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ORD 15-803ORDINANCE NO. 15 -803 AN ORDINANCE of the City of Federal Way, Washington, granting T- Mobile West Corporation, 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, T- Mobile West LLC, a Delaware limited liability company ( "Franchisee ") has requested a franchise from the City of Federal Way, in order to place wireless transmitting facilities and related appurtenances in the City owned or 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 permits the City of Federal Way to grant nonexclusive franchises for the use of public streets, bridges or other public ways for, inter alia, conduits, wires, and appurtenances for transmission of signals and other methods of communications; and WHEREAS, in granting such a nonexclusive franchise, the City of Federal Way reserves such other powers and authorities granted to Washington code cities by general law; 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. Ordinance No. 15 -803 Page 1 of 37 1.3 "Director" means the Public Works Director, or designee, of the City of Federal Way Public Works Department. 1.4 "Facilities" means Franchisee' s equipment to be located within the public right -of- way. 1.5 "FWRC" means the Federal Way Revised Code. 1.6 "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. 1.7 "Franchisee" means T- Mobile West Corporation and its respective successors and assigns if consented to by the City of Federal Way as provided in Section 24 herein. Section 2. Grant /Acceptance 2.1 Grant of Franchise. The City hereby grants to Franchisee the nonexclusive right to enter upon the Franchise Area for the limited purpose of constructing, excavating, installing, maintaining, restoring, and repairing Facilities within the Franchise Area. This Franchise is specifically limited to the right for Franchisee to install Facilities owned and operated by Franchisee. This Franchise does not permit Franchisee to lease, rent, or otherwise allow use of conduits, space or capacity provided by the Facilities to any other third -party, including other third -party telecommunications providers, and Franchisee covenants and agrees that it will not do so. 2.2 Acceptance by Franchisee. Franchisee shall have no rights under this Franchise, nor shall Franchisee be bound by the terms and conditions of this Franchise, unless Franchisee shall, within sixty (60) days after the effective date of this Franchise, file with the City its written Ordinance No. 15 -803 Page 2 of 37 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 otherwise to 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. 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. In 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 right -of -way, and any related existing equipment (such as cellular 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 improvements, nor shall such map be construed as a proposal to undertake any specific improvements. Ordinance No. 15 -803 Page 3 of 37 5.2 GIS Data. At such time as Franchisee develops or employs Geographic Information System ( "GIS ") technology, Franchisee shall submit the information required in Subsection 5.1 above in digital GIS format, showing the location of its Facilities within the Franchise Area. 5.3 Design Markings. In the event the City desires to design new streets or intersections, renovate existing streets, or make any other public improvements, Franchisee shall at the City of Federal Way's reasonable request, provide the location of Franchisee's underground Facilities within the Franchise Area by either field markings or by locating the Facilities on the City's design drawings, and shall provide all other reasonable cooperation and assistance to the City. Section 6. Noninterference of Facilities Franchisee agrees to maintain its Facilities and 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 or as hereafter amended; and (3) as required by the Director. This requirement applies whether the work is performed by the Franchisee, its agents, employees, subcontractors, or other third parties at Franchisee's direction. Section 7. Requirement to Obtain Permits 7.1 Permits and Permit Applications. Franchisee shall, at its expense, obtain all permits, including rights -of -way permits, and pay all permit fees required by applicable City ordinances, regulations, resolutions and rules prior to commencing any work within the Franchise Area. Franchisee permit applications shall show the position and location of the proposed facilities to be constructed, laid, 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 limited to, Ordinance No. 15 -803 Page 4 of 37 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 FWRC and be satisfactory to the Director. All traffic control shall be in accordance with the right -of -way permit, and shall be in accordance with the Manual on Uniform Traffic Control Devices (MUTCD). 