Loading...
HomeMy WebLinkAbout6715 ORDINANCE NO. 6715 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN, WASHINGTON, GRANTING TO FATBEAM, LLC, A WASHINGTON LIMITED LIABILITY COMPANY, A FRANCHISE FOR TELECOMMUNICATIONS AND RELATED SERVICES WHEREAS, Fatbeam, LLC, a Washington 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, to install, construct, erect, operate, maintain, repair, relocate and remove its facilities in, on, over, under, along or across those right(s)-of-way; and WHEREAS, following proper notice, the City Council held a public hearing on Grantee's request for a Franchise; and WHEREAS, based on the information presented at the public hearing, and from facts and circumstances developed or discovered through independent study and investigation, the City Council now deems it appropriate and in the best interest of the City and its inhabitants to grant the franchise to Grantee. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN WASHINGTON, DO ORDAIN as follows: Section 1. Grant of Right to Use; Franchise Area A. Subject to the terms and conditions stated in this Agreement, the City grants to the Grantee general permission to enter, use, and occupy the Franchise Area, located within the incorporated area of the City. Grantee may locate the Grantee's Facilities within the Franchise Area subject to all applicable laws, regulations, and permit conditions. B. The Grantee is authorized to install, remove, construct, erect, operate, maintain, relocate, upgrade, replace, restore, and repair Grantee's Facilities to provide Grantee's Services in the Franchise Area. C. This Franchise does not authorize the use of the Franchise Area for any facilities or services other than Grantee's Facilities and Grantee's Services, and it extends no rights or privilege relative to any facilities or services of any type, including Grantee's Facilities and Grantee's Services, on public or private property elsewhere within the City. Ordinance No. 6715 Franchise Agreement No. 19-09 March 5, 2019 Page 1 of 15 D. This Franchise is non-exclusive and does not prohibit the City from entering into other agreements, including Franchises, impacting the Franchise Area, for any purpose that does not interfere with Grantee's rights under this Franchise. E. Except as explicitly set forth in this Agreement, this Franchise does not waive any rights that the City has or may acquire with respect to the Franchise Area or any other City roads, rights-of-way, or property. This Franchise will be subject to the power of eminent domain, and in any proceeding under eminent domain, the Grantee acknowledges its use of the Franchise Area will 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's Facilities, the City will 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's 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 will 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 will be sent by a nationally recognized overnight courier or by certified mail to the following addresses, unless a different address is designated in writing and delivered to the other party. City: Right-of-Way Specialist, Public Works Department - Transportation City of Auburn 25 West Main Street Auburn, WA 98001-4998 Telephone: (253) 931-3010; Fax: (253) 931-3048 with a copy to: City Clerk City of Auburn 25 West Main Street Auburn, WA 98001-4998 Ordinance No. 6715 Franchise Agreement No. 19-09 March 5, 2019 Page 2 of 15 Grantee: Fatbeam, LLC 2065 W Riverstone Drive, Suite 105 Coeur d'Alene, ID 83814 Phone: 509-344-1008 E-Mail: regulatory@Fatbeam.com B. Any changes to the contact information will be sent to the City's Right-of-Way Specialist, Public Works Department— Transportation Division, with copies to the City Clerk, referencing the title of this Agreement. C. The above-stated Grantee voice and fax telephone numbers will be staffed at least during normal business hours, Pacific time zone. The City may contact Grantee at the following number for emergency or other needs outside of normal business hours of the Grantees: (855) 979-8844 Section 3. Term of Agreement A. This Franchise will run for a period of five (5) years, from the date of execution. 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 will only submit those materials deemed necessary by the City to address changes in the Grantee's Facilities or Grantee's Services, or to reflect specific reporting periods mandated by the ACC. C. Failure to Renew Franchise—Automatic Extension. If the Parties fail to formally renew this Franchise prior to the expiration of its term or any extension thereof, the Franchise automatically continues month to month until renewed or either party gives written notice at least one hundred and eighty (180) days in advance of intent not to renew the Franchise. Section 4. Definitions For the purpose of this Agreement: A. "ACC" means the Auburn City Code. Ordinance No. 6715 Franchise Agreement No. 19-09 March 5, 2019 Page 3 of 15 B. "Emergency" means a condition of imminent danger to the health, safety and welfare of persons or property located within the City including, without limitation, damage to persons or property from natural consequences, such as storms, earthquakes, riots, acts of terrorism or wars. C. "Franchise Area" means all present and future Rights-of-Way as defined in Section 4.H., within the City Limits as they currently exist or as amended