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ORD 18-846ORDINANCE NO. 18-846 AN ORDINANCE of the City of Federal Way, Washington, granting Clear Wireless LLC, a Nevada limited liability company, a nonexclusive franchise to occupy rights-of-way of the City of Federal Way, Washington, within the specified franchise area for the purposes of installation, operation, maintenance, and repair of its wireless communications fixtures and related equipment, cables, accessories, and improvements in a portion of the rights-of-way within and through the City of Federal Way. WHEREAS, Clear Wireless LLC, a Nevada limited liability company ("Franchisee") has requested a franchise from the City of Federal Way ("City"), in order to place wireless communications fixtures and related equipment in the City owned or controlled rights-of-way; and WHEREAS, Franchisee was formally known as Clearwire US LLC, a Nevada limited liability company; 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, the Council of Federal Way adopted Ordinance No. 07-553 on April 17, 2007 granting Clearwire US LLC, now known as Clear Wireless LLC, a franchise 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; and WHEREAS, RCW 35A.47.040 et. seq. permits the City 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 reserves such other powers and authorities granted to Washington code cities by general law and specifically reserves its right to Ordinance No. 18-846 Page 1 of 36 adopt future 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: 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: (1) wireless communications facilities, including, but not limited to, electronic equipment, radio transmitting and receiving apparatus, and supporting equipment located on a pole in a specified portion of the public right-of-way, base station transmitting, underground fiber optic telecommunication lines or similar lines, and (2) the appurtenances necessary to connect the lines or similar lines to the existing switched telephone network, all as shown on Exhibit A. 1.5 "Franchise Area" means only that portion of the City owned or controlled rights-of- way located in the City of Federal Way and shown in Exhibit A attached hereto (excluding privately owned property), and/or any other areas approved by the Federal Way City Council and incorporated into this Franchise by amendment. 1.6 "Franchisee" means Clear Wireless LLC, a Nevada limited liability company, and its respective successors and assigns if consented to by the City as provided in Section 24 herein. 1.7 "FWRC" means the Federal Way Revised Code. Ordinance No. 18-846 Page 2 of 36 Section 2. Grant/Acceptance 2.1 Grant of Franchise. The City hereby grants to Franchisee the nonexclusive right to enter upon the Franchise Area for the limited purpose of constructing, excavating, installing, maintaining, restoring, and repairing Facilities within the Franchise Area. This Franchise is specifically limited to the right for Franchisee to install Facilities owned and operated by Franchisee. This Franchise does not permit Franchisee to lease, rent, or otherwise allow use of conduits, space or capacity provided by the Facilities 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 sixty (60) days after the effective date of this Franchise, file with the City its written acceptance of this Franchise and all of its terms and conditions. Section 3. Non -Franchise Area City Property This Franchise does not and shall not convey any right to Franchisee to install its Facilities on, under, over, across, or to otherwise use City -owned or leased properties of any kind outside the Franchise Area, or to install Facilities on, under, over, across or otherwise use any City owned or leased property within the Franchise Area other than public roads, streets, avenues, alleys, and highways. Additionally, this Franchise does not convey any right to Franchisee to install its Facilities on, under, over, across private property or any other governmental authorities' property or on any other person or entity's poles or apparatus, and Franchisee is responsible for obtaining any authorizations, agreements or consents from private property owners, other governmental authorities, and any other persons or entities. Ordinance No. 18-846 Page 3 of 36 Section 4. Term Subject to Franchisee filing its acceptance pursuant to Subsection 2.2, the term of this Franchise shall be for a period of ten (10) years commencing on the effective date of this Franchise, unless terminated earlier pursuant to this Franchise