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ORD 18-845ORDINANCE NO. 18-845 AN ORDINANCE of the City of Federal Way, Washington, granting MClmetro Access Transmission Services Corp. DBA Verizon Access Transmission Services, a nonexclusive franchise to occupy rights-of-way of the City of Federal Way, Washington, within the specified franchise area for the purposes of constructing, maintaining, operating, replacing, and repairing a telecommunications network within and through the City of Federal Way. WHEREAS, MClmetro Access Transmission Services Corp. DBA Verizon Access Transmission Services has requested a franchise from the City of Federal Way, in order to locate a telecommunications network within the 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 MClmetro Access Transmission Services Corp. DBA Verizon Access Transmission Services; 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 and specifically reserves its right to adopt further regulations under its police powers; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY, WASHINGTON, DO ORDAIN AS FOLLOWS: Section 1. Definitions Where used in this Franchise the following terms shall be defined as follows: Ordinance No. 18-845 Page 1 of 37 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 one or more elements of Franchisee's telecommunications network, with all necessary cables, wires, conduits, ducts, pedestals, antennas, electronics, and other necessary appurtenances; provided that new utility poles for overhead wires or cabling are specifically excluded unless otherwise specifically approved by the City. For the purposes of this Franchise the term Facilities excludes "microcell" facilities, "minor facilities," "small cell facilities," all as defined by RCW 80.36.375, and "macrocell" facilities, including towers and new base stations and other similar facilities used for the provision of "personal wireless services" as defined by RCW 80.36.375. 1.5 "Franchise Area" means the rights-of-way of the City. 1.6 "Franchisee" means MClmetro Access Transmission Services Corp. DBA Verizon Access Transmission Services, and its respective successors and assigns if consented to by the City of Federal Way as provided in Section 24 herein. 1.7 "FWRC" means the Federal Way Revised Code. 1.8 "Rights -of -Way" means land acquired or dedicated for public roads and streets, but does not include: (a) State highways; (b) Road dedicated for roads, streets, and highways not opened and not improved for motor vehicle use by the public; (c) Structures including poles and conduits located within the right-of-way; (d) Federally granted trust lands or forest board trust lands; (e) lands owned or managed by the state parks and recreation commission; (f) federally granted railroad rights - Ordinance No. 18-845 Page 2 of 37 of -way acquired under 43 U.S.C. § 912 and related provisions of federal law that are not open for vehicular use; or (g) leasehold or city owned property to which the city holds fee title or other title and which is utilized for park, utility, or a governmental or proprietary use and not primarily for road, street, or highway use. 1.9 "Services" means telephone service (as such term is defined in RCW 82.16.010), internet access, private line, cell network front- and backhaul and leasing of Franchisee's telecommunications Facilities to third parties. 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. Nothing contained within this Franchise shall be construed to grant or convey any right, title, or interest in the Rights -of -Way of the City to Franchisee other than for the purpose of providing the Services, nor to subordinate the primary use of the Right -of -Way as a public thoroughfare. If Franchisee desires to expand the services provided within the City, it shall provide written notification of the addition of such services prior to the addition of the service; provided, however, that Franchisee may not offer Cable Services as defined in 47 U.S.C. § 522(6) or wireless communications facilities, including but not limited to small cell facilities and other personal wireless services, without obtaining a new franchise or an amendment to this Franchise approved by the Council. 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, Ordinance No. 18-845 Page 3 of 37 within thirty (30) 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. In addition, Franchisee shall submit proof of insurance obtained and additional insured endorsement pursuant to Section 22. The administrative fee pursuant to Section 20 is due within thirty (30) days of receipt of the invoice from the City. Section 3. City Property/Non-Exclusive Franchise 3.1 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 the Rights -of -Way. 3.2 Non -Exclusive Franchise. 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, including the City's right to adopt future regulations under its police powers. Such Franchise shall in no way prevent or prohibit the City from using any of said roads, streets, or other public properties or affect its jurisdiction over them or any part of them, and the City shall retain power to make all necessary changes, relocations, repairs, maintenance, establishment, improvement, dedication of same as the City may deem fit, including the dedication, establishment, maintenance, and improvement of all new Rights -of -Way, thoroughfares and other public properties of every type and description. Ordinance No. 18-845 Page 4 of 37 Section 4. Term Subject to Franchisee filing its acceptance pursuant to Section 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. The Facilities permitted by this Franchise shall be installed underground, except as approved per the variance procedures established in Section 11.05.080 of the FWRC. The location of the Facilities, their depths below surface of ground or grade of a right-of-way, and any related existing equipment to which the Facilities are connected shall be depicted on a map and submitted to the City within thirty (30) days of the installation of the Facilities. Upon written request of the City, Franchisee shall update such map to reflect actual or anticipated improvements to the system. Any such map (or update thereof) so submitted shall be for informational purposes only and shall not obligate Franchisee to undertake any specific improvements, nor shall such map be construed as a proposal to undertake any specific improvements. 5.2 WSDOT. To the extent that any Rights -of -Way within the Franchise Area are part of the state highway system ("State Highways") are considered managed access by the City and are governed by the provisions of Chapter 47.24 RCW and applicable Washington State Department of Transportation ("WSDOT") regulations, Franchisee shall comply fully with said requirements in addition to local ordinances and other applicable regulations. Without limitation of the foregoing, Franchisee specifically agrees that: A. Any pavement trenching and restoration performed by Franchisee within State Highways shall meet or exceed applicable WSDOT requirements; Ordinance No. 18-845 Page 5 of 37 B. Any portion of a State Highway damaged or injured by Franchisee shall be restored, repaired, and/or replaced by Franchisee to a condition that meets or exceeds applicable WSDOT requirements; and C. Without prejudice to any right or privilege of the City, WSDOT is authorized to enforce in an action brought in the name of the State of Washington any condition of this Franchise with respect to any portion of a State Highway. 