Loading...
ORD 16-818ORDINANCE NO. 16 -818 AN ORDINANCE of the City Council of the City of Federal Way, Washington, granting New Cingular Wireless PCS, LLC, a Delaware limited liability company, a nonexclusive franchise to occupy rights -of- way of the City of Federal Way, Washington, within the specified franchise area for the purposes of installation, operation, maintenance and repair of its 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. (Repealing Ordinance No. 15 -800) WHEREAS, New Cingular Wireless PCS, LLC, a Delaware Limited Liability Company, ( "Franchisee ") has requested a franchise from the City of Federal Way, in order to place wireless transmitting facilities and related appurtenances in the City owned or controlled rights -of -way; and WHEREAS, the City Council approved the requested Franchise through Ordinance No. 15- 800 at the September 15, 2015 City Council meeting; and WHEREAS, Franchisee did not return the signed acceptance within 60 days of the effective date of Ordinance No. 15 -800, as required by Section 2 of the Franchise Agreement, and the City Council's approval of the Ordinance expired; and WHEREAS, Franchisee has requested that the City approve a new franchise; 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 Ordinance No. 16 -818 Page 1 of 39 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. 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 as follows: (i) wireless communications facilities, including, but not limited to, electronic equipment, radio transmitting and receiving apparatus, and supporting equipment to be located on a pole on a certain public right of way, base station transmitting cabinets, radio frequency antennas and locating antennas, (ii) underground fiber optic telecommunication lines or similar lines, and (iii) any appurtenances necessary to connect the lines or similar lines to the existing switched telephone network all as shown on Exhibit A. 1.5 "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. Ordinance No. 16 -818 Page 2 of 39 1.7 "Franchisee" means New Cingular Wireless PCS, LLC, a Delaware limited liability company, and its respective successors and assigns if consented to by the City of Federal Way as provided in Section 27.3 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, upgrading, and repairing Facilities within the Franchise Area ( "Franchise "). This Franchise is specifically limited to the right for Franchisee to install Facilities owned and operated by Franchisee. This Franchise does not permit Franchisee to lease, rent, or otherwise allow use of conduits, space or capacity provided by the Facilities for or to cable and other third -party cable or telecommunications providers, and Franchisee covenants and agrees that it will not do so. 2.2 Acceptance by Franchisee. Franchisee shall have no rights under this Franchise, nor shall Franchisee be bound by the terms and conditions of this Franchise, unless Franchisee shall, within ninety (90) 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 Ordinance No. 16 -818 Page 3 of 39 other person or entity's poles or apparatus, and Franchisee is responsible for obtaining any authorizations, agreements or consents from private property owners, and 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. Notwithstanding the foregoing, Franchisee may terminate this Franchise, and remove its facilities, at any time upon at least 90 -days' written notice to the City. Section 5. Location of Facilities 5.1 Location. In addition to the other requirements of this Franchise, Franchisee shall submit to the City an "as- built" plan for each Facility, including any underground portion(s) of the Facility and appurtenances, their depths below surface of ground or grade of a right -of -way, and any related existing equipment (such as cellular or personal communication service antennae) to which the Facility is connected, within thirty (30) days of the installation of the each Facility. Any fiber line or conduit permitted by this Franchise which runs from a pole in the right -of -way to an equipment shed or building on private property shall be installed underground. Upon written request of the City, Franchisee shall update such "as- built" plan to reflect actual or anticipated improvements to any of the Franchisee's Facilities. Any such map (or update thereof) so submitted shall be for informational purposes only and shall not obligate Franchisee to undertake any specific improvements, nor shall such map be construed as a proposal to undertake any specific improvements. 