Ord 03-447ORDINANCE NO. 03-447
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL
WAY, WASHINGTON, GRANTING VOICESTREAM PCS III
CORPORATION, A NONEXCLUSIVE FRANCHISE TO OCCUPY RIGHTS-
OF-WAY OF THE CITY OF FEDERAL WAY, WASHINGTON, WITHIN
THE SPECIFIED FRANCHISE AREA FOR THE PURPOSES OF
INSTALLATION, OPERATION, MAINTENANCE AND REPAIR OF ITS
WIRELESS COMMUNICATIONS FIXTURES AND RELATED
EQUIPMENT, CABLES, ACCESSORIES AND IMPROVEMENTS IN A
PORTION OF THE RIGHTS-OF-WAY WITHIN AND THROUGH THE
CITY OF FEDERAL WAY.
WHEREAS, VoiceStream PCS 1II Corporation ("Franchisee") has requested a Franchise
from the City of Federal Way, in order to place wireless transmitting facilities and related
appurtenances in the City owned or controlled rights-of-way; and
WHEREAS, the City Council of Federal Way finds that it is in the public interest to grant
such a Franchise, which will specify the rights and duties of Franchisee; and
WHEREAS, RCW 35A.47.040 et. seq. permits the City of Federal Way to grant
nonexclusive Franchises for the use of public streets, bridges or other public ways for, inter alia.
conduits, wires and appurtenances for transmission of signals and other methods of communications
and
WHEREAS, in granting such a nonexclusive Franchise Agreement, the City of Federal Wa'
reserves such other powers and authorities granted to Washington code cities by general law;
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
Ordinance No.03-447, Page 1
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: (i) wireless communications facilities, including, but not limited
to electronic equipment, radio transmitting and receiving apparatus, and supporting equipment to be
located on a pole on a certain public right of way, base station transmitting cabinets, radio ~equency
antennas and E-OTD locating antennas as required by law or FCC order, (ii) underground fiber optic
telecommunication lines or similar lines, and (iii) any appurtenances necessary to connect the lines or
similar lines to the existing switched telephone network all as shown on Exhibit "A."
1.5 "Franchise Area" means only that portion of the City owned or controlled rights-of-
way located in the City of Federal Way and shown in Exhibit A attached hereto (excluding privately
owned property), and/or any other areas approved by the Federal Way City Council and incorporated
into this Ordinance via amendment.
1.6 "Franchisee" means VoiceStream PCS 11I Corporation, and its respective successors
and assigns if consented to by the City of Federal Way as provided in Section 24 herein.
1.7 "FWCC" means the Federal Way City Code.
Ordinance No.03-447, Page 2
Section 2. Grant/Acceptance
2.1 Grant of Franchise. The City hereby grants to Franchisee the nonexclusive fight 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 Ci,ty 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 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 and any other persons or entities.
Ordinance No.03-447, Page 3
Section 4. Term
Subject to Franchisee filing its acceptance pursuant to Subsection 2.2, the term of this
Franchise shall be for a period often (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 antennae) to
which the Facilities are connected shall be depicted on a map and submitted to the City within thirty
(30) days of the installation of the Facilities. The fiber optic line permitted by this Franchise which
runs from the pole in the rights-of-way to the equipment shed or building on private property shall be
installed underground. Upon written request of the City, Franchisee shall update such map to reflect
actual or anticipated improvements to the system. Any such map (or update thereof) so submitted
shall be for informational purposes only and shall not obligate Franchisee to undertake any specific
improvements, nor shall such map be construed as a proposal to undertake any specific
improvements.
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 Desitin Markings. In the event the City desires to design new streets or intersections,
renovate existing streets, or make any other public improvements, Franchisee shall, at the City of
Federal Way's reasonable request, provide the location of Franchisee's Facilities within the Franchise
Ordinance No.03-447, Page 4
Area by either field markings or by locating the Facilities on the City's design drawings, and shall
provide all other reasonable cooperation and assistance to the City.
Section 6. Noninterference of Facilities
Franchisee agrees to maintain its Facilities and perform any and all activities authorized by
this Franchise: (1) so as not to unreasonably interfere with the free passage of traffic and (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
Ordinance No.03-447, Page 5
equipment shall be in new or like new condition for its type and kind. The manner of excavation,
construction, installation, backfill, and temporary structures such as, but not limited to, traffic
turnouts and road obstructions shall meet the standards of the FWCC and be satisfactory to the
Director. All traffic control shall be in accordance with the rights-of-way permit, and shall be in
accordance with the Manual on Uniform Traffic Control Devices (MUTCD). The Franchisee shall
indicate on any permit application the time needed to complete the work. The time needed to
complete the work is subject to approval by the City as a condition of the issuance of the permit or
approval.