or other applicable law. Section 5. Location of Facilities 5.1 Location. In addition to the other requirements of this Franchise, the location of the Facilities, including any underground Facilities and appurtenances, their depths below surface of ground or grade of a rights-of-way, and any related existing equipment (such as cellular or personal communication service antennae) to which the Facilities are connected shall be depicted on a map and submitted to the City within thirty (30) days of the installation of the Facilities. The fiber optic line permitted by this Franchise which runs from the pole in the rights-of-way to the equipment shed or building on private property shall be maintained underground. Upon written request of the City, Franchisee shall update such map to reflect actual or anticipated improvements to the system. Any such map (or update thereof) so submitted shall be for informational purposes only and shall not obligate Franchisee to undertake any specific improvements, nor shall such map be construed as a proposal to undertake any specific improvements. 5.2 GIS Data. At such time as Franchisee develops or employs Geographic Information System ("GIS") technology, Franchisee shall submit the information required in Subsection 5.1 above in digital GIS format, showing the location of its Facilities within the Franchise Area. 5.3 Design Markings. In the event the City desires to design new streets or intersections, renovate existing streets, or make any other public improvements, Franchisee shall, at the City's reasonable request, provide the location of Franchisee's Facilities within the Franchise Area by either Ordinance No. 18-846 Page 4 of 36 field markings or by locating the Facilities on the City's design drawings, and shall provide all other reasonable cooperation and assistance to the City. Section 6. Noninterference of Facilities Franchisee agrees to maintain its Facilities and perform any and all activities authorized by this Franchise: (1) so as not to unreasonably interfere with the free passage of traffic; (2) in accordance with the laws of the State of Washington and City Code requirements, Franchise provisions, regulations, resolutions and rules, as now existing or as hereafter amended; and (3) as required by the Director in accordance with the foregoing or given public health, safety and welfare. This requirement applies whether or not the work is performed by the Franchisee, its agents, employees, subcontractors, or other third parties at Franchisee's direction. Section 7. Requirement to Obtain Permits 7.1 Permits and Permit Applications. Franchisee shall, at its expense, obtain all permits, including rights-of-way permits, and pay all permit fees required by applicable City ordinances, regulations, resolutions, and rules prior to commencing any work within the Franchise Area. Franchisee permit applications shall show the position and location of the proposed Facilities to be constructed, laid, installed, or erected at that time, show their relative position to existing rights-of- way or property lines upon prints drawn to scale, designate rights-of-way by their names and improvements, such as, but not limited to, sidewalks, curbs, gutters, shoulders of roadway, ditches, paved roadways, roadways to property lines, turnouts, parking strips, telephone or electric distribution poles, and water pipes existing on the ground to be occupied, or as required by the Director. The Franchisee shall specify the class and type of materials to be used, equipment to be used, and mode of safeguarding and facilitating the public traffic during construction. Materials and equipment shall be in new or like new condition for its type and kind. The manner of excavation, Ordinance No. 18-846 Page 5 of 36 construction, installation, backfill, and temporary structures such as, but not limited to, traffic turnouts and road obstructions, shall meet the standards of the FWRC and be satisfactory to the Director. All traffic control shall be in accordance with the rights-of-way permit, and shall be in accordance with the Manual on Uniform Traffic Control Devices ("MUTCD"). The Franchisee shall indicate on any permit application the time needed to complete the work. The time needed to complete the work is subject to approval by the City as a condition of the issuance of the permit or approval. 