ORD 07-553
ORDINANCE NO. 07-553
ORIGINAL
AN ORDINANCE QF THE CITY COUNCIL OF THE CITY OF FEDERAL
WAY, WASHINGTON, GRANTING CLEARWIRE US LLC, A NEVADA
LIMITED LIABILITY COMPANY, A NONEXCLUSIVE FRANCHISE TO
OCCUpy RIGHTS-OF-WAY OF THE CITY OF FEDERAL WAY,
WASHINGTON, WITHIN THE SPECIFIED FRANCHISE AREA FOR THE
PURPOSES OF INSTALLATION, OPERATION, MAINTENANCE AND
REPAIR OF ITS WIRELESS COMMUNICATIONS FIXTURES AND
RELATED EQUIPMENT, CABLES, ACCESSORIES AND
IMPROVEMENTS IN A PORTION OF THE RIGHTS-OF-WAY WITHIN
AND THROUGH THE CITY OF FEDERAL WAY.
WHEREAS, Clearwire US LLC, a Nevada.limited liability company ("Franchisee") has
requested a Franchise from the City of Federal Way, in order to place wireless transmitting
facilities and related appurtenances in the City owned or controlled rights-of-way; and
WHEREAS, the City Council of Federal Way finds that it is in the public interest to grant
such a Franchise which will specify the rights and duties of Franchisee; and
WHEREAS, RCW 35A.47.040 et. seq. permits the City of Federal Way to grant
nonexclusive Franchises for the use of public streets, bridges or other public ways for, inter alia,
conduits, wires and appurtenances for transmission of signals and other methods of
communications; and
WHEREAS, in granting such a nonexclusive Franchise Agreement, the City of Federal
Way reserves such other powers and authorities granted to Washington code cities by general
law;
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
Section 1.
Definitions
Where used in this Franchise the following terms shall be defined as follows:
1.1 "City" means the City of Federal Way, Washington, a municipal corporation of
the State of Washington, and its respective successors and assigns.
1.2 "Council" means the City of Federal Way Council acting in its official capacity.
ORD #07-553, PAGE 1
1.3 "Director" means the Public Works Director, or designee, of the City of Federal
Way Public Works Department.
1.4 "Facilities" means: (i) wireless communications facilities, including, but not
limited to, electronic equipment, radio transmitting and receiving apparatus, and supporting
equipment to be located on a pole on a certain public right of way, base station transmitting
cabinets, radio frequency antennas and locating antennas as required by law or FCC order, (ii)
underground fiber optic telecommunication lines or similar lines, and (iii) any appurtenances
necessary to connect the lines or similar lines to the existing switched telephone network all as
shown on Exhibit "A".
1.5 "Franchise Area" means only that portion of the City owned or controlled rights-
of-way located in the City of Federal Way and shown in Exhibit A attached hereto (excluding
privately owned property), and/or any other areas approved by the Federal Way City Council and
incorporated into this Ordinance via amendment.
1.6 "Franchisee" means Clearwire US LLC, and its respective successors and assigns
if consented to by the City of Federal Way as provided in Section 24 herein.
1.7 "FWCC" means the Federal Way City Code.
Section 2. Grant/Acceptance
2.1 Grant of Franchise.
The City hereby grants to Franchisee the nonexclusive right to enter upon the Franchise
Area for the limited purpose of constructing, excavating, installing, maintaining, restoring, and
repairing Facilities within the Franchise Area. This Franchise is specifically limited to the right
for Franchisee to install Facilities o~ed and operated by Franchisee. This Franchise does not
permit Franchisee to lease, rent, or otherwise allow use of conduits, space or capacity provided
by the Facilities for or to cable and other third-party cable or telecommunications providers, and
Franchisee covenants and agrees that it will not do so.
2.2 Acceptance bv Franchisee. Franchisee shall have no rights under this Franchise,
nor shall Franchisee be bound by the terms and conditions of this Franchise, unless Franchisee
ORD #07-553, PAGE 2
shall, within sixty (60) days after the effective date of this Franchise, file with the City its written
acceptance of this Franchise and all of its terms and conditions.
Section 3. Non-Franchise Area City Property
This Franchise does not and shall not convey. any right to Franchisee to install its
Facilities on, under, over, across, or to otherwise use City-owned or leased properties of any kind
outside the Franchise Area, or to install Facilities on, under, over, across or otherwise use any.
City owned or leased property within the Franchise Area other than public roads, streets,
avenues, alleys and highways. Additionally, this Franchise does not convey any right to
Franchisee to install its Facilities on, under, over, across private property or any other
governmental authorities' property or on any other person or entity's poles or apparatus, and
Franchisee is responsible for obtaining any authorizations, agreements or consents from private
property owners, any other governmental authorities and any other persons or entities.
Section 4. Term
Subject to Franchisee filing its acceptance pursuant to Subsection 2.2, the term of this
Franchise shall be for a period of ten (10) years commencing on the effective date of this
Franchise, unless terminated earlier pursuant to this Franchise or other applicable law.
