HomeMy WebLinkAboutTIC 2018-06-25 COMPLETE AGENDA PACKET
City of Tukwila
Distribution:
R. Turpin
T. McLeod
A. Youn
D. Quinn
Transportation and
Clerk File Copy
Z. Idan
2 Extra
V. Seal
Infrastructure Committee
D. Robertson
Place pkt pdf on Z:\\Trans &
Mayor Ekberg
Infra Agendas
D. Cline
e-mail cover to: A. Le,
Thomas McLeod, Chair
L. Humphrey
C. O’Flaherty, A. Youn,
H. Hash
De’Sean Quinn
D. Almberg, B. Saxton,
G. Labanara
S. Norris, L. Humphrey,
Zak Idan
H. Ponnekanti
V. Seal, T. McLeod
P. Brodin
AGENDA
T,J25,2018 – 5:30
UESDAY UNE PM
HCR
AZELNUT ONFERENCE OOM
(C)
EAST ENTRANCE OF ITY HALL
Item
Recommended Action Page
1. PRESENTATION(S)
2. BUSINESS AGENDA
a) West Valley Hwy (I-405 to Strander Blvd) a) Forward to 7/2/18 Regular Pg. 1
CMAQ Grant Award and Acceptance Consent Agenda
b) AT&T/New Cingular Wireless Small Cell Technology b) Forward to 7/9/18 C.O.W. Pg. 17
Franchise Agreement Ordinance and 7/16/18 Regular
c) Mobilitie, LLC Small Cell Technology c) Forward to 7/9/18 C.O.W. Pg. 41
Franchise Agreement Ordinance and 7/16/18 Regular
d) Annual Bridge Inspections and Repairs 2018 d) Forward to 7/2/18 Regular Pg. 65
Design Consultant Supplement No. 1 with TranTech Consent Agenda
e) Traffic Calming, Safe Routes to Schools, and Ped/Bicycle e) Discussion Only Pg. 69
Improvements in Residential Neighborhoods
(Please bring
handouts from 5/29/18 Transportation and Infrastructure Committee
meeting)
3. SCATBd
4. MISCELLANEOUS
nd
f) 42 Ave S Phase III Project f) Discussion Only
Change Order No. 3
5. ANNOUNCEMENTS
Future Agendas:
2018 Committee Work Plan
Next Scheduled Meeting:
Monday, July 9, 2018
The City of Tukwila strives to accommodate individuals with disabilities.
Please contact the Public Works Department at 206-433-0179 for assistance.
City of Tukwila
Allan Ekberg, Mayor
Public Works Department — Henry Hash, Director
INFORMATIONAL MEMORANDUM
TO: Transportation and Infrastructure Committee
FROM: Harry Hash, Public Works Director /
BY: Cyndy Knighton, Senior Program Manager
CC: Mayor Ekberg
DATE: June 22, 2018
SUBJECT: West Valley Hwy (1-405 to Strander Blvd)
Project No. 99310410
CMAQ Grant Award and Acceptance
ISSUE
Formal City acceptance of a Congestion Mitigation and Air Quality (CMAQ) grant in the amount of $627,903 which has been awarded to the West
Valley Hwy (1-405 to Strander Blvd) Project.
BACKGROUND
In December 2016, Tukwila and King County Parks and Recreation Division entered into an Interagency Agreement for the Development of Mobility
Connections Facilities on Baker Blvd and Christensen Rd. This Agreement provided Tukwila with $1,000,000 of King County Trail Levy funds to
construct the Baker Blvd Non -Motorized Improvements Project. Also in the KC Agreement was reference to the larger Tukwila Mobility Connections
concept plan completed by King County in 2016 and a statement that both parties were working cooperatively to implement the larger Mobility Project.
Tukwila committed up to $70,000 of funding toward the Tukwila Mobility Connection Project using the then -budgeted funds in the 2015-2017 CIP for
the TUC/TOD Pedestrian Improvement Project (No. 90710405). King County, with Tukwila as a partner, was awarded a federal CMAQ grant for design
and construction of the shared use path on the west side of West Valley Hwy from the Pedestrian Bridge to Longacres Way. Design -only work on
Longacres Way from West Valley Hwy to the end of the City's right-of-way is also included. After the award was made, King County and Tukwila
agreed to make Tukwila the lead agency on the awarded grant and the State Transportation Improvement Plan was amended to reflect that change
on May 2, 2018. The final CMAQ award to Tukwila is $627,903.
According to City CIP policy, staff must get approval from the full Council before accepting grants.
DISCUSSION
The CMAQ grant will design and construct a wide shared -use path on West Valley Hwy from the Longacres Way intersection south to the recently
widened sidewalks next to the TUC Pedestrian Bridge and design non -motorized facilities on Longacres Way. For most efficient use of public funding,
staff has combined the CMAQ work with the larger West Valley Hwy (I-405-Strander Blvd) project which was recently awarded a $2.4m TIB grant.
Funds for the CMAQ grant match requirement can come from the TIB grant, and some of the TIB grant match requirements were met with the CMAQ
grant. This common practice helps minimize the City's general fund obligations. The attached WSDOT forms, Local Agency Federal Aid Project
Prospectus and Local Agency Agreement, must be signed by the Mayor to obligate the CMAQ funds.
FISCAL IMPACT
Not all of the City matching funds are currently shown in the CIP as available, but instead require amending the CIP to allocate $200,000 shown in the
"Beyond" years into 2018/2019. This was discussed by the Transportation and Infrastructure Committee in January as part of the TIB grant acceptance.
The City's $97,996 match requirement for the shared use pathways is through a combination of TIB grant and general revenue. Impact fees cannot be
used as match for the shared use pathways but can be used for the larger project.
Funding Source
Design
Construction
Total
Awarded CMAQ Grant
$ 186,840.00
$ 441,063.00
$ 627,903.00
TIB Grant,
280,820.00
2,153,560.00
2,434,380.00
Traffic Impact Fees
37,500.00
212,500.00
250,000.00
Existing CIP 104 Fund
10,000.00
321,000.00
331,000.00
Requested General Fund
0.00
200,000.00
200,000.00
Total
$ 515,160.00
$ 3,328,123.00
$ 3,843,283.00
RECOMMENDATION
Council is being asked to formally accept the federal CMAQ grant for the West Valley Hwy (1-405 to Strander Blvd) Project and consider this item on
the Consent Agenda at the July 2, 2018 Regular Meeting.