7.2 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 a driving lane must be patched, either temporarily or permanently, before the end of the
workday in which they have been opened. Trench areas within the rights-of-way, but not with in a
driving lane, must also be patched within the time limits specified by the City on the rights-of-way
Ordinance No.03-447, Page 6
use permit. Final surface restoration shall be completed within thirty (30) days and shall be equal to
or better than the surface condition prior to permit issuance.
Any asphalt overlay completed with the Franchise Area during the five (5) year period
immediately prior to the date of permit application shall not be open cut by Franchisee unless
required by an emergency and subject to the provisions of Subsection 7.2 above. Franchisee shall
install new asphalt overlay on any street that is open cut, whether in an emergency or otherwise, for
one (1) block (approximately 500 feet) in length in both directions from the open cut. Within fifteen
(15) days of completion of any installation of Franchisee's Facilities within the Franchise Area,
Franchisee shall submit to the Director plans, stamped by a Professional Engineer licensed by the
State of Washington, showing the "as-built" location of the Facilities.
Section 9. Survey Markers and Monuments
Franchisee shall, using a licensed surveyor, immediately replace all markers or monuments
disturbed during any work by Franchisee within the Franchise Area. Franchisee shall pay all costs
associated with such lost, destroyed or disturbed monuments or markers.
Section 10. Surface Markings/Stakes
Prior to Franchisee commencing any excavation work within the Franchise Area, Franchisee
shall reference all monuments and markers relating to subdivisions, plats, highways, and other
surveys. The reference points shall be located so that they shall not be disturbed during the
Franchisee's operations under this Franchise. The method of referencing these monuments or other
points shall be approved by the City before placement. The construction shall be made as
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,
Ordinance No.03-447, Page 7
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.
Section 11. Right of City to Complete Work
In the event Franchisee fails to comply with any applicable federal, state or City laws,
ordinances, rules, regulations or standards or with any of the terms of this Franchise, and such
noncompliance continues for a period of ten (10) business days after Franchisee receives written
notice from the City regarding the noncompliance, the City may, but in no event is the City obligated
to, order any work completed, including without limitation Franchisee's obligation to repair pursuant
to Section 8 herein and Franchisee's obligation to remove or relocate facilities pursuant to Section 12
herein. If the City causes such work to be done by its own employees or by any person or entity
other than Franchisee, Franchisee shall, upon the City's written request reimburse the City for all
reasonable costs and expenses incurred by the City in having such work performed, which costs may
include the City's reasonable overhead expenses and attomeys fees, within thirty (30) days.
However, the City shall not have any electrical work accomplished by any person or entity other than
Franchisee or a qualified and licensed electrical contractor.
Section 12. Notice to Franchisee of Work by Ci~..
12.1 City Reservation of Rights. The City reserves the fight 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.
Ordinance No.03-447, Page 8
This Franchise is not an exclusive Franchise and shall not be construed in any manner to
prohibit the City from granting other and further franchises in, under, over, upon, and along the
Franchise Area, nor from exercising such other powers and authorities granted to the City by the
Washington State Constitution and general law.
Franchisee shall operate the Facilities in a manner that will not cause interference to the City,
and other lessees, franchisees, or licensees of the Franchise Area whose use predates this Franchise,
and in compliance with the requirements of FWCC Section 22-972 as it now exists or is hereafter
amended. In addition, with respect to lessees, franchisees or licensees whose operations commence
after installation 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 FWCC Section 22-971 as it now exists or is hereafter amended, the City may
issue permits for and enter into franchises and leases to allow location or collocation of other
telecommunications facilities in the Franchise Area, and Franchisee consents to same, provided
however, that the location or collocation must occur in compliance with said FWCC Section 22~971
as it now exists or is hereafter amended.
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
Ordinance No.03-447, Page 9
remedies available to it against the interfering party (but in no event shall Franchisee pursue any
action against City at law or in equity or for declaratory relief).
12.2 City's Duties. In the event (i) the City undertakes any work, including necessary
maintenance within a rights-of-way in which Franchisee's Facilities are located, or (ii) the City
requires undergrounding of Facilities of Franchisee or lines or equipment of any other entity due to
the City requiring the removal of any poles, and such work necessitates the relocation of Franchisee's
then existing Facilities within the Franchise Area, the City shall:
(a) Provide written notice of the required relocation or undergrounding to
Franchisee within a reasonable time prior to the commencement of such City work; and
(b) Provide Franchisee with copies of pertinent portions of the City's plans and
specifications.
