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HomeMy WebLinkAbout6727 ORDINANCE NO. 6727 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, GRANTING NEW CINGULAR WIRELESS PCS, LLC, A FRANCHISE FOR WIRELESS TELECOMMUNICATIONS FACILITIES WHEREAS, New Cingular Wireless PCS, LLC ("Grantee"), has applied to the City of Auburn ("City") for a non-exclusive Franchise for the right of entry, use, and occupation of certain public right(s)-of-way within the City, to install, construct, erect, operate, maintain, repair, relocate and remove Grantee's facilities in, on, over, under, along and/or across those right(s)-of-way; and WHEREAS, following proper notice, the City Council held a public hearing on Grantee's request for a Franchise; and WHEREAS, based on the information presented at the public hearing, and from facts and circumstances developed or discovered through independent study and investigation, the City Council now deems it appropriate and in the best interest of the City and its inhabitants to grant the franchise 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 terms and conditions stated in this Agreement, the City grants to the Grantee general permission to enter, use, and occupy the Franchise Area, located within the incorporated area of the City. Grantee may locate the Grantee Facilities within the Franchise Area subject to all applicable laws, regulations, and permit conditions. B. The Grantee is authorized to install, remove, construct, erect, operate, maintain, relocate, upgrade, replace, restore and repair Grantee Facilities to provide Wireless Telecommunications Services in the Franchise Area. C. This Franchise does not authorize the use of the Franchise Area for any facilities or services other than Grantee Facilities and Wireless Telecommunications Services, and it extends no rights or privilege relative to any facilities or services of any type, including Grantee Facilities and Wireless Telecommunications Services, on public or private property elsewhere within the City. Ordinance No. 6727 July 30, 2019 Franchise Agreement No. FRN19-0014 Page 1 of 17 D. This Franchise is non-exclusive and does not prohibit the City from entering into other agreements, including Franchises, impacting the Franchise Area, for any purpose that does not interfere with Grantee's rights under this Franchise. E. Except as explicitly set forth in this Agreement, this Franchise does not waive any rights that the City has or may acquire with respect to the Franchise Area or any other City roads, rights-of-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, or vacate any right-of-way within the Franchise Area. If, at any time during the term of this Franchise, the City vacates any portion of the Franchise Area 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. G. The Grantee agrees that its use of 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 the Franchise Area, except as may be otherwise required by law. Section 2. Notice A. Written notices to the parties shall be sent by a nationally recognized overnight courier or by certified mail to the following addresses, unless a different address shall be designated in writing and delivered to the other party. Any such notice shall become effective upon receipt by certified mail, confirmed delivery by overnight courier, or the date stamped received by the City. City: Right-of-Way Specialist Public Works Department - Transportation City of Auburn 25 West Main Street Auburn, WA 98001-4998 Telephone: (253) 931-3010; Fax: (253) 931-3048 with a copy to: City Clerk City of Auburn 25 West Main Street Auburn, WA 98001-4998 Ordinance No. 6727 July 30, 2019 Franchise Agreement No. FRN19-0014 Page 2 of 17 Grantee: New Cingular Wireless PCS, LLC Attn: Network Real Estate Administration Site No. City of Auburn Wireless Franchise Agreement (WA) 1025 Lenox Park Blvd NE, 3rd Floor Atlanta, GA 30319 With a copy to: New Cingular Wireless PCS, LLC Attn: AT&T Legal Dept — Network Operations Site No. City of Auburn Wireless Franchise Agreement (WA) 208 S. Akard Street Dallas, TX 75202-4206 B. Any changes to the above-stated Grantee information shall be sent to the City at City's notice addresses, referencing the number of this Ordinance. C. The City may also contact Grantee at the following number during normal business hours and for emergency or other needs outside of normal business hours of the Grantee: (800) 832-6662. Section 3. Term of Agreement A. This Franchise shall run for a period of five (5) years, from the effective date of this Franchise specified in Section 5. B. Renewal Option of Term: The Grantee may renew this Franchise for one, additional five (5)year period upon submission and approval of the application specified under ACC 20.06.130, as it now exists or is amended, within the timeframe set forth in that section (currently not more than 240 and not less than 180 days prior to expiration of the then-current term). 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 deemed necessary by the City to address changes in the Grantee Facilities or Telecommunications Services, or to reflect specific 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 month to month until renewed or either party gives written notice at least one hundred and eighty (180) days in advance of intent not to renew the Franchise. Section 4. Definitions Ordinance No. 6727 July 30, 2019 Franchise Agreement No. FRN19-0014 Page 3 of 17 For the purpose of this agreement: •A. "ACC" or "City Code" means the Auburn City Code. B. "Emergency" 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 property from natural consequences, such as storms, earthquakes, riots, acts of terrorism or wars. C. "Franchise Area" means all present and future Rights-of-Way as defined in Section 4.H. herein, within the City Limits as they currently exist or as amended in the future. D. "Grantee Facilities" means any and all equipment, appliances, attachments, appurtenances and other items necessary for Telecommunications Services or "personal wireless services" as defined in RCW 80.36.375 or 35.99.010(7), respectively, that are located in the Right-of-Way. It includes microcell, minor and small cell facilities and strand-mounted units. Grantee Facilities do not include anything used to provide wireline services, front-haul or back-haul services, including fiber optic cables, coaxial cables, wires, conduit or other equipment, appliances, attachments and appurtenances. They do not include any equipment that is not within ten (10) feet of the pole (excluding any strand-mounted unit) or base station, or that is not within the Right-of-Way, or that is covered under a separate Franchise Agreement or agreement. E. "Grantee's Wireless Telecommunications Services" means the transmission and reception of wireless communications signals, including but not limited to personal wireless and data communications services, over Licensee's federally licensed frequencies, pursuant to all the rules and regulations of the Federal Communications Commission, and in accordance with the terms of this Agreement, for the benefit of wireless communications subscribers in and around the Franchise Area. F. "Maintenance" or "maintain" shall mean examining, testing, inspecting, repairing, maintaining, restoring and replacing the existing Grantee Facilities or any part thereof as required and necessary for safe operation. G. "Relocation" means permanent movement of Grantee Facilities required by the City, 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. Ordinance No. 6727 July 30, 2019 Franchise Agreement No. FRN19-0014 Page 4 of 17 H. "Rights-of-Way" means the surface and the space above and below streets, roadways, highways, avenues, courts, lanes, alleys, sidewalks, shoulders, curbs, landscaping areas between sidewalks and curbs or shoulders, and other public rights-of-ways and similar public properties and areas to the extent that the City has the authority to grant permission to use any of the foregoing. It does not include structures, including poles and conduit, located in the right-of-way and, any other property owned by the City in its proprietary capacity. Section 5. Acceptance of Franchise A. This Franchise shall not become effective until Grantee files with the City Clerk (1) the Statement of Acceptance (Exhibit "A"), (2) all verifications of insurance coverage specified under Section 15, (3) the financial guarantees specified in Section 16, and (4) payment of any outstanding application fees per the City Fee Schedule. These four items shall collectively be the "Franchise Acceptance". 