HomeMy WebLinkAbout6709 ORDINANCE NO. 6 7 0 9
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, AUTHORIZING THE RENEWAL
OF ORDINANCE NO. 6491 AND ORDINANCE NO. 6575 FOR
T-MOBILE WEST LLC, FRANCHISE AGREEMENT NO. 13-37
FOR A WIRELESS TELECOMMUNICATIONS SYSTEM
WHEREAS, on February 18, 2014, the City Council adopted Ordinance No.
6491, granting a site specific wireless telecommunications franchise to T-Mobile
West LLC; and,
WHEREAS, on January 19, 2016, the City Council adopted Ordinance No.
6575, amending Ordinance No. 6491 and adding an additional wireless site
location to T-Mobile West LLC's franchise agreement,
WHEREAS, T-Mobile West LLC wishes to renew said Franchise Agreement
for an additional five year term; and
WHEREAS, following proper notice, the City Council held a public hearing
on T-Mobile West LLC's request for renewal of Ordinance No. 6491 and Ordinance
No. 6575, at which time representatives of T-Mobile West LLC and interested
residents were heard in a full public proceeding affording opportunity for comment
by any and all persons desiring to be heard; and
WHEREAS, based upon the foregoing recital clauses and from information
presented at such public hearing and from facts and circumstances developed or
discovered through independent study and investigation, the City Council now
deems it appropriate and in the best interest of the City and its residents that the
Ordinance No. 6709
T-Mobile Franchise Agreement Renewal
December 19, 2018
Page 1 of 4
renewal of Ordinance No. 6491 and Ordinance No. 6575 be granted to T-Mobile
West LLC.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN as follows:
Section 1. The City approves T-Mobile West LLC's application for renewal
for one five-year period as provided for in Section 3 of Ordinance No. 6491 , a copy
of which is attached as Exhibit A, under the conditions set forth in this Ordinance.
Such five-year renewal period will commence on the effective date of this
Ordinance.
Section 3. T-Mobile West LLC will, within thirty (30) days after the effective
date of this Ordinance, file with the City, a fully executed Statement of Acceptance
of this Ordinance, which written acceptance will be Exhibit B, attached and
incorporated by this this reference.
Section 4. This Ordinance supersedes Ordinance No. 6491 and
Ordinance No. 6575 to the extent that it contains terms and conditions that change,
modify, delete, add to, supplement or otherwise amend the terms and conditions
of Ordinance No. 6491 and Ordinance No. 6575. All other provisions of Ordinance
No. 6491 and Ordinance No. 6575 remain unchanged and in full force and effect.
Section 5. Implementation. The Mayor is authorized to implement such
administrative procedures as may be necessary to carry out the directions of this
legislation.
Ordinance No. 6709
T-Mobile Franchise Agreement Renewal
December 19, 2018
Page 2 of 4
Section 6. Severability. The provisions of this ordinance are declared to
be separate and severable. The invalidity of any clause, sentence, paragraph,
subdivision, section or portion of this ordinance, or the invalidity of the application
thereof to any person or circumstance shall not affect the validity of the remainder
of this ordinance, or the validity of its application to other persons or circumstances.
Section 7. Effective date. This Ordinance will take effect and be in force
five days from and after its passage, approval and publication as provided by law.
INTRODUCED: f�QZ 0 0 ZZOVW
PASSED: I� KK
APPROVED: MAR 0 4 2019 •
NCY BA )NIAP4OARA15
ATTEST:
Shawn Campbell, City Cler
APPR`,�! D NI TO FORM:
Steven Gross, City Attorney
Published: • ,����. �����
Ordinance No. 6709
T-Mobile Franchise Agreement Renewal
December 19, 2018
Page 3 of 4
EXHIBIT "B"
STATEMENT OF ACCEPTANCE
T-Mobile West LLC., for itself, its successors and assigns, hereby accepts and
agrees to be bound by all lawful terms, conditions and provisions of the Franchise
Agreement, Ordinance No. 6491 and Ordinance No. 6575, attached hereto and
incorporated herein by this reference as amended by Ordinance No. 6709.
T-Mobile West LLC
12920 SE 38th Street
Bellevue, WA 98006
By: c= 7 ,^"= Date: //cV/I
Philip Hanurns
Name: Sr. Area Director
Title: Network Engineering & Operations
STATE OF ' A.! A )
)ss.
COUNTY OF y., , •• )
On this ; day of \-\, ,' , 2019, before me the undersigned, a
Notary Public in and fo rhe'State of t,i� la =duly commissioned and sworn,
personally appeared, J ,\,p \- „��\c_, ,�,c of t -kkVt.„!,f- , 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 th date hereinabove set forth. %�....,”
ALLQ-L
ALL./4 ,}.1
Signature ;Q NOTARY '''1”S
' sn PUBL`G ^=
NOTARY PUBLIC in and for the State of i, -y XP, o�4 o_
,,; I\ , residing at 03�-1-1.,4-i1iv'A g - , SNC.)