7.2 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 nature and extent of the emergency, and the work to be performed, prior to commencing the work; and (2) such permit is obtained by Franchisee as soon as practicable following cessation of the emergency. Section 8. Standard of Performance The Franchisee shall not excavate for a distance of more than one hundred feet (100') without immediately backfilling and compacting to surface grade and City standards. Backfilled trench areas within driving lane must be patched, either temporarily or permanently, before the end of the work day in which they have been opened. Trench areas within the rights-of-way, but not within a driving lane, must also be patched within the time limits specified by the City on the rights-of-way use permit. Final surface restoration shall be completed within thirty (30) days and shall be equal to or better than the surface condition prior to permit issuance. Ordinance No. 18-846 Page 6 of 36 Any asphalt overlay completed within the Franchise Area during the five (5) year period immediately prior to the date of permit application shall not be open cut by Franchisee unless required by an emergency and subject to the provisions of Subsection 7.2 above. Franchisee shall install new asphalt overlay on any street that is open cut, whether in an emergency or otherwise, for a minimum of one (1) block (approximately 500 feet) in length in both directions from the open cut, unless determined otherwise by the Director. Within fifteen (15) days of completion of any installation of Franchisee's Facilities within the Franchise Area, Franchisee shall submit to the Director plans, stamped by a Professional Engineer licensed by the State of Washington, showing the "as -built" location of the Facilities. Section 9. Survey Markers and Monuments Franchisee shall, using a licensed surveyor, immediately replace all markers or monuments disturbed during any work by Franchisee within the Franchise Area. Franchisee shall pay all costs associated with such lost, destroyed, or disturbed monuments or markers. Section 10. Survey 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 the Franchise. The method of referencing these monuments or other points shall be approved by the City before placement. The construction shall be made as expeditiously as conditions permit, and as directed by the City. The cost of monuments or other markers lost, destroyed, or disturbed, and the expense of replacement of the monuments and markers, shall be borne solely by the Franchisee. A complete set of reference notes for monuments, markers, and other ties shall be filed with the City. Ordinance No. 18-846 Page 7 of 36 Section 11. Right of City to Complete Work In the event the Franchisee fails to comply with any applicable federal, state or City laws, ordinances, rules, regulations or standards, or with any of the terms of this Franchise, and such noncompliance continues for a period of ten (10) days after Franchisee receives written notice from the City regarding the noncompliance, the City may, but in no event is the City obligated to, order any work completed, including without limitations Franchisee's obligation to repair pursuant to Section 8 herein and Franchisee's obligation to remove or relocate facilities pursuant to Section 12 herein. If the City causes such work to be done by its own employees or by any person or entity other than Franchisee, Franchisee shall, upon the City's written request, reimburse the City for all reasonable costs and expenses incurred by the City in having such work performed, which costs may include the City's reasonable overhead expenses and attorneys' fees, within five (5) days; however, the City shall not have any electrical work accomplished by any person or entity other than Franchisee or a qualified and licensed electrical contractor. Section 12. 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. The rights reserved herein include, without limitation, the construction, installation, and/or maintenance of any electrical, water, sewer or storm drainage line, traffic signals, street lights, trees, landscaping, bicycle paths and lanes, equestrian trails, sidewalks, other pedestrian amenities, and other public street improvement projects. This Franchise is not an exclusive franchise and shall not be construed in any manner to prohibit the City from granting other and further franchises in, under, over, upon, and along the Franchise Area, nor from exercising such other powers and authorities granted to the City by the Ordinance No. 18-846 Page 8 of 36 Washington State Constitution and general law, including the City's right to adopt future regulations under its police powers. Franchisee shall operate