Attachments: Notification of Award letter dated May 16, 2018
Local Agency Agreement and Project Prospectus
Draft CIP Sheet
W:1PW Eng1PROJECTS1A- RW & RS ProjectslWest Valley Highway (99310410)1Design\INFORMATION MEMO - CMAQ Grant Acceptance 6-25-18.docx
1
Mr. Roger Millar
Secretary of Transportation
Department of Transportation
Olympia, Washington
Attention: Stephanie Tax
Dear Mr. Millar:
U. S. DEPARTMENT OF TRANSPORTATION
FEDERAL HIGHWAY ADMINISTRATION
WASHINGTON DIVISION
SUITE 501, EVERGREEN PLAZA
711 SOUTH CAPITOL WAY
OLYMPIA, WA 98501
FEDERAL TRANSIT ADMINISTRATION
915 SECOND AVENUE, SUITE 3142
SEATTLE, WA 98174
May 16, 2018
I-IPP-WA.2/721.4
2018-2021 STIP Amendment 18-04
The Federal Highway Administration (FHWA) and Federal Transit Administration (FTA)
received the May 2, 2018, letter from Ms. Stephanie Tax requesting approval of 2018-2021 STIP
Amendment 18-04.
Pursuant to 23 CFR 450.328 we find that the TIP Amendments for the Metropolitan Planning
Organizations (MPOs) submitted for this round conform with the State Implementation Plan for
reducing the severity and number of National Ambient Air Quality Standards (NAAQS)
violations and insuring expeditious attainment of the standards.
In accordance with 23 CFR 450.218, the FHWA and the FTA, based on the certification of the
statewide and metropolitan transportation planning processes for and within the State of
Washington, hereby find that the projects described in the 2018-2021 STIP approved January
10, 2018, and those projects submitted through subsequent amendments (including this
Amendment) are based on a transportation planning process that substantially meets the
requirements of 23 CFR Part 450 Subpart A, B and C, 49 U.S.C. Sections 5303-5035, and 23
U.S.C. Sections 134 and 135. We therefore approve 2018-2021 STIP as amended in 18-04.
2
Approval of the STIP and any amendments thereto are not to be construed as a Federal -aid
eligibility determination. Each project must satisfy the specific requirements of the program
from which Federal funds are solicited, as well as other Federal requirements, before Federal
funds are authorized.
If you have any questions concerning our joint action on this STIP amendment, please contact
Sharleen Balceman, FHWA, at 360-753-9418 and/or Ned Conroy, FTA, at 206-220-4318.
Ofir
i7)\1
Daniel M. Mathis, P.E.
Division Administrator
Federal Highway Administration
cc:
Matt Kunic (MS: 47370);
BFCG.
CDTC
CWCOG
LCVMPO
PSRC
SCOG
RTC
TRPC
SRTC
WCOG
WWVMPO
WCOG
intra M. rce
Regional Administrator
Federal Transit Administration
Eastern, North Central, Olympic, South Central, and Southwest Regions of WSDOT
3
County: King
List of 18-04 Amendment Projects
Jurisdiction: Tukwila
Project Number: TUK-60
Title: West Valley Highway/Longacres Way Shared Use Pathways
Phase
Programmed Year
Obligation Date
Funding Source
Federal Fund
State Funds
Local Funds
Phase Total
P/E-Design
2018
5/1/2018
CMAQ
$186,840
$0
$0
$186,840
P/E-Design
2018
5/1/2018
Local
$0
$0
$29,160
$29,160
Construction
2019
1/1/2019
CMAQ
$441,063
$0
$0
$441,063
Construction
2019
1/1/2019
Local
$0
$0
$68,836
$68,836
WSDOT PIN:
Federal Aid/FTA Grant Number(s):
Functional Class: Urban Principal Arterial
Location: SR 181 & Longacres Way
MTP Status: Exempt MTP Reference(s): N/A
Totals:
$627,903
$0
$97,996
Improvement Type: Sidewalk
From: W end of planned Green River Brid To: Longacres Way
Description: Total Cost: $725,899 Regionally Significant: No
Environmental Status: DCE
$725,899
Improvements will be completed on SR 181 from the west end of the planned Green River non -motorized Bridge to Longacres Way, including a 12-14 ft. separated
shared use path with a 5 ft. landscaped buffer strip on the west side of the highway. Design -only will be completed for future improvements on Longacres Way between
SR 181 to the Tukwila Sound Transit Link Station.
5/16/2018 A - 16
.A
Washington State
Department of Transportation
Agency City of Tukwila
Address
6200 Southcenter Boulevard
Tukwila, WA 98188
Local Agency Agreement
CFDA No. 20.205
(Catalog or Federal Domestic Assistance)
Project No. TUK-60
Agreement No.
For OSC WSDOT Use Only
The Local Agency having complied, or hereby agreeing to comply, with the terms and conditions set forth in (1) Title 23, U.S. Code
Highways, (2) the regulations issued pursuant thereto, (3) 2 CFR Part 200, (4) the policies and procedures promulgated by the
Washington State Department of Transportation, and (5) the federal aid project agreement entered into between the State and Federal
Government, relative to the above project, the Washington State Department of Transportation will authorize the Local Agency to
proceed on the project by a separate notification. Federal funds which are to be obligated for the project may not exceed the amount
shown herein on line r, column 3, without written authority by the State, subject to the approval of the Federal Highway Administration.
All project costs not reimbursed by the Federal Government shall be the responsibility of the Local Agency.
Project Description
Name West Valley Highway/Longacres Way Shared Use Pathways
Termini W end of planned Green River Bridge to Longacres Way
Description of Work
See Attached.
Project Agreement End Date 12/31/2020
Proposed Advertisement Date
Length 0.17 mile
Claiming Indirect Cost Rate
Yes ✓ No
Type of Work
Estimate of Funding
(1)
Estimated Total
Project Funds
(2)
Estimated Agency
Funds
(3)
Estimated Federal
Funds
PE a. Agency
86.5 %
b. Other Consultant
$ 214,000.00
$ 29,160.00
$ 186,840.00
Federal Aid c. Other
Participation d. State
$ 2,000.00
$ 2,000.00
Ratio for PE
e. Total PE Cost Estimate (a+b+c+d)
$ 216,000.00
$ 29,160.00
$ 188,840.00
Right of Waya f. Agency
g. Other
Federal Aid h. Other
Participation
Ratio for RW i. State
j. Total RNV Cost Estimate (f+g+h+i)
$ 0.00
$ 0.00
$ 0.00
Construction k. Contract
ok
I. Other Contractor
m. Other
Federal Aid n. Other
Participation o. Agency
Ratio for CN
p. State
q. Total CN Cost Estimate (k+(+m+n+o+a)
$ 0.00
$ 0.00
$ 0.00
r. Total Proiect Cost Estimate (e+i+a)
$ 216,000.00
$ 29,160.00
$ 188,840.00
Agency Official
By
Title Mayor
DOT Form 140-039
Revised 05/2015
Washington State Department of Transportation
By
Director, Local Programs
Date Executed
Page 1
5
Construction Method of Financing (Check Method Selected)
State Ad and Award
Method A -Advance Payment -Agency Share of total construction cost (based on contract award)
Method B - Withhold from gas tax the Agency's share of total construction coast (line 5, column 2) in the amount of
$ at $ per month for months.
