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HomeMy WebLinkAbout6887 ORDINANCE NO. 6887 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, GRANTING TO SPRINT COMMUNICATIONS COMPANY, L.P. A DELAWARE CORPORATION, A FRANCHISE FOR TELECOMMUNICATIONS. WHEREAS, Sprint Communications Company, L.P ("Franchisee") has applied to the City of Auburn ("City") for a non-exclusive Franchise for the right of entry, use, and occupation of certain public ways within the City, expressly to install, construct, erect, operate, maintain, repair, relocate and remove its facilities in, on, over, under, along and/or across those public ways; and WHEREAS, following proper notice, the City Council held a public hearing on Franchisee's request for a Franchise; and WHEREAS, based on the information presented at such 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 Franchisee. 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 Franchisee general permission to enter, use, and occupy the Franchise Area specified in Exhibit "A", attached hereto and incorporated by reference. Franchisee may locate the Franchisee's Facilities within the Franchise Area subject to all applicable laws, regulations, and permit conditions. B. The Franchisee is authorized to install, remove, construct, erect, operate, maintain, relocate, upgrade, replace, restore, and repair Franchisee's Facilities to provide Franchisee's Services in the Franchise Area. C. This Franchise does not authorize the use of the Franchise Area for any facilities or services other than Franchisee Facilities and Franchisee Services, and it extends no rights or privilege relative to any facilities or services of any type, including Franchisee Facilities and Franchisee Services, on public or private property elsewhere within the City. D. This Franchise is non-exclusive and does not prohibit the City from entering into other agreements, including Franchises, impacting the Franchise Ordinance No. 6887 Franchise Agreement No. FRN21-0003 August 29, 2022 Page 1 of 18 Area, for any purpose that does not interfere with Franchisee'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, public ways, or property. This Franchise will be subject to the power of eminent domain, and in any proceeding under eminent domain, the Franchisee 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 public 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 Franchisee Facilities, the City shall reserve an easement for public utilities within that vacated portion, pursuant to Chapter 35.79.030 RCW, within which the Franchisee may continue to operate any existing Franchisee Facilities under the terms of this Franchise for the remaining period set forth under Section 4. G. The Franchisee 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. Definitions For the purpose of this agreement and enforcement thereof, definitions of words and phrases shall be in accordance with Auburn City Code 20.02.020. In addition, the following definitions apply: A. "ACC" means the Auburn City Code. B. "Franchise Area" means the public ways as specified in Exhibit "A". Franchise Area does not include private property located outside of the public way which the Franchisee may utilize, lease, or otherwise use for placement of Franchisee Facilities with authorization or other permissions from third parties, and including any necessary permits from any regulatory authority. C. "Franchisee's Facilities" means fiber optic and broadband communications services constructed and operated within the Franchise Area including all cables, wires, conduits, ducts, pedestals, and any associated converter equipment or other items necessary for Telecommunications Services as defined in Chapter 35.99.010(7) RCW, that are located in the Franchise Area. Franchisee's Facilities do not include facilities used to provide wireless services, including antennas or other equipment, appliances, attachments and Ordinance No. 6887 Franchise Agreement No. FRN21-0003 August 29, 2022 Page 2 of 18 appurtenances associated with wireless telecommunications facilities. Franchisee's facilities do not include small wireless facilities, microcell, minor facility, or small cell facilities, as defined in Chapter 80.36.375 RCW. Franchisee's facilities do not include any facilities that are not located within the Franchise Area or that are covered under a separate Franchise Agreement or agreement. D. "Franchisee's Services" means any telecommunications service, telecommunications capacity, or dark fiber, provided by the Franchisee using Franchisee's Facilities in the Franchise Area, including, but not limited to, the transmission of voice, data or other electronic information, or other subsequently developed technology that carries a signal over fiber optic cable. Franchisee's Services will also include non-switched, dedicated and private line, high capacity fiber optic transmission services to firms, businesses or institutions within the Franchise Area and other lawful services not prohibited by this Ordinance However, Franchisee's Services will not include the provision of "cable services", as defined by 47 U.S.C. §522, as amended, for which a separate franchise would be required. Section 3. 