the Facilities in a manner that will not cause interference to the City, and other lessees, franchisees, or licensees of the Franchise Area whose use predates this Franchise, and in compliance with the requirements the FWRC as it now exists or is hereafter amended. In addition, with respect to lessees, franchisees, or licensees whose operations commence after installation of the Facilities hereunder, Franchisee shall not make any change in its operations that causes or is intended to cause material interference with such lessees, franchisees, or licensees. All operations by Franchisee shall be in compliance with all Federal Communications Commission ("FCC") regulations. Pursuant to FWRC 19.255.060 as it now exists or is hereafter amended, the City may issue permits for and enter into franchises and leases to allow location or collocation of other telecommunications facilities in the Franchise Area, and Franchisee consents to the same; however, the location or collocation must occur in compliance with said FWRC 19.255.060 as it now exists or is hereafter amended. In the event that any such location or collocation results in interference with Franchisee's operations, and provided that Franchisee has substantially complied with the provisions of this Franchise, the City agrees to take reasonable steps to cause the interfering party to eliminate such interference. In the event that the interference is not eliminated within thirty (30) days of notice to City by Franchisee, Franchisee may terminate this Franchise immediately and pursue any and all remedies available to it against the interfering party, (but in no event shall Franchisee pursue any action against City at law or in equity or for declaratory relief). Ordinance No. 18-846 Page 9 of 36 12.2 City's Duties. In the event (1) the City undertakes any work, including necessary maintenance within a rights-of-way in which Franchisee's Facilities are located, or (2) the City requires undergrounding of Facilities of Franchisee or lines or equipment of any other entity due to the City requiring the removal of any poles, and such work necessitates the relocation of Franchisee's then existing Facilities within the Franchise Area, the City shall: (a) Provide written notice of the required relocation or undergrounding to Franchisee within a reasonable time prior to the commencement of such City work; and (b) Provide Franchisee with copies of pertinent portions of the City's plans and specifications 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. Then, Franchisee shall relocate or underground (as the case may be) its Facilities to accommodate or comply with the City work. 12.3 Franchisee's Duties. Within thirty (30) days of receipt of the City notice under Subsection 12.2(a) requiring relocation or undergrounding and receipt of the plans and specifications pursuant to Subsection 12.2(b), Franchisee shall raise, lower, move, or underground such Facilities within the Franchise Area at its sole cost and expense to the location or position directed by the City to comply with City requirements, to cause the least interference with the improvement, repair, or alteration contemplated by the City, and to conform to such new grades as may be established. If the City improves a rights-of-way, Franchisee shall, at its sole cost and expense, upon receipt of notice, replace the Facilities located in the improved subgrade of the improvement with substitute Facilities Ordinance No. 18-846 Page 10 of 36 conforming to the specifications for the improvement of the rights-of-way. In the event of relocation or undergrounding City and Franchisee agree to reasonably cooperate to relocate the Facilities to a different area of the Franchise Area, if possible. Any relocation of the Facilities shall be performed by Franchisee. City shall provide Franchisee with thirty (30) days' notice, or in the event of emergency, with notice if it is reasonably practicable to do so. The City shall reasonably cooperate with Franchisee in processing any required zoning approvals for relocating the Facilities including suggesting alternative locations in the Franchise Area if such are reasonable possibilities. Section 13. 