HomeMy WebLinkAboutITEM VIII-B-1
C ITY O Fti
' AGENDA BILL APPROVAL FORM
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WASHINGTON
Agenda Subject Date:
Resolution No. 4665 December 22, 2010
Department: Attachments: Budget Impact:
Public Works Resolution No 4665, Franchise $0
Agreement No. 10-23 and Exhibit A, B
and C
Administrative Recommendation:
City Council adopt Resolution No. 4665.
Background Summary:
Resolution No. 4665 sets the date of the public hearing for the New Cingular Wireless PCS, LLC
Franchise Agreement No. 10-23 for February 7, 2011 at 7:30 pm in Council Chambers.
Franchise Agreement No. 10-23 is attached as back up documentation for Resolution No. 4665. Per
Auburn City Code Chapter 20.06.010, a franchise shall be required of any commercial utility or
telecommunications operator or carrier or other person who desired to occupy public ways of the city and
to provide telecommunications or commercial utility services to any person or area in the city.
New Cingular Wireless PCS, LLC currently operates an antenna that provides wireless communications
service to PCS customers in the Auburn area. They have applied to the City for a Franchise Agreement
for the right of entry, use, and occupation of certain public rights-of-way within the City of Auburn for an
antenna and associated ground equipment.
The Franchise Agreement covers these existing facilities in Auburn and requires the applicant to carry a
minimum of $1,000,000 in insurance. Additionally, the agreement requires that the applicant maintain a
security bond with the City ensuring that they will remain in compliance with the terms of the agreement.
W0118-5
A3.14
Reviewed by Council & Committees: Reviewed by Departments & Divisions:
❑ Arts Commission COUNCIL COMMITTEES: E Building E M&O
❑ Airport ❑ Finance ❑ Cemetery ❑ Mayor
❑ Hearing Examiner ❑ Municipal Serv. ❑ Finance ❑ Parks
❑ Human Services E Planning & CD E Fire E Planning
❑ Park Board EPublic Works E Legal E Police
❑ Planning Comm. ❑ Other E Public Works ❑ Human Resources
Action:
Committee Approval: ❑Yes ❑No
Council Approval: ❑Yes ❑No Call for Public Hearing
Referred to Until
Tabled Until
Councilmember: Wagner Staff: Dowd
Meeting Date: January 18, 2011 Item Number: VIII.B.1
AUBURN * MORE THAN YOU IMAGINED
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} RESOLUTION NO. 4665
1 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, SETTING A,'PUBLIC HEARING
TO CONSIDER A FRANCHISE- AGREEMENT WITH NEW
'CINGULAR WIRELESS PCS, LLC
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WHEREAS, New Cingular Wireless PCS, LLC. has, applied to the City for
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a non-exclusive Franchise Agreement for the right of entry, use, and occupation
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of certain public rights-of-way within the City of Auburn, expressly to install,
C' constructs erect, operate, maintain, repair, relocate and remove its facilities in, on,
upon, along and/or across those right(s)-of-way; and
if
WHEREAS, the Public Works Committee of the Auburn City Council has
reviewed New Cingular Wireless PCS, LLC's application materials, and, pursuant
to ACC 20.04:030, the Public Works Committee has recommended to the City
Council that it-schedule a public hearing on the application; and
WHEREAS, the City Council agrees with the recommendation of the
Public Works Committee,
NOW, THEREFORE, THE CITY'000NCIL OF THE CITY OF AUBURN,
WASHINGTON;- HEREBY RESOLVES as follows:
{ Section 1.' That a'heaping on the-.application by New Cingular Wireless
PCS, LLC. for.a Franchise Agreement with the City of Auburn is hereby set for
7:30 p.m. on the 7th day of February, 2011, at the City Council Chambers at 25
West Main Street, Auburn, Washington, 98001, with all persons wishing to speak
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Resolution No. 4665
Franchise Agreement No. 10723
December 22, 2010
Page 1
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to the application at the public hearing being invited to attend.
Section 2. The Mayor is hereby authorized to implement such
administrative procedures as may be necessary to carry out the directives of
this legislation, including posting notice of such public hearing as required by
State law and City Ordinance.
