Loading...
AG 05-137 /' \ \\cr DATE IN:\9\V " I DATE OUT: I TO: '. ",1,\)0 CITY OF FEDERAL WAY LAW DEPARTMENT .,' \\'"7'\ "'1 REQUEST FOR CONTRACT PREPARATION/DOCUMENT REVIEW/SIGNATURE ROUTING SLIP 1. ORIGINATING DEPT./DIV: \~ 2. ORIGINATING STAFF PERSON: EXT: 3. DATE REQ. BY: 4. TYPE OF DOCUMENT REQUESTED (CHECK ONE) o PROFESSIONAL SERVICE AGREEMENT o MAINTENANCE/LABOR AGREEMENT o PUBLIC WORKS CONTRACT o SMALL PUBLIC WORKS CONTRACT o SECURITY DOCUMENT (EG. AGREEMENT & PERFIMAIN BOND; ASSIGNMENT OF FUNDS IN LIEU OF BOND) o CONTRACTOR SELECTION DOCUMENT 5. (LESS THAN $200,000) o PURCHASE AGREEMENT) (MATERIALS, SUPPLIES, EQUIPMENT) o REAL ESTATE DOCUMENT PROlECTNAME \ tX'O,-\I(j(I ~ltf1VJ Q~4 ~\ '%z.. NAMEOF~TRAcr.OR:.~~ ~'t,)r<\~ .Q~ ADDRESS:' Y.O .- ~?.x..'" \~ ~ \\~. \ \..)..}I) Cft.cc9 TELEPHONE SIGNATURE NAME: TITLE (E.G., RFtl, RFP, RFQ) o CONTRACT AMENDMENT o CDBG , o OTHER i AG#: 6. 7. ATTACH ALL EXHIBITS AND CHECK BOXES 0 SCOPE OF SERVICES 0 ALL EXHIBITS REFERENCED IN DOCUMENT o INSURANCE CEKrI.F1CATE 0 DOCUMENT AUTIIOR IZING SIGNATURE 8. TERM: COMMENCEMENT DATE: 9. TOTAL COMPENSATION $ (IF CALCULATED ON HOURLY LASO REIMBURSABLE EXPENSE: IS SALES TAX OWED PAlO BY: 0 CONTRACTOR 0 Crr 10. CONTRACT REVIEW o PROJECT MANAGER ~DIRECTOR o RISK MANAGEMENT o LAW IN ITIALIDATE APPROVED ~ &(?4J INITIALIDATE APPROVED (P("PI, ~^'1 ~f ~ '-'7. ~ &,2{ .e no{z.r;./ f4c.-_~J,.J~/. ___._._ .. 11. CONTRACT SIGNATURE ROUTING )fJ LAW DEPARTMENT ~ CITYl'ylANAGER ~CLERK Ji. SIGN COPY BACK TO ORGINATING DEPT. - ):f ASSIGNEDAG# O?-I?/ o PURCHASING: PLEASE CHARGE TO: -tJ./~ . ~~,.! INITIALIDATE APPROVED -~.-------~.,--~,~,.,. os--~~~ 10/09/02 11 II LelVvl AG JI 05 ~/)7 PUGET SOUND ENERGY Transmittal From: Marianne McDowell To: Iwen Wang City of Federal Way P.O Box 9718 Federal Way, WA 98063-9718 Date: 7/29/05 RE: SLA - Permit for the Location of Facilities Enclosures 1) City of Federal Way- 21st SW & 325th Place - Permit for the Location of Facilities (SLA). 2) Rate Letter of Understanding 3) City of Federal Way - Master Agreement for Location of Facilities (MLA) Comments: Enclosed is a fully executed copy of the above documents for the City's files. If you have any questions please call me at (425) 462-3281. Communications Siting and Services GEN-02E (425) 462-3281 81-328/ PO Box 90868 Bellevue Wa 98009~0868 Fax:(425} 462-3149 www.pse.com + PUGET SOUND ENERGY Puget Sound Energy, Inc. POBox 90868 Bellevue, WA 98009-0868 July 11, 2005 City of Federal Way 33325 8th Ave. S P. O. Box 9718 Federal Way, WA 98063-9718 Atten: David H. Moseley Re: Location of Facilities, 2et SW & 32Sth Place site, dated .9-1 (the Permit) between Puget Sound Energy, Inc. (PS ) an City of Federal Way (the City). Dear Mr. Moseley, PSE and the City entered into a Permit for the location of a wireless facility on a PSE transmission pole # 311716-162138. The pole is located on the Starwood-Midway l15kV line along 21 st Avenue SW, Federal Way, W A. Pursuant to the Permit, Section 10 (Compensation) and Appendix 4 (Annual Fees), the $1,200.00 annual fee for this installation will be waived while the facility is used for non-commercial, governmental use. However, the $1,200.00 annual fee will apply during any period that the facility is used for commercial, non-governmental use. It will be the City's responsibility to monitor the facility's type of use and remit appropriate annual fees if and when applicable. All other terms and conditions of the Permit remain in full force and effect. 1/eJ-r/{JS / I Date: -, Date: 1 It flcJ J- / " AG 110~-/~-' ,'. ~ +PUGET SOUND ENERGY PERMIT FOR LOCATION OF FACILITIES Citv of Federal Wav - 21st SW and 32Sth Place 1. Permit. For and in consideration of the mutual benefits to be derived therefrom, PSE hereby grants pennission to (the City), subject to the terms and conditions of this Permit, to use the property described in the attached Appendix 1 (the "Site"). The rights and obligations of the City arising under this Pennit will apply to and be binding upon the City's officers, employees, agents and representatives, and its suppliers and subcontractors of any tier acting on behalf of the City in connection with the performance of the Work (as defmed below) or this Permit (collectively, the "Support"). The City shall be solely responsible for the performance, nonperformance, acts and omissions of its Support....but nothing herein shall be construed to limited or impair the City's rights with respect to its Support. 2. Use of the Site. Subject to the terms and conditions of this Permit (including, without limitation, paragraph 3.1), the City shall have the right to use the Site for the purpose of undertaking the following activities (the "Permitted Activities"): 2.1 installation, operation and maintenance of the equipment specified in the attached Appendix 2 (the "Equipment") in accordance with the site development plan attached hereto as Appendix 3 (the "Site Development Plan") and all other provisions of this Permit; and 2.2 performance of the installation, maintenance, repair, relocation, removal and other work specified in the Site Development Plan (collectively, the "Work") in accordance with the Site Development Plan and all other provisions of this Pennit; and 2.3 obtaining, at the City's sole cost and expense, telephone service from any utility company that provides such service to the Site, and arranging for the installation electrical power connections subject to PSE's right to approve the exact location of proposed utility routes and the manner of installation; and 2.4 access to and from the Site for purposes of undertaking the activities specified in paragraphs 2.1, 2.2 and 2.3, in accordance with the following: 2.4.1 access for construction, routine maintenance and repair and other non- emergency visits shall only be during normal business hours (defined as Monday through Friday, 8 am to 5 pm) unless otherwise agreed upon by the Parties; 2.4.2 in the event of emergency, the City may access the Site twenty-four (24) hours per day, seven days per week, by calling the PSE emergency telephone number set forth in paragraph 7 and requesting such access; 2.4.3 access to the Site may be by foot or motor vehicle, including trucks; and 2.4.4 access to the Site shall be subject to such reasonable conditions as may be imposed by PSE from time to time (which conditions shall be supplemental to and shall not amend the express terms of the Master Agreement and this Permit); provided, however, that (a) nothing herein or elsewhere in this Permit will (or will be deemed to) grant to the City any rights of any kind in, to or with respect to the Site which PSE is not expressly authorized to grant to the City or which otherwise are inconsistent with or greater than the actual rights of PSE in, to or with respect to the Site, and (b) all rights granted to the City herein and elsewhere in this Pennit are subject in all respects to the title and rights of third parties in the real property on which the Site is located. 3. Limitations on Use. Except and only as specifically authorized in paragraph 2, the City shall not enter upon the Site or make any use thereof. Without limiting the generality of the foregoing: 3.1 The City expressly understands and acknowledges that (a) unless explicitly and expressly stated otherwise in the attached Appendix 1, PSE does not own in fee the Site or the real property on which the Site is located, (b) nothing in this Pennit will (or will be deemed to) constitute any assignment, sublease, apportionment, delegation or other transfer or grant (in whole or in part) by PSE of any rights ofPSE under or with respect to any franchise, easement, lease, license, permit or other agreement or document relating to the Site or the real property on which the Site is located, (c) one or more third parties (e.g., governmental entities and others) may own or have rights in the Site or the real property on which the Site is located. and (d) the City is solely responsible for acquiring any and all rights from third parties that are needed to undertake any Pennitted Activity. Without limiting the generality of the foregoing, the City shall obtain and comply (and shall ensure that all of the City's Support comply) with all permits, licenses, franchises, rights-of-way, City of Federal Way 21" SW and 325lh Place Page I -4 " easements and other rights required to undertake any Permitted Activity. The City shall furnish to PSE such evidence thereof as PSE may request. 3.2 The City shall, at all times, undertake the Permitted Activities in a manner so as to prevent bodily harm to persons (whomsoever) and damage to property (whatsoever). Precautionary measures shall include, without limitation, reasonable site security measures (e.g., fencing, signage, lighting, security guards, etc.) necessary to prevent access to the Site during such times as the Permitted Activities may cause the Site to be in an unsafe or unsecured condition. 3.3 The City shall, at all times, undertake the Permitted Activities in a manner that does not disturb or interfere in any way with the operations ofPSE or any prior existing users ofthe Site, or otherwise in a manner that would impair the safe, continuous and reliable operation of PSE's utility systems or improvements. Without limiting the generality of the foregoing, the City shall at all times: 3.3.1 conduct the Permitted Activities so as to maintain legal and safe clearances from PSE's utility systems or improvements; 3.3.2 take all prudent precautions to ensure that no persons or property come into contact with PSE's utility systems or improvements; and 3.3.3 conduct the Permitted Activities so as to maintain access along and across the Site to PSE's utility systems and improvements, sufficient to allow the free passage of all equipment, vehicles, personnel and other items as may be necessary or convenient for the maintenance, repair and replacement ofPSE's utility systems and improvements. If, at any time, the Permitted Activities shall disturb, interfere with or otherwise impair the safe, continuous and reliable operation ofPSE's utility systems or improvements, the City shall immediately cease and discontinue such Permitted Activities. If the City anticipates that any Permitted Activity may disturb, interfere with or otherwise impair the safe, continuous and reliable operation ofPSE's utility systems or improvements, the City shall request in writing, not less than fourteen (14) days in advance of the date required, that PSE take such action with respect to its systems or improvements as is necessary to accommodate such Permitted Activity. PSE may elect to accommodate such Permitted Activity in response to such request; provided, however: (a) all costs and expenses incurred by PSE thereby shall be reimbursed to PSE, and (b) PSE may refuse any or all such requests or may discontinue actions undertaken in response to such requests, as PSE, in its sole discretion, may choose. 3.4 The City shall not undertake any activities and shall notuse or permit any use ofthe Site that will in any way: 3.4.1 be in noncompliance with, or otherwise conflict with, any applicable laws, regulations, ordinances, rules, orders or other requirements, now or hereafter in effect, of any governmental authority (all laws, regulations and orders required to be incorporated in agreements of this character are hereby incorporated herein by this reference); 3.4.2 cause or constitute any nuisance, noxious odors, unsafe condition or waste in or about the Site; 3.4.3 interfere with the rights or disturb the use and enjoyment ofPSE, other users of the Site, or any other person lawfully on the Site; 3.4.4 cause a cancellation, increase the premiums for or deductibles under or otherwise affect any fire, casualty, property, liability or other insurance covering the Site, any activities conducted upon or from the Site, or any accident, act, error, omission, fault, negligence or strict liability occurring on or about the Site; or 3.4.5 cause or allow the generation, storage, processing, handling, transport, spill, disposal or release of any dangerous, hazardous or extremely hazardous material, waste or substance at, upon or in any way affecting the Site (including, but not limited to, any such materials, waste or substances subject to regulation by any federal, state or local1aw pertaining to the protection of human health or the environment). 3.5 The City shall not, and shall not permit others to, install, store, maintain or operate any equipment, fixtures, improvements, supplies, vehicles or other items on the Site except for the Equipment (which Equipment shall be installed, maintained and operated at the City's sole cost, risk and expense). 3.6 If, in the judgment ofPSE, the Equipment or any Permitted Activity violates, jeopardizes or unreasonably interferes with: (a) any laws, regulations, rules, orders or other regulatory authorizations, permits or approvals that may concem PSE's present or future use and enjoyment of the Site, or (b) any proprietary rights such as any contract, permit, license, franchise, right-of-way, easement or other rights ofPSE, and the City fails to correct the problem within thirty (30) days after written notice from PSE (or such Page 2 City of Federal Way 21" SW and 32S'h Place shorter or longer period of time as is expressly required or permitted under the applicable law, regulatory authorization, permit or approval or applicable proprietary right ofPSE), PSE may require that the City immediately remove any or all Equipment from and cease any Permitted Activity at the Site. If the City fails to remove any Equipment within fifteen (15) days after PSE makes its request, PSE may remove the Equipment at the City's sole risk and expense and the City shall reimburse PSE for the entire expense thereby incurred. 3.7 The City shall timely pay all (and shall promptly secure the discharge of any liens asserted by any) persons and entities furnishing labor, equipment, materials or other items in connection with the Permitted Activities. the City shall furnish to PSE such releases of claims and other documents as may be requested by PSE from time to time to evidence such payment (and discharge). If any such persons or entities are not timely paid (or if any of such liens are not promptly discharged), PSE may make such payments (and secure such discharge) at the City's expense and the City shall reimburse PSE for the entire expense thereby incurred. Notwithstanding the foregoing, the City may contest the validity of any such lien provided that the City delivers a bond to PSE in the amount of the contested lien. 3.8 In undertaking the Permitted Activities, the City shall comply and shall ensure that all of its Support comply with all applicable industry standards and codes, and all ofPSE's standard practices, specifications, rules and regulations provided by PSE to the City on request (which practices specifications, rules and regulations shall be supplemental to and shall not amend the express terms of the Master Agreement and this Permit). the City shall furnish such documents as may be required to effect or evidence such compliance. 3.9 The City shall comply with the following in connection with its performance of the Work: 3.9.1 The City shall furnish all personnel, supervision, labor, transportation, tools, equipment and materials for performance of the Work. the City shall expeditiously and efficiently perform the Work in accordance with the Site Development Plan and the provisions of this Permit. the City shall not independently hire any PSE employee to perform any of the Work (e.g., other than in the course of his or her employment with PSE with respect to Work that PSE agrees to perform for the City). 3.9.2 The City shall perform the Work in a workmanlike and skillful manner. the City shall ensure that the Work and the Equipment is in all respects (a) safe, (b) of first class quality, (c) free from all faults and defects in workmanship, material and design, and (d) in conformance with such reasonable requirements and specifications as PSE shall from time to time_(which requirements and specifications shall be supplemental to and shall not amend the express terms of the Master Agreement and this Permit) prescribe and all laws and the regulations, orders and decrees of all lawfully constituted bodies and tribunals pertaining to the construction, operation and maintenance, including without limitation, the requirements of the latest edition of the National Electrical Safety Code. 3.9.3 The City shall promptly and satisfactorily correct or replace any Work or Equipment found to be defective or not in conformity with the requirements of this Permit. If the City fails or refuses to perform any Work required by this Permit or to make any such corrections or replacements, PSE may perform such Work and make such corrections and replacements at the City's sole risk and expense and the City shall reimburse PSE for the entire expense t.hereby incurred. 3.9.4 Installation of the Equipment or the performance of other Work shall not adversely affect the structural integrity, maintenance or marketability of the Site or any structure or improvement on or surrounding the Site. 3.9.5 The City shall ensure that all personnel who perform the Work shall be fully experienced and property qualified to perform the same. the City shall, if so requested by PSE, remove from performance of the Work any personnel (including, without limitation, any Support) whom PSE finds to be incompetent, careless or otherwise unsafe. 