Local Force or Local Ad and Award
,/ Method C -Agency cost incurred with partial reimbursement
The Local Agency further stipulates that pursuant to said Title 23, regulations and policies and procedures, and
as a condition to payment of the federal funds obligated, it accepts and will comply with the applicable
provisions set forth below. Adopted by official action on
, Resolution/Ordinance No. Funding acceptance by Council Motion
Provisions
I. Scope of Work
The Agency shall provide all the work, labor, materials, and services necessary to perform the project which is described and set
forth in detail in the "Project Description" and "Type of Work."
When the State acts for and on behalf of the Agency, the State shall be deemed an agent of the Agency and shall perform the
services described and indicated in "Type of Work" on the face of this agreement, in accordance with plans and specifications as
proposed by the Agency and approved by the State and the Federal Highway Administration.
When the State acts for the Agency but is not subject to the right of control by the Agency, the State shall have the right to perform
the work subject to the ordinary procedures of the State and Federal Highway Administration.
II. Delegation of Authority
The State is willing to fulfill the responsibilities to the Federal Government by the administration of this project. The Agency agrees
that the State shall have the full authority to carry out this administration. The State shall review, process, and approve documents
required for federal aid reimbursement in accordance with federal requirements. If the State advertises and awards the contract, the
State will further act for the Agency in all matters concerning the project as requested by the Agency. If the Local Agency advertises and
awards the project, the State shall review the work to ensure conformity with the approved plans and specifications.
III. Project Administration
Certain types of work and services shall be provided by the State on this project as requested by the Agency and described in the
Type of Work above. In addition, the State will furnish qualified personnel for the supervision and inspection of the work in progress. On
Local Agency advertised and awarded projects, the supervision and inspection shall be limited to ensuring all work is in conformance
with approved plans, specifications, and federal aid requirements. The salary of such engineer or other supervisor and all other salaries
and costs incurred by State forces upon the project will be considered a cost thereof. All costs related to this project incurred by
employees of the State in the customary manner on highway payrolls and vouchers shall be charged as costs of the project.
IV. Availability of Records
All project records in support of all costs incurred and actual expenditures kept by the Agency are to be maintained in accordance
with local government accounting procedures prescribed by the Washington State Auditor's Office, the U.S. Department of
Transportation, and the Washington State Department of Transportation. The records shall be open to inspection by the State and
Federal Government at all reasonable times and shall be retained and made available for such inspection for a period of not less than
three years from the final payment of any federal aid funds to the Agency. Copies of said records shall be furnished to the State and/or
Federal Government upon request.
V. Compliance with Provisions
The Agency shall not incur any federal aid participation costs on any classification of work on this project until authorized in writing
by the State for each classification. The classifications of work for projects are:
1. Preliminary engineering.
2. Right of way acquisition.
3. Project construction.
Once written authorization is given, the Agency agrees to show continuous progress through monthly billings. Failure to show
continuous progress may result the Agency's project becoming inactive, as described in 23 CFR 630, and subject to de -obligation of
federal aid funds and/or agreement closure.
If right of way acquisition, or actual construction of the road for which preliminary engineering is undertaken is not started by the
close of the tenth fiscal year following the fiscal year in which preliminary engineering phase was authorized, the Agency will repay to
the State the sum or sums of federal funds paid to the Agency under the terms of this agreement (see Section IX).
If actual construction of the road for which right of way has been purchased is not started by the close of the tenth fiscal year
following the fiscal year in which the right of way phase was authorized, the Agency will repay to the State the sum or sums of federal
funds paid to the Agency under the terms of this agreement (see Section IX).
DO i Form 140-039 Page 2
Revised 05/2015
6
The Agency agrees that all stages of construction necessary to provide the initially planned complete facility within the limits of this
project will conform to at least the minimum values set by approved statewide design standards applicable to this class of highways,
even though such additional work is financed without federal aid participation.
The Agency agrees that on federal aid highway construction projects, the current federal aid regulations which apply to liquidated
damages relative to the basis of federal participation in the project cost shall be applicable in the event the contractor fails to complete
the contract within the contract time.
VI. Payment and Partial Reimbursement
The total cost of the project, including all review and engineering costs and other expenses of the State, is to be paid by the Agency
and by the Federal Government. Federal funding shall be in accordance with the Federal Transportation Act, as amended, 2 CFR Part
200. The State shall not be ultimately responsible for any of the costs of the project. The Agency shall be ultimately responsible for all
costs associated with the project which are not reimbursed by the Federal Government. Nothing in this agreement shall be construed as
a promise by the State as to the amount or nature of federal participation in this project.
The Agency shall bill the state for federal aid project costs incurred in conformity with applicable federal and state laws. The agency
shall minimize the time elapsed between receipt of federal aid funds and subsequent payment of incurred costs. Expenditures by the
Local Agency for maintenance, general administration, supervision, and other overhead shall not be eligible for federal participation
unless a current indirect cost plan has been prepared in accordance with the regulations outlined in 2 CFR Part 200 - Uniform Admin
Requirements, Cost Principles and Audit Requirements for Federal Awards, and retained for audit.
The State will pay for State incurred costs on the project. Following payment, the State shall bill the Federal Government for
reimbursement of those costs eligible for federal participation to the extent that such costs are attributable and properly allocable to
this project. The State shall bill the Agency for that portion of State costs which were not reimbursed by the Federal Government (see
Section IX).
1. Project Construction Costs
Project construction financing will be accomplished by one of the three methods as indicated in this agreement.
Method A — The Agency will place with the State, within (20) days after the execution of the construction contract, an advance in the
amount of the Agency's share of the total construction cost based on the contract award. The State will notify the Agency of the exact
amount to be deposited with the State. The State will pay all costs incurred under the contract upon presentation of progress billings
from the contractor. Following such payments, the State will submit a billing to the Federal Government for the federal aid participation
share of the cost. When the project is substantially completed and final actual costs of the project can be determined, the State will
present the Agency with a final billing showing the amount due the State or the amount due the Agency. This billing will be cleared by
either a payment from the Agency to the State or by a refund from the State to the Agency.
