HomeMy WebLinkAbout6586 ORDINANCE NO. 6 5 8 6
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, AUTHORIZING THE RENEWAL
OF FRANCHISE AGREEMENT NO. 10-23 AND
AMENDMENT OF ORDINANCE NO. 6344 WITH NEW
CINGULAR WIRELESS PCS, LLC
WHEREAS, On February 22, 2011, the City Council adopted Ordinance
No. 6344, granting a wireless communications franchise to New Cingular
Wireless PCS, LLC ("Grantee"); and
WHEREAS, the coordinates for the location of the wireless facilities are
inaccurately listed in Exhibit A of the franchise agreement, No. 10-23; and
WHEREAS, New Cingular Wireless PCS, LLC wishes to renew Franchise
Agreement No.10-23 for an additional five year term and correct the facilities
location description; and
WHEREAS, following proper notice, the City Council held a public hearing
on the Grantee's request for renewal and correction of the facilities location
description of Franchise Agreement No. 10-23, at which time representatives of
Grantee and interested citizens were heard in a full public proceeding affording
opportunity for comment by any and all persons desiring to be heard; 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
Ordinance No. 6586
Franchise Agreement No. 10-23, Renewal
January 25, 2016
Page 1 of 5
interest of the City and its inhabitants that the renewal and correction of
Franchise Agreement No. 10-23 be granted to the Grantee.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN as follows:
Section 1. Subject to the conditions set forth in this Ordinance, the Ci.ty
approves Grantee's application for renewal for one five-year period as provided
for in Section 3 B of Ordinance No. 6344, Franchise Agreement No. 10-23, a
copy of which is attached hereto and marked as Exhibit A. Such five-year
renewal period shall commence on the effective date of this Ordinance.
Section 2. Exhibit A of Ordinance No. 6344 is amended and hereby
replaced with Exhibit A, attached hereto, and a new Exhibit C-1 is added as an
Exhibit to Ordinance No. 6344, which additional Exhibit is also attached hereto.
Section 3. All other provisions of Ordinance No. 6344 shall remain
unchanged and in full force and effect.
Section 4: Implementation. The Mayor is hereby authorized to
implement such administrative procedures as may be necessary to carry out the
directions of this legislation.
Section 5. Severability. The provisions of this ordinance are declared to
be separate and severable. The invalidity of any clause, sentence, paragraph,
subdivision, section or portion of this oriiinance, or the invalidity of the application
thereof to any person or circumstance shall not affect the validity of the
remainder of this ordinance, or the validity of its application to other persons or
circumstances.
Section 6. Effective date. This Ordinance shall take effect and be in
force five days from and after its passage, approval and publication as provided
by law.
Ordinance No. 6586
Franchise Agreement No. 10-23, Renewal
January 25, 2016
Page 2 of 5
FIRST READING: MAR 1 4 2016
SECOND READING: MAR 21 2016
PASSED: M O16
APPROVED: 016
N NCY BA , MAYOR
ATTEST:
�� ���
Da elle E. Daskam, City Clerk
APP VE O FO M�
hiel B. � , City Attorn
Published: 03d i(o,�li�:� ��°�, ��
Ordinance No. 6586
Franchise Agreement No. 10-23, Renewal
January 25, 2016
Page 3 of 5
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New Cingular Wireless PCS, LLC. � �
Ordinance No. 6344 SCALE:1"=100'
WASHINGTON E7(hlblf��A"
Ordinance No. 6586
Franchise Agreement No 10-23, Renewal
Janua.ry 25, 2015
Page 4 of 5
EXHIBIT "C-1"
STATEMENT OF ACCEPTANCE
New Cingular Wireless PCS, LLC, for itself, its successors and assigns, hereby
accepts and agrees to be bound by all lawful terms, conditions and provisions of
the Franchise Agreement, Ordinance No. 6344, attached hereto and
incorporated herein by this reference as amended by Ordinance No. 6586.
NEW CINGULAR WIRELESS PCS, LLC
A Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
By: � � L�--'°� ` Date: 4-?-!�o
Name: 1.��`Ia4—
Title: i��d-�-�/t--
STATE OF )
)ss.
COUNTY OF )
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On thi�� day of , 20�, before me the undersigned, a
Notary Public in and fo e Stat f o , ly commissioned and sworn,
personally appeared, of �L, the cbmpany that
executed the within and oregoing instrument, and acknowledged the said
instrument to be the free and volunta.ry act and deed of said company, for the
uses and purposes therein mentioned, and on oath stated that he/she is
authorized to execute said instrument.