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 Emergency Exception to Permit Requirement. In the event of an emergency in which Franchisee's Facilities within the Franchise Area are in a condition as to immediately endanger the property, life, health or safety of any individual, Franchisee may take action immediately to correct the dangerous condition without first obtaining any required permit so long as: (1) Franchisee informs the City of the nature and extent of the emergency, and the work to be performed, prior to 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 Ordinance No. 15 -803 Page 5 of 37 day in which they have been opened. Trench areas within the right -of -way, but not with in a driving lane, must also be patched within the time limits specified by the City on the right -of -way use permit. Final surface restoration shall be completed within thirty (30) days and shall be equal to or better than the surface condition prior to permit issuance. Any asphalt overlay completed within the Franchise Area during the five (5) year -period immediately prior to the date of permit application shall not be open cut by Franchisee unless required by an emergency and subject to the provisions of Subsection 7.2 above. Franchisee shall install new asphalt overlay on any street that is open cut, whether in an emergency or otherwise, for a minimum of one (1) block (approximately 500 feet) in length in both directions from the open cut, unless determined otherwise by the Director. 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 Markings /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 Ordinance No. 15 -803 Page 6 of 37 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, shall be borne solely by the Franchisee. A complete set of reference notes for monuments and other ties shall be filed with the City. Section 11. Right 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 13 herein and Franchisee's obligation to remove or relocate facilities pursuant to Section 12 herein. If the City causes such work to be done by its own employees or by any person or entity other than Franchisee, Franchisee shall, upon the City's written request, immediately reimburse the City for all reasonable costs and expenses incurred by the City in having such work performed, which costs may include the City's reasonable overhead expenses and attorney's fees. 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. Required Relocation of Facilities 12.1 City Reservation of Rights. The City reserves the right to use, occupy and enjoy all or any part of the Franchise Area, either above, below, or adjacent to the Facilities, for any purpose that is not inconsistent with the terms and conditions of this Franchise. The rights reserved herein include, without limitation, the construction, installation, and/or maintenance of any electrical, water, sewer or storm drainage line, traffic signals, street lights, trees, landscaping, bicycle paths and lanes, Ordinance No. 15 -803 Page 7 of 37 equestrian trails, sidewalks, other pedestrian amenities, and other public street improvement projects. This Franchise is not an exclusive Franchise shall not be construed to in any manner prohibit the City from granting other and further Franchises in, under, over, upon, and along the Franchise Area, nor from exercising such other powers and authorities granted to the City by the Washington State Constitution and general law. Franchisee shall operate the facilities in a manner that will not cause interference to the City, and other lessees, franchisees, or licensees of the Franchise Area whose use predates this Franchise, and in compliance with the requirements of the Chapter 19.255 FWRC as it now exists or is hereafter amended. In addition, with respect to lessees, franchisees, or licensees whose operations commence after installation of the Facilities hereunder, Franchisee shall not make any change in its operations that causes or is intended to cause material interference with such lessees, franchisees, or licensees. All operations by Franchisee shall be in compliance with all Federal Communications Commission ( "FCC ") regulations. Pursuant to Chapter 19.255 FWRC 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 the Franchisee consents to the same, provided, however, that the location or collocation must occur in compliance with said Chapter 19.255 FWRC as it exists or is hereafter amended. In the event that any such location or collocation results in interference with Franchisee's operations, and provided that Franchisee has substantially complied with the provisions of this Franchise, the City agrees to take reasonable steps to cause the interfering party to eliminate such interference. In the event that the interference is not eliminated within thirty (30) days of notice to City by Franchisee, Franchisee may terminate this Franchise immediately and /or pursue any and all Ordinance No. 15 -803 Page 8 of 37 remedies available to it against the interfering party (but in no event shall Franchisee pursue any action against the City at law, in equity, or for declaratory relief. 