Section 3. This Resolution shall be in full force in effect upon passage
and signatures hereon.
DATED and SIGNED this day of , 20
CITY OF AUBURN
PETER B. LEWIS
Mayor
Attest:
Danielle E. Daskam, City Clerk
Approved as to Form:
Daniel B. Heid, City Attorney
Resolution No. 4665
Franchise Agreement No. 10-23
December 22, 2010
Page 2
ORDINANCE NO. 6344
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, GRANTING TO NEW CINGULAR
WIRELESS PCS, LLC, A DELAWARE LIMITED LIABILITY
COMPANY, A FRANCHISE FOR A WIRELESS
COMMUNICATION SERVICE PROVIDER
WHEREAS, New Cingular Wireless PCS, LLC ("Grantee") has applied to
the City of Auburn ("City") for a non-exclusive Franchise for the right of entry,
use, and occupation of certain public right(s)-of-way within the City, expressly to
install, construct, erect, operate, maintain, repair, relocate and remove its
facilities in, on, upon, along and/or across those right(s)-of-way; and
WHEREAS, following proper notice, the City Council held a public hearing
on Grantee's request for a Franchise, at which time representatives of Grantee
and interested citizens were heard in a full public proceeding affording
opportunity for comment by any and all persons desiring to be heard; and
WHEREAS, from 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 that the franchise be granted to Grantee,
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN
WASHINGTON, DO ORDAIN as follows:
Section 1. Grant of Right to Use Franchise Area
A. Subject to the terms and conditions stated herein, the City grants to
the Grantee general permission to enter, use, and occupy the right(s)-of-way
and/or other public property specified in Exhibit "A," attached hereto and
incorporated by reference (the "Franchise Area").
B. The Grantee is authorized to install, remove, construct, erect,
operate, maintain, relocate and repair the types of facilities specified in Exhibit
"B," attached hereto and incorporated by reference, and all necessary
appurtenances thereto, ("Grantee Facilities") for provision of those services set
forth in Exhibit "B" ("Grantee Services") in, along, under and across the Franchise
Area.
C. This Franchise does not authorize the use of the Franchise Area for
any facilities or services other than Grantee Facilities and Grantee Services, and
it extends no rights or privilege relative to any facilities or services of any type,
Ordinance No. 6344
Franchise Agreement No. 10-23
December 6, 2010
Page 1 of 15
including Grantee Facilities and Grantee 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
Area, unless the City determines that entering into such agreements interferes
with Grantee's right set forth herein.
E. Except as explicitly set forth herein, this Franchise does not waive
any rights that the City has or may hereafter acquire with respect to the
Franchise Area or any other City roads, rights-of-way, property, or any portions
thereof. This Franchise shall be subject to the power of eminent domain, and in
any proceeding under eminent domain, the Grantee acknowledges its use of the
Franchise Area shall have no value.
F. The City reserves the right to change, regrade, relocate, abandon,
or vacate any right-of-way within the Franchise Area. If, at any time during the
term of this Franchise, the City vacates any portion of the Franchise Area
containing Grantee Facilities, the City shall reserve an easement for public
utilities within that vacated portion, pursuant to RCW 35.79.030, within which the
Grantee may continue to operate any existing Grantee Facilities under the terms
of this Franchise for the remaining period set forth under Section 3.
G. The Grantee agrees that its use of Franchise Area shall at all times
be subordinated to and subject to the City and the public's need for municipal
infrastructure, travel, and access to the Franchise Area, except as may be
otherwise required by law.
Section 2. Notice
A. Written notices to the parties shall be sent by certified mail to the
following addresses, unless a different address shall be designated in writing and
delivered to the other party.