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 or to rights-of-way, the Franchisee agrees to repair the damage at its own cost and expense. The Franchisee shall, upon discovery of any such damage, immediately notify the City. The City will inspect the damage, and set a time limit for completion of the repair. If the City discovers damage caused by the Franchisee to rights-of-way, or to public and private improvements in or to rights-of-way, the City shall give the Franchisee notice of the damage and set a time limit in which the Franchisee must repair the damage. In the event the Franchisee does not repair a rights-of-way or an improvement to a rights-of-way as required in this section, the City may repair the damage pursuant to Section 11 of this Franchise. Section 14. Default 14.1 Notice of Default. In addition to other remedies set forth herein, if Franchisee shall fail to comply with any of the provisions of this Franchise, the City may serve a written notice to Franchisee ordering such compliance and Franchisee shall have ten (10) days from the receipt of such notice in which to comply. Ordinance No. 18-846 Page I I of 36 14.2 Revocation of Franchise. If Franchisee is not in compliance with this Franchise after the expiration of the ten (10) day period, the City may, by resolution, declare the Franchise immediately revoked. Section 15. Limited Rights This Franchise is intended to convey only a limited contractual right and interest to Franchisee in the Franchise Area. This Franchise is not a warranty of title or conveyance of any ownership or property 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 thirty (30) days before vacating all or any portion of the Franchise Area. The City may, after thirty (30) days written notice to Franchisee, terminate this Franchise with respect to any such vacated area. 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, Ordinance No. 18-846 Page 12 of 36 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. 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 One Thousand and No/ 100 Dollars ($1,000.00) to recover the administrative expenses incurred by the City that are directly related to preparing and approving this Franchise. Nothing herein shall preclude the City from charging administrative fees or recovering any administrative costs incurred by the City in the approval of permits or in the supervision, inspection, or examination of all work by Franchisee in the Franchise Area as prescribed in accordance with applicable provisions of the Federal Way Revised Code. Section 21. Indemnification Franchisee agrees to indemnify and hold harmless and defend the City, its elected officials, 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, or by the Ordinance No. 18-846 Page 13 01'36 Franchisee's breach of any provisions of this Franchise; provided, however, that this section shall not be construed as requiring Franchisee to indemnify, hold harmless or defend the City against claims or damages arising from the negligence of the City, its agents or employees. In the event any claim, demand, suit or action is commenced against the City that gives rise to Franchisee's obligation pursuant to this Section 21, the City shall promptly notify Franchisee thereof. Franchisee's selection of an attorney to defend any such claim, demand, suit, or action shall be subject to the City's approval, which shall not be unreasonably withheld. Franchisee shall not settle or compromise any such suit or action except with prior written consent of the City, which shall not be unreasonably withheld. The City shall have the right at all times to participate through its own attorney in any suit or action which arises pursuant to this Franchise when the City determines that such participation is required to protect the interest of the City or the public. In the event it is determined that RCW 4.24.115 applies to this Franchise, Franchisee agrees to defend, hold harmless and indemnify the City to the maximum extent permitted thereunder, to the full extent of Franchisee's negligence. Section 22. Insurance 22.1 Minimum Limits. The Franchise agrees to carry as a minimum, the following insurance, all such insurance policies shall be on current ISO or equivalent forms and issued by companies authorized to transact business in the state(s) where operations shall occur and who hold a current rating of not less than A-, VII according to A.M. Best. (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 Ordinance No. 18-846 Page 14 of 36 liability, contractual coverage, operations, explosion, collapse, underground and property damage; (c) Automobile liability insurance with combined single limits of liability not less than $5,000,000 for bodily injury, including personal injury or death and property damage. The coverage amounts set forth may be met by a combination of underlying and umbrella policies so long as in combination the limits equal or exceed those stated. 