�
IN WITNESS E EOF, I have hereunto set my hand and affixed my official
al on the d e er inabove.set forth.
�
Sig ature
OFFlCIAL STAMP
WAYNE NEWBURY
NOTARY PUBLIC in and for the State of �T���REOON
COlAMISSION NO.9d6565
, residing at MYCOMMISSIONE%PIRESFEBflUARY15,2020
MY COMMISSION EXPIRES:
Ordinance No. 6586
Franchise Agreement No. 10-23, Renewal
January 25, 2016
Page 5 of 5
� ExhibitA � .
ORDINANCE NO. 6344
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
' AUBURN, . WASHINGTON, GRANTING TO NEW CINGULAR
- WIRELESS PCS, LLC, A DELAWARE LIMITED LIABILITY ;
• COMPANY, A FRANCHISE FOR A WIRELESS I
COMMUNICATION SERVICE PROVIDER
WHEREAS, New Cingular Wireless PCS, LLC ("Grantee") has.applied to
the City of Aubum ("Gitv7 for a non�xclusive Franchise for the right of entry,
use, and occupation of certain public right(s}of-way within the City, e�ressly to
install, construct, erect, operate; maintain, repair, relocate and remove its
facilities in, on;upon, atong and/or across those right(s)-of-way; and
WHEREAS, following proper,notice, the Ci(�i Couricil.held a public hearing
on Grantee's request for a Franchise, at which time representatn+es of Grantee
and interested citizehs were he8rd in a full public proceeding affording
opportunity for comment 6y any and all persons desiring to be heard;and
WHEREAS, from information presented at such public hearing, and from
facts and circumstances developed or discovered through independent study and
invesUgaUon, the City Council now deems it appropriate and in the best interest
of the City and its inhabitants fhat the franchise be granted to Grantee,
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN
WASHINGTON,�DO ORDAIN as'follows:
$ect�on 1. Grant of Right to Use Franchise Area
. . A. Subject to tFie tertns and conditions stated herein, the City graMs to
the Grantee general permission to enter, use, and xcupy the right(s}of-way
and/or other public property specfied in Exhibit "A," attached hereto and
incorporated by reference (the °Franchise Area'�.
B. The Grantee is authorized to 'install, remove, construct, erect,
operate, mairrtain, relocate an.cl repair the types of facilRies specified in Exhibit
"B;" attached hereto an.tl incorporeted by reference, .and all necessary
appurtenances thereto, (°Grentee Facilfties'� for provision of those services set
forth in Exhibit"B" ("Grantee 8ervices°) in, along; under.and across the Franchise
Area.
C. This Franchise does not authorize the use of the Franchise Area for
any facilities or services other then G.rarrtee Facilities and Grantee Services, and
it extends.no rights or privilege relative to any facilities or services of any type,
Ordinance No:8344
Franchise i�qreement#1a23
Decerimber 8, 2010
Page 1 of 15
induding Grantee Facilities and GraMee Services, on pu6lic or private properly ,
elsewhere within (he City.
D. This Franchise is non�xclusive and dces not prohibR the City from
entering into other agreertients, including Franchises, impacting the Fran�ise
Area, unless the Cily determines that entering into such agreements interferes
with Grantee's right set forth herein.
E, �xoept as expliat.ly set forth herein, this Franchise dces not waive
eny rights that the City has or may hereafter aoguire with respect to the
Franchise Area or any other City roads, rights-0f-way, property, or any portions
thereof. This Franchise shall be subject to the power of eminent domain, and in
any proceeding under eminent domain, the Grantee acknowledges its use of the
Franchise Area shall have no value.
F. The City reserves the right to change, regrade, relocate, abandon,
orvacete any right-of-way within the Franchise Area. If, at any time during the ,
tertn of this Franchise; the Cit�r vacates any portion of the Franchise Area
containing Grantee Faali�es, the C'ityr shall reserve an easement for public
iitiliqes within fhat vacated portion, pursuant to RCW 35J9.030, within which the
Grentee may continue to operate a.ny existing Grantee Facilities under the tertns
of thls Franchise for the remaining period set forth under Section 3.