3.9.6 The City hereby acknowledges that PSE employs workers covered by one or more collective bargaining agreements. In the event of any actual or potential labor dispute between PSE and its workers that is, in whole or in part, based upon or otherwise arises out of the performance of the Work or this Permit, the City will cooperate with PSE and take such action as may be reasonably requested by PSE to fully and expeditiously resolve such dispute. 3.9.7 The City shall, at all times, keep the Site cleared of rubbish, refuse and other debris generated by the City or its Support and in a neat, clean and safe condition. Upon City of Federal Way 21" SW and 32S'h Place Page 3 completion of any portion of any of the Work, the City shall promptly remove all rubbish, refuse and other debris generated by the City or its Support and all of its Equipment and surplus materials. 3.9.8 The Work and the Equipment (i.e., as it relates to the Work) shall at all times be subject to inspection and testing by PSE. the City may, at its option, have a representative present at the Site during any such inspection or tcsting by PSE. If, in PSE's reasonable judgment, the performance of any Work requires one or more representatives ofPSE to be present at the Site during the performance of such Work, then the City will reimburse PSE for any and all reasonable costs and expenses thereby incurred by PSE. No inspection, test, delay or failure to inspect or test, or failure to discover any defect or non.compliance by PSE shall relieve the City of any of its obligations under this Permit. 3.9.9 The City shall promptly settle or resolve all complaints received by the City from third Parties arising out of or in connection with performance of the Work. the City shall promptly notify PSE of all such complaints and any action taken (or to be taken) in connection therewith. In handling any complaints, the City shall use its best efforts to maintain and promote good public relations for PSE. 3.9.10 The City acknowledges and anticipates that the Work may be interfered with and delayed from time to time on account of the concurrent performance of work by PSE or others. the City shall fully cooperate with PSE and others and coordinate the Work with such other work so as to minimize any delay or hindrance of any work. 3.9.11 If any part of the Work depends upon the results of other work by PSE or others, the City shall, prior to commencing such Work, notify PSE in writing of any actual or apparent deficiencies or defects in such other work that render, it unsuitable for performance of the Work. Failure of the City to so notify PSE shall constitute an acceptance by the City of such other work as suitable for performance of the Work, except as to latent defects which may subsequently be discovered in such other work. 3.10 Upon completion of Permitted Activities which may disturb the surface or subsurface of the Site (or any improvements thereon), the City shall restore the Site (and any improvements thereon) to a condition as good or better then the condition the Site (or such improvements) was in prior to such disturbance. 3.11 If, in undertaking Permitted Activities (or activities off.Site in furtherance of Permitted Activities), the City shall cause significant public concern with or opposition to its proposed use of the Site, and PSE shall reasonably conclude that such public concern or opposition will materially interfere with its use of the Site or otherwise with the conduct ofPSE's business, then PSE may direct the City to cease and desist such acts (or omissions) giving rise to such public opposition or concern. 3.12 The City shall copy PSE's l' &D Planning & Analysis Department Director on all notices and other correspondence received or given by the City in connection with any local jurisdiction review process involving any Permitted Activities undertaken or proposed to be undertaken by the City at the Site. 4. Eauipment. Structures and Facilities. 4.1 The City shall maintain all Equipment on the Site in good and safe condition and in a manner that does not materially affect the structural integrity of any structure on the Site. If the City fails to do any maintenance within thirty (30) days after receipt of notice from PSE requesting such maintenance, then PSE may, at its option, do such maintenance at the City's expense and the City shall reimburse PSE for the entire expense thereby incurred. If the City commences the requested maintenance within thirty (30) days after any written notice from PSE requesting such maintenance and thereafter continuously and diligently pursues and completes such maintenance, then the thirty (30) day cure period will extend for an additional sixty (60) days to permit the City to complete the requested maintenance. 4.2 PSE shall at all times during the Term of this Permit, at PSE's sole cost and expense, maintain any PSE.owned structures used by the City for Permitted Activities in a structurally good and safe condition. If the City is unable to use such structure due to PSE's maintenance activities, the City may immediately install temporary Equipment on any alternate location specified in the Site Development Plan while PSE makes repairs to the Site. 4.3 IfPSE at any time relocates, replaces or removes any pole, tower or other facility or structure on which any Equipment is attached, or PSE otherwise determines' in its reasonable judgment that any Equipment must be removed or relocated to accommodate PSE's use of or activities on the Site, then the City City of Federal Way 21't SW and 325th Place Page 4 ~ shall, at its sole cost and expense, remove or relocate such Equipment at such times and in the manner directed by PSE. lfthe City fails to remove or relocate its Equipment within one hundred eighty (180) days (or such shorter period of time as PSE may reasonably require under the circumstances) after being directed to do so by PSE, PSE may remove or relocate the Equipment at the City's sole risk and expense, and the City shall reimburse PSE for the entire expenses thereby incurred. 4.4 In the event the City is pennitted to and does install any pole, tower or other structure as part of the Equipment on the Site, PSE shall have the right, subject to such reasonable rules and requirements as the parties may agree upon in writing, to install one or more items of equipment on such pole, tower or other structure for PSE's internal purposes only, provided that the pole, tower or structure in question is structurally capable of bearing the weight ofPSE's equipment. Such installation and use shall be at PSE's cost and expense, but the City shall not levy any charge or fee for PSE's use thereof. 5. NonexcIusivitv. This Permit is nonexclusive, and PSE may grant rights to others to use the Site for any purpose not inconsistent with the City's rights hereunder, including competing telecommunications companies. PSE does not warrant title to the Site and shall not be liable for defects thereto or failure thereof. Without limiting any other provision of this Permit, the City will promptly resolve technical interference problems with other radio communications equipment located at the Site on the date of this Permit or any radio communications equipment located at the Site on any future date when the City modifies or supplements its Equipment at the Site. 6. Cooperation of PSE. PSE shall, at the City's expense, support the City's efforts to secure any documents or applications required (Le., by virtue ofPSE's ownership of or rights in the Site) to be obtained by the City from any governmental agency with jurisdiction in order for the City to obtain the necessary licenses, permits or other approvals from such governmental agency for the Pennitted Activities; provided, however, that PSE shall not under any circumstances be obligated to execute any application or other document that, in PSE's sole judgment, will in any way impair, limit or adversely affect PSE' s rights in or ownership or use of the Site, nor shall PSE be obligated to provide such support if the same requires a commitment of resources of any kind ofa value in excess of five hundred dollars ($500.00). 7. Emerl!encies. In the event of an emergency relating to the Equipment or the Site, the City shall immediately correct any safety or use problems, even if full repair cannot be made at the time, in order to protect persons and property or to allow use of the Site. The Parties' respective emergency phone numbers are as follows: PSE: 1 (800) 448-8930 City of Federal Way: Each Party shall promptly notify the other of any change in such party's emergency phone number. 8. Ownership and Risk of Loss of Eauipment. 8.1 The Equipment located at the Site pursuant to the terms of this Permit will at all times be and remain the property of the City and will not be subject to any lien or encumbrance created or suffered by PSE. the City has the right to make such filings with the Washington State Department of Licensing (e.g., UCC-1 Financing Statement) as it deems necessary or desirable to evidence its ownership of the Equipment. Notwithstanding the foregoing, if, upon termination or expiration of the Term, the Equipment is not removed from the Site and the Site restored according to the terms of this Permit, such Equipment shall be deemed abandoned ninety (90) days following such termination or expiration and PSE's waiver of lien shall thereafter be void and of no further force and effect. 8.2 The City shall be responsible for and shall bear any and all risk ofloss, deterioration, theft, vandalism or destruction of or damage to the Equipment and anything used (or to be used or consumed) in connection with the Work. 9. Examination of Records. The City shall promptly furnish PSE with such information related to the Work or the Equipment as may from time to time be reasonably requested by PSE. Until the expiration of three (3) years after the termination ofthe Term, PSE shall have access to and the right to examine and copy all of the City's books, documents, papers and records which are related to the Work, the Equipment or this Permit during regular business hours and after 10 days written notice to the City. 10. Compensation. 10.1 The "Annual Fee" shall mean the annual fee for the City's use of the Site as calculated in accordance with the schedule set forth in the attached Appendix 4 and the following: City of Federal Way 21st SW and 32Sth Place Page S 10.1.1 the Annual Fee will be payable on or before the date of this Permit and thereafter on the fIrst day of the fIrst month following each anniversary of the commencement date of the Master Agreement, and 10.1.2 the Annual Fee will be prorated in the fIrst and last year of this Permit to coincide with the anniversary of the commencement date of the Master Agreement, except that the Annual Fee for the Site will continue past any termination of the Term of this Permit if and until all of the Equipment is removed from the Site and restoration of the Site has occurred according to the provisions of this Permit. 10.2 PSE shall invoice the City for all amounts payable by the City to PSE under this Pennit (including, without limitation, the Annual Fees and all reimbursable costs and expenses described elsewhere in this Permit) as they become due. the City shall pay each such invoice in full within thirty (30) days after the City's receipt thereof. 10.3 The City acknowledges that late payment of any fee or other amounts due to PSE under this Permit will cause PSE to incur certain administrative, processing accounting costs not otherwise contemplated by this Permit, the exact amount of which will be extremely difficult, if not impossible, to ascertain. Accordingly, if any fee or other amounts shall not be received by PSE within thirty (30) days after such amounts shall fIrst become due, the City shall pay to PSE a late charge, as liquidated damages and not as a penalty, equal to two percent (2%) of such overdue amounts as a reasonable estimate of the administrative, processing and accounting costs PSE will incur by reason of late payment by the City. Such late charge is intended to be in lieu of the City's liability for such costs, but shall not relieve or release the City from liability for any other costs or damages suffered by PSE by reason of late payment. Payment of such late charge shall in no event excuse or cure any default under or breach of this Permit by the City. 10.4 In addition to any late charge levied under this Permit, the City shall pay to PSE interest, compounded daily, at the rate of one percent (1 %) per month or the maximum rate permitted by applicable law, whichever is less, on any fees or other amounts not paid to PSE when due under this Permit, from the date due until the date paid. Payment of such interest shall not excuse or cure any breach of or default under this Permit by the City. 11. Taxes. The City shall pay (except as otherwise required by law) all fees and taxes applicable to or incurred in connection with the Work, the Equipment or the system of which the Equipment constitutes a part. Subject to the foregoing, PSE shall pay all taxes and other fees or charges attributable to each Site (including, without limitation, debt and ground lease obligations). 12. Site AcceDtance. 12.1 The City will be deemed to have accepted the Site upon execution of this Site Permit. Conducting feasibility and cost assessments or other preliminary inspections on the Site prior to execution of this Site Permit shall not be deemed to be acceptance. 12.2 Acceptance of the Site by the City in accordance with paragraph 12.1 shall be conclusive evidence that the City: 12.2.1 accepts the Site as suitable for the Permitted Activities; 12.2.2 accepts the Site and any structure on the Site and every part and appurtenance thereof "AS IS," "WHERE IS" and "WITH ALL FAULTS AND DEFECTS"; and 12.2.3 releases, and waives all claims against, PSE in respect of defects in the Site and its structures and appurtenances, their habitability or suitability for any permitted purposes, except as expressly provided otherwise in this Agreement. 12.3 PSE does not warrant the title of the Site (or the real property on which the Site is located) or the suitability of the Site for the purposes for which the City may desire to use it (including, without limitation, the Permitted Activities); nor does PSE warrant the adequacy of the title, location or condition of the Site (or the real property on which the Site is located), or the title or condition of any structure or appurtenances for any purpose. the City acknowledges that, in accepting the Site (and the underlying real property and any and all structures thereon used by the City for Permitted Activities) in its "AS IS," "WHERE IS" and "WITH ALL FAULTS AND DEFECTS" condition, PSE makes no representations or warranties whatsoever concerning the Site, the underlying real property and/or such structures, or any aspect of their title, status or condition, and that the City is not in any way relying on information disclosed by PSE with respect thereto, or otherwise in PSE's possession with respect thereto; rather, the City is solely relying on its own inspections and assessments with respect to the title, condition or status of the Site, the underlying real property and/or such structures. City of Federal Way 21st SW and 32Sth Place Page 6 13. Term and Termination. 13.1 The term of this Permit (the "Term") will commence on the date of this Permit and, unless earlier terminated as provided elsewhere in this Permit, will end on the tenth (10th) anniversary of the date of this Permit; provided that the Term will thereafter automatically renew for successive periods offive (5) years each unless either party gives the other party written notice oftermination at least sixty (60) days prior to the end ofthe then-current Tenn. 13.2 The Term will terminate automatically upon the first of the following to occur: 13.2.1 the term of the Master Agreement at any time expires or is terminated for any reason; 13.2.2 any certificate, permit, license or approval affecting the City's ability to use the Site in the manner originally intended by the City is finally rejected; or 13.2.3 any previously issued certificate, permit, license or approval affecting the City's ability to use the Site is canceled, expires, lapses, or is otherwise withdrawn or terminated by the applicable governmental agency. 13.3 PSE may at any time terminate the Term and all of the City's rights to use the Site upon: 13.3.1 sixty (60) days' prior written notice to the City if any Permitted Activity unreasonably interferes with (a) PSE's or any other prior existing user's use of the Site, or (b) access to or around the Site or any structure adjacent to the Site by PSE or any other prior existing users of PSE's property on or adjacent to the Site, or 13.3.2 the occurrence of any Event of Default. 13.4 The City may terminate the Term upon thirty (30) days prior written notice to PSE if the City is unable for technical reasons, all due solely to changes in the physical condition of the Site, to use the Site for Permitted Activities. 14. Default. 