City: City Engineer
City of Auburn
25 West Main Street
Auburn, WA 98001-4998
Telephone: (253) 931-3010; Fax: (253) 931-3048
with a copy to: City Clerk
City of Auburn
25 West Main Street
Auburn, WA 98001-4998
Ordinance No. 6344
Franchise Agreement No. 10-23
December 6, 2010
Page 2 of 15
Grantee:
New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Re: Cell Site # WA416
Cell Site Name: Christopher
Fixed Asset 10013466
12555 Cingular Way, Suite 1300
Alpharetta, GA 30004
With copy to: New Cingular Wireless PCS, LLC
Attn: Legal Department
Re: Cell Site # WA416
Cell Site Name: Christopher
Fixed Asset 10013466
(U.S. Mail) P.O. Box 97061
Redmond, WA 98073-9761
(ovemightcourier) 16331 NE 72nd Way, RTC1
Redmond, WA 98052
A copy sent to the Legal Department is an administrative step which alone does not constitute
legal notice. Either party hereto may change the place for the giving of notice to it by thirty (30)
days' prior written notice to the other.
B. Any changes to the above-stated Grantee information shall be sent
to the City's Right-of-Way Manager, with copies to the City Clerk, referencing the
title of this agreement.
C. The above-stated Grantee voice and fax telephone numbers shall
be staffed at least during normal business hours, Pacific time zone.
Section 3. Term of Agreement
A. This Franchise shall run for a period of five (5) years, from the date
of execution specified in Section 5.
B. Renewal Option of Term: The Grantee may renew this Franchise
for an additional five (5) year period upon submission and approval of the
application specified under ACC 20.06.130, as it now exists or is amended,
within the timeframe set forth therein (currently 240 to 180 days prior to
expiration of the then-current term). Any materials submitted by the Grantee for
a previous application may be considered by the City in reviewing a current
application, and the Grantee shall only submit those materials deemed
Ordinance No. 6344
Franchise Agreement No. 10-23
December 6, 2010
Page 3 of 15
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.j necessary by the City to address changes in the Grantee Facilities or Grantee
Services, or to reflect specific reporting periods mandated by the ACC.
C. Failure to Renew Franchise - Automatic Extension. If the Parties
fail to formally renew this Franchise prior to the expiration of its. term or any
i extension thereof, the Franchise' automatically continues month- to month until
renewed or either party gives written notice at least one hundred.and eighty (180)
days in advance of intent,not to renew the Franchise.
Section 4. Definitions
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For the purpose of this agreement:
"ACC" means the Auburn City Code. .
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"Emergency", means a condition of imminent danger to the health, safety and
j welfare of persons or property located within the, City including, without limitation,
j damage to persons or property from natural consequences, such as storms,
earthquakes; riots, acts of terrorism or wars.
"Maintenance or Maintain" shall mean examining, testing, inspecting, repairing,
maintaining and. replacing the existing ` Grantee Facilities or any part thereof as
'i required and necessary for-safe operation.
"Relocation means- permanent movement of Grantee facilities required by the
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City, and. not temporary or incidental movement of such facilities, or other
revisions -Grantee,would accomplish-and charge to third parties without regard to
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municipal request.
"Rights-of-Way" means the surface and the space above and below streets,
roadways, highways, avenues, courts, lanes', alleys, sidewalks, easements,
rights-of-ways' and similar public properties and areas.
Section 5. Acceptance of Franchise
I, A. This Franchise, and any rights granted hereunder, shall not
become effective for any purpose unless and until Grantee files with the City
Clerk (1) the. Statement of Acceptance, attached hereto as Exhibit "C," and
incorporated by reference, (2) all verifications of insurance coverage specified
under Section 15, and (3) he financial. guarantees specified in Section 16
(collectively, "Franchise Acceptance"). The date that such Franchise Acceptance
'k is filed with the City Clerk shall be the effective date of this Franchise.
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Ordinance No. 6344
Franchise Agreement No. 10-23
December 6, 2010
Page .4 of 15
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B. Should the Grantee fail to -file the Franchise Acceptance with the
' City Clerk within 30 days after the effective' date of the ordinance approving the
Franchise, said agreement will automatically terminate and shall be null and void.
Section 6. Construction and Maintenance
A. The Grantee shall apply for, obtain, and- comply with the terms of all
permits required under ACC Chapter 12.24 for any work done. upon Grantee
Facilities.' Grantee shall comply with all- applicable City, State, and Federal
codes, rules, regulations, and orders in undertaking such work, which shall be
done in a thorough and proficient manner.