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 is 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. City: Right-of-Way Specialist, Public Works Department - Transportation City of Auburn 25 West Main Street Auburn, WA 98001-4998 Telephone: (253) 931-3010; with a copy to: City Clerk City of Auburn 25 West Main Street Auburn, WA 98001-4998 Franchisee: Sprint Communications Company L.P. Mailstop: KSOPHT0101-Z2040 6220 Sprint Parkway Overland Park, KS 66251-2650 Attn: Manager, Wireline Real Estate Telephone: 913-315-3229 Email: ROWRenewals@t-mobile.com Ordinance No. 6887 Franchise Agreement No. FRN21-0003 August 29, 2022 Page 3 of 18 With a Copy to: Sprint Communications Company L.P. do T-Mobile Attn: Managing Attorney, Real Estate 12920 SE 38th Street Bellevue, Washington 98006 B. Any changes to the above-stated Franchisee information shall be sent to the City's Right-of-Way Specialist, Public Works Department — Transportation Division, with copies to the City Clerk, referencing the title of this Agreement. C. The above-stated Franchisee voice telephone numbers shall be staffed at least during normal business hours, Pacific time zone. The City may contact Franchisee at the following number for emergency needs: 800-877-6627, Option 1, provided, however, that the use of such phone number shall not constitute notice pursuant to the term of this Agreement. Section 4. Term of Agreement A. This Franchise shall run for a period of five (5) years, from the date of Franchise Acceptance as described in Section 5 of this Agreement. Franchisee may apply for renewal of this Franchise for one additional five year term by filing a complete application not less than 180 days before expiration of this Franchise following the process specified under ACC 20.04 as it now exists or is amended. B. Automatic Extension. If the Franchisee fails to formally apply for a new franchise agreement prior to the expiration of this Franchise's term or any extension thereof, this Franchise automatically continues month to month until a new franchise agreement is applied for and approved under the then current process or until either party gives written notice at least one hundred and eighty (180) days in advance of intent to cancel this Franchise. C. Notwithstanding the above provisions, Franchisee may terminate this Franchise at any time with 180 days' written notice. Such termination requires removal of Franchisee's Facilities under ACC 20.02.220. Section 5. Acceptance of Franchise A. This Franchise will not become effective until Franchisee files with the City Clerk (1) the Statement of Acceptance (Exhibit "B"), (2) all verifications of insurance coverage specified under Section 16, (3) the financial security specified in Section 17, and (4) payment of any outstanding application fees required in the City Fee Schedule. These four items will collectively be the "Franchise Ordinance No. 6887 Franchise Agreement No. FRN21-0003 August 29, 2022 Page 4 of 18 Acceptance". The date that such Franchise Acceptance is filed with the City Clerk will be the effective date of this Franchise. B. If the Franchisee fails to file the Franchise Acceptance with the City Clerk within thirty (30) days after the effective date of the ordinance approving the Franchise as described in Section 28 of this Agreement, the City's grant of the Franchise will be null and void. Section 6. Construction and Maintenance A. The Franchisee shall apply for, obtain, and comply with the terms of all permits required under applicable law for any work done within the City. Franchisee will comply with all applicable City, State, and Federal codes, rules, regulations, and orders in undertaking such work. B. Franchisee agrees to coordinate its activities with the City and all other utilities located within the public way within which Franchisee is undertaking its activity. C. The City expressly reserves the right to prescribe how and where Franchisee's Facilities will be installed within the public way and may require the removal, relocation and/or replacement thereof in the public interest and safety at the expense of the Franchisee as provided for in Chapter 35.99 RCW. D. Before beginning any work within the public way, the Franchisee will comply with the One Number Locator provisions of Chapter 19.122 RCW to identify existing utility infrastructure. E. Tree Trimming. Upon prior written approval of the City the Franchisee shall have the authority to trim trees upon and overhanging streets, public ways and places in the Franchise Area so as to prevent the branches of such trees from coming in physical contact with the Franchisee's Facilities. Franchisee shall be responsible for debris removal from such activities. If such debris is not removed within 24 hours, the City may, at its sole discretion, remove such debris and charge the Franchisee for the cost thereof. 