HomeMy WebLinkAbout5868ORDINANCE NO. 5 8 6 8
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, (HEREINAFTER REFERRED TO AS
THE CITY) AUTHORIZING THE MAYOR AND CITY CLERK TO
EXECUTE A FRANCHISE AGREEMENT BETWEEN THE CITY
AND CINGULAR WIRELESS
WHEREAS, the City has determined that Cingular Wireless' application
for a telecommunications franchise was complete; and
WHEREAS, a public hearing was conducted on October 4, 2004,
regarding the City entering into a franchise agreement with Cingular Wireless;
and
WHEREAS, it has been determined that Cingular Wireless has the
financial, technical, and legal ability to provide the services proposed in its
application; and
WHEREAS, there is capacity in the City's Public Ways, as defined in the
franchise agreement, to accommodate Cingular Wireless' proposed facilities as
well as additional utility and telecommunications facilities; and
WHEREAS, the grant to use the Public Ways, as defined in the franchise
agreement, is in the public interest and the effect, if any, on the public health,
safety and welfare is minimized and addressed in the franchise agreement; and
Ordinance 5868
September 27, 2004
Page 1
WHEREAS, the service Cingular Wireless will provide to the community
and region is in the public interest; and
WHEREAS, the franchise agreement requires that applicable federal and
state telecommunication laws, regulations, and policies are followed during the
term of the franchise agreement.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. Purpose, The Mayor and City Clerk of the City of Auburn
are hereby authorized to execute a Franchise Agreement between the City and
Cingular Wireless. A copy of said Agreement is attached hereto, designated as
Exhibit "1" and incorporated herein by this reference into this Ordinance.
Section 2. Constitutionality or Invalidity: If any section, subsection,
clause, phrase, or sentence, of this Ordinance, is for any reason held to be
invalid or unconstitutional, such invalidity or unconstitutionality shall not have
any effect upon the remaining portions of this ordinance, as it is being hereby
expressly declared that this ordinance and each section, subsection, clause,
phrase, or sentence, hereof would have been prepared, proposed, adopted,
and approved and ratified irrespective of the fact that any one or more section,
subsection, clause, phrase, or sentence, be declared invalid or unconstitutional.
Ordinance 5868
September 27, 2004
Page 2
Section 3. Implementation. The Mayor is hereby authorized to
implement such administrative procedures as may be necessary to carry out
the directions of this ordinance.
Section 4. Effective date. This Ordinance shall take effect and be in
force five (5) days from and after its passage, approval and publication, as
provided by law.
!
DATED this 4` day of U�S4.--� , 2004.
OCT - 4 CUU4
INTRODUCED:
PASSED: OCT ` 4 2004
APPROV D: OCT - 04
PETER B. LEWIS
MAYOR
ATTEST:
Da 'elle E. Daskam
City Clerk
APP O ED A FORM:
&ZU
I B. id
City Attorney
PUBLISHED: / 0 1 0 5l v 1
Ordinance 5868
September 27, 2004
Page 3
EXHIBIT `1'
CITY OF AUBURN, WASHINGTON
FRANCHISE AGREEMENT WITH
PACIFIC BELL WIRELESS NORTHWEST, LLC, dba CINGULAR WIRELESS
WHEREAS, PACIFIC BELL WIRELESS NORTHWEST, LLC, a Delaware
limited liability company, doing business as Cingular Wireless ("Cingular") has applied
to the CITY OF AUBURN for a non-exclusive Franchise for the attachment,
installation and maintenance of Wireless Telecommunications Facilities in, on, upon,
along and/or across certain Public Ways within the City of Auburn, and
WHEREAS, Cingular intends to install a limited number of wireless
communications antennas in a small number of diverse locations in the Public Way.
NOW, THEREFORE, the City of Auburn, a Washington municipal corporation
hereinafter referred to as "City" and Cingular agree as follows:
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 1 of 29
TABLE OF CONTENTS
FRANCHISE AGREEMENT WITH CINGULAR WIRELESS
SECTION PAGE NO.
1.
Definition of Terms.........................................................................................
3
2.
Terms of Franchise..........................................................................................
5
3.
Application and Determination.......................................................................
7
4.
Acceptance, Effective Date.............................................................................
8
5.
Police Powers..................................................................................................
8
6.
Rules and Regulations of the City...................................................................
9
7.
Administration.................................................................................................9
8.
Annexation......................................................................................................
9
9.
Regulation of the Use of Public Ways............................................................
9
10.
Tree Trimming...............................................................................................11
11.
Safety Requirements and Emergency Notification........................................11
12.
Use, Rental or Lease of Utility Poles and Facilities.......................................12
13.
Undergrounding and Landscaping.................................................................12
14.
City Use of Franchisee's Poles and Facilities................................................12
15.
Use of Franchisee's Poles and Facilities of Others........................................13
16.
Capacity Sharing and Co-Location................................................................13
17.
Construction in Right-of-way........................................................................14
18.
Transfer or Assignment of Franchise Agreement..........................................16
19.
Removal and/or Abandonment of Cingular's Property..................................16
20.
Franchise Application, Fees, Compensation, Charges, and
Recordkeeping Requirements...................................................................17
21.
Indemnification, Insurance, and Bonds or Other Surety................................19
22.
Default............................................................................................................23
23.
Enforcement and Termination of Franchise...................................................23
24.
Franchise Amendment....................................................................................25
25.
Miscellaneous Provisions...............................................................................25
26.
Severability.....................................................................................................27
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 2 of 29
1. Definition of Terms.
1.1. "Agency" means any governmental agency or quasi -governmental agency,
including, but not limited to, the FCC and the WUTC or successor governmental
entities thereto.
1.2. "Affiliate" means an entity which (directly or indirectly) owns or controls, is owned
or controlled by, or is under common ownership with Franchisee. For purposes of
this definition, the term "own" means to own an equity interest (or the equivalent
thereof) of more than ten (10) percent.
1.3. "Cable Act" means the Federal Cable Communications Policy Act of 1984, as
amended.
1.4. "City Costs" means that whenever the City incurs costs related to enforcing the
terms of this agreement, Cingular's obligation for reimbursement will be limited to
those costs that are reasonable, documented and in accordance with RCW
35.21.860.
1.5. "City Property" means and includes all real property owned by the City, other than
Public Ways and utility easements as those terms are defined herein, and all
property held in a proprietary capacity by the City, which are not subject to right-
of-way licensing and franchising as provided herein.
1.6. "Communication Service" shall mean any wireless communications services
provided by Cingular, through the Facilities which are governed by the terms of this
Franchise agreement, either directly or as a carrier for its subsidiaries, Affiliates or
any other Person providing communication services through the Facilities,
including, but not limited to, transmission of voice, data or other electronic
intelligence, facsimile reproduction, burglar alarm, meter reading and home
shopping. However, Communication Service shall not include cable television
services as defined under the Cable Act for which a separate Franchise would be
required to provide such cable television services, nor shall it include video dialtone
service as defined by the FCC in which a separate Franchise would also be required
to provide such video dialtone services.
1.7 "Cingular" and/or "Applicant" means the corporation and its respective successors
and assigns.
1.8. "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 or wars.