MY COMMISSION EXPIRES: �, 3 'r,�OF
Ordinance No. 6709
T-Mobile Franchise Agreement Renewal
December 19, 2018
Page 4 of 4
ORDINANCE NO. 6575
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, AMENDING ORDINANCE NO.
6491 AND THE T-MOBILE WEST, LLC FRANCHISE NO.13-
37 TO ADD AN ADDITIONAL LOCATION
WHEREAS, On February 18, 2014, the City Council adopted Ordinance
No. 6491, granting a wireless communications franchise to T-Mobile West, LLC
("Grantee"); and,
WHEREAS, T-Mobile West LLC wishes to add an additional site within the
City; and
WHEREAS, following proper notice, the City Council held a public hearing
on the Grantee's request for an Amendment to Franchise Agreement No. 13-37,
at which time representatives of Grantee and interested citizens were heard in a
full public proceeding affording opportunity for comment by any and all persons
desiring to be heard; and
WHEREAS, based upon the foregoing recital clauses and from
information presented at such public hearing and from facts and circumstances
developed or discovered through independent study and investigation, the City
Council in compliance with RCW 35,99 now deems it appropriate and in the best
interest of the City and its inhabitants that the Amendment to Franchise
Agreement No. 13-37 be granted to the Grantee.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN as follows:
Ordinance No. 6575
Franchise Agreement No. 13-37, Amendment No. 1
January 13, 2016
Page 1 of 7
Section 1. Exhibits A and B of Ordinance No. 6491 are hereby replaced
with Exhibits A and B, attached hereto and incorporated herein by this reference,
and a new Exhibit B-2 and Exhibit D-1 are added as Exhibits to Ordinance No.
6491, which additional Exhibits are also attached hereto and incorporated herein
by this reference.
Section 2. All other provisions of Ordinance No. 6491 shall remain
unchanged and in full force and effect.
Section 3. Implementation. The Mayor is hereby authorized to
implement such administrative procedures as may be necessary to carry out the
directions of this legislation.
Section 4. Severability. The provisions of this ordinance are declared to
be separate and severable. The invalidity of any clause, sentence, paragraph,
subdivision, section or portion of this ordinance, or the invalidity of the application
thereof to any person or circumstance shall not affect the validity of the
remainder of this ordinance, or the validity of its application to other persons or
circumstances.
Section 5. 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.
FIRST READING: JAN -4 2016
SECOND READING: JAN 19 291.6
PASSED: JAN 19 2016
APPROVED: JAN ID 2016
. I
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Aa_2 )
.4CY BACKUS� YOR
M/ o g.
Ordinance No. 6575
Franchise Agreement No. 13-37, Amendment No. 1
January 13, 2016
Page 2 of 7
ATTEST:
Danielle E. Daskam, City Clerk
APP-.MED A S TO FORM:
Orel =. -id, City-7
Ordinance No. 6575
Franchise Agreement No. 13-37, Amendment No. 1
January 13, 2016
Page 3 of 7
Exhibit "A" - T-Mobile Franchise Area :LJ>t(� ~ �!
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Ordinance No.8575
Franchise Agreement No 13-37 w
Amendment No. 1 5E0471Si
January 13,2016
Page 4 of 7
EXHIBIT "B"
GRANTEE FACILITIES
EXISTING T-MOBILE FACILITIES IN CITY OF AUBURN ROW
Site ID: SE4042A, "Peasley Canyon"
Location: 33043 46th Place South
Auburn, WA 98001
Description: Telecommunications Facility consisting of above ground radio
equipment cabinets located in a 12'x17' cedar wood fence
enclosure in the Right-of-Way (ROW), with antennas collocated on
an existing 88' above-ground wooden utility pole in the ROW with
connecting underground conduit.
Site ID: SE04028B, Mountain View Cemetery/PR
Location: 5605 S 324th Place
Auburn, WA 98001
Description: Telecommunications Facility consisting of antennas located on an
existing 75' above-ground round wood utility pole in the Right of
Way with connecting underground conduit to the radio equipment
cabinets located on adjacent private property.
NEW T-MOBILE FACILITIES IN CITY OF AUBURN ROW
Site ID: SE047151, Lea Hill
Location: 11534 SE 318`h Place
Auburn, WA 98092
Description: Telecommunications Facility consisting of antennas located on a
new utility replacement pole in the Right of Way with connecting
underground conduit to ground equipment located on private
property.