14.1 The occurrence of anyone or more of the following events constitutes an "Event of Default" by the City under this Permit: 14.1.1 the City undertakes any activities on the Site other than the Permitted Activities; 14.1.2 the City fails to pay when due the full amount of any fee or other payment under this Permit, where such failure continues for fifteen (15) days after written notice thereof by PSE to the City; 14.1.3 the City fails to cure any other default under or breach of any provision of this Permit (i.e., other than a default or breach covered by paragraph 11.1.1) within thirty (30) days after PSE gives the City written notice of such default or breach; except such thirty (30) day cure period will be extended as reasonably necessary to permit the City to complete cure so long as the City commences cure within the thirty (30) day cure period and thereafter continuously and diligently pursues and completes such cure; 14.1.4 two (2) or more defaults by the City in the payment of any fee or other payments under the Permit which would allow PSE to issue a notice of default in any twelve (12) month period, which such occurrence will constitute a noncurab1e material default and breach of this Permit; 14.1.5 the City deserts, abandons, or vacates any portion of a Site and fails to maintain any and all Equipment remaining at the Site. 14.2 If an Event of Default occurs, PSE (without notice or demand except as expressly required above) may, in addition to any other right or remedy to which PSE may be entitled under this Permit or applicable law, recover from the City an amount equal to the sum of the following: 14.2.1 the actual costs of removing the Equipment and restoring the Site to its original condition; 14.2.2 the Annual Fees for the Site until such time as the Site is restored to its original condition, plus interest thereon from the date due until paid according to the terms of this Permit; 14.2.3 the amount by which the Annual Fees that PSE would have received under this Permit for the remainder of the Term after the date of termination exceeds the amount of the fair market rental value for the remainder of the Term that the City proves could be reasonably avoided, City of Federal Way 21" SW and 325'h Place Page 7 discounted at the discount rate on the date oftennioation of the Federal Reserve Bank of the federal reserve district where the Site is located plus one percent (1 %); and 14.2.4 all other sums of money and damages to which PSE may be entitled hereunder or under applicable law. 15. Effect of Termination. Within thirty ninety (90) days after termination of the Term, the City shall remove all Equipment from the Site and restore the Site to its original condition except for reasonable use, wear and tear. The City will repair any damage to the Site caused during the removal of the Equipment. Following expiration of the above period, PSE shall furnish to the City a list of any removal, restoration, repair or other work that remains to be completed at the Site as required by the first two sentences of this Section 15. The City will thereafter complete the work specified on the list within ten (to) days after receipt of the list from PSE, or within a reasonable period of time that does not exceed a maximum of thirty (30) days if such work cannot reasonably be completed within to days. Ifthe City shall fail to complete the specified work within the ten (10) day period (or longer period as provided for herein), PSE may complete the work, or have the work completed through the most expeditious means available, at the City's sole risk and expense and the City shall reimburse PSE for the entire expense thereby incurred. 16. Release. Indemnitv. Hold Harmless and Limitation of LiabiIitv. 16.1 The City releases and shall defend, indemnify and hold harmless the Indemnitees from any and all claims, losses, costs, liabilities, damages and expenses (including, but not limited to, reasonable attorneys' fees) arising (whether before or after termination of the Term) out of or in connection with the conduct of the Permitted Activities (including, without limitation, the location of any Equipment at the Site, the performance of the Work, or the operation of the Equipment or the system of which the Equipment is a part), the enforcement of this Permit by PSE, any default under or breach of this Permit by the City or the acts or omissions of the City or any of its Support, the respective successors and assigns of the City or any of its Support, the directors, officers, employees and agents of each of the foregoing, or anyone acting on the City's behalf in connection with this Permit. To the fullest extent pennitted by applicable law, the foregoing release, indemnity and hold harmless shall apply regardless of any act, omission, fault, negligence or strict liability of the Indemnitees; provided, however, that the City shall not be required to so indemnify any Indemnitee(s) against any claim, loss, cost, liability, damage or expense to the extent the same is caused by or results from the negligence or willful misconduct of any Indemnitee(s). In connection with any action to enforce this paragraph 17.1, the City waives any immunity, defense, or protection under any workers' compensation, industrial insurance or similar laws (including, but not limited to, the Washington Industrial Insurance Act, Title 51, of the Revised Code of Washington). PSE is willing to permit the Equipment on the Site for the fees described in this Permit only in consideration of and in reliance upon such release, indemnity and hold hannless. Consequently, such release, indemnity and hold harmless shall be construed broadly in favor of the Indemnitees. 16.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS PERMIT, PSE SHALL NOT HAVE ANY LIABILITY TO THE CITY FOR ANY: LOSS OF PROFIT OR REVENUE, LOSS OF USE OF THE EQUIPMENT OR THE SYSTEM, CLAIMS OF CUSTOMERS OF THE CITY FOR SERVICE INTERRUPTIONS, OR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, ECONOMIC OR CONSEQUENTIAL DAMAGES, AS A RESULT OF OR RELATED TO THE EQUIPMENT, THE EXISTENCE OF THE EQUIPMENT AT THE SITE, OR THIS PERMIT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY) OR OTHERWISE, EVEN IF PSE HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME. 16.3 NOTWITHSTANDING ANY OTHER PROVISION OF THIS PERMIT, the City SHALL NOT HAVE ANY LIABILITY TO PSE FOR ANY LOSS OF PROFIT OR REVENUE, CLAIMS OF CUSTOMERS OF PSE FOR SERVICE INTERRUPTIONS, OR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, AS A RESULT OF OR RELATED TO THE EQUIPMENT, THE EXISTENCE OF THE EQUIPMENT AT THE SITE, OR THIS PERMIT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY) OR OTHERWISE, EVEN IF THE CITY HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME. 16.4 PSE'S LIABILITY (WHETHER IN TORT, CONTRACT OR OTHERWISE AND NOTWITHSTANDING ANY F AUL 1', NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY OF PSE) UNDER THIS PERMIT OR WITH REGARD TO THE SITE SHALL IN NO EVENT EXCEED THE COMPENSATION ACTUALLY PAID TO PSE UNDER City of Federal Way 21" SW and 32Sth Place Page 8 THIS PERMIT WITH RESPECT TO THE SITE, EXCEPT TO THE EXTENT OF PROVEABLE, ACTUAL DAMAGES DUE TO THE ACTS OR OMISSIONS OF PSE. 17. Worker's Compensation. Insurance and Bonds. 17.1 The City shall ensure that the City and all persons undertaking any Permitted Activities, including without.1imitation the City's Support, maintain in effect at all times, coverage or insurance in accordance with the applicable laws relating to worker's compensation and employer's liability insurance (including, but not limited to, the Washington Industrial Insurance Act and the laws of the state in which any such person was hired), regardless of whether such coverage or insurance is mandatory or merely elective under the law. The City shall furnish to PSE such assurance and evidence of such coverage or insurance (such as copies of insurance policies and Certificates of Compliance issued by the Washington State Department of Labor and Industries) as PSE may request. 17.2 The City shall secure and maintain in effect at all times during the Term the following insurance: 17.2.1 fire insurance, with endorsements for extended coverage vandalism and malicious mischief, on the Site, in an amount not less than ninety percent (90%) of the full replacement cost of the Site (including without limitation, all equipment and facilities located thereon); and 17.2.2 Commercial General Liability Coverage, including personal injury, bodily injury, property damage, operations hazard, independent contractor coverage, contractual liability, products and completed operations liability and stop gap coverage, in limits not less than five million dollars ($5,000,000) for each occurrence (combined single limit) with the City named as insured therein and PSE named as an additional insured therein as their respective interests may appear. 17.3 Unless otherwise approved by PSE, all required insurance is to be placed with insurers with a Best's rating of no less than A: VIII. Prior to commencement of performance of any of the Work, the City shall deliver to PSE a Certificate of Insurance and copies of all endorsements naming PSE as additional insured. All policies must contain an undertaking by the insurers to notify PSE in writing not less than thirty (30) days before any material change, reduction in coverage, cancellation or termination of the insurance. the City and PSE will each year review the limits for the insurance policies required by this Permit. Policy limits will be adjusted to proper and reasonable limits as circumstances warrant, but policy limits will not be reduced below those stated in paragraph 17.2 and no increases in the policy limits will be effective unless the City and PSE mutually agree. 17.4 The City shall also furnish PSE with such additional assurance and evidence of such insurance (such as copies of all insurance policies) as PSE may from time to time request. Within thirty (30) days after any notice of termination, cancellation, expiration or alteration in any policy of insurance required under this Permit, the City shall deliver to PSE a Certificate of Insurance acceptable to PSE with respect to any replacement policy. 17.5 The City shall ensure that any policies of insurance that the City or any of its Support carry as insurance against property damage or against liability for personal injury (including death) or property damage shall include a provision therein providing a waiver of the insurer's right to subrogation against the Indemnitees. To the extent permitted by its insurance policies, the City hereby waive all rights of subrogation against the Indemnities. 17.6 All insurance carried by the City or any of its Support shall be primary insurance with respect to the interests ofPSE, and any insurance or se1f.insurance maintained by PSE is in excess and not contributory insurance with the insurance required hereunder. 17.7 The requirements of this Permit as to insurance and acceptability to PSE of insurers and insurance to be maintained by the City are not intended to and shall not in any manner limit or qualify the liabilities and obligations of or assumed by the City under this Permit. 18. Assie:nment. Successors and Assie:ns. 18.1 The City shall not assign this Permit or any portion of its rights in this Permit, and shall have no right to sublet or grant any easement, license or other rights with respect to the Site, except that the City may assign this Permit as follows: 18.1.1 to any person or entity that controls, is controlled by or under common control with the City (the "Acquiring Affiliate"); provided that the City gives PSE written notice ofany such assignment or transfer and pays all amounts then outstanding and owing to PSE under this Permit; provided further that the Acquiring Affiliate certifies to PSE in writing (and provides such documents as may be requested by PSE to establish to PSE's sole satisfaction) that the Acquiring Affiliate (i) will City of Federal Way 21st SW and 32S'h Place Page 9 assume all of the obligations of the City under this Permit, and (ii) is financially able to and will comply with all of the provisions of this Pennit; and provided further that the City furnishes to PSE such infonnation regarding the Equipment affected by such assignment or transfer as may reasonably be requested by PSE; 18.1.2 to the City's 1ender(s) for security purposes in connection with the financing and refinancing, from time to time, by the City, provided that upon any transfer pursuant to any foreclosure of such security or any sale or other transfer in lieu of such foreclosure the person or entity acquiring the interests subject to such transfer assumes all of the obligations of the City under this Permit; or 18.1.3 to any other person or entity with the prior written consent ofPSE. 18.2 Except as specifically provided in paragraph 18.1, any assignment or apportionment, or purported assignment or apportiomnent of this Pennit, whether it be express, by operation of law or otherwise, shall be voidable by PSE. In any event, no assignment or apportionment of this Permit shall relieve the City from any of its liabilities or obligations under this Permit. Subject to the foregoing restrictions on assignments without the prior written consent ofPSE, this Permit shall be fully binding upon, inure to the benefit of and be enforceable by the successors and assigns of the respective Parties hereto. 19. Casualtv or Condemnation of the Site 19.1 If there is a casualty to any structure upon which the Equipment is located, PSE will use reasonable efforts to repair or restore the structure within sixty (60) days. Upon completion of such repair or restoration, the City will be entitled to reinstall the Equipment. In the event such repairs or restoration will, in PSE's reasonable estimation, require more than sixty (60) days to complete: 19.1.1 the City or PSE will be entitled to terminate the Term; or 19.1.2 unless the Term is terminated as provided in paragraph 19.1.1, the City may immediately install temporary Equipment, including any necessary supporting structure, (a) at the Site, or (b) at another unused portion of PSE' s property adjacent to the Site, to the extent the City has the rights to do so, while PSE makes repairs to the Site and so long as the temporary Equipment and associated Work does not interfere with PSE's own restoration and operation of its facilities. 19.2 If there is a condemnation of the Site, including without limitation a transfer of the Site by consensual deed in lieu of condemnation, then the Term will terminate upon transfer of title to the condemning authority, without further liability to either Party under this Permit. the City may pursue a separate condemnation award for the Equipment and any relocation or other costs from the condemning authority provided that such award does not reduce the amount of PSE's award. 20. Subordination. 20.1 The City agrees that this Permit is subject and subordinate at all times to the lien of all mortgages and deeds of trust securing any amount or amounts whatsoever which may now exist or hereafter be placed on or against the Site or on or against PSE's interest or estate therein, and any underlying ground lease or master lease on a particular Site, all without the necessity of having further instruments executed by the City to effect such subordination. 20.2 This Permit is further subject to any and all restrictions or other terms or conditions contained in the underlying ground lease, master lease, easement, license, franchise, permit or other instrument of authorization or conveyance (an "Instrument") with respect to the Site. the City agrees to commit no act or omission which would constimte a violation of the terms and conditions of any Instrument for the Site insofar as PSE has provided a copy of such Instrument to the City or otherwise notified the City of the term or condition in question. 20.3 PSE shall not be required to obtain any consent required under any Instrument from the landlord or other party to such Instrument for purposes of this Permit, unless hereafter agreed upon by PSE in writing. 20.4 If a restriction contained in an Instrument for the Site prevents the City from installing, maintaining or operating the Equipment or accessing the Site, the City will be entitled to terminate the Term without liability on the part of the City for such termination (but without limiting in any way the City's liability under this Pennit or otherwise for activities undertaken prior to such termination or for obligations which, under the express terms of this Permit, survive such termination. City of Federal Way 21" SW and 32Sth Place Page 10 20.5 Upon the tennination or expiration of any Instrument with respect to the Site, the Tenn shall automatically tenninate without liability to either Party. the City acknowledges that many ofPSE's underlying Instruments grant to the property owner the right to tenninate such Instruments, and that in the event of such tennination, the Tenn shall terminate concurrently therewith without liability to either Party. 20.6 Upon any sale or other transfer of all or any portion of the Site, the Term will automatically terminate except to the extent the purchaser or transferee and the City enter into an agreement for the City's continued use of the Site and release PSE from any further obligation or liability with respect to the Site. PSE shall have no obligation to request or obtain such agreement from the purchaser or transferee. 20.7 PSE will not materially breach the terms or conditions of any Instrument with respect to a particular Site in a manner that causes the City to lose its use of the Site. 21. Notices. Any notice, request, approval, consent, instruction, direction or other communication given by either PSE or the City to the other under this Pennit shall be in writing and shall be delivered in person or mailed, properly addressed and stamped with the required postage, to: If to PSE: Puget Sound Energy P.O. Box 90868 GEN-02E Bellevue, W A 98009-0868 Attn: Communications Siting & Services With copy to: Puget Sound Energy 10885 NE 4th Street - PSE10N Bellevue, W A 98004 Attn: Real Estate If to the City: City of Federal Way P.O. Box 9718 Federal Way, WA 98063~9718 Atten: Madri Sadri, Information Services Manager Either Party may from time to time change such address by giving the other party notice of such change in accordance with the provisions of this paragraph 21. 