I B. Grantee agrees to coordinate its activities with the City and all other
utilities located within the public right-of-way within which Grantee is under taking
its activity.
C. The City expressly reserves the right to prescribe how and where
Grantee Facilities shall be installed within- the public right=of-way and may from
time Jo time, pursuant to the applicable sections of this Franchise, require the.
removal,- relocation and/or replacement thereof in the, public interest and safety at
the expense of the Grantee..
'i D. Before commencing any work within. the public right-of-way, the
!f Grantee shall comply, with the One Number Locator,provisions of RCW Chapter
19.122 to identify existing utility infrastructure.
E. Tree Trimming. Upon prior written approval of the City and in
accordance with City ordinances, Grantee shall have .,the authority to reasonably
y trim trees upon-and overhanging streets, public rights-of-way, and places in the
Franchise Area so, as to prevent the branches of such trees from coming in
physical contact with the. Grantee Facilities. Grantee shall be responsible for
debris removal from such activities.. If such debris, is not removed within twenty-
four (24) hours of.completion of the'trimming, the City'may, at its sole discretion,
remove such debris and charge Grantee for the cost thereof. This section does
not, in any instance, grant automatic authority to'clear vegetation for purposes of
providing a -clear -oath lor radio signals. Any such general vegetation clearing will
require a land clearing permit.
Section 7. Repair and Emergency Work
In the event of an emergency, the Grantee may commence such repair
and emergency-response work as required under the circumstances, provided
that the Grantee shall notify the City Right-of-Way Manager in writing as promptly
as.possible, before such repair. or emergency work commences, or as soon
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Ordinance No. 6344
FranchiseAgreement No. 10-23 .
December 6, 2010
Page 5 of 15
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thereafter as possible, if advance notice is not practical. The City may act, at
any time, without prior written notice in the case of emergency, but shall notify
the Grantee in writing as promptly as possible under the circumstances.
;r. Section 8. Damages to City and Third-Party Property
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Grantee agrees that should any of its actions under this Franchise impairs
or damages any City property, survey monument, or property owned by a third-
party, Grantee will restore, at its own cost, and expense, said property to a safe
'I condition. Such repair work shall be performed and completed to the satisfaction
of the City Engineer.
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Section 9. Location Preference
A. Any structure, equipment, appurtenance or tangible property of a
utility, other than the. Grantee's, which was installed, constructed, completed or in
place prior in time to Grantee's application for `a permit to construct or repair
'f Grantee -Facilities under this Franchise shall have preference as to positioning
and location with respect to the Grantee Facilities. However, to the extent that
the Grantee Facilities are completed and installed prior to another, utility's
f submittal of a permit for new or additional structures, equipment, appurtenances
or tangible. property, then the Grantee Facilities shall have priority. These rules
governing ,preference shall continue in the event of the necessity of relocating or
changing the .grade of any City. road, or right-of-way. A. relocating utility shall not
necessitate the ~ relocation of another utility that otherwise would not require
i relocation. This Section shall not apply to any City facilities or utilities that may in
the future require the relocation of Grantee Facilities. Such relocations shall be
~j governed by Section 11.
B. Grantee shall maintain a minimum underground horizontal
'I separation of five.(5) feet from City water facilities and ten (10) feet from above-
ground City water facilities; provided, that for- development of new areas, the City,
together with Grantee and other utility purveyors or authorized users of the Pubic
Way, will develop and follow the Public Works Director's determination of a
jt consensus for guidelines and procedures for determining specific utility locations,
subject additionally to this agreement and to a Franchise agreement, should one
become necessary.
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Section 10. Grantee Information
A. Grantee agrees to supply, at no cost to the City, any information
reasonably requested of the City Right-of-Way Manager to coordinate municipal
functions with Grantee's activities and fulfill any municipal obligations understate
law. Said information shall,include, at a minimum, as-built drawings of Grantee
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Ordinance No. 6344
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i Franchise Agreement No. 10-23
December 6,2010
Page 6 of 15
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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 and/or electronic format, compatible with the City's data base
system, as now or hereinafter existing, including the City's geographic
information Service (GIS) data base. Grantee shall keep the City Right-of-Way
Manager informed of its long-range plans for coordination with the City's long-
range plans.