For Site SE047151, the Grantee shall submit substantial changes to
the City Engineer to ensure the antennas are in substantial
conformance with the depiction in Exhibit B-2 and in compliance
with the Federal Telecommunications Act of 1996. For the
purposes of this franchise, substantial changes shall be considered
to be an increase in the height of the antennas by 10% or more, or
an increase in the width of the antennas by 25% or more.
Ordinance No. 6575
Franchise Agreement No. 13-37, Amendment No. 1
January 13, 2016
Page 5 of 7
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Ordinance No.6575 Exhibit "B-2"
Franchise Agreement No 13-37,Amendment No.1
January 13,2016
Page 6 of 7
EXHIBIT "B"
GRANTEE FACILITIES
EXISTING T-MOBILE FACILITIES IN CITY OF AUBURN ROW
Site ID: SE4042A, "Peasley Canyon"
Location: 33043 46th Place South
Auburn, WA 98001
Description: Telecommunications Facility consisting of above ground radio
equipment cabinets located in a 12'x17' cedar wood fence
enclosure in the Right-of-Way (ROW), with antennas collocated on
an existing 88' above-ground wooden utility pole in the ROW with
connecting underground conduit.
Site ID: SE04028B, Mountain View Cemetery/PR
Location: 5605 S 324th Place
Auburn, WA 98001
Description: Telecommunications Facility consisting of antennas located on an
existing 75' above-ground round wood utility pole in the Right of
Way with connecting underground conduit to the radio equipment
cabinets located on adjacent private property.
NEW T-MOBILE FACILITIES IN CITY OF AUBURN ROW
Site ID: SE047151, Lea Hill
Location: 11534 SE 318th Place
Auburn, WA 98092
Description: Telecommunications Facility consisting of antennas located on a
new utility replacement pole in the Right of Way with connecting
underground conduit to ground equipment located on private
property.
For Site SE047151, the Grantee shall submit substantial changes to
the City Engineer to ensure the antennas are in substantial
conformance with the depiction in Exhibit B-2 and in compliance
with the Federal Telecommunications Act of 1996. For the
purposes of this franchise, substantial changes shall be considered
to be an increase in the height of the antennas by 10% or more, or
an increase in the width of the antennas by 25% or more.
Ordinance No. 6575
Franchise Agreement No. 13-37, Amendment No. 1
January 13, 2016
Page 5 of 7
EXHIBIT "0-1"
STATEMENT OF ACCEPTANCE
T-Mobile West LLC, a Delaware limited liability company, 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.
T-Mobile West LLC,
a Delaware limited liability company
By:
"` `— Date: 06-A-
Name: l lei p
Title: PNW Area Director, Engineering & T-Mohile Legal Approval By:
Operations
�� 1/19/16
STATE OF WASHINGTON )
)ss.
COUNTY OF KING )
On this a C day of J 0,N v►car‘ , 2016, before me the undersigned, a
Notary Public in and fo he State of Washington, duly commissioned and sworn,
personally appeared, � ;\, of T-Mobile West LLC, the company
that executed the within andiforegoing 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 here'nabov set forth.
Af j):104.
Signa ure
��ralt�t i I I E�frrUll
CN•sc; cr ip„c1\
NOTARY PUBLIC in and for the State of
.������,�Qo�� ' ryc�'•�,
residing at IR sM •" •"'\VARk"
a %
EXPIRES w
MY COMMISSION EXPIRES: \ 4. 12,419 - •
1•6 •
2019
Ordinance No. 6575 %�i�qF• pUBLIG`N •0�\�`
Franchise Agreement No. 13-37, Amendment No. 1 ��llll�i mit�����\`\
January 13, 2016
Page 7 of 7
CITY OF
Au J1JJ�JLJ Nancy Backus,Mayor
WASHINGTON 25 West Main Street * Auburn WA 98001-4998* www.auburnwa.gov* 253-931-3000
STATE OF WASHINGTON )
)ss.
COUNTIES OF KING AND PIERCE )
I, Shawn Campbell, the duly appointed, qualified Deputy City Clerk of the
City of Auburn, a Municipal Corporation and Code City, situate in the counties of
King and Pierce, State of Washington, do hereby certify that the foregoing is a full,
true and correct copy of Ordinance No. 6575 of the Ordinance of the City of Auburn,
entitled "AN ORDINANCE."
I certify that said Ordinance No. 6575 was duly passed by the Council and
approved by the Mayor of the said City of Auburn, on the 19th day of January, 2016.
I further certify that said Ordinance No. 6575 was published as provided by
law in the Seattle Times, a daily newspaper published in the City of Auburn, and of
general circulation therein, on the 25th day of January, 2016.
Witness my hand and the official seal of the City of Auburn, this 2"d day of
February, 2016.