Then, Franchisee shall relocate or underground (as the case may be) its Facilities to
accommodate or comply with the City work.
12.3 Franchisee's Duties. Within sixty (60) days of receipt of the City notice under
Subsection 12.2(a) requiring relocation or undergrounding and receipt of the plans and specifications
pursuant to Subsection 12.2(b), Franchisee shall raise, lower, or move or underground such Facilities
within the Franchise Area at its sole cost and expense to the location or position directed by the City
to comply with City requirements or to cause the least interference with the improvement, repair, or
alteration contemplated by the City and to conform to such new grades as may be established. If the
City improves a fights-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 rights-of-way. In the event of relocation
Ordinance No.03-447, Page 10
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 right-of-way as
required in this section, the City may repair the damage pursuant to Section 11 of this Agreement.
Section 14. Default
14.1 Notice of Default. In addition to other remedies set forth herein, if Franchisee 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 sixty (60) days from the receipt of
such notice in which to comply.
Ordinance No.03-447, Page 11
14.2 Revocation of Franchise. If Franchisee is not in compliance with this Franchise after
the expiration of the sixty (60) day period, the City may, by resolution, declare the Franchise
immediately revoked.
Section 15. Limited Rights
This Franchise is intended to convey only a limited right and interest to Franchisee in the
Franchise Area. This Franchise is not a warranty of title or conveyance of any ownership interest in
or to the Franchise Area to Franchisee.
Section 16. Eminent Domain
The existence of this Franchise shall not preclude the City from acquiring by condemnation,
in accordance with applicable law, all or a portion of Franchisees Facilities within the Franchise Area
for the fair market value thereof. In determining the value of such Facilities, no value shall be
attributed to the fight to occupy the Franchise Area conferred by this Franchise.
Section 17. Vacation
If at any time the City, by ordinance, vacates all or any portion of the Franchise Area, the City
will not be liable for any damages or loss to the Franchisee by reason of such vacation. The City
shall notify Franchisee in writing not less than sixty (60) days before vacating all or any portion of
the Franchise Area. The City may, after sixty (60) 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 and procedures, as now existing or hereafter amended
or adopted, including without limitation the State Environmental Policy Act; provided, however, that
Ordinance No.03-447, Page 12
if any term or condition of this Franchise and any term or condition of any City law, code, franchise,
resolution, regulation, standard, procedure, permit or approval are in conflict, the term or condition
of this Franchise will control. The City and Franchisee agree that the terms of this Franchise are
consistent with, and not contrary to, local, state and federal law.
18.2 Future City of Federal Way Regulation. Franchisee acknowledges that the City may
develop generally applicable rules, regulations, ordinances and specifications for the use of the
rights-of-way which shall govern Franchisee's Facilities and activities hereunder as if they were in
effect at the time this Franchise was executed by the City and Franchisee covenants and agrees to be
bound by same, provided they do not conflict with state law.
Section 19. Guarantee
Franchisee shall guarantee work completed by the Franchisee under this Franchise for a
period of ten (10) years against settlement or repair.
Section 20. Charge for Administrative Costs
Franchisee agrees to pay a fee or a charge to recover the actual reasonable administrative
expenses incurred by the City that are directly related to preparing and approving this Franchise.
Nothing herein shall preclude the City from charging administrative fees or recovering any
administrative costs incurred by the City in the approval of permits or in the supervision, inspection
or examination of all work by Franchisee in the Franchise Area as prescribed in accordance with
applicable provisions of the FWCC.
Section 21. Indemnification
Franchisee agrees to indemnify and hold harmless and defend the City, its elected officials,
officers, employees, agents, and volunteers from any and all claims, demands, losses, actions and
Ordinance No.03-447, Page 13
liabilities (including costs and all attorney fees) to or by any and all persons or entities, including,
without limitation, their respective agents, licensees, or representatives, arising from, resulting from,
or connected with this Franchise to the extent caused in part or in whole by the acts, errors or
omissions of the Franchisee, its officers, partners, shareholders, managers, members, agents,
employees, or by the Franchisee's breach of any provisions of this Franchise; provided, however, that
this section shall not be construed as requiring Franchisee to indemnify, hold harmless or defend the
City against claims or damages arising from the negligence of the City, its agents, employees,
independent contractors, officers, or volunteers. 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 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 there under, to the full extent of Franchisee's negligence.
Section 22. Insurance
22.1 Minimum Limits. The Franchisee agrees to carry as a minimum, the following
insurance, in such forms and with such carriers as are satisfactory to the City.