Section 5. Location of Facilities
5.1 Location. ill addition to the other requirements of this Franchise, the location of
the Facilities, including any underground Facilities and appurtenances, their depths below surface
of ground or grade of a rights-of-way, and any related existing equipment (such as cellular or
personal communication service antennae) to which the Facilities are connected shall be depicted
on a map and submitted to the City within thirty (30) days of the installation of the Facilities.
The fiber optic line permitted by this Franchise which runs from the pole in the rights-of-way to
the equipment shed or building on private property shall be installed underground. Upon written
request of the City, Franchisee shall update such map to reflect actual or anticipated
improvements to the system. Any such map (or update thereof) so submitted shall be for
informational purposes only and shall not obligate Franchisee to undertake any specific
ORD #07-553, PAGE 3
improvements, nor shall such map be construed as a proposal to undertake any specific
improvements.
5.2 GIS Data. At such time as Franchisee develops or employs Geographic
illformation System ("GIS") technology, Franchisee shall submit the information required in
Subsection 5.1 above in digital GIS format, showing the location of its Facilities within the
Franchise Area.
5.3 Design Markings. ill the event the City desires to design new streets or
intersections, renovate existing streets, or make any other public improvements, Franchisee shall,
at the City of Federal Way's reasonable request, provide the location of Franchisee's Facilities
within the Franchise Area by either field markings or by locating the Facilities on the City's
design drawings, and shall provide all other reasonable cooperation and assistance to the City.
Section 6. Noninterference of Facilities
Franchisee agrees to maintain its .Facilities and perform any and all activities authorized
by this Franchise: (1) so as not to unreasonably interfere with the free passage of traffic; (2) in
accordance with the laws of the State of Washington and City Code requirements, Franchise
provisions, regulations, resolutions and rules, as now existing of as hereafter amended; and (3) as
required by the Director in accordance with the foregoing or given public health, safety and
welfare. This requirement applies whether or not the work is performed by the Franchisee, its
agents, employees, subcontractors, or other third parties at Franchisee's direction.
Section 7. Reauirement to Obtain Permits
7.1 Permits and Permit Applications.
Franchisee shall, at its expense, obtain all permits, (including rights-of-way permits), and
pay all permit fees required by applicable City ordinances, regulations, resolutions and rules prior
to commencing any work within the Franchise Area. Franchisee permit applications shall show
the position and location of the proposed Facilities to be constructed, laid, installed, or erected at
that time, show their relative position to existing rights-of-way or property lines upon prints
drawn to scale, designate rights-of-way by their names and improvements, such as, but not
ORD #07-553, PAGE 4
limited to, sidewalks, curbs, gutters, shoulders of roadway, ditches, paved roadways, roadways to
property lines, turnouts, parking strips, telephone or electric distribution poles, and water pipes
existing on the ground to be occupied, or as required by the Director. The Franchisee shall
specify the class and type of materials to be used, equipment to be used, and mode of
safeguarding and facilitating the public traffic during construction. Materials and equipment
shall be in new or like new condition for its type and kind. The manner of excavation,
construction, installation, backfill, and temporary structures such as, but not limited to, traffic
turnouts and road obstructions shall meet the standards of the FWCC and be satisfactory to the
Director. All traffic control shall be in accordance with the rights-of-way permit, and shall be in
accordance with the Manual on Uniform Traffic Control Devices (MUTCD). The Franchisee
shall indicate on any permit application the time needed to complete the work. The time needed
to complete the work is subject to approval by the City as a condition of the issuance of the
permit or approval.
7.2 Emergencv Exception to Permit Requirement.
In the event of an emergency in which Franchisee's Facilities within the Franchise Area
are in a condition as to immediately endanger the property, life, health or safety of any individual,
Franchisee may take action immediately to correct the dangerous condition without
first obtaining any required permit so long as: (1) Franchisee informs the City of nature and
extent of the emergency, and the work to be performed, prior to commencing the work; and (2)
such permit is obtained by Franchisee as soon as practicable following cessation of the
emergency.
Section 8. Standard of Performance
The Franchisee shall not excavate for a distance of more than one hundred feet (100')
without immediately backfilling and compacting to surface grade and city standards. Backfilled
trench areas within a driving lane must be patched, either temporarily or permanently, before the
end of the work day in which they have been opened. Trench areas within the rights-of-way, but
ORD #07-553, PAGE 5
not with in a driving lane, must also be patched within the time limits specified by the City on the
rights-of-way use permit. Final surface restoration shall be completed within thirty (30) days and
shall be equal to or better than the surface condition prior to permit issuance.
Any asphalt overlay completed with the Franchise Area during the five (5) year period
immediately prior to the date of permit application shall not be open cut by Franchisee unless
required by an emergency and subject to the provisions of Subsection 7.2 above. Franchisee
shall install new asphalt overlay on any street that is open cut, whether in an emergency or
otherwise, for a minimum of one (1) block (approximately 500 feet) in length in both directions
from the open cut, unless determined otherwise by the Director in accordance with FWCC
regulations or Department of Public Works internal policies.
Within fifteen (15) days of completion of any installation of Franchisee's Facilities within
the Franchise Area, Franchisee shall submit to the Director plans, stamped by a Professional
Engineer licensed by the State of Washington, showing the "as-built" location of the Facilities.