B. The parties understand that Washington law limits the ability of the
City to shield from public disclosure any information given to the City.
Accordingly, the parties agree to work together to avoid disclosures of
information which would result in economic loss or damage to Grantee because
of mandatory disclosure requirements to third persons. Grantee shall indemnify
and hold harmless the City for any loss or liability for costs for attorneys fees
because of non-disclosures requested by Grantee under Washington's open
public records law, provided reasonable notice and opportunity to defend was
given to Grantee or Grantee is made aware of the pending of a request or claim.
Section 11. Relocation of Grantee Facilities
A. Except as otherwise so required by law, Grantee agrees to
relocate, remove, or reroute its facilities as ordered by the City Engineer at no
expense or liability to the City, except as may be required by RCW Chapter
35.99. Pursuant to the provisions of Section 14, Grantee agrees to protect and
save harmless the City from any customer or third-party claims for service
interruption or other losses in connection with any such change, relocation,
abandonment, or vacation of the Pubic Way.
B. If a readjustment or relocation of the Grantee Facilities is
necessitated by a request from a party other than the City, that party shall pay
the Grantee the actual costs thereof.
Section 12. Abandonment and or Removal of Grantee Facilities
A. Within one hundred and eighty days (180) of Grantee's permanent
cessation of use of the Grantee Facilities, or any portion thereof, the Grantee
shall, at the City's discretion, either abandon in place or remove the affected
facilities.
B. The parties expressly agree that this Section shall survive the
expiration, revocation or termination of this Franchise.
Section 13. Undergrounding
Ordinance No. 6344
Franchise Agreement No. 10-23
December 6, 2010
Page 7 of 15
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 Grantee shall underground the Grantee Facilities in the
manner specified by the City Engineer at no-expense or liability to the City,
except as may be required by RCW Chapter 35.99 [RCW 35.99 is applicable to
,k telecommunications and cable. TV franchises remove citation for other
franchisees]. Where other utilities are present and, involved in the-
undergrounding project, Grantee shall only be required to pay its fair share of
j common costs borne by all utilities, in addition to the costs specifically,
attributable -to the undergrounding of Grantee Facilities. Common costs shall
include necessary costs for common trenching and utility vaults. Fair share shall
be determined in comparison to the total number and size of all other utility
facilities being undergrounded.
Section 14. Indemnification and Hold Harmless
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j A. The . Grantee shall defend, indemnify, and hold the City and its
officers, officials, agents; employees, and volunteers harmless from any and all
costs, claims, injuries; damages, losses, suits, or liabilities of any nature including
attorneys' fees arising out of or in connection with the Grantee's performance
under this Franchise, except to the extent such costs, claims, injuries, damages,
losses, suits, or liabilities are caused by the negligence of the City.
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B. The Grantee shall hold the City harmless from any liability arising
out of or in connection with any damage or loss to the Grantee Facilities caused
by maintenance and/or construction. work performed by, or on behalf of, the City
within the Franchise'Area or any other City road, right-of-way, or other property,
if
except to the extent any such. damage or loss is directly caused by the
! negligence of the City, or its agent performing such work.
,r C. The Grantee acknowledges that neither the City nor any other
public agency with responsibility -for fire fighting, emergency rescue, public safety
or similar duties within the City has the capability to provide trench, close-trench
or confined space rescue. The, Grantee, and its agents, assigns, successors, or
i contractors, shall make such arrangements- as Grantee deems fit for the
provision of, such services. The Grantee shall hold the City harmless from any
liability arising out of.or in connection with any damage or loss to the Grantee for
the City's failure or inability,to provide such services, and; pursuant tolhe terms
of, Section 14(A), the Grantee shall indemnify the City against any and all third-
party costs, claims, injuries, damages, losses, suits, or liabilities based on the,
City's failure or inability to provide such services.
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1 Ordinance No. 6344
Franchise Agreement No. 10-23
I December 6, 2010
Page 8 of 15
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D. Acceptance by the City of any work performed by the Grantee shall
not be grounds for avoidance of this section.