G., The Grantee.agrees that its use of Franchise Area shell at all Nmes
be sub'ordinated to and subject to the Ciry and the public's'need for municipal
infrastructure, travel, and access to the Franchise Area, except as may be
otheiwise required by law.
Sectlon 2. iVotice
A. Wrilten noUoes to the parties ehall be sent by certified mail to the
following addresses, unless a different address shall be designated in writing and
, delivered to the other party.
City: City Engineer
City of Aubum
25 West Mairr SVeet
Aubum, WA98001�4898
Telephone: (253) 931-3010; Fax: (253) 931-3048
with a copy to: City Clerk
- City af Aubum
25 West Main Street •
, Aubum, WA 98001-4998 �
Ordinance No.6344
FrancAiseAgreemeM#1a23 '
December 8.2010 �
Pege 2 of 15
Grantee:
� New Cingtilar Wireless PCS,LLC
Attn:Network Real Estate Adminisaation
Rec Cell Site# WA416
Cell $ite Name: CHtistopher ,
Fixed Asset#: ]0013466
12553 Cingular Way;Suite 1300
A1Pharetta,GA 30004
With copy w: New Cingiilar Wireless PCS,I:LC
Attn: Legal Depar�ent
Re: Cell Site# WA416 �
Cell Site Name: Christopher .
Fixed Asset#c 10013466
��s.Ma�t� P.O.Box 97061
Redmond, WA 98073-9761
(o���ehc�o�Q) 16331 NE72nd Way,RTC1
Redmond,WA 98052
A copy sent to t6e [.egal Depazhnent is ao adminishative step which alone does not constitute
legel notice. Either party hereto mey change the place for the giving of notice w it by thirty(30)
deys'prior writteo notice to the oiher.
�
B. Any changes to the above-stated Grerrtee information shall be sent
to the City's Rigfit-of-Way Manager, with copies to the Ci4y Clerk, referencing the
tiHe of this agreement.
C. The aboVe-stated Grantee voice and fax telephone numbers shall
be staffed at least during.normal business hours, Pec�c time zone.
Sectfon 3. Tertn of Agreement
A. This Franchise shall iun for a period,of five (5) years; from the date
, of execution specified in Sec4ion 5..
B. , Renewal Option of Temi: The Grdntee may renew this Franchise
for an additional five (5) year' period upon submission and approVal of the
applicatlon specified unde� ACC 20.08.130, as it now exists or is amended,
within the fimeframe set forth therein (currently 240 to 180 days prior .to
expiration of the then-current term), Any materials su6mitted 6ythe Grantee for
a previous application may be considered by the Cfly in reyiewing a current
application, and the Grentee shall only submit those materials deemed _
Ordinance No.6344
• FranchlseAgreement#10-23
December 6,2070
Page 3 oi 15
necessary by the City to address changes in the Grantee Facil�ies or Grentee
Services, or to reflect specfic reporting periods mandated by the ACC.
C. Failure to Renew Franchise — Automatic Extension. If the Parties
_ . .
fail to formally renew this Franchise prior to the expiration of its term or any
extension thereof; the Franchise automatically continues moMh to month until -
renewed or either party gives written notice at least one hundred and eighty (180)
days in advance of inteh4 not to renew the Franchise.
Section 4. Deflnitions
For the purpose of this agreement:
"ACC" means the Aubum Gity Code.
"Emergenc�' means a condition of imminent danger to the health, safety and
welfare of persons or property located within the City including, without limitation,
damage to persons or properly from natural consequences, such as s4ortns,
earthquakes, riots, acts of terrorism or wars.
"Maintenance or Maintain° shall mean examining; 4esting, inspecting, repairing,
maintaining and replacing the existing GraMee Fecilities or any part thereof as
required and necessary for safe operation.
"Relocation° means permanent movement of Grantee facilities required by the _
City, and noY temporary or incidental movement of such facilities, or o.ther
revisions Grantee would accomplish and charge to third parties without regard to
municipal request. � .
°Rights-of-Wa� means the surface and the space above and b.elow streets,
roadways, highways, avenues, courts, lanes; alleys, sidewalks, easements,
rights-of-ways and similar public properties and areas,
Sectlon 5. Acceptance of Frdnchlse
A. This Franchise; and any rights granted hereunder, shall not
become effective for any purpose unless end ur�til`Grantee files wifh fhe City
Clerk (1) fhe Statement .of Acceptanca, attached hereto as Exhibit "C,° and
incoryorated by reference, (2) all verifcations of insurance coverage specfied
under Section 15, and (3) the .financial guarantees spec�ed in Section 16
(collectively, "Franchise Aa�ptanCe�. The date that such Franchise Acceptance
is filed with the C'ity Clerk shall be 4he effective date of fhis Franchise.