5.2 GIS Data. At such time as Franchisee develops or employs Geographic Information System ( "GIS ") technology, Franchisee shall submit the information required in Subsection 5.1 Ordinance No. 16 -818 Page 4 of 39 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 Facilities within the Franchise Area by either field markings or by locating the Facilities on the City's design drawings, and shall provide all other reasonable cooperation and assistance to the City. 5.4 Utilities. Nothing herein is intended to relieve the parties of their respective obligations arising under Chapter 19.122 RCW or other applicable law with respect to determining the location of utility facilities prior to construction. Section 6. Noninterference of Facilities Franchisee agrees to maintain its Facilities and perform any and all activities authorized by this Franchise: (1) so as not to unreasonably interfere with the free passage of traffic; (2) in accordance with the laws of the State of Washington and City Code requirements, Franchise provisions, regulations, resolutions, rules, and publicly available policies of general applicability as now existing or as hereafter amended; and (3) as required by the Director in accordance with the foregoing or given public health, safety and welfare. This requirement applies whether 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 publicly available polices, and rules prior to commencing any work within the Franchise Area. Franchisee permit Ordinance No. 16 -818 Page 5 of 39 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, sidewalks, curbs, gutters, shoulders of roadway, ditches, paved roadways, roadways to property lines, turnouts, parking strips, telephone or electric distribution poles, and water pipes existing on the ground to be occupied, or as otherwise reasonable required by the Director. The Franchisee shall specify the class and type of materials to be used, equipment to be used, and method of safeguarding and facilitating the public traffic during construction. Materials and equipment shall be in new or like -new condition for its type and kind. The manner of excavation, construction, installation, backfill, and temporary structures such as, but not limited to, traffic turnouts and road obstructions shall meet the standards of the FWRC and be reasonably 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, which shall not be unreasonably withheld, as a condition of the issuance of the permit or approval. 7.2 Emergency Exception to Permit Requirement. In the event of an emergency in which Franchisee's Facilities within the Franchise Area are in a condition as to immediately endanger the property, life, health or safety of any individual, Franchisee may take action immediately to correct the dangerous condition without first obtaining any required permit so long as: (1) Franchisee informs the City of the nature and extent of the emergency, and the work to be performed, prior to commencing the work; and (2) such permit is obtained by Franchisee as soon as reasonably practicable following cessation of the emergency. Ordinance No. 16 -818 Page 6 of 39 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 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 in accordance with FWRC regulations or Department of Public Works internal policies. Within forty -five (45) days of completion of any installation of Franchisee's Facilities within the Franchise Area, Franchisee shall submit to the Director plans, stamped by a Professional Engineer or surveyor licensed by the State of Washington, showing the "as- built" location of the Facilities. Section 9. Survey Markers and Monuments Franchisee shall, at its sole cost and expense, and using a licensed surveyor, timely replace or repair all markers or monuments displaced or damaged as a result of any work by Franchisee within the Franchise Area. Ordinance No. 16 -818 Page 7 of 39 Section 10. Surface Markings /Stakes Prior to Franchisee commencing any excavation work within the Franchise Area, Franchisee shall, using a licensed surveyor, reference all monuments and markers relating to subdivisions, plats, highways, and other surveys. The reference points shall be located so that 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 Franchisee shall be responsible for the cost of repairing or replacing monuments or other markers lost, destroyed, or