HomeMy WebLinkAbout6491 ORDINANCE NO. 6 4 9 7
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF AUBURN, WASHINGTON, GRANTING TO
T-MOBILE WEST LLC, A DELAWARE LIMITED
LIABILITY COMPANY, A FRANCHISE FOR
TELECOMMUNICATIONS
WHEREAS, T-Mobile West LLC, a Delaware limited liability
company("Grantee") has applied to the City of Aubum ("Cit�') for a non-exclusive
Franchise for the right of entry, use, and occupation of certain public right(s)-of-
way within the City, expressly to install, construct, erect, operate, maiMain,
modify, repair, relocate and remove'its facilities in, on, over, under, along and/or
across those right(s)-of-way ("Franchise"); and
WHEREAS, with respect to some of these facilities, they were previously
installed the public rights of ways with the permission of King County, which
managed those right(s)-of-way prior to the annexation of those rights of way into
the City of Aubum; and
WHEREAS, following proper notice, the City Council held a public hearing on
Grantee's request for a Franchise, at which time representatives of Grantee and
inteFested citizens were heard in a full public proceeding affording opportunity for
comment by any and all persons desiring to be heard; and
WHEREAS, with respect to those facilities previously installed by
authorization of King County, 4his agreement supersedes and replaces all
agreements between Grantee and King Courriy; and
WHEREAS, based upon the foregoing recital clauses, and from
information presented at such public hearing, and from facts and circumstances
developed or discovered through independent study and investigation, the City
Council in compliance with RCW 35.99 now deems it appropriate and in the best
interest of the City and its inhabitarrts that the franchise be granted to Grantee.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN
WASHINGTON, DO ORDAIN as follows:
Section 1. Grant of Right to Use Franchise Area
A. Subject to the teRns and conditions stated herein, pursuant to RCW
35.99 the City grants to the Grantee general permission to errter, use, and
occupy the public right(s)-of-way of the City. However, Grarrtee shall not extend
its occupation of the public rights of way beyond the two facilities that presently
Ordinance No. 6481
Franchise/�qreement No. 13-37
February 11, 2014
Page 1 of15
occupy the rights of way as specified in Exhibit "A", attached hereto and
incorporated by reference (the "Franchise Area"), without having first obtained an
amendment to this agreement and site spec�c permits from the City authorizing
Grantee to install telecommunications equipment at such other locations than
spec�ed in Exhibit uA�.
B. This Franchise does not authorize the use of the public rights of
ways for any facilities or services other than for wireless telecommunications
facilities.
C. This Franchise is non-exclusive and does not prohibit the City from
entering into other agreements, including Franchises, impacting the Franchise
Area, unless the City determines that entering into such agreements interferes
with Grantee's rights set forth herein.
D. Except as explicitly set forth herein, this Franchise does not waive
any rights that the City has or may hereafter acquire with respect to City rights-of-
way: This Franchise shall be subject to the power of eminent domain, and in any
proceeding under eminent domain. Grantee acknowtedges that the City has the
power of eminent domain and that Grantee's remedies in the event of 4he
exercise of such powerare set forth in RCW 35.99 and other applicable law.
E. The City reserves the right to change, regrade, relocate, abandon,
or vacate any public right-of-way. If, at any time during the term of this
Franchise, the City vacates any portion of the rights of way containing Grantee
Facilities, the City shall reserve an easement for public utilities within that
Vacated portion, pursuant to RCW 35.79.030, within which the Grantee may
continue to operate any existing Grantee Facilities under the terms of this
Franchise for the remaining period set forth under Section 3.
F. The Grantee agrees that its use of the Franchise Area shall at all
times be subordinated to and subject to the City and the public's need for
municipal infrastructure, travel, and access to fhe Franchise Area, except as may
be otherwise required by law.
Section 2. Notice
A. Except as defined in the respective filing and emergency work
provisions of Sections 5 and 7 herein, all notices, requests, demands and other
communications shall be in writing and are effective three (3) days after deposit
in the U.S. mail, certified and postage paid, or upon receipt 'rf personally delivered
or sent by next-business-day delivery via a nafionally recognized ovemight
courier to the addresses set forth below. City or Grantee may from time to time
Ordinance No. 6491
Franchise Agreement No. 13-37
February 11, 2014
Page 2 of 15
designate any other address for this purpose by providing written notice to the
otherparty effective thirty (30) days after the provision thereof.
