right-of-way for the Franchisee's Facilities. The City shall make a reasonable effort to process any permits required for a replacement Facility in a timely fashion to enable the Franchisee to construct a replacement Facility before the Franchisee is required to remove the original Facility. 12.4 The Franchisee may, after receipt of written notice requesting a relocation of its I Facilities, submit to the City written alternatives to such relocation. The City shall evaluate such alternatives and advise the Franchisee in writing if one or more of the alternatives are suitable to accommodate the work which would otherwise necessitate relocation of the Facilities. The City shall give each alternative proposed by the Franchisee full and fair consideration, within a reasonable time, so as to allow for the relocation work to be perfonned in a timely manner. In the event the City ultimately detennines, after due consideration, that there is no other reasonable alternative, the Franchisee shall relocate its Facilities as otherwise provided in this Section. 12.5 Unless otherwise provided in RCW 35.99.060, the Franchisee shall complete relocation of its Facilities at no charge or expense to the City. 12.6 The provisions of this Section shall in no manner preclude or restrict the Franehisee from making any arrangements it may deem appropriate when responding to a request for relocation of its Facilities by any person or entity other than the City, where the Facilities to be constructed by said person or entity are not or will not become City-owned, operated or maintained Facilities; provided that such arrangements do not unreasonably delay a City improvement project. ORD# , II of26 pages Section 13. Oamaee 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 in the 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, promptly notify the City. The City will inspect the damage, and coordinate with the Franchisee to establish a schedule for completing the repair. If the City discovers damage caused by the Franchisee to rights-of~way, or to public and private improvements in the rights~of-way, the City shall give the Franchisee notice of the damage and coordinate with the Franchisee to establish a schedule for repairing the damage. In the event the Franchisee does not repair a right-of-way or an improvement to a right-of-way as required in this section, the City may repair the damage pursuant to Section 11 ofthis Agreement Section 14. Default 14.1 Notice of Default In addition to other remedies set forth herein, if Franchisee fails to comply with any of the provisions of this Franchise, the City may serve a written notice to Franchisee ordering such compliance and Franchisee shall have thirty (30) days from the receipt of such notice in which to comply. 14.2 Revocation of Franchise. If Franchisee has not cured the default within thirty (30) days of receiving notice from the City of such default, or if such default is not curable within thirty (30) days, if the Franchisee fails to commence such cure within thirty (30) days or fails thereafter diligently to pursue such cure to completion, the City may, by resolution, declare the Franchise immediately revoked. ORD# , 12 of 26 pages Section 15. Limited Riehts 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. Section 16. Eminent Domain The existence of this Franchise shall not preclude the City from acqumng by condemnation, in accordance with applicable law, all or a portion of Franchisee's Facilities ... within the Franchise Area for the fair market value thereof. In detennining the value of such Facilities, no value shall be attributed to the right to occupy the Franchise Area conferred by this Franchise. Section 17. 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 sixty (60) days before vacating all or any portion of the Franchise Area. The City may, after sixty (60) days written notice to Franchisee, tenninate this Franchise with respect to any such vacated area. Section 18. Compliance with Laws 18.1 General. Franchisee shall comply with all applicable federal, state and City laws, resolutions, regulations, publicly available standards and procedures, as now existing or hereafter amended or adopted, including without limitation the State Environmental Policy Act; provided, however, that if any ternl or condition of this Franchise and any tenn or condition of any City law, code, franchise, resolution, regulation, standard, procedure, permit or approval are in conflict, the tenn or condition of this Franchise will control. ORD# , 13 of 26 pages 18.2 Future City of Federal Way Regulation. Franchisee acknowledges that the City may develop generally applicable rules, regulations, ordinances and specifications for the use of the rights-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, provided they do not conflict with state law. Section 19. Guarantee Franchisee shall guarantee work completed by the Franchisee under this Franchise for a period of 10 years against settlement or repair. Section 20. Charge for Administrative Costs Franchisee agrees to pay a fee or a charge to recover the actual reasonable administrative expenses incurred by the City that are directly related to preparing and approving this Franchise. Nothing herein shall preclude the City from charging administrative fees or recovering any administrative costs incurred by the City in the approval of pennits or in the supervision, inspection or examination of all work by Franchisee in the Franchise Area as prescribed in accordance with applicable provisions of the FWCc. Section 21. Indemnification Franchisee agrees to indemnify, hold hannless and defend the City, its elected officials, officers, employees, agents, and volunteers from any and all claims, demands, losses, actions and liabilities (including costs and all attorney fees) to or by any and all persons or entities, including, without limitation, their respective agents, licensees, or representatives, arising from or resulting from this Franchise to the extent caused in part or in whole by the acts, errors or omissions of the Franchisee, its officers, partners, shareholders, managers, members, agents, employees, or by the Franchisee's breach of any provisions of this Franchise; provided, however, that this section shall not be construed as requiring Franchisee to indemnify, hold harmless or defend the City against claims or damages arising from the negligence, acts or omissions of the ORD # -_._-_.__..~_......."---' 14 of 26 pages City, its agents, employees, independent contractors, officers, or volunteers. In the event any claim, demand, suit or action is commenced against the City that gives rise to Franchisee's obligation pursuant to this Section, the City shall promptly notify Franchisee thereof. Franchisee's selection of an attorney to defend any such claim, demand, suit, or action shall be subject to the City's approval, which shall not be unreasonably withheld.. franchisee shall not settle or compromise any such suit or action except with prior written consent of the City, which shall not be unreasonably withheld. The City shall have the right at all times to participate through its own attorney in any suit or action which arises pursuant to this Franchise when the City detennines that such participation is required to protect the interest of the City or the public. In the event it is determined that RCW 4.24.115 applies to this Franchise, Franchisee agrees to defend, hold hannless and indemnify the City to the maximum extent pennitted thereunder, to the full extent of Franchisee's negligence. Section 22. Insurance 22.1 Minimum Limits. The Franchisee agrees to carry as a minimum, the following insurance, with carriers licensed to do business in the state of Washington and with a minimum rating as published in the AM Best Insurance guide of A-VIII. (a) Workers compensation insurance in amounts sufficient pursuant to the laws of the State of Washington; (b) Commercial general liability insurance with combined single limits of liability not less than $5,000,000 for bodily injury, including personal injury or death, products liability, contractual coverage, operations, explosion, collapse, underground and property damage; ORD# ."_--___,15 of26 pages (c) Automobile liability insurance with combined single limits of liability not less than $5,000,000 for bodily injury, including personal injury or death and property damage; and (d) Employers liability insurance in an amount not less than $1,000,000. 22.2 Mandatory Insurance Provisions. The comprehensive general liability insurance and automobile liability insurance policies shall be endorsed to contain the fol1owing provisions: (a) The City, its officers, elected officials, employees, and volunteers are to be named as additional insured; (b) Coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability; Coverage shall not be suspended, canceled, modified or reduced except after thirty (30) days prior written notice to the City delivered by certified mail, return receipt requested; and Coverage shall be primary as to the City, its officers, officials, employees and volunteers. Any insurance or self-insurance by the City, its officers, officials, employees or volunteers shall be in excess of Franchisee's required insurance. 22.3 Verification of Coverage. Franchisee shall furnish the City with certificates of insurance evidencing the coverages required by this Section. The certificates shall be signed by a person authorized by the insurer to bind coverage on its behalf and must be received and approved by the City prior to the conuhencement of any work. Section 23. Bond Before commencing work within the City, the Franchisee shall post a bond in the [OID1 attached as Exhibit B and in the amount of $50,000 to guarantee performance of the construction, pcrfonnance, maintenance or repair in accordance with any pennits required and with any provisions of this Franchise. Procedures for submission and release of the bond shall , 16 of26 pages ORD# be as provided in FWCC Sections 22-146 and 22-175 or as otherwise provided in the City Code. In the event that the Franchisee fails to perform as required herein or by any permits required, the City may pertonn the work as provided herein, and may have recourse to the bond in addition to or in lieu of the remedies provided herein, at the City's sole discretion. Franchisee shall be entitled to return of the bond, or portion thereof, as remains sixty (60) days after the expiration or termination of the Franchise, provided the City has not notified Franchisee of any actual or potential damages incurred as a result of Franchisee's operations pursuant to the Franchise or as a result of default thereunder. Section 24. Removal of Facilities Upon the expiration, tennination, or revocation of the rights granted under this Franchise, the Franchisee shall remove all of its Facilities from the Franchise Area within 90 days of receiving notice from the Public Works Director to do so. Provided, however, that the City may pennit the Facilities to be abandoned in place in such a manner as the City may prescribe. Upon pennanent abandonment, the Facilities shall become the property of the City. Section 25. Confidentiality Subject to the limits of Washington law, City agrees to treat as confidential any records that constitute proprietary or confidential