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 ordinance approving the Franchise, the City's grant of the Franchise will be null and void. Section 6. Location, Siting, Construction and Maintenance A. The Grantee shall apply for, obtain, and comply with the terms of all permits, approvals and facilities lease agreements as required under ACC Chapters 12.24, 13.32A and 20 for any work done within the Right-of-Way or to site Grantee Facilities on any facilities, structures or poles owned by third parties within the Right-of-Way or on any City-owned facilities, structures or poles within the Right-of-Way. City Council authorizes the Director of Public Works or the Director's designee to negotiate and execute all agreements necessary for the use of City owned property. Grantee shall comply 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. Grantee shall be required to submit the appropriate application to the City related to siting within the public Right-of-Way as provided under this Franchise, for review and approval by the City Engineer, prior to submitting an application for a construction permit(s) for any and all locations in the public Right- of-Way, whether Grantee is proposing to locate on City owned facilities, structures or poles, or on third party owned facilities, structures or poles. The siting application shall be submitted to the City and shall be in addition to any other required permits for construction, building, land use, zoning, lease agreements or other approvals as required by applicable City Code. Ordinance No. 6727 July 30, 2019 Franchise Agreement No. FRN19-0014 Page 5 of 17 B. Grantee agrees to coordinate its activities with the City and all other utilities located in the public Right-of-Way within which Grantee is undertaking 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 and in accordance with the applicable sections of this Franchise or the ACC, require the adjustment, securement, removal, relocation and/or replacement thereof in the public interest and safety at the expense of the Grantee. D. Before commencing any work 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 have the authority to reasonably trim trees upon and overhanging streets, public rights-of-way, and public places in the Franchise Area to the extent necessary to prevent the branches of those 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 discretion, remove such debris and charge Grantee for the cost of removal. This section does not, in any instance, grant automatic authority to clear vegetation for purposes of providing a clear path for radio signals. Any such general vegetation clearing will require a land-clearing permit. Section 7. Repair and Emergency Work In the event of an emergency, the Grantee may commence repair and emergency response work as required under the circumstances. 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. Such notification shall include the Grantee's emergency contact phone number for the corresponding response activity. 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. Grantee will reimburse the City for the City's actual cost of performing emergency response work. Ordinance No. 6727 July 30, 2019 Franchise Agreement No. FRN19-0014 Page 6 of 17 Section 8. Damages to City and Third-Party Property Grantee agrees that if any of its actions under this Franchise impairs or damages any property, Grantee will restore, at its own cost and expense, the property to a safe condition. Upon returning property to a safe condition, the property shall then be returned to the condition it was in immediately prior to being damaged (if the safe condition of the property is not the same as that which existed prior to damage). Such repair work shall be performed and completed to the satisfaction of the City Engineer. Section 9. Location Preference 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 Grantee 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 telecommunication or utility operator's or carrier's submittal of a permit for new or additional structures, equipment, appurtenances or tangible property, then the Grantee Facilities shall have priority. These rules governing preference shall continue in the event of the necessity of relocating or changing the grade of any City road or right-of-way. A relocating utility shall not necessitate the relocation of another utility that otherwise would not require relocation. This Section shall not apply to any City facilities or utilities that may in the future require the relocation of Grantee Facilities. Such relocations shall be governed by Section 11. B. Grantee shall maintain a minimum underground horizontal separation of five (5) feet from City water, sanitary sewer and storm sewer facilities and ten (10) feet from above-ground City water facilities. For development of new areas, the City, in consultation with Grantee and other telecommunication and utility purveyors or authorized users of the Rights-of-Way, will develop guidelines and procedures for determining specific telecommunications and 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 Grantee's activities and fulfill any municipal obligations under state law. This information shall include, at a minimum, as-built drawings of Grantee Facilities, including installation inventory, and maps and plans showing the location of existing Grantee Facilities and planned Grantee Facilities(to the extent that maps and plans showing planned facilities are available) within the Rights of Way. This information Ordinance No. 6727 July 30, 2019 Franchise Agreement No. FRN19-0014 Page 7 of 17 may be requested either in hard copy or electronic format, compatible with the City's data base system, as now or hereinafter exists, including the City's Geographic Information System (GIS) data base. Upon the City's request, Grantee shall inform the City of its long range plans for installation, if such plans are available, so that the City may coordinate any future development with Grantee's proposed designs. If such plans are not immediately available, are not finalized, or are proprietary in nature, then Grantee is under no obligation to provide such information to the City. Should the Grantee fail, for any reason, to provide information regarding its long range plans or planned Grantee Facilities upon the City's request, then the City is under no obligation to coordinate with, account for or authorize their facilities in future Right-of-Way projects or 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; however, nothing in this Section shall be construed to require Grantee to disclose proprietary or confidential information without adequate safeguards to protect the confidential or proprietary nature of the information. Accordingly, in the event the City receives a public records request under applicable state or federal law, the City agrees to notify the Grantee of such request related to the Grantee, and to give the Grantee ten (10) working days to obtain an injunction prohibiting the release of the records. C. Grantee shall defend, indemnify and hold the City harmless for any loss or liability for fines, penalties, and costs (including attorneys' fees) imposed on the City because of non-disclosures requested by Grantee under Washington's public records act, provided the City has notified Grantee of the pending request. Section 11. Relocation of Grantee Facilities A. Pursuant to Auburn City Code Chapter 13 and Chapter 20 as currently written or as amended in the future, 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 liability to the City, except as may be required by RCW Chapter 35.99. Pursuant to the provisions of Section 14, Grantee agrees to protect and save harmless the City from any customer or third-party claims for service interruption or other losses in connection with any such change, relocation, abandonment, or vacation of the Public Right-of-Way. B. If securement, adjustment or relocation of the Grantee Facilities is necessitated by a request from a party other than the City, that party shall pay the Grantee the actual costs. Ordinance No. 6727 July 30, 2019 Franchise Agreement No. FRN19-0014 Page 8 of 17 Section 12. Abandonment and or Removal of Grantee Facilities A. Within one hundred and eighty days (180) of Grantee's permanent cessation of use of all or a portion of the Grantee Facilities, the Grantee shall, at the City's discretion, either abandon in place or remove the affected facilities. B. Grantee may ask the City in writing to abandon, in whole or in part, all or any part of the Grantee Facilities. Any plan for abandonment of Grantee Facilities must be approved in writing by the City, which approval shall not be unreasonably withheld. C. 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. B. Subject to applicable law addressing the undergrounding of telecommunication facilities, whenever the City requires the undergrounding of aerial utilities in the Franchise Area, the Grantee 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. Where other utilities are present and involved in the undergrounding project, Grantee shall only be required to pay its fair share of common costs borne by all utilities, 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. Section 14. Indemnification and Hold Harmless A. The Grantee shall defend, indemnify, and hold the City and its officers, officials, agents, contractors and employees, and volunteers harmless from any and all costs, claims, injuries, damages, losses, suits, or liabilities including attorneys' fees arising out of or in connection with the Grantee's performance (including Grantee's agents' or representatives' performances) under this Franchise, except to the extent such costs, claims, injuries, damages, losses, suits, or liabilities are caused by the sole negligence or willful misconduct of the City or its officers, officials, agents and employees. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115, then, in the Ordinance No. 6727 July 30, 2019 Franchise Agreement No. FRN19-0014 Page 9 of 17 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 Grantee and the City, its officers, officials or 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 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, right-of-way, or other property, except to the extent any such damage or loss is directly caused by the negligence or willful misconduct of the City, or its employees, contractors and agents performing such work. C. The Grantee acknowledges that neither the City nor any other public agency with responsibility for firefighting, 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 with regard to work performed by or at the direction of Grantee. 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 services, 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's failure 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 specifically and expressly understood that the indemnification provided herein constitutes the Grantee's waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes of indemnity claims made by the City against Grantee or claims made by Grantee's employees directly against the City. This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this Agreement. 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 from or in connection with the performance of the work hereunder by the Grantee, its officers, officials, and employees in the amounts and types set forth below: Ordinance No. 6727 July 30, 2019 Franchise Agreement No. FRN19-0014 Page 10 of 17 1. Commercial Automobile Liability insurance ISO Form CG 00 01 covering all owned, non-owned, hired, and leased vehicles with a combined single limit for bodily injury and property damage of $1,000,000.00 per accident including contractual liability. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01, or a substitute form used by Grantee, so long as it provides equivalent liability coverage. 2. Commercial General Liability insurance with limits of $5,000,000.00 each occurrence for bodily injury and property damage and, $5,000,000.00 general aggregate including $5,000,000.00 products-completed operations aggregate limit, premises-operations, independent contractors, products-completed operations, personal injury and advertising injury and contractual liability coverage. There shall be no exclusion for liability arising from explosion, collapse, or underground property damage. The City shall be included as an additional insured as their interest may appear under the Grantee's Commercial General Liability insurance policy with respect to the work performed under this Franchise by means of a blanket additional insured endorsement using ISO Additional Insured Endorsement for Ongoing Operations, CG 20 10 10 01 and Additional Insured Completed Operations Endorsement, CG 20 37 10 01, or substitute endorsements utilized by Grantee providing equivalent coverage. 3. Professional Liability insurance with limits of $1,000,000.00 per claim and aggregate covering the negligence, acts, errors, and/or omissions of Grantee in the performance of professional services under this Franchise. 4. Workers' Compensation coverage (or qualified self-insurance coverage) as required by the Industrial Insurance laws of the State of Washington. B. The insurance policies shall: 1. Provide that the Grantee's insurance coverage shall be primary insurance as respects the City. Any insurance, self-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. Upon receipt of appropriate notice from its insurer(s), Grantee shall provide the City with thirty (30) days prior written notice of cancellation or nonrenewal of any of the required insurance policies that are not replaced. 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. 6727 July 30, 2019 Franchise Agreement No. FRN19-0014 Page 11 of 17 D. Verification of Coverage. Grantee shall furnish the City with documentation of insurer's A.M. Best rating and with original certificates and a copy of amendatory endorsements, including but not necessarily limited to the blanket additional insured endorsements evidencing the insurance requirements of Grantee before commencement of the work. E. Grantee shall have the right to self-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 otherwise limit the City's recourse to any remedy to which the City is otherwise entitled at law or in equity. Section 16. Performance Security The Grantee shall provide the City with a bond or financial guarantee in the amount of Fifty Thousand Dollars ($50,000.00) running for, or renewable for, the term of this Franchise, in a form and substance acceptable to the City, for all of the Grantee Facilities in the City. If Grantee fails to substantially comply with any one or more of the provisions of this Franchise, the City shall recover jointly and severally from the Grantee, bond or any surety of such financial guarantee, any actual and direct damages suffered by City as a result thereof, including but not limited to staff time, material and equipment costs and the cost of removal or abandonment of facilities. Grantee specifically agrees that its failure to comply with the terms of Section 19 shall constitute a material breach of this Franchise. Such a bond or 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 otherwise 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, 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. B. This Franchise shall not be leased, assigned or otherwise alienated without the express prior consent of the City by ordinance. C. Grantee and any proposed assignee or transferee shall provide and certify the following to the City not less than sixty (60) days prior to the proposed date of transfer: (1) Complete information setting forth the nature, term and Ordinance No. 6727 July 30, 2019 Franchise Agreement No. FRN19-0014 Page 12 of 17 conditions of the proposed assignment or transfer; (2) All information required by the City of an applicant for a Franchise with respect to the proposed assignee or transferee; and, (3) 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 transfer, the proposed Assignee or Transferee shall 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. Transactions between affiliated entities are not exempt from the required City approval. Grantee shall promptly notify the City in writing prior to any proposed change in, or transfer of, or acquisition by any other party of control of the Grantee's company. Notification shall include those items set out in subsection 17.0 (1) through (3) herein above. Section 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 Grantor and 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 effort 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 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 19. Enforcement and Remedies A. If the Grantee shall willfully violate, or fail to comply with any of the provisions of this Franchise through negligence, or should it fail to heed or comply Ordinance No. 6727 July 30, 2019 Franchise Agreement No. FRN19-0014 Page 13 of 17 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 receipt of written notification. If the parties determine the breach cannot be cured within thirty days, the City 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 specified 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 specified time, or the Grantee does not comply with the specified conditions, the City may, at its discretion, either (1) revoke the Franchise with no further notification (2) terminate Franchisee's use of the specific portion(s) of the ROW to which the default(s) pertains at the discretion of the City Engineer, or (3) claim damages of Two Hundred Fifty Dollars ($250.00) per day against the bond or financial guarantee set forth in Section 16 for every day after the expiration 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 require the Grantee to apply for, obtain, and comply with all applicable City permits, franchises, or other City 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 (collectively, "Laws"). 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. 