disturbed, as a result of any work by Franchisee within the Franchise Area. A complete set of reference notes for monuments, markers and other ties shall be filed with the City. Section 11. Right of City to Complete Work In the event Franchisee fails to comply with any applicable federal, state or City laws, ordinances, rules, regulations, publicly available policies, or standards or with any of the terms of this Franchise, and such noncompliance continues for a period of thirty (30) days after Franchisee receives written notice from the City regarding the noncompliance, the City may, but in no event is the City obligated to, order any work 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, within sixty (60) days. However, the City shall not have any electrical work accomplished by any person or entity other than Franchisee or a qualified and licensed electrical Ordinance No. 16 -818 Page 8 of 39 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 consistent with the terms and conditions of this Franchise. The rights reserved herein include, without limitation, the construction, installation, and /or maintenance of any electrical, water, sewer or storm drainage line, traffic signals, street lights, trees, landscaping, bicycle paths and lanes, equestrian trails, sidewalks, other pedestrian amenities, and other public street improvement projects. This Franchise is not an exclusive Franchise and shall not be construed to in any manner prohibit the City from granting other and further Franchises in, under, over, upon, and along the Franchise Area, nor from exercising such other powers and authorities granted to the City by the Washington State Constitution and general law. Franchisee shall operate the Facilities in a manner that will not cause interference to the City, and other lessees, franchisees, or licensees of the Franchise Area whose use predates this Franchise. In addition, with respect to lessees, franchisees or licensees whose operations commence after installation of the Facilities hereunder, Franchisee shall not make any change in 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 FWRC Section 19.255.060 as it now exists or is hereafter amended, the City may issue permits for and enter into franchises and leases that allow location or collocation of other telecommunications facilities in the Franchise Area, and Franchisee consents to same, provided however, that the location or collocation must occur in compliance with said FWRC Section Ordinance No. 16 -818 Page 9 of 39 19.255.060 as it now exists or is hereafter amended. In the event that any such location or collocation results in the interference with Franchisee's operations, and provided that Franchisee has substantially complied with the provisions of this Franchise, the City agrees to take reasonable steps to cause the interfering party to eliminate such interference, including, but not limited to, revoking the interfering party's permit(s) or approval(s). In case of interference between two or more wireless carriers, the City shall give priority to the wireless carrier who was first in time at the particular location where the interference is being experienced. In the event that the interference is not eliminated within thirty (30) days of notice to City by Franchisee, Franchisee may terminate this Franchise immediately and pursue any and all remedies available to it against the interfering party. 12.2 City's Duties. The City may require Franchisee to relocate one or more of its Facilities in the Franchise Area when reasonably necessary for construction, alteration, repair or improvement of the right -of -way for purposes of public welfare, health or safety, (hereinafter collectively referred to as "Improvement Project "). In the even the City requires Franchisee to relocate one or more of its Facilities, the City shall: (a) Within a reasonable time, which shall be no less that one hundred eighty (180) days, prior to the commencement of the improvement project, provide the Franchisee with written notice requiring it to relocate its Facility. (b) In the event of an emergency posing a threat to public safety, health or welfare, or in the event of an emergency beyond the control of the City, the City shall give the Franchisee written notice to relocate as soon as practicable. The Franchisee shall relocate its Facilities within a reasonable time period specified by the Public Works Director, unless a court established a later date for