information under federal or state law, to the extent Franchisee makes City aware of such confidentiality. Franchisee is responsible for clearly and conspicuously identifying the work confidential or proprietary, Franchisee will provide a brief written explanation as to why such information is confidential and how it may be treated as such under state or federal law. If City receives a demand from any person for disclosure of any information designated by Franchisee as confidential, City consistent with applicable law will advise Franchisee and provide Franchisee with a copy of any written request by the party demanding access to such inforn1ation. If Franchisee believes that the disclosure of such ORD# , 17 of26 pages documents by City would interfere with Franchisee's rights under federal or state law, Franchisee will take appropriate legal action to prevent the disclosure by City of such documents. Franchisee will join the person requesting the documents to such an action. Franchisee will defend, indemnify and hold City harmless from any claim or judgment including any penalties or costs under RCW 42.17. Section 26. Land Use Approvals/Reeulations. The parties acknowledge that this Agreement sets forth the tenns and conditions under which the Franchisee may use and occupy the public right-of-way within the City. Nothing in this Agreement is intended to or does modify or affect the tenns and conditions of any existing or subsequently issued land use or construction permits or approvals (e.g., conditional use pennit, variance, building pennit, grading permit, electrical permit, etc.). All such land use and/or construction pennits or approvals shall be governed by the applicable City ordinances, rules and regulations in effect at the time Franchisee submits a complete application for such permits and other approvals. Section 27. General Provisions 27.1 Entire Agreement. This Franchise contains all of the agreements of the City and Franchisee with 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. 27.2 Modification. No provision of this Franchise may be amended or added to except by agreement in writing signed by both City and Franchisee. 27.3 Assignment. In addition to the requirements of Subsection 2.1, a Franchisee shall not have the right to transfer or assign, in whole or in part this Franchise without the prior written consent of the City, which will not be unreasonably withheld, conditioned or delayed. Notwithstariding the foregoing, Franchisee shall have the right, without such notice or such written consent, to assign this Franchise, in whole or part, to any parent, subsidiary, or affiliated ORD# , 18 of26 pages corporation, or to an entity with or into which the Franchisee may merge or consolidate, or to any entity resulting from the reorganization of the Franchisee or parent company, or to any purchaser of all or substantially all of the assets of the Franchisee, or as part of any corporate financing, reorganization, or refinancing, or to mortgage its rights, benefits and privileges in and under this Franchise to the Trustee for its bondholders. Any transferee or assignee shall, within thirty (30) days of the date of any approved transfer or assignment, file written notice of the transfer or assignment with the City together with its written acceptance of all terms and conditions of this Franchise. 27.4 Attorney Fees. In the event the City or the Franchisee defaults in the performance of any tenns in this Franchise, and the Franchisee or the City places the enforcement of the Franchise or any part thereof or for the collection of any monies due, or to become due hereunder, in the hands of an attorney, or files suit upon the same, the prevailing party shall be entitled to an award of all reasonable attorneys' fees, costs and expenses. The venue for any dispute related to this Franchise shall be King County, Washington. 27.5 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. 27.6 Governing Law. This Franchise shall be made in and shall be governed by and interpreted in accordance with the laws of the State of Washington. 27.7 Authority. Each individual or entity executing this Franchise on behalf of the City and Franchiseè represents and warrants that such individual or entity is duly authorized to execute and deliver this Franchise on behalf of the Franchisee or the City, respectively. ORD# , 19 of 26 pages 27.8 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: City of Federal Way Attn: City Attorney 33325 8th Avenue South P.O. Box 9718 Federal Way, W A 98063 Franchisee: New Cingular Wireless Lease Adm inistration 6100 Atlantic Boulevard, 1 st Floor Mail Code: GAN02 Norcross, GA 30071 With Copy to: Cingular Wireless Real Estate Manager - PNW RTC Building 3 16221 NE nnd Way Redmond, W A 98052 And With Copy to: Counsel - West Region New Cingular Wireless 15 East Midland Avenue Paramus, NJ 07652 Any notices may be delivered personally to the addressee of the notice or may be deposited in the United States mail, postage prepaid, to the address set forth herein. Any notice so posted in the United States mail shall be deemed received three (3) days after the date of mailing. 27.9 Captions. The respective captions of the sections and subsections 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.. 27.10 Remedies Cumulative. 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. Section 28. Severability If any section, sentence, clause, or phrase of this Franchise should he held to be invalid Or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall ORD# , 20 of 26 pages not affect the validity or constitutionality of any other section, sentence, clause or phrase of this Franchise. Section 29. Ratification Any act consistent with the authority and prior to the effective date of this Franchise is hereby ratified and affirmed. Section 30. Effective Date This ordinance shal1 take effect and be in force 30 days from the time of its final passage, as provided by law, provided it has been duly accepted by Franchisee as herein provided above.. PASSED by the City Council of the City of Federal Way this - day of ,2005. CITY OF FEDERAL WAY MAYOR, DEAN McCOLGAN ATTEST: CITY CLERK, N. CHRISTINE GREEN, CMC APPROVED AS TO FORM: CITY ATTORNEY, PATRICIA A. RICHARDSON FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL PUBLISHED: EFFECTIVE DATE: ORDINANCE NO.: ACCEPT ANCE: ,21 of26 pages ORD# ACCEPTANCE The undersigned hereby accepts all the rights and privileges of the above b'Tanted Franchise and acknowledges that such rights and privileges are subject to and limited by all of the tenns, conditions and obligations contained therein. DATED this_day of ,2005. NEW ClNGULAR WIRELESS PCS, LLC, a Delaware limited liability company, By: E. Don MacLeod Executive Director of Network Services K;\Telecom\Cingular Franchise\Final 04.15.05 ORD# , 22 of 26 pages ORD# , 23 of 26 pages EXHIBIT A TO BE PROVIDED EXHIBIT B CITY OF FEDERAL WAY PERFORMANCE BOND FOR RIGHT OF WAY FRANCHISE AGREEMENT KNOW ALL PEOPLE BY THESE PRESENTS: We, the ("Principal It) undersigned undersigned and the corporation organized and existing under the laws of the State of and legally doing business in the State of Washington as a surety ("Surety"), are held and firmly bound unto the City of Federal Way, a Washington municipal corporation, ("City") in the penal sum of Dollars and no/lOo ($ ) for the payment of which we finnly bind ourselves and our legal representatives, heirs, successors and assigns, jointly and severally. This obligation is entered into pursuant to the statutes of the State of Washington and the ordinances, regulations, standards and policies of the City, as now existing or hereafter amended or adopted. The Principal has entered into an Agreement with the City dated to NOW, THEREFORE, if the Pr~ncipal shall perfonn all the provisions of the Agreement in the manner and within the time period prescribed by the City, or within such extensions of time as may be granted under the Agreement, and shall pay all laborers, mechanics, subcontractors and material men or women, and all persons who shall supply the Principal or subcontractors with provisions and supplies for the carrying on of said work, and shall hold the City, their officials, agents, employees and volunteers harmless from any loss or damage occasioned to any person or property by reason of any carelessness or negligence on the part of the Principal, or any subcontractor in the perfonnance of said work, and shall indemnify and hold the City harmless from any damage or expense by reason of failure ofperfonnance as specified in the Agreement, or from defects appearing or developing in the material or workmanship provided or perfonned under the Agreement within the period not less than: 1. the tenn of the Agreement; or 2. two (2) years beyond the completion of final installation or construction by the Principal pursuant to the Agreement ifrequired by the City; whichever is longer, then and in the event this obligation shall be void; but otherwise, it shall be and remain in full force and effect. And the Surety, for value received, hereby fùrther stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Agreement or to the work to be perfoffilCd thereunder or the specifications accompanying the same shall in any way affect its obligation on ORD# ,24 of26 pages this bond, and it does hereby waive notice of any change, extension of time, alterations or additions to the terms of the Agreement or to the Work. Within forty-five (45) days of receiving notice that the Principal has defaulted on all or part of the terms of the Agreement, the Surety shal1 make a written commitment to the City that it will either: (a) cure the default itself within a reasonable time period, or (b) tender to the City, the amount necessary for the City to remedy the default, including legal fees incurred by the City, or (c) in the event that Surety's evaluation of the dispute is not complete or in the event the Surety disputes the City's claim of default, the Surety shall notify the City of its finding and its intent, if any, to interplead. The Surety shall then fulfill its obligations under this bond, according to the option it has elected. Should Surety elect option (a) to cure the default, the penal sum of the Bond shall be reduced in an amount equal to the costs actually incurred by the Surety in curing the default. If the Surety elects option (b), then upon completion of the necessary work, the City shall notify the Surety of its actual costs. The City shall return, without interest, any overpayment made by the Surety and the Surety shall pay to the City any actual costs which exceed the City estimate, limited to the bond amount. Should the Surety elect option (c), the Parties shall first complete participation in mediation, described in the below paragraph, prior to any interplead action. In the event a dispute should arise between the Parties to this Bond with respect to the City's declaration of default by the Principal, the Parties agree to participate in at least four hours of mediation in accordance with the mediation procedures of United States Arbitration and Mediation ("USA&M"). The Parties shall proportionately share in the cost of the mediation. The mediation shall be administered by the Seattle USA&M office, 4300 Two Union Square, 601 Union Street, Seattle, Washington 98101-2327. The Surety shall not interplead prior to completion of the mediation. DATED this - day of ,20_. CORPORATE SEAL OF PRINCIPAL: [PRINCIPAL] By: (Name of Person Executing Bond) Its (Title) (Address) (Phone) , 25 of 26 pages ORD# CERTIFICATE AS TO CORPORATE SEAL I hereby certify that I am the (Assistant) Secretary of the Corporation named as Principal in the within bond; that , who signed the said bond on behalf of the Principal, was of the said Corporation; that I know his or her signature thereto is genuine, and that said bond was duly signed, sealed, and attested for and in behalf of said Corporation by authority of its governing body. Secretary or Assistant Secretary CORPORATE SEAL OF SURETY: [SURETY] By: Attorney-in-Fact (Attach Power of Attorney) (Name of Person Executing Bond) (Address) (Phone) APPROVED AS TO FORM: Patricia A. Richardson, City Attorney ORD# , 26 of 26 pages ORDINANCE NO. DRAFT f/~ 7( ~ d.~' AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, GRANTING NEW CINGULAR WIRELESS PCS, LLC, A DELAWARE LIMITED LIABILITY COMPANY, A NONEXCLUSIVE FRANCHISE TO OCCUpy RIGHTS-OF-WAY OF THE CITY OF FEDERAL WAY, WASHINGTON, WITHIN THE SPECIF1ED FRANCHISE AREA FOR THE PURPOSES OF INSTALLATION, OPERATION, MAINTENANCE AND REPAIR OF ITS WIRELESS COMMUNICATIONS FIXTURES AND RELATED EQUIPMENT, CABLES, ACCESSORIES AND IMPROVEMENTS IN A PORTION OF THE RIGHTS-OF-WAY WITHIN AND THROUGH THE CITY OF FEDERAL WAY. WHEREAS, the New Cingular Wireless PCS, LLC, a Delaware Limited Liability Company, ("Franchisee") has requested a Franchise from the City of Federal Way, in order to place wireless transmitting facilities and related appUI1enances in the City owned or controlled 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 Franchisee; and WHEREAS, RCW 35A.47.040 et. seq. and RCW 35.99 et seq. permit 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 Agreement, the City of Federal Way reserves such other powers and authorities granted to Washington code cities by general law; ORD# _on' 1 of 26 pages NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DOES HEREBY 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. 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 "Facilities" means: (i) wireless communications facilities, including, but not limited to, electronic equipment, radio transmitting and receiving apparatus, and supporting equipment to be located on a pole on a certain public right of way, base station transmitting cabinets, radio frequency antennas and locating antennas, (ii) underground fiber optic telecommunication lines or similar lines, and (iii) any appurtenances necessary to connect the lines or similar lines to the existing switched telephone network all as shown on Exhibit A. 1.5 "Franchise Area" means only that portion of the City owned or controlled rights- of-way located in the City of Federal Way and shown in Exhibit A attached hereto (excluding privately owned property), and/or any other areas approved by the Federal Way City Council and incorporated into this Ordinance via amendment. 1.6 "Franchisee" means New Cingular Wireless PCS, LLC, a Delaware limited liability company, and its respective successors and assigns if consented to by the City of Federal Way as provid~d in Section 27 herein. 1.7 "FWCC" means the Federal Way City Code. ORD# ----' 2 of 26 pages Section 2. Grant/Acceptance 2.1 Grant of Master Agreement. The City hereby grants to Franchisee the nonexclusive right to enter upon the Franchise Area for the limited purpose of constructing, excavating, installing, maintaining, restoring, upgrading, and repairing Facilities within the Franchise Area. This Franchise is specifically limited to the right for Franchisee to install Facilities owned and operated by Franchisee. This Franchise does not permit Franchisee to lease, rent, or otherwise allow use of conduits, space or capacity provided by the Facilities for or to cable and other third-party cable or telecommunications providers, and Franchisee covenants and agrees that it will not do so. 2.2 Acceptance by 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 sixty (60) days after the effective date of this Franchise, file with the City its written acceptance of this Franchise and all of its tenDS and conditions. Section 3. Non-Franchise Area City Property 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 public roads, streets, avenues, alleys and highways. Additionally, this Francþise does not convey any right to Franchisee to install its Facilities on, under, over, acr ss private property or any other governmental authorities' property or on any other perso or entity's poles or apparatus, and Franchisee is responsible for obtaining any authorizations, greements or consents from private property owners, any other governmental authorities and an other persons or entities. ORD # . -~------' 3 of 26 pages Section 4. Term Subject to Franchisee filing its acceptance pursuan to Subsection 2.2, the term of this Franchise shall be for a period of ten (10) years co nun ncing on the effective date of this Franchise, unless terminated earlier pursuant to this ~ranchise or other applicable law. Notwithstanding the foregoing, Franchisee may temúnafe this Franchise, and remove its facilities, at any time upon at least 90-days written notice to ~he City. Section 5. Location of Facilities 5.1 Location. In addition to the other requirements of this Franchise, Franchisee shall submit to the City an "as-built" plan for each Facility, including any underground portiones) of the Facility and appurtenances, their depths below surface of ground or grade of a right-of-way, and any related existing equipment (such as cellular or personal communication service antennae) to which the Facility is connected, within thirty (30) days of the installation of each Facility. Any fiber line or conduit pennitted by this Franchise which runs from the pole in the rights-of-way to the equipment shed or building on private property shall be installed underground. Upon written request of the City, Franchisee shall update such "as-built" plan to reflect actual or anticipated improvements to any of Franchisee's Facilities. Any such "as-built" plan (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 GIS Data. At such time as Franchisee develops or employs Geographic Information System ("GIS") technology, Franchisee shall submit the information required in Subsection 5.1 abovc in digital GIS format, showing the location of its Facilities within the Agreement Area. ORD# , 4 of 26 pages 5.3 Design Markings. 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 of Federal Way's reasonable 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. 5.4 Utilities. Nothing herein is intended to relieve the parties of their respective obligations arising under Chapter 19.122 RCW or other applicable law with respect to determining the location of utility facilities prior to construction. Section 6. Noninterference 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 City Code requirements, Franchise provisions, regulations, resolutions, rules, and publicly available policies of general applicability as now existing or as hereafter amended; and (3) as required by the Director in accordance with the foregoing or given public health, safety and welfare. This requirement applies whether or not the work is performed by the Franchisee, its agents, employees, subcontractors, or other third parties at Franchisee's direction. Section 7. Requirement to Obtain Permits 7.1 Permits and Permit Applications. Franchisee shall, at its expense, obtain all permits, including rights-of-way permits, and pay all peffilit fees required by applicable City ordinances, regulations, resolutions, publicly available policies, and rules prior to commencing a,ny work within the Franchise Area. Franchisee permit applications shall show the position and location of the proposed Facilities to be constructed, laid, installed, or erected at that time, show their relative position to existing ORD# , 5 of 26 pages rights-of-way or property lines upon prints drawn to scale, designate rights-of-way by their names and improvements, such as, but not limited to, sidewalks, curbs, gutters, shoulders of roadway, ditches, paved roadways, roadways to property lines, turnouts, parking strips, telephone or electric distribution poles, and water pipes existing on the ground to be occupied, or as otherwise reasonably required by the Director. The Franchisee shall specify the class and type of materials to be used, equipment to be used, and method of safeguarding and facilitating the public traffic during construction. Materials and equipment shall be in new or like new condition for its type and kind. The manner of excavation, construction, installation, backfill, and temporary structures sueh as, but not limited to, traffic turnouts and road obstructions shall meet the standards of the FWCC and be reasonably satisfactory to the Director. All traffic control shall be in accordance with the rights-of-way permit, and shall be in accordance with the Manual on Uniform Traffic Control Devices (MUTCD). The Franchisee shall indicate on any permit application the time needed to complete the work. The time needed to complete the work is subject to approval by the City, which shall not be unreasonably withheld, as a condition of the issuance of the permit or approval. 7.2 Emergency Exception to Permit Requirement. 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 or concurrent with commencing the work; and (2) such pennit is obtained by Franchisee as soon as reasonably practicable following cessation ofthe emergency. ORD# , 6 of 26 pages Section 8. Standard of Performance 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 work day in which they have been opened. Trench areas within the rights-of-way, but not within a driving lane, must also be patched within the tih1e limits specified by the City on the rights-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. 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 Subsection 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 in accordance with FWCC regulations or Department of Public Works internal policies. Within forty-five (45) days of completion of any installation of Franchisee's Facilities within the Franchise Area, Franchisee shall submit to the Director plans, stamped by a Professional Engineer or surveyor licensed by the State of Washington, showing the "as-built" location of the Facilities. Section 9. Survey Markers and Monuments Franchisee shall, at its sole cost and expense, and using a licensed surveyor, timely replace or repair all markers or monuments displaced or damaged as a result of any work by Franchisee within the Franchise Area. ORD # -------.