City: City of Aubum
Engineering Aide, Transportation
25 West Main Street
Aubum, WA 98001-4998
Telephone: (253) 931-3010; Fax: (253) 931-3048
with a copy to: City Clerk
City of Auburn
25 West Main Street
Aubum, WA 98001-4998
Grantee: T-Mobile USA, Inc. �
12920 SE 38"' Street
Bellevue, WA 98006
Attention: Lease Compliance/City of Aubum Franchise
B. Any changes to tfie above-stated Grantee information shall be sent
to the City, referencing the title of this agreement.
C. The above-stated voice and fax telephone numbers shall be staffed
at least during normal business hours, Pacific time zone.
Section 3. Term of Agreement
A. This Franchise shall run for a period of five (5) years, from the date
of execution specified in Section 5.
B. Renewal Option of Term: The Grantee may renew this Franchise
for an addi6onal five (5) year period upon submission and approval of the
application specfied under ACC 20.06.130, as it now exists or is amended,
within the timeframe set forth therein (currently 240 to 180 days prior to
expiration of the then-current term), which approval shall not be unreasonably
withheld, conditioned or delayed. Any materials submitted by the Grantee for a
previous application may be considered by the City in reviewing a current
application, and the Grantee shall only submit those materials reasonably
deemed necessary by the City to address changes in the Grantee Facilities or
Grantee Services, or to reflect specific reporting pe�iods mandated by the ACC.
Ordinance No. 6491
Franchise Agreement No. 13-37
February 11, 2014
Page 3 of 15
C. Failure to Renew Franchise — Automatic Extension. If the Parties
fail to formally renew this Franctiise prior to the expiration of its tertn o� any
extension thereof, the Franchise automatically continues month to month until.
renewed or until eithec party gives written notice at least one hundred eighty
(180) days in advance of the irrtenf not to renew the Franchise.
Section 4. Definitions
Forthe purpose of this agreement:
"ACC" means the Aubum City Code.
"Emergency" means a condition of imminent danger to the health, safety and
welfare ofpersons or property located within the City including, without limRation,
damage to persons or property from natural consequences, such as storms,
earthquakes, riots, acts of terrorism or wars.
"Maintenance or Maintain" shall mean examining, testing, inspecting, repairing,
maintaining, mod'rfying and/or replacing the existing Grantee Facilities or any part
thereof as required and necessary for safe operation.
"Relocation" means permanent movement of Grantee facitities required by the
Ciry, and not temporary or incidental movement of such facilities, or other
revisions Grantee would accomplish and charge to third parties without regard to
municipal request.
"Rights-of-Way" means the surface and the space above and below streets,
roadways, highways, avenues, courts, lanes, alleys, sidewalks, and easements,
owned or controlled by the City.
Section 5. Acceptance of Franchise
A. This Franchise, and any rights granted hereunder, shall not
become effective for any purpose unless and until Grantee files with the City
Clerk (1) the Statement of Acceptance, attached hereto as Exhibit "D," and
incorporated by reference, (2) all verifications of insurance coverage specified
under Section 15, and (3) the financial guarantees spec�ed in Section 16
(collectively, "Franchise Acceptanc�"). The date that such Franchise Acceptance
is filed with the City Clerk shall be the effective date of this Franchise.
B. Should the Grantee fail to file the Franchise Acceptance with the
City Clerk within thirty (30) days after the effective date of the oMinance
approving the Franchise, the Cit�i's grant of the Franchise will be null and void.
Ordinance No. 6491
Franchise Agreement No. 13-37
February 11, 2014
Page 4 of 15
Section 6. Construction and Maintenance
A. The Grantee shall apply for, obtain, and complywith the terms of all
permits required under ACC CFiapter 12.24 for any work done upon Grantee
Facilities. Grantee shall compty with all applicable City, State, and Federal
codes, rules, regulations, and orders in undertaking such work, which shall be
done in a thorough and proficient manner.
B. Grantee agrees to coordinate its activities with the City and all other
utilities located within the public right=of-way within which Grantee is undertaking
its activity.
C. The City expressly resenres the righ4 to prescribe how and where
Grantee Facilities shall be installed within the public right-of-way and may from
time to time, pursuant to the applicable sections of this Franchise, require the
removal, relocation and/or replacement thereof in the public iMerest and safety in
compliance with applicable law.
D. Before commencing ariy work involving excavation within the public
right-of-way, the Grantee shall comply with the One Number Locator provisions
of RCW Chapter 19.122 to identify existing utility infrastructure.