completion, after a showing of the Franchisee that the relocation cannot Ordinance No. 16 -818 Page 10 of 39 be completed by the date specified using best efforts and meeting safety and service requirements. (c) Provide the Franchisee with copies of the plans and related information for the improvement project necessitating the relocation and shall identify reasonable alternative locations in the right -of -way for the Franchisee's Facilities. The City shall make a reasonable effort to process any permits required for a replacement Facility in a timely fashion to enable the Franchisee to construct a replacement Facility before the Franchisee is required to remove the original Facility. 12.3 Franchisee's Duties. After receiving notice under Subsection 12.2(a) requiring relocation, and receipt of the plans and specifications pursuant to Subsection 12.2(c), Franchisee shall complete relocation of its Facilities so as to accommodate the improvement project at least ten (10) days prior to commencement of the improvement project, unless the City or a court establishes a later date for completion, after a showing of the Franchisee that the relocation cannot be completed by the date specified using best efforts and meeting safety and service requirements. The Franchisee may, after receipt of written notice requesting a relocation of its Facilities, submit to the City written alternatives to such relocation. The City shall evaluate such alternatives and advise the Franchisee in writing if one or more of the alternatives are suitable to accommodate the work which would otherwise necessitate relocation of the Facilities. The City shall give each alternative proposed by the Franchisee full and fair consideration, within a reasonable time, so as to allow for the relocation work to be performed in a timely manner. In the event the City ultimately determines, after due consideration, that there is no other reasonable alternative, the Franchisee shall relocate its Facilities as otherwise provided in this Section. Unless otherwise provided in RCW 35.99.060, the Franchisee shall complete relocation of its Facilities at its sole cost and expense and at no charge, cost, or expense to the City. Ordinance No. 16 -818 Page 11 of 39 The provisions of this Section shall in no manner preclude or restrict the Franchisee from making any arrangements it may deem appropriate when responding to a request for relocation of its Facilities by any person or entity other than the City, where the Facilities to be constructed by said person or entity are not or will not become City - owned, operated or maintained Facilities; provided that such arrangements do not unreasonably delay a City improvement project. Section 13. 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 in the rights -of -way, the Franchisee agrees to repair the damage at its own cost and expense. The Franchisee shall, upon discovery of any such damage, promptly notify the City. The City will inspect the damage and coordinate with the Franchisee to establish a schedule for repairing the damage. If the City discovers damage caused by the Franchisee to rights -of -way, or to public and private improvements in the rights -of -way, the City shall give the Franchisee notice of the damage and coordinate with the Franchisee to establish a schedule for repairing the damage. In the event the Franchisee does not repair a right -of -way or an improvement to a right -of -way as required in this section, the City may repair the damage pursuant to Section 11 of this Agreement. Section 14. Default 14.1 Notice of Default. In addition to other remedies set forth herein, if Franchisee fails to comply with any of the provisions of this Franchise, the City may serve a written notice to Franchisee ordering such compliance and Franchisee shall have thirty (30) days from the receipt of such notice in which to comply. 14.2 Revocation of Franchise. If Franchisee has not cured the default within thirty (30) days of receiving notice from the City of such default, or if such default is not curable within thirty Ordinance No. 16 -818 Page 12 of 39 (30) days, if the Franchisee fails to commence such cure within thirty (30) days or fails thereafter diligently to pursue such cure to completion, the City may, by resolution, declare the franchise immediately revoked. 