---' 7 of 26 pages Section 10. S "dace Markin £s/S takes Prior to Franchisee commencing any excavation work within the Franchise Area, Franchisee shall using a licensed surveyor 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 Franchisee shall be responsible for the cost of repairing or replacing monuments or other markers lost, destroyed, or disturbed as a result of any work by Franchisee within the Franchise Area. A complete set of reference notes for monuments, markers and other ties shall be filed with the City. Section 11. Ri£ht of City to Complete Work In the event Franchisee fails to comply with any applicable federal, state or City laws, ordinances, rules, regulations, publicly available policies, or standards or with any of the terms of this Franchise, and such noncompliance continues for a period of thirty (30) 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 eompleted, including without limitation Franchisee's obligation to repair pursuant to Section 8 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, 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, within sixty (60) days. However, the City shall not have any electrical work accomplished by any person or entity other than Franchisee or a qualified and licensed electrical contractor. ORD #_~..~,.._--~, 8 of26 pages Section 12. Notice to Franchisee of Work by City 12.1 City Reservation of Rights. 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 consistent with the terms and conditions of this Franehise. 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 improvement projects. This Franchise is not an exclusive Franchise and shall not be construed in any manner to 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. Franchisee shall operate the Facilities in a manner that will not cause interference to the City, and other lessees, franchisees, or licensees of the Franchise Area whose use predates this Franchisc. In addition, with respect to lessees, franchisees or licensees whose operations commence after installation of the Facilities hereunder, Franchisee shall not make any change in its operations that causes or is intended to cause material interference with such lessees, franchisees or licensees. All operations by Franchisee shall be in compliance with all Federal Communications Commission ("FCC") regulations. Pursuant to FWCC Section 22-971 as it now exists or is hereafter amended, the City may issue permits for and enter into franchises and leases that allow location or collocation of other telecommunications facilities in the Franchise Area, and Franchisee consents to same, provided however, that the location or collocation must occur in compliance with said FWCC Section 22- 971 as it now exists or is hereafter amended. ORD# ,9 of26 pages In the event that any such location or collocation results in interference with Franchisee's operations, and provided that Franchisee has substantially complied with the provisions of this Franchise, the City agrees to take reasonable steps to cause the interfering party to eliminate such interference, including, but not limited to, revoking the interfering party's permit(s) or approvaL(s). In case of interference between two or more wireless carriers, the City shall give priority to the wireless carrier who was first in time at the particular location where the interference is being experienced. In the event that the interference is not eliminated within thirty (30) days of notice to City by Franchisee, Franchisee may terminate this Franchise immediately and pursue any and all remedies available to it against the interfering party. 12.2 City's Duties. The City may require Franchisee to relocate one or more of its Facilities in the Franchise Area when reasonably necessary for construction, alteration, repair or improvement of the right-of-way for purposes of public welfare, health or safety. In the event the City requires Franchise to relocate one or more of its Facilities, the City shall: A. Within a reasonable time, which shall be no less than one hundred eighty (180) days, prior to the commencement of the Improvement Project, provide the Franchisee with written notice requiring it to relocate its Facility. The Franchisee shall complete relocation of its Facilities so as to accommodate the improvement project at least ten (10) days prior to commencement of the improvement project, unless the City or a court establishes a later date for completion, after a showing by the Franchisee that the relocation cannot be completed by the date spccitïed using best efforts and meeting safety and service requirements. B. In the event of an emergency posing a threat to public safety, health or welfare, or in the event of an emergency beyond the control of the City, the City shall give the Franchisee written notice to relocate as soon as practicabLe. The Franchisee shall relocate its Facilities within a reasonable time period specified by the Public Works Director, unless a court ORD# , 10 of26 pages establishes a later date for completion, after a showing by the Franchisee that the relocation cannot be completed by the date specified using best efforts and meeting safety and service requirements. 12.3 As part of any notice to relocate, the City shall provide the Franchisee with copies of the plans and related information for the improvement project necessitating the relocation and shall identify reasonable alternative locations in the right-of-way for the Franchisee's Facilities. The City shall make a reasonable effort to process any permits required for a replacement Facility in a timely fashion to enable the Franchisee to construct a replacement Facility before the Franchisee is required to remove the original Facility. 12.4 The Franchisee may, after receipt of written notice requesting a relocation of its Facilities, submit to the City written alternatives to such relocation. The City shall evaluate such alternatives and advise the Franchisee in writing if one or more of the alternatives are suitable to accommodate the work which would otherwise necessitate relocation of the Facilities. The City shall give each alternative proposed by the Franchisee full and fair consideration, within a reasonable time, so as to allow for the relocation work to be performed in a timely manner. In the event the City ultimately determines, after due consideration, that there is no other reasonable alternative, the Franchisee shall relocate its Facilities as otherwise provided in this Section. 12.5 Unless otherwise provided in RCW 35.99.060, the Franchisee shall complete relocation of its Facilities at no charge or expense to the City. 12.6 The provisions of this Section shall in no manner preclude or restrict the Franchisee from making any arrangements it may deem appropriate when responding to a request for relocation of its Facilities by any person or entity other than the City, where the Facilities to be constructed by said person or entity are not or will not become City-owned, ORD# , 11 of26 pagcs operated or maintained Facilities; provided that such arrangements do not unreasonably delay a City improvement project. Section 13. Dama2e 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 in the 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, promptly notify the City. The City will inspect the damage, and coordinate with the Franchisee to establish a schedule for completing the repair. If the City diseovers damage caused by the Franchisee to rights-of-way, or to public and private improvements in the rights-of-way, the City shall give the Franchisee notice of the damage and coordinate with the Franchisee to establish a schedule for repairing the damage. In the event the Franchisee does not repair a right-of-way or an improvement to a right-of-way as required in this section, the City may repair the damage pursuant to Section 11 of this Agreement. Section 14. Default 14.1 Notice of Default. In addition to other remedies set forth herein, if Franchisee fails to comply with any of the provisions of this Franchise, the City may serve a written notice to Franchisee ordering such compliance and Franchisee shall have thirty (30) days from the receipt of such notice in which to comply. 14.2 Revocation of Franchise. If Franchisee has not cured the default within thi~y (30) days of receiving notice from the City of such default, or if such default is not curable within thirty (30) days, if the Franchisee fails to commence such cure within thirty (30) days or tàils thereafter diligently to pursue such cure to completion, the City may, by resolution, declare the Franchise immediately revoked. , 1201'26 pages ORD# Section 15. Limited Riehts 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. Section 16. 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 Franchisee's 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 17. 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 sixty (60) days before vacating all or any portion of the Franchise Area. The City may, after sixty (60) days written notice to Franchisee, terminate this Franchise with respect to any such vacated area. Section 18. Compliance with Laws 18.1 General. Franchisee shall comply with all applicable federal, state and City laws, resolutions, regulations, publicly available standards and procedures, as now existing or hereafter amended or adopted, including without limitation the State Environmental Policy Act; provided, however, that if any ternl 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 ORD #_-_..-~, 13 of26 pages 18.2 Future City of Federal Way Regulation. Franchisee acknowledges that the City may develop generally applicable rules, regulations, ordinances and specifications for the use of the rights-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, provided they do not conflict with state law. Section 19. Guarantee Franchisee shall guarantee work completed by the Franchisee under this Franchise for a period of 10 years against settlement or repair. Section 20. Charg:e for Administrative Costs Franchisee agrees to pay a fee or a charge to recover the actual reasonable administrative expenses incurred by the City that are directly related to preparing and approving this Franchise. Nothing herein shall preclude the City from charging administrative fees or recovering any administrative costs incurred by the City in the approval of pennits or in the supervision, inspection or examination of all work by Franchisee in the Franchise Area as prescribed in accordance with applicable provisions ofthc FWCC. Section 21. Indemnification Franchisee agrees to indenmify, hold hannless and defend the City, its elected officials, officers, employees, agents, and volunteers from any and all claims, demands, losses, actions and liabilities (including costs and all attorney fees) to or by any and all persons or entities, including, without limitation, their respective agents, licensees, or representatives, arising from or resulting from this Franchise to the extent caused in part or in whole by the acts, errors or omissions of the Franchisee, its officers, partners, shareholders, managers, members, agents, employees, or by the Franchisee's breach of any provisions of this Franchise~ provided, however, that this section shall not be construed as requiring Franchisee to indemnify, hold hannless or defend the City against claims or damages arising from the negligence, acts or omissions of the ORD# , 14 of26 pages City, its agents, employees, independent contractors, officers, or volunteers. In the event any claim, demand, suit or action is commenced against the City that gives rise to Franchisee's obligation pursuant to this Section, the City shall promptly notify Franchisee thereof. Franchisee's selection of an attorney to defend any such claim, demand, suit, or action shall be subject to the City's approval, which shall not be unreasonably withheld. Franchisee shall not settle or compromise any such suit or action except with prior written consent of the City, which shall not be unreasonably withheld. The City shall have the right at all times to participate through its own attorney in any suit or action which arises pursuant to this Franchise when the City determines that such participation is required to protect the interest of the City or the public. In the event it is detennined that RCW 4.24.115 applies to this Franchise, Franchisee agrees to defend, hold harmless and indemnify the City to the maximum extent permitted thereunder, to the full extent of Franchisee's negligence. Section 22. Insurance 22.1 Minimum Limits. The Franchisee agrees to carry as a minimum, the following insurance, with carriers licensed to do business in the state of Washington and with a minimum rating as published in the AM Best Insurance guide of A-VIII. (a) Workers compensation insurance in amounts sufficient pursuant to the laws of the State of Washington; (b) Commercial general liability insurance with combined single limits of liability not less than $5,000,000 for bodily injury, including personal ir~jury or death, products liability, contractual coverage, operations, explosion, collapse, underground and property damage; ORD# , 150[26 pages (c) Automobile liability insurance with combined single limits of liability not less than $5,000,000 for bodily injury, including personal injury or death and property damage; and (d) Employers liability insurance in an amount not less than $1,000,000. 