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 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. The amendment shall become automatically effective 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 the terms of the amendment within thirty (30) days or within such other timeframe as Ordinance No. 6727 July 30, 2019 Franchise Agreement No. FRN19-0014 Page 14 of 17 determined by the City, of the call for negotiations, the City may enact the proposed amendment, by incorporating the Grantee's concerns to the maximum extent the City 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 amendment or modification. The City shall retract its notice of termination if the City determines that the Grantee is in compliance with the amendment or modification within such 30-day period. The City may grant longer than the 30-days to comply if the Grantee provides notice to the City of its intent to comply and can demonstrate good-faith efforts to reach compliance to the satisfaction of the City. Section 21. License, Fees, Tax and Other Charges Grantee shall pay promptly and before they become delinquent, all fees and charges for all applicable permits, licenses and construction approvals imposed by the City for Grantee's permitted use of the Grantee Facilities within the Rights-of- Way. This Franchise shall not exempt the Grantee from any future license, fee, 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 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. Section 24. Titles The section titles are for reference only and should not be used for the purpose of interpreting this Franchise. Section 25. Implementation. The Mayor is authorized to implement such administrative procedures as may be necessary to carry out the directions of this Franchise. Section 26. Effective date. Ordinance No. 6727 July 30, 2019 Franchise Agreement No. FRN19-0014 Page 15 of 17 This Ordinance shall take effect and be in force five days from and after its passage, approval and publication as provided by law. INTRODUCED: SEP 1 6 2019 PASSED: SEP 1 6 2019 APPROVED: SEP 1 6 2 ANCY " US, MAYOR ATTEST: �'\ Shawn Campbell, City Clerk APPROVED AS T ORM: . S even L. Gross, City Attorney Published: 0,1",4:MM6,0407 `6 9-011 Ordinance No. 6727 July 30, 2019 Franchise Agreement No. FRN19-0014 Page 16 of 17 Exhibit A 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 attached hereto and incorporated herein by this reference. 10tw 60..,_5.014,r (L)vc)5 53 ' p5 , [_gb 1 w �,1- 12-- -teLI ,,t-S_ gtx, By: — Date: (0-21– /4 Name: Way e Wooten Title: Director STATE OF OREGON ) )ss. COUNTY OF WASHINGTON ) r On this oj) day of Ic`o`w'' , 2019, before me the undersigned, a Notary Public in and for the State of Oregon, duly commissioned and sworn, personally appeared, Wayne Wooten, Director of New Cingular Wireless PCS, LLC, as Manager for AT&T Mobility Corporation, the company that executed the within and foregoing instrument, and acknowledged the said instrument to be the free and voluntary 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 WHEREOF, I have hereunto set my hand and affixed my official seal on the date hereinabove set forth.ILMTtJ4fUiL� 41 gnature 1 )v�cQ,�►�� nv'114 6/11–/%+/ry) NOTARY PUBLIC in and for the State of Oregon residing at: AT&T Tualatin, Oregon Office OFFICIAL STAMP MY COMMISSION EXPIRES: ApliHir, 2023 :T.5- JUDITH MULLEN r1 I k `:„,: �1 NOTARY PUBLIC-OREGON J COMMISSION NO.987715 MY COMMISSION EXPIRES MAY 16,2023 Ordinance No. 6727 July 30, 2019 Franchise Agreement No. FRN19-0014 Page 17 of 17 AGREEMENT BETWEEN THE CITY OF AUBURN AND NEW CINGULAR WIRELESS PCS,LLC FOR THE USE OF CITY-OWNED PROPERTY IN THE RIGHT- OF-WAY IN CONNECTION WITH A SMALL WIRELESS FACILITY This Agreement is made and entered into by and between the City of Auburn, a municipal corporation of the State of Washington ("Licensor") and New Cingular Wireless PCS, LLC ("Licensee") (individually, "Party"and collectively,the"Parties"). RECITALS A. Licensor is the owner of certain City-owned poles located in the public rights-of- way situated within the city limits of Auburn, Washington("ROW"). B. Licensee desires to construct, operate, and maintain communication sites on Licensor-owned poles or other specified City-owned facilities situated in the ROW and, for such purpose, desires to locate,place, attach, install,operate, control, and maintain antennas and other related wireless communication equipment consistent with Small Wireless Facilities ("Equipment")in the ROW. C. The City,acting in its regulatory capacity to manage private use of the public ROW, v and Licensee previously entered into a Franchise Agreement pursuant to Ordinance No._ 1 2 11 (the"Franchise")governing certain uses of the ROW by Licensee. �/4 D. The Licensor will permit Licensee to locate, place, install, operate, control, and maintain Small Wireless Facilities on City-owned poles subject to the terms of this Agreement. E. If Licensee desires to replace a City-owned pole within the public ROW, subject to the City's Engineering Design and Construction and Small Wireless Facility Standards, Licensee will transfer ownership of the pole to the City in consideration of the City's limited,non-exclusive license authorizing Licensee to deploy a Small Wireless Facility on the pole. F. Licensee will compensate Licensor in exchange for a grant and right to use and physically occupy portions of the poles or other specified City-owned facilities and/or the ROW as provided in this Agreement. AGREEMENT 1. Definitions and Exhibits. 1.1. Definitions. For the purposes of this Agreement and all the attached Exhibits,the following terms,phrases, words and derivations have the following meaning: (a) Agreement means this Agreement for the Use of Licensor Property in Connection with the Operation of a Wireless Network. Revised January 4,2019 Gh-06Cr VAreJtss PCS,LL F 2_20r-am 1 1,3 (9)/ se fr•ber tet, zo t 7 (b) Attachment Fee or Pole Attachment Fee means that fee described in Section 4.1 of this Agreement. (c) City means the City of Auburn, Washington. (d) Code means Auburn's City Code. (e) Emergency 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 property from natural consequences, such as storms, earthquakes, and riots, as well as acts of terrorism,or wars. (f) Equipment means Small Wireless Facilities and other wireless communications equipment utilizing small cell technology that is specifically identified and described in each Small Wireless Facility Siting Application(as defined below). (g) Hazardous Substance means any substance, chemical, or waste that is identified as hazardous or toxic in any applicable federal,state,or local law or regulation,including but not limited to petroleum products and asbestos. (h) Interference means causing a disruption with communications systems within the City including emergency systems. of any kind with any emergency communication,or utility infrastructure or communications systems of the City. (i) Laws means all applicable statutes, constitutions, ordinances, resolutions, regulations,judicial decisions, rules, permits, approvals, or other applicable requirements of the Licensor or other governmental entity or agency having joint or several jurisdiction over Licensee's activities under this Agreement or having jurisdiction that is applicable to any aspect of this Agreement,including the Code,that are in force on date of the execution of this Agreement, and as they may be lawfully enacted, issued, or amended during the term of this Agreement. (j) Permit means a permit issued and described in accordance with Laws, which is used to regulate,monitor and control improvement,construction,or excavation activities, or other work or activity, occurring in or otherwise affecting the ROW. (k) Physical interference means where equipment, vegetation, or a structure causes reduced use of another's prior-mounted equipment, or an obstruction in a necessary line- of-sight path. (1) Municipal Facilities means those Licensor-owned poles and fixtures or facilities located within the ROW, including without limitation, streetlight poles and traffic signal poles,that are the subject of a Small Wireless Facility Siting and Construction Permit Application. 2 Net ���u���. �ort-[ess Pc S, L!_G fAI - Ooo 1 Cr�� or- e-11-Eembe,— qf2ot (m) Radio frequency interference means the radiation or conduction of radio frequency energy (or electronic noise)produced by electrical and electronic devices at levels that interfere with the operation of adjacent equipment. (n) Right(s)-of-Way(ROW)means the surface of and the space above and below the public roads, streets and alley right-of-way,other public ways of any type located and existing within the city limits of Auburn,Washington,whether or not improved. The term does not include other municipally owned and/or operated property, including,but not limited to:parks,municipal buildings, etc. (o) Small Wireless Facility Siting and Construction Permit Application means the form of the license granted by this Agreement, described in Section 2 below, and shown on Exhibit A. (p) Small Wireless Facility means a personal wireless services facility that meets each of the following qualifications: 1. The structure on which antenna facilities are mounted: a. is 50 feet or less in height,or b. is no more than 10 percent taller than other adjacent structures, or c. is not extended to a height of more than 50 feet or by more than 10 percent above its preexisting height as a result of the collocation of new antenna facilities; and 2. Each antenna associated with the deployment (excluding the associated equipment) is no more than three cubic feet in volume;and 3. All antenna equipment associated with the facility (excluding antennas) are cumulatively no more than 28 cubic feet in volume; and 4. The facility does not require antenna structure registration under Code of Federal Regulations, Title 47,Part 17; and 5. The facility is not located on Tribal lands,as defined under 36 CFR 800.16(c); and 6. The facility does not result in human exposure to radiofrequency radiation in excess of the applicable safety standards specified in 47 Code of Federal Regulations 1.1307(b). (q) Term means the period that this Agreement is in effect as described in Section 3.1 of this Agreement. 