E. Tree Trimming.. Upon prior written approval of the City and in
accordance with City ordinances, Grantee shall hade the authority to reasonably
trim trees upon and overhanging streets, public rights-of-way, and places in 4he
Franchise Area so as to prevent 4he branches of such trees from coming in
physical contact with the Grantee Facilities. Grantee shall be responsible for
debris removal from such activities: If such debris is not removed within twenty-
four (24) hours of completion of the trimming, the City may, at its sole disoretion,
remove such debris and charge Grantee for the cost 4hereof. This section does
not, in any instance, grant automatic authority to clear vegetation for purposes of
providing a clearpath for radio signals. Any such generel vegetation clearing will
require an additional and separate approval from the City.
Section 7. Access, Repair and Emergency Work
In the event of an emergency, the Grantee may commence such repair
and emergency response work as required under the circumstances, provided
that the Grantee shall notify the City telephonically during normal business hours
(at 253-931-3010 and during non-business hours at 253-876-1985) as promptly
as possible, before such repair or emergency work commences, and in writing as
soon thereafter as possible. S.uch not�cation shall include the Grarrtee's
emergency contact phone number for the corresponding response activity. For
OMinance No. 6491
Franchise Agreement No. 13-37
February 11, 2014
Page 5 of15
any emergency or after normal business hour issues involving the Grantee's
facilities which requires the Grantee's immediate response the Ciry shall contact
the Grantee at their network operations center telephonically at 888-662�662,
which is operated 24 hours a day, seven days a week. The City may commence
emergency response work, at any time, without prior written notice to the
Grantee, but shall notify the Grantee in writing as promptly as possible under the
circumstances of the nature of the emergency and the actions taken to address
it.
Section 8. Damages to City and Third-Party Property
Grantee agrees that if any of its actions under this Franchise impairs or
damages any City property, survey monument, or property owned by a third-
party, Grantee will restore, at its own cost and expense, said property to a safe
condition. Such repair work shall be performed and completed pursuant to City
Code..
Section 9. Location Preference and InterFerence
A. Any structure, equipment, appurtenance or tangible property of a
utility, other than the Grantee's, which was installed; constructed, completed or in
place prior in time to Grantee's application for a permit to construct or repair
Grarrtee Facilities under this Franchise shall have preference as to positioning
and location with respect to the Grantee Facilities. However, to the extent that
the Grantee Facilities are completed and installed prior to another utility's
submittal of a permit for new or additional structures, equipment; appurtenances
or tangible property, then the Grantee Facilities shall have such priority. These
rules goveming preference shall continue in the event of the necessity of
relo.cating or changing the grade of any Ciry road or right-of-way. A relocating
utility shalf not necessitate the relocation of another utility that otherwise would
not require relocation. This Sedion shall not apply to any City facilities or utilities
that may in the future require the relocation of Grantee Facilities. Such
relocations shall be govemed by Section 11.
B. Grantee shall maintain a minimum underground horizontal
separation of five (5) feet from City waterfacilities and ten (10) feet from above-
ground City water facilities; provided, that for development of new areas; the City,
in consultation with Grantee and other utility purveyors or authorized users of the
Public Way, will develop guidelines and procedures for determining specific utility
locations.
Section 10. Grantee Information
A. Grantee agrees to supply, at no cost to the City, any information
reasonably requested by the City to coordinate municipal functions with
Ordinance No. 6491
Frenchise Agreement No. 13-37
February 11, 2014
Page 6 of 15
Grantee's activities and fu�ll any municipal obligations under state law. Said
information shall include, at a minimum, as-built drawings of Grarrtee Facilities,
installation inventory, and maps and plans showing the location of existing or
planned facilities within the Rights-of-Way. Said informatioh may be requested
either in hard copy or electronic format, compatible with the City's data base
system, as now or hereinafter existing, including the City's geographic
information Service (GIS) data base. Grantee shaU keep the City informed of its
long-range plans for coordination with the City's long-range plans.
B. The parties understand that Washington law limits the ability of the
City to shield from public disclosure any information given to the City.
Accordingly, the City agrees to notify the Grarrtee of requests for public records
related to the GraMee, and to give the Grantee a reasonable amount of time to
obtain an injunction to prohibit the City's release of records.
C. Grantee shall indemnify and hold harmless the City for any loss or
liability for fines, penafties, and costs (including attomeys fees) imposed on the
City because of non-disclosures requested by Grantee under Washington's open
public records act, provided the City has notified Grantee of the pending request
and has given Grantee ten working days to obtain an injunction to prohibit the
City's release of records.