22.2 Mandatory Insurance Provisions. The comprehensive general liability insurance and automobile liability insurance policies shall be endorsed to contain the following provisions: (a) The City, its officers, elected officials, employees, and volunteers are to be named as additional insured; (b) Coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability; Coverage shall not be suspended, canceled, modified or reduced except after thirty (30) days prior written notice to the City delivered by certified mail, return receipt requested; and Coverage shall be primary as to the City, its officers, officials, employees and volunteers. Any insurance or self-insurance by the City, its officers, officials, employees or volunteers shall be in excess of Franchisee's required insurance. 22.3 Verification of Coverage. Franchisee shall furnish the City with certificates of insurance evidencing the coverages required by this Section. The certificates shall be signed by a person authorized by the insurer to bind coverage on its behalf and must be received and approved by the City prior to the commencement of any work. Section 23. Bond Before commencing work within the City, the Franchisee shall post a bond in the fonn attached as Exhibit B and in the amount of $50,000 to guarantee performance of the construction, pcrfoffi1lli1ce, maintenance or repair in accordance with any permits required and with any provisions of this Franchise. Procedures for submission and release or the bond shall ORD# --,' 16 of 26 pages be as provided in FWCC Sections 22-146 and 22-175 or as otherwise provided in the City Code. In the event that the Franchisee fails to perfonn as required herein or by any permits required, the City may perfonn the work as provided herein, and may have recourse to the bond in addition to or in lieu of the remedies provided herein, at the City's sole discretion. Franchisee shall be entitled to return ofthe bond, or portion thereof, as remains sixty (60) days after the expiration or tennination of the Franchise, provided the City has not notified Franchisee of any actual or potential damages incurred as a result of Franchisee's operations pursuant to the Franchise or as a result of default thereunder. Section 24. Removal of Facilities Upon the expiration, tennination, or revocation of the rights granted under this Franchise, the Franchisee shall remove all of its Facilities from the Franchise Area within 90 days of receiving notice from the Public Works Director to do so. Provided, however, that the City may penn it the Facilities to be abandoned in place in such a manner as the City may prescribe. Upon permanent abandonment, the Facilities shall become the property of the City. Section 25. Confidentiality Subject to the limits of Washington law, City agrees to treat as confidential any records that constitute proprietary or confidential infonnation under federal or state law, to the extent Franchisee makes City aware of such confidentiality. Franchisee is responsible for clearly and conspicuously identifying the work confidential or proprietary. Franehisee will provide a brief written explanation as to why such information is confidential and how it may be treated as such under state or federal law. If City receives a demand from any person for disclosure of any infonnation designated by Franchisee as confidential, City consistent with applicable law will advise Franchisee and provide Franchisee with a copy of any written request by the party demanding access to such infonnation. If Franchisee believes that the disclosure of such ORD#_~._._--, 17 of26 pages documents by City would interfere with Franchisee's rights under federal or state law, Franchisee will take appropriate legal action to prevent the disclosure by City of such documents. Franchisee will join the person requesting the documents to such an action. Franchisee will defend, indemnify and hold City hannless from any claim or judgment including any penalties or costs under RCW 42.17. Section 26. Land Use ApprovalsfReeulations. The parties acknowledge that this Agreement sets forth the terms and conditions under which the Franchisee may use and occupy the public right-of-way within the City. Nothing in this Agreement is intended to or does modify or affect the terms and conditions of any existing or subsequently issued land use or construction permits or approvals (e.g., conditional use permit, variance, building permit, grading permit, electrical permit, etc.). All such land use and/or construction pennits or approvals shall be governed by the applicable City ordinances, rules and regulations in effect at the time Franchisee submits a complete application for such pem1its and other approvals. Section 27. General Provisions 27.1 Entire Agreement. This Franchise contains all of the agreements of the City and Franchisee with 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. 27.2 Modification. No provision of this Franchise may be amended or added to except by agreement in writing signed by both City and Franchisee. 27.3 Assignment. In addition to the requirements of Subsection 2. I, a Franchisee shall not have the right to transfer or assign, in whole or in part this Franchise without the prior written consent of the City, which will not be unreasonably witlilield, conditioned or delayed. Notwithstanding the foregoing, Franchisee shall have the right, without such notice or such written consent, to assign this Franchise, in whole or part, to any parent, subsidiary, or affiliated ORD# , 18 of 26 pages corporation, or to an entity with or into which the Franchisee may merge or consolidate, or to any entity resulting from the reorganization of the Franchisee or parent company, or to any purchaser of all or substantially all of the assets of the Franchisee, or as part of any corporate financing, reorganization, or refinancing, or to mortgage its rights, benefits and privileges in and under this Franchise to the Trustee for its bondholders. Any transferee or assignee shall, within thirty (30) days of the date of any approved transfer or assignment, file written notice of the transfer or assignment with the City together with its written acceptance of all terms and conditions of this Franchise. 27.4 Attorney Fees. In the event the City or the Franehisee defaults in the performance of any terms in this Franchise, and the Franchisee or the City places the enforcement of the Franchise or any part thereof or for the collection of any monies due, or to become due hereunder, in the hands of an attorney, or files suit upon the same, the prevailing party shall be entitled to an award of all reasonable attorneys' fees, costs and expenses. The venue for any dispute related to this Franchise shall be King County, Washington. 27.5 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. 27.6 Governing Law. This Franchise shall be made in and shall be governed by and interpreted in accordance with the laws of the S tate of Washington. 27.7 Authority. Each individual or entity executing this Franchise on behalf of the City and Franchisee represents and warrants that such individual or entity is duly authorized to execute and deliver this Franchise on behalf of the Franchisee or the City, respectively. ORD# , 19 of26 pages 27.8 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: City of Federal Way Attn: City Attorney 33325 8th Avenue South P.G. Box 9718 Federal Way, W A 98063 Franchisee: New Cingular Wireless Lease Administration 6100 Atlantic Boulevard, 1 st Floor Mail Code: GAN02 Norcross, GA 30071 With Copy to: New Cingular Wireless 2445 140th Avenue NE #202 Bellevue, W A 98005 Attn: Property Manager And With Copy to: Counsel - West Region New Cingular Wireless 15 East Midland Avenue Paramus, NJ 07652 Any notices may be delivered personally to the addressee of the notice or may be deposited in the United States mail, postage prepaid, to the address set forth herein. Any notice so posted in the United States mail shall be deemed received three (3) days after the date of mailing. 27.9 Captions. The respective captions of the sections and subsections 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. 27.10 Remedies Cumulative. 