Section 9. Survey Markers and Monuments
Franchisee shall, using a licensed surveyor, immediately replace all markers or
monuments disturbed during any work by Franchisee within the Franchise Area. Franchisee
shall pay all costs associated with such lost, destroyed or disturbed monuments or markers.
Section 10. Surface Markines/Stakes
Prior to Franchisee commencing any excavation work within the Franchise Area,
Franchisee shall reference all monuments and markers relating to subdivisions, plats, highways,
and other surveys. The reference points shall be located so that they shall not be disturbed during
the Franchisee's operations under this Franchise. The method of referencing these monuments or
other points shall be approved by the City before placement. The construction shall be made as
expeditiously as conditions permit, and as directed by the City. The cost of monuments or other
markers lost, destroyed, or disturbed, and the expense of replacement of the monuments and
markers, shall be borne solely by the Franchisee. A complete set of reference notes for
monuments, markers and other ties shall be filed with the City.
ORD #07-553, PAGE 6
Section 11. Rieht of City to Complete Work
In the event Franchisee fails to comply with any applicable federal, state or City laws,
ordinances, rules, regulations or standards or with any of the terms of this Franchise, and such
noncompliance continues for a period of ten (10) days after Franchisee receives written notice
from the City regarding the noncompliance, the City may, but in no event is the City obligated to,
order any work completed, including without limitation Franchisee's obligation to repair pursuant
to Section 8 herein and Franchisee's obligation to remove or relocate facilities pursuant to
Section 12 herein. If the City causes such work to be done by its own employees or by any
person or entity other than Franchisee, Franchisee shall, upon the City's written request,
reimburse the City for all reasonable costs and expenses incurred by the City in having such work
performed, which costs may include the City's reasonable overhead expenses and attorneys fees,
within five (5) days. However, the City shall not have any electrical work accomplished by any
person or entity other than Franchisee or a qualified and licensed electrical contractor.
Section 12. Notice to Franchisee of Work by City
12.1 City Reservation of Rights. The City reserves the right to use, occupy and enjoy
all or any part of the Franchise Area, either above, below, or adjacent to the Facilities, for any
purpose that is not inconsistent with the terms and conditions of this Franchise. The rights
reserved herein include, without limitation, the construction, installation, and/or maintenance of
any electrical, water, sewer or storm drainage line, traffic signals, street lights, trees, landscaping,
bicycle paths and lanes, equestrian trails, sidewalks, other pedestrian amenities, and other public
street improvement projects.
This Franchise is not an exclusive Franchise and shall not be construed in any manner to
prohibit the City from granting other and further franchises in, under, over, upon, and along the
Franchise Area, nor from exercising such other powers and authorities granted to the City by the
Washington State Constitution and general law.
Franchisee shall operate the Facilities in a manner that will not cause interference to the
City, and other lessees, franchisees, or licensees of the Franchise Area whose use predates this
ORD #07-553, PAGE 7
Franchise, and in compliance with the requirements ofFWCC Section 22-972 as it now exists or
is hereafter amended. In addition, with respect to lessees, franchisees or licensees whose
operations commence after installation ofthe Facilities hereunder, Franchisee shall not make any
change in its operations that causes or is intended to cause material interference with such
lessees, franchisees or licensees. All operations by Franchisee shall be in compliance with all
Federal Communications Commission ("FCC") regulations.
Pursuant to FWCC Section 22-971 as it now exists or is hereafter amended, the City may
issue permits for and enter into franchises and leases to allow location or collocation of other
telecommunications facilities in the Franchise Area, and Franchisee consents to same, provided
however, that the location or collocation must occur in compliance with said FWCC Section 22-
971 as it now exists or is hereafter amended.
ill the event that any such location or collocation results in interference with Franchisee's
operations, and provided that Franchisee has substantially complied with the provisions of this
Franchise, the City agrees to take reasonable steps to cause the interfering party to eliminate such
interference. ill the event that the interference is not eliminated within thirty (30) days of notice
to City by Franchisee, Franchisee may terminate this Franchise immediately and pursue any and
all remedies available to it against the interfering party (but in no event shall Franchisee pursue
any action against City at law or in equity or for declaratory relief).
12.2 City's Duties. ill the event (i) the City undertakes any work, including necessary
maintenance within a rights-of-way in which Franchisee's Facilities are located, or (ii) the City
requires undergrounding of Facilities of Franchisee or lines or equipment of any other entity due
. to the City requiring the removal of any poles, and such work necessitates the relocation of
Franchisee's then existing Facilities within the Franchise Area, the City shall:
(a) Provide written notice of the required relocation or undergrounding to Franchisee
within a reasonable time prior to the commencement of such City work; and
(b) Provide Franchisee with copies of pertinent portions of the City's plans and
specifications.
ORD #07-553, PAGE 8
Then, Franchisee shall relocate or underground (as the case may be) its Facilities to
accommodate or comply with the City work.