Shawn Campbell, Deputy City Clerk
City of Auburn
AUBURN * MORE THAN YOU IMAGINED
ORDINANCE NO. 6 4 9 1
AN ORDINANCE OF THE CITY COUNCIL OF THE
CITY OF AUBURN, WASHINGTON, GRANTING TO
T-MOBILE WEST LLC, A DELAWARE LIMITED
LIABILITY COMPANY, A FRANCHISE FOR
TELECOMMUNICATIONS
WHEREAS, T-Mobile West LLC, a Delaware limited liability
company("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,
modify, repair, relocate and remove its facilities in, on, over, under, along and/or
across those right(s)-of-way ("Franchise"); and
WHEREAS, with respect to some of these facilities, they were previously
installed the public rights of ways with the permission of King County, which
managed those right(s)-of-way prior to the annexation of those rights of way into
the City of Auburn; 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, with respect to those facilities previously installed by
authorization of King County, this agreement supersedes and replaces all
agreements between Grantee and King County; and
WHEREAS, based upon the foregoing recital clauses, and from
information presented at such public hearing, and from facts and circumstances
developed or discovered through independent study and investigation, the City
Council in compliance with RCW 35.99 now deems it appropriate and in the best
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, pursuant to RCW
35.99 the City grants to the Grantee general permission to enter, use, and
occupy the public right(s)-of-way of the City. However, Grantee shall not extend
its occupation of the public rights of way beyond the two facilities that presently
Ordinance No. 6491
Franchise Agreement No. 13-37
February 11,2014
Page 1 of 15
occupy the rights of way as specified in Exhibit "A", attached hereto and
incorporated by reference (the "Franchise Area"), without having first obtained an
amendment to this agreement and site specific permits from the City authorizing
Grantee to install telecommunications equipment at such other locations than
specified in Exhibit "A".
B. This Franchise does not authorize the use of the public rights of
ways for any facilities or services other than for wireless telecommunications
facilities.
C. 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 rights set forth herein.
D. Except as explicitly set forth herein, this Franchise does not waive
any rights that the City has or may hereafter acquire with respect to City rights-of-
way. This Franchise shall be subject to the power of eminent domain, and in any
proceeding under eminent domain. Grantee acknowledges that the City has the
power of eminent domain and that Grantee's remedies in the event of the
exercise of such power are set forth in RCW 35.99 and other applicable law.
E. The City reserves the right to change, regrade, relocate, abandon,
or vacate any public right-of-way. If, at any time during the term of this
Franchise, the City vacates any portion of the rights of way 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.
F. The Grantee agrees that its use of the 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. Except as defined in the respective filing and emergency work
provisions of Sections 5 and 7 herein, all notices, requests, demands and other
communications shall be in writing and are effective three (3) days after deposit
in the U.S. mail, certified and postage paid, or upon receipt if personally delivered
or sent by next-business-day delivery via a nationally recognized overnight
courier to the addresses set forth below. City or Grantee may from time to time
Ordinance No. 6491
Franchise Agreement No. 13-37
February 11, 2014
Page 2 of 15
designate any other address for this purpose by providing written notice to the
other party effective thirty (30) days after the provision thereof.
City: City of Auburn
Engineering Aide, Transportation
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
Grantee: T-Mobile USA, Inc.
12920 SE 38th Street
Bellevue, WA 98006
Attention: Lease Compliance/City of Auburn Franchise
B. Any changes to the above-stated Grantee information shall be sent
to the City, referencing the title of this agreement.
C. The above-stated 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), which approval shall not be unreasonably
withheld, conditioned or delayed. 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 reasonably
deemed necessary by the City to address changes in the Grantee Facilities or
Grantee Services, or to reflect specific reporting periods mandated by the ACC.
Ordinance No. 6491
Franchise Agreement No. 13-37
February 11,2014
Page 3 of 15
C. Failure to Renew Franchise — Automatic Extension. If the Parties
fail to formally renew this Franchise prior to the expiration of its term or any
extension thereof, the Franchise automatically continues month to month until
renewed or until either party gives written notice at least one hundred eighty
(180) days in advance of the intent not to renew the Franchise.
Section 4. Definitions
For the purpose of this agreement
"ACC" means the Auburn City Code.
"Emergency" means a condition of imminent danger to the health, safety and
welfare of persons or property located within the City including, without limitation,
damage to persons or property from natural consequences, such as storms,
earthquakes, riots, acts of terrorism or wars.
"Maintenance or Maintain" shall mean examining, testing, inspecting, repairing,
maintaining, modifying and/or replacing the existing Grantee Facilities or any part
thereof as required and necessary for safe operation.
"Relocation" means permanent movement of Grantee facilities required by the
City, and not temporary or incidental movement of such facilities, or other
revisions Grantee would accomplish and charge to third parties without regard to
municipal request.