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 3 of 29
1.9. "Excess Capacity" means the volume or capacity in any existing or future duct,
conduit, manhole, handhole or other utility facility within the Public Way that is or
will be available for use for additional telecommunications facilities.
1.10. "Facilities" includes the following, when they are located in the Public Way:
1.10.a.Overhead facilities including utility poles, utility facilities and
telecommunications facilities located above the surface of the ground,
including the underground supports and foundations for such facilities;
1.10.b. Telecommunication facilities including the plant, equipment and property,
including but not limited to, cables, wires, conduits, ducts, pedestals,
antennae, electronics and other appurtenances as may be necessary or
appurtenant to the Communications Services; and
1.10.c. Surface and underground facilities including utility and telecommunication
facilities located on or under the surface of the ground, excluding the
underground foundations or supports for overhead facilities.
1.11. "FCC" means Federal Communications Commission, or successor governmental
entity thereto.
1.12. "Franchise" shall mean the initial authorization, or renewal thereof, approved by an
ordinance of the City, which authorizes the Franchisee to construct, install, operate
or maintain Telecommunications Facilities in, under, over, or across the Franchise
Area.
1.13. "Franchise Area" means any, every and all of the Public Ways within the City as
now laid out, platted, dedicated or improved; and any, every and all Public Way
that may thereafter be laid out, platted, dedicated or improved within the present
limits of the City and as such limits may be hereafter extended.
1.14. "Franchise Authority" means the City of Auburn or the lawful successor, transferee,
or assignee thereof.
1.15. "Franchisee" means Cingular, or the lawful successor, transferee, or assignee
thereof, with the consent as required in this Franchise agreement.
1.16. "Person" means an individual, corporation, partnership, limited liability company,
general or limited partnership, sole proprietorship, joint stock company, trust
corporation, business trust, any other form of business association or entity, or a
governmental entity.
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 4 of 29
1.17. "Public Way" shall mean the surface, the air space above the surface and the area
below the surface of any public street or way, including, but not limited to, any and
all highways, roads, streets, avenues, alleys, boulevards, drives, rights-of-way or
sidewalk under the jurisdiction of the City.
1.18. "Subscriber" or "Customer" means a person or user of the Facilities who lawfully
receives Communication Services or other service therefrom with Franchisee's
express permission.
1.19. "Surplus Space" means that portion of the usable space on a utility pole which has
the necessary clearance from other pole users, as required by the federal or state
law, rules, regulations and/or orders, to allow its use by a telecommunications
carrier for a pole attachment.
1.20. "The Act" means the Federal Telecommunications Act, January 31, 1996.
1.21. "Usable Space" means the total distance between the top of a utility pole and the
lowest possible attachment point that provides the minimum allowable vertical
clearance as specified in any federal or state law, rules, regulations or orders.
2.Terms of Franchise.
2.1. Grant of Authority, Franchise and Permits Required:
2. La. The City hereby grants to Cingular a nonexclusive Franchise for a term of
five (5) years which authorizes Cingular to construct, install, operate,
maintain, repair, replace and remove its Facilities within the Franchise Area,
subject to City review and any other applicable laws, ordinances,
regulations, codes, rules or orders. This Franchise does not provide
Cingular exclusive use of any City poles or property, provided, however,
during the term of this Franchise, that the City agrees to obtain in writing
from any future telecommunication provider, covenants that, subsequent to
the installation by Cingular of its Facilities in accordance with the terms and
conditions of this Franchise: (a) such new provider shall not install new
equipment if such equipment causes interference with Cingular's operations
and (b) that in the event such interference occurs, such provider shall
immediately take all steps necessary to eliminate such interference.
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 5 of 29
2. Lb. This Franchise agreement does not grant Cingular the right to provide cable
television service. If Cingular desires to provide cable television service
through its Facilities, the City reserves the right to renegotiate the terms of
this agreement in a manner that is consistent with the then -current laws
applicable to the provision and regulation of wireless cable television
service. No privilege or exemption shall be granted or conferred on
Cingular except those specifically prescribed herein, and any use of any
Public Way shall be consistent with any prior and future lawful occupancy
of the Public Way or any subsequent improvement or installation therein.
2.1.c. This grant of authority to install the Facilities described herein shall be
limited solely to those Facilities expressly described in Cingular's permit
applications and no others. In the event of any ambiguity, this Franchise
agreement shall be strictly construed as to the rights granted herein. City
reserves the right to renegotiate the terms of this agreement if Cingular
applies for the right to install facilities in the Public Way for the provision of
non -wireless communications services.
2.1.d. Cingular is at all times subject to and must comply with all applicable
federal, state and local laws, including but not limited to, Chapter 5.84 ACC,
entitled "Registration of Telecommunications Carriers, Operators,
Providers, and Other Commercial Utilities", Title 12 ACC, entitled "Streets,
Sidewalks, and Public Works", Chapter 13.32 ACC, entitled "Underground
Wiring Regulations", Title 18, entitled "Zoning", Title 20 ACC entitled
"Telecommunications and Other Commercial Utilities", any other
ordinances, codes, rules, regulations and orders as they apply, and subject to
the terms of Section 5 of this agreement.
2.2. Franchises and Franchise Agreements:
2.2.a. The City may grant Franchises to other telecommunication providers at its
sole discretion.
2.2.b. All future Franchises granted by the City shall be nonexclusive, and
issuance of this Franchise does not expressly or implicitly preclude the
issuance of other Franchises, or affect the City's right to use or authorize the
use of its Public Ways to other Persons as it determines appropriate.
2.2.c. The terms, conditions and provisions of this Franchise agreement when fully
executed, together with all applicable laws, ordinances, codes, rules,
regulations and orders, enacted now or in the future, shall define the rights
and obligations of Cingular and the City relating to the Franchise.
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 6 of 29
2.2.d. The City may modify this Franchise agreement, if permitted by its police
powers, as follows; all other modifications to this Franchise will be made in
accordance with the process described in Section 25 Franchise Amendment:
1. At the time of renewal, transfer, or other disposition;
2. Upon giving sixty (60) days written notice of the proposed modification,
provided Cingular is given an opportunity to present arguments to the
City against the modification or alternatives in lieu thereof; and
3. If there is any inconsistency between this Franchise agreement and
governing laws, statutes, ordinances, codes, regulations, rules or orders.
2.2.e. Except as expressly provided to the contrary, all costs incurred by Cingular
in complying with this Franchise agreement or any applicable laws,
ordinances, codes, rules, regulations and/or orders or any action thereunder
shall be the sole responsibility of Cingular and shall not be the responsibility
of or charged to the City.
3. Application and Determination.
3.1. Application. Cingular shall file an application in a form prescribed by the City,
accompanied by a non-refundable filing fee in the amount of Two Thousand Five
Hundred Dollars and No Cents ($2,500.00). Information submitted by applicant
with its application shall include the following:
3. La. Whether the applicant intends to provide cable service, video dialtone
service or other video programming service, and sufficient information to
determine whether such service is subject to cable franchising;
3.1.b. An accurate map showing the location of the Facilities Cingular intends to
place in the Public Way at the time the application is filed;
3.1.c. A description of the Facilities that Cingular plans to install and operate in
the Public Way; and
3.1.d. Documentation of all FCC licenses.