12.3 Franchisee's Duties. Within sixty (60) days of receipt of the City notice under
Subsection 12.2(a) requiring relocation or undergrounding and receipt of the plans and
specifications pursuant to Subsection 12.2(b), Franchisee shall raise, lower, or move or
underground such Facilities within the Franchise Area at its sole cost and expense to the location
or position directed by the City to comply with City requirements or to cause the least
interference with the improvement, repair, or alteration contemplated by the City and to conform
to such new grades as may be established. If the City improves a rights-of-way, Franchisee shall,
at its sole cost and expense, upon receipt of notice, replace the Facilities located in the improved
sub grade of the improvement with substitute Facilities conforming to the specifications for the
improvement of the rights-of-way. ill the event of relocation or undergrounding City and
Franchisee agree to reasonably cooperate to relocate the Facilities to a different area of the
Franchise Area, if possible. Any relocation of the Facilities shall be performed by Franchisee.
City shall prov~de Franchisee with thirty (30) days notice, or in the event of emergency, with
notice if it is reasonably practicable to do so. The City shall reasonably cooperate with
Franchisee in processing any required zoning approvals for relocating the Facilities including
suggesting alternative locations in the Franchise Area if such are reasonable possibilities.
Section 13. Damaee Repair
ill case of damage by the Franchisee, its agents or employees or by the Facilities of the
Franchisee to rights-of-way, or to public and private improvements in or to rights-of-way, the
Franchisee agrees to repair the damage at its own cost and expense. The Franchisee shall, upon
discovery of any such damage, immediately notify the City. The City will inspect the damage,
and set a time limit for completion of the repair. If the City discovers damage caused by the
Franchisee to rights-of-way, or to public and private improvements in or to rights-of-way, the
City shall give the Franchisee notice of the damage and set a time limit in which the Franchisee
must repair the damage. ill the event the Franchisee does not repair a rights-of-way or an
ORD #07-553, PAGE 9
improvement to a rights-of-way as required in this section, the City may repair the damage
pursuant to Section 11 of this Agreement.
Section 14. Default
14.1 Notice of Default. ill addition to other remedies set forth herein, if Franchisee
shall fail to comply with any of the provisions of this Franchise, the City may serve a written
notice to Franchisee ordering such compliance and Franchisee shall have ten (10) days from the
receipt of such notice in which to comply.
14.2 Revocation of Franchise. If Franchisee is not in compliance with this Franchise
after the expiration of the ten (10) day period, the City may, by resolution, declare the Franchise
immediately revoked.
Section 15. Limited Riehts
This Franchise is intended to convey only a limited right and interest to Franchisee in the
Franchise Area. This Franchise is not a warranty of title or conveyance of any ownership interest
in or to the Franchise Area to Franchisee.
Section 16. Eminent Domain
The existence of this Franchise shall not preclude the City from acqUlnng by
condemnation, in accordance with applicable law, all or a portion of Franchisee's Facilities
within the Franchise Area for the fair market value thereof. ill determining the value of such
Facilities, no value shall be attributed to the right to occupy the Franchise Area conferred by this
Franchise.
Section 17 . Vacation
If at any time the City, by ordinance, vacates all or any portion of the Franchise Area, the
City will not be liable for any damages or loss to the Franchisee by reason of such vacation. The
City shall notify Franchisee in writing not less than thirty (30) days before vacating all or any
portion of the Franchise Area. The City may, after thirty (30) days written notice to Franchisee,
terminate this Franchise with respect to any such vacated area.
ORD #07-553, PAGE 10
Section 18. Compliance with Laws
18.1 General. Franchisee shall comply with all applicable federal, state and City laws,
Franchises, resolutions, regulations, standards and procedures, as now existing or hereafter
amended or adopted, inQluding without limitation the City's Graffiti Ordinance (Ord. No. 07-
550) and the State Environmental Policy Act; provided, however, that if any term or condition of
this Franchise and any term or condition of any City law, code, franchise, resolution, regulation,
standard, procedure, permit or approval a.re in conflict, the term or condition of this Franchise
will control. Franchisee specifically waives any right to bring an action that any aspect of this
Franchise is contrary to any local, state or federal law (including by way of illustration and not
limitation, the Telecommunications Act of 1996), provided that if this Franchise is determined to
be contrary to local, state or federal law through legal actions brought by others, then Franchisee
shall have the right, as Franchisee's sole remedy, to immediately terminate this Franchise without
penalty or other liability at its sole discretion.
18.2 Future City of Federal Way Regulation. Franchisee acknowledges that the City
may develop generally applicable rules, regulations, ordinances and specifications for the use of
the rights-of-way which shall govern Franchisee's Facilities and activities hereunder as if they
were in effect at the time this Franchise was executed by the City and Franchisee covenants and
agrees to be bound by same, provided they do not conflict with state law.
Section 19. Guarantee
Franchisee shall guarantee work completed by the Franchisee under this Franchise for a
period of 10 years against settlement or repair.
Section 20. Charee for Administrative Costs
Franchisee agrees to pay a fee or a charge to recover the actual reasonable administrative
expenses incurred by the City that are directly related to preparing and approving this Franchise.
Nothing herein shall preclude the City from charging administrative fees or recovering any
administrative costs incurred by the City in the approval of permits or in the supervision,
ORD #07-553, PAGE 11
inspection or examination of all work by Franchisee in the Franchise Area as prescribed in
accordance with applicable provisions of the FWCC.