5.3 GIS Data. At such time as Franchisee develops or employs Geographic Information System ("GIS") technology, Franchisee shall submit the information required in Section 5.1 above in digital GIS format, showing the location of its Facilities within the Franchise Area. 5.4 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 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. 5.5 One Call Locator Service. Prior to doing any work in the Franchise Area, the Franchisee shall follow established procedures, including contacting the Utility Notification Center in Washington and comply with all applicable State statutes regarding the One Call Locator Service pursuant to Chapter 19.122 RCW. Further, upon request from a third party or the City, Franchisee shall locate its Facilities consistent with the requirements of Chapter 19.122 RCW. The City shall not be liable for any damages to Franchisee's Facilities or for interruptions in service to Franchisee's customers that are a direct result of Franchisee's failure to locate its Facilities within the prescribed time limits and guidelines established by the One Call Locator Service regardless of whether the City issued a permit. Ordinance No. 18-845 Page 6 of 37 Section 6. Noninterference of Facilities 6.1 Maintenance 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. 6.2 Interference with Use of the Streets. When installing, locating, laying, or maintaining Facilities, apparatus, or improvement, Franchisee shall not interfere with the use of any street to any greater extent than is necessary, and shall leave the surface of any such street in as good condition as it was prior to performance by Franchisee of such work. Any Facility, apparatus, or improvement shall be laid, installed, located, or maintained in conformance with instructions given by, and to the satisfaction of the City. In any event, Franchisee shall, at its own expense, and to the satisfaction of the City in accordance with the terms of the right-of-way permit, restore to City standards and specifications any damage or disturbance caused to streets as a result of Franchisee's construction or operations. Section 7. Requirement to Obtain Permits & Work in the Right of Way 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. 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 Ordinance No. 18-845 Page 7 of37 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"). 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. 7.3 No Removal of Underground Conduit. Franchisee shall not remove any underground cable or conduit that requires trenching or other opening of the Rights -of -Way along the extension of cable to be removed, except as provided in this Section 7.3. Franchisee may remove any underground cable and other Facilities from the Right -of -Way that have been installed in such a manner that it can be removed without trenching or other opening of the Right -of -Way along the extension of cable to be removed, or if otherwise permitted by the City. Franchisee may remove any underground cable from the Rights -of -Way where reasonably necessary to replace, upgrade, or enhance its Facilities, or pursuant to Section 12. When the City determines, in the City's sole discretion, that Franchisee's underground Facilities must be removed in order to eliminate or prevent a hazardous condition, Franchisee shall remove the cable or conduit at Franchisee's sole cost and expense. Franchisee must apply and receive a permit, pursuant to Section 7.1, prior to any such removal of underground cable, conduit, or other related facilities from the Right -of -Way and must provide as -built plans and maps pursuant to Section 8.3. Ordinance No. 18-845 Page 8 of 37 7.4 Design Standards for Wireless Services. To the extent Franchisee is providing services to personal wireless services facilities, Franchisee shall adhere to the design standards for such personal wireless services facilities, and shall underground its Facilities and/or place its Facilities within the pole as may be required by such design standards. 7.5 Work in the Rights -of -Way. During any period of relocation, construction or maintenance, all work performed by Franchisee or its contractors and subcontractors shall be accomplished in a safe and workmanlike manner, so to minimize interference with the free passage of traffic and the free use of adjoining property, whether public or private. Franchisee shall at all times post and maintain proper barricades, flags, flaggers, lights, flares and other measures as required for the safety of all members of the general public and comply with all applicable safety regulations during such period of construction as required by the ordinances of the City or the laws of the State of Washington, including RCW 39.04.180 for the construction of trench safety systems. 7.6 Coordination of Activities. Franchisee shall meet with the City and other franchise holders and users of the Rights -of -Way upon written notice as determined by the City, to schedule and coordinate construction in the Rights -of -Way. All construction locations, activities, and schedules shall be coordinated, as ordered by the City to minimize public inconvenience, disruption or damages. Section 8. Standard of Performance 8.1 Backfilling Requirements. 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 within a driving lane, must also be patched within the time limits specified by Ordinance No. 18-845 Page 9 of 37 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. 8.2 Asphalt Overlay. 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 Section 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. 8.3 As -Built Maps. 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. 8.4 Joint Trench. If Franchisee shall at any time plan to make excavations in any area covered by this Franchise, Franchisee shall afford the City, upon receipt of a written request to do so, an opportunity to share such excavation, PROVIDED THAT: 8.4.1 Such joint use shall not unreasonably delay the work of the Franchisee causing the excavation to be made; 8.4.2 Such joint use shall be arranged and accomplished on terms and conditions satisfactory to both parties; and 8.4.3 Franchisee may deny such request for safety reasons. 