(a) Workers compensation insurance in amounts sufficient pursuant to the laws of
the State of Washington;
Ordinance No.03-447, Page 14
(b) Commercial general liability insurance with combined single limits of liability
not less than $5,000,000 for bodily injury, including personal injury or death, products liability,
contractual coverage, operations, explosion, collapse, underground and property damage;
(c) Automobile liability insurance with combined single limits of liability not less
than $5,000,000 for bodily injury, including personal injury or death and property damage; and
(d) Employers liability insurance in an amount not less than $1,000,000.
22.2 Mandatory 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; and
(b) Coverage shall apply separately to each insured against whom claim is made
or suit is brought, except with respect to the limits of the insurer's liability.
Coverage shall not be suspended, canceled, modified or reduced except after thirty (30) days
prior written notice to the City delivered by certified mail, return receipt requested; and coverage
shall be primary as to the City, its officers, officials, employees and volunteers. Any insurance or
self-insurance by the City, its officers, officials, employees or volunteers shall be in excess of
Franchisee's required insura~nce.
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.
OrdinanCe No.03-447, Page 15
Section 23. Bond
Franchisee shall guarantee work completed by the Franchisee under this Franchise for a
period of ten (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 hereto and made part
hereof as Exhibit "B") in the amount of 120% of the value of work to be performed in connection
with the Facilities to guarantee performance of the construction, performance, maintenance or repair
in accordance with any permits required by Section 7, with the standard of performance as referenced
in Section 8, and with any provisions of this Franchise. Procedures for submission and release of the
bond shall be as provided in FWCC Sections 22-146 and 22-175 or as otherwise provided in the City
Code. In the event that the Franchisee fails to perform as required herein or by any permits required
by Section 7, the City may perform the work and be reimbursed as provided in Section 11 above, and
may have recourse to the bond in addition to or in lieu of the remedies provided in Section 11, at the
City's sole discretion. Franchisee shall be entitled to return of the bond, or portion thereof, as
remains sixty (60) days after the expiration of the term of the Franchise, provided the City has not
notified Franchisee of any actual or potential damages incurred as a result of Franchisee's operations
pursuant to the Franchise or as a result of default thereunder. In lieu of the bond required herein,
Franchisee, before commencing work within the City, may elect to post a cash security fund (in a
form acceptable to the City) or an Assignment of Funds (in the form attached hereto and made part
hereof as Exhibit "C") in an amount as provided in and to satisfy the requirements of this Section 23,
the other Sections referenced in this Section 23 and the provisions of this Franchise. The City shall
have recourse to the cash security fund or Assignment of Funds in the same manner and on the same
basis as it would otherwise have recourse to the bond as provided in this Section 23, unless otherwise
Ordinance No.03-447, Page 16
provided in the cash security fund or Assignment of Funds ifa cash security fund or an Assignment
of Funds is provided by Franchisee.
Section 24. General Provisions
24.1 Entire Agreement. This Franchise contains all of the agreements of the 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. In addition to the requirements of Subsection 2.1, a Franchisee shall not
have the right to transfer or assign, in whole or in part this Franchise without the prior written
consent of the City, which will not be unreasonably withheld or delayed. Any transferee or assignee
shall, within thirty (30) days of the date of any approved transfer or assignment, file written notice of
the transfer or assignment with the City together with its written acceptance of all terms and
conditions of this Franchise. Notwithstanding the foregoing, (i) Franchisee may assign or transfer
this Franchise to a parent, subsidiary or affiliated entity (any entity who owns or controls, is owned
or controlled by, or is under common ownership or control, with Franchisee), provided that the
assignee or transferee must have comparable financial strength as Franchisee or sufficient financial
strength as deemed reasonably necessary by the City, and must agree in writing to comply with all of
the provisions of the Franchise including resolution of any noncompliance issues; and (ii) Franchisee
shall have the right, without such notice or such written contest, to mortgage its rights, benefits and
privileges in and under this Franchise to the Trustee for its bondholders.
Ordinance No.03-447, Page 17
24.4 Attorney Fees. In the event the City or the Franchisee defaults on the performance of
any terms in this Franchise, and the Franchisee or the City places the enforcement of the Franchise or
any part thereof or for the collection of any monies due, or to become due hereunder, in the hands of
an attorney, or files suit upon the same, the prevailing party shall be entitled to an award of all
reasonable attorneys' fees, costs and expenses. The venue for any dispute related to this Franchise
shall be King County, Washington.
24.5 No Waiver. Failure of either party to declare any breach or default by the other party
immediately upon the occurrence thereof, or delay in taking any action in connection therewith, shall
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 fight to declare another breach or default.