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 Franchisee's Facilities within the Franchise Area for the fair market value thereof. In determining the value of such Facilities, no value shall be attributed to the right to occupy the Franchise Area conferred by this Franchise. Section 17. Vacation If at any time the City, by ordinance, vacates all or any portion of the Franchise Area, the City will not be liable for any damages or loss to the Franchisee by reason of such vacation. The City shall notify Franchisee in writing not less than sixty (60) days before vacating all or any portion of the Franchise Area. The City may, after thirty sixty (60) days written notice to Franchisee, terminate this Franchise with respect to any such vacated area. Section 18. Compliance with Laws 18.1 General. Franchisee shall comply with all applicable federal, state and City laws, franchises, resolutions, regulations, publicly available standards and procedures, as now existing or hereafter amended or adopted, including without limitation the State Environmental Policy Act; provided, however, that if any term or condition of this Franchise and any term or condition of any Ordinance No. 16 -818 Page 13 of 39 City law, code, franchise, resolution, regulation, standard, procedure, permit or approval are in conflict, the term or condition of this Franchise will control. 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 right- of-way which shall govern Franchisee's Facilities and activities hereunder as ifthey were in effect at the time this Franchise was executed by the City and Franchisee covenants and agrees to be bound by same, provided they do not conflict with state law. Section 19. Guarantee Franchisee shall guarantee work completed by the Franchisee under this Franchise for a period of 10 years against settlement or repair. Section 20. Charge for Administrative Costs Franchisee agrees to pay a fee or a charge of Two Thousand and No /100 Dollars ($2,000.00) 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, 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 Ordinance No. 16 -818 Page 14 of 39 omissions of the Franchisee, its officers, partners, shareholders, managers, members, agents, employees, or by the Franchisee's breach of any provisions of this Franchise; however, 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. In the event any claim, demand, suit or action is commenced against the City that gives rise to Franchisee's obligation pursuant to this Section, the City shall promptly notify Franchisee thereof. Franchisee's selection of an attorney to defend any such claim, demand, suit or action shall be subject to the City's approval, which shall not be unreasonably withheld. Franchisee shall not settle or compromise any such suit or action except with prior written consent of the City, which shall not be unreasonably withheld. The City shall have the right at all times to participate through its own attorney in any suit or action which arises pursuant to this Franchise when the City determines that such participation is required to protect the interest of the City or the public. In the event it is 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 licensed to do business in the state of Washington 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, Ordinance No. 16 -818 Page 15 of 39 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 that $1,000,000. 22.2 Mandatory Insurance Provisions. The comprehensive general liability insurance and automobile liability insurance policies shall be endorsed to contain the following provisions: (a) The City, its officers, elected officials, employees, and volunteers are to be named as additional insured; (b) Coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the limits of the insurer's liability; Coverage shall not be suspended, canceled, modified or reduced except after thirty (30) days prior written notice to the City delivered by certified mail, return receipt requested; and Coverage shall be primary as to the City, its officers, officials, employees and volunteers. Any insurance or self - insurance by the City, its officers, officials, employees or volunteers shall be in excess of Franchisee's required insurance. 22.3 Verification of Coverage. Franchisee shall furnish the City with certificates of insurance 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. 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 $100,000 to guarantee performance of the construction, performance, maintenance or repair in accordance with any permits required and with any provisions Ordinance No. 16 -818 Page 16 of 39 of this franchise. Procedures for submission and release of the bond shall be as provided in Chapter 19.25 FWRC or as otherwise provided in the FWRC. 