8.5 Open Utility Trenches. Franchisee shall be entitled to reasonable access to open utility trenches when the City is constructing new utility trenches, provided that such access does not interfere with the City's placement of utilities or increase the City's costs. Franchisee shall pay to the Ordinance No. 18-845 Page 10 01'37 City the actual cost to the City resulting from providing Franchisee access to an open trench, including without limitation the pro rata share of the costs of access to an open trench, additional costs, as determined by the City, attributed to Franchisee due to Franchisee's request to access the utility trenches, and any costs associated with the delay of the completion of a public works project. Further, the City may deny such requests if: 8.5.1 Such joint use unreasonably delays the work of the City; 8.5.2 The parties cannot agree on terms and conditions; or 8.5.3 Granting access to the utility trench creates a safety concern. 8.6 Additional Ducts/Conduit. Franchisee shall inform the City with at least thirty (30) days' advance written notice that it is constructing, relocating, or placing ducts or conduits in the Rights -of -Way and provide the City with an opportunity to request that Franchisee provide the City with additional duct or conduit and related structures necessary to access the conduit pursuant to RCW 35.99.070. 8.7 Tree Trimming. Franchisee may trim trees upon and overhanging on public ways, streets, alleys, sidewalks, and other public places of the City so as to prevent the trees from coming in contact with Franchisee's Facilities. The right to trim trees in this Section 8.7 shall only apply to the extent necessary to protect Franchisee's Facilities. Franchisee shall ensure that its tree trimming activities protect the appearance, integrity, and health of the trees to the extent reasonably possible. Franchisee shall be responsible for all debris removal from such activities. All trimming, except in emergency situations, is to be done after the explicit prior written notification and approval of the City and at the expense of Franchisee. Franchisee may contract for such services, however, any firm or individual so retained must first receive City approval prior to commencing such trimming. Ordinance No. 18-845 Page 11 of 37 Nothing herein grants Franchisee any authority to act on behalf of the City, to enter upon any private property, or to trim any tree or natural growth not owned by the City. Franchisee shall be solely responsible and liable for any damage to any third parties' trees or natural growth caused by Franchisee's actions. Franchisee shall indemnify, defend, and hold harmless the City from third -party claims of any nature arising out of any act or negligence of Franchisee with regard to tree and/or natural growth trimming, damage, and/or removal. Franchisee shall reasonably compensate the City or the property owner for any damage caused by trimming, damage, or removal by Franchisee. Except in an emergency situation, all tree trimming must be performed under the direction of an arborist certified by the International Society of Arboriculture, unless otherwise approved by the Public Works Director or his/her designee. 8.8 Safety. Franchisee shall, at all times, employ professional care and shall install and maintain and use industry -standard methods for preventing failures and accidents that are likely to cause damage, injuries, or nuisances to the public. All structures and all lines, equipment, and connections in, over, under, and upon the Rights -of -Ways, wherever situated or located, shall at all times be kept and maintained in a safe condition. Franchisee shall comply with all federal, State, and City safety requirements, rules, regulations, laws, and practices, and employ all necessary devices as required by applicable law during the construction, operation, maintenance, upgrade, repair, or removal of its Facilities. By way of illustration and not limitation, Franchisee shall also comply with the applicable provisions of the National Electric Code, National Electrical Safety Code, FCC regulations, and Occupational Safety and Health Administration ("OSHA") Standards. Upon reasonable notice to Franchisee, the City reserves the general right to inspect the Facilities to evaluate if they are constructed and maintained in a safe condition. Ordinance No. 18-845 Page 12 01'37 8.9 Additional Safety Standards. 8.9.1 Franchisee shall endeavor to maintain all equipment lines and facilities in an orderly manner, including, but not limited to, the removal of all bundles of unused cable on any aerial facilities. 8.9.2 All installations of equipment, lines, and ancillary facilities shall be installed in accordance with industry -standard engineering practices and shall comply with all federal, State, and local regulations, ordinances, and laws. 8.9.3 Any opening or obstruction in the Rights -of -Way or other public places made by Franchisee in the course of its operations shall be protected by Franchisee at all times by the placement of adequate barriers, fences, or boarding, the bounds of which, during periods of dusk and darkness, shall be clearly marked and visible. 8.10 Stop Work Order. On notice from the City that any work is being performed contrary to the provisions of this Franchise, or in an unsafe or dangerous manner as determined by the City, or in violation of the terms of any applicable permit, laws, regulations, ordinances, or standards, the work may immediately be stopped by the City. The stop work order shall: 8.11 Be in writing; 8.12 Be given to the person doing the work or posted on the work site; 8.13 Be sent to Franchisee by overnight delivery; 8.14 Indicate the nature of the alleged violation or unsafe condition; and 8.15 Establish conditions under which work may be resumed. Ordinance No. 18-845 Page 13 of 37 Section 9. Survey Markers and Monuments 9.1 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. 9.2 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 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 10. Work of Subcontractors and Contractors Franchisee's contractors and subcontractors shall be licensed and bonded in accordance with State law and the City's ordinances, regulations, and requirements. Work by contractors and subcontractors are subject to the same restrictions, limitations, and conditions as if the work were performed by Franchisee. Franchisee shall be responsible for all work performed by its contractors and subcontractors and others performing work on its behalf as if the work were performed by Franchisee and shall ensure that all such work is performed in compliance with this Franchise and applicable law. Ordinance No. 18-845 Page 14 of 37 Section 11. Right of City to Complete Work 11.1 Non-Compliance/Work Performed by City. 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, or if such work by Franchisee endangers property or the public 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 attorneys' 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. 11.2 Emergency Work Performed by City. The City retains the right and privilege to cut or move any Facilities located within the Rights -of -Way of the City, as the City may determine to be necessary, appropriate, or useful in response to any public health or safety emergency. Consistent with Section 20.2, Franchisee shall reimburse the City for the costs associated with the repair. 