'I E. It is further specifically and expressly understood that the
indemnification provided herein constitutes the Grantee's waiver of immunity
under Industrial Insurance, Title 51 RCW, solely for, the purposes of this
indemnification. This waiver has been mutually negotiated by the parties. The
4 provisions of this section shall survive the expiration or termination of this
Agreement.
Section 15. Insurance
A. The Grantee shall procure and -maintain for the duration of this
Franchise, insurance against claims for injuries to persons or damage to property
which may arise from or in connection with the performance of the work
i. hereunder by the Grantee, its agents, representatives, or employees in the
~Eamounts and types'set forth below:
1. Automobile, Liability insurance covering all owned, non-
owned, hired, and leased vehicles with a combined single limit, for bodily injury
and property damage of $1,000,000 per accident. Coverage shall be written on
r Insurance- Services Office (ISO) form, CA 00 01 or. a substitute form providing
equivalent- liability coverage. If necessary, the policy shall be endorsed to
provide contractual liability coverage.
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2. Commercial General Liability insurance with limits of
$1,000,000 each occurrence, $2,000,000 general-aggregate and a. $2,000,000
d products-completed operations aggregate limit.. Coverage shall be written on
J ISO occurrence form CG 00 01 or equivalent and shall.cover liability arising from
premises, operations, independent, contractors, p'roducts-completed operations,
stop gap liability, and. personal injury and advertising injury and liability assumed
under an insured contract. There shall be no endorsement or modification of the
Commercial General .-Liability insurance. for liability arising from explosion,
collapse, or underground property damage. The City shall be included as an
additional insured under the Grantee's Commercial General Liability insurance
! policy with respect to the work performed under this Franchise using ISO
Additional Insured Endorsement CG 20 10, 10 01 and Additional: Insured-
Completed Operations endorsement. CG 20.37 10 01 or substitute endorsements
providing equivalent coverage.
'i 3. Professional Liability insurance with limits of $1,000,000 per
claim or wrongful act and in the aggregate for all professionals employed or
retained by Grantee to perform services under this Franchise.
Ordinance No. 6344
I Franchise Agreement No. 10-23
I December 6, 2010
Page 9 of 15
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4. Workers Compensation coverage as requited by the
. Industrial Insurance laws of the State of Washington.
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i B. The insurance policies are to contain, or be endorsed to contain,
the following provisions for Automobile- Liability, Professional Liability, and
j Commercial General, Liability insurance.
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1. The Grantee's insurance coverage shall be primary
insurance as respects the City. Any insurance, self-insurance, or insurance pool
coverage maintained by the City, shall be in excess -of the Grantee's insurance
and shall not contribute with it.
2. The Grantee's insurance shall be endorsed to state that
_I coverage shalla.not be cancelled by either party except after thirty (30) days' prior
written notice by mail has been given to the City.
C. Acceptability of Insurers. Insurance is to be placed with insurers
with a current A.M. Best rating:of not less'than A minus:Vll.
D. Verification of -Coverage.. Grantee shall furnish the City with
documentation of insurer's A.M. Best rating and with original certificates and a
copy of amendatory endorsements, including but not necessarily limited to the
additional' insured endorsement, evidencing the' insurance requirements of the
Consultant'before commencement of the work.
E. Grantee shall have the right to self-insure any or all of the above-
required insurance. Any such self insurance is subject to approval by the City.
F. Grantee's maintenance of insurance as required by, this Franchise
shall not be construed to limit the liability of Grantee to the coverage provided by
such insurance, or otherwise limit the City's recourse to any remedy to which the
City is otherwise entitled at law or- in equity.
f Section 16. Performance Security
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The Grantee shall provide the City with a financial` guarantee in the amount of
Fifty Thousand Dollars ($50,000) running for, or renewable for, the term of this
I: Franchise, in a form and substance acceptable to the City. In the event Grantee
' shall fail to substantially comply with any one or more of the provisions of this
Franchise, then there shall be recovered jointly and severally from the principal
and any surety of such financial guarantee any damages suffered by City -as a
result thereof, including but not limited to staff time, material and equipment
costs, compensation, or indemnification.of third parties, and the-cost of removal or
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Ordinance No. 6344
! Franchise Agreement No. 10-23
j` December 6' 2010
Page 10 of 15
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abandonment of facilities hereinabove described. Grantee specifically agrees
' that its failure to comply with the terms of Section 19 shall:constitute damage to
the City in the. monetary amount set forth therein. Such a financial guarantee
shall not be construed to limit the Grantee's liability to the guarantee amount, or
otherwise limit the City's recourse to any remedy, to which the City is otherwise
entitled at.law or in equity.