"Rights-of-Way" means the surface and the space above and below streets,
roadways, highways, avenues, courts, lanes, alleys, sidewalks, and easements,
owned or controlled by the City.
Section 5. Acceptance of Franchise
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 "D," and
incorporated by reference, (2) all verifications of insurance coverage specified
under Section 15, and (3) the financial guarantees specified in Section 16
(collectively, "Franchise Acceptance"). The date that such Franchise Acceptance
is filed with the City Clerk shall be the effective date of this Franchise.
B. Should the Grantee fail to file the Franchise Acceptance with the
City Clerk within thirty (30) days after the effective date of the ordinance
approving the Franchise, the City's grant of the Franchise will be null and void.
Ordinance No. 6491
Franchise Agreement No. 13-37
February 11, 2014
Page 4 of 15
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.
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 undertaking
its activity.
C. The City expressly reserves the right to prescribe how and where
Grantee Facilities shall be installed within the public right-of-way and may from
time to time, pursuant to the applicable sections of this Franchise, require the
removal, relocation and/or replacement thereof in the public interest and safety in
compliance with applicable law.
D. Before commencing any work involving excavation within the public
right-of-way, the Grantee shall comply with the One Number Locator provisions
of RCW Chapter 19.122 to identify existing utility infrastructure.
E. Tree Trimming.. Upon prior written approval of the City and in
accordance with City ordinances, Grantee shall have the authority to reasonably
trim trees upon and overhanging streets, public rights-of-way, and 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 path for radio signals. Any such general vegetation clearing will
require an additional and separate approval from the City.
Section 7. Access, 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 telephonically during normal business hours
(at 253-931-3010 and during non-business hours at 253-876-1985) as promptly
as possible, before such repair or emergency work commences, and in writing as
soon thereafter as possible. Such notification shall include the Grantee's
emergency contact phone number for the corresponding response activity. For
Ordinance No. 6491
Franchise Agreement No. 13-37
February 11, 2014
Page 5 of 15
any emergency or after normal business hour issues involving the Grantee's
facilities which requires the Grantee's immediate response the City shall contact
the Grantee at their network operations center telephonically at 888-662-4862,
which is operated 24 hours a day, seven days a week. The City may commence
emergency response work, at any time, without prior written notice to the
Grantee, but shall notify the Grantee in writing as promptly as possible under the
circumstances of the nature of the emergency and the actions taken to address
it.
Section 8. Damages to City and Third-Party Property
Grantee agrees that if 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
condition. Such repair work shall be performed and completed pursuant to City
Code..
Section 9. Location Preference and Interference
A. Any structure, equipment, appurtenance or tangible property of a
utility, other than the Grantee's, which was installed, constructed, completed or in
place prior in time to Grantee's application for a permit to construct or repair
Grantee Facilities under this Franchise shall have preference as to positioning
and location with respect to the Grantee Facilities. However, to the extent that
the Grantee Facilities are completed and installed prior to another utility's
submittal of a permit for new or additional structures, equipment, appurtenances
or tangible property, then the Grantee Facilities shall have such priority. These
rules governing preference shall continue in the event of the necessity of
relocating or changing the grade of any City road or right-of-way. A relocating
utility shall not necessitate the relocation of another utility that otherwise would
not require relocation. This Section shall not apply to any City facilities or utilities
that may in the future require the relocation of Grantee Facilities. Such
relocations shall be governed by Section 11.
B. Grantee shall maintain a minimum underground horizontal
separation of five (5) feet from City water facilities and ten (10) feet from above-
ground City water facilities; provided, that for development of new areas, the City,
in consultation with Grantee and other utility purveyors or authorized users of the
Public Way, will develop guidelines and procedures for determining specific utility
locations.
Section 10. Grantee Information
A. Grantee agrees to supply, at no cost to the City, any information
reasonably requested by the City to coordinate municipal functions with
Ordinance No. 6491
Franchise Agreement No. 13-37
February 11,2014
Page 8 of 15
Grantee's activities and fulfill any municipal obligations under state law. Said
information shall include, at a minimum, as-built drawings of Grantee Facilities,
installation inventory, and maps and plans showing the location of existing or
planned facilities within the Rights-of-Way. Said information may be requested
either in hard copy 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 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 City agrees to notify the Grantee of requests for public records
related to the Grantee, and to give the Grantee a reasonable amount of time to
obtain an injunction to prohibit the City's release of records.
C. Grantee shall indemnify and hold harmless the City for any loss or
liability for fines, penalties, and costs (including attorneys fees) imposed on the
City because of non-disclosures requested by Grantee under Washington's open
public records act, provided the City has notified Grantee of the pending request
and has given Grantee ten working days to obtain an injunction to prohibit the
City's release of records.