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. Section 28. Severability 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 ORD# ,20 of26 pages not affect the validity or constitutionality of any other section, sentence, clause or phrase of this Franchise. Section 29. Ratification Any act consistent with the authority and prior to the effective date of this Franchise is hereby ratified and affirmed. Section 30. Effective Date This ordinance shall take effect and be in force 30 days from the time of its final passage, as provided by law, provided it has been duly accepted by Franchisee as herein provided above. PASSED by the City Council of the City of Federal Way this - day of ,2005. CITY OF FEDERAL WAY MAYOR, DEAN McCOLGAN ATTEST: CITY CLERK, N. CHRISTINE GREEN, CMC APPROVED AS TO FORM: CITY ATTORNEY, PATRICIA A. RICHARDSON FILED WITH THE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO.: ACCEPT ANCE: ORD# ,21 of26 pages 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 ,2005. NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company, By: E. Don MacLeod Executive Director of Network Services K:\TelecomlCingular Franchise\Final 04_15-05 ORD# , 22 of 26 pages ORD# EXHIBIT A TO BE PROVIDED AT A LATER DATE ,230[26 pages EXHIBIT B CITY OF FEDERAL WAY PERFORMANCE BOND }'OR RIGHT OF WAY FRANCHISE AGREEMENT KNOW ALL PEOPLE BY THESE PRESENTS: We, the ("Principal ") undersigned undersigned ~d ~ corporation organized ~d existing under the laws of the State of and legally doing business in the State of Washington as a surety ("Surety"), are held and finnly bound unto the City of Federal Way, a Washington municipal corporation, ("City") in the penal sum of Dollars and noll 00 ($ ) for the payment of whieh we firmly bind ourselves and our legal representatives, heirs, successors and assigns, jointly and severally. This obligation is entered into pursuant to the statutes of the State of Washington and the ordinances, regulations, st~dards ~d policies of the City, as now existing or hereafter amended or adopted. The Principal has entered into an Agreement with the City dated to NOW, THEREFORE, if the Principal shall perfonn all the provisions of the Agreement in the manner and within the time period prescribed by the City, or within such extensions of time as may be gr~ted under the Agreement, and shall pay all laborers, mechanics, subcontractors and material men or women, and all persons who shall supply the Principal or subcontractors with provisions and supplies for the carrying on of said work, and shall hold the City, their officials, agents, employees and volunteers hannless from any loss or damage occasioned to ~y person or property by reason of any carelessness or negligence on the part of the Principal, or ~y subcontractor in the perfonn~ce of said work, and shall indemnify and hold the City hannless from any damage or expense by reason of failure of perfoffi1ance as specified in the Agreement, or from defects appearing or developing in the material or workmanship provided or perfonned under the Agreement within the period not less than: 1. the tenn of the Agreement; or 2. two (2) years beyond the completion of final installation or construction by the Principal pursuant to the Agreement if required by the City; whichever is longer, then and in the event this obligation shall be void; but otherwise, it shall be and remain in full force and effect. And the Surety, for value received, hereby further stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Agreement or to the work to be perfoffi1ed thereunder or the specifications accompanying the same shall in any way affect its obligation on ORD# , 24 of 26 pages this bond, and it does hereby waive notice of any change, extension of time, alterations or additions to the tenus of the Agreement or to the Work. Within forty-five (45) days of receiving notice that the Principal has defaulted on all or part of the tenus of the Agreement, the Surety shall make a written commitment to the City that it will either: (a) cure the default itself within a reasonable time period, or (b) tender to the City, the amount necessary for the City to remedy the default, including legal fees incurred by the City, or (c) in the event that Surety's evaluation of the dispute is not complete or in the eventthe Surety disputes the City's claim of default, the Surety shall notify the City of its finding and its intent, if any, to interplead. The Surety shall then fulfill its obligations under this bond, according to the option it has elected. Should Surety elect option (a) to cure the default, the penal sum of the Bond shall be reduced in an amount equal to the costs actually incurred by the Surety in curing the default. If the Surety elects option (b), then upon completion of the necessary work, the City shall notify the Surety of its actual costs. The City shall return, without interest, any overpayment made by the Surety and the Surety shall pay to the City any actual costs which exceed the City estimate, limited to the bond amount. Should the Surety elect option (c), the Parties shall first complete participation in mediation, described in the below paragraph, prior to any interplead action. In the event a dispute should arise between the Parties to this Bond with respect to the City's declaration of default by the Principal, the Parties agree to participate in at least four hours of mediation in accordance with the mediation procedures of United States Arbitration and Mediation (IIUSA&M"). The Parties shall proportionately share in the cost of the mediation. The mediation shall be administered by the Seattle USA&M office, 4300 Two Union Square, 601 Union Street, Seattle, Washington 98101-2327. The Surety shall not interplead prior to completion of the mediation. DA TED this - day of ,20_. CORPORATE SEAL OF PRlNCIP AL: [PRINCIP AL] By: (Name of Person ExeeutingBond) Its (Title) (Address) (Phone) ORD# ,25 of26 pages CERTIFICATE AS TO CORPORATE SEAL I hereby certify that I am the (Assistant) Secretary of the Corporation named as Principal in the within bond; that , who signed ti1,e said bond on behalf of the Principal, was .. of the said Corporation; that I know his or her signature thereto is genuine, and that said bond was duly signed, sealed, and attested for and in behalf of said Corporation by authority of its governing body. Secretary or Assistant Secretary CORPORATE SEAL OF SURETY: [SURETY] By: Attorney-in-Fact (Attach Power of Attorney) (Name of Person Executing Bond) (Address) (Phone) APPROVED AS TO FORM: Patricia A. Richardson, City Attorney ORD# , 26 of 26 pages MEETING DATE: May 3,2005 ITEM# YII/ ,@ CITY OF FEDERAL WAY City Council AGENDA BILL SUBJECT: Proposed Christian Faith Center Franchise CATEGORY: BUDGET IMP ACT: D D D CONSENT RESOLUTION CITY COUNCIL BUSINESS [SJ ORDINANCE D PUBLIC HEARING D OTHER Amount Budgeted: Expenditure Amt.: Contingency Req'd: $0.00 $ $ A TT ACHMENTS: Memorandum dated April 26, 2005 to the Finance, Economic Development and Regional Affairs Committee, Proposed Franchise """""""""',,""""""" """""""""'...................................."""""""""""""""""""""""""" SUMMARYIBACKGROUND: The basic terms ofthe proposed franchise are as follows: 1. Equipment. The franchise would permit CFC to construct, maintain, repair, operate, and remove cable, voice, data, mechanical, sprinkler and fire alarm conduits. 2. Consideration. CFC will pay the City's administrative costs and expenses in preparing and approving the franchise and any permits. CFC will also relocate its facilities at the City's request, at CFC's cost, and repair any damages it causes to the right-of-way, also at its own cost. 3. Insurance. CFC will maintain insurance of $5 Million combined single limit for commercial general liability and $5 Million for automobile insurance. 4. Term. The term of the proposed franchise is 10 years, consistent with franchises the City has granted to Olympic Pipeline, for pipeline maintenance; AT&T (now Comcast), for cable; Puget Sound Energy; Tacoma Public Utilities; Weyerhaeuser, Sprint, Metromedia and Williams (for fiber optic cable); AT&T Wireless Services and VoiceStream (for wireless facilities). 5. Bond. The proposed franchise requires CFC to post a bond before commencing any work within the City to guarantee performance of construction, maintenance or repair in accordance with any permits required by this Franchise. CITY COUNCIL COMMITTEE RECOMMENDATION: Approve the proposed Franchisc. PROPOSED MOTION: "I move the proposed Franchise to second reading and approval at the next regular meeting on May 17,2005" CITY MANAGER AYPROV AL: ---~ (BELOW TO BE COMPLETED BY CITY CLERKS OFFICE) COUNCIL ACTION: 0 APPROVED 0 DENIED 0 TABLEDillEFERRED/NO ACTION 0 MOVED TO SECOND READING (ordinances only) COUNCIL BUJL # 1ST d' . rea mg Enactment reading ORDINANCE # RESOLUTION # -.?b ? K:\AGNDITEM\2005\CFC Franchise CITY OF FEDERAL WAY MEMORANDUM DATE: Apri126,2005 TO: pment and Regional Affairs Committee FROM: David H. Mo ley, ..~ y \/\/ Karen KirkpatrickyDeputy City Attorney VIA: SUBJECT: Proposed Christian Faith Center Franchise Policy Issue Should the City grant Christian Faith Center (CFC) a Franchise to construct, maintain, repair, operate, and remove cable, voice, data, mechanical, sprinkler and fire alarm conduits within and through certain Rights-of-Way and streets within the City of Federal Way? Background The basic terms of the proposed franchise are as follows: 1. Equipment. The franchise would permit CFC to construct cable, voice, data, mechanical, sprinkler and fire alarm conduits under 20th Avenue South which has not yet been constructed but will be built by CFC, allowing CFC to connect its Sanctuary and School Buildings together. 2. Consideration. CFC will pay the City's administrative costs and expenses in preparing and approving the franchise and any permits. CFC will also relocate its facilities at the City's request, at CFC' s cost, and repair any damages it causes to the right-of-way, also at its own cost. 3. Insurance. CFC will maintain insurance of$5 Million combined single limit for commercial general liability and $5 Million for automobile insurance. 4. Term. The term of the proposed franchise is 10 years, consistent with franchises the City has granted to Olympie Pipeline, for pipeline maintenance; AT&T (now Comcast), for cable; Puget Sound Energy; Tacoma Public Utilities; Weyerhacuser, Sprint, Metromedia and Williams (for fiber optic cable); AT&T Wireless Services and VoiceStream (for wireless facilities). V! 5. Bond. The proposed franchise requires CFC to post a bond before commencing any work within the City to guarantee performance of construction, maintenance or repair in accordance with any permits required by this Franchise. Options 1. Recommend approval of the Ordinance and forward to the full council for first reading at the May 3,2005 meeting. 2. Recommend rejection of the Ordinance. 3. Recommend modification of the Ordinance and forward to the full council for first reading at the May 3,2005 meeting. Staff Recommendation Approve the Ordinance and forward to the full council for first reading at the May 3, 2005 meeting. (Option 1) Committee Recommendation Forward option ì to the full City Council for placement on the May 3,2005 City Council Agenda for first reading with a "do pass" recommendation. " )L Committee Chair K:\agnditem\fedrac\CFC ordinance y2- ORDINANCE NO. DRAFT ill? I óS- AN ORDINANCE OFTHE CITY COUNCIL OFTHE CITY OF FEDERAL WAY, WASHINGTON,GRANTING CHRISTIAN FAITH CENTER A NONEXCLUSIVE FRANCHISE TO OCCUpy RIGHTS-OF-WAY OF THE CITY 'OF FEDERAL WAY, WASHINGTON, WITHIN THE SPECIFIED FRANCHISE AREA TO CONSTRUCT, MAINTAIN, REPAIR, OPERATE, AND REMOVE CABLE, VOICE, DATA, MECHANICAL, SPRINKLER AND F1RE ALARM CONDUITS WITHIN AND THROUGH CERTAIN RIGHTS OF WAY AND STREETS WITHIN THE CITY OF FEDERAL WAY. WHEREAS, Christian Faith Center has requested a franchise from the Cityo[Federal Way, in order to construct, operate and maintain cable, voice, date, and mechanical conduits through certain public rights-of-way, including 20th Avenue South; and WHEREAS, 20th Avenue South has not yet been constructed but will be constructed by Christian Faith Center a,nd will be dedicated to the City of Federal Way and the requirements of this franchise agreement will take effect upon dedication of 20th Avenue South to the City of Federal 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 Christian Faith Center; and WHEREAS, RCW 35A.47.040 pennits 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 communi~ations; 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; ORD #_--_.~---, PAGE 1 NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DOES HEREBY ORDAfN AS FOLLOWS: Section 1. Definitions Where used in this Franchise the following tcmlS shall be defined as follows: 1.1 "City" means the City of Federal Way, Washington, a municipal corporation ofthe State of Washington, and its respective successors and assigns. , 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, ofthe City of Federal Way Public Works Department. 