11.3 No Liability for Damage. The City shall not be liable for any damage to or loss of Facilities within the Rights -of -Way as a result of or in connection with any public works, public improvements, construction, grading, excavation, filling, or work of any kind in the Rights -of -Way by or on behalf of the City, except to the extent directly and proximately caused by the gross negligence or willful acts of the City, its employees, contractors, or agents. The City shall further not Ordinance No. 18-845 Page 15 of 37 be liable to Franchisee for any direct, indirect, or any other such damages suffered by any person or entity of any type as a direct or indirect result of the City's actions under this Section 11 except to the extent caused by the gross negligence or willful acts of the City, its employees, contractors, or agents. 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, equestrian trails, sidewalks, other pedestrian amenities, and other public street improvement projects. 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. Ordinance No. 18-845 Page 16 437 12.3 Franchisee's Duties. Within thirty (30) days of receipt of the City notice under Section 12.2A requiring relocation and receipt of the plans and specifications pursuant to Section 12.2B, 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. Nothing contained within this Franchise shall limit Franchisee's ability to seek reimbursement for relocation costs when permitted by RCW 35.99.060. 12.4 Delay. Upon a notification of a relocation delay due to Franchisee, Franchisee agrees to work cooperatively with the City, other franchisees and utilities and the City's third party contractor to resolve any such issues. If the Franchisee is unable to informally resolve the claims of a City contractor, subcontractor, and/or a third party claim that arises from Franchisee's relocation delays, the Franchisee shall indemnify, defend and hold harmless the City pursuant to Section 21 from costs, claims or liability arising from such delay. The delay claim of a City utility whose funding and operations are required by Washington state law to be kept separate from those of the City's general fund shall be considered a third party claim for the purposes of this resolution process and the indemnity. The parties acknowledge and agree that Franchisee shall not be responsible for these indemnification, defense or hold harmless requirements and/or costs, claims, liability and/or damages due to delays caused by circumstances beyond the control of Franchisee; the gross negligence, willful misconduct, or unreasonable delay of the City; or the negligence, willful misconduct or delay of any unrelated third party. In the event that the acts of a third party as set forth Ordinance No. 18-845 Page 17 01.37 in the preceding sentence contribute to the delay, the Franchisee may be liable for its proportionate share of the costs, claims or liability. Circumstances beyond the control of Franchisee is defined for purposes of this Franchise as strikes, lockouts, sit-down strike, unusual transportation delays, riots, floods, washouts, explosions, earthquakes, fire, storms, weather (including inclement weather which prevents construction), acts of the public enemy, wars, terrorism, insurrections, and any other similar act of God event. 12.5 Locate. Upon request of the City and in order to facilitate the design of City street and Right -of -Way improvements, Franchisee agrees, at its sole cost and expense, to locate, and if reasonably determined necessary by the City, to excavate and expose its Facilities for inspection so that the Facilities' location may be taken into account in the improvement design. The decision as to whether any Facilities need to be relocated in order to accommodate the City's improvements shall be made by the City upon review of the location and construction of Franchisee's Facilities. The City shall provide Franchisee at least fourteen (14) days' written notice prior to any request for excavation or exposure of Facilities. 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 Ordinance No. 18-845 Page 18 of 37 improvement as required in this section, the City may repair the damage pursuant to Section 11 of this Agreement. Section 14. Default 14.1 Remedies. The City may elect, without any prejudice to any of its other legal rights and remedies, to obtain an order from the superior court having jurisdiction compelling Franchisee to comply with the provisions of the Franchise and to recover damages and costs incurred by the City by reason of Franchisee's failure to comply. In addition to any other remedy provided herein, the City reserves the right to pursue any remedy to compel or force Franchisee and/or its successors and assigns to comply with the terms hereof, and the pursuit of any right or remedy by the City shall not prevent the City from thereafter declaring a forfeiture or revocation for breach of the conditions herein. Provided, further, that by entering into this Franchise, it is not the intention of the City or Franchisee to waive any other rights, remedies, or obligations as otherwise provided by law equity, or otherwise, and nothing contained herein shall be deemed or construed to effect any such waiver. 14.2 Notice and Cure: Damages. If Franchisee shall violate, or fail to comply with any of the provisions of this Franchise, or should it fail to heed or comply with any notice given to Franchisee under the provisions of this Franchise, the City shall provide Franchisee with written notice specifying with reasonable particularity the nature of any such breach and Franchisee shall undertake all commercially reasonable efforts to cure such breach within thirty (30) days of receipt of notification. If the parties reasonably determine the breach cannot be cured within (30) thirty days, the City may specify a longer cure period, and condition the extension of time on Franchisee's submittal of a plan to cure the breach within the specified period, commencement of work within the original thirty (30) day cure period, and diligent prosecution of the work to completion. If the breach is not cured within the specified time, or Franchisee does not comply with the specified conditions, Ordinance No. 18-845 Page 19 of 37 City may, at its discretion, (1) commence revocation proceedings pursuant to Section 14.3, or (2) claim damages of Two Hundred Fifty Dollars ($250.00) per day against the Franchisee or bond set forth in Section 23, or (3) pursue other remedies as described in Section 14.1 above. 14.3 Revocation of Franchise. If Franchisee willfully violates or fails to comply with any of the provisions of this Franchise, or through willful misconduct or gross negligence fails to heed or comply with any notice given Franchisee by the City under the provisions of this Franchise, then Franchisee shall, at the election of the Federal Way City Council, forfeit all rights conferred hereunder and this Franchise may be revoked or annulled by the Council after a hearing held upon notice to Franchisee. 