24.6 Governing Law. This Franchise shall be made in and shall be governed by and
interpreted in accordance with the laws of the State of Washington.
24.7 Authority. Each individual or entity executing this Franchise on behalf of the City
and Franchisee represents and warrants that such individual or entity is duly authorized to execute
and deliver this Franchise on behalf of the Franchisee or the City, respectively.
24.8 Notices. Any notices required to be given by the City to Franchisee or by Franchisee
to the City shall be delivered to the parties at the following addresses:
Franchisee:
VoiceStream PCS llI Corporation
Attn: Legal Department
12920 Southeast 38th Street
Bellevue, WA 98006
City:
City of Federal Way
Attn: City Attorney
33530 1st Way South
P.O. Box 9718
Federal Way, WA 98063
Ordinance No.03-447, Page 18
PASSED by the City Council of the City of Federal Way this 15th day of July
2003.
CITY OF FEDERAL WAY
ATTEST:
T~~EI~, NJ CHRIST~IR~4q, CMC
APPROVED AS TO FORM:
CITY ATTORNEY, PATRICIA A. RICHARDSON
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
PUBLISHED:
EFFECTIVE DATE:
ORDINANCE NO.:
ACCEPTANCE:
06/24/03
07/15/03
07/19/03
0,8/04/03
03-447
08/04/03
Ordinance No. 03-447., Page 20
ACCEPTANCE
The undersigned hereby accepts all the rights and privileges of the above granted Franchise
and acknowledges that such rights and privileges are subject to and limited by all of the terms,
conditions and obligations contained therein.
DATED this day of
~x'~,3-~--~ ,2003.
VOICESTREAM PCS III CORPORATION
Its:: ~__
Approved as to form:~
Regmnal'"" ""~-Corporate Attorney
K:WelecomWranchise
Ordinance No.03-447, Page 21
EXHIBIT "A"
[Exhibit A will be a complete set of 11 x 17 Construction Drawings for the site.]
Ordinance No.03-447, Page 22
EXHIBIT "B"
CITY OF FEDERAL WAY
PERFORMANCE BOND FOR
FRANCHISE AGREEMENT
KNOW ALL PEOPLE BY THESE PRESENTS:
We, the undersigned , ("Principal") and
, the undersigned corporation organized
and existing under the laws of the State of and legally doing business in the State of
Washington as a surety ("Surety"), are held and firmly bound unto the City of Federal Way, a
Washington municipal corporation ("City") in the penal sum of Dollars and no/100
($. ) for the payment of which we firmly bind ourselves and our legal representatives,
heirs, successors and assigns, jointly and severally.
This obligation is entered into pursuant to the statutes of the State of Washington and the ordinances,
regnlations, standards and policies of the City, as now existing or hereafter amended or adopted.
The Principal has entered into a Franchise Agreement ("Agreement") with the City dated
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 the period not less than:
the term of the Agreement; or
two (2) years beyond the completion of final installation or construction by the
Principal or two (2) years beyond termination or expiration of the Agreement;
whichever is longer,
then and in the event this obligation shall be void; but otherwise, it shall be and remain in full force and
effect.
Ordinance No.03-447, Page 23
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 there under or
the specifications accompanying the same shall in any way affect its obligation on this bond, and it does
hereby waive notice of any change, extension of time, alterations or additions to the terms of the
Agreement or to the work in connection therewith.
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 findings 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 that exceed the City estimate, limited to the bond amount. Should the Surety elect option
(c), the Parties shall first complete participation in mediation, described in the below paragraph, prior to
any interplead action.
In the event a dispute should arise between the Parties to this Bond with respect to the City's
declaration of default by the Principal, the Parties agree to participate in at least four hours of mediation
in accordance with the mediation procedures of United States Arbitration and Mediation ("USA&M").
The Parties shall proportionately share in the cost of the mediation. The mediation shall be
administered by the Seattle USA&M office, 4300 Two Union Square, 601 Union Street, Seattle,
Washington 98101-2327. The Surety shall not interplead prior to completion of the mediation.
DATED this day of ., 20
CORPORATE SEAL OF PRINCIPAL
[PRINCIPAL]
By:
(Name of Person Executing Bond)
Its:
(Title)
(Address)
(Phone)
Ordinance No.03-447, Page 24
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, is the of 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:
Surety
Attorney-in-Fact
(Attach Power of Attorney)
(Name of Person Executing Bond)
(Address)
(Phone)
APPROVED AS TO FORM:
Patxicia A. Richardson, City Attomey
G:XLawFormsq>erformanceMamtenanceB ond
Ordinance No.03-447, Page 25
EXHIBIT "C"
Applicant:
Project:
Property Address:
Permit #:
Account Amount: $
Cash Deposit Amount: $
CITY OF FEDERAL WAY
ASSIGNMENT OF FUNDS IN LIEU OF BOND
THIS ASSIGNMENT ("Assignment") is dated effective this ~ day of
20 The parties ("Parties") to this Assignment are the City of Federal Way, a Washington
municipal corporation ("City") and the undersigned owner or applicant ("Assignor").