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
in the event the Franchise Area is required for use by the City in performance of
its municipal services. In such event, City will give Grantee prior written notice of
the need for such relocation of the Franchise Area. Notwithstanding the foregoing
however, and 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 similar losses in connection with any such change,
relocation, abandonment, or vacation of the right-of-way(s).
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, remove the affected facilities, or, with the City's
Ordinance No. 6491
Franchise Agreement No. 13-37
February 11, 2014
Page 7 of 15
written permission, abandon in place such facilities whereupon they will transfer
to the City in their AS IS and WHERE IS condition without need of execution of
any further documentation formalizing the transfer, and without representation or
warranty of any kind or nature provided the Grantee shall provide to the City
drawings, maps or other documentation about said facilities to the reasonable
satisfaction of the City. Following such transfer, Grantee shall no longer be
responsible for any liability, maintenance, repair or removal obligations related to
or arising from the transferred facilities.
B. The parties expressly agree that this Section shall survive the
expiration, revocation or termination of this Franchise.
Section 13. Undergrounding
A. The parties agree that this Franchise does not limit the City's
authority under federal law, state law, or local ordinance, to require the
undergrounding of utilities that can be installed underground.
B. Whenever the City requires the undergrounding of aerial utilities in
the Franchise Area, the Grantee shall underground those portions of Grantee
Facilities that can be installed underground 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 or other applicable law. Where other utilities are present
and involved in the undergrounding project, Grantee shall only be required to pay
its fair share of common costs borne by all utilities it utilizes, 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 and the use thereof by all
applicable parties
Section 14. Indemnification and Hold Harmless
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 to the extent caused by 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, its agents,
contractors, employees or invitees. Should a court of competent jurisdiction
determine that this Agreement is subject to RCW 4.24.115, then, in the event of
liability for damages arising out of bodily injury to persons or damages to property
caused by or resulting from the concurrent negligence of the Grantee and the
Ordinance No. 6491
Franchise Agreement No. 13-37
February 11, 2014
Page 8 of 15
City, its officers, officials, employees, and volunteers, the Grantee's liability
hereunder shall be only to the extent of the Grantee's negligence.
B. The Grantee shall hold the City harmless from any liability for any
damage or loss to the Grantee Facilities caused by maintenance and/or
construction work performed by, or on behalf of, the City within the Franchise
Area or any other City road, right-of-way, or other property, except to the extent
any such damage or loss is directly caused by the negligence or intentional
misconduct of the City, its agents, contractors, employees or invitees performing
such work.
C. The Grantee acknowledges that neither the City nor any other
public agency with responsibility for firefighting, emergency rescue, public safety
or similar duties within the City has the capability to provide trench, close trench
or confined space rescue. The Grantee, and its agents, assigns, successors, or
contractors, shall make such arrangements as Grantee deems fit for the
provision of such services. The Grantee shall hold the City harmless from any
liability arising out of or in connection with any damage or loss to the Grantee for
the City's failure or inability to provide such services, and, pursuant to the terms
of Section 14(A), the Grantee shalt indemnify the City against any and all third-
party costs, claims, injuries, damages, losses, suits, or liabilities based on the
City's failure or inability to provide such services.
D. Acceptance by the City of any work performed by the Grantee shall
not be grounds for avoidance of this section.
E. It is further specifically and expressly understood that the
indemnification provided herein constitutes the Grantee's waiver of immunity
under Industrial Insurance. Title 51 RCW, solely for the purposes of this
indemnification. This waiver has been mutually negotiated by the parties. The
provisions of this section shall survive the expiration or termination of this
agreement with respect to acts or events occurring prior thereto.
Section 15. insurance
A. The Grantee shall procure and maintain for the duration of this
Franchise, insurance against claims for injuries to persons or damage to property
which may arise from or in connection with the performance of the work
hereunder by the Grantee, its agents, representatives, or employees in the
amounts and types set forth below
1. Automobile Liability insurance covering all owned, non-
owned, hired, and leased vehicles with a minimum combined single limit for
Ordinance No. 6491
Franchise Agreement No. 13-37
February 11, 2014
Page 9 of 15
bodily injury and property damage of $1,000,000 per accident. Coverage shall
be written on 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.
2. Commercial General Liability insurance with limits no less
than $1,000,000 each occurrence, $2,000,000 general aggregate and a
$1,000,000 products-completed operations aggregate limit. Coverage shall be
written on ISO occurrence form CG 00 01 and shall cover liability arising from
premises, operations, independent contractors, products-completed operations,
stop gap liability, and personal injury liability assumed under an insured contract.
The Commercial General Liability insurance shall be endorsed to provide the
Aggregate Per Project Endorsement ISO form CG 25 03 11 85. 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 named 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.