1.2. Small Wireless Facilities Siting and Construction Permit Application ("Application"). Exhibit A, the completed Small Wireless Facilities Siting and Construction Permit Application, is formally incorporated and made part of this Agreement by this reference. In the event of any conflict or ambiguity between this Agreement and the Exhibit(s)and any other agreement between Licensor and Licensee, this Agreement and the Exhibits, will govern. In the 3 Neu,' Cu4),Alo\,( Wrefess 1'C SI Ll_G Se k.r her &l 2019 oay -3c event of any conflict or ambiguity between this Agreement and the Exhibit(s), and any Application,the Application will govern. 2. Terms of License. 2.1. Scope. Licensor, acting in its proprietary capacity as the owner of poles in the ROW, grants to Licensee a nonexclusive license to use the City-owned poles identified in the Application,to attach, install, operate,maintain,upgrade,remove, reattach, reinstall,relocate and replace the Equipment that may be required or desired to operate a Small Wireless Facility. This grant is subject to the terms, conditions and other provisions set forth in this Agreement and the Application;to applicable provisions of the Code;and all applicable Laws. 2.2. Use of Licensor Property. Exhibit A allows Licensee to access, occupy, and use allocated available space on each of the poles identified as City-owned poles in Exhibit A to attach, install,operate,maintain,upgrade,remove,reattach,reinstall,relocate,and replace the Equipment, as identified in that Exhibit A solely for the purpose of Licensee operating a Small Wireless Facility. Licensee will obtain the appropriate permits and comply with all permitting requirements prior to accessing the ROW or the City-owned poles upon which Equipment is installed. 2.3. Repair and Emergency Work. In the event of an emergency,Licensee may commence repair and emergency response work as required under the circumstances. Licensee will notify the Licensor 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. Such notification shall include the Licensee's emergency contact phone number for the corresponding response activity. The Licensor may commence emergency response work,at any time,without prior written notice to the Licensee,but will notify the Licensee in writing as promptly as possible under the circumstances. Licensee will reimburse the Licensor for the Licensor's actual cost of performing emergency response work to Licensees facilities. 2.4 Alterations. If Licensee proposes to install,occupy, or use any poles or Equipment different in any way from the then-existing and approved Application, then Licensee will submit a new Application to the City. 3. Term of License Agreement; Cancellation; Removal or Abandonment at Expiration. 3.1. Agreement Term. This Agreement will be in effect for ten(10)years commencing on the effective date of this Agreement.Prior to expiration of this Agreement,Licensee may apply for renewal of this Agreement for two (2), additional five (5) year terms upon submission of the application specified under ACC 20.08 as it now exists or is amended within the timeframe set forth in that section for each additional five(5)year term. If the Franchise Agreement authorizing this License Agreement is revoked or is no longer valid for any reason,at any time during the term of this Agreement, or any subsequent renewals, this Agreement automatically terminates and the Licensee waives all claims, demands, suits, proceedings, losses, costs, or damages of every kind and description, including attorneys' fees and litigations expenses which may be made against or 4 IJ Cc, &(or V j re k PCS/ LLC W —000 2 (r- `.� / Sere w,be r R zo 19 ��" 19'c 4 o-F 1'1 incurred by the City, caused by, arising out of, or contributed to, in whole or in part, by reason of the Agreement termination. 3.2. Licensee Cancellation. Licensee may cancel this Agreement, in whole or as to any one or more individual City-owned pole locations, before the date of expiration by providing the Licensor with ninety (90) days express written notice of cancellation. Any prepaid Pole Attachment Fee will be retained by Licensor. 3.3. Abandonment. If Licensee abandons the use of a City-owned pole for a period of one hundred and eighty days(180)or fails to pay Licensor as required by the Application and Pole Attachment Fee,the Equipment will be removed by the Licensee at the expense of Licensee subject to all permitting requirements. Licensee may ask the Licensor in writing to abandon in place, in whole or in part, all or any part of the Equipment. In the event Licensee is unable or refuses to remove such Equipment when requested by Licensor, Licensor may authorize removal and Licensee will be responsible for all costs incurred for such removal. 4. Fees and Charges. Licensee is responsible for the payment of all fees and charges in connection with Licensee's performance under this Agreement, including the following: 4.1. Pole Attachment Fee. Within 30 calendar days of City's approval of the Application or the execution date of this Agreement,whichever comes later, Licensee will pay to Licensor an annual attachment fee equal to$270.00 for the use of each City-owned pole identified in the Application. 4.2 Leasehold Excise Tax. Licensee will pay to Licensor the leasehold excise tax in the amount of 12.84%of the annual attachment fee or the then current rate as determined by the Washington State Department of Revenue.The leasehold excise tax is a separate obligation of the Licensee from the pole attachment fee. The leasehold excise tax is due at the time of the pole attachment fee. (a) Licensee shall submit a letter from the Department of Revenue with the execution of this Agreement stating that they are exempt from Leasehold Excise Tax if Licensee wishes to exert exemptions as a public utility pursuant to chapter 84.12 RCW and is exempt from the taxes imposed pursuant to RCW 82.29A.130(1). 4.3 Payment of fees. Licensee will pay all reoccurring annual fees by January 1 each year following approval of the Application, for payment covering that calendar year. A failure of Licensee to pay the annual pole attachment fee by this date will result in the abandonment of the facility. The annual fee paid per Municipal Facility location is non-refundable and will not be prorated. Attachment Fees must be paid by check, cashier's check, or other certified funds. Electronic payments will not be permitted. For any party to whom rental payments are to be made, Licensor or any successor in interest of Licensor agrees to provide to Licensee (i) a completed, current version of Internal Revenue Service Form W-9, or equivalent; and(ii)complete and fully executed state and local withholding forms if required. Licensee must pay to Licensor interest, compounded monthly, at the rate of two percent (2%)per month or the maximum rate permitted by applicable law, whichever is greater, on any unpaid fees or other amounts due under this 5 NP�u1 cc n�v�lo�r i/\/‘.e[es5 42C S, LLC- Se 4eret ber 9,2 0\`l pane 5of 11" Agreement,from the date due until the date paid. Payment of such interest does not excuse or cure any breach of or default under this Agreement by Licensee. 4.4 Permit. No payment is collected under this Agreement for any Permit issued in connection with the installation of Equipment on any City-owned poles. Fees and charges for any required permits are set forth in the Application. 4.5 Taxes. Licensee will pay all applicable city, county, and state taxes levied, assessed,or imposed by reason of this Agreement or those related to any of Licensee's Equipment and/or provided services. In addition, Licensor will invoice and Licensee will pay all state, local, and federal taxes and franchise, tariff, and agreement fees (if any) imposed upon Licensor with respect to its activities contemplated by this Agreement. In the event that any authority with jurisdiction imposes a tax on any aspect of the transactions contemplated including but not limited to taxes imposed pursuant to Chapter 82.29A of the Revised Code of Washington,Licensee agrees to indemnify, defend, and hold harmless Licensor from and against such taxes or other taxes and any penalties and interest or costs associated with any attempts to collect the same. 4.6 Payments Made. All fees and/or additional payments will be payable to Licensor at the following address or to such other persons or at such other places as Licensor may designate in writing: City of Auburn Attn:Finance Dept. ke o , IN I F L 1 1 -coo 25 West Main Street GI ' uV Auburn,WA 98321 5. Basic Design and Installation Requirements for Using City-Owned Poles; Replacement of City-Owned Poles. The basic design of the Equipment will be described in each Application. All of Licensee's construction and installation work for its Equipment on the City-owned poles will be performed at Licensee's sole cost and expense and in a good and workmanlike manner and promptly completed. When Licensee and Licensor have agreed on an existing City-owned pole location as a suitable site for Licensee's Equipment, but the existing Licensor-owned pole needs to be replaced to accommodate the Equipment,then Licensee will pay all costs related to removing and replacing the Licensor-owned pole, including but not limited to installation of the replacement pole (the "Replacement Pole"), transfer or replacement of the streetlight fixtures, replacement of the traffic signal pole and all appurtenances, and/or transfer or replacement of all other items attached to the existing Licensor-owned pole to the Replacement Pole, and removal and salvage of the existing Licensor-owned pole to the Licensor. In replacing any City-owned pole, the Licensee will replace the pole and attached lighting to meet current City standards.Payment of the pole replacement costs does not provide Licensee with any ownership interest in the Replacement Pole. Licensor will be deemed to own the original Licensor-owned pole and the Replacement Pole. The installation or attachment of the Equipment using the Replacement Pole will be at Licensee's sole cost and expense. 