22. No Partnership. This Pennit shall not be interpreted or construed to create an association, joint venture or partnership between the Parties or to impose any partnership obligations or liability upon either Party. Neither Party shall have any right, power or authority to enter into any agreement or undertaking for or on behalf of, to act as or be an agent or representative of, or to otherwise bind the other Party. 23. Attornevs' Fees. The prevailing Party in any suit, action, or arbitration filed or held concerning this Permit shall be entitled to recover, in addition to all other relief, its reasonable attorney's fees incurred in cOIUlection therewith, both at trial and on any appeal. 24. Severability. The invalidity or unenforceability of any provision of this Permit shall not affect the other provisions hereof, and this Permit shall be construed in all respects as if such invalid or unenforceable provisions were omitted. 25. Survival. All provisions of this Permit which may reasonably be interpreted or construed as surviving the completion, termination or cancellation of the Term or this Permit, shall survive the completion, termination or cancellation of the Term or this Permit. 26. Headinl!s. The headings of sections and paragraphs of this Permit are for convenience of reference only and are not intended to restrict, affect or be of any weight in the interpretation or construction of the provisions of such sections or paragraphs. 27. Nonwaiver. The failure of either Party to insist upon or enforce strict performance by the other Party of any of the provisions of this Pennit, or to exercise any rights under this Permit, shall not be construed as a waiver or relinquishment to any extent of its right to assert or rely upon any such provisions or rights in that or any other instance; rather, the same shall be and remain in full force and effect. 28. Force Maieure. If a Party is delayed or hindered in, or prevented from performance required under this Permit (other than any delay or failure relating to payment of money, including, without limitation, the AIUlual Fees and all reimbursable costs and expenses described elsewhere in this Permit) by reason of earthquake, landslide, strike, lockout, labor trouble, failure of power, riot, insurrection, war, acts of God or other City of Federal Way 21't SW and 325th Place Page 11 reason of like nature not the fault of the such Party, such party is excused from such performance for the period of delay. The period for the perfonnance of any such act shall then be extended for the period of such delay. 29. Memorandum of Use. Neither Party shall record this Permit or otherwise cause this Permit to be recorded. 30. Entire Al!reement. The rights and obligations of the Parties hereunder shall be subject to and governed by this Pennit. This Permit sets forth the entire agreement of the Parties, and supersedes any and all prior agreements, with respect to the Equipment, the Work, the Site and other subject matter of this Pennit. This Pennit may not be modified except by a writing executed contemporaneously herewith or subsequent hereto signed by both Parties. 31. ADDlicable Law. This Permit shall in all respects be interpreted, construed and enforced in accordance with the laws of the State of Washington. 32. Miscellaneous. As conditions to approval of this Permit, the following also apply: ll:!...Any comments and conditions noted during PSE's review process. 32.2 A list of materials and equipment provided to PSE in advance of construction. 32.3 An on site pre-construction meeting shall be scheduled prior to construction and as~built drawings and color photos showing the completed installation (pole and base equipment) shall be provided after completion of construction. 32.4 Access to the antenna will be restricted to PSE personnel. All work on the pole shall be performed by PSE crews and all necessary outages shall be coordinated by PSE for the pole, antenna installation, and future maintenance. Depending on the time of year scheduling of outages may cause unforeseen delays in construction and/or maintenance of the facility. 32.5 If the PSE pole or any of its facilities are to be located on private property for which PSE does not have an existing, or adequate easement, then the City will need to acquire this new easement for PSE prior to construction. 32.6 The City shall provide PSE a copy of the requirements for the pole including antenna types, sizes and loadings, mounting hardware attachments for antenna mountings, locations of all antenna and any other requirements with all costs being paid by the City as provided for herein. The ownership of the pole shall vest in PSE. PSE will also detennine the area available, if any, for the City's use. In the event PSE decides that the space required by the City cannot be provided, or that due to construction or outage concerns siting a facility is not suitable, PSE may withhold site approval. PSE: Puget Sound Energy, Inc. - S'U By: It: City Manager Its' Date Signed: o/tft r Title) J I Date Signed: 7/ t9-i/ ~ ! I Address: P.O. 90868 PSE-lOS Be11evue, W A 98009-08668 Atto: Real Estate De artment Address: 33325 8'h Ave. S P.O. Box 9718 Federal Wa , WA 98063-9718 atricia A. Richardso Federal Way City Attorney "'AmErY / I Ai~~:i~ N. Christine reen Federal Way City Clerk City of Federal Way 21" SW and 325'h Place Page 12 LIST OF APPENDICES TO GENERAL CONDITIONS OF SITE PERMIT Appendix 1 2 3 4 5 Title Site Equipment Site Development Plan Annual Fees Certificate of Insurance City of Federal Way 21't SW and 32Sth Place Page 13 APPENDIX 1 Site The Site is a PSE transmission pole #311716-162138 located in the ROW on 21" Ave. SW near the intersection with SW 325'h Place, Federal Way, W A. City of Federal Way 21 sl SWand 32Sth Place Page 14 APPENDIX 2 EauiDment A list of material and equipment shall be provided to PSE in advance of construction for PSE's review. This permit is issued subject to the submittal ofa detailed description of the material and supplies to be located on the Site. City of Federal Way 21 st SW and 325th Place Page 15 '~ . APPENDIX 3 Site Development Plan The proposed site consists of installing the City's wireless facilities onto the existing wood pole. The City is collocating their facility on a pole that currently has a Sprint wireless facility (Twin Lakes #SE63XC311), and an AMR site. It will be the City's responsibility to coordinate any separation issues with Sprint. See Site and As-built Drawings. City of Federal Way 21'1 SW and 325t~ Place Page 16 ~,~ " APPENDIX 4 Annual Fees I. DEFINITIONS Notes: . Cost of utilities to service the permitted use to be borne by the City. . Cost of new poles/structure for the City's facilities to be borne by the City. . It is understood that the City will secure such additional rights as needed for its facilities. In accordance with the terms of the Master Agreement, the Annual Rental Rate for the Site is $1.200.00/annuallv. See Master Agreement for treatment of Escalation and Rent Adjustments: City of Federal Way 21,t SWand 32S'h Place Page 17 ~ .PUGET SOUND_ ENERGY City of Federal Way Master Agreement 6-27-05 MASTER AGREEMENT FOR LOCATION OF FACILITIES BETWEEN PUGET SOUND ENERGY, INC. AND CITY OF FEDERAL WAY, A WASHINGTON MUNICIPALITY DATED 7-cJ7 , 2005 ~ CONTENTS Section 1. Scope ..,.,. ..........,......... ............ ............. ..............,................."............................. 1 Section 2. Site Permits ......,.......................................... ........... ............................................ 2 Section 3. Site Permit Submittal and Approval........ ......... .................... ..................... ......... 2 Section 4. Reimbursement..,...........................,...........,....................... ................................, 3 Section 5. Term ......"................. ................ ........ .................".. .....,.... .......................... .......,. 5 Section 6. Assignment; Successors and Assigns ................................................................. 5 Section 7. Entire _A.greement .............n'................,........................... ............ ....................... 6 Section 8. Severalty .................... ........ ........................................ ....... ..........,... .................... 6 Section 9. Survival...................... ........................... ............................ .............. .......,........... 7 Section 10. Headings..................... ..................................... .................... .............................,. 7 Section 11. Nonwaiver ...... ......... ,.. ........,.... .............. .......,.............. .... .... ........ .... .... .....,......... 7 Section 12. Notices and Other Communications ...... ................. ........................... ................ 7 Section 13. Regulatory Approvals ................. ...........................,. ................... ............ ........... 7 Section 14. Representation by Counsel ........................ ............. ................ ................. ........... 7 Section 15 . Force Majeure ,.......... ................ .,.........................,.......,.......,...............,............. 7 Section 16. Applicable Law ,. ........, ..........,.,............. .......... ............................ ........ ............... 8 City of Federal Way Master Agreement 6-27-05 Page i MASTER AGREEMENT FOR LOCATION OF FACILITIES CITY OF FEDERAL WAY This Agreement, dated as of . 2005, is made by and between Puget Sound Energy, Inc., a Washington corporation ("PSE"), and the City of Federal Way ("the City"). PSE and the City are at times referred to herein where appropriate individually as a "Party" and collectively as the "Parties". Recitals A. PSEis an investor-owned utility operating in the State of Washington. B. City of Federal Way is a municipal corporation operating in the State of Washington. c. PSE has an interest in certain property identified in the attached Exhibit A, as the same may be amended from time to time by mutual written agreement of the Parties (individually, a "Proposed Site" and collectively, the "Proposed Sites"). D. The City wishes to use one or more of the Proposed Sites for purposes of locating Wireless antenna and related equipment and related facilities (the "Equipment"). E. PSE is willing to permit the City to use a Proposed Site (or designated portion thereof) to the extent the Parties hereafter agree in writing (i.e., in the manner provided in this Agreement) to permit such use by the City for such purposes (individually, a "Site" and collectively, the "Sites"), all subject to and in accordance with the terms ofthis Agreement. Agreement Therefore, PSE and the City agree as follows: Section 1. Scope This Agreement sets forth the terms and conditions upon which a Proposed Site (or designated portion thereof) is reviewed and selected by the Parties for potential use by the City as a Site. This Agreement shall apply only to the Proposed Sites and not to any other property of PSE. This Agreement does not, nor shall it be interpreted or construed to, grant to the City any right or interest in or to any property or the right to use any property (including, without limitation, anyone or more of the Proposed Sites) for any purpose; rather, the City may use a Proposed Site (or designated portion thereof) only upon execution by the Parties of a written site permit covering the Proposed Site (or designated portion thereof) in accordance with Sections 2 and 3 (a "Site Permit"), and then only in strict accordance with the terms and conditions of the applicable Site Permit. City of Federal Way Master Agreement 6-27-05 Page 1 Section 2. Site Permits The City's use of a Proposed Site shall be subject to the City's execution and delivery to PSE, and PSE's written acceptance of, a Site Permit on terms and conditions substantially in the;: form of "General Conditions" attached hereto as Exhibit B (or such other form as the Parties hereafter mutually agree upon in writing) covering a Proposed Site. Without limiting the generality ofthe foregoing, each Site Permit shall, at a minimum: (a) include a list ofthe specific Equipment to be installed at the Site; (b) include a site development plan which describes in detail any installation, alteration, maintenance, repair, relocation, removal and/or other work to be undertaken at the Site, and which describes and identifies in detail the precise location of the Equipment to be installed at the Site; and ( c) include such additional terms and conditions as PSE may require. A Site Permit shall not take effect unless and until it is accepted in writing by PSE (i.e., each proposed Site Permit shall have the legal status of an offer to enter into a Site Permit). Section 3. Site Permit Submittal and Approval 3.1 In the event the City at any time during the Term desires to use a Proposed Site as contemplated by this Agreement, the City shall submit to PSE a fully completed proposed Site. Permit for the Proposed Site. Each proposed Site Permit shall be duly executed by an authorized agent of the City prior to its submittal to PSE. Unless otherwise directed by PSE, the City shall submit each proposed Site Permit to: Puget Sound Energy P.O. Box 90868 PSE10 Bellevue, W A 98009-0868 Attention: Real Estate Department 3.2 Prior to the City's submittal of a proposed Site Permit, PSE shall, upon request, provide the City reasonable access to the applicable Proposed Site to conduct engineering surveys, inspections or other reasonably necessary tests related to the contemplated installation of Equipment. Solely for purposes of this paragraph 3.2, such access shall be a "Permitted Activity" under and subject to Sections 16 and 17 of the General Terms of Site Permit attached hereto as Exhibit B (which provisions are incorporated herein by this reference). Such access shall also be subject to such other reasonable conditions and limitations as may be imposed by PSE. Upon request, the City shall deliver to PSE copies of the results of all such surveys, inspections and tests conducted by the City. 3.3 In connection with PSE's review of a proposed Site Permit, the City shall promptly provide such information relating to the proposed Site Permit as PSE may reasonably request. The City understands and acknowledges that any structural work proposed to be undertaken at a Proposed Site, or any work proposed to be undertaken City of Federal Way Master Agreement 6-27-05 Page 2 involving a material alteration of any portion of a Proposed Site, must be approved by a licensed structural engineer at the City's sole cost and expense. 3.4 Upon receipt of each proposed Site Permit, PSE shall undertake such review of the proposed Site Permit as detcrmined by PSE to be necessary and appropriate. Upon completion of its review of the proposed Site Permit, PSE may (a) accept the proposed Site Permit in the form proposed by the City, in which case PSE shall accept the proposed Site Permit in writing and deliver its written acceptance to the City, or (b) conditionally accept the proposed Site Permit subject to such modifications, alterations, and/or supplemental terms as PSE may deem appropriate, in which case PSE shall conditionally accept the proposed Site Permit in writing as modified, altered and/or supplemented, and deliver the conditionally accepted proposed Site Permit to the City for review and execution by the City as modified, altered and/or supplemented, or (c) reject the proposed Site Permit, in which case PSE shall promptly notify the City of such rejection. 3.5 PSE shall endeavor to notify the City of its acceptance, conditional acceptance or rejection of a proposed Site Permit within twenty (20) business days after its receipt by PSE; provided, however, that the City understands and acknowledges that the submittal to PSE of multiple proposed Site Permits will likely delay notification by PSE beyond the above twenty (20) day period; and provided further that under no circumstances shall PSE be liable in any way to the City for any failure to accept, conditionally accept or reject a proposed Site Permit within such twenty (20) day period. 3.6 PSE shall not have any obligation to accept, conditionally accept or otherwise execute any proposed Site Permit and shall not have any liability on account of its refusal or other failure to accept, conditionally accept or execute any proposed Site Permit. the City may withdraw a proposed Site Permit by giving PSE written notice of such withdrawal at any time prior to PSE's acceptance ofthe proposed Site Permit in accordance with paragraph 3.4. 