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 other permits as necessary from the city. Section 7. Trench Repair for Street Restorations. A. At any time during the term of this Franchise, if a Franchisee Facility or trench within the Franchise Area causes a street to crack, settle, or otherwise fail, the City will notify Franchisee of the deficiency and Franchisee agrees to Ordinance No. 6887 Franchise Agreement No. FRN21-0003 August 29, 2022 Page 5 of 18 restore the deficiency and repair the damage within thirty (30)days of written notice by the City. B. For purposes of the Section, "street" shall mean all City owned improvements within a public way, including, but is not limited to, the following: pavement, sidewalks, curbing, above and below-ground utility facilities, and traffic control devices. Section 8. Repair and Emergency Work In the event of an emergency, the Franchisee may commence repair and emergency response work as required under the circumstances. The Franchisee will 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 Franchisee's emergency contact phone number for corresponding response activity. The City may commence emergency response work, at any time, without prior written notice to the Franchisee, but will notify the Franchisee in writing as promptly as possible under the circumstances. Franchisee will reimburse the City for the City's actual cost of performing emergency response work to the extent such emergency response work is required as a direct result of Franchisee's Facilities. Franchisee will reimburse the City for Franchisee's proportionate share of any direct and non- direct emergency response cost incurred by the City where the Franchisee's Facilities are determined by the City to be a contributing factor to such emergency response work. Section 9. Damages to City and Third-Party Property Franchisee agrees that if any of its actions, or the actions of any person, agent, or contractor acting on behalf of the Franchisee under this Franchise impairs or damages any City property, survey monument, or property owned by a third-party, Franchisee will restore, at its own cost and expense, the property to a safe condition. Upon returning the 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). All repair work shall be performed and completed to the satisfaction of the City Engineer. Section 10. Location Preference A. Any structure, equipment, appurtenance or tangible property of a utility or other franchisee, other than the Franchisee's, which was installed, constructed, completed or in place prior in time to Franchisee's application for a permit to construct or repair Franchisee's Facilities under this Franchise shall have Ordinance No. 6887 Franchise Agreement No. FRN21-0003 August 29, 2022 Page 6 of 18 preference as to positioning and location with respect to the Franchisee's Facilities. However, to the extent that the Franchisee's Facilities are completed and installed before another utility or other franchisee's submittal of a permit for new or additional structures, equipment, appurtenances or tangible property, then the Franchisee's Facilities will have priority. These rules governing preference shall continue when relocating or changing the grade of any City road or public way. A relocating utility or franchisee will not cause the relocation of another utility or franchisee that otherwise would not require relocation. This Section will not apply to any City facilities or utilities that may in the future require the relocation of Franchisee's Facilities. Such relocations will be governed by Section 11 and Chapter 35.99 RCW. B. Franchisee will 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; provided, that for development of new areas, the City, in consultation with Franchisee and other utility purveyors or authorized users of the public way, will develop guidelines and procedures for determining specific utility locations. Section 11. Relocation of Franchisee Facilities A. Except as otherwise so required by law, Franchisee agrees to relocate, remove, or reroute Franchisee's Facilities as ordered by the City Engineer at no expense or liability to the City, except as may be required by Chapter 35.99 RCW. Pursuant to the provisions of Section 15, Franchisee 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 way. B. If a readjustment or relocation of the Franchisee Facilities is necessitated by a request from a party other than the City, that party shall pay the Franchisee the actual costs associated with such relocation. Section 12. Abandonment and or Removal of Franchisee Facilities A. Within one hundred and eighty days (180) of Franchisee's permanent cessation of use of the Franchisee's Facilities, the Franchisee will, at the City's discretion, either abandon in place or remove the affected facilities. B. Franchisee may ask the City in writing to abandon, in whole or in part, all or any part of the Franchisee's Facilities. Any plan for abandonment of Franchisee Facilities must be approved in writing by the City. C. The parties expressly agree that this Section will survive the expiration, revocation or termination of this Franchise. Ordinance No. 6887 Franchise Agreement No. FRN21-0003 August 29, 2022 Page 7 of 18 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. Whenever the City requires the undergrounding of aerial utilities in the Franchise Area, the Franchisee will underground the Franchisee's Facilities in the manner specified by the City Engineer at no expense