Method B — The Agency's share of the total construction cost as shown on the face of this agreement shall be withheld from its
monthly fuel tax allotments. The face of this agreement establishes the months in which the withholding shall take place and the exact
amount to be withheld each month. The extent of withholding will be confirmed by letter from the State at the time of contract award.
Upon receipt of progress billings from the contractor, the State will submit such billings to the Federal Government for payment of its
participating portion of such billings.
Method C — The Agency may submit vouchers to the State in the format prescribed by the State, in duplicate, not more than once
per month for those costs eligible for Federal participation to the extent that such costs are directly attributable and properly allocable
to this project. Expenditures by the Local Agency for maintenance, general administration, supervision, and other overhead shall not be
eligible for Federal participation unless claimed under a previously approved indirect cost plan.
The State shall reimburse the Agency for the Federal share of eligible project costs up to the amount shown on the face of this
agreement. At the time of audit, the Agency will provide documentation of all costs incurred on the project. The State shall bill the
Agency for all costs incurred by the State relative to the project. The State shall also bill the Agency for the federal funds paid by the
State to the Agency for project costs which are subsequently determined to be ineligible for federal participation (see Section IX).
VII. Audit of Federal Consultant Contracts
The Agency, if services of a consultant are required, shall be responsible for audit of the consultant's records to determine eligible
federal aid costs on the project. The report of said audit shall be in the Agency's files and made available to the State and the Federal
Government.
An audit shall be conducted by the WSDOT Internal Audit Office in accordance with generally accepted governmental auditing
standards as issued by the United States General Accounting Office by the Comptroller General of the United States; WSDOT Manual
M 27-50, Consultant Authorization, Selection, and Agreement Administration; memoranda of understanding between WSDOT and
FHWA; and 2 CFR Part 200.501 -Audit Requirements.
If upon audit it is found that overpayment or participation of federal money in ineligible items of cost has occurred, the Agency shall
reimburse the State for the amount of such overpayment or excess participation (see Section IX).
VIII. Single Audit Act
The Agency, as a subrecipient of federal funds, shall adhere to the federal regulations outlined in 2 CFR Part 200.501 as well as all
applicable federal and state statutes and regulations. A subrecipient who expends $750,000 or more in federal awards from all sources
during a given fiscal year shall have a single or program -specific audit performed for that year in accordance with the provisions of 2
CFR Part 200.501. Upon conclusion of the audit, the Agency shall be responsible for ensuring that a copy of the report is transmitted
promptly to the State.
DOT Form 140-039 Page 3
Revised 05/2015
7
IX. Payment of Billing
The Agency agrees that if payment or arrangement for payment of any of the State's billing relative to the project (e.g., State force
work, project cancellation, overpayment, cost ineligible for federal participation, etc.) is not made to the State within 45 days after
the Agency has been billed, the State shall effect reimbursement of the total sum due from the regular monthly fuel tax allotments to
the Agency from the Motor Vehicle Fund. No additional Federal project funding will be approved until full payment is received unless
otherwise directed by the Director, Local Programs.
Project Agreement End Date - This date is based on your projects Period of Performance (2 CFR Part 200.309).
Any costs incurred after the Project Agreement End Date are NOT eligible for federal reimbursement. All eligible costs incurred prior
to the Project Agreement End Date must be submitted for reimbursement within 90 days after the Project Agreement End Date or they
become ineligible for federal reimbursement.
X. Traffic Control, Signing, Marking, and Roadway Maintenance
The Agency will not permit any changes to be made in the provisions for parking regulations and traffic control on this project
without prior approval of the State and Federal Highway Administration. The Agency will not install or permit to be installed any signs,
signals, or markings not in conformance with the standards approved by the Federal Highway Administration and MUTCD. The Agency
will, at its own expense, maintain the improvement covered by this agreement.
XI. Indemnity
The Agency shall hold the Federal Government and the State harmless from and shall process and defend at its own expense
all claims, demands, or suits, whether at law or equity brought against the Agency, State, or Federal Government, arising from the
Agency's execution, performance, or failure to perform any of the provisions of this agreement, or of any other agreement or contract
connected with this agreement, or arising by reason of the participation of the State or Federal Government in the project, PROVIDED,
nothing herein shall require the Agency to reimburse the State or the Federal Government for damages arising out of bodily injury to
persons or damage to property caused by or resulting from the sole negligence of the Federal Government or the State.
XII. Nondiscrimination Provision
No liability shall attach to the State or Federal Government except as expressly provided herein.
The Agency shall not discriminate on the basis of race, color, national origin, or sex in the award and performance of any USDOT-
assisted contract and/or agreement or in the administration of its DBE program or the requirements of 49 CFR Part 26. The Agency
shall take all necessary and reasonable steps under 49 CFR Part 26 to ensure nondiscrimination in the award and administration of
USDOT-assisted contracts and agreements. The WSDOT's DBE program, as required by 49 CFR Part 26 and as approved by USDOT,
is incorporated by reference in this agreement. Implementation of this program is a legal obligation and failure to carry out its terms
shall be treated as a violation of this agreement. Upon notification to the Agency of its failure to carry out its approved program, the
Department may impose sanctions as provided for under Part 26 and may, in appropriate cases, refer the matter for enforcement under
18 U.S.G. 1001 and/or the Program Fraud Civil Remedies Act of 1986 (31 U.S. C. 3801 et seq.).
The Agency hereby agrees that it will incorporate or cause to be incorporated into any contract for construction work, or modification
thereof, as defined in the rules and regulations of the Secretary of Labor in 41 CFR Chapter 60, which is paid for in whole or in part with
funds obtained from the Federal Government or borrowed on the credit of the Federal Government pursuant to a grant, contract, loan,
insurance, or guarantee or understanding pursuant to any federal program involving such grant, contract, loan, insurance, or guarantee,
the required contract provisions for Federal -Aid Contracts (FHWA 1273), located in Chapter 44 of the Local Agency Guidelines.
The Agency further agrees that it will be bound by the above equal opportunity clause with respect to its own employment
practices when it participates in federally assisted construction work: Provided, that if the applicant so participating is a State or Local
Government, the above equal opportunity clause is not applicable to any agency, instrumentality, or subdivision of such government
which does not participate in work on or under the contract.