3.2. Determination. The City shall issue a written determination granting or denying the
application in whole or in part. Prior to granting or denying this Franchise
agreement, the City Council shall conduct a public hearing and make a decision
based upon the standards set forth below.
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 7 of 29
3.2.a. The legal authority of Cingular;
3.2.b. The capacity of the Public Ways to accommodate Cingular's proposed
Facilities;
3.2.c. The capacity of the Public Ways to accommodate additional utility and
telecommunications facilities if the Franchise is granted;
3.2.d. The damage or disruption, if any, of public or private facilities,
improvements, service, travel or landscaping if the Franchise is granted;
3.2.e. The public interest in minimizing the cost and disruption of construction
within the Public Ways;
3.21 The availability of alternate routes and/or locations for the proposed
facilities;
3.2.g. Applicable federal and state telecommunication laws, regulations and
policies; and
3.2.h. Such other factors as may demonstrate that the grant to use the Public Ways
will serve the community interest. Pursuant to RCW 35A.47.040, the City
Council shall not approve this Franchise agreement until the next regularly
scheduled council meeting following the public hearing. If the application
is denied, the written determination shall include the reason for denial.
4. Acceptance, Effective Date.
Cingular shall accept the Franchise granted pursuant hereto by signing this Franchise and
the statement of acceptance shown in Exhibit "A" and providing proof of compliance with
the bond and insurance requirements in Section 21, and filing same with the City Clerk or
other appropriate official of the City within thirty (30) days after the passage and final
adoption of this Franchise. If not accepted and filed as provided in this section within
thirty (30) days, this 'agreement shall be null and void and of no effect and no Franchise
shall exist between the City and Cingular.
5. Police Powers.
In accepting this Franchise, Cingular acknowledges that its rights hereunder are subject to
the police power of the City to adopt and enforce general ordinances necessary to protect
the safety and welfare of the public and Cingular agrees to comply with all applicable
general laws enacted by the City pursuant to such power. City acknowledges that its
police power does not include the right to request priority access to Cingular's
Communication Service.
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 8 of 29
6. Rules and Regulations of the City.
In addition to the inherent powers of the City to regulate and control any Franchise it
grants and those powers expressly reserved by the City or agreed to and provided for in
this Franchise, the right and power is hereby reserved by the City to promulgate such
additional regulations as it may find necessary in the exercise of its lawful powers giving
due regard to the rights of Cingular.
7. Administration.
The performance of Cingular under this Franchise shall be under the general direction of
the Public Works Director or his/her designees who shall be the contact person for all
matters relating to telecommunications, including but not limited to, any required notices,
correspondence, communications or actions.
8. Annexation.
In the event that any territory served by Cingular is annexed to the City after the effective
date of this Franchise, such territory shall be governed by the terms and conditions
contained herein upon the effective date of such annexation.
9. Regulation of the Use of Public Ways.
9.1. Conditions of Street Occupancy. All transmission and distribution structures, poles,
other facilities, and equipment installed or erected by Cingular pursuant to the terms
hereof shall be located so as to cause a minimum of interference with the proper
and lawful use of Public Ways and to ensure the rights and reasonable convenience
of property owners who own property that adjoins any of said Public Ways. This
Franchise is subject to the conditions set forth in Chapter 20.10, ACC. Prior to
permit issuance Cingular must demonstrate proof of membership in the local "One
Call Service" providing underground location services in the City in accordance
with RC W 19.122.
9.2. Approval of Plans and Specifications.
9.2.a. Construction Permits. Prior to commencing work in Public Ways, the
Franchisee is required to obtain Construction Permits for installing cable
and Telecommunications Facilities as required in Auburn City Code Chapter
12.24. Section 17 outlines the permit process.
9.2.b. Location of Facilities. All Facilities shall be constructed, installed, and
located in accordance with the following terms and conditions, unless
otherwise specified in this Franchise agreement.
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 9 of 29
1. The Franchisee must bear the full cost of discovering the existing
location of any existing conflicts, coordination of the engineering plans
to acquire the approvals of parties already in the ROW, and relocating
and/or mitigating such conflicts with pre-existing Facilities in conflict
with the plans of the Franchisee.
2. Whenever capacity in the ROW is exhausted, the burden to create new
capacity by consolidating facilities will be solely the responsibility of all
the parties currently sharing the ROW. The City shall bear no cost of
creating new capacity. Interested parties must negotiate amongst
themselves to arrive at a mutually agreeable cost sharing arrangement.
The City will regulate such new capacity creation like any other street
construction.
9.3. Restoration of Public Ways. If during the course of Cingular's construction,
operation, or maintenance of the Facilities there occurs a disturbance of any Public
Way by Cingular, Cingular shall, at its expense, replace and restore such Public
Way promptly and to a condition reasonably equivalent to the condition of the
Public Way existing immediately prior to such disturbance.
9.4. Relocation/Removal. Whenever the City determines it is necessary that any
facilities of Cingular be removed or relocated to accommodate public safety,
change in traffic conditions, the improvement of any areas, including but not
limited to, the grading or widening of any street within the public right-of-way or
the repair or relocation of any City -owned utilities, or for removal of unauthorized
Facilities, Cingular shall, within thirty (30) calendar days of written notice from the
City, remove or relocate such facilities as directed, to an area within City Public
Way mutually agreed upon, at no cost to the City. Cingular shall within the first 14
days after receipt of notice, communicate to the City its intention, plan and schedule
for said re -locations or removals. If Cingular fails to comply with the requirements
of the initial 14 -day period, the City has the unilateral right to proceed with the
necessary relocation and removal using its own employees or contractor, and
Cingular agrees to reimburse the City all reasonable, documented costs for any
relocation, removal or delay costs incurred by the City and/or its contractors.
Cingular will design and install its system in such manner that future relocations
required by the City may be accomplished with least interruption of services. In the
event Cingular fails to complete full performance within the thirty (30) day period,
Cingular agrees to reimburse the City for all damages incurred by the City or its
contractors for delays of future City work in the Public Way related to equipment,
conduit and cable routing conflicts related to Cingular's failure to comply with the
requirements of this subsection. Notwithstanding the above, City will give
Cingular as much advance notice as possible during its public improvement
planning process before requiring Cingular to relocate or remove its Facilities.
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 10 of 29
9.5. Building Moving. Whenever any person shall have obtained permission from the
City to use any street or Public Way for the purpose of moving any building,
Cingular, upon seven (7) days written notice from the City, shall raise or remove, at
the expense of the person desiring to move the building, any of Cingular's facilities
which may obstruct the removal and relocation of such building; provided, that the
moving of such building shall be done in accordance with regulations and general
ordinance of the City. Where more than one street is available for the moving of
such building, the building shall be moved on such street as shall cause the least
interference and inconvenience to the public. In such event, the City shall have the
authority for and responsibility of determining the route to be utilized.
10. Tree Trimming.
Upon prior written approval of the City and in accordance with City ordinances, Cingular
shall have the authority to reasonably 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 Facilities of Cingular. Cingular 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 Cingular 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 a land clearing permit.