Section 11. Relocation of Grantee Facilities
A. Except as otherwise so required by law, Grantee agrees to
relocate, remove, or reroute its facilities as ordered by the City Engineer at no
expense or Iiability to the City, except as may be required by RCW Chapter 35.99
in the event the Franchise Area is required for use by fhe City in performance of
its municipal services. In such event, City will give Grantee prior written notice of
the need forsuch relocation of the Franchise Area. Notwithstanding the foregoing
however, and pursuant to the provisions of Section 14, Grantee agrees to protect
and save harmless the Ciry from any customer or third-party claims for service
interruption or other similar losses in connection with any such change,
relocation, abandonment, or vacation of the right-of-way(s).
B. If a readjustment or relocation of the Grantee Facilkies is
necessitated by a request from a party other than the City, that party shall pay
the Grantee the actual costs thereof.
Section 72. Abandonment and or Removal of Grantee Facilities
A. Within one hundred and eighty days (180) of Grantee's permanent
cessation of use of the Grantee Facilities, or any portion thereof, the Grarrtee
shall, at the City's discretion, remove the affected facilities, or, with the City's
Ordinance No. 6491
FranChise Agreement No. 13-37
February 11, 2014
Page 7 of 15
written permission, abandon in place such facilities whereupon they will transfer
. to fhe City in their AS IS and WHERE IS condition without need of execution of
any further documentation formalizing the transfer, and without representation or
warranty of any kind or nature provided the Grantee shall provide to the City
drawings, maps or other documentation about said facilities to the reasonable
satisfaction of the City. Following such transfer, Grantee shall no longer be
responsible for any liability, maintenance, repair or removal obligations related to
or arising from the transferred facilities.
B. The parties expressly agree that this Section shall survive the
expiration, revocation or termination of this Franchise..
Section 13. Undergrounding
A. The parties agree that this Franchise does not limit the City's
authority under federal law, state law, or local ordinance, to require the
undergrounding of utilities that can be installed underground.
B. Whenever the City requires the undergrounding of aerial utilities in
the Franchise Area, the Grantee shall underground those portions of Grantee
Facilities that can be installed underground in the manner specified by the City
Engineer at no expense or liability to the City, except as may be required by
RCW Chapter 35.99 or other applicable law. Where other utilities are preserrt
and involved in the undergrounding project, Grantee shall only be required to pay
its fair share of common costs borne by all utilities it utilizes, in addition to the
costs specifically attributable to the undergrounding of Grantee Facilities.
Common costs shall include necessary costs for common trenching and utility
vaults. Fair share shall be determined in comparison to the total number and
size of all other utility facilities being undergrounded and the use thereof by all
applicable parties
Section 14. Indemnification and Hold Harmless
A. The Grantee shall defend, indemnify, and hold the City and its
officers, �cials, agents, employees, and volunteers harmless from any and all
costs, claims, injuries, damages, losses, suits, or liabilities of any nature including
attomeys' fees to the extent caused by Grantee's perFormance under this
Franchise, except to the extent such costs, claims, injuries, damages, losses,
suits, or liabilities are caused by the negligence of the City, fts agents,
contractors, employees or invitees. Should a court of competent jurisdiction
determine that this Agreement is subject to RCV1f4.24.115, then, in the event of
liability for damages arising out of bodily injury to persons or damages to property
caused by or resulting from the concurrent negligence of the Gran4ee and the
Ordinance No. 6491
Franchise Agreement No. 13-37
February 11, 2014
Page 8 of 15
City, its officers, officials, employees, and volunteers, the Grantee's liability
hereunder shall be only to the extent of the Grantee's negligence.
B. The Grantee shall hold the City harmless from any liability for any
damage or loss to the Grantee facilities caused by maintenance and/or
construction work perfoRned by, or on behalf of, the City within the Franchise
Area or any other City road, right-of-way, or other property, except to the extent
any such damage or loss is directly caused by the negligence or intentional
misconduct ofithe City, its agents, contractors, employees or invitees performing
such work.
C. The Grantee acknowledges that neither the Ciry nor any other
public agency with responsibility for frefighting, emergency rescue, public safety
or similar duties within the City has the capability to provide trench, close trench
or confined space rescue. The Grantee, and its agents, assigns, successors, or
contractors, shall make such arrangements as Grantee deems fit for the
provision of such services. The Grantee shall hold the City harmless from any
liability arising out of or in connection with any damage or loss to the Grantee for
the City's failure or inability to provide such serdices, and, pursuant to the terms
of Section 14(A), the Grantee shall indemnify the City against any and all third-
party costs, claims, injuries, damages, losses, suits, or liabilities based on the
City'sfailure or inability to provide such services.
D. Acceptance by the City of any work performed by the Grantee shall
not be grounds for avoidance of this section.