Section 21. Indemnification
Franchisee agrees to indemnify and hold harmless and defend the City, its elected
officials, officers, employees, agents, and volunteers from any and all claims, demands, losses,
actions and liabilities (including costs and all attorney fees) to or by any and all persons or
entities, including, without limitation, their respective agents, licensees, or representatives,
arising from, resulting from, or connected with this Franchise to the extent caused in part or in
whole by the acts, errors or omissions of the Franchisee, its officers, partners, shareholders, .
managers, members, agents, employees, or by the Franchisee's breach of any provisions of this
Franchise; provided, however, that this section shall not be construed as requiring Franchisee to
indemnify, hold harmless or defend the City against claims or damages arising from the
negligence of the City, its agents, employees, independent contractors, officers, or volunteers. ill
the event any claim, demand, suit or action is commenced against the City that gives rise to
Franchisee's obligation pursuant to this Section 21, the City shall promptly notify Franchisee
thereof. Franchisee's selection of an attorney to defend any such claim, demand, suit, or action
shall be subject to the City's approval, which shall not be unreasonably withheld. Franchisee
shall not settle or compromise any such suit or action except with prior written consent of the
City, which shall not be unreasonably withheld. The City shall have the right at all times to
participate through its own attorney in any suit or action which arises pursuant to this Franchise
when the City determines that such participatiop is required to protect the interest of the City or
the public. ill the event It is determined that RCW 4.24.115 applies to this Franchise, Franchisee
agrees to defend, hold harmless and indemnify the City to the maximum extent permitted
thereunder, to the full extent of Franchisee's negligence.
ORD #07-553, PAGE 12
Section 22. Insurance
22.1 Minimum Limits. The Franchisee agrees to carry as a minimum, the following
insurance, in such forms and with such carriers as are satisfactory to the City.
(a) Workers compensation insurance in amounts sufficient pursuant to the
laws of the State of Washington;
(b) Commercial general liability insurance with combined single limits of
liability not less than $5,000,000 for bodily injury, including personal injury or death,
products liability, contractual coverage, operations, explosion, collapse, underground and
property damage;
(c) Automobile liability insurance with combined single limits of liability not
less than $5,000,000 for bodily injury, including personal injury or death and property
damage; and
(d) Employers liability insurance in an amount not less than $1,000,000.
22.2 Mandatory illsurance Provisions. The comprehensive general liability insurance
and automobile liability insurance policies shall be endorsed to contain the following provisions:
(a) The City, its officers, elected officials, employees, and volunteers are to be
named as additional insured;
(b) Coverage shall apply separately to each insured against whom claim is
made or suit is brought, except with respect to the limits of the insurer's liability;
Coverage shall not be suspended, canceled, modified or reduced except after thirty (30)
days prior written notice to the City delivered by certified mail, return receipt requested; and
Coverage shall be primary as to the City, its officers, officials, employees and volunteers.
Any insurance or self-insurance by the City, its officers, officials, employees or volunteers shall
be in excess of Franchisee's required insurance.
22.3 Verification of Coverage. Franchisee shall furnish the City with certificates of
insurance and original endorsements evidencing the coverages required by this Section. The
certificates and endorsements shall be signed by a person authorized by the insurer to bind
ORD #07-553, PAGE 13
coverage on its behalf and must be received and approved by the City pnor to the
commencement of any work. At the City's request, Franchisee shall deliver certified copies of all
required insurance policies.
Section 23. Bond
Franchisee shall guarantee work completed by the Franchisee under this Franchise for a
period often (10) years, from the time of work, against settlement or repair. Before commencing
work within the City, the Franchisee shall post a bond in the form attached as Exhibit "B" and in
the amount of 120% of the value of work to be performed in connection with the Facilities to
guarantee performance of the construction, performance, maintenance or repair in accordance
with any permits required by Section 7, with the standard of performance as referenced in
Section 8, and with any provisions of this Franchise. Procedures for submission and release of
the bond shall be as provided in FWCC Sections 22-146 and 22-175 or as otherwise provided in
the City Code. ill the event that the Franchisee fails to perform as required herein or by any
permits required by Section 7, the City may perform the work and be reimbursed as provided in
Section 11 above, and may have recourse to the bond in addition to or in lieu of the remedies
provided in Section 11, at the City's sole discretion. Franchisee shall be entitled to return of the
bond, or portion thereof, as remains sixty (60) days after the expiration of the term of the
Franchise, provided the City has not notified Franchisee of any actual or potential damages
incurred as a result of Franchisee's operations pursuant to the Franchise or as a result of default
thereunder.
Section 24. General Provisions
24.1 Entire Agreement. This Franchise contains all of the agreements of the City and
Franchisee with respect to any matter covered or mentioned in this Franchise and no prior
agreements or understandings pertaining to any such matters shall be effective for any purpose.
24.2 Modification. No provision of this Franchise may be amended or added to except
by agreement in writing signed by both City and Franchisee.