11. Safety Requirements and Emergency Notification.
Cingular may be contacted at the following 24-hour telephone number in the event an
Emergency requires repair and/or relocation of any of its Facilities:
Primary Company Representative (TITLE): Leasing/Property Manager
Phone Number: 425-895-6963
Emergency (24 hour; 7 day) Contact: Cingular Network Operations Center
Phone Number: 800-260-6003
Construction, installation, and maintenance of the Facilities shall be performed in an
orderly and workmanlike manner. All such work shall be performed in substantial
accordance with all applicable FCC or other federal, state, and local laws, regulations and
requirements using commonly accepted methods and devices for preventing failure and
accidents which are likely to cause damage, injury, or nuisance to the public.
All of Cingular's structures, facilities, equipment and connections within Public Ways or
within the Franchise Area, wherever situated or located, shall at all times be kept and
maintained in a safe, suitable condition, and in good order and repair.
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 11 of 29
The City reserves the general right to see that Cingular's telecommunications system and
Telecommunications Facilities are constructed and maintained in a safe condition. If a
violation of the National Electrical Safety Code or other applicable ordinance(s) or
regulation(s) is found to exist by the City, Cingular shall respond within a twenty-four (24)
hour period of time from receipt of notification of violation from the City to restore the
Telecommunications System and/or Telecommunications Facilities to a condition safe for
the public. If the repairs are not made within the established time frame, the City may
make the repairs itself or have them made and collect all reasonable costs thereof from
Cingular.
12. Use, Rental or Lease of Utility Poles and Facilities.
Cingular may seek to contract with the holder or owner of any utility Franchise in the City
for the use, rental or lease of its or their poles and other structures and facilities for the
purpose of extending, carrying or laying Cingular's Facilities. The City agrees that any
public utility owning or controlling such poles or other structures or Facilities may,
without amendment to its Franchise, allow, and is encouraged to allow, Cingular to make
such use thereof pursuant to any agreement reached between such utility company and
Cingular. The City reserves the right, however, to refuse the use of any or all of its utility
poles and Facilities.
13. Undergrounding and Landscaping.
Should landscaping be disrupted as a result of Facilities being installed underground,
Cingular will restore the landscaping and associated irrigation to their reasonable pre -
construction appearance and function.
14. City Use of Franchisee's Poles and Facilities.
With respect to poles and trenches which are Facilities and which are (1) wholly owned by
Cingular and (2) within the Franchise Area, the City, subject to Cingular's prior written
consent, which may not be unreasonably withheld, may install and maintain City -owned
overhead Facilities upon such poles, and conduit in Cingular's opened trenches, for police,
fire and other noncommercial communications purposes, subject to the following:
14.1. Such installation and maintenance shall be completed at the City's expense and not
alter Cingular's construction schedule;
14.2. Cingular shall have no obligation under the indemnification provisions of this
Franchise for the installation or maintenance of such City -owned Facilities or
conduits.
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 12 of 29
14.3. Cingular shall not charge the City a fee for the use of such poles or trenches in
accordance with this section as a means of deriving revenue therefrom; provided,
however, nothing herein shall require Cingular to bear any cost or expense in
connection with such installation and maintenance of City -owned facilities or
conduits.
14.4. At the option of the City, whenever new conduit is installed by Cingular, Cingular
shall provide the City open access to the trench so that the City may install its own
similar sized conduit. There shall be no cost to the City associated with the
trenching, backfilling, or surface restoration involved with those activities provided;
however, the City must purchase or supply said conduit.
15. Use of Franchisee's Poles and Facilities by Others.
With respect to poles, conduits or other Facilities developed or placed in the Franchise
Area by Cingular, prior to the Franchisee entering into agreements with others to utilize
such Facilities, Cingular shall assure that the proposed Lessee complies with the City's
registration, franchising, and permitting requirements in Auburn City Code.
Within fifteen (15) calendar days after completion of registration with the City Clerk, the
City will determine whether the proposed lessee is subject to Franchise requirements and
will notify in writing both Cingular and the proposed lessee of the determination and/or
approval and the process to proceed.
16. Capacity Sharing and Co -Location.
In order to avoid unnecessary disturbance in the Public Ways, and to optimize use of
limited capacity, the City may require Cingular to share the use of its facilities with others
in accordance with The Act.
Cingular shall allow the sharing of its conduit, trenches, and other facilities constructed by
Cingular when the following conditions are met:
16.1. The sharing of such facilities is both timely and technologically feasible.
16.2. Potential service providers have agreed to compensate Cingular fair and reasonable
fees for the use of such facilities and the parties have agreed to all other terms
relative to such use.
16.3. Such sharing will not consume that portion of the capacity of such Facilities
reserved for Cingular's future use.
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 13 of 29
17. Construction in Right-of-way.
17.1. Notification to City Public Works Department. No work, other than emergency
repairs, shall commence without a permit to perform work in the City's Public
Ways. The City, in providing record drawings, makes no guarantee of accuracy,
either express or implied.
17.2. Notice of Entry on Private Property. When Cingular does not have an agreement to
access the private property which is adjacent to the proposed Facility, Cingular
shall comply with the requirements of this Subsection. If directed by the City, at
least 48 hours prior to entering private property or streets or public easements
adjacent to or on such private property to perform new construction or
reconstruction, a notice indicating the nature and location of the work to be
performed shall be physically posted, at no expense to the City, upon the affected
property by Cingular. A door hanger may be used to comply with the notice and
posting requirements of this Section. Cingular shall make a good faith effort to
comply with the property owner/resident's preferences, if any, on location or
placement of underground installations (excluding aerial cable lines utilizing
existing poles and existing cable paths), consistent with sound engineering
practices. Provided, however, that nothing in this Chapter shall permit Cingular to
unlawfully enter or construct improvements upon the property or premises of
another.
17.3. Installation. In accordance with requirements of ACC 12.04, entitled "Public
Works Construction" and ACC 12.28 entitled, "Barricades" and with the permit
issued, all transmission Facilities, equipment, and structures shall be located and
installed so as to cause minimum interference with the public right-of-way and
reasonable convenience of adjacent property owners, and at all times shall be
maintained in a safe condition, and in good order and repair. Suitable barricades,
flags, lights, flares, or other devices shall be used at such times and places as are
reasonably required for the safety of the public. Any poles or other fixtures placed
in any street by Cingular shall be placed in such manner as not to interfere with the
usual travel on such Public Way. With respect to excavations within any area, the
City and Cingular shall comply with the provisions of Chapter 19.122 RCW and
any other applicable state law. To obtain a permit for facility installation, Cingular
shall post a performance bond from a company which is duly authorized to issue
bonds in Washington State, in the amount determined by the City, after City review
of the scope of work intended. Once the installation and all related site restoration
work is completed to the City's satisfaction, and record plans for the permitted
work are received, the City will release the bond.
17.4. Record of Installation. Cingular shall provide to the City in AutoCad drawing file
format, upon the City's written request, copies of available drawings in current use
showing the location of Cingular's Facilities within the Public Way to include those
located on poles of the servicing electric utility. Cingular shall update such map to
reflect improvements to the system. Any such map (or update thereof) so submitted
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 14 of 29
shall be for informational purposes only and shall not obligate Cingular to
undertake any specific improvements, nor shall such map be construed as a
proposal to undertake any specific improvements. Upon completion of any new
work that changes the nature and location of facilities in the public right-of-way,
Cingular shall submit to the City an updated record of said changes in AutoCad
drawing file format. As an option, Cingular may submit only a map of such
changes and pay the City's cost to prepare the AutoCad record drawings. Each map
revision will clearly distinguish poles owned by the City from poles owned by the
electric power utility or other entity.