3. Professional Liability insurance with limits no less than
$1,000,000 per claim carried by all licensed professionals employed or retained
by Grantee to perform services under this Franchise.
4. Workers' Compensation coverage as required by the
Industrial Insurance laws of the State of Washington.
B. The insurance policies are to contain, or be endorsed to contain,
the following provisions for Automobile Liability, Professional Liability, and
Commercial General Liability insurance:
1. The Grantee's insurance coverage shall be primary
insurance with respect to claims alleging Grantee's negligence. 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
coverage shall not be cancelled by either party except after thirty (30) days' prior
written notice by certified mail, return receipt requested, 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-:VII.
Ordinance No. 6491
Franchise Agreement No. 13-37
February 11, 2014
Page 10 of 15
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.
Section 16. Performance Security
The Grantee shall provide the City with a bond, or other financial guarantee in.a
form and substance reasonably acceptable to the City, in the amount of Fifty
Thousand Dollars ($50,000) running for, or renewable for, the term of this
Franchise. In the event Grantee shall fail to substantially comply with any one or
more of the provisions of this agreement within the applicable cure or grace
period, 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 direct
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
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
A. All the provisions, conditions, regulations and requirements herein
contained shall be binding upon the successors, assigns of, and independent
contractors of the Grantee, and all rights and privileges, as well as all obligations
and liabilities of the Grantee shall inure to its successors, assignees and
contractors equally as if they were specifically mentioned herein wherever the
Grantee is mentioned.
B. This Franchise shall not be leased, assigned or otherwise alienated
without the express prior consent of the City by ordinance. The foregoing
Ordinance No. 6491
Franchise Agreement No. 13-37
February 11, 2014
Page 11 of 15
notwithstanding, Grantee may assign this Franchise in whole or in part without
the need for the City's consent to any entity that controls, is controlled by, or is
under common control with Grantee, or to any entity resulting from any merger or
consolidation with Grantee, or to any partner of Grantee or to any partnership in
which Grantee is a general partner, or to any person or entity that acquires all of
the assets of Tenant as a going concern.
C. For any assignment requiring City consent, Grantee and any
proposed assignee or transferee shall provide and certify the following to the City
not less than sixty (60) days after the proposed date of transfer: (a) Complete
information setting forth the nature, term and conditions of the proposed
assignment or transfer (redacted for any financial terms); (b) All information
reasonably 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 other costs actually and reasonably incurred by the City in
processing, and investigating the proposed assignment or transfer.
D. Prior to the City's consideration of a request by Grantee to consent
to a Franchise assignment or transfer, the proposed Assignee or Transferee shall
file with the City a written promise to unconditionally accept all terms of the
Franchise, effective upon such transfer or assignment of the Franchise. The City
is under no obligation to undertake any investigation of the transferor's state of
compliance and failure of the City to insist on full compliance prior to transfer
does not waive any right to insist on full compliance thereafter.
E. Upon assignment, Grantee shall be relieved of all liabilities and
obligations hereunder accruing thereafter and City shall look solely to the
assignee for performance under this agreement and all such obligations accruing
thereafter hereunder provided such assignee accepts all such obligations in
writing within thirty (30) days of the date of assignment and is of substantially
similar financial strength or credit worthiness as Grantee.
Section 18. Dispute Resolution
A. In the event of a dispute between the City and the Grantee arising
by reason of this Agreement, the dispute shall first be referred to the operational
officers or representatives designated by Grantor and Grantee to have oversight
over the administration of this Agreement. The officers or representatives shall
meet within thirty (30) calendar days of either party's request for a meeting,
whichever request is first, and the parties shall make a good faith effort to
achieve a resolution of the dispute.
B. If the parties fail to achieve a resolution of the dispute in this
manner, either party may then pursue any available judicial remedies. This
Ordinance No. 6491
Franchise Agreement No. 13-37
February 11, 2014
Page 12 of 15
Franchise shall be governed by and construed in accordance with the laws of the
State of Washington. In the event any suit, arbitration, or other proceeding is
instituted to enforce any term of this Agreement, the parties specifically
understand and agree that venue shall be exclusively in King County,
Washington. The prevailing party in any such action shall be entitled to its
attorneys' fees and costs of suit, which shall be fixed by the judge hearing the
case, and such fees shall be included in the judgment.
Section 19. Enforcement and Remedies
A. If the Grantee shall willfully violate, or fail to comply with any of the
provisions of this Franchise through 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 (30) days, the City may specify a longer cure
period, and condition the extension of time on Grantee's submittal of a plan to
cure the breach within the specified period, commencement of work within the
original thirty day cure period, and diligent prosecution of the work to completion.