6. Common Conditions or Requirements Applicable to Small Wireless Facilities Installed Under this Agreement. 6 Neel-) G.inufor kAAret Pcc/ LLc: wFL29 -Coo2 q'( 2_0(? t)o- GAF i 6.1. Equipment Locations. For each installation, Licensee must submit an Application with plans and specifications for Licensor review and approval. If Licensee desires to change or add new locations, Licensee will submit a proposed Application indicating the additional City- owned poles that it wishes to use. 6.2. Damage to Licensor Property. If Licensee damages or disturbs the surface or subsurface of any ROW or adjoining property, pole, streetlight fixture, traffic signal, or other public improvement, in the exercise of the rights granted through this Agreement, Licensee will promptly, at its own expense, and in a manner acceptable to Licensor, repair the damage or disturbance in a good and workmanlike and prompt manner. Damage or disturbance to any Licensor traffic signal poles or traffic signal equipment will constitute an Emergency and will be repaired immediately by the Licensee. If Licensee does not timely complete all necessary repairs to the City Engineer's satisfaction,Licensor reserves all rights to do so at Licensee's expense. 6.3. Public Emergency. In the event of an emergency or to protect the public health or safety, prior to the Licensor accessing or performing any work on a City-owned pole on which Licensee has installed Equipment,Licensor may require Licensee to deactivate such Equipment if any of Licensor's employees or agents must move closer to the Equipment than the FCC recommended minimum distance. In such case, Licensor will contact Licensee at (800) 832-6662 to request immediate deactivation. 6.4. Pole Replacement. If a City-owned pole needs replacement,relocation,or repair in the City Engineer's discretion, Licensee will have the right to immediately replace the same at the Licensee's sole cost. If Licensee fails to replace,relocate,or repair the City-owned pole within 90 calendar days of the Licensor providing the Licensee with notice that the pole requires replacement, relocation, or repair, the Licensor may choose to replace the pole in any manner within the City Engineer's discretion including (a) replacing the pole according to current City design standards or (b) replacing the pole with a temporary pole. If the pole replacement, relocation, or repair is due to the fault of the Licensee(s),then the Licensee(s)will be required to reimburse the Licensor for the costs of the pole replacement or repair. Licensee will be responsible for all clean-up at Licensee's cost or, if in the City Engineer discretion it is determined that it is in the interest of the public or the City for the Licensor to replace or repair the pole, Licensor will contact Licensee to pick up the damaged equipment and Licensee can reinstall its equipment once the replacement pole is installed by the Licensor. Licensor has no obligation to install Licensee's Equipment. 6.5. Removal and Relocation. Within ninety (90) calendar day of notice, Licensee agrees to relocate,remove,or reroute its facilities if required by law and in the manner prescribed by the City Engineer at no expense or liability to the Licensor,except as may be required by RCW Chapter 35.99. Licensee agrees to protect and hold harmless the City from any customer or third- party claims for service interruption or other losses in connection with any such change,relocation, abandonment, roadway improvements, or vacation of the Public Right-of-Way. If securement, adjustment or relocation of the Licensee Facilities is necessitated by a request from a party other than the Licensor,that party will pay the Licensee the actual costs. 7 ��} Ct���ttor' �J\�ek5S rCS,LLC ,e car20f �% 6.6. Non-exclusiveness. The rights and privileges granted to Licensee under this Agreement are not exclusive. 6.7. Non-interference. The following provisions apply to ensure and/or avoid interference (both physical interference and radio frequency interference) resulting from Licensee's installation, operation and/or maintenance of its Equipment: (a) RF Interference. Licensee will ensure that the Equipment will not cause radio frequency interference with Licensor traffic, public safety or other communications signal equipment. (b) Existing Uses. Licensee will not interfere in any manner with the uses of Licensor property including ROW, and including sanitary sewers,water mains, storm drains, gas mains,poles,aerial and underground electric and telephone wires, street lighting,cable television, and other utility and municipal property without the express written approval of the owner(s) of the affected property or properties. (c) Licensor Interference. Licensor will maintain its City-owned pole in such reasonable manner as will best enable Licensor to fulfill its own service requirements or obligations and Licensor specifically disclaims any obligation to maintain or repair the City-owned pole for any purpose other than its own service requirements. (d) Remedies. Without limiting any other rights or remedies, if interference occurs and continues for a period in excess of 48 hours following notice to the interfering party via telephone to Licensee's Operations Center at(800) 832-6662 or to Licensor at(253)931-3048 the Licensor may require Licensee or any other user to reduce power or cease operations of the interfering equipment until the interference is cured. The Parties acknowledge that there will not be an adequate remedy at law for noncompliance and the Licensor will have the right to equitable remedies such as, without limitation, injunctive relief and specific performance as well as all available remedies under the Franchise Agreement. 6.8 Use of City Conduit System, Power Sources, and Additional City Infrastructure. This Agreement may be amended to address Licensee's use of City conduit system,power sources and additional City infrastructure beyond poles. Licensee will submit to the City Engineer design information with the location of the proposed City infrastructure and power source(s)to be used or occupied. When requesting to utilize City power source(s)the Licensee will provide load and • other information as deemed necessary by the City Engineer to determine if the power usage is feasible. The City Engineer will determine if there is availability of excess capacity in the conduit system,power source,or additional City infrastructure and will determine the appropriate use and occupancy fee or other consideration to be paid or provided by Licensee to Licensor for of the conduit system,power source,or additional infrastructure(not including the pole). 7. Damage to Licensee's Equipment. In the event of any damage to Licensee's Equipment, Licensor will have no liability or responsibility to repair the same unless such damage arose from 8 New Gt,..51/4Aw,re(ess toCS, LL-C- W F t_?9 -pool uh)L_ Se?-le bec c1( 2-019 a^.e g of a--`� the negligence or willful misconduct of Licensor, its employees, agents, or contractors; provided however, in such case,Licensor's liability will be limited to the cost to repair or replace the same. In the event that Licensee damages another's Equipment, Licensor will have no liability or responsibility to repair the same. 8. Title and Ownership. 8.1. Design of Replacement Pole. In the event that an existing Licensor-owned pole needs to be replaced to accommodate the Licensee's Equipment, Licensee will design, construct, and install the replacement pole, in accordance with the Auburn Municipal Code and the City Design and Construction Standards. 8.2 Ownership of All Poles. Title to the pole, whether original City-owned pole or replacement of a City-owned pole,will be vested solely in Licensor. If Licensee replaces the City- owned original pole, Licensee will notify the Licensor of completion of the replacement. The Licensor will inspect the City Needed Infrastructure within 30 days of receipt of notice of completion and provide a list of any deficient items. Licensee will correct any such deficiencies at its own cost within 30 days of being notified by the Licensor. When the Licensor issues a notice of final acceptance of the City Needed Infrastructure,the Licensee will transfer ownership of the replacement pole to the Licensor via a recorded Bill of Sale,within 30 calendar days from the date of notice. 