17.5. Interference with Use of Public Ways. Cingular must obtain a construction permit
to perform work in the Public Way for all work performed by Cingular in such
areas. When installing, locating, laying, or maintaining Facilities, apparatus, or
improvements, Cingular shall not interfere with the use of any street to any greater
extent than is necessary, and shall leave the surface of any such street in as good
and stable condition as it was prior to performance by Cingular of such work. Any
facility, apparatus, or improvement under this Ordinance Agreement shall be laid,
installed, located, or maintained in conformance with instructions given by, and to
the satisfaction of the City. In any event, Cingular shall, at its own expense, and to
the satisfaction of the City, in accordance with the terms of the application for any
permit to perform work in the Public Way, restore to City standards and
specifications damage or disturbance caused to streets as a result of Cingular's
construction or activity.
17.6. Coordination of Work. Upon issuance of a Right-of-way construction permit,
Cingular shall schedule a pre -construction meeting with the City prior to
commencing work in the Public Way. If the City notifies Cingular that a public
works project is planned which may affect Cingular's Facilities, Cingular will
cooperate with the City to coordinate construction projects in the Public Way. To
facilitate cooperation, Cingular shall:
17.6.a. By November 1 of the year before such construction plans will be
implemented, Cingular shall provide the City with a schedule of proposed
construction activities that may affect the Public Ways during the following
year;
17.6.b. Meet with the City, other grantees and franchisees and users of the Public
Ways as determined by the City to schedule and coordinate construction in
the Public Ways; and
17.6.c. Construction locations, activities and schedules shall be coordinated, as
required by the City Public Works Director, to minimize public
inconvenience, disruption or damages.
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 15 of 29
18. Transfer or Assignment of Franchise Agreement.
This Franchise agreement with Cingular shall not be sold, transferred, leased, assigned, or
disposed of directly or indirectly, in whole or in part, either by sale, voluntary or
involuntary merger, consolidation, by operation of law or otherwise, without the prior
written consent of the City to ensure a review of unforeseen circumstances not present at
the time of the original Franchise. The City's approval shall comply with any of its
ordinance requirements and shall not be unreasonably withheld or delayed. Such costs
associated with this review process shall be reimbursed to the City by the new prospective
Franchisee. Such reimbursable costs will not exceed those, in constant dollars, incurred in
the refranchising process.
An assignment of this Franchise shall be deemed to occur if there is an actual change in
control or working control or where ownership of fifty percent (50%) or more of the
beneficial interests, singly or collectively, are obtained by other parties. The word
"control" as used herein is not limited to majority stock ownership only, but includes
actual working control in whatever manner exercised.
Cingular shall promptly notify the City prior to any proposed change in, or transfer of, or
acquisition by any other party in control of Cingular's company or Cingular's
Telecommunications System or facilities, or substantial parts thereof, Franchisee shall
cause a review of the proposed transfer requiring City approval. In the event that the City
adopts a resolution denying its consent and such change, transfer or acquisition of control
has been affected, the City may cancel, terminate or revoke this Franchise agreement.
Approval shall not be required for mortgaging purposes or if said transfer is from Cingular
to another person or entity controlling, controlled by, or under common control with
Cingular.
Notwithstanding anything to the contrary in this Franchise: (a) Cingular may assign this
Franchise at any time to any of Cingular's partners or affiliates upon written notice to the
City; and (b) City hereby consents to Cingular's acquisition of AT&T Wireless Services,
Inc., and the application of this Franchise, at Cingular's option, to AT&T Wireless
Services, Inc.'s Facilities which are located in the City's Public Ways.
19. Removal and/or Abandonment of Cingular's Property.
In the event that the use of any part of the Facilities is discontinued for any reason for a
continuous period of twelve (12) months, or in the event such system or property has been
installed in any Public Way or public place without complying with the requirements of
this Franchise and all other applicable City ordinances and regulations, or this Franchise
has been terminated, canceled or has expired, Cingular shall promptly, upon being given
fourteen (14) days written notice, remove within thirty (30) days from the Public Way or
public places all such property and poles of such system other than any the City has
authorized to be abandoned in place. The City may extend such time period for removal
for an additional period of time not to exceed ninety (90) days. Upon removal, Cingular
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 16 of 29
shall promptly restore the Public Way and/or other areas from which such property has
been removed to a condition reasonably equivalent to the condition of the Public Way
existing immediately prior to such removal or abandonment. Any property of Cingular
remaining in place ninety (90) days after the termination or expiration of the Franchise
shall be considered permanently abandoned.
20. Franchise Application, Fees, Compensation, Charges, and Recordkeeping
Requirements.
20.1. Franchise Application Fee. Prior to the processing of this Franchise agreement,
Cingular agrees to submit its application on the form provided by the City together
with a Two Thousand Five Hundred Dollars and No Cents ($2,500.00) application
fee.
20.2. Administrative Fee. An administrative fee of One Thousand Seven Hundred Fifty
Dollars and No Cents ($1,750.00) will be assessed to Cingular as consideration for
the administrative processing cost incurred in the initial adoption of this Franchise
and for the continued monitoring and enforcement of same which is over and above
the application fee.
20.3. Other Required Permits or Inspections. Cingular shall, in addition to the fees
described in Sections 1820.1 and 1820.2 above, be subject to all permit fees
associated with activities undertaken as a result of the authority granted in this
Franchise and pursuant to any requirements of other City ordinances and
regulations. Where the City incurs costs and expenses for review, inspection, or
supervision of activities undertaken through the authority granted in this Franchise
and pursuant to any requirements of other City ordinances and regulations relating
to the subject for which a permit fee is not established, Cingular shall pay such
actual and direct costs and expenses directly to the City. In addition to the above,
Cingular shall promptly reimburse the City for all reasonable and documented costs
the City reasonably incurs in response to any Emergency involving Cingular's
facilities.
20.4. Compensation for Use of the Public Ways, Franchise Fee, Utility Tax, and Late
Payment Charge.
20.4.a. Pursuant to Section 35.21.860 of the Revised Code of Washington (RCW),
the City is precluded from imposing a Franchise fee on a "telephone
business" as defined in RCW 82.04.065, except for administrative expenses
or any tax authorized by RCW 35.21.865 et. seq. Cingular hereby warrants
that all of its operations as authorized under this Franchise are those of a
telephone business as defined in RCW 82.04.065. The City, relying on
Cingular's warranty, is not authorized at this time to impose a Franchise fee
under the terms of this ordinance, other than as described herein.
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 17 of 29
20.4.b. The City hereby waives its right to impose a Franchise fee or any other
percentage based fee on Cingular for this Franchise, other than to recover its
administrative expenses or to exercise its taxing authority, if any of
Cingular's operations. If Cingular applies with the City to place facilities in
the Public Ways which do not relate to wireless Communications Services
(e.g., copper cable, fiber optic cable, or coaxial cable based landline
communications services), the City reserves the right to renegotiate the
terms of this agreement. In addition, if Cingular applies for the right to
install an extensive amount of Facilities in the Public Ways as described in
Section 2.1.c, the City reserves the right to renegotiate the terms of this
agreement.