A. The Assignor is required to perform certain work and/or construct certain
improvements including at the
above-referenced property address located in Federal Way, Washington ("Propertf') in connection
with Assignor's application under the above-referenced permit number;
B. The improvements will be constructed or the work will be performed in accordance
with record drawings and approved plans on file with the City of Federal Way ("Plans"); and
C. The City has determined that Assignor must post security with the City pursuant to
Sections 22-146 through 22-159 of the Federal Way City Code ("FWCC") as now existing or
hereafter adopted or amended, to guarantee Assignor's performance of required maintenance or
repair and Assignor's performance of construction of certain work or improvements pursuant to the
Plans, as a condition of granting the permit.
NOW, THEREFORE, the Parties agree as follows:
1. Amount of Account. Pursuant to Section 22-149 of the FWCC that portion of this
Assignment which is in lieu of a performance bond, shall be equal to one hundred and twenty percent
(120%) of the cost of the work or improvements and that portion of this Assignment which is in lieu
of a maintenance bond, shall be equal to thirty percent (30%) of the cost of the work or
improvements.
Ordinance No.03-447, Page 26
2. Assignment. Assignor does hereby assign, transfer and set over unto the City all
right, title and interest in and to the sum of Dollars
and No/100 ($ ) on deposit at the brarahof
("Bank"), under account No.
("Account"); said Account being in the name of the City, as principal with full power and authority
to demand, collect and receive the Account and to give receipt and acquittance for the Account.
3. Improvements. Assignor shall perform all work, improvements and maintenance
required pursuant to the Plans, to the City's satisfaction. The maintenance obligation shall continue
for two (2) years from the completion date of the improvements, or such longer period as required by
the FWCC or other applicable law, rule or regulation.
4. Release. Assignor agrees that the Account will be released to the City, on demand,
with no other conditions of release. This Assignment may be terminated with the City's written
consent, which consent shall not be granted until the City has determined that (i) all the
improvements have been constructed and installed and all work and maintenance performed to its
satisfaction, in full compliance with the Plans and all applicable local, state or federal law, and
within the time period prescribed by the City, and (ii) Assignor has performed all its obligations
under this Assignment. The City may release this Assignment as follows:
(a) Partial Release. Upon completion of the improvements in compliance with
the foregoing provisions, the City will release all but thirty percent (30%) of the cost of the
work or improvements covered by this Assignment, which amount is equal to
Dollars andNo/100($ ), by executing and
delivering the Partial Release of Assignment attached hereto as Exhibit 1 to Assignor.
(b) Full Release. Two (2) years after completion of the improvements and
performance of the maintenance in compliance with the foregoing provisions, the City will
release the remaining portion of the Account, in the amount of
Dollars and No/100 ($. ), by executing and
delivering the Full Release of Assignment attached hereto as Exhibit 2 to Assignor.
5. Right to Complete Work. The City may, but in no event is it obligated to, perform
any of the necessary work in connection with the construction or completion of the improvements or
performance of the maintenance required by the Plans. Upon demand, Assignor agrees to pay the
City an amount equal to all of the City's costs and expenses in performing such work or the City
shall be reimbursed its costs and expenses from the Account at the City's election.
Ordinance No.03-447, Page 27
6. Notice. The Community Development Department of the City shall be given forty-
eight (48) hours notice prior to the commencement of any work.
7. Indenmification. Assignor agrees to indemnify and hold the City, its elected officials,
officers, employees, agents, and volunteers harmless from any and all claims, demands, losses,
actions and liabilities (including costs and attorney fees) arising from, resulting, or connected with
this Assignment, including without limitation, the City's performance of any maintenance or other
work or construction of the improvements pursuant to Section 5 herein.
8. Administrative Cash Deposit. In addition to the amount of this Assignment, Assignor
agrees to pay a cash deposit to the City, pursuant to Section 22-151 of the FWCC, upon the
execution of this Assignment equal to the following percentages of the amount of the Account:
Amount of Account
Amount of Cash Deposit
Up to $20,000
$20,001- $50,000
$50,001- $100,000
$100,001andup
5%ofAccount(minimum$100)
4%ofAccount
3%ofAccount
2-1/2%ofAccount
The cash deposit may be used by the City to cover its actual expenses in administering this
Assignment and, if necessary, collecting and using the proceeds from the Account.