in the future. D. "Grantee's Facilities" means Grantee's fiber optic and broadband communications services constructed and operated within the City's Rights-of- Way, and shall include all cables, wires, conduits, ducts, pedestals and any associated converter, equipment or other facilities within the City's Rights-of-Way, designed and constructed for the purpose of providing Telecommunications Service and other lawful services not prohibited by this Ordinance. E. "Grantee's Services" means any telecommunications service, telecommunications capacity, or dark fiber, provided by the Grantee using its Facilities, including, but not limited to, the transmission of voice, data or other electronic information, or other subsequently developed technology that carries a signal over fiber optic cable. Grantee's Services shall also include non-switched, dedicated and private line, high capacity fiber optic transmission services to firms, businesses or institutions within the City and other lawful services not prohibited by this Ordinance. However, Grantee's Services shall not include the provision of "cable services", as defined by 47 U.S.C. §522, as amended, for which a separate franchise would be required. F. "Maintenance" or "Maintain" means examining, testing, inspecting, repairing, maintaining, restoring, and replacing the existing Grantee's Facilities or any part thereof as required and necessary for safe operation. G. "Relocation" means permanent movement of Grantee facilities required by the City, and not temporary or incidental movement of such facilities, or other revisions Grantee would accomplish and charge to third parties without regard to municipal request. Relocation shall conform to the meanings and requirements of Chapter 35.99 RCW. H. "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. Ordinance No. 6715 Franchise Agreement No. 19-09 March 5, 2019 Page 4 of 15 Section 5. Acceptance of Franchise A. This Franchise will not become effective until Grantee files with the City Clerk (1) the Statement of Acceptance (Exhibit "A"), (2) all verifications of insurance coverage specified under Section 15, (3) the financial guarantees specified in Section 16, and (4) payment of any outstanding application fees required in the City Fee Schedule. These four items will collectively be the "Franchise Acceptance". The date that such Franchise Acceptance is filed with the City Clerk will be the effective date of this Franchise. B. If the Grantee fails to file the Franchise Acceptance with the City Clerk within thirty (30) days after the effective date of the ordinance approving the Franchise, the City's grant of the Franchise will be null and void. Section 6. Construction and Maintenance A. The Grantee will apply for, obtain, and comply with the terms of all permits required under ACC Chapter 12.24 for any work done within the City. Grantee will comply with all applicable City, State, and Federal codes, rules, regulations, and orders in undertaking such work. 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's Facilities will be installed within the public right-of-way and may require the removal, relocation or replacement thereof in the public interest and safety at the expense of the Grantee as provided for in Chapter 35.99 RCW D. Before beginning any work within the public right-of-way, the Grantee will comply with the One Number Locator provisions of Chapter 19.122 RCW to identify existing utility infrastructure. E. Tree Trimming. Grantee will have the authority to reasonably trim vegetation on 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's Facilities. Grantee must get written approval from the City before trimming vegetation in or over the ROW. Grantee will be responsible for debris removal from trimming activities. If debris is not removed within twenty- four (24) hours of completion of the trimming, the City may, at its sole discretion, remove the debris and charge Grantee for the cost of removal. This section does not grant automatic authority to clear vegetation for purposes of providing a clear path for radio signals. Any general vegetation clearing will require a permit. Ordinance No. 6715 Franchise Agreement No. 19-09 March 5, 2019 Page 5 of 15 Section 7. Repair and Emergency Work In the event of an emergency, the Grantee may commence repair and emergency response work as required under the circumstances. The Grantee will notify the City telephonically during normal business hours (at 253-931-3010) and during non-business hours (at 253-876-1985) as promptly as possible, before such repair or emergency work commences, and in writing as soon thereafter as possible. The City may commence emergency response work, at any time, without prior written notice to the Grantee, but will notify the Grantee in writing as promptly as possible under the circumstances. Grantee will reimburse the City for the City's actual cost of performing emergency response work. 