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, materially modified, or reduced except after thirty (30) days' prior written notice to the City delivered by mail. Franchisee's insurance shall be primary insurance with respect to the City, its officers, officials, employees and volunteers. Any insurance or self-insurance by the City, its officers, officials, employees or volunteers shall be in excess of Franchisee's required insurance. 22.3 Verification of Coverage. Franchisee shall furnish the City with certificates of insurance and original endorsements evidencing the coverages required by this Section. The certificates and endorsements shall be signed by a person authorized by the insurer to bind coverage on its behalf and must be received and approved by the City prior to the commencement of any work. Ordinance No. 18-846 Page 15 of 36 Section 23. Bond Franchisee shall guarantee work completed by the Franchisee under this Franchise for a period often (10) years, from the time of work, against settlement or repair. Before commencing work within the City, the Franchisee shall post a bond in the form attached as Exhibit B and in the amount of 120 percent of the value of work to be performed in connection with the Facilities to guarantee performance of the construction, performance, maintenance or repair in accordance with any permits required by Section 7, with the standard of performance as referenced in Section 8, and with any provisions of this Franchise. Procedures for submission and release of the bond shall be as provided by 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 of the term of the Franchise, provided the City has not notified Franchisee of any actual or potential damages incurred as a result of Franchisee's operations pursuant to this Franchise or as a result of default thereunder. Section 24. General Provisions 24.1 Entire Agreement. This Franchise contains all of the agreements of the City and Franchisee with respect to any matter covered or mentioned in this Franchise and no prior agreements or understandings pertaining to any such matters shall be effective for any purpose. 24.2 Modification. No provision of this Franchise may be amended or added to except by agreement in writing signed by both City and Franchisee. 24.3 Assignment. Franchisee shall not have the right to transfer or assign, in whole or in part, any or all of its obligations and rights hereunder without the prior written consent of the City, Ordinance No. 18-846 Page 16 of 36 which will not be unreasonably withheld or delayed. Any assignee shall, within thirty (30) days of the date of any approved assignment, file written notice of the assignment with the City together with its written acceptance of all terms and conditions of this Franchise. Notwithstanding the foregoing, Franchisee shall have the right, without such notice or such written consent, to mortgage its rights, benefits and privileges in and under this Franchise to the Trustee for its bondholders. 24.4 Attorneys' Fees. In the event the City or the Franchisee defaults in the performance of any terms in this Franchise, and the Franchisee or the City places the enforcement of the Franchise or any part thereof or for the collection of any monies due, or to become due hereunder, in the hands of an attorney, or files suit upon the same, the prevailing party shall be entitled to an award of all reasonable attorneys' fees, costs and expenses. The venue for any dispute related to this Franchise shall be King County, Washington. 24.5 No Waiver. Failure of either party to declare any breach or default by the other party immediately upon the occurrence thereof, or delay in taking any action in connection therewith, shall not waive such breach or default, but such party shall have the right to declare any such breach or default at any time. Failure of either party to declare one breach or default does not act as a waiver of such party's right to declare another breach or default. 24.6 Governing Law. This Franchise shall be made in and shall be governed by and interpreted in accordance with the laws of the State of Washington. 