9. Remedies Cumulative. No remedy provided for by this Assignment shall be deemed
exclusive, but shall be deemed cumulative and in addition to every other remedy available to the City
at law, in equity or by statute. Assignor agrees that its liability under this Assignment is not limited
to the amount of the Account.
10. License. Assignor shall record a license in the form attached hereto as Exhibit 3 and
incorporated herein by this reference with the King County Department of Records, immediately
upon the execution of this Assignment and at Assignor's cost.
11. General Provisions. This Assignment may not be amended except by written
agreement signed by the Parties. Any provision of this Assignment which is declared invalid, shall
not invalidate the remaining provisions. The failure or delay of the City to declare any breach or
default shall not waive such breach or default. This Assignment may not be assigned by either Party
without the other Party's written consent. This Assignment shall be binding upon and inure to the
benefit of the Parties' successors in interest. In the event of any dispute between the Parties
regarding this Assignment, each Party shall pay its own attorney fees and costs.
Ordinance No.03-447, Page 28
Each person executing this Assignment represents that he or she is authorized to execute this
Assignment on behalf of their respective entity. Time is of the essence.
NAME OF APPLICANT
By:
(Signature)
(Name)
Its:
(Title)
(Address)
(Phone)
[Individual Notary]
STATE OF WASHINGTON
COUNTY OF KING
On this day personally appeared before me,
, to me known to be the
individual(s) described in and who executed the
foregoing Assignment of Funds in Lieu of Bond, and
on oath swore that he/she/they executed the foregoing
instrument as his/her/their free and voluntary act and
deed for the uses and purposes therein mentioned.
GIVEN my hand and official seal this
of 20
(notary signature)
(typed/printed name of notary)
Notary Public in and for the State of Washington.
My commission expires
Ordinance No.03-447, Page 29
[Corporate Notary]
STATE OF WASHINGTON
COUNTY OF KING
On this day personally appeared before me
, to me known to be
the of , the
corporation that executed the foregoing Assignment
of Funds in Lieu of Bond, and acknowledged the said
instrument to be the free and voluntary act and deed
of said corporation, for the uses and purposes therein
mentioned, and on oath stated that he/she was
authorized to execute said instrument and that the seal
affixed, if any, is the corporate seal of said
corporation.
GIVEN my hand and official seal this
of ,20
(notary signature)
(typed/printed name of notary)
Notary Public in and for the State of Washington.
My commission expires
APPROVED AS TO FORM
CITY OF FEDERAL WAY
Patricia A. Richardson, City A~tomey
O:~FORM S'u~.SSIGNOF.FUN
Rev. 12/02
BANK ACCEPTANCE
The undersigned financial institution ("Bank") hereby accepts that certain Assignment of
Funds in Lieu of Bond provided to the City of Federal Way ("City") by
("Assignor") dated providing for Assignor's assignment to the City
of all right, title and interest in and to the sum of TWENTY FOIIR *l-tOllgAlqn & 00/!l~011ars and
no/100 ($2/~a~OOO on deposit at the .qo~ ~- r ~ o M~ ~ n ( Corp. _hank4 ~ ~ranch, under account
no. 153591697807 ("Account"), payment ofwl{ich shall be {~'~ upon demand by the
City with no other conditions of release of the Account. The Bank agrees to hold the Account,
without deduction or withdrawal, until it receives a written release of this Assignment from the City.
The Bank acknowledges that it has no duty to evaluate any dispute which may exist between the
City and Assignor regarding the AccoUnt and shall not int. erplead or in any manner delay payment of
the Account to the City, upon its demand. The Bank hereby agrees to bind itself, and its heirs,
executors, administrators and assigns, jointly and severally.
BANK
U.S. Bank National Association
(Signature)
Thomas G. Gunder
(Name)
Its: w ,-~ President
(Title) Media & Communications Group -
_.1420- qth A:zenue.-7th Floor
Seattle, WA 08101-2333
(Address)
(Phone)
fax: 206 344-3646
48
Ordinance No.03-447, Page 30
STATE OF WASHINGTON )
) SSo
COUNTY OF KING )
On this day personally appeared before me ~ FFFt_ FA.S ~. ~'7 U/az~,~ . to me
lmown to be the ¢6¢ ~t'-d~d&~P of g,,~. ~,~'. , the corporation
that executed the within and foregoing instrument, and acknowledged the said instrument to be the
free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and
on oath stated that he/she was authorized to execute said instrument and that the seal affixed, if any,
is the corporate seal of said corporation.