12.2 City's Duties. In the event the City undertakes any work, including necessary maintenance within a right -of -way in which Franchisee's facilities are located, and such work necessitates the relocation of Franchisee's then existing Facilities within the Franchise Area, the City shall: (a) Provide written notice of the required relocation to Franchisee within a reasonable time prior to the commencement of such City work; and (b) Provide Franchisee with copies of pertinent portions of the City's plans and specifications so that Franchisee may relocate its Facilities to accommodate the City work Nothing in this section shall be construed as to relieve Franchisee of its duty and obligation to relocate its Facilities, at Franchisee's sole cost, for any improvement project undertaken by, or on behalf of, the City in the interest of public health, safety, welfare, necessity, or convenience, as adjudged in the sole discretion of the City. 12.3 Franchisee's Duties. Within thirty (30) days of receipt of the City notice under Subsection 12.2(a) requiring relocation and receipt of the plans and specifications pursuant to Subsection 12.2(b), Franchisee shall raise, lower, or move such Facilities within the Franchise Area at its sole cost and expense to the location or position directed by the City, to cause the least interference with the improvement, repair, or alteration contemplated by the City and to conform to such new grades as may be established. If the City improves a right -of -way, Franchisee shall, at its sole cost and expense, upon receipt of notice, replace the Facilities located in the improved subgrade of the improvement with substitute Facilities conforming to the specifications for the improvement of the right -of -way. In the event of relocation or undergrounding, the City and Franchisee agree to Ordinance No. 15 -803 Page 9 of 37 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 provide 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 reasonable 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. In addition, Franchisee shall be permitted, at no additional fee, but at Franchisee's cost, to deploy a Cell -on- Wheels or other temporary facilities within a mutually agreeable location in the Franchise Area (not to be unreasonably withheld) so as to minimize any interruption of Franchisee service resulting from such relocation. Section 13. Damage Repair In case of damage by the Franchisee, its agents or employees or by the Facilities of the Franchisee to rights -of -way, or to public and private improvements within or adjacent to rights -of- way, the Franchisee agrees to repair the damage at its own cost and expense. The Franchisee shall, upon discovery of any such damage, immediately notify the City. The City will inspect the damage, and set a time limit for completion of the repair. If the City discovers damage caused by the Franchisee to rights -of -way, or to public and private improvements within or adjacent to rights -of- way, the City shall give the Franchisee notice of the damage and set a time limit in which the Franchisee must repair the damage. In the event the Franchisee does not repair a right -of -way or an improvement as required in this section, the City may repair the damage pursuant to Section 11 of this Agreement. Section 14. Default 14.1 Notice of Default. In addition to other remedies set forth herein, if Franchisee shall Ordinance No. 15 -803 Page 10 of 37 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 sixty (60) 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 sixty (60) day period, the City may, by resolution, declare the franchise immediately revoked. Section 15. Limited Rights This Franchise is intended to convey only a limited right and interest to Franchisee in the Franchise Area. This Franchise is not a warranty of title or conveyance of any ownership interest in or to the Franchise Area to Franchisee. Section 16. Eminent Domain The existence of this Franchise shall not preclude the City from acquiring by condemnation, in accordance with applicable law, all or a portion of Franchisees Facilities within the Franchise Area for the fair market value thereof. In determining the value of such Facilities, no value shall be attributed to the right to occupy the Area 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 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. Section 18. Compliance with Laws 18.1 General. Franchisee shall comply with all applicable federal, state and City laws, Ordinance No. 15 -803 Page 11 of 37 franchises, resolutions, regulations, standards, policies and procedures, as now existing or hereafter amended or adopted, including without limitation the State Environmental Policy Act; provided, however, that if any term or condition of this Franchise and any term or condition of any City law, code, franchise, resolution, regulation, standard, procedure, permit or approval are in conflict, the term or condition of this Franchise will control. The City and Franchisee agree that the terms of this Franchise are consistent with, and not contrary to, local, state and federal law. 18.2 Future City of Federal Way Regulation. Franchisee acknowledges that the City may develop rules, regulations, ordinances and specifications for the use of the right -of -way which shall govern Franchisee's Facilities and activities hereunder as if they were in effect at the time this Franchise was executed by the City and Franchisee covenants and agrees to be bound by same provided they do not conflict with state or Federal law. Section 19. Guarantee