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 or termination of the Franchise, provided the City has not notified Franchisee of any actual or potential damages incurred as a result of Franchisee's operations pursuant to the Franchise or as a result of default thereunder. Section 24. Removal of Facilities Upon the expiration, termination or revocation of the rights granted under this Franchise, the Franchisee shall remove all of its Facilities form the Franchise Area within 90 days of receiving notice from the Public Works Director to do so. Provided, however, that the City may permit the Facilities to be abandoned in place in such a manner as the City may prescribe. Upon permanent abandonment, the Facilities shall become property of the City. Section 25. Confidentiality Subject to the limits of Washington law, the City agrees to treat as confidential any records that constitute proprietary or confidential information under federal or state law, to the extent Franchisee makes the City aware of such confidentiality. Franchisee is responsible for clearly and conspicuously identifying the work confidential and proprietary. Franchisee will provide a brief written explanation as to why such information is confidential and how it may be treated as such under state or federal law. If the City receives a demand from any person for disclosure of any information designated by Franchisee as confidential, the City, consistent with applicable law, will advise Franchisee and provide Franchisee with a copy of any written request by the party demanding Ordinance No. 16 -818 Page 17 of 39 access to such information. If Franchisee believes that the disclosure of such documents by the City would interfere with Franchisee's rights under federal or state law, Franchisee will take appropriate legal action to prevent the disclosure by the City of such documents. Franchisee will join the person requesting the documents to such an action. Franchisee will defend, indemnify and hold the City harmless from any claim or judgment including any penalties or costs under Chapter 42.56 RCW. Section 26. Land Use Approvals/Regulations: The parties acknowledge that this Agreement sets forth the terms and conditions under with the Franchisee may use and occupy the public right -of -way within the City. Nothing in this Agreement is intended to or does modify or affect the terms and conditions of any existing or subsequently issued land use or construction permits or approvals (e.g., conditions use permit, variance, building permit, grading permit, electrical permit, etc.). All such land use and /or construction permits or approvals shall be governed by the applicable City ordinances, rules and regulations in effect at the time Franchisee submits a complete application for such permits and other approvals. Section 27. General Provisions 27.1 Entire Agreement. This Franchise contains all of the agreements of the City and Franchisee with respect to any matter covered or mentioned in this Franchise and no prior agreements or understandings pertaining to any such matters shall be effective for any purpose. 27.2 Modification. No provision of this Franchise may be amended or added to except by agreement in writing signed by both of the City and Franchisee. 27.3 Assignment. In addition to the requirements of Subsection 2.1, Franchisee shall not have the right to transfer or assign, in whole or in part, this Franchise without the prior written consent of the City, which will not be unreasonably withheld, conditioned or delayed. Ordinance No. 16 -818 Page 18 of 39 Notwithstanding the foregoing, Franchisee shall have the right, without such notice or such written contest, to assign the Franchise, in whole or part, to any parent, subsidiary, or affiliated corporation, or to an entity with or into which the Franchisee may merge or consolidate, or to any entity resulting from the reorganization of the Franchisee or parent company, or to any purchaser of all or substantially all of the assets of the Franchisee, or as part of any corporate financing, reorganization, or refinancing, or to mortgage its rights, benefits and privileges in and under this Franchise to the Trustee for its bondholders. Any transferee or assignee shall, within thirty (30) days of the date of any approved transfer or assignment, file written notice of the transfer or assignment with the City together with its written acceptance of all terms and conditions of this Franchise. 