8.3 Warranty. The Licensee will warrant that the replacement pole will be free from material and workmanship defects and deficiencies for 1-year from the recording date of the Bill of Sale. Licensee accepts all City-owned poles in "AS IS" condition, without representation or warranty of any kind by Licensor, or any Licensor officer, agent, or employee, and subject to all applicable laws, rules and ordinances governing the use of the Licensor poles or Licensor for Licensee's intended purpose. 8.4 Ownership of Licensee's Equipment. Ownership of the Licensee's Equipment, exclusive of the City-owned pole(original or replacement)used for support,but including ground mounted equipment,will remain with Licensee and is Licensee's personal property and equipment, and not fixtures or improvements attached to the land. 8.5. No Ownership in Licensor Property. This Agreement does not create or vest in Licensee any ownership or property rights in any portion or elements of the City-owned pole,including any replacement poles, the underlying real property on which any Licensor-owned poles or any Equipment is located,or any portion of the ROW. Licensee acknowledges that this Agreement does not constitute or create a leasehold interest or right to the benefit of any Licensor property. 9. Maintenance and Repair. Subject to Section 6.2,Licensor will maintain and keep the City- owned pole containing Equipment in good condition and in accordance with Licensor's standard maintenance requirements, at its sole cost and expense. Licensee will keep the Equipment and other improvements by Licensee on the City-owned pole,if any,in good repair but is not obligated to repair or maintain any City-owned pole in a more frequent manner than Licensor would normally exercise. 9 NeA,,l Q�S/ L LC- CLZ9 -0001 Se(-le mfr (Z©I 7 0aoz 9 0- 1 10. Hazardous Substances. Licensee agrees that Licensee, its contractors, subcontractors,and agents,will not use,generate,store,produce,transport or dispose any Hazardous Substance in violation of applicable Laws and the City's regulatory permits on, under, about or within the area of a City- owned pole or the ROW in which it is located. Except to the extent of the negligence or intentional misconduct of Licensor,Licensee will pay,indemnify,defend,and hold Licensor harmless against and to the extent of any loss or liability incurred by reason of any Hazardous Substance produced,disposed of, or used by Licensee pursuant to this Agreement. Licensee will ensure that any on-site or off-site storage, treatment, transportation, disposal or other handling of any Hazardous Substance will be performed by persons who are properly trained, authorized, licensed and otherwise permitted to perform those services. The Parties recognize that Licensee is only using a small portion of the ROW and that Licensee will not be responsible for any environmental condition or issue except to the extent resulting from Licensee's activities. 11. Indemnity. The Licensee shall defend, indemnify, and hold the City and its officers, officials, agents, contractors and employees, and volunteers harmless from any and all costs, claims, injuries, damages, losses, suits, or liabilities including attorneys' fees arising out of or in connection with the Licensee's performance (including Licensee's agents' or representatives' performances) under this Agreement, except to the extent such costs, claims, injuries, damages, losses, suits,or liabilities are caused by the sole negligence or willful misconduct of the City or its officers, officials, agents and employees. Should a court of competent jurisdiction determine that this Agreement is subject to RCW 4.24.115,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 Licensee and the City, its officers, officials or employees, and volunteers, the Licensee's liability hereunder shall be only to the extent of the Licensee's negligence. The Licensee shall hold the City harmless from any liability arising out of or in connection with any damage or loss to the Licensee Equipment caused by maintenance and/or construction work performed by, or on behalf of, the City within the Rights-of-Way, or on any City-owned pole 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 willful misconduct of the City,or its employees,contractors and agents performing such work. The Licensee acknowledges that neither the City nor any other public agency with responsibility for firefighting,emergency rescue,public safety or similar duties within the City has the capability to provide trench, close trench or confined space rescue. The Licensee, and its agents, assigns, successors, or contractors, shall make such arrangements as Licensee deems fit for the provision of such services with regard to work performed by or at the direction of Licensee. The Licensee shall hold the City harmless from any liability arising out of or in connection with any damage or loss to the Licensee for the City's failure or inability to provide such services, and, the Licensee shall indemnify the City against any and all third-party costs, claims, injuries, damages, losses, suits,or liabilities based on the City's failure or inability to provide such services. Acceptance by the City of any work performed by the Licensee shall not be grounds for avoidance of this section. It is further specifically and expressly understood that the indemnification provided constitutes the Licensee's waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes 10 \NC tel-cool- - ...," � 2-029 .°-t- Z i Pawl of this indemnification. This waiver has been mutually negotiated by the parties. The provisions of this section shall survive the expiration or termination of this Agreement. 12. Insurance Requirements. A. The Licensee will procure and maintain for the duration of this Agreement, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work by the Licensee,its officers,officials,and employees in the amounts and types set forth below: 1. Commercial Automobile Liability insurance covering all owned, non- owned, hired, and leased vehicles with a combined single limit for bodily injury and property damage of$1,000,000.00 per accident including contractual liability. Coverage will be written on Insurance Services Office(ISO)form CA 00 01, or a substitute form used by Licensee,so long as it provides equivalent liability coverage. 2. Commercial General Liability insurance ISO Form CG 00 01 with limits of $5,000,000.00 each occurrence for bodily injury and property damage and, $5,000,000.00 general aggregate including $5,000,000.00 products-completed operations aggregate limit, premises- operations, independent contractors, products-completed operations, personal injury and advertising injury and contractual liability coverage. There shall be no exclusion for liability arising from explosion, collapse, or underground property damage. The City shall be included as an additional insured as their interest may appear under the Licensee's Commercial General Liability insurance policy with respect to the work performed under this Agreement by means of a blanket additional insured endorsement using ISO Additional Insured Endorsement for Ongoing Operations, CG 20 10 10 01 and Additional Insured Completed Operations Endorsement, CG 20 37 10 01, or substitute endorsements utilized by Licensee providing equivalent coverage. 3. Professional Liability insurance with limits of$1,000,000.00 per claim and aggregate covering the negligence, acts, errors, and/or omissions of Licensee in the performance of professional services under this Agreement. 4. Workers' Compensation coverage (or qualified self-insurance) as required by the Industrial Insurance laws of the State of Washington. B. The insurance policies will: 1. Provide that the Licensee's insurance coverage will be primary insurance as to any insurance of the City. Any insurance,self-insurance,or insurance pool coverage maintained by the City will be in excess of the Licensee's insurance and will not contribute to it. 2. Upon receipt of appropriate notice from its insurer(s), Licensee shall provide the City with thirty(30)days prior written notice of cancellation or nonrenewal of any of the required insurance policies that are not replaced. 11 NiczeidGutlittie- (kJt re.tds J CS r L LC- IAA-04 Cc° „ber 9t 2-o1`f / 1/4-3c. 2 Z of 1 fr/ • C. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. D. Verification of Coverage. Licensee shall furnish the City with documentation of insurer's A.M. Best rating and with original certificates and a copy of amendatory endorsements, including but not necessarily limited to the blanket additional insured endorsements evidencing the insurance requirements of Licensee before commencement of the work. E. Licensee shall have the right to self-insure any or all of the above-required insurance. Any such self-insurance is subject to approval by the City. F. Licensee's maintenance of insurance as required by this Agreement will not be construed to limit the liability of Licensee to the coverage provided by such insurance,or otherwise limit the City's recourse to any remedy to which the City is otherwise entitled at law or in equity. 