`
Ordinance No. 6344 :
Franchlse Agreement#10-23 ' .
Dacember 6,,2010 `
Page 4 of 15
B. Should the Grantee fail to file the Frenchise Acceptance with the
Cit�r Clerk witFiin 30 days after the effective date of the ordinance approving the
Franchise; said agreement will ai�tomatically terminate and shall be null and void.
Section 6. Construction and AAaintenance
A, The Grarrtee shall apply for, obtain, and comply with the tertns of all
pertnits required under ACC Chapter 12.24 for any work done upon GraMee
Facilfies. Grantee shall comply .with all .applicable Cily, 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 actiyities with the City and all other
utilities located within the public right-of-way within whicfi Grantee is under taking
its activity.
C: The City expressly reserves the right 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
r�emoval, relocation and/or replacement thereof in the public interest and safety at
the expense of the Grantee.
D. Before crommencing any work within the public right-of-way, the
Grar�tee shall compy wifh 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 haVe the authority to reasonaby
trim trees upon and overhanging streets, public rights-of-way, and places in the
Franchise Area so as to prevent the branches of such trees ftom coming in
� physical contact w'ifh the Grentee 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 Vimming, the Cily may, at ifs sole discretion,
remove such debrls and charge Grantee for the cost thereof. This section dces
not, in any instanoe, grant autometic authority to Gear vegetation for purposes of
providing a Gear path for.radio signals. Any such,general vegetation clearing will
require a land clearing permit
Sectlon 7. Repair and Emergency Wo�lc
� In the everrt of an emergency, the Grantee may commence such repair
and emergency response work as required under the circumstances, provided
tha4 the Grantee shall notify the City Right-of-Way Manager in writing as promp4ly
as possible, before such repair or emergency work commences, or as soon
OMinance No.6344
Franc;hise Agreement#10-23
December B,2010
Page 5 of 15
thereafter as possible, if advance notice is not p[acfical. The City may act, at
any dme, without prior written n.o.tice in the case of emergency, but shall notify . .
tFie Grantee in writing as promptly as possible under the circumstances.
Sectlon 8. Damages to City and Third-Party Property
Grantee agrees that should any of its actions under this Franchise impairs
or damages any C'ity 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 repairwork shall be performed and completed to the satisfaction
of the City Engineer.
Seetion 9. Location Preferencel
A. Any structqre, equipment, appurtenanoe or tangible properly of a
utility, othe�than the Grantee's, which was installed, constructed, completed or in -
place prior in time to Grantee's application for a pertnit to construct or repair
Grantee Facilities under this Frenchise shall have preference as to positioning
and locetion wi4h respect-4o the Gra[nee Facilities. However,,to the.extent that
the Grantee Facilities are completed and installed prior to another utility's
su6mittal of a pertnit for new or addifional structures, equipment, appurtenances
or tangible property, then the Grarrtee Facilities shafl have priority. These rules
goveming preference shall continue in the event of the necessity of relocating or
chenging the grade of any Cily. road or right-of-way. A relocating udlily shall not
�. necessiFate the relocation of another udlity that otheiwise would not require
relocation. This Section shall not apply,to any City facilities or utili�es 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 C'ily water faalities and ten (10) feet firom above-
ground CRy water tacilities; provided, that for development of new areas, the City,
together with Grantee and other utilily purveyors or authorized users of the Pubic
1Nay, will.develop and follow the Public Works Dlrector's determination of a
consensus for guidelines and procedures for determining speafic utility locations,
subject addifionally to this agreement and to a Franchise agreemerrt, should one
become necessary.
Section 10. Grantee Infortnafion
A. Grantee agrees to supply, at no cost to the City, any information
reasonably requested of the Cily Right-of-Way Manager to coordinate municipal
fancEions with Grantee's activities and fulfill any municipal obligations under state
law. Said infortnation shall include, at a minimum, as-bu'itt drawings of Grantee
Ordinance No.8344
Franchise,aqreement#1a23
December 8;2010
Page 8 oi 75
Facilities, installation inverrtory, and maps and, plans showing, the location of
e�dsting or planned faciliHes within the City. SeiB information may be repuested
ekher in hard oopy and/or•electronic format, compatible with the Citys data base
system, as now or hereinafter ex'isting, including the Citys geogrephic
infortnation Service (GIS) data base. . Grantee shall keep the City Right-of-Way
Manager infortned of its long=range plans for coordination with the Cit)Is long-
range plans.