20.4.c. Utility Tax Liability. Revenues derived directly or indirectly from sources
within the City shall be subject to applicable utility tax. Franchise fees, if
applicable, shall be in addition to any utility tax, but shall be collectible only
to the extent as then allowed by law. The initial utility tax rate shall be 5%
of Gross Revenues in accordance with ACC 3.84.
20.4.d. Late Payment. Any fee, costs, or expense owed or reimbursable to the City
shall be considered delinquent if not paid within thirty (30) days of the
billing date and simple interest at a twelve percent (12%) annual percentage
rate on the total amount past due shall accrue.
20.5. Fees and Compensation Not a Tax. The fees, charges and fines provided for in this
Franchise and any compensation charged and paid for the Public Ways provided for
herein, whether fiduciary or in-kind, are separate from, and additional to, any and
all federal, state, local and City taxes as may be levied, imposed or due from a
telecommunications carrier or provider, its customers or subscribers or on account
of the lease, sale, delivery or transmission of telecommunications services.
20.6. Taxes are Not to be a Credit. The compensation paid under this Franchise shall be
exclusive of and in addition to all special assessments and taxes of whatever nature
which are applicable to all other Persons or entities doing business within the City,
including, but not limited to, ad valorem tax, sales tax, corporate or business
occupation taxes or other taxes or fees imposed or levied by any governmental
entity.
20.7. Access to Records. All maps maintained by Cingular with respect to the location
of its Facilities within the Public Ways shall be made available to the City for
inspection at reasonable times and intervals; provided, however, that nothing in this
Section shall be construed to require Cingular to disclose proprietary or confidential
information without adequate safeguards for its confidential or proprietary nature.
Exhibit I
Ordinance No. 5868
September 27, 2004
Page 18 of 29
21. Indemnification, Insurance, and Bonds or other Surety.
21.1 Indemnification.
21.1.a. Claims Against Cingular. Cingular hereby releases, covenants not to bring
suit and agrees to indemnify, defend and hold harmless the City, its elected
and appointed officials, officers, employees, agents, representatives,
engineers, consultants, and volunteers from any and all claims, costs,
judgments, awards, or liability to any person, including claims by Cingular's
own employees to which Cingular might otherwise be immune under Title
51 RCW, arising from injury or death of any person or damage to property
of which the negligent acts or omissions of Cingular, its agents and servants,
officers or employees in performing under this Franchise Agreement are the
proximate cause.
21.1.b. Claims Against City. Cingular further releases, covenants not to bring suit
and agrees to indemnify, defend and hold harmless the City, its elected and
appointed officials, officers, employees, agents, representatives, engineers,
consultants, and volunteers from any and all claims, costs, judgments,
awards, or liability to any person including claims by Cingular's own
employees, to which Cingular might otherwise have immunity under Title
51 RCW, arising against the City solely by virtue of the City's ownership or
control of the rights-of-way or other public properties, by virtue of
Cingular's exercise of the rights granted herein, or by virtue of the City's
permitting Cingular's use of the City's rights-of-way or other public
property, based upon the City's inspection or lack of inspection of work
performed by Cingular, its agents and servants, officers or employees in
connection with work authorized on the City's property or property over
which the City has control, pursuant to this Franchise Agreement, or
pursuant to any other permit or approval issued in connection with this
Franchise Agreement. This covenant of indemnification shall include, but
not be limited by this reference, claims against the City arising as a result of
the negligent acts or omissions of Cingular, its agents, servants, officers, or
employees in barricading, instituting trench safety systems or providing
other adequate warnings of any excavation, construction, or work in any
public right of way or other public place in performance of work or services
permitted under this Franchise Agreement. Inspection or acceptance by the
City of any work performed by Cingular at the time of completion of
construction shall not be grounds for avoidance of any of these covenants of
indemnification.
21.1.c. Extent of Duties; Tender of Defense. Said indemnification obligations shall
extend to claims which are not reduced to a suit and any claims which may
be compromised prior to the culmination of any litigation or the institution
of any litigation. In the event that Cingular refuses the tender of defense in
any suit or any claim, said tender having been made pursuant to the
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 19 of 29
indemnification clauses contained herein, and said refusal is subsequently
determined by a court having jurisdiction (or such other tribunal that the
parties shall agree to decide the matter), to have been a wrongful refusal on
the part of Cingular, then Cingular shall pay all of the City's costs for
defense of the action, including all reasonable expert witness fees and
reasonable attorneys' fees and the reasonable costs of the City, including
reasonable attorneys' fees for recovering costs under this indemnification
clause.
21.1.d. Concurrent Negligence. 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 Cingular, and the City, its elected and
appointed officials, officers, employees, agents, representatives, engineers,
consultants, and volunteers, Cingular's liability hereunder shall be only to
the extent of Cingular's negligence. It is further specifically and expressly
understood that the indemnification provided herein constitutes Cingular's
waiver of immunity under Title 51 RCW, solely for the purposes of this
indemnification. This waiver has been mutually negotiated by the parties.
21.1.e. Survival. The provisions of this Section shall survive the expiration or
termination of this Franchise Agreement.
21.1.f. Damage to Facilities. Cingular releases and waives any and all claims
against the City, its elected and appointed officials, officers, employees,
agents, representatives, engineers, consultants, and volunteers, for damage
to or destruction of Cingular's facilities caused by or arising out of activities
conducted by the City, its elected and appointed officials, officers,
employees, agents, representatives, engineers, consultants, and volunteers,
in the public ways, rights-of-way, easements, or property subject to this
Franchise Agreement except to the extent any such damage or destruction is
caused by or arises from the sole negligence or any willful or malicious
action on the part of the City, its elected and appointed officials, officers,
employees, agents, representatives, engineers, consultants, and volunteers.
Cingular further agrees to indemnify, hold harmless and defend the City
against any claims for damages, including, but not limited to, business
interruption damages and lost profits, brought by or under users of
Cingular's facilities as the result of any interruption of service due to
damage or destruction of the user's facilities caused by or arising out of
activities conducted by the City, its elected and appointed officials, officers,
employees, agents, representatives, engineers, consultants, and volunteers,
except to the extent any such damage or destruction is caused by or arises
from the sole negligence or any willful or malicious actions on the part of
the City, its elected and appointed officials, officers, employees, agents,
representatives, engineers, consultants, and volunteers.
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 20 of 29
21.2. Insurance. Cingular shall maintain in full force and effect throughout the term of
this agreement the following:
21.2.a. Commercial General Liability insurance in an amount of not less than
$5,000,000 per occurrence, $5,000,000 General Aggregate and $5,000,000
Products/Completed Operations Aggregate. The Commercial General
Liability insurance policy shall contain or be endorsed to include the
following:
1. Products and Completed liability operations coverage.
2. Contractual liability coverage.
3. Cross liability/Severability of interest.
4. Broad form property damage.
5. Occurrence form.
6. Independent contractors coverage.
7. No X, C, or U (explosion, collapse, or underground) exclusion.
8. City named as additional insured.
21.2.b. Automobile Liability Insurance covering any auto in an amount of not less
than $5,000,000 combined single limit.
The Automobile Liability and Commercial General Liability insurance shall
be written by companies licensed to do business in the State of Washington.