The Agency also agrees:
(1) To assist and cooperate actively with the State in obtaining the compliance of contractors and subcontractors with the equal
opportunity clause and rules, regulations, and relevant orders of the Secretary of Labor.
(2) To furnish the State such information as it may require for the supervision of such compliance and that it will otherwise assist the
State in the discharge of its primary responsibility for securing compliance.
(3) To refrain from entering into any contract or contract modification subject to Executive Order 11246 of September 24, 1965, with
a contractor debarred from, or who has not demonstrated eligibility for, government contracts and federally assisted construction
contracts pursuant to the Executive Order.
(4) To carry out such sanctions and penalties for violation of the equal opportunity clause as may be imposed upon contractors
and subcontractors by the State, Federal Highway Administration, or the Secretary of Labor pursuant to Part 11, subpart D of the
Executive Order.
In addition, the Agency agrees that if it fails or refuses to comply with these undertakings, the State may take any or all of the
following actions:
(a) Cancel, terminate, or suspend this agreement in whole or in part;
(b) Refrain from extending any further assistance to the Agency under the program with respect to which the failure or refusal
occurred until satisfactory assurance of future compliance has been received from the Agency; and
(c) Refer the case to the Department of Justice for appropriate legal proceedings.
DOT Form 140-039 Page 4
Revised 05/2015
8
XIII. Liquidated Damages
The Agency hereby agrees that the liquidated damages provisions of 23 CFR Part 635, Subpart 127, as supplemented, relative to
the amount of Federal participation in the project cost, shall be applicable in the event the contractor fails to complete the contract within
the contract time. Failure to include liquidated damages provision will not relieve the Agency from reduction of federal participation in
accordance with this paragraph.
XIV. Termination for Public Convenience
The Secretary of the Washington State Department of Transportation may terminate the contract in whole, or from time to time in
part, whenever:
(1) The requisite federal funding becomes unavailable through failure of appropriation or otherwise.
(2) The contractor is prevented from proceeding with the work as a direct result of an Executive Order of the President with
respect to the prosecution of war or in the interest of national defense, or an Executive Order of the President or Governor of
the State with respect to the preservation of energy resources.
(3) The contractor is prevented from proceeding with the work by reason of a preliminary, special, or permanent restraining
order of a court of competent jurisdiction where the issuance of such order is primarily caused by the acts or omissions of
persons or agencies other than the contractor.
(4) The Secretary is notified by the Federal Highway Administration that the project is inactive.
(5) The Secretary determines that such termination is in the best interests of the State.
XV. Venue for Claims and/or Causes of Action
For the convenience of the parties to this contract, it is agreed that any claims and/or causes of action which the Local Agency
has against the State of Washington, growing out of this contract or the project with which it is concerned, shall be brought only in the
Superior Court for Thurston County.
XVI. Certification Regarding the Restrictions of the Use of Federal Funds for Lobbying
The approving authority certifies, to the best of his or her knowledge and belief, that:
(1) No federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or
attempting to influence an officer or employee of any federal agency, a member of Congress, an officer or employee of Congress, or
an employee of a member of Congress in connection with the awarding of any federal contract, the making of any federal grant, the
making of any federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment,
or modification of any federal contract, grant, loan, or cooperative agreement.
(2) If any funds other than federal appropriated funds have been paid or will be paid to any person for influencing or attempting to
influence an officer or employee of any federal agency, a member of Congress, an officer or employee of Congress, or an employee
of a member of Congress in connection with this federal contract, grant, loan, or cooperative agreement, the undersigned shall
complete and submit the Standard Form - LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions.
(3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at
all tiers (including subgrants, and contracts and subcontracts under grants, subgrants, loans, and cooperative agreements) which
exceed $100,000, and that all such subrecipients shall certify and disclose accordingly.
This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into.
Submission of this certification as a prerequisite for making or entering into this transaction imposed by Section 1352, Title 31, U.S.
Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
XVII. Assurances
Local agencies receiving Federal funding from the USDOT or its operating administrations (i.e., Federal Highway Administration,
Federal Transit Administration, Federal Aviation Administration) are required to submit a written policy statement, signed by the Agency
Executive and addressed to the State, documenting that all programs, activities, and services will be conducted in compliance with
Section 504 and the Americans with Disabilities Act (ADA).
Additional Provisions
DOT Form 140-039 Page 5
Revised 05/2015
9
Description of Proposed Work
Improvements will be completed on SR 181 from the west end of the planned Green River non -
motorized Bridge to Longacres Way, including a 12-14 ft. separated shared use path with a 5 ft.
landscaped buffer strip on the west side of the highway. Design -only will be completed for future
improvements on Longacres Way between SR 181 to the Tukwila Sound Transit Link Station.
Engineer's Estimate for Proposed Work
Within the attachment entitled "Tukwila Mobility Connections" are descriptions of the proposed
work and engineering estimates of probably cost. The work is part of a larger effort to improve
mobility connections and this document includes discussion on improvements to Baker Boulevard.
That segment has been funded outside of the CMAQ grant and is complete. The Engineer's
Estimate 2 on page 17 is the basis for the cost estimate. PE costs were estimated using 15% of the
construction estimate. Page 21, Estimate 2 is the basis for the PE costs, also using 15% of the
construction cost ($749,062.50).
Phase
West Valley Highway
Longacres Way
PE (rounded)
$72,300
$112,500
CN (rounded)
$482,000
n/a
Total
$554,300
$112,500
10
ANL
j7JWashington State
Department of Transportation
Local Agency Federal Aid
Project Prospectus
DOT Form 140-101
Revised 04/2015
Previous Editions Obsolete
Page 1
11
Prefix
Route
( )
Date
July 2, 2018
Federal Aid
Project Number
TUK-60
SR181
DUNS Number
Local Agency
Project Number
99310410
1 WSDOT 1
` Use Only J
Federal Employer
Tax ID Number
91-6001519
Agency
City of Tukwila
CAAgency
✓
Yes ❑ No
Federal
✓
Program Title
20.205 ❑ Other
Project Title
West Valley Highway/Longacres Way Shared Us
Start Latitude N 47.45973
End Latitude N 47.46102
Start Longitude W -122.24471
End Longitude W -122.2431$
Project Termini From -To
W end of Grn Rvr Brg Longacres Way
Nearest City Name
Tukwila
Project Zip Code (+4)
98188-8548
Begin Mile Post
End Mile Post
Length of Project
0.17 mile
Award
✓
Type
Local ❑ Local Forces ❑ State C Railroad
Route ID
SR 181
Begin Mile Point
End Mile Point
City Number
1320
County Number
17
County Name
King
WSDOT Region
Northwest Region
Legislative District(s)
11
Congressional District(s)
9
Urban Area Number
1
Phase
Total
Estimated Cost
(Nearest Hundred Dollar)
Local Agency
Funding
(Nearest Hundred Dollar)
Federal Funds
(Nearest Hundred Dollar)
Phase Start
Date
Month Year
P.E.