Franchisee shall guarantee work completed by the Franchisee under this Franchise for a period of ten (10) years against settlement or repair. Section 20. Charge for Administrative Costs Franchisee agrees to pay a fee or a charge of One Thousand and No /100 Dollars ($1,000.00) to recover the administrative expenses incurred by the City that are directly related to preparing and approving this Franchise. Nothing herein shall preclude the City from charging administrative fees or recovering any administrative costs incurred by the City in the approval of permits or in the supervision, inspection or examination of all work by Franchisee in the Franchise Area as prescribed in accordance with applicable provisions of the Federal Way Revised Code. Section 21. Indemnification Franchisee agrees to indemnify and hold harmless and defend the City, its elected officials, Ordinance No. 15 -803 Page 12 of 37 officers, employees, agents, and volunteers from any and all claims, demands, losses, actions and liabilities (including costs and all attorney's fees) to or by any and all persons or entities, including, without limitation, their respective agents, licensees, or representatives, arising from, resulting from, or connected with this Franchise to the extent caused in part or in whole by the acts, errors or omissions of the Franchisee, its officers, partners, shareholders, agents, employees, or by the Franchisee's breach of any provisions of this Franchise; provided, however, that this section shall not be construed as requiring Franchisee to indemnify, hold harmless or defend the City against claims or damages arising from the negligence of the City, its agents or employees. In the event any claim, demand, suit or action is commenced against the City that gives rise to Franchisee's obligation 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 participation is required to protect the interest of the City or the public. In the event it is determined that RCW 4.24.115 applies to this Franchise, Franchisee agrees to defend, hold harmless and indemnify the City to the maximum extent permitted thereunder, to the full extent of Franchisee's negligence. 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 or that maintain an AM Best Rating of A -VII and are licensed to do business in the state in which the Franchise Area is located. Ordinance No. 15 -803 Page 13 of 37 (a) Workers' compensation and employer's liability 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; and (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. 22.2 Mandatory Insurance Provisions. The commercial 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 below the requirements set forth herein 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 coverage on its behalf and must be received and approved by the City prior to the commencement of any work. Ordinance No. 15 -803 Page 14 of 37 Section 23. Bond Before commencing work within the City, the Franchisee shall post a bond in the form attached as Exhibit B and in the amount of one hundred twenty (120 %) of the work to be performed to guarantee performance of the construction, performance, maintenance or repair in accordance with any permits required and with any provisions of this franchise. Procedures for submission and release of the bond shall be as provided by City Code. In the event that the Franchisee fails to perform as required herein or by any permits required, the City may perform the work as provided herein, and may have recourse to the bond in addition to or in lieu of the remedies provided herein, at the City's sole discretion. Franchisee shall be entitled to return of the bond, or portion thereof, as remains sixty (60) days after the expiration 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. In lieu of the bond required herein, Franchisee, before commencing work within the City, may elect to post a cash security fund (in a from acceptable to the City) or an Assignment of Funds (in the form attached hereto and made part hereof as Exhibit C) in an amount as provided in and to satisfy the requirements of this Section 23, the other Sections referenced in this Section 23, and the provisions of this Franchise. The City shall have recourse to the cash security fund or Assignment of Funds in the same manner and on the same basis as it would otherwise have recourse to the bond as provided in this Section 23, unless otherwise provided in the cash security fund or Assignment of Funds if a cash security fund or an Assignment of Funds is provided by Franchisee. Section 24. General Provisions 24.1 Entire Agreement. This Franchise contains all of the agreements of the Parties with respect to any matter covered or mentioned in this Franchise and no prior agreements or Ordinance No. 15 -803 Page 15 of 37 understandings pertaining to any such matters shall be effective for any purpose. 24.2 Modification. No provision of this Franchise may be amended or added to except by agreement in writing signed by both of the Parties. 