An excess or umbrella liability policy may be purchased to meet the
required insurance limits. Certificates of insurance evidencing the insurance
requirements shall be furnished to the City before granting of the permit and
at any time thereafter at the request of the City. Such insurance certificates
shall give thirty (30) days notice of cancellation to the City. Any
contractors, subcontractors, or agents of Cingular shall also meet all of the
insurance requirements of this Section 20 and shall not be allowed on any
City right-of-way until certificates of insurance evidencing the insurance
requirements in a satisfactory manner are received by the City.
21.3. Performance Bond. Cingular shall promptly repair or cause to be repaired any
damage to City Property caused by Cingular or any agent, employee or servant of
Cingular. Cingular shall comply with all present and future ordinances and
regulations regarding excavation or construction and, if deemed necessary by the
City, shall be required to post a performance bond acceptable to the City in an
amount specified by the City in favor of the City warranting that all restoration
work will be done promptly and in a workmanlike manner.
21.3.a. Abandonment/Facility Removal Bond. As a condition of approval of this
Franchise, Cingular shall provide to the City a performance bond acceptable
to the City in the amount of $30,000.00 per facility, warranting to the City
the removal by Cingular or by the City of any Facilities from the Public
Way in the event of abandonment of any such Facilities as set out in Section
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 21 of 29
19 herein. Provision of the bond is required prior to execution of the
Franchise by the City, and the bond shall be maintained in full force and
effect during the Term of this Franchise. Failure to provide and/or maintain
the required abandonment/facility removal bond shall be a material violation
of the conditions of this Franchise and shall be cause for termination of this
Franchise pursuant to the terms of Section 23 of this Franchise. Cingular
may but is not required to provide a single bond which meets all of the
bonding requirements as set out both in this section and other sections of
this Franchise. In the event Cingular is unable to provide bonding as
required herein, Cingular may provide another form of security acceptable
to the City in lieu of a bond, however, failure by Cingular to provide and/or
obtain acceptance by the City of an alternate form of security will result in
termination of this Franchise pursuant to the terms of Section 23 of this
Franchise .
21.4. Recourse Against Bonds. Bonds may be utilized by the City for purposes,
including, but not limited to, reimbursement to the City by reason of Cingular's
failure to pay the City any sums due under the terms of this Franchise,
reimbursement to the City for reasonable costs borne by the City to correct
Cingular's violations not corrected after due notice, and monetary remedies or
damages assessed against Cingular due to default or violations of the requirements
of this Franchise.
21.4.a. Recourse. In the event Cingular has been declared to be in default by the
City under this Franchise and if Cingular fails, within thirty (30) days of
mailing of the City's notice of default, to pay the City any monetary
sanctions, or fails to perform any of the conditions of the Franchise, the City
may thereafter foreclose against the performance bond and/or withdraw
from any security an amount sufficient to compensate the City's damages,
with interest at the legal rate. Upon such foreclosure or withdrawal, the City
shall notify Cingular in writing, by First Class Mail, postage prepaid, of the
amount and date thereof.
21.4.b. Restoration. Within thirty (30) days after mailing notice to Cingular that the
City has foreclosed Cingular's performance bond, Cingular shall deposit
such further bond, as the City may require, sufficient to meet the
requirements of this Franchise agreement.
21.4.c. Rights of the City. The rights reserved to the City with respect to any bond
are in addition to all other rights of the City whether reserved by this
Franchise agreement or authorized by law, and no action, proceeding, or
exercise of a right with respect to any bond or other security shall constitute
an election or waiver of any rights or other remedies the City may have.
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 22 of 29
22. Default.
If Cingular fails to comply with any of the provisions of this Franchise, unless otherwise
provided for herein, the City may serve upon Cingular a written notice to so comply within
thirty (30) days from the date of such notice. If Cingular is not in compliance with the
terms of this Franchise after expiration of said thirty (30) day period, the City may act to
remedy the violation and may charge the reasonable and documented costs and expenses,
inclusive of legal fees, of such action to Cingular. The City may act without the thirty (30)
days prior notice in case of an Emergency. In addition to other remedies provided herein,
if Cingular is not in compliance with requirements of this Franchise, and if a good faith
dispute does not exist concerning such compliance, the City may place a moratorium on
issuance of any pending Cingular right-of-way use permits until compliance is achieved.
23. Enforcement and Termination of Franchise.
23.1. Notice of Violation. In the event that the City believes that Cingular has not
complied with the terms of the Franchise, the City shall notify Cingular in writing
of the exact nature of the alleged noncompliance or violation.
23.2. Cingular's Right to Cure or Respond. EXCEPT in cases involving a notice of
safety violation (Section 11, "Safety") where a cure is required within twenty-four
(24) hours, Cingular shall have thirty (30) days from receipt of a Notice of
Violation described in Section 23.1: (1) to respond to the City contesting the
assertion of noncompliance or violation, (2) to cure such violation, or (3) in the
event that, by the nature of violation, such violation cannot be cured within the
thirty (30) day period, initiate reasonable steps to remedy such violation and notify
the City of the steps being taken and the projected date that they will be completed.
23.3. Public Hearing. In the event that Cingular fails to respond to the notice described in
Section 11 or Section 23.1 pursuant to the procedures set forth in Section 23.2, or in
the event that the alleged violation is not remedied within the prescribed period of
time after Cingular is notified of the alleged violation pursuant to Section 11 or
Section 23.1, the City Council shall schedule a public hearing to investigate the
violation. Such public hearing shall be held at the next regularly scheduled hearing
of the City Council which is scheduled at a time which is no less than five (5)
business days therefrom. The City shall notify Cingular of the time and place of
such public hearing and provide Cingular with an opportunity to be heard.
23.3.a. Standards for Revocation or Lesser Sanctions. If the City Council
determines that a grantee, Franchisee, or lessee willfully violated or failed to
comply with any of the provisions of its Telecommunications code, this
Franchise, or through willful misconduct or gross negligence failed to heed
or comply with any notice given the Franchisee by the City under the
provisions of this Franchisee or its codes, then the Franchisee shall, at the
election of the City Council, be declared in default, forfeit all rights
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 23 of 29
conferred hereunder and the Franchise may be revoked or annulled by the
City Council. The City Council may elect, in lieu of the above and without
any prejudice to any of its other legal rights and remedies, to pursue other
remedies, including obtaining an order from the Superior Court having
jurisdiction compelling the Franchisee to comply with the provisions of this
Franchise or its codes, and to recover damages and costs incurred by the
City by reason of the Franchisee's failure to comply. The City Council shall
utilize the following factors in analyzing the nature, circumstances, extent,
and gravity of the violation and in making its determination under this
Section:
1. Whether the misconduct was egregious;
2. Whether substantial harm resulted;
3. Whether the violation was intentional;
4. Whether there is a history of prior violations of the same or other
requirements;
5. Whether there is a history of overall compliance; and
6. Whether the violation was voluntarily disclosed, admitted or cured.
23.4. Enforcement. Subject to applicable federal and state law, in the event the City,
after such public hearing, determines that Cingular is in default of any provision of
the Franchise, the City may:
23.4.a. Foreclose on all or any part of any security provided under this Franchise, if
any, including without limitation, any bonds or other surety; provided,
however, the foreclosure shall only be in such a manner and in such amount
as the City reasonably determines is necessary to remedy the default;
23.4.b. Commence an action at law for monetary damages or seek other equitable
relief,
23.4.c. After the expiration of said 30 -day period to cure violation, the City may act
to remedy the violation and charge the costs and expenses of such action to
the grantee, Franchisee, or lessee;
23.4.d. In the case of a material breach of the Franchise, declare the Franchise
agreement to be terminated or revoked; or
23.4.e. Seek specific performance of any provision, which reasonably leads itself to
such remedy, as an alternative to damages.