216,000
29,160
186,840
7/2018
R/W
Const.
509,899
68,836
441,063
7/2019
Total
725,899
97,996
627,903
Description of Existing Facility (Existing Design and Present Condition)
Roadway Width
88.5 ft
Number of Lanes
6/7
44 feet wide on Longacres Way with 2 travel lanes and on -street parking
Description of Proposed Work
Description of Proposed Work (Attach additional sheet(s) if necessary)
See Attached.
Local Agency Contact Person
Cyndy Knighton
Title
Senior Program Manager
Phone
206-431-2450
Mailing Address
6300 Southcenter Blvd, Ste 100
City
Tukwila
State
WA
Zip Code
98188
Project Prospectus
By
Approving Authority
Title Mayor
Date
DOT Form 140-101
Revised 04/2015
Previous Editions Obsolete
Page 1
11
Agency
City of Tukwila
Project Title
West Valley Highway/Longacres Way Share
Date
July 2, 2018
Type of Proposed Work
Project Type (Check all that Apply)
❑ New Construction ❑ Path / Trail
❑ Reconstruction 111Pedestrian / Facilities
❑ Railroad ❑ Parking
❑ Bridge
II
❑
❑
3-R
2-R
Other
Roadway Width
88.5
Number of Lanes
6/7
Geometric Design Data
Description
Through Route
Crossroad
F@d@ral❑Minor
Functional
Classification
I/1 Principal Arterial
Arterial
1✓1 Urban
❑ Rural E Collector
❑ NHS ❑Major Collector
❑ Minor Collector
0 Local Access
✓
0
❑
Urban
Rural
NHS
❑
n
❑
❑
✓
Principal Arterial
Minor Arterial
Collector
Major Collector
Minor Collector
Local Access
Terrain
✓
Flat ❑ Roll ❑ Mountain
1
Flat ❑ Roll ❑ Mountain
Posted Speed
40
25
Design Speed
40
25
Existing ADT
28,800
n/a
Design Year ADT
29,400
n/a
Design Year
2019
n/a
Design Hourly Volume (DHV)
2,200
n/a
Performance of Work
Preliminary Engineering Will Be Performed By
Consultant
Others
100 0�0
Agency
%
Construction Will Be Performed By
Contractor
Contract
100 %
Agency
%
Environmental Classification
0 Class I - Environmental Impact Statement (EIS) l✓l
0 Project Involves NEPA/SEPA Section 404
Interagency Agreement
0 Class III - Environmental Assessment (EA)
n Project Involves NEPA/SEPA Section 404
Interagency Agreements
Class
1
II - Categorically Excluded (CE)
Projects Requiring Documentation
(Documented CE)
Environmental Considerations
Work to be done on SR 181 is within the shoreline buffer for the Green River. No other major environmental
consideration is expected as the work is within an already highly disturbed area and excavation is not
expected to go beyond the depth of previously disturbed soil.
DOT Form 140-101
Revised 04/2015
Previous Editions Obsolete
Page 2
12
Agency
City of Tukwila
Project Title
West Valley Highway/Longacres Way Share
Date
July 2, 2018
Right of Way
❑ Right of Way Needed
n No Relocation
[1 Relocation Required
✓ No Right of Way Needed
*All construction required by the
contract can be accomplished
within the exiting right of way.
Utilities
Railroad
WI No utility work required
❑ All utility work will be completed prior
of the construction contract
to the start
✓ No railroad
work required
work will be completed prior to the start of
contract
work will be completed in coordination
contract
IN All railroad
the construction
❑ All the railroad
with the construction
• All utility work will be completed in coordination
with the construction contract
Description of Utility Relocation or Adjustments and Existing Major Structures Involved in the Project
FAA Involvement
Is any airport located within 3.2 kilometers (2 miles) of the proposed project? ❑ Yes I✓) No
Remarks
This project has been reviewed by the legislative body of the administration agency or agencies, or it's
designee, and is not inconsistent with the agency's comprehensive plan for community development.
Agency City of Tukwila
By
Mayor/Chairperson
Date
DOT Form 140-101
Revised 04/2015
Previous Editions Obsolete
Page 3
13
Description of Proposed Work
Improvements will be completed on SR 181 from the west end of the planned Green River non -
motorized Bridge to Longacres Way, including a 12-14 ft. separated shared use path with a 5 ft.
landscaped buffer strip on the west side of the highway. Design -only will be completed for future
improvements on Longacres Way between SR 181 to the Tukwila Sound Transit Link Station.
Engineer's Estimate for Proposed Work
Within the attachment entitled "Tukwila Mobility Connections" are descriptions of the proposed
work and engineering estimates of probably cost. The work is part of a larger effort to improve
mobility connections and this document includes discussion on improvements to Baker Boulevard.
That segment has been funded outside of the CMAQ grant and is complete. The Engineer's
Estimate 2 on page 17 is the basis for the cost estimate. PE costs were estimated using 15% of the
construction estimate. Page 21, Estimate 2 is the basis for the PE costs, also using 15% of the
construction cost ($749,062.50).
Phase
West Valley Highway
Longacres Way
PE (rounded)
$72,300
$112,500
CN (rounded)
$482,000
n/a
Total
$554,300
$112,500
14
CITY OF TUKWILA CAPITAL PROJECT SUMMARY
2019 to 2024
PROJECT: West Valley Hwy (1-405 - Strander Blvd) Project No. 99310410
Design and construct completion of 7 lane sections of West Valley Hwy with curbs, gutters, storm drainage,
DESCRIPTION: lighting and traffic control, including a ped -activated signal near new Ped Bridge. Shared use path on west side
of WVH from Ped Bridge to Longacres to be constructed. Design of non -motorized facilities on Longacres from
WVH to end of ROW included.
JUSTIFICATION: Safety andcapacityitems needcompletion. Portions have been comp?ted by development.
Combined with W Valley Hwv/S 156th IntersPptiorl„. 2r � � . �' .� i f o work with development.Grant funding
STATUS: in hand for design and cc
yet.
MAINT. IMPACT: Reduced maintenance.