If the breach is not cured within the specified time, or the Grantee does not
comply with the specified conditions, the City may, at its discretion, either (1)
revoke the Franchise with no further notification, 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
of permission granted herein for Grantee Facilities and Grantee Services, the
City reserves the right to cancel this Franchise and/or require the Grantee to
apply for, obtain, and comply with all applicable City permits, franchises, or other
City permissions for such actions, and if the Grantee's actions are not allowed
under applicable federal and state or City laws, to compel Grantee to cease such
actions.
Section 20. Compliance with Laws and Regulations
A. This Franchise is subject to, and the Grantee shall comply with all
applicable federal and state or City laws, regulations and policies (including all
applicable elements of the City's comprehensive plan), in conformance with
federal laws and regulations, affecting performance under this Franchise.
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.
Ordinance No. 6491
Franchise Agreement No. 13-37
February 11, 2014
Page 13 of 15
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, if required by such
statute or regulation, 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, or Grantee may terminate this agreement without further
liability or penalty subject to its prompt removal of the Grantee Facilities in
compliance with applicable terms herein.
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 within such thirty (30) day period.
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 provided the provision deemed invalid is not a material term
to this agreement.
Section 24. Titles
Ordinance No. 6491
Franchise Agreement No. 13-37
February 11, 2014
Page 14 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. Termination.
Grantee shall have the right to terminate this agreement with respect to an
individual Franchise Area authorized hereunder, without penalty, upon one
hundred twenty (120) days prior written notice. In such event, all applicable fees
and/or costs set forth herein shall be equitably adjusted as of the effective date of
termination
Section 27. 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: FEB 1 8 2014
PASSED: FEB 1 8 2014
APPROVED: FEB 18 2014
N BACKUS, MAYOR
ATTEST:
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D ' Ile E. Daskam, City Clerk
AP"OVE!, , TO FOR
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Publish-.: _ - ,,Z - `- - J
Ordinance No. 6491
Franchise Agreement No. 13-37
February 11, 2014
Page 15 of 15
Exhibit "A" - T-Mobile Franchise Area AUBURN
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Ordinance No 6491
Exhibit A
February 11, 2014 T Mobile Facilities Hydrology Political Boundaries Transportation
Page 1 of 1
l? ' Streams City of Auburn arterial:
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EXHIBIT"B"
GRANTEE FACILITIES
EXISTING T-MOBILE FACILITIES IN CITY OF AUBURN ROW
Site ID: SE4042A, `Peasley Canyon"
Location:
33043 46th Place South
Auburn,WA 98001
Description: Telecommunications Facility consisting of above ground radio equipment
cabinets located in a 12'x17' cedar wood fence enclosure in the Right-of-
Way (ROW), with antennas oailocated on an existing 88' above-ground
wooden utility pole in the ROW with connecting underground conduit
Site ID: SE04028B, Mountain View Cemetery/PR
Location:
5605 S 324th Place
Auburn WA 98001
Description: Telecommunication Facility consisting of antennas located on an existing
75' above-groundround wood utility pole in the Right of Way with
connecting underground conduit to the radio equipment cabinets located
on adjacent private property.
•
Ordinance No. 6491
Exhibit B
February 11, 2014
Page 1 of 1
EXHIBIT "C"
GRANTEE SERVICES
SERVICES PROVIDED BY T-MOBILE WITHIN THE CITY OF AUBURN:
Telecommunications Services authorized by the Federal Communications Commission;
including but not limited to the following:
THE TRANSMISSION, AMPLIFICATION AND RECEPTION OF RADIO
COMMUNICATION SIGNALS, INCLUDING BUT NOT LIMITED TO THOSE RELATED
TO:
• VOICE,
• DATA,
• IMAGES AND VIDEO
• E-911/EMERGENCY ACCESS
• 3-G AND 4-G
Ordinance No, 6491
Exhibit C
February 11,2014
Page 1 of 1
EXHIBIT"D"
STATEMENT OF ACCEPTANCE
T-Mobile West LLC, A Delaware limited liability company, 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.
T-Mobile West LLC
A Delaware limited liabil'It company
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By: till' Date: 3/ II
Name: J- • �'. -'
Title: . Area Director, Engineering & Operations
/7117P7'-art 3004
STATE OF WASHINGTON
)ss.
COUNTY OF KING )
On this day of W e_ ll , 2014, before me the undersigned, a Notary
Public in and for the State of Washington, duly commissioned and sworn, personally
appeared, Jay Noceto of T-Mobile West LLC, 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.
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NOTARY PUB IC in and for the State of 5 -1:
�1bl�iM residing at '(s_ ��,',, aoat.`o =z = I
1V-7,/MY COMMISSION EXPIRES: it I I,
Ordinance No.6491
Franchise Agreement No. 13-37
DATE 09124/2013
Page 1 of 1 •