3.7 In the event PSE delivers a conditionally accepted proposed Site Permit to the City under paragraph 3.4(b), the City shall (a) execute and deliver the proposed Site Permit as modified, altered and/or supplemented by PSE, or (b) promptly notify PSE in writing of any objections to the modifications, alterations and/or supplemental provisions proposed by PSE, in which case the Parties shall, upon the request of either Party, endeavor to agree upon a Site Permit acceptable to both Parties. A proposed Site Permit which has been conditionally accepted by PSE and delivered to the City shall not take effect unless and until it is executed by the City under this paragraph 3.7(a) above, or unless and until the parties have agreed in writing upon any further revisions to the proposed Site Permit necessary to make it acceptable to both parties under this paragraph 3.7(b) above. Section 4. Reimbursement 4.1 In addition to any other amounts payable by the City to PSE under this Agreement, the City shall pay PSE an application fee in the amount specified in paragraph 4.2 for the processing and review of each proposed Site Permit and, in addition, shall reimburse PSE for any and all costs and expenses reasonably incurred by PSE in connection with all other services performed by PSE at the request of the City (whether prior to or after the submittal of the proposed Site Permit), all in accordance with the payment City of Federal Way Master Agreement 6-27~05 Page 3 provIsions set forth in paragraph 4.3. Without limiting the generality of the foregoing, amounts recoverable by PSE hereunder shall consist of fully allocated costs for labor (including but not limited to all payroll costs and overhead and all applicable engineering, supervision, and administrative overheads), transportation, employee expenses, attorneys fees, reprographic services, supplies, telephone service and other expenses. Without limiting any obligation of PSE specified elsewhere in this Agreement, this paragraph 4.1 shall not obligate or be construed to obligate PSE to perform any service or to take any action whatsoever with respect to the Equipment, a proposed Site Permit or any request made by the City pursuant to this Agreement or otherwise. 4.2 The amount of the application fee payable by the City under paragraph 4.1 shall, as of the date of this Agreement, be one thousand two hundred dollars plus $250.00 dollars per node ($1,200 + $250.00 per node). PSE may change the amount of such application fee as of the end of each period of five (5) consecutive years during the Term (e.g., as of the fifth (5th), tenth (10th) and fifteenth (15th) anniversaries of the date of this Agreement) by giving the City written notice of such change at least thirty (30) days prior to the end of the applicable period. 4.3 PSE shall invoice the City for all amounts payable by the City to PSE under this Agreement. The City shall pay each such invoice in full within thirty (30) days after the City's receipt thereof, which such receipt shall be deemed to have occurred within three (3) days of the date the invoice is deposited in the u.s. mail, and addressed to the City at the address set forth below. Notwithstanding the foregoing, and if requested by PSE (at its sole option) in connection with any services for which PSE is entitled to cost reimbursement under paragraph 4.1, the City will pay PSE an advance payment of the total estimated costs of the services based on an estimate furnished by PSE to the City. Such advance payment, if requested, will be paid on or prior to the date PSE agrees to perform the services, and any agreement by PSE to perform the services will be expressly contingent upon its receipt of such advance payment. The estimate furnished by PSE will be only a good faith approximation of the total costs and expenses of PSE to be reimbursed by the City for the services, and nothing herein will relieve the City of its obligation to reimburse PSE for the full amount of the actual costs and expenses reasonably incurred by PSE in connection with the services (as required in paragraph 4.1), and if such good faith estimate exceeds the actual costs incurred, the balance of any advance payment shall be returned to the City within forty five (45) days of completion of the work. The City will pay any such costs and expenses not included as part of the advance payment in accordance with the payment provisions of this Section 4. 4.4 The City shall pay to PSE interest, compounded daily, at the rate of one percent (1 %) per month or the maximum rate permitted by applicable law, whichever is less, on ally amounts not paid to and received by PSE when due under this Agreement, from the date due until the date payment is received by PSE. Payment of such interest shall not excuse or cure any breach of or default under this Agreement by the City. City of Federal Way Master Agreement 6-27-05 Page 4 Section 5. Bond Requirements The City shall furnish to PSE, at such time and in an amount and form specified by PSE, a surety bond that covers and ensures the full and timely performance of the City's obligations under this Agreement and each Site Permit relating to the performance of all Work and the removal of all Equipment. PSE may periodically adjust such surety bond amount from time to time at its sole discretion. Furthermore, the surety bond must be issued by a surety company with a minimum Best's rating of A -7. Section 6. Term 6.1 The term of this Agreement (the "Term") shall commence on the date of this Agreement and shall automatically terminate upon the first of the following to occur: (a) The twenty (20) year anniversary of the commencement of the Term, or (b) The Parties agree in writing to terminate the Term, or (c) The City becomes insolvent, makes an assigrunent for the benefit of creditors or becomes the subject of any petition or order in bankruptcy, whether voluntary or involuntary, or in any other proceeding under any bankruptcy, insolvency or receivership law and, in the case of any involuntary bankruptcy, insolvency or receivership petition, such petition is not dismissed within sixty (60) days after the filing thereof, or (d) The City is in default of any obligation owing under this Agreement and fails to cure such default within thirty (30) days after receipt of written notice from PSE regarding such default, except that, solely with respect to a default that does not involve the failure to pay fees or other monetary amounts and that cannot reasonably be cured within the initial thirty (30) day cure period, such thirty (30) day cure period may be extended for a maximum of thirty (30) additional days as reasonably necessary to permit the City to complete cure so long as the City commences cure within the initial thirty (30) day cure period and thereafter continuously and diligently pursues and completes such cure or (e) An Event of Default (as defined in the applicable Site Permit) has occurred with respect to fifteen percent (15%) or more ofthe Site Permits executed by the Parties. 6.2 Upon termination of the Term for any reason, all Site Permits in effect on the date of termination will automatically and immediately terminate and, except as otherwise provided in the applicable Site Permit (i.e., with respect to the survival of specific provisions), be of no further force or effect. Section 7. Assignment; Successors and Assigns The City shall not assign this Agreement or any portion of its rights In this Agreement, except as follows: City of Federal Way Master Agreement 6-27-05 Page 5 (a) to any person or entity that controls, is controlled by or under common control with the City (the "Acquiring Affiliate"); provided that the City gives PSE written notice of any such assignment or transfer and pays all amounts then outstanding and owing to PSE under this Agreement; provided further that the Acquiring Affiliate certifies to PSE in writing (and provides such documents as may be requested by PSE to establish to PSE's sole satisfaction) that the Acquiring Affiliate (i) will assume all of the obligations of the City under this Agreement, and (ii) is financially able to and will comply with all of the provisions of this Agreement; and provided further that the City furnishes to PSE such information regarding the Equipment affected by such assignment or transfer as may reasonably be requested by PSE; (b) to the City's lender(s) for security purposes in connection with the financing and refinancing, from time to time, by the City, provided that upon any transfer pursuant to any foreclosure of such security or any sale or other transfer in lieu of such foreclosure the person or entity acquiring the interests subject to such transfer assumes all of the obligations of the City under this Agreement; or (c) to any other person or entity with the prior written consent ofPSE. Except as specifically provided in (a) through (c) above, any assignment or apportionment, or purported assignment or apportionment, of this Agreement, whether it be express, by operation of law or otherwise, shall be voidable by PSE. In any event, no assignment or apportionment of this Agreement shall relieve the City from any of its liabilities or obligations under this Agreement. Subject to the foregoing restrictions on assignments without the prior written consent of PSE, this Agreement shall be fully binding upon, inure to the benefit of and be enforceable by the successors and assigns of the respective Parties hereto. Section 8. Entire Agreement The rights and obligations of the Parties hereunder shall be subject to and governed by this Agreement. This Agreement sets forth the entire agreement of the Parties, and supersedes any and all prior agreements, with respect to the subject matter hereof. This Agreement may not be modified except by a writing executed contemporaneously herewith or subsequent hereto signed by both Parties. Section 9. Severalty The invalidity or unenforceability of any provision of this Agreement shall not affect the other provisions hereof, and this Agreement shall be construed in all respects as if such invalid or unenforceable provisions were omitted. City of Federal Way Master Agreement 6-27~05 Page 6 Section 10. Survival All provisions of this Agreement which may reasonably be interpreted or construed as surviving the completion, termination or cancellation of this Agreement, shall survive the completion, termination or cancellation of this Agreement. Section 11. Headings The headings of sections and paragraphs of this Agreement are for convenience of reference only and are not intended to restrict, affect or be of any weight in the interpretation or construction of the provisions of such sections or paragraphs. Section 12. Nonwaiver The failure of either Party to insist upon or enforce strict performance by the other Party of any of the provisions of this Agreement, or to exercise any rights under this Agreement, shall not be construed as a waiver or relinquishment to any extent of its right to assert or rely upon any such provisions or rights in that or any other instance; rather, the same shall be and remain in full force and effect. Section 13. Notices and Other Communications Any notice, request, approval, consent, instruction, direction or other communication given by either PSE or the City to the other under this Agreement shall be in writing and shall be delivered in person or mailed, properly addressed and stamped with the required postage, to the intended recipient at the address and to the attention of the person or position specified in this Agreement. Either Party may from time to time change such address by giving the other Party notice of such change in accordance with the provisions of this section. Section 14. Regulatory Approvals To the extent this Agreement and any parts of this Agreement are subject to the authority of regulatory agencies having jurisdiction over PSE or the City, each Party shall promptly submit this Agreement to the regulatory agencies having such jurisdiction over such Party and shall take such additional action as may reasonably be required to promptly obtain any required approvals or other action by such agencies. Section 15. Representation by Counsel The Parties acknowledge and agree that they have been represented by counsel and that each of the Parties has participated in the drafting of this Agreement. Accordingly, it is the intention and agreement of the Parties that the language, terms and conditions of this Agreement are not to be construed in any way against or in favor of any Party hereto by reason of the responsibilities in connection with the preparation of this Agreement. Section 16. Force Majeure If a Party is delayed or hindered in, or prevented from performance required under this Agreement (other than any delay or failure relating to payment of money, including, City of Federal Way Master Agreement 6~27.05 Page 7 without limitation, all reimbursable costs and expenses described elsewhere in this Agreement) by reason of earthquake, landslide, strike, lockout, labor trouble, failure of power, riot, insurrection, war, acts of God or other reason of like nature not the fault of the such Party, such Party is excused from such performance for the period of delay. The period for the pertormance of any such act shall then be extended for the period of such delay. Section 17. Applicable Law This Agreement shall in all respects be interpreted, construed and enforced III accordance with the laws ofthe State of Washington. T PSE: puget Sound Energy, Inc. fJ~~~~~ Date Signed: ::],//1 () r- I ' Address: 33325 8th Ave. S P.O. Box 9718 Federal Wa , WA 98063-9718 By: (Signatory's Name) It.j)lh . ;it>'\... ('eo>-.. -.j- Ph (Title) ~ Date Signed: 7 - ~ 7 ~ 02.0{)~ It: City Manager Address: P.O. 90868 PSE-lOS Bellevue, W A 98009-08668 Attn: Real Estate De artment t(PROVED AS TO FORM' L1QX" \ d~~k\l\\ \i .{ry Patricia A. Richards \ Federal Way City Attorney 7r~~;~ N. Christine Green Federal Way City Clerk City of Federal Way Master Agreement 6~27-05 Page 8 Exhibit A B City of Federal Way Master Agreement 6-27-05 LIST OF EXHIBITS TO MASTER AGREEMENT Title Proposed Sites General Conditions Page 9 EXHIBIT A Proposed Sites City of Federal Way Master Agreement 6-27-05 Page 10 EXHIBIT B General Conditions 1. Permit. For and in consideration of the mutual benefits to be derived therefrom, PSE hereby grants permission to (the City), subject to the terms and conditions of this Permit, to use the property described in the attached Appendix 1 (the "Site"). The rights and obligations of the City arising under this Permit will apply to and be binding upon the City's officers, employees, agents and representatives, and its suppliers and subcontractors of any tier acting on behalf of the City in connection with the performance of the Work (as defined below) or this Permit (collectively, the "Support"). The City shall be solely responsible for the performance, nonperformance, acts and omissions of its Support....but nothing herein shall be construed to limited or impair the City's rights with respect to its Support. 2. Use of the Site. Subject to the terms and conditions of this Permit (including, without limitation, paragraph 3.1), the City shall have the right to use the Site for the purpose of undertaking the following activities (the "Permitted Activities"): 2.1 installation, operation and maintenance of the equipment specified in the attached Appendix 2 (the "Equipment") in accordance with the site development plan attached hereto as Appendix 3 (the "Site Development Plan") and all other provisions of this Permit; and 2.2 performance of the installation, maintenance, repair, relocation, removal a!ld other work specified in the Site Development Plan (collectively, the "Work") in accordance with the Site Development Plan and all other provisions of this Permit; and 2.3 obtaining, at the City's sole cost and expense, telephone service from any utility company that provides such service to the Site, and arranging for the installation electrical power connections subject to PSE's right to approve the exact location of proposed utility routes and the manner of installation; and 2.4 access to and from the Site for purposes of undertaking the activities specified in paragraphs 2.1, 2.2 and 2.3, in accordance with the following: 2.4.1 access for construction, routine maintenance and repair and other non- emergency visits shall only be during normal business hours (defined as Monday through Friday, 8 am to 5 pm) unless otherwise agreed upon by the Parties; 2.4.2 in the event of emergency, the City may access the Site twenty-four (24) hours per day, seven days per week, by calling the PSE emergency telephone number set forth in paragraph 7 and requesting such access; 2.4.3 access to the Site may be by foot or motor vehicle, including trucks; and 2.4.4 access to the Site shall be subject to such reasonable conditions as may be imposed by PSE from time to time (which conditions shall be supplemental to and shall not amend the express terms of the Master Agreement and this Permit); provided, however, that (a) nothing herein or elsewhere in this Permit will (or will be deemed to) grant to the City any rights of any kind in, to or with respect to the Site which PSE is not expressly authorized to grant to the City or which otherwise are inconsistent with or greater than the actual rights of PSE in, to or with respect to the Site, and (b) all rights granted to the City herein and elsewhere in this Permit are subject in all respects to the title and rights of third parties in the real property on which the Site is located. 3. Limitations on Use. Except and only as specifically authorized in paragraph 2, the City shall not enter upon the Site or make any use thereof. Without limiting the generality of the foregoing: 3.1 The City expressly understands and acknowledges that (a) unless explicitly and expressly stated otherwise in the attached Appendix 1, PSE does not own in fee the Site or the real property on which the Site is located, (b) nothing in this Permit will (or will be deemed to) constitute any assignment, sublease, apportionment, delegation or other transfer or grant (in whole or in part) by PSE of any rights of PSE under or with respect to any franchise, easement, lease, license, permit or other agreement or document relating to the Site or the real property on which the Site is located, ( c) one or more third parties (e.g., governmental entities and others) may own or have rights in the Site or the real property on which the Site is located. and (d) the City is solely responsible for acquiring any and all rights from third parties that are needed to undertake any Permitted Activity. Without limiting the generality of the foregoing, the City shall obtain and comply (and shall ensure that all ofthe City's Support comply) with all permits, licenses, franchises, rights-of-way, City of Federal Way Master Agreement 6-27-05 Exhibit B Page 11 easements and other rights required to undertake any Permitted Activity. The City shall furnish to PSE such evidence thereof as PSE may request. 