B. The parties understand that Washington law limiffi the ability of the -
City to shield' from . public disGosure any iMorrnation given to the City.
=A�rd'ingly, the paities agree .to work together to avoid disclosures of
information which would resuft in economic loss or damage to GraMee 6ecause
of ma:ndatory disclosure requirements to third persons. Grantee shall indemnify
and hold hartnless the City for any loss or liability for costs for attomays fees
because of non-disclosures. requested by G.rantee under Washington`s open
public rec%rds law, provided reasonable notioe and opportunity to defend was
given to.Grantee or Grentee is mad"e aware of the pending of a request or claun.
Sectlon 11. Relocation of Granbee Facilities
A. . Exoept as othervvise so required by law,. Grantee agrees to
relocate, remove, or reroute its facilities as ordered by the City Engineer at no
e�ense or`liability to the City, except es may be required by RCW Chapter
35.98. Pursuant_to the provisions.of Secdon 14, Grernee agrees to protect end
save harmless the City from any customer or thlyd-party claims for service
interruption. or other losses in connection with any such change, relocat'ion,
abandonment, or vacation of the Rubic Way.
B. If a readjustment or relocation of the Grentee Facilities is
necessitated by e request from a parly other than the City, that party shall pay
the Grantee the actual costs thereof.
Sec4fon 12. Abandonment and or Removal of Grantee FaellWes
A. Within one hundred and eighty days (180) of Grantee's pertnanerrt
cessation of use of the Grantee Facilities, or any portion thereof; the Grantee .
shall, at the Cily's discretion, eitfier abandon in place or remove the aifected
facilitie's. .
B. . The paRies e�iressly agree that this Sectlon shall survive the
expiration, reVOCation or terrnination of this Franchise.
Section 13. Undergrounding
Ordinance No.6344
Franehise Agreement#10-23 _
December B, 2010
Page 7 of 15
A. The parties agree thaf this Franchise tloes not limft the City's
authority under federal law, state law, or local ordinance, to require the
undergrounding of util'�ies.
B. 1Nhenever the Cily requires the undergrounding of aerial utilities in
the Franchise Area, tlie Grarrtee shall underground the Grantee Facilities 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 (RCW 35.88 Is applicable to
belecommunicatlons and cabls TV franchises remove cifation for otl�er
franchisees]. Where other utilities are preser�t and involved in the
undergrounding project, Grentee shall. on,ly be required to pay its fair share of
common costs bome by alf utilities, in addifion to the costs ,specifically
attributable to the undergrounding of Grantee Faalities. Common costs shall
include necessary costs for common tnenching and utility vaufts. Fair share shall
be determined in comparison to #he total number and size of all other utility
facilfies being undergrounded.
Sect�on 14. Indemnification and Hold Hartnless
A. The Grantee shall defend, indemnify, end hold the City and its
officers; officials, ageMs, employees, and volunteers hartnless from any and all
costs, claims, injuries, damage§, losses, suits, or liabiifies of any nature including
attomeys' fees arising out of or in connecction with the Grantee's perfortnanoe
under this Franchise, except to the exterrt such.�, clairris, �injuries, damages,
losses, suits, or liab'ilities are caused by the negligence of the Ciry.
B. The Grerrtee shall hold the City harmless from any liability arising
out of or in connection with any damage or loss to the Grantee Facilities caused
by maintenance and/or construction work performed by, or on behalf of, the City
within the Franchise Area or any other City road, rigtit-of-way, or ofher properly,
exoept to `fhe extent any such damage or loss is directly caused by the
negligence of the City, or its agent performing such work.
C, The Grantee acknowledges that ne.ither the City nor any ofher
public agency wifh responsibility for fire fighting, emergency rescue, public safety
or.similar duties within the City has the capabil'ity to provide Vench, close trench
orconfined space rescue. The Grantee, and its agents, assigns, suxessors, or
contradors, shall make such arrangements as Grantee deems fR for the
provi5ion.of such servioes: The GraMee shall hold the City harmless irom any
liability arising out of or in connection with any damage or loss to the Grantee for
the City's failure or ina6ilRy #o provide such serVioes, and, pursuant to the terrns
of Section 14(A), the Grantee shall indemnif�r the Cit�r against any and all third-
parly costs, claims, injuries, damages, losses, suits, or liabilities based on 4he
City's failure or inability to provide such senrices.