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, the property to a safe condition. All repair work will be performed and completed to the satisfaction of the City Engineer. Section 9. Location Preference A. Any structure, equipment, appurtenance or tangible property of a utility, other than the Grantee's, which was installed, constructed, completed or in place prior in time to Grantee's application for a permit to construct or repair Grantee's Facilities under this Franchise will have preference as to positioning and location with respect to the Grantee's Facilities. However, to the extent that the Grantee's Facilities are completed and installed before another utility's submittal of a permit for new or additional structures, equipment, appurtenances or tangible property, then the Grantee's Facilities will have priority. These rules governing preference will continue when relocating or changing the grade of any City road or right-of-way. A relocating utility will not cause the relocation of another utility that otherwise would not require relocation. This Section will not apply to any City facilities or utilities that may in the future require the relocation of Grantee's Facilities. Such relocations will be governed by Section 11 and Chapter 35.99 RCW. B. Grantee will maintain a minimum underground horizontal separation of five (5) feet from City water, sanitary sewer and storm sewer facilities and ten (10) feet from above-ground City water facilities; provided, that for development of new areas, the City, in consultation with Grantee and other utility purveyors or authorized users of the Public Way, will develop guidelines and procedures for determining specific utility locations. Ordinance No. 6715 Franchise Agreement No. 19-09 March 5, 2019 Page 6 of 15 Section 10. Grantee Information A. Grantee agrees to supply, at no cost to the City, any information reasonably requested by the City to coordinate municipal functions with Grantee's activities and fulfill any municipal obligations under state law. This information will include, at a minimum, as-built drawings of Grantee's Facilities, installation inventory, and maps and plans showing the location of existing or planned facilities within the City. This information may be requested either in hard copy or electronic format, compatible with the City's data base system, including the City's Geographic Information System (GIS) data base. Grantee will keep the City Engineering Aide 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 ten (10) business days to obtain an injunction to prohibit the City's release of records. Grantee will indemnify and hold harmless the City for any loss or liability for fines, penalties, and costs (including attorney's fees) imposed by an administrative or judicial authority on the City because of non-disclosures requested by Grantee under Washington's public records act, provided the City has notified Grantee of the pending request. Section 11. Relocation of Grantee's 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 Chapter 35.99 RCW. 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's Facilities is necessitated by a request from a party other than the City, that party will pay the Grantee the actual costs associated with such relocation. Section 12. Abandonment and or Removal of Grantee's Facilities A. Within one hundred and eighty days (180) of Grantee's permanent cessation of use of any portion of the Grantee's Facilities, the Grantee will, at the City's discretion, either abandon in place or remove the affected facilities. Ordinance No. 6715 Franchise Agreement No. 19-09 March 5, 2019 Page 7 of 15 B. The parties expressly agree that this Section will survive the expiration, revocation or termination of this Franchise. Section 13. Undergrounding A. The parties agree that this Franchise does not limit the City's authority under federal law, state law, or local ordinance, to require the undergrounding of utilities. B. Whenever the City requires the undergrounding of aerial utilities in the Franchise Area, the Grantee will underground the Grantee's Facilities in the manner specified by the City Engineer at no expense or liability to the City, except as may be required by RCW Chapter 35.99. Where other utilities are present and involved in the undergrounding project, Grantee will only be required to pay its fair share of common costs borne by all utilities, in addition to the costs specifically attributable to the undergrounding of Grantee's Facilities. Common costs will include necessary costs for common trenching and utility vaults. Fair share will be determined in comparison to the total number and size of all other utility facilities being undergrounded. Section 14. Indemnification and Hold Harmless A. The Grantee will 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 those costs, claims, injuries, damages, losses, suits, or liabilities are caused by the sole negligence or willful misconduct of the City. 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 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 will hold the City harmless from any liability arising out of or in connection with any damage or loss to the Grantee's Facilities caused by maintenance and/or construction work performed by, or on behalf of, the City within the Franchise Area or any other City road, right-of-way, or other property, except to the extent any such damage or loss is directly caused by the negligence or willful misconduct of the City, or its agent performing such work. Ordinance No. 6715 Franchise Agreement No. 19-09 March 5, 2019 Page 8 of 15 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, will make such arrangements as Grantee deems fit for the provision of such services. The Grantee will 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 