24.7 Authority. Each individual or entity executing this Franchise on behalf of the City and Franchisee represents and warrants that such individual or entity is duly authorized to execute and deliver this Franchise on behalf of the Franchisee or the City, respectively. Ordinance No. 18-846 Page 17 of 36 24.8 Notices. Any notices required to be given by the City to Franchisee or by Franchisee to the City shall be delivered to the parties at the following addresses: Franchisee: Clear Wireless LLC Property Services Site ID: SE52XC260 Mailstop KSOPHT0101-Z2650 6391 Sprint Parkway Overland Park, KS 66251-2650 With a copy to: Sprint Law Department Attn: Real Estate Attorney Site ID: SE52XC260 Mailstop KSOPHT0101-Z2020 6391 Sprint Parkway Overland Park, KS 66251-2020 City: City of Federal Way Attn: City Attorney 33325 8th Avenue South Federal Way, WA 98003 Any notices may be delivered personally to the addressee of the notice or may be deposited in the United States mail, postage prepaid, to the address set forth herein. Any notice so posted in the United States mail shall be deemed received three (3) days after the date of mailing. 24.9 Captions. The respective captions of the sections and subsections of this Franchise are inserted for convenience of reference only and shall not be deemed to modify or otherwise affect in any respect any of the provisions of this Franchise. 24.10 Remedies Cumulative. Any remedies provided for under the terms of this Franchise are not intended to be exclusive, but shall be cumulative with all other remedies available to the City at law, in equity or by statute. Section 25. Severability If any section, sentence, clause, or phrase of this Franchise should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not Ordinance No. 18-846 Page 18 of 36 affect the validity or constitutionality of any other section, sentence, clause, or phrase of this Franchise. Section 26. Corrections The City Clerk and the codifiers of this ordinance are authorized to make necessary corrections to this ordinance including, but not limited to, the correction of scrivener/clerical errors, references, ordinance numbering, section/subsection numbers and any references thereto. Section 27. Ratification Any act consistent with the authority and prior to the effective date of this ordinance is hereby ratified and affirmed. Section 28. Effective Date This ordinance shall take effect and be in force thirty (30) days from and after its passage and publication, as provided by law. PASSED by the City Council of the City of Federal Way this 6th day of March, 2018. Ordinance No. 18-846 Page 19 of 36 CITY OF FEDERAL WAY: FE SELL, MAYOR ATTEST: STEPHANIE COURTNEY, C ' , CITY CLERK APPROVED AS TO FORM: 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: 04/09/2018 ORDINANCE NO.: 18-846 Ordinance No. 18-846 Page 20 of 36 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 pLot day of Mor" +- , 2011. CLEAR WIRELESS LLC, a Nevada limited liability company Silvia J. Lin, Manager — Real Estate Ordinance No. 18-846 Page 21 of 36 Sprint works for me - CERTIFICATE The undersigned, the duly authorized Vice President and Assistant Secretary of Clear Wireless LLC, a Nevada limited liability company ("Clearwire"), does hereby certify that Silvia J. Lin, Manager — Real Estate, is authorized to execute on behalf of Clearwire an Acceptance of that certain Ordinance of the City of Federal Way, Washington, granting Clearwire a nonexclusive franchise to occupy specified rights-of-way for the purposes of installation, operation, maintenance and repair of its wireless communications facility located at Dash Point Road, City of Federal Way, State of Washington (Clearwire Site Number: SE52XC260). Dated as of the 13th day of March, 2018. STATE OF KANSAS COUNTY OF JOHNSON Name: ma Assistant John . Chap ma P -sident Secretary ACKNOWLEDGEMENT Before me, a notary public in and for said County and State, on this ) day of March, 2018, personally appeared John W. Chapman, Vice President and Assistant Secretary of Clear Wireless LLC, a Nevada limited liability company, to me known to be the person who executed this instrument, and acknowledged to me that John W. Chapman executed the same as a free and voluntary act and deed for the purposes set forth. DEBRA BABYLON Notary Public State of Kans My Commission Expires &Ma /6ttlici,_. Notary Public We work for the people who matter most, our c:uston)ers. Sprint° works for me - CERTIFICATE The undersigned, the duly authorized Vice President and Assistant Secretary of Clear Wireless LLC, a Nevada limited liability company ("Clearwire"), does hereby certify that Silvia J. Lin, Manager — Real Estate, is authorized to execute on behalf of Clearwire an Acceptance of that certain Ordinance of the City of Federal Way, Washington, granting Clearwire a nonexclusive franchise to occupy specified rights-of-way for the purposes of installation, operation, maintenance