COMMENT:
struction on Longacres Way identified
Project is on Traffic Impact Fee List. Grants from Federal CMAQ awarded for $628k that includes $112k for
design of sidewalk/bike path on Longacres Way (S 158th St) and State Transportation Improvement
Board grant of $2.4m for 2018/2019.
FINANCIAL Through Estimated
in $000's)
2017 2018 2019
2020 2021 2022 2023 2024 BEYOND TOTAL
EXPENSES
Design
16
60
472
548
Land(R/W)
100
100
Const. Mgmt.
430
430
Construction
2,765
2,765
TOTAL EXPENSES
16
60
572
3,195
0
0
0
0
0
3,843
FUND SOURCES
Awarded TIB Grant
58
350
2,026
2,434
Awarded CMAQ Grant
187
441
628
Mitigation
0
Traffic Impact Fees
37
213
250
City Oper. Revenue
16
2
(2)
515
0
0
0
0
0
531
TOTAL SOURCES
16
60
572
3,195
0
0
0
0
0
3,843
Project Location
2019 - 2024 Capital Improvement Program
21
15
16
City of Tukwila
Public Works Department - Henry Hash, Director
INFORMATIONAL MEMORANDUM
TO: Transportation and Infrastructure Committee
FROM: Harry Hash, Public Works Director,,.
BY; Cyndy Knighton, Senior Program Manager
CC: Mayor Ekberg
DATE: June 22, 2018
SUBJECT: Ordinance - AT&T/New Cingular Wireless Small CeII Technology Franchise Agreement
Allan Ekberg, Mayor
ISSUE
Approval of AT&T/New Cingular Wireless Franchise Ordinance,
BACKGROUND
New Cingular Wireless, PCS, LLC, headquartered in Delaware, is a telecommunications company that provides, among other things,
personal wireless service. New Cingular Wireless is currently in the stages of deploying small cell technology to expand the capacity of
its wireless network. Staff has negotiated with New Cingular to develop the attached draft Franchise Ordinance.
ANALYSIS
This Ordinance is consistent with the Verizon Franchise Ordinance approved by Council in February 2018 as well as the draft Mobilitie
Franchise Ordinance being concurrently considered. The attached Franchise Ordinance establishes permission for New Cingular's
deployment of small cellular technology in the City's right-of-way. Some of the features of the New Cingular Franchise include:
• Definitions for clarity of references
• Provisions that the City provides no warranty in the right-of-way and will not defend New Cingular for peaceable
possession or use of the franchise area
• Provides provisions allowing the City to require notice to the public for work that will disturb or disrupt public property.
Clarifies that the City can protect the public health, safety, and welfare by requiring facilities to be installed at a particular
time, place, or manner
• Establishes a duty to restore the right-of-way to a condition as good or better than before the construction and provides
a warranty of same. Protects private property by requiring New Cingular to restore any private property damaged,
disturbed, or altered by New Cingular
• Provides that any contractors or subcontractors of New Cingular that perform work in the right-of-way must comply with
the City's indemnity and insurance requirements and mandates that New Cingular take responsibility for all work
performed by New Cingular's contractors and subcontractors
• Specifies the City's stop work authority should work be performed in an unsafe manner
• Provides for revocation of the franchise should New Cingular's business end up in receivership
• Clarifies that the franchise does not preclude the City from constructing its own utility facilities, repairing, maintaining, or
widening the right-of-way.
FINANCIAL IMPACT
Under the terms of the Franchise, New Cingular will pay a $5,000 administrative fee within 30 days of franchise approval.
Per RCW 35.21.860, cities may charge site-specific charges to providers of personal wireless services under certain circumstances
before the City issues a use permit. This Franchise tracks that statutory language and provides that New Cingular and the City will
determine applicable site-specific charges at the use permit stage for eligible facilities.
RECOMMENDATION
Council is being asked to approve the Ordinance that will grant a Franchise Agreement to New Cingular Wireless, PCS, LLC for Small
Cell Technology and consider this item at the July 9, 2018 Committee of the Whole and subsequent July 16, 2018 Regular Meeting.
Attachment: Draft Franchise Ordinance
W:1PW Eng1PROJECTS1Franchise\Telecom\AT&T_CingularlINFO MEMO AT&T-Cingular Franchise AG Small Cells 062218.docx
17
DRAFT
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TUKWILA, WASHINGTON, GRANTING A NON-EXCLUSIVE
FRANCHISE TO NEW CINGULAR WIRELESS PCS, LLC, A
DELAWARE LIMITED LIABILITY COMPANY, FOR THE
PURPOSE OF CONSTRUCTING, OPERATING, AND
MAINTAINING A TELECOMMUNICATIONS SYSTEM IN
CERTAIN PUBLIC RIGHTS-OF-WAY IN THE CITY; PROVIDING
FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE
DATE.
WHEREAS, New Cingular Wireless PCS, LLC, a Delaware limited liability company,
hereinafter referred to as "Franchisee" is a telecommunications company that, among
other things, provides personal wireless service, including data transmission, and other
telecommunications services to customers in the Puget Sound region; and
WHEREAS, Franchisee's desired route through the City of Tukwila, hereinafter referred
to as "City," requires the use of certain portions of City rights-of-way for the installation,
operation, and maintenance of a telecommunications system; and
WHEREAS, the City Council has determined that the use of portions of the City's rights-
of-way for installation of a telecommunications system is appropriate from the standpoint of
the benefits to be derived by local business and the region as a result of such services; and
WHEREAS, the City Council also recognizes that the use of public rights-of-way must
be restricted to allow for the construction of amenities necessary to serve the future needs
of the citizens of Tukwila and that the coordination, planning, and management of the City's
rights-of-way is necessary to ensure that the burden of costs for the operations of non -
municipal interests are not borne by the citizenry; and
WHEREAS, the Revised Code of Washington (RCW) authorizes the City to grant and
regulate non-exclusive franchises for the use of public streets, rights-of-way, and other
public property for installation, operation, and maintenance of a telecommunications system
and transmission of communications;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY ORDAINS AS FOLLOWS:
18
Section 1. Definitions
A. For the purposes of this Franchise and the Exhibits attached hereto, the following
terms, words, phrases, and their derivations where capitalized shall have the meanings
given herein. Terms not defined herein shall have the meaning given in Title 11 of the
Tukwila Municipal Code. Terms not defined herein or in Title 11 of the Tukwila Municipal
Code, shall have the meaning given pursuant to such federal statutes, rules, or regulations
that apply to and regulate the services provided by the Franchisee. Words not otherwise
defined shall be given their common and ordinary meaning.