23.5 Cingular shall not be relieved of any of its obligations to comply promptly with a
provision of the Franchise by reason of any failure of the City to promptly enforce
compliance.
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 24 of 29
23.6. Acts of God. Cingular shall not be held in default or noncompliance with the
provisions of the Franchise, nor suffer any enforcement or penalty relating thereto,
where such noncompliance or alleged defaults are caused by strikes, acts of God,
power outages, or other events reasonably beyond its ability to control.
24. Franchise Amendment.
This Franchise may be amended only by written instrument, signed by both parties, which
specifically states that it is an amendment to this Franchise, and is approved and executed
in accordance with the laws of the State of Washington. Without limiting the generality of
the foregoing, this Franchise (including, without limitation Section 21 above) shall govern
and supersede and shall not be changed, modified, deleted, added to, supplemented or
otherwise amended by any permit, approval, license, agreement or other document
required by or obtained from the City in conjunction with the exercise (or failure to
exercise) by Cingular of any and all rights, benefits, privileges, obligations, or duties in
and under this Franchise, unless such permit, approval, license, agreement or document
specifically:
1. References this Franchise; and
2. States that it supersedes this Franchise to the extent it contains terms and conditions
which change, modify, delete, add to, supplement or otherwise amend the terms and
conditions of this Franchise.
25. Miscellaneous Provisions.
25.1. Action of City. In any action by the City or representative thereof mandated or
permitted under the terms hereof, such party shall act in a reasonable, expeditious,
and timely manner. Furthermore, in any instance where approval or consent is
required under the terms hereof, such approval or consent shall not be unreasonably
withheld.
25.2. Notice. Unless otherwise expressly agreed between the parties, every notice or
response to be served upon the City or Cingular shall be in writing, and shall be
deemed to have been duly given to the required party five (5) business days after
having been posted in a properly sealed and correctly addressed envelope by
certified or registered mail, postage prepaid, at a Post Office or branch thereof
regularly maintained by the U.S. Postal Service.
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 25 of 29
The notices or responses to the City shall be addressed as follows:
City Clerk
City of Auburn
25 West Main Street
Auburn, WA 98001-4998
With a copy to:
City Attorney
City of Auburn
25 West Main Street
Auburn, WA 98001-4998
The notices or responses to Cingular shall be addressed as follows:
Cingular Wireless Lease Administration
6100 Atlantic Boulevard, 1 st Floor
Mail Code: GAN02
Norcross, GA 30071
With a courtesy copy to:
Counsel - West Region
Cingular Wireless
3345 Michelson Drive, Suite 100
Irvine, California 92612
and
Cingular Wireless
2445 1401h Avenue NE, Suite 202
Bellevue, WA 98005
Attn: Property Manager
The City and Cingular may designate such other address or addresses from time to
time by giving notice to the other.
25.3. Descriptive Headings. The captions to sections contained herein are intended solely
to facilitate the reading thereof. Such captions shall not affect the meaning or
interpretation of the text herein.
25.4. Cingular Availability. Cingular shall be available to City staff employees of the
City department having jurisdiction over Cingular's activities 24 hours a day, 7
days a week, regarding problems or complaints resulting from the attachment,
installation, operation, maintenance, or removal of Cingular's Facilities. The City
may contact by telephone the network control center at (800) 260-6003, a telephone
number at which an Cingular employee can be reached twenty-four (24) hours a
day, seven (7) days a week regarding such problems or complaints.
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 26 of 29
25.5. Venue of any Court Action. This Franchise shall be governed and construed by and
in accordance with the laws of the State of Washington. In the event that suit is
brought by a party to this Franchise, the parties agree that jurisdiction of such action
shall be vested exclusively in the King County Superior Court for the State of
Washington, or in the United States District Court for the Western District of
Washington located in Seattle, Washington.
25.6. Exhibits. All exhibits referred to in this Franchise and any addenda, attachments,
and schedules which may, from time to time, be referred to in any duly executed
amendment to this Franchise are by such reference incorporated in this Franchise
and shall be deemed a part of this Franchise.
25.7. City reserves the right to enforce any and all applicable laws, rules and regulations
which are within the City's authority and jurisdiction to enforce, subject to the
terms and conditions of this agreement.
26. Severability.
If any section, sentence, paragraph, term, or provision hereof is determined to be illegal,
invalid, or unconstitutional, by any court of competent jurisdiction or by any state or
federal regulatory authority having jurisdiction thereof, such determination shall have no
effect on the validity of any other section, sentence, paragraph, term or provision hereof,
all of which will remain in full force and effect for the term of the Franchise, or any
renewal or renewals thereof.
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 27 of 29
PASSED BY THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, AT ITS
REGULAR MEETING ON THE _yt day of c 2004.
CITY BURN
J
Peter B. Lewis
Mayor
ATTEST:
Danielle E. Daskam,
City Clerk
APPROVED AS TO FORM:
Hdniel B. Heid,
City Attorney
Exhibit I
Ordinance No. 5868
September 27, 2004
Page 28 of 29
(Cingular)
PACIFIC BELL WIRELESS NORTHWEST, LLC
a Delaware limited liability company,
dba Cingular Wireless
E. Don acLeod
Director Network Operations
STATE OF WASHINGTON)
)ss.
COUNTY OF KING )
On this G..� ... day of 0 C 6 k -P Y- , 2004, before me the undersigned, a Notary Public in and
for the State of Washington, duly commissioned and sworn, personally appeared E. Don
MacLeod, Director Network Operations of Cingular Wireless, 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.
``���\\\\\\1111
Signature �1 �-• Dp 1►►►�
NOTARY PURLIC in and for the State of % �= _ . _~ a'
Washington, residing at 9-e f e y -r- ;, iO&s���
/zz/ 9� ��"o?�I,3.. A G~o'
MY COMMISSION EXPIRES: %' 13 -o?o� /�i►►�OP Wag\\" N.�
Exhibit 1
Ordinance No. 5868
September 27, 2004
Page 29 of 29
EXHIBIT "A"
STATEMENT OF ACCEPTANCE
Cingular ,for itself, its successors and assigns, hereby accepts and agrees to be bound by all
terms, conditions and provisions of the Franchise granted pursuant to Ordinance No. 5868 ,
attached hereto and incorporated herein by this reference.
By:
Name: E. Don MacLeod
Title: Director Netwo k Opera 'ons
Date:
1a zg t3`/
Attached hereto is a copy of the executed Ordinance approving the execution of the Franchise by
the City and a corporate resolution or corporate secretary certificate therefor duly executed and
approving this Statement of Acceptance, the execution thereof and authorizing the officer
executing this Statement of Acceptance to do so.
Exhibit A
Franchise Agreement — Cingular Wireless
Page 1 of i
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