E. It is further spec�cally and expressly understood that the
indemnfication provided herein constitutes the Grantee's waiver of immunity
under .Industrial Insurance. Title 5] RCW, solely for the purposes of this
indemn�cation. This waive,r has tieen mutually negotiated by the parties. The
provisions of this section shall survive the expiration or termination of this
agreement with respect to acts or events occurring prior thereto.
Section 15. Insurance
A. The Grantee shall procure and maintain for the duration of this
Franchise, insurance against claims for injuries to persons or damage to property
which may arise ftom or in connection with the perfoRnance of the work
hereunder by the Grantee, its agents, representatives, or employees in the
amounts and types set forth below:
1. Automobile Liability insurance covering all owned, non-
owned, hired, and leased vehicles with a minimum combined single limit for
Ordinance No. 6491
Franchise Agreement No. 13-37
February 11, 2014
Page 9 of 15
bodily injury and property damage of $1,00O,OOU per accident. Coverage shall
be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form
providing equivalent liability coverage. If necessary, the policy shall be endorsed
to provide contractual liability coverage..
2. Commercial General Liability insurance with limits no less
than $1,000,000 each occurrence, $2,000,000 general aggregate and a
$1,000,000 products-completed operations aggregate limit. Coverage shall be
written on ISO occurrence form CG 00 01 and shall cover liability arising from
premises, operations, independent contractors; products-completed operations,
stop gap liability, and personal injury liability assumed under an insured coMract.
The Commercial General Liability insurance shall be endorsed to provide the
Aggregate Per Project Endorsement ISO form CG 25 03 11 85. There shall be
no endorsement or modification of the Commercial General Liability insurance for
liability arising from explosion, collapse, or underground property damage. The
City shall be named as an additional insured under the Grantee's Commercial
General Liability insurance policy with respect to the work perFormed under this
Franchise using ISO Additional Insured Endorsement CG 20 10 10 01 and
Additional Insured-Completed Operations endorsement CG 20 37 10 01 or
substitute endorsements providing equivalent coverage.
3. Professional Liability insurance with limits no less than
$1,000,000 per claim carried by all licensed professionals employed or retained
by Grantee to perform services under this Franchise.
4. Workers' Compe�sation coverage as required by the
Industrial Insurance laws of 4he State of Washington.
B. The insurance policies are to corrtain, or be endorsed to contain,
the following provisions for Automobile Liability, Professional Liability, and
Commercial General Liabiliry insurance:
1. The Grantee's insurance coverage shall be primary
insurance with respect to claims alleging Grantee's negligence. Any insurance,
self-insurance, or insurance pooC ooverage maintained by the City shall be in
excess of the Grantee's insurance and shall noYcontribute with it..
2. The Grarrtee's insurance shall be endorsed to state that
coverage shall not be cancelled by either party except after thirty (30) days' prior
written notice by certfied mail, retum receipt requested, has been given to the
City.
C. Acceptability of Insurers. Insurance is to be placed with insurers
with a current A.M. Best rating of not less than A-:VII.
Ordinance No. 6491
Franchise Agreement No. 13-37
Februaryll, 2014
Page 10 of 15
D. Verification of Coyerage. Grantee shall fumish the City with
documentation of insurers A.M. Best rating and with original certificates and a
copy of amendatory endorsements, including but not necessarily limited to the
additional insured endorsement, evidencing the insurance requirements of the
Consultant before commencement of the work.
E. Grantee shall have the right to seff-insure any or all of the above-
required insurance. Any such self insurance is subject to approval by the City.
F. Grantee's maintenance of insurance as required by this Franchise
shall not be construed to limit the liability of Grantee to the coverage provided by
such insurance, or othervvise limit the City's recourse to any remedy to which the
City is othervvise entitled atlaw or in equity.
Section 16. Performance Security
The Grantee shall provide the City with a bond, or otherfinancial guarantee in a
form and substance reasonably acceptable to the City, in the amount of Fifty
Thousand Dollars ($50,000) running for, or renewable for, the tertn ofi this
Franchise. In the event Grantee shall fail to substantially comply with any one or
more of the provisions of this agreement within the applicable cure or grace
period, then there shall be recovered jointly and severally from the principal and
any surety of such financial guarantee any damages suffered by Ciry as a direct
result thereof, including but not limited to staff time, material and equipment
costs, compensation or indemnification of third parties, and the cost of removal or
abandonment of facilities hereinabove described. Grantee specifically agrees
that its failure to comply with the terms of Section 19 shall constitute damage to
the City in the monetary amount set forth therein. Such a financial guarantee
shall not be construed to limit the Grantee's liability to the guarantee amount, or
otherwise limit the City's recourse to any remedy to which the City is othervvise
entitled at law or in equity.