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. The City reserves the right to limit or exclude Franchisee's access to a specific route, public Right -of -Way or other location when, in the judgment of the Director there is inadequate space (including but not limited to compliance with ADA clearance requirements and maintaining a clear and safe passage through the Rights -of -Way), a pavement cutting moratorium, unnecessary damage to public property, public expense, inconvenience, interference with City utilities, or for any other reason determined by the Director. 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. Ordinance No. 18-845 Page 20 of 37 Section 17. Vacation If at any time the City, by ordinance, vacates all or any portion of the Franchise Area, the City will not be liable for any damages or loss to the Franchisee by reason of such vacation. The City shall notify Franchisee in writing not less than thirty (30) days before vacating all or any portion of the Franchise Area, if Franchisee has Facilities within such area planned for vacation. The City may, after thirty (30) days written notice to Franchisee, terminate this Franchise with respect to any such vacated area. At Franchisee's request, the City will, if practicable, reserve an easement for Franchisee's existing facilities to continue to use the vacated area. Franchisee must provide to the City information necessary for the City to reserve such easement within the thirty (30) day period. Section 18. Compliance with Laws 18.1 General. Franchisee shall comply with all applicable federal, state and City laws, franchises, resolutions, regulations, standards, policies and procedures, as now existing or hereafter amended or adopted, including without limitation the State Environmental Policy Act; provided, however, that if any term or condition of this Franchise and any term or condition of any City law, code, franchise, resolution, regulation, standard, procedure, permit, or approval are in conflict, the term or condition of this Franchise will control. 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. 18.3 Franchise Fees. Franchisee hereby represents that its operations as authorized under this Franchise are those of a telephone business as defined in RCW 82.16.010, or service provider as defined in RCW 35.21.860. As a result, the City will not impose a franchise fee under the terms of Ordinance No. 18-845 Page 21 of 37 this Franchise, other than as described herein. The City hereby reserves its right to impose a franchise fee on Franchisee if Franchisee's operations as authorized by this Franchise change such that the statutory prohibitions of RCW 35.21.860 no longer apply or, if statutory prohibitions on the imposition of such fees are removed. In either instance, the City also reserves its right to require that Franchisee obtain a separate franchise for its change in use, which franchise may include provisions intended to regulate Franchisee's operations, as allowed under applicable 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 including Facilities and right-of-way restoration. This guarantee shall apply only to such settlement or repair that the City attributes to Franchisee's Facilities, actions or omissions. Section 20. Charge for Administrative Costs 20.1 Administrative Fee. Franchisee shall pay a one-time fee for the actual administrative expenses incurred by the City that are directly related to the receiving and approving this Franchise pursuant to RCW 35.21.860, including the costs associated with the City's legal costs incurred in drafting and processing this Franchise. Such administrative fee shall be offset against the fee deposit required pursuant to FWMC 4.22.040; provided, however, if the administrative fee exceeds the fee deposit, then the Franchisee shall remit such additional amounts within thirty (30) days of receipt of an invoice from the City. No construction permits shall be issued for the installation of Facilities authorized until such time as the City has received payment of this fee. Franchisee shall further be subject to all permit fees associated with activities undertaken through the authority granted in this Franchise or under the laws of the City. Where the City incurs costs and expenses for review, inspection, or supervision of activities, including but not limited to reasonable fees associated with Ordinance No. 18-845 Page 22 of 37 attorneys, consultants, City Staff and City Attorney time, undertaken through the authority granted in this Franchise or any ordinances relating to the subject for which a permit fee is not established, Franchisee shall pay such costs and expenses directly to the City in accordance with the provisions of Section 20.3. 20.2 Emergency Repair Costs. In addition to Section 20.1, Franchisee shall promptly reimburse the City in accordance with the provisions of Section 20.3 and Section 20.4 for any and all costs the City reasonably incurs in response to any emergency situation involving Franchisee's Facilities, to the extent said emergency is not the fault of the City. 20.3 Reimbursement of Expenses. Franchisee shall reimburse the City within sixty (60) days of submittal by the City of an itemized billing for reasonably incurred costs, itemized by project, for Franchisee's proportionate share of all actual, identified expenses incurred by the City in planning, constructing, installing, repairing, altering, or maintaining any City facility as the result of the presence of Franchisee's Facilities in the Rights -of -Way. Such costs and expenses shall include but not be limited to Franchisee's proportionate cost of City personnel assigned to oversee or engage in any work in the Rights -of -Way as the result of the presence of Franchisee's Facilities in the Rights -of -Way. Such costs and expenses shall also include Franchisee's proportionate share of any time spent reviewing construction plans in order to either accomplish the relocation of Franchisee's Facilities or the routing or rerouting of any utilities so as not to interfere with Franchisee's Facilities. 20.4 Calculation of Costs. The time of City employees shall be charged at their respective rate of salary, including overtime if applicable, plus benefits and reasonable overhead. Any other costs will be billed proportionately on an actual cost basis. All billings will be itemized so as to specifically identify the costs and expenses for each project for which the City claims reimbursement. A charge for the actual costs incurred in preparing the billing may also be included in Ordinance No. 18-845 Page 23 of 37 said billing. At the City's option, the billing may be on an annual basis, but the City shall provide the Franchisee with the City's itemization of costs, in writing, at the conclusion of each project for information purposes. Section 21. Indemnification 21.1 General. 