and repair of its wireless communications facility located at Dash Point Road, City of Federal Way, State of Washington (Clearwire Site Number: SE52XC260). Dated as of the 13th day of March, 2018. Name: John . Chapm Vice P sident an Assistant Secretary ACKNOWLEDGEMENT STATE OF KANSAS COUNTY OF JOHNSON Before me, a notary public in and for said County and State, on this ) day of March, 2018, personally appeared John W. Chapman, Vice President and Assistant Secretary of Clear Wireless LLC, a Nevada limited liability company, to me known to be the person who executed this instrument, and acknowledged to me that John W. Chapman executed the same as a free and voluntary act and deed for the purposes set forth. DEBRA BABYLON Notary Public State of Kansas - My Commission Expires ANL • &fr)/tet 76thy401--, Notary Public We work for the people who matter most. EXHIBIT A LOCATION OF FACILITIES WITHIN THE FRANCHISE AREA (see attached) Ordinance No. 18-846 Page 22 of 36 puegpeoiq ssalaalnn ei ieap h•. SNOIS1A9E1 611#1.a 9 OM N lZ dML'9 339 A2/11919 3114 ONLLS1x3 HZ6C3V1-VM QVOd .WIOd HSVJ M 8 0 tti 41 I N4 1 1 1 / I ` - t` LI Au.* ...oda 9 SRE DETAL cE • Ordinance Ivo. IS -8-46 i 11 S ^_ l j)3' Pi EEEyyyI'=9i0/9 9 d I I II 1iH?H 1 4 S I ( -a!i I i M 3e }} xdYd:. i n e ¢ rn c a 4 7a4.s�_yp; "•.'27.' 313 ila6 g aoo, 3-e�a ' i'9g_ p 10°19'1"69.f--- 39".� - t 9 At a q -Pv• za`m.33 C18Y14 a r 988 35 F -4„r„ i.y'��. . ,g' Rao;'. z a i Z i� � gg4 aO a�F,� it .15 } Cyd i i z w 3 e., 2H ._2 gp 6 G ga _ .E's .. ?Ail, �a -7 i 3 B ;'a� g•$ G" �% �6 (wja 4Ix � 2a 33g1 B i'i5 r l'i: helhioy O-• rZ liT `. WO tti 41 I N4 1 1 1 / I ` - t` LI Au.* ...oda 9 SRE DETAL cE • Ordinance Ivo. IS -8-46 0 EXHIBIT "A" FRANVISE ARBA o 1 5 14-4 4i Y v Pi .1,-,2 ?ted �� 53 1_ a:aS g�� 4, 1k 'AY Silli!4 $gQ S�b; i a N�Ymo ° bE SE;? 1 a4it x 4461;442444 oC 4' S° ."", 3a �7r 3F.!- F$ 1 1I E 4ff Ya it $Y 44144 vo Y£3 ,°,a a g� sdS. Wyl 3i 4. 1pip 3 t 7 S �^ g �� I j 3=, o r,3:gg gid s� s�1111;113114 ij E.o� LI 111 s Yy�q;�r ul- 52 611 o . € g3gII ag a `o�3 33g_JOS : i S&N-;7ia�a$i6 2,4 g/ .n ` 117 E 4c VSO 411 d 5 y .�w Jit ipv PrIgg .1 'dig? g3�c� Wei: =tF YQ3 „al 9gz 0 0 2 8 O 0 a S N 3 7 n 4— 1 0 F a 4 0 2 tl Ordinance No. 18-846 1- CISCGDX m LU Ordinance No. 18 816 Page 27 of 36 Ordinance No. 18-846 2Q E Laja Page 28 of 36 :_ii'-'.= i o �4 _.g C0'JPMLNI KCCESSOPv 0u10m0 ELEv*i0N `r, w 1,n gi 41 3 RP: i g a 9 S S ; " fi g$iii, _a. _:.41 0...i N 1 Y e� _L8 ' 11: is n - II 111111111 ig 4441C § ,a ill \ ,. 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WA 98013 I A h L*\\t\\\\\\\\4\ a e :I?. g, m II11. 1.1 ii —...-,-----_-_-..,--...... . clear w're0 5803 1..0 *03 38010,. 81.80. SDOE 300 818Run0. wA 98.13) r 3 ti . yg" 3�z CLEARWIRE ANTENNA INFORMATION if o r c k ! gels dE ♦irr ' fi i g1 1/1 1t ig ES * k ie 5 .111 ; 1H A L L ARCHITECTURE Hm1.5 Oset Ufa Colo 19119 North Cloak Poing, Sdt 103 6et`e& RA 93011 p0. fon) 415-CNw lor. (435) 113.0799 aa e g0 Ordinance No. 18-846 arcnianta Page 3? of ?6 0 t CD 312 14i 11 g 5151 g ?Ins AE 5,2,s g: Pt 11 ssgg p? 9! Q ra3 1.4 11 iiIii i2 14.5 % riP 4 ah Jig t r�. 0 0 m 0 0 22 6 0 it r; Ordinance No. 18-846 4— CD - Page 33 of 36 Exhibit B CITY OF FEDERAL WAY PERFORMANCE/MAINTENANCE BOND KNOW ALL PEOPLE BY THESE PRESENTS: We, the undersigned Clear Wireless LLC, a Nevada limited liability company, ("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 Sixty Thousand Dollars and No/100 ($60,000.00) for the payment of which we firmly bind ourselves and our legal representatives, heirs, successors and assigns, jointly and severally. This obligation is entered into pursuant to the statutes of the State of Washington and the ordinances, regulations, standards and policies 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. 18-846 Page 34 of 36 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 to resolve said dispute. The Parties shall proportionately share in the cost of the mediation. The mediation shall be administered by Judicial Dispute Resolution, LLC, 1425 Fourth Avenue, Suite 300, Seattle, Washington 98101. The Surety shall not interplead prior to completion of the mediation. DATED this day of , 20_. CORPORATE SEAL OF PRINCIPAL: CLEAR WIRELESS LLC: By: Its (Name of Person Executing Bond) (Title) (Address) (Phone) Ordinance No. 18-846 Page 35 of 36 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: J. Ryan Call, City Attorney Surety Attorney -in -Fact (Attach Power of Attorney) (Name of Person Executing Bond) (Address) (Phone) Ordinance No. 18-846 Page 36 of 36