Ordinande No.8344
Franchise Agreement#10-23 ,
December 6,2010
Page S of 15
`
D. Acceptance by the City of any worlc perFormed by the Grantee shall �
not be grounds for avoidance of this section.
E. It is further specfically and expressly understood that the
inderrinfication provided herein constitutes the GraMee's waiver of immunity
under Industrial Insurance.. Tide 51 RCW, soley for the purposes of this
indemnfication, This waiver has been mutually negotiated by the parties. The
proVisions of this section shall survive the e�iration or tertnination of this .
ILqreement.
Sectlon 15. Insurance
A. . . The Grantee shal.l procure and maintain for the duration of this
Franchise, insurance against claims for injuries to persons or damage to property
which may arise from or in oonnedion with the perfortnance of the work
hereunder by the Grantee, its egents, represeMatives, or employees in the
;amourits and types set forth below:
1. Automobile Liabil'{ty insurance covering all owned, non-
owned; hired, and leased vehicles with a combined single limit for bodily injury
,� and property damage of$1,000,000 per accident Coverage shall be written on
Insurance Services Office pS0) forrn CA 00 01 or a substitute form providing
equivalent liabiliry coverage. If necessary, 4he policy shall be endorsed to
prodide conVactual liability coverage.
2. Commercial Generel Liabllity insurance with limits of
$1,000;000 each occurrence, $2,000,000 general aggregate and a $2,000,000
products-completed operations aggregate limit Coverage shall be written on
ISO occurrence form CG 00 01 or eguivalent and shall cover liability arising from
premises, operations, independent contractors, products-completecJ operations,
stop gap liability, and personal injury and advertising injury and liability assumed
under an insured contract. There shall be no endorsement or modfication of the
Commercial General Liability insurance for liabilify arising from explosion,
collapse, or underground properry damage. The City shall be induded as an
additional insured under the Grantee`s Commercial General Liability insurance
policy wifh respect to the .woAc perforrned under this Franchise using ISO
Additional Insured Endorsement CG 20 10 10 01 and Additional Insureil-
Completed OperaUons endorsement CG 20 37 10 01 or substitute endorsements
providing equivalent coverage.
3. Professional Liability insurance with limits of $1,000,000 per
daim or wrongful act and in. the.aggregate for all professionals employed or
. refained by Grantee to pertortn services under this Frenchise.
Ordinance No.6344
Franchise qgreement#16-23
DeCember6, 2010
Page 9 of 15
4. Workers' Compensation coverage. as required by the
Industrial Insurance laws of the State of Washington.
B. The insurance policies are to contain; or be endorsed to contain,
the following provisions for Automobile Lia6ility, Professional L'iability, and
Commercial General Liability insurance:
1. The Grantee's insurance coverage shall be primary
insurance as respects the Gity. Any insurance, seff-insurance, or insurance pool
coverage maintained by the City shall be in excess of the Grantee's insurance
and shall not contribute with it:
2. The Grarrtee's insurance sh81.1 be endorsed to state that
coverage shall not be cancelled by eifher party except after thirty (30) days' prior
written notice by mail has been given to the City.
C. Acceptab'ility of Insufers. Insurance is to be placed with insurers
w'rth a current A.M. Besf rating of not less than A minus:Vll.
D. Verification 'of Coyerage. Grantee shall fumish the Ciiy with
documentation of insurers A.M. Best rating and with original certficates and a
� copy of'amendatory endorsemerrts, including but not necessarily limifed to the
additional .insured endocsement, evidencing the insurance requiremenb of the
Consuftant before commencement of 4he work.
E. Grantee shall haVe the right to seH insure any or all of the above-
required insurance. Any such self insurance is s.ubject to approval by the Clty.
F. Grantee's•maintenance of insurance as required by this Franchise
shall noE be construed to limit the liability of Grantee to 4he coverage provided by
, such insurance, or othervvise limit the Cily's recourse to any remedy to which the
City is othervvise enti4led at law or in equity.