3.2 The City shall, at all times, undertake the Permitted Activities in a manner so as to prevent bodily harm to persons (whomsoever) and damage to property (whatsoever). Precautionary measures shall include, without limitation, reasonable site security measures (e.g., fencing, signage, lighting, security guards, etc.) necessary to prevent access to the Site during such times as the Permitted Activities may cause the Site to be in an unsafe or unsecured condition. 3.3 The City shall, at all times, undertake the Permitted Activities in a manner that does not disturb or interfere in any way with the operations ofPSE or any prior existing users of the Site, or otherwise in a manner that would impair the safe, continuous and reliable operation ofPSE's utility systems or improvements. Without limiting the generality of the foregoing, the City shall at all times: 3.3.1 conduct the Permitted Activities so as to maintain legal and safe clearances from PSE's utility systems or improvements; 3.3.2 take all prudent precautions to ensure that no persons or property come into contact with PSE's utility systems or improvements; and 3.3.3 conduct the Permitted Activities so as to maintain access along and across the Site to PSE's utility systems and improvements, sufficient to allow the free passage of all equipment, vehicles, personnel and other items as may be necessary or convenient for the maintenance, repair and replacement ofPSE's utility systems and improvements. If, at any time, the Permitted Activities shall disturb, interfere with or otherwise impair the safe, continuous and reliable operation ofPSE's utility systems or improvements, the City shall immediately cease and discontinue such Permitted Activities. If the City anticipates that any Permitted Activity may disturb, interfere with or otherwise impair the safe, continuous and reliable operation ofPSE's utility systems or improvements, the City shall request in writing, not less than fourteen (14) days in advance of the date required, that PSE take such action with respect to its systems or improvements as is necessary to accommodate such Permitted Activity. PSE may elect to accommodate such Permitted Activity in response to such request; provided, however: (a) all costs and expenses incurred by PSE thereby shall be reimbursed to PSE, and (b) PSE may refuse any or all such requests or may discontinue actions undertaken in response to such requests, as PSE, in its sole discretion, may choose. 3.4 The City shall not undertake any activities and shall not use or permit any use of the Site that will in any way: 3.4.1 be in noncompliance with, or otherwise conflict with, any applicable laws, regulations, ordinances, rules, orders or other requirements, now or hereafter in effect, of any govenunenta1 authority (all laws, regulations and orders required to be incorporated in agreements of this character are hereby incorporated herein by this reference); 3.4.2 cause or constitute any nuisance, noxious odors, unsafe condition or waste in or about the Site; 3.4.3 interfere with the rights or disturb the use and enjoyment ofPSE, other users of the Site, or any other person lawfully on the Site; 3.4.4 cause a cancellation, increase the premiums for or deductib1es under or otherwise affect any fire, casualty, property, liability or other insurance covering the Site, any activities conducted upon or from the Site, or any accident, act, error, omission, fault, negligence or strict liability occurring on or about the Site; or 3.4.5 cause or allow the generation, storage, processing, handling, transport, spill, disposal or release of any dangerous, hazardous or extremely hazardous material, waste or substance at, upon or in any way affecting the Site (including, but not limited to, any such materials, waste or substances subject to regulation by any federal, state or local law pertaining to the protection of human health or the environment). 3.5 The City shall not, and shall not pennit others to, install, store, maintain or operate any equipment, fixtures, improvements, supplies, vehicles or other items on the Site except for the Equipment (which Equipment shall be installed, maintained and operated at the City's sole cost, risk and expense). 3.6 If, in the judgment of PSE, the Equipment or any Permitted Activity violates, jeopardizes or unreasonably interferes with: (a) any laws, regulations, rules, orders or other regulatory authorizations, permits or approvals that may concern PSE's present or future use and enjoyment of the Site, or (b) any proprietary rights such as any contract, penuit, license, franchise, right-of-way, easement or other rights ofPSE, and the City fails to correct the problem within thirty (30) days after written notice from PSE (or such City of Federal Way Master Agreement 6-27-05 Exhibit B Page 12 shorter or longer period oftime as is expressly required or permitted under the applicable law, regulatory authorization, permit or approval or applicable proprietary right ofPSE), PSE may require that the City immediately remove any or all Equipment from and cease any Permitted Activity at the Site. If the City fails to remove any Equipment within fifteen (15) days after PSE makes its request, PSE may remove the Equipment at the City's sole risk and expense and the City shall reimburse PSE for the entire expense thereby incurred. 3.7 The City shall timely pay all (and shall promptly secure the discharge of any liens asserted by any) persons and entities furnishing labor, equipment, materials or other items in connection with the Permitted Activities. the City shall furnish to PSE such releases of claims and other documents as may be requested by PSE from time to time to evidence such payment (and discharge). If any such persons or entities are not timely paid (or if any of such liens are not promptly discharged), PSE may make such payments (and secure such discharge) at the City's expense and the City shall reimburse PSE for the entire expense thereby incurred. Notwithstanding the foregoing, the City may contest the validity of any such lien provided that the City delivers a bond to PSE in the amount of the contested lien. 3.8 In undertaking the Permitted Activities, the City shall comply and shall ensure that all of its Support comply with all applicable industry standards and codes, and all ofPSE's standard practices, specifications, rules and regulations provided by PSE to the City on request (which practices specifications, rules and regulations shall be supplemental to and shall not amend the express terms of the Master Agreement and this Permit). the City shall furnish such documents as may be required to effect or evidence such compliance. 3.9 The City shall comply with the following in connection with its performance of the Work: 3.9.1 The City shall furnish all personnel, supervision, labor, transportation, tools, equipment and materials for perfonnance of the Work. the City shall expeditiously and efficiently perfonn the Work in accordance with the Site Development Plan and the provisions of this Pennit. the City shall not independently hire any PSE employee to perform any of the Work (e.g., other than in the course of his or her employment with PSE with respect to Work that PSE agrees to perform for the City). 3.9.2 The City shall perfonn the Work in a workmanlike and skillful manner. the City shall ensure that the Work and the Equipment is in all respects (a) safe, (b) of first class quality, (c) free from all faults and defects in workmanship, material and design, and (d) in conformance with such reasonable requirements and specifications as PSE shall from time to timeJwhich requirements and specifications shall be supplemental to and shall not amend the express terms of the Master Agreement and this Permit) prescribe and all laws and the regulations, orders and decrees of all lawfully constituted bodies and tribunals pertaining to the construction, operation and maintenance, including without limitation, the requirements of the latest edition of the National Electrical Safety Code. 3.9.3 The City shall promptly and satisfactorily correct or replace any Work or Equipment found to be defective or not in conformity with the requirements of this Permit. If the City fails or refuses to perform any Work required by this Permit or to make any such corrections or replacements, PSE may perform such Work and make such corrections and replacements at the City's sole risk and expense and the City shall reimburse PSE for the entire expense thereby incurred. 3.9.4 Installation ofthe Equipment or the performance of other Work shall not adversely affect the structural integrity, maintenance or marketability of the Site or any structure or improvement on or surrounding the Site. 3.9.5 The City shall ensure that all personnel who perform the Work shall be fully experienced and properly qualified to perform the same. the City shall, if so requested by PSE, remove from performance of the Work any personnel (including, without limitation, any Support) whom PSE finds to be incompetent, careless or otherwise unsafe. 3.9.6 The City hereby acknowledges that PSE employs workers covered by one or more collective bargaining agreements. In the event of any actual or potentia11abor dispute between PSE and its workers that is, in whole or in part, based upon or otherwise arises out of the performance of the Work or this Permit, the City will cooperate with PSE and take such action as may be reasonably requested by PSE to fully and expeditiously resolve such dispute. 3.9.7 The City shall, at all times, keep the Site cleared of rubbish, refuse and other debris generated by the City or its Support and in a neat, clean and safe condition. Upon City of Federal Way Master Agreement 6-27-05 Exhibit B Page 13 completion of any portion of any of the Work, the City shall promptly remove all rubbish, refuse and other debris generated by the City or its Support and all of its Equipment and surplus materials. 3.9.8 The Work and the Equipment (i.e., as it relates to the Work) shall at all times be subject to inspection and testing by PSE. the City may, at its option, have a representative present at the Site during any such inspection or testing by PSE. If, in PSE's reasonable judgment, the performance of any Work requires one or more representatives ofPSE to be present at the Site during the performance of such Work, then the City will reimburse PSE for any and all reasonable costs and expenses thereby incurred by PSE. No inspection, test, delay or failure to inspect or test, or failure to discover any defect or non-compliance by PSE shall relieve the City of any of its obligations under this Permit. 3.9.9 The City shall promptly settle or resolve all complaints received by the City from third Parties arising out of or in connection with performance of the Work. the City shall promptly notify PSE of all such complaints and any action taken (or to be taken) in connection therewith. In handling any complaints, the City shall use its best efforts to maintain and promote good public relations for PSE, 3.9.10 The City acknowledges and anticipates that the Work may be interfered with and delayed from time to time on account of the concurrent performance of work by PSE or others. the City shall fully cooperate with PSE and others and coordinate the Work with such other work so as to minimize any delay or hindrance of any work. 3.9.11 If any part of the Work depends upon the results of other work by PSE or others, the City shall, prior to commencing such Work, notify PSE in writing of any actual or apparent deficiencies or defects in such other work that render it unsuitable for performance of the Work. Failure of the City to so notify PSE shall constitute an acceptance by the City of such other work as suitable for performance of the Work, except as to latent defects which may subsequently be discovered in such other work. 3.10 Upon completion of Permitted Activities which may disturb the surface or subsurface of the Site (or any improvements thereon), the City shall restore the Site (and any improvements thereon) to a condition as good or better then the condition the Site (or such improvements) was in prior to such disturbance. 3.11 If, in undertaking Permitted Activities (or activities off-Site in furtherance of Permitted Activities), the City shall cause significant public concern with or opposition to its proposed use of the Site, and PSE shall reasonably conclude that such public concern or opposition will materially interfere with its use of the Site or otherwise with the conduct ofPSE's business, then PSE may direct the City to cease and desist such acts (or omissions) giving rise to such public opposition or concern. 3.12 The City shall copy PSE's T &D Planning & Analysis Department Director on all notices and other correspondence received or given by the City in connection with any local jurisdiction review process involving any Permitted Activities undertaken or proposed to be undertaken by the City at the Site. 4. Eouipment. Structures and Facilities. 4.1 The City shall maintain all Equipment on the Site in good and safe condition and in a manner that does not materially affect the structural integrity of any structure on the Site. If the City fails to do any maintenance within thirty (30) days after receipt of notice from PSE requesting such maintenance, then PSE may, at its option, do such maintenance at the City's expense and the City shall reimburse PSE for the entire expense thereby incurred. If the City commences the requested maintenance within thirty (30) days after any written notice from PSE requesting such maintenance and thereafter continuously and diligently pursues and completes such maintenance, then the thirty (30) day cure period will extend for an additional sixty (60) days to permit the City to complete the requested maintenance. 4.2 PSE shall at all times during the Term of this Permit, at PSE's sole cost and expense, maintain any PSE-owned structures used by the City for Permitted Activities in a structurally good and safe condition. If the City is unable to use such structure due to PSE's maintenance activities, the City may immediately install temporary Equipment on any alternate location specified in the Site Development Plan while PSE makes repairs to the Site. 4.3 IfPSE at any time relocates, replaces or removes any pole, tower or other facility or silucture on which any Equipment is attached, or PSE otherwise determines in its reasonable judgment that any Equipment must be removed or relocated to accommodate PSE's use of or activities on the Site, then the City City of Federal Way Master Agreement 6-27-05 Exhibit B Page 14 shall, at its sole cost and expense, remove or relocate such Equipment at such times and in the manner directed by PSE. If the City fails to remove or relocate its Equipment within one hundred eighty (180) days (or such shorter period of time as PSE may reasonably require under the circumstances) after being directed to do so by PSE, PSE may remove or relocate the Equipment at the City's sole risk and expense, and the City shall reimburse PSE for the entire expenses thereby incurred. 4.4 In the event the City is permitted to and does install any pole, tower or other structure as part of the Equipment on the Site, PSE shall have the right, subject to such reasonable rules and requirements as the parties may agree upon in writing, to install one or more items of equipment on such pole, tower or other structure for PSE's internal purposes only, provided that the pole, tower or structure in question is structurally capable of bearing the weight ofPSE's equipment. Such installation and use shall be at PSE's cost and expense, but the City shall not levy any charge or fee for PSE's use thereof. 5. Nonexclusivity. This Permit is nonexclusive, and PSE may grant rights to others to use the Site for any purpose not inconsistent with the City's rights hereunder, including competing telecommunications companies. PSE does not warrant title to the Site and shall not be liable for defects thereto or failure thereof. Without limiting any other provision of this Permit, the City will promptly resolve technical interference problems with other radio communications equipment located at the Site on the date of this Permit or any radio communications equipment located at the Site on any future date when the City modifies or supplements its Equipment at the Site. 6. Cooneration ofPSE. PSE shall, at the City's expense, support the City's efforts to secure any documents or applications required (i.e., by virtue ofPSE's ownership of or rights in the Site) to be obtained by tlle City from any governmental agency with jurisdiction in order for the City to obtain the necessary licenses, permits or other approvals from such governmental agency for the Permitted Activities; provided, however, that PSE shall not under any circumstances be obligated to execute any application or other document that, in PSE's sole judgment, will in any way impair, limit or adversely affect PSE's rights in or ownership or use of the Site, nor shall PSE be obligated to provide such support if the same requires a commitment of resources of any kind of a value in excess of five hundred dollars ($500.00). 