or liability to the City, except as may be required by Chapter 35.99 RCW. Where other utilities are present and involved in the undergrounding project, Franchisee will 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 Franchisee's Facilities. Common costs will include necessary costs for common trenching and utility vaults. Fair share will be determined in comparison to the total number and size of all other utility facilities being undergrounded. Section 14. Franchisee Information A. Franchisee agrees to supply, at no cost to the City, any information reasonably requested by the City to coordinate municipal functions with Franchisee's activities and fulfill any municipal obligations under state law. Said information will include, at a minimum, as-built drawings of Franchisee's Facilities, installation inventory, and maps and plans showing the location of existing or planned facilities within the City. Said information may be requested either in hard copy or electronic format, compatible with the City's data base system, including the City's Geographic Information System (GIS) data base. Franchisee will keep the City informed of its long-range plans for coordination with the City's long-range plans. B. The parties understand that Chapter 42.56 RCW and other applicable law may require public disclosure of information given to the City. Section 15. Indemnification and Hold Harmless A. Franchisee shall defend, indemnify, and hold harmless the City, its officers, officials, employees and volunteers from and against any and all claims, suits, actions, or liabilities for injury or death of any person, or for loss or damage to property, which arises out of Franchisee's acts, errors or omissions, or from any activity, work or thing done, permitted, or suffered by Franchisee arising from or in connection with this Franchise Agreement, except to the extent those claims, suits, action, liabilities, losses or damages are caused by the sole negligence or willful misconduct of the City. Ordinance No. 6887 Franchise Agreement No. FRN21-0003 August 29, 2022 Page 8 of 18 However, 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 Franchisee and the City, its officers, officials, employees, and volunteers, the Franchisee's liability hereunder shall be only to the extent of the Franchisee's negligence. It is further specifically and expressly understood that the indemnification provided herein constitutes the Franchisee's waiver of immunity under Industrial Insurance, Title 51 RCW, solely for the purposes 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. B. The Franchisee will hold the City harmless from any liability arising out of or in connection with any damage or loss to the Franchisee's 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, public way, or other property, except to the extent any such damage or loss is directly caused by the negligence of the City, or its agent performing such work. C. The Franchisee 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 Franchisee, and its agents, assigns, successors, or contractors, will make such arrangements as Franchisee deems fit for the provision of such services. The Franchisee will hold the City harmless from any liability arising out of or in connection with any damage or loss to the Franchisee for the City's failure or inability to provide such services, and, pursuant to the terms of Section 15(A), the Franchisee will 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. Section 16. Insurance A. The Franchisee shall procure and maintain for the duration of this Agreement and as long as Franchisee has Facilities in the rights-of-way, insurance against claims for injuries to persons or damage to property which may arise from or in connection with the Agreement and use of the public way. B. No Limitation. The Franchisee's maintenance of insurance as required by this Agreement shall not be construed to limit the liability of the Franchisee to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. C. Minimum Scope of Insurance. The Franchisee shall obtain insurance of the types and coverage described below: Ordinance No. 6887 Franchise Agreement No. FRN21-0003 August 29, 2022 Page 9 of 18 1. Commercial General Liability insurance shall be at least as broad as ISO occurrence form CG 00 01 and shall cover liability arising from premises, operations, stop gap liability, products-completed operations, personal injury and advertising injury, and liability assumed under an insured contract. There shall' be no exclusion for liability arising from explosion, collapse or underground property damage. The City shall be named as a Certificate Holder and included as an additional insured under the Franchisee's Commercial General Liability insurance policy with respect this Franchise Agreement using ISO endorsement CG 20 12 05 09 if the franchise agreement is considered a master permit as defined by RCW 35.99.010, or CG 20 26 07 04 if it is not, or substitute endorsement providing at least as broad coverage. 2. Automobile Liability insurance covering all owned, non- owned, hired and leased vehicles. Coverage shall be at least as broad as Insurance Services Office (ISO) form CA 00 01. 