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 attorneys' 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, for any delays on City construction projects caused by or arising out of the failure of Franchisee to remove or relocate its Facilities in a timely manner, 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 gross negligence or intentional misconduct of the City, its agents or employees. These indemnification obligations shall extend to claims that are not reduced to a suit and any claims that may be compromised, with Franchisee's prior written consent, prior to the culmination of any litigation or the institution of any litigation. 21.2 Notification. 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. The City's failure to so notify and request indemnification shall not relieve Franchisee of any liability that Franchisee might have, except to the extent that such failure prejudices Franchisee's ability to defend such claim or suit. Franchisee's selection of an attorney to Ordinance No. 18-845 Page 24 of 37 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 that Franchisee refuses the tender of defense in any suit or any claim, as required pursuant to the indemnification provisions within this Franchise, and said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties shall agree to decide the matter), to have been a wrongful refusal on the part of Franchisee, Franchisee shall pay all of the City's reasonable costs for defense of the action, including all expert witness fees, costs, and attorney's fees, and including costs and fees incurred in recovering under this indemnification provision. 21.3 RCW 4.24.115. 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. It is further specifically and expressly understood that the indemnification provided constitutes Franchisee's waiver of immunity under Title 51 RCW, solely for the purposes of this indemnification, relating solely to indemnity claims made by the City directly against the Franchisee for claims made against the City by Franchisee's employees. This waiver has been mutually negotiated by the parties. 21.4 Inspection or acceptance by the City of any work performed by Franchisee at the time of completion of construction shall not be grounds for avoidance by Franchisee of any of its obligations under this Section 21. Notwithstanding any other provisions of this Section 21, Franchisee assumes the risk of damage to its Facilities located in the Rights -of -Way and upon City - Ordinance No. 18-845 Page 25 of 37 owned property from activities conducted by the City, its officers, agents, employees, volunteers, elected and appointed officials, and contractors, except to the extent any such damage or destruction is caused by or arises from any grossly negligent, willful, or criminal actions on the part of the City, its officers, agents, employees, volunteers, or elected or appointed officials, or contractors. Franchisee releases and waives any and all such claims against the City, its officers, agents, employees, volunteers, or elected or appointed officials, or contractors. Franchisee further agrees to indemnify, hold harmless and defend the City against any claims for damages, including, but not limited to, business interruption damages, lost profits and consequential damages, brought by or under users of Franchisee's Facilities as the result of any interruption of service due to damage or destruction of Franchisee's Facilities caused by or arising out of activities conducted by the City, its officers, agents, employees or contractors, except to the extent any such damage or destruction is caused by or arises from the gross negligence or any willful, or criminal actions on the part of the City, its officers, agents, employees, volunteers, or elected or appointed officials, or contractors. Section 22. Insurance 22.1 Minimum Limits. The Franchisee agrees to carry as a minimum, the following insurance, in such forms and with such carriers as are satisfactory to the City. A. Workers' compensation 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. Ordinance No. 18-845 Page 26 of 37 D. Umbrella liability policy with limits not less than $1,000,000 per occurrence and $5,000,000 in the aggregate. E. If Franchisee maintains umbrella insurance (primary, excess, or a combination thereof) that exceeds the above insurance limits, such insurance shall constitute compliance with this Section. 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 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. At the City's request, Franchisee shall deliver certified copies of all required insurance policies. 22.4 Cancellation of Policy. Upon receipt of notice from its insurer(s) Franchisee shall use all commercially reasonable efforts to provide the City with thirty (30) days prior written notice of any such cancellation. Within fifteen (15) days prior to said cancellation or intent not to renew, Franchisee shall obtain and furnish to the City replacement insurance policies meeting the Ordinance No. 18-845 Page 27 of 37 requirements of this Section 22. Failure to provide the insurance cancellation notice and to furnish to the City replacement insurance policies meeting the requirements of this Section 22 shall be considered a material breach of this Franchise and subject to the City's election of remedies described in Section 1.4 and above. Notwithstanding the cure period described in Section 14.2, the City may pursue its remedies immediately upon a failure to furnish replacement insurance. 22.5 No Limitation on Liability. Franchisee's maintenance of insurance as required by this Section 22 shall not be construed to limit the liability of Franchisee to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or equity. Further, Franchisee's maintenance of insurance policies required by this Franchise shall not be construed to excuse unfaithful performance by Franchisee. 22.6 Self -Insurance. As of the effective date of this Franchise, Franchisee is not self- insured. Should Franchisee wish to become self-insured at the levels outlined in this Franchise at a later date, Franchisee must provide the City with thirty (30) days advanced written notice of its intent to self -insure. In order to self -insure, Franchisee shall comply with the following: (i) provide a written attestation that Franchisee possesses the necessary amount of unencumbered financial assets to support the financial exposure of self-insurance, as evidenced by an outside auditor's review of Franchisee's financial statements; (ii) the City, upon request, may review Franchisee's financial statements; (iii) Franchisee is responsible for all payments within the self-insured retention; and (iv) Franchisee assumes all defense and indemnity obligations as outlined in the indemnification section of this Franchise. These requirements may be modified by written amendment executed by both parties. Ordinance No. 18-845 Page 28 of 37 Section 23. Bond 23.1 Construction Performance Bond. Franchisee shall furnish a performance bond ("Performance Bond") written by a corporate surety reasonably acceptable to the City equal to at least 120% of the estimated cost of constructing Franchisee's Facilities within the Rights -of -Way of the City prior to commencement of any such work or such