27.4 Attorney Fees. In the event the City or the Franchisee defaults 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. 27.5 No Waiver. Failure of either party to declare any breach or default by the other party immediately upon the occurrence thereof, or delay in taking any action in connection therewith, shall not waive such breach or default, but such party shall have the right to declare any such breach or default at any time. Failure of either party to declare one breach or default does not act as a waiver of such party's right to declare another breach or default. 27.6 Governing Law. This Franchise shall be made in and shall be governed by and interpreted in accordance with the laws of the State of Washington. 27.7 Authority. Each individual or entity executing this Franchise on behalf of the City and Ordinance No. 16 -818 Page 19 of 39 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. 27.8 Notices. Any notices required to be given by the City to Franchisee or by Franchisee to the City shall be delivered to the parties at the following addresses: Franchisee: New Cingular Wireless PCS, LLC Attn: Network Real Estate Administration 575 Morosgo Drive NE Atlanta, GA 30324 With Copy to: New Cingular Wireless PCS, LLC Attn: Legal Department 208 S. Akard St. Dallas, TX 75202 -4206 City of Federal Way: City of Federal Way Attn: City Attorney 33325 8th Avenue South Federal Way, WA 98003 If any notice is specific to certain Franchisee Facilities, and not generally for all of the Facilities and Franchise Area, the notice should reference the specific Site Name(s) and Number(s) applicable, as shown on the respective site plan attached at Exhibit A, in the notice. Any notices may be delivered personally to the addressee of the notice or may be deposited in the United States mail, postage prepaid, to the address set forth herein. Any notice so posted in the United States mail shall be deemed received three (3) days after the date of mailing. 27.9 Captions. The respective captions of the sections and subsections of this Franchise are inserted for convenience of reference only and shall not be deemed to modify or otherwise affect in any respect any of the provisions of this Franchise. 27.10 Remedies Cumulative. Any remedies provided for under the terms of this Franchise are not intended to be exclusive but shall be cumulative with all other remedies available to the City Ordinance No. 16 -818 Page 20 of 39 at law, in equity or by statute. Section 28. Severability If any section, sentence, clause, or phrase of this Franchise should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this Franchise. Section 29. Ratification Any act consistent with the authority and prior to the effective date of this Franchise is hereby ratified and affirmed. Section 30. Effective Date This Franchise shall take effect and be in full force thirty (30) days from the time of final passage, as provided by law, provided it has been duly accepted by Franchisee as herein provided above (see Effective Date below). PASSED by the City Council of the City of Federal Way this 15th day of March, 2016. ATTEST: \cv4 yo(1 C `E S'TEPHA IIE COURTNEY, CMC Ordinance No. 16 -818 Page 21 of 39 APP'AOVED AS TO.FORM: CITY A EY, AMY JO PEARSALL FILED WITH THE CITY CLERK: 02/26/2016 PASSED BY THE CITY COUNCIL: 03/15/2016 PUBLISHED: 03/18/2016 EFFECTIVE DATE: 04/17/2016 ORDINANCE NO.: 16 -818 Ordinance No. 16 -818 Page 22 of 39 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 9 day of , 2016. NEW CINGULAR WIRELESS PCS, LLC, a Delaware Limited Liability Company By: AT &T Mobility Corporation Its: Mac aser By: Its: Ordinance No. 16 -818 Page 23 of 39 EXHIBIT A LOCATION OF FACILITIES WITHIN THE FRANCHISE AREA See Corresponding Pages SS40 / Aquatic Center / 650 SW Campus Drive SS63 / Adelaide / 1216 SW Dash Point Rd SS65 / Dumas Bay / 47th Ave SW and Dash Point Rd SS66 / Federal Way Decatur / 31031 21st Place SW WA677 / Steel Lake / 29859 16th Ave S SS64 / Lakota / SW Dash Point RD and 30th Ave SW pages 24 -25 pages 26-27 pages 28 -29 pages 30-31 pages 32 -33 pages 34 -35 Ordinance No. 16 -818 Page 24 of 39 N N \ . - 11 li 11 111 Hi ' - \ if ,\-}1(( <>\ \\ - 1.1 I E N)F1 a AQUATIC CENTER SS40 550 5W CAMPUS DRIVE FEDERAL WAY. WA 55003 Ordinance No. 16-818 Page 25 of 39 1111Y NNE 1/!' -U PROPOSED ENLARGED COMPOUND PLAN 1 2 iii .