7. Emenrencies. In the event of an emergency relating to the Equipment or the Site, the City shall immediately correct any safety or use problems, even if full repair cannot be made at the time, in order to protect persons and property or to allow use of the Site. The Parties' respective emergency phone numbers are as follows: PSE: 1 (800) 448-8930 City of Federal Way: Each Party shall promptly notify the other of any change in such party's emergency phone number. 8. Ownershio and Risk of Loss of Eouinment. 8.1 The Equipment located at the Site pursuant to the terms of this Permit will at all times be and remain the property of the City and will not be subject to any lien or encumbrance created or suffered by PSE. the City has the right to make such filings with the Washington State Department of Licensing (e.g., UCC-l Financing Statement) as it deems necessary or desirable to evidence its ownership of the Equipment. Notwithstanding the foregoing, if, upon termination or expiration of the Term, the Equipment is not removed from the Site and the Site restored according to the terms of this Permit, such Equipment shall be deemed abandoned ninety (90) days following such termination or expiration and PSE's waiver of lien shall thereafter be void and of no further force and effect. 8.2 The City shall be responsible for and shall bear any and all risk of loss, deterioration, theft, vandalism or destruction of or damage to the Equipment and anything used (or to be used or consumed) in connection with the Work. 9. Examination of Records. The City shall promptly furnish PSE with such information related to the Work or the Equipment as may from time to time be reasonably requested by PSE. Until the expiration of three (3) years after the termination ofthe Term, PSE shall have access to and the right to examine and copy all of the City's books, documents, papers and records which are related to the Work, the Equipment or this Permit during regular business hours and after 10 days written notice to the City. 10. COffinensation. 10.1 The "Annual Fee" shall mean the annual fee for the City's use of the Site as calculated in accordance with the schedule set forth in the attached Appendix 4 and the following: City of Federal Way Master Agreement 6-27-05 Exhibit B Page 15 10.1.1 the Annual Fee will be payable on or before the date of this Permit and thereafter on the ftrst day of the ftrst month following each anniversary of the commencement date of the Master Agreement, and 10.1.2 the Annual Fee will be prorated in the ftrst and last year of this Permit to coincide with the anniversary of the commencement date of the Master Agreement, except that the Annual Fee for the Site will continue past any termination of thc Term of this Permit if and until all of the Equipment is removed from the Site and restoration of the Site has occurred according to the provisions of this Permit. 10.2 PSE shall invoice the City for all amounts payable by the City to PSE under this Permit (including, without limitation, the Annual Fees and all reimbursable costs and expenses described elsewhere in this Permit) as they become due. the City shall pay each such invoice in full within thirty (30) days after the City's receipt thereof. 10.3 The City acknowledges that late payment of any fee or other amounts due to PSE under this pennit will cause PSE to incur certain administrative, processing accounting costs not otherwise contemplated by this Permit, the exact amount of which will be extremely difficult, if not impossible, to ascertain. Accordingly, if any fee or other amounts shall not be received by PSE within thirty (30) days after such amounts shall ftrst become due, the City shall pay to PSE a late charge, as liquidated damages and not as a penalty, equal to two percent (2%) of such overdue amounts as a reasonable estimate of the administrative, processing and accounting costs PSE will incur by reason of late payment by the City. Such late charge is intended to be in lieu of the City's liability for such costs, but shall not relieve or release the City from liability for any other costs or damages suffered by PSE by reason of late payment. Payment of such late charge shall in no event excuse or cure any default under or breach of this Permit by the City. 10.4 In addition to any late charge levied under this Permit, the City shall pay to PSE interest, compounded daily, at the rate of one percent (1 %) per month or the maximum rate permitted by applicable law, whichever is less, on any fees or other amounts not paid to PSE when due under this Permit, from the date due until the date paid. Payment of such interest shall not excuse or cure any breach of or default under this Permit by the City. 11. Taxes. The City shall pay (except as otherwise required by law) all fees and taxes applicable to or incurred in connection with the Work, the Equipment or the system of which the Equipment constitutes a part. Subject to the foregoing, PSE shall pay all taxes and other fees or charges attributable to each Site (including, without limitation, debt and ground lease obligations). 12. Site Acceptance. 12.1 The City will be deemed to have accepted the Site upon execution of this Site Permit. Conducting feasibility and cost assessments or other preliminary inspections on the Site prior to execution of this Site Permit shall not be deemed to be acceptance. 12.2 Acceptance of the Site by the City in accordance with paragraph 12.1 shall be conclusive evidence that the City: 12.2.1 accepts the Site as suitable for the Permitted Activities; 12.2.2 accepts the Site and any structure on the Site and every part and appurtenance thereof "AS IS," "WHERE IS" and "WITH ALL FAULTS AND DEFECTS"; and 12.2.3 releases, and waives all claims against, PSE in respect of defects in the Site and its structures and appurtenances, their habitability or suitability for any permitted purposes, except as expressly provided otherwise in this Agreement. 12.3 PSE does not warrant the title of the Site (or the real property on which the Site is located) or the suitability of the Site for the purposes for which the City may desire to use it (including, without limitation, the Permitted Activities); nor does PSE warrant the adequacy of the title, location or condition of the Site (or the real property on which the Site is located), or the title or condition of any structure or appurtenances for any purpose. the City acknowledges that, in accepting the Site (and the underlying real property and any and all structures thereon used by the City for Permitted Activities) in its "AS IS," "WHERE IS" and "WITH ALL FAULTS AND DEFECTS" condition, PSE makes no representations or warranties whatsoever concerning the Site, the underlying real property and/or such structures, or any aspect of their title, status or condition, and that the City is not in any way relying on infonnation disclosed by PSE with respect thereto, or otherwise in PSE's possession with respect thereto; rather, the City is solely relying on its own inspections and assessments with respect to the title, condition or status of the Site, the underlying real property and/or such structures. City of Federal Way Master Agreement 6-27-05 Exhibit B Page 16 13. Term and Termination. 13.1 The term of this Permit (the "Term") will corrunence on the date of this Permit and, unless earlier terminated as provided elsewhere in this Permit, will end on the tenth (10Ih) anniversary of the date of this Permit; provided that the Term will thereafter automatically renew for successive periods of five (5) years each unless either party gives the other party written notice of termination at least sixty (60) days prior to the end of the then-current Term, 13.2 The Term will terminate automatically upon the first of the following to occur: 13.2.1 the term ofthe Master Agreement at any time expires or is terminated for any reason; 13.2.2 any certificate, permit, license or approval affecting the City's ability to use the Site in the manner originally intended by the City is finally rejected; or 13.2.3 any previously issued certificate, permit, license or approval affecting the City's ability to use the Site is canceled, expires, lapses, or is otherwise withdrawn or terminated by the applicable governmental agency. 13.3 PSE may at any time terminate the Term and all of the City's rights to use the Site upon: 13.3.1 sixty (60) days' prior written notice to the City if any Permitted Activity umeasonab1y interferes with (a) PSE's or any other prior existing user's use of the Site, or (b) access to or around the Site or any structure adjacent to the Site by PSE or any other prior existing users of PSE's property on or adjacent to the Site, or 13.3.2 the occurrence of any Event of Default. 13.4 The City may terminate the Term upon thirty (30) days prior written notice to PSE if the City is unable for technical reasons, all due solely to changes in the physical condition of the Site, to use the Site for Pennitted Activities. 14. Default. 14.1 The occurrence of anyone or more of the following events constitutes an "Event of Default" by the City under this Permit: 14.1.1 the City undertakes any activities on the Site other than the Permitted Activities; 14.1.2 the City fails to pay when due the full amount of any fee or other payment under this Permit, where such failure continues for fifteen (15) days after written notice thereof by PSE to the City; 14.1.3 the City fails to cure any other default under or breach of any provision of this Permit (i.e" other than a default or breach covered by paragraph 11.1.1) within thirty (30) days after PSE gives the City written notice of such default or breach; except such thirty (30) day cure period will be extended as reasonably necessary to permit the City to complete cure so long as the City corrunences cure within the thirty (30) day cure period and thereafter continuously and diligently pursues and completes such cure; 14.1.4 two (2) or more defaults by the City in the payment of any fee or other payments under the Permit which would allow PSE to issue a notice of default in any twelve (12) month period, which such occurrence will constitute a noncurab1e material default and breach of this Permit; 14.1.5 the City deserts, abandons, or vacates any portion of a Site and fails to maintain any and all Equipment remaining at the Site. 14.2 If an Event of Default occurs, PSE (without notice or demand except as expressly required above) may, in addition to any other right or remedy to which PSE may be entitled under this Permit or applicable law, recover from the City an amount equal to the sum of the foIlowing: 14.2.1 the actual costs of removing the Equipment and restoring the Site to its original condition; 14.2.2 the Annual Fees for the Site until such time as the Site is restored to its original condition, plus interest thereon from the date due until paid according to the terms of this Permit; 14.2.3 the amount by which the Annual Fees that PSE would have received under this Permit for the remainder of the Term after the date oftennination exceeds the amount of the fair market rental value for the remainder of the Term that the City proves could be reasonably avoided, City of Federal Way Master Agreement 6-27-05 Exhibit B Page 17 discounted at the discount rate on the date of termination of the Federal Reserve Bank of the federal reserve district where the Site is located plus one percent (1 %); and 14.2.4 all other sums of money and damages to which PSE may be entitled hereunder or under applicable law. 15. Effect of Termination. Within thirty ninety (90) days after termination of the Term, the City shall remove all Equipment from the Site and restore the Site to its original condition except for reasonable use, wear and tear. The City will repair any damage to the Site caused during the removal of the Equipment. Following expiration of the above period, PSE shall furnish to the City a list of any removal, restoration, repair or other work that remains to be completed at the Site as required by the first two sentences of this Section 15. The City will thereafter complete the work specified on the list within ten (to) days after receipt of the list from PSE, or within a reasonable period of time that does not exceed a maximum of thirty (30) days if such work cannot reasonably be completed within 10 days. If the City shall fail to complete the specified work within the ten (10) day period (or longer period as provided for herein), PSE may complete the work, or have the work completed through the most expeditious means available, at the City's sole risk and expense and the City shall reimburse PSE for the entire expense thereby incurred. 16. Release. Indemnity. Hold Harmless and Limitation of Liabilitv. 16.1 The City releases and shall defend, indemnify and hold harmless the Indemnitees from any and all claims, losses, costs, liabilities, damages and expenses (including, but not limited to, reasonable attorneys' fees) arising (whether before or after termination of the Term) out of or in connection with the conduct of the Permitted Activities (including, without limitation, the location of any Equipment at the Site, the performance of the Work, or the operation of the Equipment or the system of which the Equipment is a part), the enforcement of this Permit by PSE, any default under or breach of this Permit by the City or the acts or omissions of the City or any of its Support, the respective successors and assigns of the City or any of its Support, the directors, officers, employees and agents of each ofthe foregoing, or anyone acting on the City's behalf in connection with this Permit. To the fullest extent permitted by applicable law, the foregoing release, indemnity and hold harmless shall apply regardless of any act, omission, fault, negligence or strict liability of the Indemnitees; provided, however, that the City shall not be required to so indemnify any Indemnitee(s) against any claim, loss, cost, liability, damage or expense to the extent the same is caused by or results from the negligence or willful misconduct of any Indemnitee(s). In connection with any action to enforce this paragraph 17.1, the City waives any immunity, defense, or protection under any workers' compensation, industrial insurance or similar laws (including, but not limited to, the Washington Industrial Insurance Act, Title 51, of the Revised Code of Washington). PSE is willing to permit the Equipment on the Site for the fees described in this Permit only in consideration of and in reliance upon such release, indemnity and hold harmless. Consequently, such release, indemnity and hold harmless shall be construed broadly in favor of the Indemnitees. 16.2 NOTWITHSTANDING ANY OTHER PROVISION OF THIS PERMIT, PSE SHALL NOT HAVE ANY LIABILITY TO THE CITY FOR ANY: LOSS OF PROFIT OR REVENUE, LOSS OF USE OF THE EQUIPMENT OR THE SYSTEM, CLAIMS OF CUSTOMERS OF THE CITY FOR SERVICE INTERRUPTIONS, OR DIRECT, INDIRECT, INCIDENTAL, SPECIAL, ECONOMIC OR CONSEQUENTIAL DAMAGES, AS A RESULT OF OR RELATED TO THE EQUIPMENT, THE EXISTENCE OF THE EQUIPMENT AT THE SITE, OR THIS PERMIT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY) OR OTHERWISE, EVEN IF PSE HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME. 16.3 NOTWITHSTANDING ANY OTHER PROVISION OF THIS PERMIT, the City SHALL NOT HAVE ANY LIABILITY TO PSE FOR ANY LOSS OF PROFIT OR REVENUE, CLAIMS OF CUSTOMERS OF PSE FOR SERVICE INTERRUPTIONS, OR INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, AS A RESULT OF OR RELATED TO THE EQUIPMENT, THE EXISTENCE OF THE EQUIPMENT AT THE SITE, OR THIS PERMIT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, PRODUCT LIABILITY OR STRICT LIABILITY) OR OTHERWISE, EVEN IF THE CITY HAS BEEN ADVISED OF THE POSSIBILITY OF THE SAME. 16.4 PSE'S LIABILITY (WHETHER IN TORT, CONTRACT OR OTHERWISE AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE (WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY OR STRICT LIABILITY OF PSE) UNDER THIS PERMIT OR WITH REGARD TO THE SITE SHALL IN NO EVENT EXCEED THE COMPENSATION ACTUALLY PAID TO PSE UNDER City of Federal Way Master Agreement 6-27-05 Exhibit B Page 18 THIS PERMIT WITH RESPECT TO THE SITE, EXCEPT TO THE EXTENT OF PROVEABLE, ACTUAL DAMAGES DUE TO THE ACTS OR OMISSIONS OF PSE. 17. Worker's Cotnnensation. Insurance and Bonds. 17.1 The City shall ensure that the City and all persons undertaking any Permitted Activities, including without limitation the City's Support, maintain in effect at all times, coverage or insurance in accordance with the applicable laws relating to worker's compensation and employer's liability insurance (including, but not limited to, the Washington Industrial Insurance Act and the laws of the state in which any such person was hired), regardless of whether such coverage or insurance is mandatory or merely elective under the law. The City shall furnish to PSE such assurance and evidence of such coverage or insurance (such as copies of insurance policies and Certificates of Compliance issued by the Washington State Department of Labor and Industries) as PSE may request. 17.2 The City shall secure and maintain in effect at all times during the Term the following insurance: 17.2.1 fire insurance, with endorsements for extended coverage vandalism and malicious mischief, on the Site, in an amount not less than ninety percent (90%) of the full replacement cost of the Site (including without limitation, all equipment and facilities located thereon); and 17.2.2 Commercial General Liability Coverage, including personal injury, bodily injury, property damage, operations hazard, independent contractor coverage, contractual liability, products and completed operations liability and stop gap coverage, in limits not less than five million dollars ($5,000,000) for each occurrence (combined single limit) with the City named as insured therein and PSE named as an additional insured therein as their respective interests may appear. 