13. Assianment/Subletting. This Agreement and each license granted is personal to Licensee and for Licensee's use only. Licensee will not lease, sublicense, share with, assign, convey or resell to others any such space or rights granted by the Licensor, without the express written consent of Licensor. Licensee will apply for assignment or transfer of this Agreement concurrently with application for assignment or transfer of the Franchise Agreement. 14. Default and Termination. If the Licensee fails to comply with any of the provisions of this Agreement, the City may, at its discretion, provide Licensee with written notice to cure the breach within 30 days of notification. If the City determines the breach cannot be cured within 30 days or the breach is not cured within 30 days, the City may specify a longer cure period, and condition the extension of time on Licensee's submittal of a plan to cure the breach within the specified 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 specified time,or the Licensee does not comply with the specified conditions,the City may, at its discretion, either(1) revoke this Agreement with no further notification (2) terminate Licensee's use of the specific City-owned pole to which the default(s)pertain at the discretion of the City Engineer or(3)claim damages of Two Hundred Fifty Dollars ($250.00)per day against the financial guarantee set forth in the Franchise Agreement for every day after the expiration of the cure period that the breach is not cured. Should the City determine that Licensee is acting beyond the scope of permission granted herein for Licensee facilities, the Licensor reserves the right to cancel this Agreement and require the Licensee to apply for, obtain, and comply with all applicable permits, franchises, or other permissions for such actions,and if the Licensee's actions are not allowed under applicable federal and state or City laws,to compel Licensee to cease such actions. 15. Surrender. Within forty-five(45)days of the expiration or termination of this Agreement, Licensee must remove all Equipment attached or ground mounted, at its sole expense, repair any damage to the City-owned pole or the ROW caused by such removal, and restore the City-owned poles to the condition in which they existed prior to the installation of the Equipment or better (whether attached or ground mounted), reasonable wear and tear and loss by casualty or other 12 Net/kJ nslay-- lam,rete%1 RS; LC WFi_�9- 0001 Gly S-ed: Eember `'',zoL9 ��. n 77 .-:4 1 'i causes beyond Licensee's control excepted. Failure to timely surrender, will result in Licensor removing the Equipment at the expense of Licensee or Licensor may permit the abandonment of the Equipment in place,at Licensor's discretion. 16. Notices. Any notice,request,demand,statement,or consent required or permitted to be given by either party to the other must be in writing signed by or on behalf of the party giving the notice and addressed to the other at the address as set forth below. Any such notice will become effective upon receipt by certified mail, confirmed delivery by overnight courier, or the date stamped received by the City. Any communication made by e-mail or similar method will not constitute notice pursuant to this Agreement. Licensee New Cingular Wireless PCS,LLC Attn: Network Real Estate Administration Site No. City of Auburn Wireless Master Pole Attachment MLA(WA) 1025 Lenox Park Blvd NE, 3rd Floor Atlanta, GA 30319 With a copy to: New Cingular Wireless PCS, LLC Attn: AT&T Legal Dept-Network Operations Site No. City of Auburn Wireless Master Pole Attachment MLA(WA) 208 S.Akard Street Dallas,TX 75202-4206 Licensor City of Auburn City Clerk 25 West Main Street Auburn,WA 98001-4998 Phone: (253)931-3039 With copy to: Right-of-Way Specialist Public Works Department-Transportation City of Auburn 25 West Main Street Auburn,WA 98001-4998 Telephone: (253)931-3010; Fax: (253) 931-3048 Each party may change its address for the purpose of this Agreement, by providing a written notice to the other party. 13 NetJJ C,s5u oto- re1eecS, Z_LG w1 -cool \./4‘.A15ekembQr Y� 17. Miscellaneous. 17.1. Entire Agreement. This Agreement constitutes the entire agreement and understanding between the Parties,and supersedes all negotiations,understandings or agreements. Any amendments to this Agreement must be in writing and executed by both Parties. 17.2. Severability. If any provision of this Agreement is invalid or unenforceable with respect to any Party, the remainder of this Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, will not be affected and each provision of this Agreement will be valid and enforceable to the fullest extent permitted by law. 17.3. Governing Law. This Agreement will be governed by the laws of the State of Washington without regard to choice of law rules and the Parties specifically agree that venue will be exclusively in King County, Washington. 17.4. Change of Law. If any federal or state laws or regulations or any binding judicial law that governs any aspect of the rights or obligations of one or more parties under this Agreement changes after the Effective Date and such change makes any aspect of such rights or obligations inconsistent with the then-effective federal or state laws, regulations or binding judicial interpretations,then the Parties agree to promptly amend the Agreement as reasonably required to accommodate and/or ensure compliance with any such legal or regulatory change. 17.5. Authority to Execute. Any individual executing this Agreement on behalf of or as representative for a corporation or other person,partnership or entity,represents and warrants that he or she is duly authorized to execute and deliver this Agreement on behalf of such party,and this Agreement is binding upon such party in accordance with its terms. 17.6. No Waiver. A Party is not excused from complying with any of the terms and conditions of this Agreement by any failure of a Party on any one or more occasions to insist upon or to seek compliance with any such terms or conditions. 17.7. Force Majeure. With respect to any provisions of this Agreement,the violation or non-compliance of any term of this Agreement which could result in the imposition of a financial penalty, liquidated damages, forfeiture or other sanction upon a Party, such violation or non- compliance will be excused where such violation or non-compliance is the result of acts of God, war,civil disturbance, strike or other labor unrest,or other events, if the occurrence of which was not reasonably foreseeable by such Party and is beyond such Party's reasonable control. 17.8. Limitation of Liability. Except for indemnification pursuant to Section 12,'neither party will be liable to other, or any of their respective agents, representatives, employees for any lost revenue, lost profits, loss of technology, rights or services, incidental, punitive, indirect, special or consequential damages, loss of data, or interruption or loss of use of service, even if advised of the possibility of such damages, whether under theory of contract, tort (including negligence), strict liability or otherwise. 14 Ne1ikl Ct^S"lam I J\re-le$.5 fCS,u C- (A)F1-19—000/ - tUFL19—oox1 Sepic w►'be,- 9 ZO 19 At of 17 IN WITNESS WHEREOF,the parties have executed this Agreement as of this 51*day of not/t $ j,r , 2019(the"Execution Date"). LICENSOR: LICENSEE: By: 4%4ev't4/1/) L-Yl„JBy: Mkt Print Name. , Print Name: ,J E- •��. Its: r7vbli t. fiJ0, kG 1:Nre, jr Its: Attest: Appr \ to form: Shawn Campbell, City Clerk Steve Gross, City Attorney MCuJ (trtAcs5 hcs, LLQ 15 W l_7 -oco 1 sy-e►nber � er - p1S o-F i 1 v� Licensee to have Agreement notarized: STATE OF OREGON ) )ss. County of Washington ) The undersigned Notary Public hereby certifies on this 12• day of uSt- 2019,personally appeared before me Wayne Wooten(name), Director of New Cingular Wireless PCS, LLC for AT&T Mobility Corporation,title),to me known to be the individual(s) described in and who executed the within instrument, and acknowledged that he/she signed and sealed the same as his/her free and voluntary act and deed, for the purposes and uses therein mentioned, and on oath stated that he/she was duly authorized to execute said document on behalf of ti?„tk; Glut(kr S,L`.G In Witness Whereof I set my hand and affixed my official seal the day and year first above written. !w • i, OFFICIAL STAMP otary Public in and for the State of Oregon, ROCHELLE JOHNSON HUNTER `may NOTARY PUBLIC-OREGON Residing at AT&T Tualatin, OR Office COMMISSION NO.986443 MY COMMISSION EXPIRES APRIL 11,2023 My commission expires:April 11,2023 16 kvo Ci.nju v CA)\ (es5 • I LLC— INFL1`I '©00j_ ✓ q� 2_o19 n__. 4 r ..0 ? '1 EXHIBIT A Small Wireless Facility Siting Application 17 Neuf CtRSk A- ,rete55 Pc- LLC- WFL tcl— ®ooh Se epvttotir 4,'2-01°I of 21