will indemnify the City against any and all third-party costs, claims, injuries, damages, losses, suits, or liabilities based on the City's failure or inability to provide such services. D. Acceptance by the City of any work performed by the Grantee will 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 will survive the expiration or termination of this Agreement. Section 15. Insurance A. The Grantee will 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 following amounts and types: 1. Automobile Liability insurance covering all owned, non- owned, hired, and leased vehicles with a minimum combined single limit for bodily injury and property damage of $1,000,000.00 per accident. Coverage will be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary, the policy will be endorsed to provide contractual liability coverage. 2. Commercial General Liability insurance with limits no less than $2,000,000.00 each occurrence, $2,000,000.00 general aggregate and a $2,000,000.00 products-completed operations aggregate limit. Coverage will be written on ISO occurrence form CG 00 01 and will cover liability arising from premises, operations, independent contractors, products-completed operations, stop gap liability, and personal injury and advertising injury and 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 Ordinance No. 6715 Franchise Agreement No. 19-09 March 5, 2019 Page 9 of 15 11 85. There will be no endorsement or modification of the Commercial General Liability insurance for liability arising from explosion, collapse, or underground property damage. The City will 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 $1,000,000.00 per claim for all professional employed or retained 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 will be primary insurance as respects the City. Any insurance, self-insurance, or insurance pool coverage maintained by the City will be in excess of the Grantee's insurance and will not contribute with it. 2. The Grantee's insurance will be endorsed to state that coverage will 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. D. Verification of Coverage. Grantee will 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 will have the right to self-insure any or all of the above- required insurance. Any such self-insurance is subject to approval by the City. F. Grantee's maintenance of insurance as required by this Franchise will not be construed to limit the liability of Grantee to the coverage provided by that insurance, or otherwise limit the City's recourse to any remedy to which the City is otherwise entitled at law or in equity. Ordinance No. 6715 Franchise Agreement No. 19-09 March 5, 2019 Page 10 of 15 Section 16. Performance Security The Grantee will provide the City with a financial guarantee in the amount of Fifty Thousand Dollars ($50,000.00) running for, or renewable for, the term of this Franchise, in a form and substance acceptable to the City. If Grantee fails to substantially comply with any one or more of the provisions of this Franchise, the City may recover jointly and severally from the principal and any surety of that financial guarantee any damages suffered by City as a result of Grantee's failure to comply, including but not limited to staff time, material and equipment costs, compensation or indemnification of third parties, and the cost of removal or abandonment of facilities. Grantee specifically agrees that its failure to comply with the terms of Section 19 will constitute damage to the City in the monetary amount set forth in that section. Any financial guarantee will 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 contained in this Franchise are 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 will inure to its successors, assignees and contractors equally as if they were specifically mentioned herein wherever the Grantee is mentioned. B. This Franchise will not be leased, assigned or otherwise alienated without the express prior consent of the City by ordinance, which such consent will not be unreasonably withheld. C. Grantee and any proposed assignee or transferee will 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 will 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. Before the City's consideration of a request by Grantee to consent to a Franchise assignment or transfer, the proposed Assignee or Transferee will file with the City a written promise to unconditionally accept all terms of the Franchise, effective upon transfer or assignment of the Franchise. The City is under no obligation to undertake any investigation of the transferor's state of compliance Ordinance No. 6715 Franchise Agreement No. 19-09 March 5, 2019 Page 11 of 15 and failure of the City to insist on full compliance before transfer does not waive any right to insist on full compliance thereafter. Section 18. Dispute Resolution A. In the event of a dispute between the City and the Grantee arising by reason of this Franchise, the dispute will first be referred to the operational officers or representatives designated by Grantor and Grantee to have oversight over the administration of this Franchise. The officers or representatives will meet within thirty (30) calendar days of either party's request for a meeting, whichever request is first, and the parties will make a good faith effort to achieve a resolution of the dispute. B. If