Section 17. Successors and Assignees
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A. All the provisions, conditions, regulations and requirements herein
I contained. shall. be binding upon the successors, assigns. of, and independent
contractors of the G-rantee,' and all rights and privileges, as well as all. obligations
and. liabilities of, the Grantee shall inure to its successors, assignees and
j contractors equally 'as if they were specifically mentioned herein wherever the
1 Grantee is mentioned.
f B. This Franchise shall not be leased, assigned or otherwise alienated
without the express consent of the City by ordinance, which approval. shall not be
unreasonably withheld.
C. Grantee and any, proposed assignee or transferee shall provide and
certify the following to the City not.less than sixty (60) days prior to the proposed
date of transfer: (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 which.-'shall be set by the City, plus any
.E' other, costs actually and reasonably incurred. by the City in processing, and
investigating the proposed assignment or transfer.
i D. Prior to the City's consideration of a request by Grantee to. consent
to a Franchise assignment or transfer, the proposed: Assignee or Transferee shall
file with the City a written promise to unconditionally, accept all terms of the
Franchise, effective-upon such transfer or assignment of the Franchise. The City
is under. no -obligation to undertake any investigation of the transferor's state of
compliance and failure of the City to- insist on full compliance prior to -transfer
does not waive any right to insist on full compliance thereafter.
Section 18. Dispute Resolution
'r A. In-the event of a dispute between the City and.the.Grantee arising
by "reason of -this Agreement, the dispute. shall first be,referred to the operational
officers or representatives designated by Grantor and Grantee to have oversight.
,over the administration of this Agreement. The officers or representatives, shall
.I' meet within `thirty (30) calendar days of either party's request for a meeting,
Ordinance No. 6344
Franchise Agreement No. 10-23
December 6, 2010
Page 11 of 15
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whichever request is first, and the parties, shall make a good faith effort to
f achieve a resolution of the dispute.
B. If the parties fail to achieve a resolution of the dispute in this
manner, either party may then. pursue any available judicial remedies. This
Franchise shall be, governed by and construed in accordance with the laws of the
State of Washington. In the event any suit, arbitration, or.other proceeding is
instituted to enforce any term-, of this Agreement, the parties specifically
j understand and agree that venue shall be exclusively in 'King County,
. Washington. The prevailing party in- any such action shall be. entitled to its
attorneys' fees and costs of suit, which shall be fixed by the judge hearing the
case, and such fees shall be included in the judgment.
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Section 19. Enforcement and Remedies
A. If the Grantee shall willfully violate, or fail to comply with any of the
provisions of this Franchise through willful or unreasonable negligence, or should
it fail to heed or comply with any notice given to Grantee, under the provisions of
this agreement,'the City may, at its discretion, provide Grantee with written notice
to cure the-breach within thirty (30) days of notification.. If the City determines.the
breach cannot be cured within thirty days,, the City may specify a longer cure
period, and condition the extension of time on Grantee's submittal of.a plan to
cure the breach within the specified period, -commencement of work within the
original thirty day cure period, and diligent prosecution of the work to completion.
If the breach. is not cured within the, specified time, or the. Grantee does not
comply with the specified conditions,;the City may, at its discretion, either (1)
i revoke the Franchise with no further notification, or (2), claim damages of Two
Hundred Fifty Dollars ($250.00) per day against the financial guarantee set forth
` in section 16 for every day after the expiration of the cure period that the breach
is not cured.
B. Should. the City determine that Grantee is acting beyond the scope
E of -permission granted herein for Grantee Facilities and Grantee Services, the
City reserves the right to cancel this Franchise and` require the Grantee to apply
for, obtain, and comply with all applicable City permits, franchises, or other City
permissions for such actions; and if the Grantee's actions are hot allowed under
applicable federal and state or City laws, to compel Grantee to cease such
actions.