17.3 Unless otherwise approved by PSE, all required insurance is to be placed with insurers with a Best's rating of no less than A: VIII. Prior to commencement of performance of any of the Work, the City shall deliver to PSE a Certificate ofInsurance and copies of all endorsements naming PSE as additional insured. All policies must contain an undertaking by the insurers to notify PSE in writing not less than thirty (30) days before any material change, reduction in coverage, cancellation or termination of the insurance. the City and PSE will each year review the limits for the insurance policies required by this Permit. Policy limits will be adjusted to proper and reasonable limits as circumstances warrant, but policy limits will not be reduced below those stated in paragraph 17.2 and no increases in the policy limits will be effective unless the City and PSE mutually agree. 17.4 The City shall also furnish PSE with such additional assurance and evidence of such insurance (such as copies of all insurance policies) as PSE may from time to time request. Within thirty (30) days after any notice of termination, cancellation, expiration or alteration in any policy of insurance required under this Permit, the City shall deliver to PSE a Certificate ofInsurance acceptable to PSE with respect to any replacement policy. 17.5 The City shall ensure that any policies of insurance that the City or any of its Support carry as insurance against property damage or against liability for personal injury (including death) or property damage shall include a provision therein providing a waiver of the insurer's right to subrogation against the Indemnitees. To the extent permitted by its insurance policies, the City hereby waive all rights of subrogation against the Indemnities. 17.6 All insurance carried by the City or any of its Support shall be primary insurance with respect to the interests ofPSE, and any insurance or self-insurance maintained by PSE is in excess and not contributory insurance with the insurance required hereunder. 17.7 The requirements of this Permit as to insurance and acceptability to PSE ofinsurers and insurance to be maintained by the City are not intended to and shall not in any manner limit or qualify the liabilities and obligations of or assumed by the City under this Permit. 18. Asshmment, Successors and Assi2:ns. 18.1 The City shall not assign this Permit or any portion of its rights in this Permit, and shall have no right to sublet or grant any easement, license or other rights with respect to the Site, except that the City may assign this Permit as follows: 18.1.1 to any person or entity that controls, is controlled by or under cornmon control with the City (the "Acquiring Affiliate"); provided that the City gives PSE written notice of any such assignment or transfer and pays all amounts then outstanding and owing to PSE under this Permit; provided further that the Acquiring Affiliate certifies to PSE in writing (and provides such documents as may be requested by PSE to establish to PSE's sole satisfaction) that the Acquiring Affiliate (i) will City of Federal Way Master Agreement 6-27-05 Exhibit B Page 19 assume all of the obligations of the City under this Permit, and (ii) is financially able to and will comply with all of the provisions of this Permit; and provided further that the City furnishes to PSE such information regarding the Equipment affected by such assignment or transfer as may reasonably be requested by PSE; 18.1.2 to the City's 1ender(s) for security purposes in connection with the financing and refinancing, from time to time, by the City, provid~d that upon any transfer pursuant to any foreclosure of such security or any sale or other transfer in lieu of such foreclosure the person or entity acquiring the interests subject to such transfer assumes all ofthe obligations of the City under this Permit; or 18.1.3 to any other person or entity with the prior written consent of PSE. 18.2 Except as specifically provided in paragraph 18.1, any assignment or apportionment, or purported assignment or apportionment of this Permit, whether it be express, by operation of law or otherwise, shall be voidable by PSE. In any event, no assignment or apportionment of this Permit shall relieve the City from any of its liabilities or obligations under this Permit. Subject to the foregoing restrictions on assignments without the prior written consent ofPSE, this Permit shall be fully binding upon, inure to the benefit of and be enforceable by the successors and assigns of the respective parties hereto. 19. Casualtv or Condemnation of the Site 19.1 If there is a casualty to any structure upon which the Equipment is located, PSE will use reasonable efforts to repair or restore the structure within sixty (60) days, Upon completion of such repair or restoration, the City will be entitled to reinstall the Equipment. In the event such repairs or restoration will, in PSE's reasonable estimation, require more than sixty (60) days to complete: 19.1.1 the City or PSE will be entitled to terminate the Term; or 19.1.2 unless the Term is terminated as provided in paragraph 19.1.1, the City may immediately install temporary Equipment, including any necessary supporting structure, (a) at the Site, or (b) at another unused portion ofPSE's property adjacent to the Site, to the extent the City has the rights to do so, while PSE makes repairs to the Site and so long as the temporary Equipment and associated Work does not interfere with PSE's own restoration and operation of its facilities. 19.2 If there is a condemnation of the Site, including without limitation a transfer of the Site by consensual deed in lieu of condemnation, then the Term will terminate upon transfer of title to the condemning authority, without further liability to either Party under this Permit. the City may pursue a separate condemnation award for the Equipment and any relocation or other costs from the condemning authority provided that such award does not reduce the amount ofPSE's award. 20. Subordination. 20.1 111e City agrees that this Permit is subject and subordinate at all times to the lien of all mortgages alld deeds of trust securing any amount or amounts whatsoever which may now exist or hereafter be placed on or against the Site or on or against PSE's interest or estate therein, and any underlying ground lease or master lease on a particular Site, all without the necessity of having further instruments executed by the City to effect such subordination. 20.2 This Permit is further subject to any and all restrictions or other terms or conditions contained in the underlying ground lease, master lease, easement, license, franchise, permit or other instrument of authorization or conveyance (an "Instrument") with respect to the Site. the City agrees to commit no act or omission which would constitute a violation of the terms and conditions of any Instrument for the Site insofar as PSE has provided a copy of such Instrument to the City or otherwise notified the City of the term or condition in question. 20.3 PSE shall not be required to obtain any consent required under any Instrument from the landlord or other party to such Instrument for purposes of this Permit, unless hereafter agreed upon by PSE in writing. 20.4 If a restriction contained in an Instrument for the Site prevents the City from installing, maintaining or operating the Equipment or accessing the Site, the City will be entitled to terminate the Term without liability on the part of the City for such termination (but without limiting in any way the City's liability under this Permit or otherwise for activities undertaken prior to such termination or for obligations which, under the express terms of this Permit, survive such termination. City of Federal Way Master Agreement 6-27~05 Exhibit B Page 20 20.5 Upon the termination or expiration of any Instrument with respect to the Site, the Term shall automatically terminate without liability to either Party. the City acknowledges that many ofPSE's underlying Instruments grant to the property owner the right to terminate such Instruments, and that in the event of such termination, the Term shall terminate concurrently therewith without liability to either Party. 20.6 Upon any sale or other transfer of all or any portion of the Site, the Term will automatically terminate except to the extent the purchaser or transferee and the City enter into an agreement for the City's continued use of the Site and release PSE from any further obligation or liability with respect to the Site. PSE shall have no obligation to request or obtain such agreement from the purchaser or transferee. 20.7 PSE will not materially breach the terms or conditions of any Instrument with respect to a particular Site in a manner that causes the City to lose its use of the Site. 21. Notices. Any notice, request, approval, consent, instruction, direction or other communication given by either PSE or the City to the other under this Permit shall be in writing and shall be delivered in person or mailed, properly addressed and stamped with the required postage, to: If to PSE: puget Sound Energy P.O. Box 90868 GEN-02E Bellevue, W A 98009-0868 Attn: Communications Siting & Services With copy to: puget Sound Energy 10885 NE 4'" Street - PSElON Bellevue, W A 98004 Attn: Real Estate If to the City: City of Federal Way P.O. Box 9718 Federal Way, WA 98063-9718 Atten: Madri Sadri, Information Services Manager Either Party may from time to time change such address by giving the other Party notice of such change in accordance with the provisions of this paragraph 21. 22. No Partnership. This Permit shall not be interpreted or construed to create an association, joint venture or partnership between the Parties or to impose any partnership obligations or liability upon either Party. Neither Party shall have any right, power or authority to enter into any agreement or undertaking for or on behalf of, to act as or be an agent or representative of, or to otherwise bind the other Party. 23. Attornevs' Fees. The prevailing Party in any suit, action, or arbitration filed or held concerning this Permit shall be entitled to recover, in addition to all other relief, its reasonable attorney's fees incurred in connection therewith, both at trial and on any appeal. 24. Severabilitv. The invalidity or unenforceability of any provision of this Permit shall not affect the other provisions hereof, and this Permit shall be construed in all respects as if such invalid or unenforceable provisions were omitted. 25. Survival. All provisions of this Permit which may reasonably be interpreted or construed as surviving the completion, termination or cancellation of the Term or this Permit, shall survive the completion, termination or cancellation of the Term or this Permit. 26. Headinl!s. The headings of sections and paragraphs of this Permit are for convenience of reference only and are not intended to restrict, affect or be of any weight in the interpretation or construction of the provisions of such sections or paragraphs. 27. Nonwaiver. The failure of either Party to insist upon or enforce strict performance by the other Party of any of the provisions of this Permit, or to exercise any rights under this Permit, shall not be construed as a waiver or relinquishment to any extent of its right to assert or rely upon any such provisions or rights in that or any other instance; rather, the same shall be and remain in full force and effect. 28. Force Maieure. If a Party is delayed or hindered in, or prevented from performance required under this Permit (other than any delay or failure relating to payment of money, including, without limitation, the Annual Fees and all reimbursable costs and expenses described elsewhere in this Permit) by reason of earthquake, landslide, strike, lockout, labor trouble, failure of power, riot, insurrection, war, acts of God or other City of Federal Way Master Agreement 6-27-05 Exhibit B Page 21 reason of like nature not the fault of the such Party, such Party is excused from such performance for the period of delay. The period for the performance of any such act shall then be extended for the period of such delay. 29. Memorandum of Use. Neither Party shall record this Permit or otherwise cause this Permit to be recorded. 30. Entire Ae:reement. The rights and obligations of the Parties hereunder shall be subject to and governed by this Permit. This Permit sets forth the entire agreement of the parties, and supersedes any and all prior agreements, with respect to the Equipment, the Work, the Site and other subject matter of this Permit. This Permit may not be modified except by a writing executed contemporaneously herewith or subsequent hereto signed by both Parties. 31. Annlicable Law. This Permit shall in all respects be interpreted, construed and enforced in accordance with the laws of the State of Washington. 32. Miscellaneous. As conditions to approval of this Permit, the following also apply: "these are site s eci IC conditions and are identi led on a case b case basis at the time 0 SLA issuance" City of Federal Way Master Agreement 6-27-05 Exhibit B Page 22 LIST OF APPENDICES TO GENERAL CONDITIONS OF SITE PERMIT Apoendix 1 2 3 4 5 Title Site Equipment Site Development Plan Annual Fees Certificate of Insurance City of Federal Way Master Agreement 6-27~05 Exhibit B Page 23 City of Federal Wa.y Master Agreement 6-27-05 Exhibit B APPENDIX 3 Site Develoument Plan Page 26 APPENDIX 4 Annual Fees I. DEFINITIONS A. "Attachment Facilities" are those sit~s that include the utilization of an existing PSE tower, pole, structure or other improvement suitable for attachment of antenna and associated masthead electronics. B. "Raw Land Sites" are those sites owned in fee or leased by PSE that either require installation of new structures to support antenna and associated masthead electronics, or where such structures already exist. These sites may be portions of larger sites. They may also be located on partial rights held by PSE that are broad enough to accommodate the City's facilities (typically this does not include easements), Such sites do not include structures or improvements owned or leased by PSE. Such sites are intended to make available an area for equipment cabinet and equipment pad and/or other related incidental improvements authorized under terms of the Site Permit. NOTES: . Annual rental on any "site" may include charges from either or both Section II (Attachment), and Section III (Raw Land) below. . It is understood that the City will secure such additional rights as needed for its facilities. . Cost of utilities to service the permitted use to be borne by the City. . Cost of improvements for the City's facilities to be borne by the City, II. ANNUAL RENTAL RATES FOR ATTACHMENT FACILITIES A. Micro-site or DAS - 1.) one omni or one-two (2) ft panel antenna........... ...$1,200.00/po1e/yr 2.) DAS node (tenant model) - up to six panel antenna (generally assumed as 2' - 4') ...... $1 ,500.00/pole/yr - one tenant ............................................ $3,000.00/po1e/yr - second tenant ........................................... $4,500.00/po1e/yr - third tenant B. Standard Wireless site - three to six panel antenna (generally assumed as 5' - 8') 1.) Attachments to distribution poles (Less than 50kV) ..... ...$3,600.00/po1e/yr. 2,) Attachments to transmission poles (Greater than 50kV) and steel structures....... ................ ................... .. $6,000.00/pole/yr. c. Othcr I,) Annual rental rates for attachments to communications towers owned / leased by PSE shall be determined on a case by case basis. 2.) Annual rates for attachments to buildings owned/leased by PSE shall be determined on a case by case basis. NOTES: . Attachment to a poleltower previously replaced by another wireless carrier/provider will require a reimbursement of a proportionate share of the pole, design & construction costs by the City to the existing occupants. . Wireless Expansion site - adding a second array post construction will result in a 50% increase to existing pole rate. Escalation: Rents for attachments to PSE structures and improvements shall increase at the rate of twenty (20%) at five-year intervals, on the anniversary ofthe Original Execution Date of the Master Agreement. City of Federal Way Master Agreement 6-27-05 Exhibit B Page 27 ~ . . III. ANNUAL RENTAL RATES FOR RAW LAND SITES (LAND ONLY) Annual rent for Raw Land sites (Land only) .............$12,OOO.OO/yr Escalation: 1.) Annual rents for Raw Land Sites shall increase at the rate of twenty (20%) at five-year intervals, on the armiversary of the Original Execution Date of the Master Agreement. 2.) PSE reserves the right to adjust the above Annual Rent Schedule to market value at the ten-year armiversary (or any year thereafter) of the Original Execution Date of the Master Agreement; provided, however, that if any increase in fees is unacceptable to the City, then the City shall have the right to terminate this Pennit by giving PSE written notice of termination within thirty (30) days after PSE notifies the City of the increase._IfPSE elects to implement an adjustment under this paragraph 2, such adjustment will be in lieu of the increase that would otherwise take effect under paragraph 1, above, (i,e. on the tenth armiversary of the Original Execution Date of the Master Agreement). City of Federal Way Master Agreement 6-27-05 Exhibit B Page 28