Section 76. Pertormance Security ,
The Grantee shall provide the Cily with a flnancial guarantee in the amount of
Fifty Thousand Dollars ($50,OOU) Yunning for, or renewable for; the term of this
Franchise, in a fortn and substan� acxeptable to the C;dy. In the event Gfantee
shall fail to substantially comply with any one or more of the provisions of this
Franchise,.then there shall be recovered joiMly and severally from the principal
and any surety of such financial guarantee any damages suffered by C'ity as a
result thereof, including but not limited to staff time, material and equipment
costs, compensation or indemnficatibn of third parties, end the cost of removal or
Ordinance No.6344
Franchise�reement#70-23
December 8, 2010
Page 10 of 15
abandonment of facilities hereinabove described. Grantee specfiqlly agrees
that its failur�e to comply wifh the tertns of Seotion 19 shall constitute damage to
the City in the moneta.ry amount set forth 4herein, Such a financial guarantee
shall not be construed to limk the Grantee's liability to the guarantee amount, or
othenuise limit the Cit�s fecourse to any remedy to which the City is other4vise
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 tFie GraMes, and all rights and priVileges, as well as all obligations
and liabilities of the Grantee shall inure to: its successors, assignees and
contradors equaly as ff they were specfically mentioned herein wherever the
Grantee is mentioned.
B. This Franchise shall not be leased, assigned or othervvise alienated
without the express consent of the Cit�r by ordinance, which approval shall not be
unreasonabty withheld.
C.. Grantee and any proposed assignee or Vansferee shall provide and
certify the following to the City not less than sixty (60) days prior to the p�oposed
date of transfer. (a) Complete irifortnation setbng' forth the nature, term and
canditions.of the proposed assignment or transfer, (b) All information required by
the Ciry of an applicanY for a Frenchise 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 and reasonably incurred by the City in processing, and
investigating the proposed assignment or transfer.
D. Prior to the City's consideration of a request by Grantee to consent
to a Franchise assignment or trensfer, the proposed Assignee or Transferee shall
file with the Cily a written promise to unconditionally axept all terms of the
Frenchise, effective upon euch transfer or assignment of the Franchise. The City.
is under no obligation to under�eke any Inves�gation of the transferors state of
compliance and failure of the City to insist on full compliance prior to Vansfer
does not waive any right to insist on full compliance thereafter.
Section 18. Dispute Resolutlon
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 fhe operational
officers or representatives designated by Grantor and-Grantee to have oversight
over the edministretion of this Agreement: The offcers or representatives shall
meet within thirty (30) calendar days of either party's request for a meeting,
Ordinance No.6344
Franehise P�greement�10-23
December 8,2010
Page 7 7 of 15
whichever request is first, and the parties shall make a good faith effort to
achieve a resolu6on of the tlispute.
8. If the pafies fail to achieve a resolution of. the. dispute in tFiis
manner, ekherparty may then pursue any available judicial remedies. This
Franchise shall be govemed by and construed in accordance with the laws of 4he
State of Washington. In the event any suit, arbitration, or other proceeding is
instituted to enforce any tertn of this Agreement, the parties specfically
understand and agree that .venue shall be exclusively in King County,
Washington. The prevailing party in any such action shall be entitled to `ifs
attomeys' fees and wsts of suit,.which shall be fixed by the judge hearing the
case, and such fees shall be inGuded in the judgment
Section 19. Enforcement and Remedies Including Termination
A. If the Grantee shall wilffully violate; or fail to compl.y with any of the
- provisions of this Franchise th.rough willful or unreasonable negligence, or should
k fail to heed or comply with any notice given to Grantee under Me provisions of
this agreertient, the Cily may, at its discretion, provide Grantee wkh written notice
to cure the breach withih thirty (30) days of notfication. If 4he City determines the
breach cannot be cured wRhin thirty days, the City may speciry a longer cure .
period, and condition th.e extension of time on Grantee's submittal of a plan to
cure the breach within the specfied period, commencement of: work wifhin the
original thirty day cure period, and diligent pr_osecution of.the work to complefion.
If the breach. is_not cured within the specfied_ time, or the Grantee does not
comply with the specified condfions, the City may, at its discreUon, either (1)
'revoke the Franchise with no fuither notfication; or:(2) claim damages of Two
Hundred F.ifty Dollars ($250.00) perday against the financial guarantee set foRh
in Section 16 for every dayafter the expiration of the cure penod that the breach
is not cured.