ORD #07-553, PAGE 14
24.3 Assignment. ill addition to the requirements of Subsection 2.1, a Franchisee shall
not have the right to transfer or assign, in whole or in part this Franchise without the prior written
consent of the City which will not be unreasonably withheld or delayed. Any transferee or
assignee shall, within thirty (30) days of the date of any approved transfer or assignment, file
written notice of the transfer or assignment with the City together with its written acceptance of
all terms and conditions of this Franchise. Notwithstanding the foregoing, Franchisee shall have
the right, without such notice or such written contest, to mortgage its rights, benefits and
privileges in and under this Franchise to the Trustee for its bondholders.
24.4 Attorney Fees. ill the event the City or the Franchisee defaults in the performance
of any terms in this Franchise, and the Franchisee or the City places the enforcement of the
Franchise or any part thereof or for the collection of any monies due, or to become due
hereunder, in the hands of an attorney, or files suit upon the same, the prevailing party shall be
entitled to an award of all reasonable attorneys' fees, costs and expenses. The venue for any
dispute related to this Franchise shall be King County, Washington.
24.5 No Waiver. Failure of either party to declare any breach or default by the other
party immediately upon the occurrence thereof, or delay in taking any action in connection
therewith, shall not waive such breach or default, but such party shall have the right to declare
any such breach or default at any time. Failure of either party to declare one breach or default
does not act as a waiver of such party's right to declare another breach or default.
24.6 Governing Law. This Franchise shall be made in and shall be governed by and
interpreted in accordance with the laws of the State of Washington.
24.7 Authority. Each individual or entity executing this Franchise on behalf of the City
and Franchisee represents and warrants that such individual or entity is duly authorized to
execute and deliver this Franchise on behalf of the Franchisee or the City, respectively.
24.8 Notices. Any notices required to be given by the City to Franchisee or by
Franchisee to the City shaIi be delivered to the parties at the following addresses:
ORD #07-553, PAGE 15
Franchisee:
City:
Clearwire US
5808 Lake Washington Blvd. NE, Suite 300
Kirkland, W A 98258
City of Federal Way
Attn: City Attorney
P. O. Box 9718
Federal Way, WA 98063-9718
Any notices may be delivered personally to the addressee of the notice or may be
deposited in the United States mail, postage prepaid, to the address set forth herein. Any notice
so posted in the United States mail shall be deemed received three (3) days after the date of
mailing.
24.9 Captions. The respective captions of the sections and subsections of this
Franchise are inserted for convenience of reference only and shall not be deemed to modify or
otherwise/affect in any respect any of the provisions of this Franchise.
24.10 Remedies Cumulative. Any remedies provided for under the terms of this
Franchise are not intended to be exclusive but shall be cumulative with all other remedies
available to the City at law, in equity or by statute.
Section 25. Severability
If any section, sentence, clause, or phrase of this Franchise should be held to be invalid or
unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall
not affect the validity or con~titutionality of any other section, sentence, clause or phrase of this
Franchise.
Section 26. Ratification
Any act consistent with the authority and prior to the effective date of this Franchise is
hereby ratified and affirmed.
Section 27. Effective Date
This ordinance shall take effect and be in force 30 days from the time of its final passage,
as provided by law, provided it has been duly accepted by Franchisee as herein provided above.
PASSED by the City Council of the City of Federal Way this 17th day of April, 2007.
ORD #07-553, PAGE 16
CITY OF FEDERAL WAY
~d~<.
APPROVED AS TO FORM:
ATTEST:
r~1J ~~
City Attorney, Patricia A. Richardson
MC
FILED WITH THE CITY CLERK: 3/~7( 01
PASSED BY THE CITY COUNCIL: '1/17(07
PUBLISHED: iff J.Jlol
EFFECTIVE DATE: 5/17/07
ORDINANCE NO. 0-, -553
ACCEPTANCE:
ORD # !J7-S53 , PAGE 17
. ACCEPTANCE
The undersigned hereby accepts all the rights and privileges of the above granted
Franchise and acknowledges that such rights and privileges are subject to and limited by all of
the terms, conditions and obligations contained therein.
DATED this ~ day of
~,~
\
, 2007.
CLEARWIRE~U ,LLC
_~ ~~( V\J
By:
Its: \ rr) .
j~\~ ~v0
"-
K:\Franchises\Clearwire Franchise TAC392 Dash Point Road
ORD # Ol-s53 , PAGE 18
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Bond #08857018
EXHIBIT "B"
CITY OF FEDERAL WAY
PERFORMANCE BOND FOR
RIGHT OF WAY FRANCHISE AGREEMENT
KNOW ALL PEOPLE BY THESE PRESENTS:
We, the undersigned Clearwire US LLC, ("Principal") and Fidelity & Deposit Company of Marylan~ the
undersigned corporation organized and existing under the laws of the State of Maryland and legally
doing business in the State of Washington as a surety ("Surety"), are held and firmly bound unto the City
of Federal Way, a Washington municipal corporation, ("City") in the penal sum of Sixty Thousand and 00/100
Dollars and no/100 ($ 60.000.00 ) for the payment of which we firmly bind ourselves and
our legal representatives, heirs, successors and assigns, jointly and severally.