Section 17. Successors and Assignees
A. All the provisions, conditions, regulations and requirements herein
contained shall be binding upon the successors, assigns of, and independent
contractors of the Grantee, and all rights and privileges, as well as all obligations
and liabilities of the Grantee shall inure to 'its successors, assignees and
contractors equally as if they were spec�cally mentioned herein wherever the
Grantee is mentioned.
B. This Franchise shall not be leased, assigned or othervvise alienated
without the express prior consent of the Ciry by ordinance. The foregoing
Ordinance No. 6491
Franchise Agreement No. 13-37
Februaryll, 2014
Page 11 of 15
notwithstanding, Grantee may assign this Franchise in whole or in part without
the need for the City's conserrt to any entity that controls, is controlled by, or is
under common control with Grantee, or to any entiry resuking from any merger or
consolidation with Grantee, or to any partner of Grantee or to any partnership in
which Grantee is a general partner, or to any person or entity that acquires all ofi
the assets of Tenant as a going concem.
C. For any assignment requiring City consent, Grantee and any
proposed assignee or transferee shall provide and certif�r the following to the City
not less than sixty (60) days after the proposed date of transfer: (a) Complete
information setting forth the nature, term and conditions of the proposed
assignment or transfer (redacted for any financial tertns); (b) All information
reasonably required by the City of an applicant for a Franchise with respect to the
proposed assignee or transferee; and, (c) An application fee which shall be set
by the City, plus any other costs actually antl reasonably incurred by the City in
processing, and investigating the proposed assignment or transfer.
D. Prior to the Cityr's consideration of a request by Grantee to consenY.
to a Franchise assignment or transfer, the proposed Assignee or Transferee sliall
file with the City a written promise to unconditionally accept all terms of the
Franchise, effective upon such transfer or assignment of the Franchise. The City
is under no obligation to undertake any investigation of the transferor's state of
compliance and failure of the City to insist on full compliance prior to transfer
does not waive any right to insist on full compliance thereafter.
E. Upon assignment, Grantee shall be relieved of all liabilities and
obligations hereunder accruing thereafter and City shall look solely to the
assignee for perFormance under this agreement and all such obligations accruing
thereafter hereunder provided such assignee accepts all such obligations in
writing within thirty (30) days of the date of assignment and is of substantially
similar financial strength or credit worthiness as Grantee.
Seetion 18. Dispute Resolution
A. In the event of a dispute between the City and the Grantee arising
by reason of this Agreement, the dispute shall first be referred to the operational
officers or representatives designated by Grantorand Grantee to have oversight
over the administration of this Agreement. The officers or representatives shall
meet within thirty (30) calendar days of either party's request for a meeting,
whichever request is first, and the parties shall make a good faith eifort to
achieve a resolution of the dispute.
B. If the parties fail to achieve a resolution of the dispute in this
manner, either party may then pursue any available judicial remedies. This
Ordinance No. 6491
Franchise Agreement No. 13-37
February 11, 2014
Page 12 of 15
Franchise shall be governed by and construed in accordance with the laws of the
State of Washington. In the event any suit, arbitration, or other proceeding is
instituted to enforce any term of this Agreement, the parties specifically
understand and agree that venue shall be exclusively in King County,
Washington. The prevailing party in any such action shall be entitled to its
attorneys' fees and costs of suit, which shall be fixed by the judge hearing the
case, and such fees shall be included in the judgment.
Section 18. Enforcement and Remedies
A. If the Grantee shall willfully violate, or fail to comply with any of the
provisions of this Franchise through willful or unreasonable negligence, or should
it fail to heed or comply with any notice given to Grantee under the provisions of
this agreement, the City may, at its discretion, provide Grantee with written notice
to cure the breach within thirty (30) days of notification. If the City determines the
breach cannot be cured within thirty (30) days, the Ciry may specify a longer cure
period, and condition the extension of time on Grantee's submittal of a plan to
cure the breach within the spec�ed period, commencement of work within the
original thirty day cure period, and diligent prosecution of the work to completion.
If the breach is not cured within the specfied time, or the Grantee does not
comply with the specified conditions, the City may, at its discretion, either (1)
revbke the Franchise with no further notific�tion, or (2) claim damages of Two
Hundred Fifty Dollars ($250.00) per day against the financial guarantee set forth
in Section 16 for every day after the e�iration of the cure period that the breach
is not cured.