B. Should the City determine that Grantee is acting beyond the scope
of pertnission granted herein for Grantee Facilities and Grantee Services, the
City resenres the-right to cancel this Franchise and require the Grantee to apply
for, obtain, and comply with all applicable Cfty permits, iranchlses, or other Ciry
qermissions 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 RegulaHons
A. This Franchise is subject to, and tfie Grantee shall comply with all
applicable federal and state or Citj% laws, regulations_and policies (including�all
appllcable elements of :the City's comprehensive plan), in conformance with
Ordinance No. 6344
Franchise Agreement#10-23 .
December 6, 2010
Page 12 of 15
' �
federal laws and regulations, affecting performance under this Franchise.
Furthermore, notwithstanding any other terms of this agreement appearing to the
contrary, the Grarrtee 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 grarned in the Franchise Area. �
!- 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
or regulation relating to the public. health, safety, and welfare, or relating to
roadway regulation, or a City Ordinance enaded 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 end identifying the
"statute, regulation, or oMinance requiring the amendment. Said amendment
shall become automaticaly effecfive 'upon expiration of the notice period unless,
before expiration of that period, the Grantee makes a written call for negotiations
over the terms of the amendment. If the. parties do not reach agreement as to
Ehe tertns of 4he amendment within thirty (30)days of the call for negotiations, the
, Clty may enact the .proposed .amendment; by incorporating the Grantee's
concems to the maximum extent tlie Ciiy deems possible.
C: The City may terminate this Franchise upon.thirty (30) days written
notice to the Grantee; if the Grantee fails to comply with such amendmerrt or
mod�cation.
Section 21. 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 authority 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 Limttatfon
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 I
, shall remain in effect.
SecUon 24. TIUes
Ordinance No.6344
Franchise Agreement#10-23
December 6,2010
Page 13 of 15 ,
The section titles used herein are for reference ony and should not be
used for.the purpose of interpreting fhis Franchise.
Sectfon 25. Implementatfon.
The Mayor is hereby euth"orized to implement such administratiVe
procedures as may be necessery to carry out the direcfions of this legislation.
Sectlon 26. Effective date.
This Ordinance shail take effed and be in force five days from and after its
passage, approval and publication as provided 6y law.
,
� INTRODUCED: FEB_S 8 2011
PASSED:
VED:
�
PETER B. LEWIS, MAYOR
ATTEST:
Darnelle E. Daskam, City Clerk
APP O F M:
` iel B. - iry A — ey
Published: z5 ze
Ordinance No.6344
Franchise/�qreement#10-23
Deoem6er 6, 2010
Page 14 of 15
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Ordinance No.6344
Exhibit°B°
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EXHIBIT'C°
- STATEMENT OF ACCEPTANCE
New Cingular Wireless PGS; LLC, for itaetf, its suaessors and assigns, hereby.
- und by all lawful terms, conditions and provisions of
axepts end agrees w'be bo
the Franchise aftached hereto and inCOrporeted herein:by this reference.
NEW CINGULAR WIRELESS P.GS, LLC,
�. A Delaware limited liabflity eompany
By: AT&T Mobility Corpoiation -
Its: Manager
gy� : . Date: `3-17• l(
Name� .�,<J
Tltle: S'v yd�
STATE OF G
—����s.
COUNTY OF .
On this � day of �1 CtWC� . 2010, `betore ,me, the undersigned, a
'Notary Public in arid fotlhe S1aCe.of vc duly comm I r�d and swom,
personaily appeared. . - of h,n,T,� �+PCC��timpany that
-.
- executed the within an regoing i , _ment, and a6knowledg� the said
inetrument to be the free and voluntary act and deed of seid company, for the
'. uses and purposes therein..inentioned, and .on oaSh stated fhat he/she is
authorized tc exeeute safd inetiumenl
- IN WffNES$,WHEREOF, I have ,Aereurrto set my hand end afflzed my offidal
' seal on the date liereinabove set forth.
l ��/7/a ��__<�-�X1� '
Signature :
.. . � . � � � � OfFIC1ALSEAI� � � .
ppTp�qp J HU1iTER
� � N TARY PUBLIC 10 a�d�fOf BIB S Of � NOTARY PUBL�GOREGON
��)�'6�iDl�1 , residing at opee►��ss�N��da9is2
—� � iss�►+
MY COMMISSION EXPIRES>�L�
Or�nence No.�moc
DA1E '
Page 15 of 16