Section 20. Compliance with Laws and Regulations
A. This Franchise is subject to, and the Grantee shall comply with all
applicable federal and state or City laws, regulations and policies (including all
applicable elements of the City's comprehensive plan), in conformance 'with
Ordinance No. 6344
' Franchise Agreement No..10-23
December 6, 2010
Page 12 of 15
federal laws and regulations, affecting performance under this Franchise.
Furthermore, notwithstanding any other terms of this agreement appearing to the
contrary, the Grantee shall be subject to the police power of the City to adopt and
enforce general ordinances necessary to protect the safety and welfare of the
general public in relation to the rights granted in the Franchise Area.
B. The City reserves the right at any time to amend this Franchise to
conform to any hereafter enacted, amended, or adopted federal or state statute
or regulation relating to the public health, safety, and welfare, or relating to
roadway regulation, or a City Ordinance enacted pursuant to such federal or
state statute or regulation upon providing Grantee with thirty (30) days written
notice of its action setting forth the full text of the amendment and identifying the
statute, regulation, or ordinance requiring the amendment. Said amendment
shall become automatically effective upon expiration of the notice period unless,
before expiration of that period, the Grantee makes a written call for negotiations
over the terms of the amendment. If the parties do not reach agreement as to
the terms of the amendment within thirty (30) days of the call for negotiations, the
City may enact the proposed amendment, by incorporating the Grantee's
concerns to the maximum extent the City deems possible.
C. The City may terminate this Franchise upon thirty (30) days written
notice to the Grantee, if the Grantee fails to comply with such amendment or
modification.
Section 21. License, Tax and Other Charges
This Franchise shall not exempt the Grantee from any future license, tax,
or charge which the City may hereinafter adopt pursuant to authority granted to it
under state or federal law for revenue or as reimbursement for use and
occupancy of the Franchise Area.
Section 22. Consequential Damages Limitation
Notwithstanding any other provision of this Agreement, in no event shall
either party be liable for any special, incidental, indirect, punitive, reliance,
consequential or similar damages.
Section 23. Severability
If any portion of this Franchise is deemed invalid, the remainder portions
shall remain in effect.
Section 24. Titles
Ordinance No. 6344
Franchise Agreement No. 10-23
December 6, 2010
Page 13 of 15
The section titles used herein are for reference only and should not be
used for the purpose of interpreting this Franchise.
Section 25. Implementation.
The Mayor is hereby authorized to implement such administrative
procedures as may be necessary to carry out the directions of this legislation.
Section 26. Effective date.
This Ordinance shall take effect and be in force five days from and after its
passage, approval and publication as provided by law.
INTRODUCED:
PASSED:
APPROVED:
PETER B. LEWIS, MAYOR
ATTEST:
Danielle E. Daskam, City Clerk
APPROVED AS TO FORM:
Daniel B. Heid, City Attorney
Published:
Ordinance No. 6344
Franchise Agreement No. 10-23
December 6, 2010
Page 14 of 15
EXHIBIT "C"
STATEMENT OF ACCEPTANCE
New Cingular Wireless PCS, LLC, for itself, its successors and assigns, hereby
accepts and agrees to be bound by all lawful terms, conditions and provisions of
the Franchise attached hereto and incorporated herein by this reference.
NEW'CINGULAR WIRELESS PCS, LLC
A Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
By: Date:
Name:
Title:
STATE OF )
)ss.
COUNTY OF )
On this day of , 20 , before me the undersigned, a
Notary Public in and for the State of , duly commissioned and sworn,
personally appeared, of , 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.
Signature
NOTARY PUBLIC in and for the State of
residing at
MY COMMISSION EXPIRES:
Ordinance No. 6344
Franchise Agreement No. 10-23
December 6, 2010
Page 15 of 15
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Grantee Facilities and Services
Cell Tower Facility providing
wireless communications services by antennas,
RF frequency and associated ground equipment.
Coverage intended for the Auburn Way North
commercial areas and adjacent vicinites.
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