3. Contractors Pollution Liability insurance shall be in effect throughout the entire Franchise Agreement covering losses caused by pollution conditions that arise from the operations of the Franchisee. Contractors Pollution Liability shall cover bodily injury, property damage, cleanup costs and defense, including costs and expenses incurred in the investigation, defense, or settlement of claims. 4. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington. 5. Excess or Umbrella Liability insurance shall be excess over and at least as broad in coverage as the Franchisee's Commercial General Liability and Automobile Liability insurance. The City shall be included as an additional insured on the Franchisee's Excess or Umbrella Liability insurance policy. D. Minimum Amounts of Insurance. The Franchisee shall maintain the following insurance limits: 1. Commercial General Liability insurance shall be written with limits no less than $5,000,000 each occurrence, $5,000,000 general aggregate. 2. Automobile Liability insurance with a minimum combined single limit for bodily injury and property damage of $5,000,000 per accident. Ordinance No. 6887 Franchise Agreement No. FRN21-0003 August 29, 2022 Page 10 of 18 3. Contractors Pollution Liability insurance shall be written in an amount of at least$2,000,000 per loss, with an annual aggregate of at least $2,000,000. 4. Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington and employer's liability insurance with limits of not less than $1,000,000.00. 5. Excess or Umbrella Liability insurance shall be written with limits of not less than $5,000,000 per occurrence and annual aggregate. The Excess or Umbrella Liability requirement and limits may be satisfied instead through Franchisee's Commercial General Liability and Automobile Liability insurance, or any combination thereof that achieves the overall required limits. E. Other Insurance Provisions. Franchisee's Commercial General Liability, Automobile Liability, Excess or Umbrella Liability, Contractors Pollution Liability insurance policy or policies are to contain, or be endorsed to contain, that they shall be primary insurance for all alleged and actual negligence and intentional acts arising out of Franchisee operations as respect to the City. Any insurance, self-insurance, or self-insured pool coverage maintained by the City shall be excess of the Franchisee's insurance and shall not contribute with it. F. Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A: VII. G. Subcontractors and Independent Contractors. The Franchisee shall cause each and every subcontractor and independent contractor to provide insurance coverage that complies with all applicable requirements of the Franchisee-provided insurance as set forth herein, including limits no less than what is required of Franchisee under this Agreement. The Franchisee shall ensure that the City is a named certificate holder and included as an additional insured on each and every subcontractor's and independent contractor's Commercial General liability insurance policy using an endorsement as least as broad as ISO CG 20 26. H. Verification of Coverage. The Franchisee shall furnish the City with original certificates and a copy of the amendatory endorsements, including but not necessarily limited to the additional insured endorsement, evidencing the insurance requirements of this Agreement. Upon request by the City, the Franchisee shall furnish evidence of all subcontractors' and independent contractors' coverage. Ordinance No. 6887 Franchise Agreement No. FRN21-0003 August 29, 2022 Page 11 of 18 I. Notice of Cancellation. Franchisee shall provide the City with written notice of any policy cancellation within two business days of their receipt of such notice. J. Failure to Maintain Insurance. Failure on the part of the Franchisee to maintain the insurance as required shall constitute a material breach of Agreement, upon which the City may, after giving five business days' notice to the Franchisee to correct the breach, terminate the Agreement or, at its discretion, procure or renew such insurance and pay any and all premiums in connection therewith, with any sums so expended to be repaid to the City on demand. K. Franchisee — Self-Insurance. Franchisee will 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. If the Franchisee is self-insured or becomes self- insured during the term of the Franchise Agreement, Franchisee or its affiliated parent entity shall comply with the following: (i) provide the City, upon request, a copy of Franchisee's or its parent company's most recent audited financial statements, if such financial statements are not otherwise publicly available; (ii) Franchisee or its parent company is responsible for all payments within the self- insured retention; and (iii) Franchisee assumes all defense and indemnity obligations as outlined in Section 15. Section 17. Financial Security The Franchisee will provide the City with a financial security in the amount of Fifty Thousand Dollars ($50,000.00) in the form of a performance bond running for, or renewable for, the term of this Franchise, in a form and substance acceptable to the City. If Franchisee