the parties fail to achieve a resolution of the dispute in this manner, either party may then pursue any available judicial remedies. This Franchise will be governed by and construed in accordance with the laws of the State of Washington. If any suit, arbitration, or other proceeding is instituted to enforce any term of this Agreement, the parties specifically understand and agree that venue will be exclusively in King County, Washington. The prevailing party in any action will be entitled to its attorneys' fees and costs. Section 19. Enforcement and Remedies A. If the Grantee willfully violates, or fails to comply with any of the provisions of this Franchise through willful or unreasonable negligence, or fails to comply with any notice given to 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) revoke the Franchise with no further notification, or (2) impose liquidated 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. If the City determines that Grantee is acting beyond the scope of permission granted in this Franchise for Grantee's Facilities and Grantee's 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 Ordinance No. 6715 Franchise Agreement No. 19-09 March 5, 2019 Page 12 of 15 are not allowed under applicable federal and state or City laws, to compel Grantee to cease those actions. Section 20. Compliance with Laws and Regulations A. This Franchise is subject to, and the Grantee will comply with, all applicable federal and state or City laws, regulations and policies (including all applicable elements of the City's comprehensive plan), in conformance with federal laws and regulations, affecting performance under this Franchise. The Grantee will be subject to the police power of the City to adopt and enforce general ordinances necessary to protect the safety and welfare of the general public in relation to the rights granted in the Franchise Area. B. The City reserves the right at any time to amend this Franchise to conform to any federal or state statute or regulation relating to the public health, safety, and welfare, or relating to roadway regulation, or a City Ordinance enacted pursuant to such federal or state statute or regulation enacted, amended, or adopted after the effective date of this Franchise if it provides Grantee with thirty (30) days written notice of its action setting forth the full text of the amendment and identifying the statute, regulation, or ordinance requiring the amendment. The amendment will become automatically effective on 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 on 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 will not exempt the Grantee from any future license, tax, or charge which the City may adopt under authority granted to it under state or federal law for revenue or as reimbursement for use and occupancy of the Franchise Area. Section 22. Consequential Damages Limitation Notwithstanding any other provision of this Agreement, in no event will either party be liable for any special, incidental, indirect, punitive, reliance, consequential or similar damages. Ordinance No. 6715 Franchise Agreement No. 19-09 March 5, 2019 Page 13 of 15 Section 23. Severability If any portion of this Franchise is deemed invalid, the remainder portions will remain in effect. Section 24. Titles The section titles are for reference only and should not be used for the purpose of interpreting this Franchise. Section 25. Implementation. The Mayor is authorized to implement those administrative procedures necessary to carry out the directions of this legislation. Section 26. 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: JUN 0 3 2019 JUN 0 3 2019 PASSED: APPROVED: JUN 0 3 201-9 ANCY B S MAYO ATTEST: Shawn Campbell, City Clerk APPR6 E AS TO FORM: Steven L. Gross, City Attorney Published: Ordinance No. 6715 Franchise Agreement No. 19-09 March 5, 2019 Page 14 of 15 EXHIBIT "A" STATEMENT OF ACCEPTANCE Fatbeam, 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. Fatbeam, LLC 2065 W Riverstone Drive, Suite 105 Coeur d'Alene, ID 83814 By: de _ Date: Z/0 A Name: Title: STATE OF hiJArFv ) )ss. COUNTY OF o Thr,4 i ) On this lb day of `lire , 2019, before me the undersigned, a Notary Public in and for the State of (o(,t..(4,0 , duly commissioned and sworn, personally appeared, k-> of ywevi , the company that executed the within and for'ggoing 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 herei bove set forth. ignature / be tzk OTARY PUBLIC in and for the State of :• �0•: , residing at eop cf 1tAx. = i wro . i 1.15.2021 . MY COMMISSION EXPIRES: 1 is 2.( •` p�roP • ry,��~ idk Ordinance No. 6715 ��1y0N1rritii;o��� Franchise Agreement No. 19-09 March 5, 2019 Page 15 of 15 CITY OF AUBURN Nancy Backus, Mayor WAS H I N GTO N 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 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. 6715 of the Ordinance of the City of Auburn, entitled "AN ORDINANCE." I certify that said Ordinance No. 6715 was duly passed by the Council and approved by the Mayor of the said City of Auburn, on the 3rd day of June, 2019. I further certify that said Ordinance No. 6715 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 6th day of June, 2019. Witness my hand and the official seal of the City of Auburn, this 25th day of June, 2019. ottAthicitictafr- Shawn Camp ell, Citruark City of Auburn AUBURN * MORE THAN YOU IMAGINED