B. Should the City determine that Grantee is acting beyond the scope
of permission granted herein for Grantee Facilities and Grantee Services, the
City reserves the right to cancel this Franchise and/or require the Grantee to
apply for, obtain, and comply with all applicable City permits, franchises, or other
Ciry permissions for such actions, and if the Grantee's actions are not allowed
under applicable federal and state or City laws, to compel Grantee to cease such
actions.
Section 20. Compliance with Laws and Regulations
A. This Franchise is subject to, and the Grantee shall comply with all
applicable federal and state or City laws, regulations and policies (including all
applicable elements of the City's comprehensive plan), in conformance with
federal laws and regulations, affecting performance under this Franchise.
Furthermore, notwithstanding any other terms of this agreement appearing to the
contrary, the Grantee shall be subject to the police power of the City to adopt and
enforce general ordinances necessary to protect the safety and welfare of the
general public in relation to the rights granted in the Franchise Area.
Ordinance No. 6491
Franchise Agreement No. 13-37
Februaryll, 2014
Page 13 of15
B. The City reserves the right at any time to amend this Franchise to
conform to any hereafter enacted, amended, or adopted federal or state statute
o� regulation relating to the public'heafth, safety, and welfare, if required by such
statute or regulation, or relating to roadway regulation, or a City Ordinance
enacted pursuant to such federal or state statute or regulation upon providing
Grantee with thirty (30) days written notice of its action setting forth the full text of
the amendment and identifying the statute,.regulation, or ordinance requiring the
amendment. Said amendment shall become automatically effective upon
expiration of the notice period unless, before expiraUon of that period, the
Grantee makes a written call for negotiations over the terms of the amendment.
If fhe parties do not reach agreemeM as to the terms of the amendment within
thirty (30} days of the call for negotiations, the City may enacY the proposed
amendment, by incorporating the Grantee's concems to the maximum extent the
City deems possible, or Grantee may terminate this agreement without further
liability or penalty subject to its prompt removal of the Grantee Facilities in
compliance with applicable terms herein.
C. The City may terminate this Franchise upon thirty (30) days written
notice to the Grantee, if the Grantee fails to comply with such amendment or
mod�cation within such thirty (30) dayperiod.
Section 27. License, Tax and Other Charges
This Franchise shall not exempt the Grantee from any future license, tax,
or charge which the City may hereinafter adopt pursuant to au�ority granted to it
under state or federal law for revenue or as reimbursement for use and
occupancy of the Franchise Area.
Section 22. Consequential Damages Limitation
Notwithstanding any other provision of this agreement, in no event shall
either party be liable for any special, incidental, indirect, punitive, reliance,
consequential or similar damages.
Section 23. Severability
If any portion of this Franchise is deemed invalid, the remainder portions
shall remain in effect provided the provision deemed invalid is not a material term
to this agreement.
Section 24. 7itles
Ordinance No. 6491
Franchise Agreement No. 13-37
February 11, 2014
Page 14 of15
The section titles used herein are for reference only and should not be
used for the purpose of interpreting this Franchise.
Section 25. Implementation.
The Mayor is hereby authorized to implemerrt such administrative
procedures as may be necessary to carry out the directions of this legislation.
Section 26. Termination.
Grantee shall have the right to terminate this agreement with respect to an
individual Franchise Area authorized hereundec, without penalty, upon one
hundred twenty (120) days prior written notice. In such event, all applicable fees
and/or costs set forth herein shall b.e equitably adjusted as of the effective date of
termination
Section 27: Effective date.
This Ordinanceshall take effect and be in force five days ftom and after its
passage, approval and publication as provided by law.
INTRODUCED: FEB 1 S 2014
PASSED:
APPROVED:
N �IQ' BACKUS, MAYOR
ATTEST:
�=./5.1�,✓1L��
D ielle E. Daskam, City Clerk
AP OVE TO FOR •
i , i tt
' c l
Publishetl�'-��`�de/�,/s;, �`-�'�"'°�J
Ordinance No. 6491
Franchise Agreement No. 13-37
February 11, 2074
Page 15 of 15
_ _ .
Exhibit "A" - T-Mobile Franchise Area ;1ti�URN
; ;.:���: -- — --
kEra �
� ��r- � ;
�.
- ��- �� ,� - --�
Ll �
�. �': �
! �{�{ ((�� ----
' � ... � !� f i
1 � i
'' � �,�; �, j'
�
i _., ; _ , � �,..
� ���
�
_ �, �I,
i ' //
;
r r �, �e,'
� ��b�IDilS ,� ..
. o r i :' \ �:.
�� S
' `��LSE4DIU . ��� �-._ K I� N G �
� � :�x�, � COU:N7�Y
� � .. ... _ ..
I
I I_� !��u�. �
1
�
/'
` y�� . . _ � .'