fails to substantially comply with any one or more of the provisions of this Franchise, beyond all applicable notice and cure periods, the City may recover jointly and severally from the principal and any surety of that financial security any damages suffered by the City as a result Franchisee's failure to comply, including but not limited to staff time, material and equipment costs, compensation or indemnification of third parties, and the cost of removal or abandonment of facilities Prior to City accessing the Performance Bond, it shall first give Franchisee written notice of its intention to do so and with that notice shall provide to Franchisee written documentation of the loss, damage or expense for which the City seeks compensation from the Performance Bond. Such notice and documentation shall be provided by City as soon as practicable as determined by the City, after the date of the occurrence which gives rise to City's claimed loss, damage or expense. Franchisee specifically agrees that its failure to comply with the terms of Section 20 will constitute damage to the City in the monetary amount set forth in that section. Any financial security will not be construed to limit the Franchisee's liability to the security amount, or otherwise limit the City's recourse to any remedy to which the City is otherwise entitled at law or in equity. Ordinance No. 6887 Franchise Agreement No. FRN21-0003 August 29, 2022 Page 12 of 18 Section 18. Successors and Assignees A. All the provisions, conditions, regulations and requirements contained in this Franchise are binding upon the successors, assigns of, and independent contractors of the Franchisee, and all rights and privileges, as well as all obligations and liabilities of the Franchisee will inure to its successors, assignees and contractors equally as if they were specifically mentioned herein wherever the Franchisee is mentioned. B. This Franchise will not be leased, assigned or otherwise alienated without the express prior consent of the City by ordinance. C. Franchisee and any proposed assignee or transferee will provide and certify the following to the City not less than ninety (90) days prior to the proposed date of transfer: (a) Complete information setting forth the nature, term and conditions of the proposed assignment or transfer; (b) All information required by the City of an applicant for a Franchise with respect to the proposed assignee or transferee; and, (c) An application fee in the amount established by the City's fee schedule, plus any other costs actually and reasonably incurred by the City in processing, and investigating the proposed assignment or transfer. D. Before the City's consideration of a request by Franchisee to consent to a Franchise assignment or transfer, the proposed Assignee or Transferee will 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 before transfer does not waive any right to insist on full compliance thereafter. Section 19. Dispute Resolution A. In the event of a dispute between the City and the Franchisee arising by reason of this Agreement, the dispute will first be referred to the operational officers or representatives designated by City and Franchisee to have oversight over the administration of this Agreement. The officers or representatives will meet within thirty (30) calendar days of either party's request for a meeting, whichever request is first, and the parties will 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 will be governed by and construed in accordance with the laws of the State of Washington. If any suit, arbitration, or other proceeding is instituted to enforce any term of this Agreement, the parties specifically understand and agree that venue Ordinance No. 6887 Franchise Agreement No. FRN21-0003 August 29, 2022 Page 13 of 18 will be exclusively in King County, Washington. The prevailing party in any such action will be entitled to its attorneys' fees and costs. Section 20. Enforcement and Remedies A. If the Franchisee willfully violates, or fails to comply with any of the provisions of this Franchise through willful or unreasonable negligence, or fails to comply with any notice given to Franchisee under the provisions of this agreement, the City may, at its discretion, provide Franchisee with written notice to cure the breach within thirty (30) days of notification. If the City determines the breach cannot be cured within thirty days, the City may specify a longer cure period, and condition the extension of time on Franchisee'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 Franchisee does not comply with the specified conditions, the City may, at its discretion, either (1) revoke the Franchise with no further notification, or (2) claim damages of Two Hundred Fifty Dollars ($250.00) per day against the financial security set forth in Section 17 for every day after the expiration of the cure period that the breach is not cured. B. If the City determines that Franchisee is acting beyond the scope of permission granted in this Franchise for Franchisee Facilities and Franchisee Services, the City reserves the right to cancel this Franchise and require the Franchisee to apply for, obtain, and