24.3 Assignment. Franchisee shall not have the right to transfer or assign, in whole or in part, any or all of its obligations and rights hereunder without the prior written consent of the City. Any assignee shall, within thirty (30) days of the date of any approved assignment, file written notice of the assignment with the City together with its written acceptance of all terms and conditions of this Franchise. Notwithstanding the foregoing, (i) Franchisee may assign or transfer this Franchise to a parent, subsidiary or affiliated entity (any entity who owns or controls, is owned or controlled by, or is under common ownership or control, with Franchisee), provided that the assignee or transferee must have comparable financial strength as Franchisee or sufficient financial strength as deemed reasonably necessary by City, and must agree in writing to comply with all of the provisions of the Franchise including resolution of any noncompliance issues; and (ii) 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. In the event the City or the Franchisee defaults on 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 Ordinance No. 15 -803 Page 16 of 37 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 executing this Franchise on behalf of the City and Franchisee represents and warrants that such individual is duly authorized to execute and deliver this Franchise on behalf of the Franchisee or the City. 24.8 Notices. Any notices required to be given by the City to Franchisee or by Franchisee to the City shall be delivered to the parties at the following addresses: Franchisee: T- Mobile USA, Inc. 12920 SE 38th Street Bellevue, WA 98006 Attn: Lease Compliance Site No: City: City of Federal Way Attn: City Attorney 33325 8th Avenue South Federal Way, WA 98003 Any notices may be delivered personally to the addressee of the notice or may be deposited in the United States mail, postage prepaid (any notice so posted in the United States mail shall be deemed received three (3) days after the date of mailing), or sent by next - business -day delivery via a nationally recognized overnight courier to the addresses set forth herein. The Parties may from time to time designate any other address for this purpose by providing written notice to the other Party at least ten (10) business days in advance. 24.9 Captions. The respective captions of the sections of this Franchise are inserted for convenience of reference only and shall not be deemed to modify or otherwise affect in any respect any of the provisions of this Franchise. Ordinance No. 15 -803 Page 17 of 37 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 Parties at law, in equity or by statute. Section 25. Severability If any section, sentence, clause, or phrase of this Franchise should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this Franchise. Section 26. Ratification Any act consistent with the authority and prior to the effective date of this Franchise is hereby ratified and affirmed. Section 27. Effective Date This Franchise shall take effect and be in full force thirty (30) days after its passage and publication, according to law. PASSED by the City Council of the City of Federal Way this 20th day of October, 2015. CITY OF FEDERAL WAY ATTEST: Ordinance No. 15 -803 Page 18 of 37 APP X VED S FORM: oil CITY AT Y, AMY JO PEARSALL FILED WITH THE CITY CLERK: 10/02/2015 PASSED BY THE CITY COUNCIL: 10/20/2015 PUBLISHED: 10/23/2015 EFFECTIVE DATE: 11/23/2015 ORDINANCE NO.: 15 -803 Ordinance No. 15 -803 Page 19 of 37 ACCEPTANCE: The undersigned hereby accepts all the rights and privileges of the above granted License and acknowledges that such rights and privileges are subject to and limited by all of the terms, conditions and obligations contained therein. DATED this L i 11 day of NrOVW Pgrz- T- MOBILE WEST LLC, A Delaware limited liability com•an y, F- tia logal Appriaa 10/29/15 ii , 2015. Brandon Braunlich Market Manager Engineering & Operations Ordinance No. 15 -803 Page 20 of 37 EXHIBIT A LOCATION OF FACILITIES WITHIN THE FRANCHISE AREA Ordinance No. 15 -803 Page 21 of 37 Ordinance No. 15-803 Page 22 of 37 '4W a Ordinance No. 15-803 Page 23 of 37 16 .. , — 4 • .J : .--* 0 s 4 • w ig$ - bMabi.le• runs .teAtem, i t t t al ; Ordinance No. 15-803 Page 23 of 37 Page 24 of 37 Ordinance No. 15-803 p -4 rr 11 7 1. +0 4 IR 4 1 tg Id. it ig . a i 3' ' 1 - ata a a i t 1 IIEJ IIP lig] I I 4 < „ . ia 7>Jaa ....:, r7' A ll Q -;-ag P .34. VI - 1 MU Ili: IIE IIEJ IIP lig] .....-,. „,.... ..., ia 7>Jaa ....:, a<<f r, 11:0, .....-,. „,.... ..., Ordinance No. 15-803 Page 25 of 37 EXHIBIT B CITY OF FEDERAL WAY PERFORMANCE/MAINTENANCE BOND KNOW ALL PEOPLE BY THESE PRESENTS: We, the undersigned , ( "Principal ") and , the undersigned corporation organized and existing under the laws of the State of and legally doing business in the State of Washington as a surety ( "Surety "), are held and firmly bound unto the City of Federal Way, a Washington municipal corporation, ( "City ") in the penal sum of Dollars and No/ 100 ($ ) 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 of the City, as now existing or hereafter amended or adopted. The Principal has entered into an Agreement with the City dated , 20_, for 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 performance as specified in the Agreement, or from defects appearing or developing in the material or workmanship provided or performed under the Agreement within a period of two (2) years after the completion of final installation or construction by the Principal, 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 in connection herewith. 