other amount as deemed appropriate by the Public Works Director. The Performance Bond shall guarantee the following: (1) timely completion of construction; (2) construction in compliance with all applicable plans, permits, technical codes, and standards; (3) proper location of the Facilities as specified by the City; (4) restoration of the Rights -of -Way and other City properties affected by the construction; (5) submission of as -built drawings after completion of construction; and (6) timely payment and satisfaction of all claims, demands, or liens for labor, materials, or services provided in connection with the work which could be asserted against the City or City property. Said bond must remain in full force until the completion of construction, including final inspection, corrections, and final approval of the work, recording of all easements, provision of as -built drawings, and the posting of a Maintenance Bond as described in Section 23.2. Compliance with the Performance Bond requirement of the City's current Design and Construction Standards shall satisfy the provisions of this Section 23.1. 23.2 Maintenance Bond. Franchisee shall furnish a two (2) year maintenance bond ("Maintenance Bond"), or other surety acceptable to the City, at the time of final acceptance of construction work on Facilities within the Rights -of -Way. The Maintenance Bond amount will be equal to ten percent (10%) of the documented final cost of the construction work, but in no event shall a bond of more than $250,000 be required. The Maintenance Bond in this Section 23.2 must be in place prior to City's release of the bond required by Section 23.1. Compliance with the Ordinance No. 18-845 Page 29 of 37 Maintenance Bond requirement of the City's current Design and Construction Standards shall satisfy the provisions of this Section 23.2. Section 24. Abandonment 24.1 In the event that the use of any part of the Facilities are discontinued for any reason for a continuous period of six (6) months or more, or in the event such system or property has been installed in any Right -of -Way or other public place without complying with the requirements of this Franchise or other City ordinances, Franchisee shall, upon being given thirty (30) days' notice, remove at its expense all such discontinued Facilities other than any which the City may permit to be abandoned in place. In the event of such removal, Franchisee shall promptly restore the Right -of - Way or other areas from which such property has been removed to a condition satisfactory to the City. 24.2 Any property of Franchisee remaining in place ninety (90) days after such notice, termination or expiration of this Franchise shall be considered permanently abandoned. The City may extend such time not to exceed an additional ninety (90) days. Any costs incurred by the City in safeguarding such Facilities or removing the Facilities shall be reimbursed by Franchisee. Nothing contained within this Section 24 shall prevent the City from compelling Franchisee to remove any such Facilities through judicial action when the City has not permitted Franchisee to abandon said Facilities in place. 24.3 Any property of Franchisee to be abandoned in place shall be abandoned in such manner as the City shall prescribe. Upon permanent abandonment of the property of Franchisee in place, the property shall become that of the City, and Franchisee shall submit to the City Clerk an instrument in writing, to be approved by the City Attorney, transferring to the City the ownership of such property. Ordinance No. 18-845 Page 30 of 37 24.4 The provisions of this Section 24 shall survive the expiration, revocation, or termination of this Franchise. Section 25. General Provisions 25.1 Entire Agreement. This Franchise contains all of the agreements of the Parties with respect to any matter covered or mentioned in this Franchise and no prior agreements or understandings pertaining to any such matters shall be effective for any purpose. 25.2 Modification. No provision of this Franchise maybe amended or added to except by agreement in writing signed by both of the Parties. 25.3 Assignment. A. This Franchise may not be directly or indirectly assigned, transferred, or disposed of by sale, lease, merger, consolidation or other act of Franchisee, by operation of law or otherwise, unless approved in writing by the City, which approval shall not be unreasonably withheld, conditioned or delayed. The above notwithstanding, Franchisee may freely assign this Franchise in whole or in part to a parent, subsidiary, or affiliated entity, unless there is a change of control as described in Section 25.3B below, or for collateral security purposes. Franchisee shall provide prompt, written notice to the City of any such assignment. In the case of transfer or assignment as security by mortgage or other security instrument in whole or in part to secure indebtedness, such consent shall not be required unless and until the secured party elects to realize upon the collateral. For purposes of this Section, no assignment or transfer of this Franchise shall be deemed to occur based on the public trading of Franchisee's stock; provided, however, any tender offer, merger, or similar transaction resulting in a change of control shall be subject to the provisions of this Franchise. Ordinance No. 18-845 Page 31 of 37 B. Any transactions that singularly or collectively result in a change of more than fifty percent (50%) of the: ultimate ownership or working control of Franchisee, ownership or working control of the Facilities, ownership or working control of affiliated entities having ownership or working control of Franchisee or of the Facilities, or of control of the capacity or bandwidth of Franchisee's Facilities, shall be considered an assignment or transfer requiring City approval. Transactions between affiliated entities are not exempt from City approval if there is a change in control as described in the preceding sentence. Franchisee shall promptly notify the City prior to any proposed change in, or transfer of, or acquisition by any other party of control of Franchisee. Every change, transfer, or acquisition of control of Franchisee shall cause a review of the proposed transfer. The City shall approve or deny such request for an assignment or transfer requiring City's consent within one -hundred twenty (120) days of a completed application from Franchisee, unless a longer period of time is mutually agreed to by the parties or when a delay in the action taken by the City is due to the schedule of the City Council and action cannot reasonably be obtained within the one hundred twenty (120) day period. In the event that the City adopts a resolution denying its consent and such change, transfer, or acquisition of control has been affected, the City may revoke this Franchise, following the revocation procedure described in Section 14.3 above. The assignee or transferee must have the legal, technical, financial, and other requisite qualifications to own, hold, and operate Franchisee's Services. Franchisee