_ . r �`S �
� .�� .� � -- . -5 u r' �a.
I . : _. . ��� �� �
� -.ALG�ON.A . �'�.
�
_ . .
�
� N.. , s.N
� �fi , l�
` �'
��
I
� -
PACIPI�C � ���
i
� I,, `� � � F'IERCE �
. - Ci�UPITY
�.�,r.�rr. ��
�D�.�'v'vC1OL � _
SUMNFR
,..��. � � . . I � i . . _ . �.
^� �� �� i
Ordinance No. 6491
Exhibit A
February 11. 2014 r momie radun� i+yaroi� wuu�ai eo��ead� r�a�,�nano�
Page 1 of 1
� v � s„eam, cc�oi;.�a.�.� .:rtpnri;
L SEUau
� �aw:sn�nei.�,.. su,,,.mm�,rnir•. rnqm:an .
V
JCI;JII:��.
., hm mt11'x_iu.[n.uxx . Lo�al;
EXHIBIT"B"
GRANTEE FACILITIES
EXISTING T-MOBILE FACILITIES IN CITY OF AUBURN ROW
Site ID: SE4042A, "Peasley Canyon"
Location:
33043 46th Place South
Aubum, WA 98001
Description: Telecommunications Facility consisting of aboveground radio equipment
cabinets located in a 12'x17' cedar wood fence enclosure in fhe Righ4-of-
Way {ROW), with antennas vollocated on an existing 88' above-ground
wooden utility pole in the ROW with connec4ing underground conduit..
Site ID: SE04028B, Mouritain View Cemete .ry/PR
Location:
5605 S 324"' Place
Aubum WA 98001
Description: Telecommunicafion Facility consisting of antennas iocated on an existing
75' above-groundround wood utility pole in the Right of Way with ,
connecting underground conduit to the radio equipment cabinets located
on adjacent private property.
Ordinance No. 6491
Exhibit B
February 11, 2014
Page 1 of 1
EXHIBIT"C"
GRANTEE SERVICES
SERVICES PROVIDED BY T-MOBILE WITHIN THE CITY OF AUBURN:
Telecommunications Senrices authonzed by the Federal Communications Commission;
inGuding but not limited to the following:
THE TRANSMISSION, AMPLIFICATION AND RECEPTION OF RADIO
COMMUNICATION SIGNALS, INC�UDING BUT NOT LIMITED TO THOSE RELATED
T0:
. VOICE,
• DATA,
• IMAGES AND VIDEO
• E-911/EMERGENCY ACCESS
• 3-G AND 4-G
Ordinance No. 6491
Exhibit C
February 11,2014
Page 1 of 1
. . . i
�
EXHIBIT"D"
STATEMENT OF ACCEPTANCE
T-Mobile West LLC, A Delaware limited tiability company, for itself, its successors and
assigns, hereby accepts and agrees to be bound by ali laurful tertns, condkions and
provisions of the Franchise attached hereto and incorporated herein by this reference.
T-Mobile West LLC �
A Delaware limited liabil' company
By: Date: 3/�( ��1
Name: J .
Title: Area Director, Engineering &Operations
��m� a�aiu
�.r,�_
STATE OF WASHINGTON
)ss.
COUNTY OF KWG )
On this� day of �Vt.l�l , 2014, before me the undersigned, a Notary
Public in and for the State of Washington, :duly commissioned and swom, personally
appeared, Jay Noceto of T-Mobile West LLC; the company4hat executed the within and
foregoing instrument, and acknowledgeii the said instrument to be 4he free and
wluntary act and deed of said company, for the uses and purposes therein merrtioned,
and on oath stated that he/she is authorized to execute said instrument.
IN WITNESS WHEREOF, I have hereurrto set my hand and affixed my o�ciai seal on
the date hereinabove set forth.
ln..(, � C�,Q,�,�„ ,�,.......�."��n�,,� I
g. SCly,y��,,�
2tUI'2 ���y����oqh�� ,(� ''i�
gS10N�iy /A �i.
� �3',�'\ i i
. = �gO�t�?�TA'Q/'Q��:�.Ai:
� I
NOTARY PUB IC in and for the State of = =U - ' � �_
�IM� , residing at SciUM'(p_ % �'% A�e��° ' = �
��i�9'a,� a.�5.�6���-'Q2__
MY COMMISSION EXPIRES: �15�L� �''�a`�oF 1",NN���ac,'�,,=
�����p��WAB`F'����:
Ordinance No. 6491
' Franchisa_Agreement No. 13-37
DATE Q9l24/2013
Page 1 of 1