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 Ordinance No. 15 -803 Page 26 of 37 City's claim of default, the Surety shall notify the City of its finding and its intent, if any, to interplead. The Surety shall then fulfill its obligations under this bond, according to the option it has elected. Should Surety elect option (a) to cure the default, the penal sum of the Bond shall be reduced in an amount equal to the costs actually incurred by the Surety in curing the default. If the Surety elects option (b), then upon completion of the necessary work, the City shall notify the Surety of its actual costs. The City shall return, without interest, any overpayment made by the Surety and the Surety shall pay to the City any actual costs which exceed the City estimate, limited to the bond amount. Should the Surety elect option (c), the Parties shall first complete participation in mediation, described in the below paragraph, prior to any interplead action. In the event a dispute should arise between the Parties to this Bond with respect to the City's declaration of default by the Principal, the Parties agree to participate in at least four hours of mediation in accordance with the mediation procedures of United States Arbitration and Mediation ( "USA &M "). The Parties shall proportionately share in the cost of the mediation. The mediation shall be administered by the Seattle USA &M office, 4300 Two Union Square, 601 Union Street, Seattle, Washington 98101 -2327. The Surety shall not interplead prior to completion of the mediation. DATED this day of , 20_. CORPORATE SEAL OF PRINCIPAL: [PRINCIPAL] By: Its (Name of Person Executing Bond) (Title) (Address) (Phone) CERTIFICATE AS TO CORPORATE SEAL I hereby certify that I am the (Assistant) Secretary of the Corporation named as Principal in the within bond; that , who signed the said bond on behalf of the Principal, was of the said Corporation; that I know his or her signature thereto is genuine, and that said bond was duly signed, sealed, and attested for and in behalf of said Corporation by authority of its governing body. Secretary or Assistant Secretary Ordinance No. 15 -803 Page 27 of 37 CORPORATE SEAL OF SURETY: By: APPROVED AS TO FORM: Amy Jo Pearsall, City Attorney Surety Attorney -in -Fact (Attach Power of Attorney) (Name of Person Executing Bond) (Address) (Phone) Ordinance No. 15 -803 Page 28 of 37 EXHIBIT C Applicant: Permit #: Project: Account Amount: $ Property Address: Cash Deposit Amount: $ CITY OF FEDERAL WAY ASSIGNMENT OF FUNDS IN LIEU OF BOND THIS ASSIGNMENT ( "Assignment ") is dated effective this day of 20 . The parties ( "Parties ") to this Assignment are the City of Federal Way, a Washington municipal corporation ( "City ") and the undersigned owner or applicant ( "Assignor "). A. The Assignor is required to perform certain work and /or construct certain improvements including at the above - referenced property address located in Federal Way, Washington ( "Property") in connection with Assignor's application under the above - referenced permit number; B. The improvements will be constructed or the work will be performed in accordance with record drawings and approved plans on file with the City of Federal Way ( "Plans "); C. The City has determined that Assignor must post security with the City pursuant to Chapter 19.25 of the Federal Way Revised Code ( "FWRC ") as now existing or hereafter adopted or amended, to guarantee Assignor's performance of required maintenance or repair and Assignor's performance of construction of certain work or improvements pursuant to the Plans, as a condition of granting the permit. NOW, THEREFORE, the Parties agree as follows: 1. Amount of Account. Pursuant to Section 19.25.040 of the FWRC that portion of this Assignment which is in lieu of a performance bond, shall be equal to one hundred and twenty percent (120 %) of the cost of the work or improvements and that portion of this Assignment which is in lieu of a maintenance bond, shall be equal to thirty percent (30 %) of the cost of the work or improvements. 2. Assignment. Assignor does hereby assign, transfer and set over unto the City all right, title and interest in and to the sum of and No /100 Dollars ($ ) on deposit at the branch of ( "Bank "), under account No. ( "Account "); said Account being in the name of the City, as principal with full power and authority to demand, collect and receive the Account and to give receipt and acquittance for the Account. Ordinance No. 15 -803 Page 29 of 37 3. Improvements. Assignor shall perform all work, improvements and maintenance required pursuant to the Plans, to the City's satisfaction. The maintenance obligation shall continue for two (2) years from the completion date of the improvements, or such longer period as required by the FWRC or other applicable law, rule or regulation. 