This obligation is entered into pursuant to the statutes of the State of Washington and the ordinances,
regulations, standards and policies ofthc City, as now existing or hereafter amended or adopted.
The Principal has entered into an Agreement with the City dated 04/26/2007 to occupy rights-of-way of
the City of Federal Way, Washington within the specified Franchise Area for the purposes of installation,
operation, maintenance and repair of its wireless communications fixtures and related equipment, cables,
accessories and improvements in a portion of the rights-of-way within and through. the City of Federal
Way.
NOW, THEREFORE, if the Principal shall perform all the provisions of the Agreement in the manner
and within the time period prescribed by the City, or within such extensions of time as may be granted
under the Agreement, and shall pay all laborers, mechanics, subcontractors and material men or women,
and all persons who shall supply the Principal or subcontractors with provisions and supplies for the
carrying on of said work, and shall hold the City, their officials, agents, employees and volunteers
harmless from any loss or damage occasioned to any person or property by reason of any carelessness or
negligence on the part of the Principal, or any subcontractor in the performance of said work, and shall
indemnify and hold the City harmless from any damage or expense by reason of failure of perfonnance
as specified in the Agreement, or from defects appearing or developing in the material or workmanship
provided or performed under the Agreement within the period not less than:
1. the term of the Agreement; or
2. two (2) years beyond the completion of final installation or construction by the Principal
pursuant to the Agreement if required by.the City; whichever is longer, then and in the event this
obligation shall be void; but otherwise, it shall be and remain in full force and effect.
And the Surety, for value received, hereby further stipulates and agrees that no change, extension of time,
alteration or addition to the terms of the Agreement or to the work to be performed thereunder or the
specifications accompanying the same shall in any way affect its obligation on this bond, and it does
hereby waive notice of any change, extension of time. alterations or additions to the terms of the
Agreement or to the Work. .
Within forty-five (45) days of receiving notice that the Principal has defaulted on all or part of the terms
of the Agreement, the Surety shall make a written commitment to the City that it will either:
(a) cure the default itself within a reasonable time period, or (b) tender to the City, the amount necessary
for the City to remedy the default, including legal fees incurred by the City, or (c) in the event that
Surety's evaluation of the dispute is not complete or in the event the Surety disputes the City's claim of
ORD #07-553, PAGE 30
default, the Surety shall notify the City of its finding and its intent, if any, to interplead. The Surety shall
then fulfill its obligations under this bond, according to the option it has elected. Should Surety elect
option (a) to cure the default, the penal sum of the Bond shall be reduced in an amount equal to the costs
actually incurred by the Surety in curing the default. If the Surety elects option (b), then upon
completion of the necessary work, the City shall notify the Surety of its actual costs. The City shall
return, without interest, any overpayment made by the Surety and the Surety shall pay to the City any
actual costs which exceed the City estimate, limited to the bond amount. Should the Surety elect option
(c), the Parties shall first complete participation in mediation, described in the below paragraph, prior to
any interplead action.
In the event a dispute should arise between the Parties to this Bond with respect to the City's declaration
of default by the Principal, the Parties agree to participate in at least four hours of mediation in
accordance with the mediation procedures of United States Arbitration and Mediation (nUSA&MtI). The
Parties shall proportionately share in the cost of the mediation. The mediation shan be administered by
the Seattle USA&M office, 4300 Two Union Square, 601 Union Street, Seattle, Washington 98101-2327.
The Surety shall not interplead prior to completion of the mediation.
DATED this 26th day of
April
,20 07.
CLEARWIRE US, LLC
By: 0-- ~
I . (Nonie orpclSj~hn~slOfch
ts:
Vidit~resident - Network oeployment
4400 Carillon Point
Kirkland, WA 98033
(Address)
425-216-7894
(Pltone)
STATE OF WASHINGTON )
~ )ss.
COUNTY OF' )
On this day pers lly appeared before me , to me known to be the
" F of Clearwire US, LLC executed the foregoing instrument, and acknowledged the
said instrument to be the free and voluntary act and dee of said limited liability company, for the uses and purposes
therein mentioned, and on oath stated that he/she was authorized to execute said inslrument.
GIVEN my hand and official seal this ~
"""''''\\111
$"......~\.. NESS II",
.::::'(.)..(\ ,,''''\\\'11, ..q )-'1
=-'l' $',\,~S\OI\l ~'~I, ?t~
:Cl:'f.:t~, l:jT":; +.0'11, c..~
:: :0 -=." 'i>). ~~ (j)~
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~ :..-\~, VB\..'v .:~=
II, ~A 1111~9_ 19-0t?l ,,~O.:
I" ~ 0 ""1\\\\,,"~0 ~
"'l 'f:' WAS~ :0......'"'
111\\\\"""
( printed name of notary)
Notary Public in and for thq!I1 ~f ~ashington.
My commission expires 0
ORD #07-553, PAGE 31
CORPORATE SEAL OF SURETY:
SURETY Fidelity & Deposit Company of Maryland
,(Jo/) ~..
~. . "
By: AltOme~~t. ebb~\:!nd_~ .......-..
( ,tach Power of ttol1!trY) \. ~::. : . ~~-
- '(If - .....
(Name or' erso Executing Borid) .