{ a �s G- i � ' °5 !C SGGi3 i1 j �J K \ ,\ \ —' \ - \\ �\ \ , C\, ice' �, /� ,/..___--,,-,.:1--\ �, €� ii111 igi Ai il ti ll \ ,�k \ i€t. ill L ;' / lam__. I lij1 $ 40i �, ill 3 A IdR �� lo Yk _ lir- +iv' \ - ..- \ \ / *is,%.4% ....;„,‘,„t,,, .7 *, s ,,-- , Phil! l! 3 YE , gg 4. 9 Ai ill �c� � IV 7 r i g 1i a AQUATIC CENTER i N � ssao �y 0.10 SW OAMPUS 9000 111 iEDERLL NAY. WA 9100] A F 1. i �■ ■i M 1I lly IR C I �a '�i�N m q€ !t!1 Ordinance No. 16 -818 Page 26 of 39 N. > ' -N / ''JI >i i --N NN-- if ~,S Ordinance No. 16 -818 N Ind rin N =ameTn ®�nppl ADELAIDE 1216 SOUTHWEST w+ POINT Rao FEDERAL WAY" 96027 Page 27 of 39 ri $A -., I Y d '' it �1._ ,�_ a� ii p iiiib i s i ...1•1110 i' Ilk 1d 1, `..•, i : 6 ii ill II II ill !! • N ��► .vv, ‘‘S• l 1%* I V tQ,p3 3 p 9 1 [t II I V I{ i y ' itili!ll h I 9 3 :; ; o 1 a d 90 1 : % { is fjt dd l 11 ''A 11 ti fY N / e N a I /• tY. 4 4) •,. Y�4 ,; l9 9 1 0 . '.. 1_ ,r at I h 9 I I is 1 t t is ! S 00 i� I! .1 ii R 91 .e P MIME ,r . ADELAIDE SS63 i $Y 1216 SOUMN29f EIC61 POINT ROAD FEDER*/ 6A7,M6 6602] co i 11111111M Ordinance No. 16 -818 Page 28 of 39 a Ordinance No. 16-818 DUMAS BAY SS65 471H AVE SW MID DASH PONT RD si FEDERAL WAY, WA 98023 Page 29 of 39 6 a 2 I4 • • • pi aq jai si ! p 11 l 11 "Ia l a z (4 1 "S•. i" 'N , NV0 { iyy vv V �jV r i 3 1 1 f9 I Fi g • it ill! • • Ordinance No. 16 -818 DUMAS BAY S565 471H AVE SW AND DASH POINT RD MEWL WAY, WA Pac43 • Page 30 of 39 d 3 5 H p Ni!piP ! Fly 1 ! i!! E 1 ;till• 1= /1$' R_l 9Y -:3 • 1� =�,i i „pt q opoaTa ®otto�7 � 9 !q _o� �m i „pt pig s i R S R EeE61 I Eggll1 il;ill1 fi£E 1dI I 11; ° "'" " "R I4 3- ale •i 11 11 3 €{ 3 S IA I o u ;11 ill to 111 1 R� ; ill ;11 !3 !to !� It It ill 1j# 1 11 Ordinance No. 16 -818 FEDERAL WAY DECATUR a .1 9 31031 21ST PLACE SW FEDERAL WAY Mw 03023 Page 32 of 39 5114 44 9 5 9 NA 14 Ordinance No. 16-818 STEEL LAKE WA677 22859 16111 AYE S. FEDERAL NAY, WA 06063 Page 33 of 39 a i El 1.4 1 E !or 14i lit ar :gx • i !ii ill 1 1 1 11 11 1 II, 11 e8 811 ip I . I 3., ih . . . x_. 1. • X' —* � r yF si a $ ca 12 1 111! • • UM 11"I igi ! ■ Q a� • i4 1i 1! LW 4 16TH AVE SOUTI SHEET NUMBER A -3 1 r 1 is 1 b. � N STEEL LAKE 290.59 16TH AVE S. %F 29 551 wA 9+90.5 E f i y III ew ■� ■� J I la 111 raIZ II Ordinance No. 16 -818 Page 34 of 39 I z O D 0) A 1 �P // // i • -�— -Avg 1 _.xa,�r is '" ''' PROPERTY ME � � —.1� 1 D 1—%1 � Fri 151 D hI D ©S ,,� To o t ' w' ``(( ∎ ∎4$ Fri QD z it .mss$' "° €.T Pill o II jtt Page 35 of 39 Ordinance No. 16 -818 Page 360139 EXHIBIT B CITY OF FEDERAL WAY PERFORMANCE/MAINTENANCE BOND KNOW ALL PEOPLE BY THESE PRESENTS: We, the undersigned , ( "Principal ") and , the undersigned corporation organized and existing under the laws of the State of and legally doing business in the State of Washington as a surety ( "Surety "), are held and firmly bound unto the City of Federal Way, a Washington municipal corporation, ( "City ") in the penal sum of Dollars and No/ 100 ($ ) 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 its final acceptance thereof by the City, 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. The Surety hereby agrees that modifications and changes may be made in the terms and provisions of the Agreement without notice to Surety, and any such modifications or changes increasing the total amount to be paid the Principal shall automatically increase the obligation of the Surety on this Performance Bond in a like amount, such increase, however, not to exceed twenty -five percent (25 %) of the original amount of this bond without the consent of the Surety. Ordinance No. 16 -818 Page 37 of 39 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 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) Ordinance No. 16 -818 Page 38 of 39 CERTIFICATE AS TO CORPORATE SEAL I hereby certify that I am the (Assistant) Secretary of the Corporation named as Principal in the within bond; that , who signed the said bond on behalf of the Principal, was of the said Corporation; that I know his or her signature thereto is genuine, and that said bond was duly signed, sealed, and attested for and in behalf of said Corporation by authority of its governing body. Secretary or Assistant Secretary CORPORATE SEAL OF SURETY: By: APPROVED AS TO FORM: Amy Jo Pearsall, City Attorney G:\ LawForms \PerformanceMaintenanceBond Rev. 01/15 Surety Attorney -in -Fact (Attach Power of Attorney) (Name of Person Executing Bond) (Address) (Phone) Ordinance No. 16 -818 Page 39 of 39