4. Release. Assignor agrees that the Account will be released to the City, on demand, with no other conditions of release. This Assignment may be terminated with the City's written consent, which consent shall not be granted until the City has determined that (i) all the improvements have been constructed and installed and all work and maintenance performed to its satisfaction, in full compliance with the Plans and all applicable local, state or federal law, and within the time period prescribed by the City, and (ii) Assignor has performed all its obligations under this Assignment. The City may release this Assignment as follows: (a) Partial Release. Upon completion of the improvements in compliance with the foregoing provisions, the City will release all but thirty percent (30 %) of the cost of the work or improvements covered by this Assignment, which amount is equal to and No /100 Dollars ($ ), by executing and delivering the Partial Release of Assignment attached hereto as Exhibit 1 to Assignor. (b) Full Release. Two (2) years after completion of the improvements and performance of the maintenance in compliance with the foregoing provisions, the City will release the remaining portion of the Account, in the amount of and No /100 Dollars ($ ), by executing and delivering the Full Release of Assignment attached hereto as Exhibit 2 to Assignor. 5. Right to Complete Work. The City may, but in no event is it obligated to, perform any of the necessary work in connection with the construction or completion of the improvements or performance of the maintenance required by the Plans. Upon demand, Assignor agrees to pay the City an amount equal to all of the City's actual and reasonable costs and expenses in performing such work or the City shall be reimbursed its costs and expenses from the Account at the City's election. 6. Notice. The Public Works Department of the City shall be given forty-eight (48) hours' notice prior to the commencement of any work. 7. Indemnification. Assignor agrees to indemnify and hold the City, its elected officials, officers, employees, agents, and volunteers harmless from any and all claims, demands, losses, actions and liabilities (including costs and attorney fees) arising from, resulting, or connected with this Assignment, including without limitation, the City's performance of any maintenance or other work or construction of the improvements pursuant to Section 5 herein. 8. Administrative Cash Deposit. In addition to the amount of this Assignment, Assignor agrees to pay a cash deposit to the City, pursuant to Section 19.25.060 of the FWRC, upon the execution of this Assignment equal to the following percentages of the amount of the Account: Ordinance No. 15 -803 Page 30 of 37 Amount of Account Up to $20,000 $20,001 - $50,000 $50,001 - $100,000 $100,001 and up Amount of Cash Deposit 5% of Account (minimum $100) 4% of Account 3% of Account 2 -1/2% of Account The cash deposit may be used by the City to cover its actual expenses in administering this Assignment and, if necessary, collecting and using the proceeds from the Account. 9. Remedies Cumulative. No remedy provided for by this Assignment shall be deemed exclusive, but shall be deemed cumulative and in addition to every other remedy available to the City at law, in equity or by statute. Assignor agrees that its liability under this Assignment is not limited to the amount of the Account. 10. License. Assignor shall record a license in the form attached hereto as Exhibit 3 and incorporated herein by this reference with the King County Department of Records, immediately upon the execution of this Assignment and at Assignor's cost. 11. General Provisions. This Assignment may not be amended except by written agreement signed by the Parties. Any provision of this Assignment which is declared invalid, shall not invalidate the remaining provisions. The failure or delay of the City to declare any breach or default shall not waive such breach or default. This Assignment may not be assigned by either Party without the other Party's written consent. This Assignment shall be binding upon and inure to the benefit of the Parties' successors in interest. In the event of any dispute between the Parties regarding this Assignment, each Party shall pay its own attorney fees and costs. Each person executing this Assignment represents that he or she is authorized to execute this Assignment on behalf of their respective entity. Time is of the essence. [Signature Page Follows] Ordinance No. 15 -803 Page 31 of 37 NAME OF APPLICANT By: Its: STATE OF WASHINGTON ) ) ss. COUNTY OF KING ) (Signature) (Name) (Title) (Address) (Phone) On this day personally appeared before me to me known to be the of , the corporation that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said limited liability company, for the uses and purposes therein mentioned, and on oath stated that he /she was authorized to execute said instrument. GIVEN my hand and official seal this day of , 20 . (notary signature) (typed/printed name of notary) Notary Public in and for the State of Washington. My commission expires APPROVED AS TO FORM CITY OF FEDERAL WAY Amy Jo Pearsall, City Attorney Ordinance No. 15-803 Page 32 of 37 BANK ACCEPTANCE The undersigned financial institution ( "Bank ") hereby accepts that certain Assignment of Funds in Lieu of