1.4 "Facilities" means Franchisee's equipment to be located within the public right-of- way. 1.5 "FWCC" means the Federal Way City Code. 1.6 "Franchise Area" means only that portion of the 20TH Avenue South rights-of-way located in the City of Federal Way and shown in Exhibit A.I, Exhibit A.2 and Exhibit A.3 attached hereto, and/or any other areas approved by the Federal Way City Council and incorporated into this Ordinance via amendment. 1.7 "Franchisee" means Christian Faith Center, a Washington non-profit corporation, and its respective successors and assigns if consented to by the City of Federal Way as provided in Section 24 herein. 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, excavating, installing, maintaining, restoring, and repairing ORD# PAGE 2 ,.-' Facilities within the Franchise Area. This franchise is specifically limited to the tight for Franchisee to install Facilities owned and operated by Franchisee. This franchise does not permit Franchisee to lease, rent, or otherwise allow use of conduits, space or capacity provided by the Facilities to other third-party telecommunieations providers, and Franchisee covenants and agrees that it will not do so. 2.2 Acceptance by Franchisee. Franchisee shall have no rights under this Franchise, nor shall Franchisee be bound by the temlS and conditions of this Franchise, unless Franchisee shall, within sixty (60) days after the effective date of this Franchise, file with the City its written acceptance ofthis Franchise and all of its terms and conditions. Section 3. Non-Franchise Area City Propcrty This Franchise does not and shall not convey any right to Franehisee 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, aeross or otherwise use any City owned or leased property within the Franchise Area other than public roads, streets, avenues, alleys and highways. Section 4. Term Subject to Franehisee filing its acceptance pursuant to Subsection 2.2, the term of this Franchise shall be for a period often (10) years commencing on the effective date ofthis Franchise, unless tenhinated earlier pursuant to this Franchise or other applicable law. At any time not more than two (2) years nor less than one-hundred-cighty (180) days before the expiration of the Franchise tenn either party may request a renewal of the Franchise for an additional ten (10) year renewal period. Section 5. Location of Facilities 5.1 Location. The Facilities pemlitted by this Franchise shall be installed underground. ORD# --.---' PAGE 3 The location of the Facilities, including the underground Facilities and appurtenances, their depths below surface of ground or grade of a right-of-way, and any related existing equipment to which the Facilities are connected shall be depicted on a map and submitted to the City within thirty (30) days of 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 GIS Data. At such time as Franchisee develops or employs Geographic Information System ("GIS") teclmology, Franchisee shall submit the information required in Subsection 5.1 above in digital GIS format, showing the location of its Facilities within the Franchise Area. 5.3 pesign Markings. 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 of Federal Way's reasonable request, provide the location of Franchisee's underground 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. Section 6. Noninterference of Facilities Franchisee agrees to maintain its Facilities and perfonn any and all activities authorized by this Franchise: (I) so as not to unreasonably interfere with the free passage of traffic; (2) in accordance with the laws of the State of Washington and City Code 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 or not the work is perfoffiled by the Franchisee, its agents, employees, subcontractors, or other third parties at Franchisee's direction. ORD# ,PAGE4 Section 7. Requirement to Obtain Permits 7.1 Permits and Permit Applications. Franchisee shall, at its expense, obtain all permits, (including rights-of-way permits), and pay all permit fees required by applicable City ordinances, regulations, resolutions and rules prior to commencing any work within the Franchise Area. Franchisee permit applications shall show the position and location of the proposed facilities to be constructed, laid, instaHed, or erected at that time, show 'their relative position to existing rights-of-way or property lines upon prints drawn to scale, designate rights-of-way by their names and improvements, such as, but not limited to, . sidewalks, curbs, gutters, shoulders of roadway, ditches, paved roadways, roadways to property lines, turnouts, parking strips, telephone or electric distribution poles, and water pipes existing on the ground to be occupied, or as required by the Director. The Franchisee shall specify the class and type of materials to be used, equipment to be used, and mode of safeguarding and facilitating the public traffic during construction. Materials and equipment shall be in new or like-new condition for its type and kind. 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 ofthe FWCC 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). The Franchisee shall indicate on any permit application the time needed to complete the work. The time needed to complete the work is subject to approval by the City as a condition ofthe issuance of the permit or approval. 7.2 Emergency Exception to Permit Requirement. In the event of an emergency in which Franchisee's Facilities within the Franchise Area are in a condition as to immediately endanger property, or the life, health or safety of any individual, ORD# , PAGE 5 Franchisee may take action immediately to correct the dangerous condition without first obtaining any required pennit so long as: (I) Franchisee infonns the City of nature and extent of the emergency, and the work to be perfonned, prior to conunencing the work; and (2) such pennit is obtained by Franchisee as soon as practicable following cessation of the emergency. Section 8. Standard of Performance The Franchisee shall not excavate for a distance of more than one hundred feet { 1 00') without immediately backfilling and compacting to surface grade and city standards. Backfilled trench areas within a dri ving lane must be patched, either temporaril y or permanently, before the end of the work 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 pennit. Final surface restoration shall be completed within thirty (30) days and shall be equal to or better than the surface condition prior to pewit issuance. Any asphalt overlay completed within the Franchise Area during the five (5) year.period inunediatcly prior to the date of penuit application shall not be open cut by Franchisee unless required by an emergency and subject to the provisions of Subsection 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 (I) block (approximately 500 feet) in length in both directions from the open cut, unless detennined otherwise by the Director. Within fifteen (15) days of completion of any installation 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. Section 9. Survey Markers and Monuments Franchisee shall, using a licensed surveyor, inunediately replace all markers or monuments ORD# , PAGE 6 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. Section 10. Surface Markin2s/Stakes Prior to Franchisee commencing any excavation work within the Franchise Area, Franchisee shall reference aU monuments and markers relating to subdivisions, plats, highways, and other surveys. The reference points shaH 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 shaH be approved by the City before placement. The construction shaH be made as expeditiously as conditions penn it, and as directed by the City. The cost of monuments or other markers lost, destroyed, or disturbed, and the expense of replacement of the monuments, shaH be borne solely by the Franchisee. A complete set of reference notes for monuments and other tics shall be filed with the City. Section 11. Ri2ht of City to Complete Work 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 tenus of this Franchise, and such noncompliance continues for a period often (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. ff the City causes such work to be done by its own employees or by any person or entity other than Franchisee, Franchisee shaH, upon the City's written request, immediately reimburse the City for all reasonable costs and expenses incurred by the City in having such work perfonned, which costs may include the City's reasonable overhead expenses and attorneys fees. However, the ORD# , PAGE 7 City shall not have any electrical work accomplished by any person or entity other than Franchisee or a qualified and licensed electrical contractor. Section 12. Required Relocation of Facilities 12.1 City Reservation of Rights. .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 that is not inconsistent with the terms and conditions of this Franchise. The rights reserved herein include, without limitation, the constructiop, 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 improvement projects. 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. 12.2 City's Duties. In the event the City undertakes any work, including necessary maintenance within a right-of-way in which Franehisee's facilities are located, and such work necessitates the relocation of Franchisee's then existing Facilities within the Franchise Area, the City shall: (a) Provide written notice of the required relocation to Franchisee within a reasonable time prior to the commencement of such City work; and (b) Provide Franchisee with copies of pertinent portions of the City's plans and specifications so that Franchisee may relocate its Facilities to accommodate the City work. Nothing in this section shall be construed as to relieve Franchisee of its duty and obligation to relocate its Facilities, at Franchisee's sole cost, for any improvement project undertaken by, or on ORD# , PAGE 8 behalf of, the City in the interest of public health, safety, welfare, necessity or convenience, as adjudged in the sole discretion of the City. 12.3 Franchisee's Duties. Within thirty (30) days of receipt of the City notice under Subsection 12.2(a) requiring relocation and receipt of the plans and specifications pursuant to Subsection 12.2(b), Franchisee shall raise, lower, or move such Facilities within the Franchise Area at its sole cost and expense to the location or position directed by the City, to cause the least interference with the improvement, repair, or alteration contemplated by the Cìty and to confoffil to such new grades as may be established. If the City improves a right-of~way, Franchisee shall, at its sole cost and expense, upon receipt ofnotice, replace the Facilities located in the improved subgrade ofthe improvement with substitute Facilities conforming to the specifications for the improvement of the right-of-way. 12.4 The provisions of this Section shall in no manner preclude or restrict the Franchisee from making any arrangements it may deem appropriate when responding to a request for relocation of its Facilities by any person or entity other than the City, where the Facilities to be constructed by said person or entity are not or will not become City-owned, operated or maintained Facilities; provided that such arrangements do not unreasonably delay a City improvement project. Section 13. Dama2e 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 danlage, 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- ORD# , PAGE 9 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 II of this Agreement. Default Section 14. Notice of Default. In additionto other remedies set forth herein, if Franchisee shall 14.1 fail to comply with any of the provisions of this Franchise, the City may serve a written notice to Franchisee ordering such compliance and Franchisee shall havesixty (60) days from the receipt of such notice in which to comply. 