comply with all applicable City permits, franchises, or other City permissions for such actions, and if the Franchisee's actions are not allowed under applicable federal and state or City laws, to compel Franchisee to cease those actions. Section 21. Compliance with Laws and Regulations A. This Franchise is subject to, and the Franchisee will 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. The Franchisee will 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 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 enacted, amended, or adopted after the effective date of this Franchise if it provides Franchisee 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 Ordinance No. 6887 Franchise Agreement No. FRN21-0003 August 29, 2022 Page 14 of 18 amendment will become automatically effective on expiration of the notice period unless, before expiration of that period, the Franchisee 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 of the call for negotiations, the City may enact the proposed amendment, by incorporating the Franchisee'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 Franchisee, if the Franchisee fails to comply with such amendment or modification. Section 22. License, Tax and Other Charges This Franchise will not exempt the Franchisee from any future license, tax, or charge which the City may adopt under authority granted to it under state or federal law for revenue or as reimbursement for use and occupancy of the Franchise Area. Section 23. Consequential Damages Limitation Notwithstanding any other provision of this Agreement, in no event will either party be liable for any special, incidental, indirect, punitive, reliance, consequential or similar damages. Section 24. Severability If any portion of this Franchise is deemed invalid, the remainder portions will remain in effect. Section 25. Titles The section titles used are for reference only and should not be used for the purpose of interpreting this Franchise. Section 26. Implementation. The Mayor is authorized to implement those administrative procedures necessary to carry out the directions of this legislation. Section 27. Entire Agreement This Agreement, as subject to the appropriate city, state, and federal laws, codes, and regulations, and the attachments hereto represent the entire understanding and agreement between the parties with respect to the subject matter and it supersedes all prior oral negotiations between the parties. All Ordinance No. 6887 Franchise Agreement No. FRN21-0003 August 29, 2022 Page 15 of 18 previous agreements between the parties pertaining to Franchisee's operation of Franchisee's Facilities are hereby superseded. Section 28. Effective date. This Ordinance will take effect and be in force five days from and after its passage, approval and publication as provided by law. INTRODUCED: �S®� 9.022 2022 PASSED: NOV O 72022 APPROVED:R1: i1S,10# ATTEST: Shawn Campbe , ity C erk APPROVED AS TO FORM: Kendra Comeau, City Attorney " Published: 10[011\06 IV4'20-1- Th-The52� UG Tnes Ordinance No. 6887 Franchise Agreement No. FRN21-0003 August 29, 2022 Page 16 of 18 DocuSign Envelope ID.65337A95-E523-417F-968A-8249DA3419AD EXHIBIT "A" FRANCHISE AREA Sprint fiber optic cable is located in the Union Pacific Railroad Road property that runs north/south through the City and occupies Five Hundred and Forty-Two (542) +/- linear feet of City public way through six east/west road crossings pursuant to City of Auburn, WA Public Works Department ROW Use Permit No. 87-02 issued September 15, 1987. The specific crossing locations that make up the Franchise Area are adjacent to the Union Pacific Rail line and are as follows: 1. Crossing at S 277th Street, 80 feet 4 inches. 2. Crossing S 285th Street (aka 44th Street NW), 110 feet 4 inches. 3. Crossing 37th Street NW, 90 feet 4 inches. 4. Crossing 29th Street NW, 30 feet. 5. Crossing West Main Street, 90 feet 4 inches. 6. Crossing 15th Street SW, 140 feet 4 inches. Ordinance No. 6887 Franchise Agreement No. FRN21-0003 August 29, 2022 Page 17 of 18 DocuSign Envelope ID:65337A95-E523-417F-968A-8249DA3419AD EXHIBIT "B" STATEMENT OF ACCEPTANCE Sprint Communications Company L.P., 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. Franchisee Name:_Sprint Communications Company L:P. Address: 6200 Sprint Parkway; KSOPHD1010-Z2040 City, State, Zi.•• Overland Park, Kansas 66251 B jA, bate: 1 (..2g . 22 Name pike Simpson Title: SVP and Chief Procurement Officer oi°YeSL9e AI pproval' e-vi.w frowohai nn Magri'''. Senior Corporate Counsel STATE OF . ' )sS. : COUNTY OF / W ) . On this day of A/jI/PJi1/&Jr , 2022, before me the undersigned, a Notary Public in and for the State of WR-: . , duly commissioned and sworn, personally appeared, Ake 51.11/67y-k ': : of r nb/719 , 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 affix_ed my official seal on the date hereinabove set forth. V q0/ Notary JIM E BAKER (tgiliature Public State of Washington im 7/ I • , Commission#206994 My Comm. Expires May 2, 2023 NOTTAI Y PUBLIC in and for the State of , residing at - 0/s0 Ur?. - >�f6.141/t) MY COMMISSION EXPIRES: /4a Ordinance Na. 6887 • Franchise Agreement No. FRN21-0003 August 29, 2022 Page 18 of 18