Bond provided to the City of Federal Way ( "City ") by , ( "Assignor ") dated providing for Assignor's assignment to the City of all right, title and interest in and to the sum of and no /100 Dollars ($ ) on deposit at the branch, under account no. ( "Account "), payment of which shall be made upon demand by the City with no other conditions of release of the Account. The Bank agrees to hold the Account, without deduction or withdrawal, until it receives a written release of this Assignment from the City. The Bank acknowledges that it has no duty to evaluate any dispute which may exist between the City and Assignor regarding the Account and shall not interplead or in any manner delay payment of the Account to the City, upon its demand. The Bank hereby agrees to bind itself, and its heirs, executors, administrators and assigns, jointly and severally. (BANK) By: (Signature) (Name) Its: (Title) (Address) (Phone) STATE OF WASHINGTON ) ) ss. COUNTY OF KING ) On this day personally appeared before me to me known to be the of , the corporation that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said limited liability company, for the uses and purposes therein mentioned, and on oath stated that he /she was authorized to execute said instrument. GIVEN my hand and official seal this day of , 20 (notary signature) (typed/printed name of notary) Notary Public in and for the State of Washington. My commission expires Ordinance No. 15 -803 Page 33 of 37 EXHIBIT 1 PARTIAL RELEASE OF ASSIGNMENT The undersigned hereby acknowledges that a portion of the conditions set forth in that Assignment of Funds in Lieu of Bond ( "Assignment ") provided to the City of Federal Way ( "City ") by ( "Assignor ") dated for (Project Name and Permit #) have been satisfied and hereby authorizes the release of an amount equal to and no /100 Dollars ($ ) from account number ( "Account ") in Bank. The remaining funds equaling thirty percent (30 %) of the cost of the work or improvements shall be held by the Bank in the Account pursuant to the terms of the Assignment for a period of two (2) years as security for Assignor's performance of all maintenance for the project described therein and as a guarantee against defective materials or workmanship in the construction and maintenance of such improvements. DATED this _ day of , 20_. CITY OF FEDERAL WAY By: (Name, Title) Ordinance No. 15 -803 Page 34 of 37 EXHIBIT 2 FULL RELEASE OF ASSIGNMENT /LICENSE Pursuant to the terms and conditions of that certain Assignment of Funds in Lieu of Bond ( "Assignment ") provided to the City of Federal Way ( "City ") by ( "Assignor "), dated for (Project Name and Permit #), the City hereby acknowledges that the two (2) year maintenance period has expired, that the work or improvements covered by the Assignment have been completed to the City's satisfaction and that the City is not aware of any defect in workmanship or materials. Accordingly, the undersigned hereby releases the sum of and No /100 Dollars ($ ) from account number in Bank. The undersigned further releases all right, title and interest granted to the undersigned by reason of a certain License Agreement recorded under King County Recording No. ( "License Agreement ") and acknowledges that all obligations and rights contained in the License Agreement are hereby terminated. DATED this _ day of , 20_. CITY OF FEDERAL WAY By: (Name, Title) Ordinance No. 15 -803 Page 35 of 37 Return Address: City of Federal Way Attn: Name/Dept 33325 8th Avenue South Federal Way, WA 98003 -6325 EXHIBIT 3 LICENSE Grantor (s): Grantee (s): CITY OF FEDERAL WAY, a Washington municipal corporation Property Legal Description (abbreviated): Additional Legal(s) on Exhibit A Easement Legal Description (abbreviated): Additional Legal(s) on Exhibit B Assessor's Tax Parcel ID #(s): The undersigned owner of certain real property located in Federal Way, Washington and legally described as follows: [Insert Legal Description here or state: Legal description attached hereto as Exhibit "A" and incorporated herein by this reference] ( "Property ") hereby grants an irrevocable license to the City of Federal Way ( "City ") and the City's agents, employees, contractors or representatives to enter upon the Property to inspect the construction of improvements, the performance of work or to allow the City to perform any necessary maintenance or work, all pursuant to that certain Assignment of Funds in Lieu of Bond of even date entered into between the City and the undersigned and incorporated herein by this reference. DATED this day of , 20 [Signature Page Follows] Ordinance No. 15 -803 Page 36 of 37 STATE OF WASHINGTON ) ss. COUNTY OF KING (Name of Property Owner) (Signature) On this day personally appeared before me to me known to be the of , the corporation that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said limited liability company, for the uses and purposes therein mentioned, and on oath stated that he /she was authorized to execute said instrument. GIVEN my hand and official seal this day of , 20 . (notary signature) (typed/printed name of notary) Notary Public in and for the State of Washington. My commission expires Ordinance No. 15 -803 Page 37 of 37