shall reimburse the City for all direct and indirect costs and expenses reasonably incurred by the City in considering a request to transfer or assign this Franchise, in accordance with the provisions of Section 20.3 and Section 20.4, and shall pay the applicable application fee. C. Franchisee may, without prior consent from the City: (i) lease the Facilities, or any portion, to another person; (ii) grant an indefeasible right of user interest in the Facilities, or any Ordinance No. 18-845 Page 32 of 37 portion, to another person; or (iii) offer to provide capacity or bandwidth in its Facilities to another person, provided further, that Franchisee shall at all times retain ownership over its Facilities and remain fully responsible for compliance with the terms of this Franchise, and Franchisee shall furnish, upon request from the City, a copy of any such lease or agreement, provided that Franchisee may redact the name, street address (except for City and zip code), Social Security Numbers, Employer Identification Numbers or similar identifying information, and other information considered confidential under applicable laws provided in such lease or agreement, and the lessee complies, to the extent applicable, with the requirements of this Franchise and applicable City codes. Franchisee's obligation to remain fully responsible for compliance with the terms under this Section 25.3 shall survive the expiration of this Franchise but only if and to the extent and for so long as Franchisee is still the owner or has exclusive control over the Facilities used by a third party. 25.4 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. 25.5 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. Venue for any dispute related to this Franchise shall be the United States District Court for the Western District of Washington, or King County Superior Court. 25.6 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. Ordinance No. 18-845 Page 33 of 37 25.7 Notices. Any notices required to be given by the City to Franchisee or by Franchisee to the City shall be delivered to the parties at the following addresses: CITY OF FEDERAL WAY Attn: Public Works Director 33325 8th Avenue South Federal Way, WA 98003 with a copy to: CITY OF FEDERAL WAY Attn: City Attorney 33325 8th Avenue South Federal Way, WA 98003 MClmetro Access Transmission Services Corp. Attn: Franchise Manager 600 Hidden Ridge Mailcode: HQE02E102 Irving, TX 75038 with a copy to (except for invoices): Verizon Business Services 1320 North Courthouse Road, Suite 900 Arlington, VA 22201 Attn: General Counsel, Network & Technology Invoices: Verizon Attn: Contract Admin 6929 North Lakewood Ave, MD. 5.3-4009 Tulsa, OK 74117 Any notices shall be delivered personally to the addressee of the notice or sent by United States certified mail, postage prepaid, to the address set forth herein. Any notice so sent shall be deemed received three (3) business days after the date of mailing. 25.8 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. 25.9 Remedies Cumulative. Any remedies provided for under the terms of this Franchise are not intended to be exclusive but shall be cumulative with all other remedies available to the City at law, in equity or by statute. 25.10 Hazardous Substances. Franchisee shall not introduce or use any hazardous substances (chemical or waste), in violation of any applicable law or regulation, nor shall Franchisee allow any of its agents, contractors or any person under its control to do the same. Franchisee will be Ordinance No. 18-845 Page 34 of 37 solely responsible for and will defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from and against any and all claims, costs and liabilities including reasonable attorneys' fees and costs, arising out of or in connection with the cleanup or restoration of the property associated with Franchisee's use, storage, or disposal of hazardous substances, whether or not intentional, and the use, storage, or disposal of such substances by Franchisee's agents, contractors or other persons acting under Franchisee's control, intentional or not. 25.11 FAA. Franchisee acknowledges that it, and not the City, shall be responsible for the premises and equipment's compliance with all marking and lighting requirements of the FAA and the FCC. Franchisee shall indemnify and hold the City harmless from any fines or other liabilities caused by Franchisee's failure to comply with such requirements. Should Franchisee or the City be cited by either the FCC or the FAA because the Facilities or the Franchisee's equipment is not in compliance and should Franchisee fail to cure the conditions of noncompliance within the timeframe allowed by the citing agency, the City may either terminate this Franchise immediately on notice to the Franchisee or proceed to cure the conditions of noncompliance at the Franchisee's expense. Section 26. 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 27. Ratification Any act consistent with the authority and prior to the.effective date of this Franchise is hereby ratified and affirmed. Ordinance No. 18-845 Page 35 of 37 Section 28. Effective Date This Franchise shall take effect and be in full force five (5) days after its passage and publication, according to law (see Effective Date below). PASSED by the City Council of the City of Federal Way this 6th day of March, 2018. ATTEST: S ANIE COURTNEY, C APPROVED AS TO FORM: u CITY OF FEDERAL WAY: CITY CLERK J. RYAN CALL, CITY ATTORNEY FILED WITH THE CITY CLERK: 02/14/2018 PASSED BY THE CITY COUNCIL: 03/06/2018 PUBLISHED: 03/09/2018 EFFECTIVE DATE: 03/14/2018 ORDINANCE NO.: 18-845 Ordinance No. 18-845 Page 36 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. r� rjl DATED this :J- t- day of A I (\ , 201 MCIMETRO ACCESS TRANSMISSION SERVICES CORP. DBA V RIZON ACCESS TRANSMISSION SERVICES By: Its: Ordinance No. 18-845 Page 37 of 37 MClmetro ACCESS TRANSMISSION SERVICES CORP. ASSISTANT SECRETARY'S CERTIFICATE I, Christy K. Reyes., a duly elected and qualified Assistant Secretary of MClmetro Access Transmission Services Corp. d/b/a Verizon Access Transmission Services., a Delaware corporation (the "Corporation"), do hereby certify that: 1. I am the duly appointed Assistant Secretary of the Corporation, and familiar with the Corporation's corporate books and records and duly authorized to execute and deliver this Assistant Secretary's Certificate on behalf and in the name of the Corporation. 2. Robert F McGee, Executive Director Network Engineering & Operations, is authorized, pursuant to a Schedule of Authorizations duly adopted by the Board of Directors of the Corporation, to make, enter into, execute and deliver documents in connection with occupying the City of Federal Way public rights-of-way. 3. The foregoing Schedule of Authorizations has not been revoked, annulled, or amended in any manner whatsoever and remain in full force and effect as of the date hereof. IN WITNESS WHEREOF, I have hereunto set my hand of the Corporation this / I day of March, 2018. Christy"KI:R.eyes ,1 Assistant Secretary