Debbie Lindstrom
601 Union Street, Ste. 3400
Seattle, WA 98101
(Address)
206-892-9200
(Phone)
APPROVED AS TO FORM:
/~4~~
Patricia A. Richardson, City Attorney
ORD #07-553, PAGE 32
Power of Attorney
FIDELITY AND DEPOSIT COMPANY OF MARYLAND
KNOW ALL MEN BY THESE PRESENTS: That the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, a
corporation of the State of Maryland, by WILLIAM J. MILLS, Vice President, and ERIC D. BARNES, Assistant Secretary,
in pursuance of authority granted by Article VI, Section 2, of the By-Laws of said Company, . are set forth on the
reverse side hereof and are hereby certified to be in full force and effect on the date e, des by nominate, constitute
and appoint Kathleen M. MITCHELL, Jenell TURNER and Debbie ~ of od City, California,
EACH its true and lawful agent and Attorney-in-Fact, to mak :~~d-I~rv. . behalf as surety, and
as its act and deed: any and all bonds and undert o' ~, ecu or undertakings in pursuance of
these presents, shall be as bindin~UPOn 'adwa6\ ~ I' ents and purposes, as if they had been
duly executed and aCkn~Wled @j'y ele .~I ompany at its office in Baltimore, Md., in their
own proper personsd . er ~ ~ . on behalf of Kathleen M. MITCHELL, Jenell TURNER,
dated April 13, 200'\]' c:;?0E\B l!::J'VI
The said Assistant ~es \He~~ certify that the extract set forth on the reverse side hereof is a true copy of Article VI,
Section 2, of the By-~~d Company, and is now in force.
IN WITNESS WHEREOF, the said Vice-President and Assistant Secretary have hereunto subscribed their names and
affixed the Corporate Seal of the said FIDELITY AND DEPOSIT COMPANY OF MARYLAND, this 21st day of March,
A.D. 2005.
ATTEST:
FIDELITY AND DEPOSIT COMPANY OF MARYLAND
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By:
Assistant Secretary
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Eric D. Barnes
William J. Mills T/ice President
State of Maryland }ss.
City of Baltimore . - ",
On this 21st day of March, A.D. 2005, before the subscriber, a Notary Public of the ~tat~ ofMaryl~nd" duly
commissioned and qualified, came WILLIAM J. MILLS, Vice President, and ERIC D. BARNES, Assistant .secretarY~ofthe
FIDELITY AND DEPOSIT COMPANY OF MARYLAND, to me personally known to be the indiv-iduals and officers
described in and who executed the preceding instrument, and they each acknowledged the execution of the sam.e, and being
by me duly sworn, severally and each for himself deposeth and saith, that they are the said officers of the Company aforesaid,
and that the seal affixed to the preceding instrument is the Corporate Seal of said Company, and that the said Corporate Seal
and their signatures as such officers were duly affixed and subscribed to the said instrument by the authority and direction of
the said Corporation.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed my Official Seal the day and year first above
written.
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Maria D. Adamski Notary Public
My Commission Expires: July 8, 2007
POA-F 016-2128M
EXTRACT FROM BY-LAWS OF FIDELITY AND DEPOSIT COMPANY OF MARYLAND
"Article VI, Section 2. The Chairman of the Board, or the President, or any Executive Vice-President, or any of the Senior
Vice-Presidents or Vice-Presidents specially authorized so to do by the Board of Directors or by the Executive Committee,
shall have power, by and with the concurrence of the Secretary or anyone of the Assistant Secretaries, to appoint Resident
Vice-Presidents, Assistant Vice-Presidents and Attorneys-in-Fact as the business of the Company may require, or to
aut!lDrize any person or persons to execute on behalf of the Company any bonds, undertaking, recognizances, stipulations,
policies, contracts, agreements, deeds, and releases and assignments of judgements, decrees, mortgages and instruments in
the nature ofmortgages,...and to affix the seal of the Company thereto."
CERTIFICATE
I, the undersigned, Assistant Secretary of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND, do hereby certify
that the foregoing Power of Attorney is still in full force and effect on the date of this certificate; and I do further certify that
the Vice-President who executed the said Power of Attorney was one of the additional Vice-Presidents specially authorized
by the Board of Directors to appoint any Attorney-in-Fact as provided in Article VI, Section 2, of the By-Laws of the
FIDELITY AND DEPOSIT COMPANY OF MARYLAND.
This Power of Attorney and Certificate may be signed by facsimile under and by authority of the following resolution of the
Board of Directors of the FIDELITY AND DEPOSIT COMPANY OF MARYLAND at a meeting duly called and held on
the 10th day of May, 1990.
RESOLVED: "That the facsimile or mechanically reproduced seal of the company and facsimile or mechanically
reproduced signature of any Vice-President, Secretary, or Assistant Secretary of the Company, whether made heretofore or
hereafter, wherever appearing upon a certified copy of any power of attorney issued by' the Company, shall be valid and
binding upon the Company with the same force and effect as though manually affixed."
11'1 TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed the corporate seal of the said Company,
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this :f6. Le :;.-', day of
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Apr- ~L
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Assistant Secretary