14.2 Revocation of Franchise. If Franchisee is noUn compliance with this Franchise after the expiration of the sixty (60) day period, the City may, by resolution, declare the franchise immediately revoked. Section 15. Limited Rif!hts This Franchise is intended to convey only a limited right and interest to Franchisee in the Franchise Area. This Franchise is not a walTanty of title or conveyance of any ownership interest in or to the Franchise Area to Franchisee. Section 16. Eminent Domain The existence of this Franchise shall not preclude the City from acquiring by condenmation, 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 Area confelTed by this Franchise. Section 17. Vacation If at any time the City, by ordinance, vacates all or any portion of the Franchise Area, the City ORD tt ,PAGE 10 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 30 days before vacating all or any portion ofthe Franchise Area. The City may, after thirty (30) days written notice to Franchisee, tenninate this Franchise with respect to any such vacated area. Section 18. Compliance with Laws 18.1 General. 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 ofthis Franchise will control. 18.2 Future City of Federal Wav Regulation. Franchisee aeknowledges that the City may develop rules, regulations, ordinances and specifications for the use ofthe 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~ Section 19. Guarantee Franchisee shall guarantee work completed by the Franchisee under this Franchise for a period of 10 years against settlement or repair. Section 20. Chan!e for Administrative Costs Franchisee agrees to pay a fee or a charge to recover the actual reasonable administrative expenses incurred by the City that are directly related to preparing and approving this Franchise. Nothing herein shall preclude the City from charging administrative fees or recovering any administrative costs incurred by the City in the approval of permits or in the supervision, inspection ORD# ,PAGE It or examination of all work by Franchisee in the Franchise Area as prescribed in accordance with applicable provisions of the Federal Way City Code. Section 21. Indemnification Franchisee agrees to indemnify and hold hannless and defend the City, its elected officials, officers, employees, agents, and volunteers from any and all claims, demands, losses, actions and liabilities (including costs and all attorney fees) to or by any and all persons or entities, including, without limitation, their respective agents, licensees, or representatives, arising from, resulting from, or connected with this Franchise to the extent caused in part or in whole by the acts, errors or omissions of the Franchisee, its officers, partners, shareholders, agents, employees, or by the Franchisee's breach of any provisions of this Franchise; provided, however, that this section shall not be construed as requiring Franchisee to indemnify, hold harmless or defend the City against claims or damages arising from the negligence of the City, its agents or employees. In the event any claim, demand, suit or action is commenced against the City that gives rise to Franchisee's obligation pursuantto this Section 21, the City shall promptly notify Franchisee thereof. Franchisee's selection of an attorney to defend any such claim, demand, suit or action shall be subject to the City's approval, which shall not be unreasonably withheld. Franchisee shall not settle or compromise any such suit or action except with prior written consent of the City, which shall not be unreasonably withheld. The City shall have the right at all times to participate through its own attorney in any suit or action which arises pursuant to this Franchise when the City determines that such participation is required to protect the interest of the City or the public. In the event it is determined that RCW 4.24.115 applies to this Franchise, Franchisee agrees to defend, hold harmless and indemnify the City to the maximum extent permitted thereunder, to the full extent of Franchisee's negligence. ORD# ,PAGE 12 Section 22. Insurance 22.1 Minimum Limits. The Franchisee agrees to can-y as a minimum, the following insurance, in such forms and with such carriers as are satisfactory to the City. (a) Workers compensation and employer's liability msurance in amounts sufficient pursuant to the laws of the State of Washington; (b) Commercial general liability insurance with combined single limits ofliability not less than $5,000,000 for bodily injury, including personal injury or death, products liability, contractual coverage, operations, explosion, collapse, underground and property damage; and (c) Automobile liability insurance with combined single limits ofliability not less than $5,000,000 for bodily injury, including personal injury or death and property damage. 22.2 Mandatory Insurance Provisions. The comprehensive general liability insurance and automobile liability insurance policies shall be endorsed to contain the following provisions: (a) The City, its officers, elected officials, employees, and volunteers are to be named as additional insured; (b) Coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability; Coverage shall not be suspended, canceled, modified or reduced except after thirty (30) days prior written notice to the City delivered by certified mail, return receipt requested; and Coverage shall be primary as to the City, its officers, officials, employees and volunteers. Any insurance or self-insurance by the City, its officers, officials, employees or volunteers shall be in excess of Franchisee's required insurance. ORD# ,PAGE 13 22.3 Verification of Coverage. Franchisee shall furnish the City with certificates of insurance and original endorsements evidencing the coverages required by this Section. The certificates and endorsements shall be signed by a person authorized by the insurer to bind coverage on its behalf and must be received and approved by the City prior to the commencement of any work. At the City's request, Franchisee shall deliver certified copies of aU required insurance policies. Section 23. Bond Franchisee shall post a bond before commencing any work within the City to guarantee performance of constructiOh, maintenance or repair in accordance with any permits required by this Franchise. Procedures for submission and release of the bond shall be as provided in FWCC Sections 22-146 and 22-175 or as otherwise provided in the City Code. In the event that the Franchisee fails to perform as required herein or by any permits required, the City may perform the work as provided herein, and may have recourse to thebond in addition to or in lieu ofthe remedies provided herein, at the City's sole discretion. Section 24. General Provisions 24.1 Entire Agreement. This Franchise contains all of the agreements of the Parties with 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. 24.2 Modification. No provision of this Franchise may be amended or added to except by agreement in writing signed by both of the Parties. 24.3 Assignment. Franchisee shall not have the right to transfer or assign, in whole or in part, any or all of its obligations and rights hereunder without the prior written consent ofthe City. Any assignee shall, within thirty (30) days of the date of any approved assignment, file written notice ofthe assignment with the City together with its written acceptance of all tenus and conditions ORD# ,PAGE 14 of this Franchise. Notwithstanding the foregoing, Franchisee shall have the right, without such notice or such written consent, to mortgage its rights, benefits and privileges in and under this Franchise to the Trustee for its bondholders. 24.4 Attorney Fees. In the event the City or the Franchisee defaults on the perfonuance of any tenus in this Franchise, and the Franchisee or the City places the enforcement of the Franchise or any part thereof or for the collection of any monies due, or to become due hereunder, in the hands of an attorney, or files suit upon the same, the prevailing party shall be entitled to an award of all reasonable attorneys' fees, costs and expenses. The venue for any dispute related to this Franchise shall be King County, Washington. 24.5 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 anytime. 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. 24.6 Governing Law. This Franchise shall be made in and shall be governed by and interpreted inaceordance with the laws ofthe State of Washington. 24.7 Authority. 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. 24.8 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: ORD# ,PAGElS Franchisee: Christian Faith Center Attn: Ellen Kenison PO Box 98600 Seattle, W A 98198 City: City of Federal Way Attn: City Attorney 33325 8th Avenue South P.O. Box 9718 Federal Way, W A 98063 Any notices maybe delivered personally to the addressee of the notice or maybe deposited in the United Statesmail, postage prepaid, to the address set forth herein. Any notice so posted in the United States mail shall be deemed reeeived three (3) days after the date of mailing. 24.9 Captions. 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 ofthis Franchise. 24.10 Remedies Cumulative. Any remedies provided for under the ternlS 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. Section 25. Severability 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 26. Ratification Any act consistent with the authority and prior to the etTective date ofthis Franchise is hereby ratified and affirmed. Section 27. Effective Date This ordinance shall take effect and be in force 30 days from the time of its final passage, as ORD# ,PAGE 16 provided by law, provided it has been duly accepted by Franchisee as herein provided above. PASSED by the City Council of the City of Federal Way this .---- day of ,._,20_. CITY OF FEDERAL WAY MAYOR, DEAN MCCOLGAN ATTEST: . CITY CLERK, N. CHRISTINE GREEN, CMC APPROVED AS TO FORM: CITY ATTORNEY, P A TRIClA A. RICHARDSON FILED WITHTHE CITY CLERK: PASSED BY THE CITY COUNCIL: PUBLISHED: EFFECTIVE DATE: ORDINANCE NO.: ACCEPT ANCE: ORD# ~--' PAGE 17 ACCEPTANCE: The undersigned hereby accepts all the rights and privileges ofthe above granted License and acknowledges that such rights and privileges are subject to and limited by aU ofthe terms, conditions and obligations contained therein. DATED this ~ day of -' 2005. CHRISTIAN FAITH CENTER By: Casey Treat Its: President K:\CFC\Franchise\Franchise Fcdrac 4.26.05 ORD# H' PAGE 18 C> "'0"""'.....,...>,,...,.... "'20TH AVENUE .. " ...,.' - -- "'_M - 0 C> v ~ rOC -c- C>zr I 0 -liT1z oC> " -I ,- , ~. 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