GIVEN my hand and official seal hereto affixed this __~ day of
(notar~ signatUre) _
-
(~ed or printed n~e ofnot~)
Not~ Publie in ~d for ~e State of Washiq~on.
My co~ssion expkes
EXHIBIT 1
PARTIAL RELEASE OF ASSIGNMENT
The undersigned hereby acknowledges that a portion of the conditions set forth in that
Assignment of Funds in Lieu of Bond ("Assignment") provided to the City of Federal Way ("City")
by ("Assignor") dated for
(Project Name and Permit #) have been satisfied and hereby
authorizes the release of an amount equal to Dollars
and no/100 ($ ) from account number
("Account") in Bank. The remaining funds equaling thirty
percent (30%) of the cost of the work or improvements shall be held by the Bank in the Account
pursuant .to the terms of the Assignment for a period of two (2) years as security for Assignor's
performance of all maintenance for the project described therein and as a guarantee against defective
materials or workmanship in the construction and maintenance of such improvements.
DATED this day of ,20
CITY OF FEDERAL WAY
By:
David H. Moseley, City Manager
PO Box 9718
Federal Way, WA 98063-9718
EXHIBIT 2
FULL RELEASE OF ASSIGNMENT/LICENSE
Pursuant to the terms and conditions of that certain Assignment of Funds in Lieu of Bond
("Assignment") provided to the City of Federal Way ("City") by
, ("Assignor"), dated
for
(Project Name and Permit #), the City hereby acknowledges that the two (2) year maintenance period
has expired, that the work or improvements covered by the Assignment have been completed'to the
City's satisfaction and that the City is not aware of any defect in workmanship or materials.
Accordingly, the undersigned hereby releases the sum of
Dollars and No/100 ($ )
from account number in Bank. The
undersigned further releases all right, title and interest granted to the undersigned by mason of a
certain License Agreement recorded under King County Recording No.
("License Agreement") and acknowledges that all obligations and
rights contained in the License Agreement are hereby terminated.
DATED this __ day of ., 20__.
CITY OF FEDERAL WAY
By:
David H. Moseley, City Manager
PO Box 9718
Federal Way, WA 98063-9718
EXHIBIT 3
Retum Address:
City of Federal Way
Attn: Law Dept.
P. O. Box 9718
Federal Way, WA 98063-9718
LICENSE
Grantor (s):.
Grantee (s): CITY OF FEDERAL WAY, a Washington municipal corporation
Property Legal Description (abbreviated):.
Additional Legal(s) on Exhibit A
Easement Legal Description (abbreviated):.
Additional Legal(s) on Exhibit B
Assessor's Tax Parcel ID#(s):
The undersigned owner of certain real property located in Federal Way, Washington and
legally described as follows:
[Insert Legal Description here or state: Legal description attached hereto as
Exhibit "A" and incorporated herein by this reference]
("Property") hereby grants an irrevocable license to the City of Federal Way ("City") and the City's
agents, employees, contractors or representatives to enter upon the Property to inspect the
construction of improvements, the performance of work or to allow the City to perform any
necessary maintenance or work, all pursuant to that certain Assignment of Funds in Lieu of Bond of
even date entered into between the City and the undersigned and incorporated herein by this
reference.
DATED this day of ., 20
(Name of Property Owner)
(Signature)
[Individual Notary]
STATE OF WASHINGTON
COUNTY OF KING
[Corporate Notary]
STATE OF WASHINGTON
COUNTY OF KING
On this day personally appeared before me,
, to me known to be the
individual(s) described in and who executed the
foregoing Assignment of Funds in Lieu of Bond, and
on oath swore that he/she/they executed the foregoing
instrument as his/her/their free and voluntary act and
deed for the uses and purposes therein mentioned.
GIVEN my hand and official seal this
of 20
On this day personally appeared before me
, to me known to be
the of _, the
corporation that executed the foregoing Assignment
of Funds in Lieu of Bond, and acknowledged the said
instrument to be the free and voluntary act and deed
of said corporation, for the uses and purposes therein
mentioned, and on oath stated that he/she was
authorized to execute said instrument and that the seal
affixed, if any, is the corporate seal of said
corporation.
(notary signature)
(typed/primed name of notary)
Notary Public in and for the State of Washington.
My commission expires
GIVEN my hand and official seal this
of ,20__
(notary signature)
(typed/printed name of notary)
Notary Public in and for the State of Washington.
My commission expires
G:/forms/assignoffund