B. When not inconsistent with the context, words used in the present tense include
the future, words in the plural include the singular, and words in the singular include the
plural. The word "shall" is always mandatory. References to governmental entities (whether
persons or entities) refer to those entities or their successors in authority. If specific
provisions of law, regulation, or rule referred to herein are renumbered, then the reference
shall be read to refer to the renumbered provision.
C. "Affiliate" when used in connection with Franchisee means any Person who owns
or controls, is owned or controlled by, or is under common ownership or control with
Franchisee.
D. "Construct" shall mean to construct, reconstruct, install, reinstall, align, realign,
locate, relocate, adjust, affix, attach, replace, repair, upgrade, monitor, maintain, use,
relocate, remove, or support.
E. "Costs" shall mean the actual, and documented costs incurred.
F. "Default" shall mean any failure of a Party to keep, observe, or perform any of its
duties or obligations under this Franchise.
G. "Design Document(s)" shall mean the plans and specifications for the
construction of the Facilities meeting at least the minimum applicable general plan submittal
requirements for engineering services plan review as set forth in the City's Infrastructure
Design and Construction Standards manual, illustrating and describing the refinement of
the design of the Telecommunications System Facilities to be Constructed, establishing the
scope, relationship, forms, size, and appearance of the Facilities by means of plans,
sections, and elevations, typical construction details, location, alignment, materials, and
equipment layouts. The Design Documents shall include specifications that identify utilities,
major material and systems, Public Right -of -Way improvements, restoration and repair, and
establish in general their quality levels.
H. "Dispute" shall mean a question or controversy that arises between the Parties
concerning the observance, performance, interpretation, or implementation of any of the
terms, provisions, or conditions contained in this Franchise or the rights or obligations of
either Party under this Franchise.
I. "Emergency" shall mean and refer to a sudden condition or set of circumstances
that: (a) significantly disrupts or interrupts the operation of Facilities in the Public Rights -of -
Way and Franchisee's ability to continue to provide services if immediate action is not taken,
19
or (b) presents an immediate threat of harm to persons or property if immediate action is not
taken.
J. "Facility or Facilities" means any part or all of the facilities, equipment, and
appurtenances of Franchisee whether underground or overhead and located within the
Public Rights -of -Way as part of the Franchisee's Telecommunications System, including but
not limited to, conduit, case, pipe, line, fiber, cabling, equipment, equipment cabinets and
shelters, vaults, generators, backup power supplies, power transfer switches, cut-off
switches, electric meters, conductors, poles, carriers, drains, vents, guy wires,
encasements, sleeves, valves, wires, supports, foundations, anchors, transmitters,
receivers, antennas, and signage.
K. "Franchise" shall mean the grant, once accepted, giving general permission to
Franchisee to enter into and upon the Public Rights -of -Way to use and occupy the same for
the purposes authorized herein, all pursuant and subject to the terms and conditions as set
forth herein.
L. "Law(s)" shall mean all present and future applicable laws, ordinances, rules,
regulations, resolutions, environmental standards, orders, decrees and requirements of all
federal, state, and local governments, the departments, bureaus, or commissions thereof,
or other governmental authorities, including the City acting in its governmental capacity.
References to Laws shall be interpreted broadly to cover government actions, however
nominated.
M. "Party(ies)" shall mean either the City or the Franchisee or both.
N. "Permit" means a permit issued under the regulatory authority of the City that
provides specific requirements and conditions for Work to Construct Facilities within the
Public Rights -of -Way and includes, but is not limited to: a construction permit, building
permit, street excavation permit, barricade permit, and clearing and grading permit.
0. "Person" means and includes any individual, corporation, partnership,
association, joint -stock -company, limited liability company, political subdivision, public
corporation, taxing district, trust, or any other legal entity, but not the City or any Person
under contract with the City to perform work in the Public Rights -of -Way.
P. "Public Right(s)-of-Way" shall mean the surface of, and the space above and
below, any public street, highway, freeway, bridge, land path, alley, court, boulevard,
sidewalk, way, lane, public way, drive, circle, or other areas designated for the public right-
of-way, including, areas that have been accepted by the City for use as the public right-of-
way and any easement now or hereafter held by the City within the corporate boundaries of
the City as now or hereafter constituted for the purpose of public travel, and over which the
City has authority to grant permits, licenses, or franchises for use thereof, or has regulatory
authority to thereover, excluding: railroad rights-of-way, airports, harbor areas, buildings,
parks, poles, conduits, and excluding such similar facilities or property owned, maintained,
or leased by the City in its proprietary capacity or as an operator of a utility.
20
Q. "Public Works Director" shall mean the Public Works Director for the City or their
designee, or such officer or person who has been assigned the duties of public works
director or their designee.
R. "Service" shall mean the service or services authorized to be provided by the
Franchisee under the terms and conditions of this Franchise.
S. "Telecommunications System" shall mean all necessary Facilities to establish a
small cell network located in, under, and above City owned Public Rights -of -Way for the
provision of personal wireless services, including: commercial mobile services, unlicensed
wireless services, and common carrier wireless exchange access services.
Telecommunications System shall not mean or include Facilities owned or used by
Franchisee for the provision of cable television services, video programming, or services
other than personal wireless services, including ownership, operation, and/or managing of
a dark fiber network.
T. "Work" shall mean any and all activities of the Franchisee, or its officers, directors,
employees, agents, contractors, subcontractors, volunteers, invitees, or licensees, within
the Public Rights -of -Way to Construct the Facilities.
Section 2. Non-exclusive Franchise Granted.
A. The City hereby grants to Franchisee, subject to the conditions prescribed in this
ordinance ("Franchise Agreement"), the franchise rights and authority to Construct and
operate its Facilities necessary for a Telecommunications System within the City -owned
Public Rights -of -Way, generally described as those Public Rights -of -Way within the
present and future boundaries of the City and hereinafter referred to as the "Franchise
Area".
B. The foregoing franchise rights and authority ("Franchise") shall not be deemed
to be exclusive to Franchisee and shall in no way prohibit or limit the City's ability to grant
other franchises, permits, or rights along, over, or under the areas to which this Franchise
has been granted to Franchisee; provided, that such other franchises do not
unreasonably interfere with Franchisee's exercise of franchise rights granted herein as
determined by the City. This Franchise shall in no way interfere with existing utilities or
in any way limit, prohibit, or prevent the City from using the Franchise Area or affect the
City's jurisdiction over such area in any way.
C. This Franchise Agreement merely authorizes Franchisee to occupy and use the
Franchise Area. Nothing contained herein shall be construed to grant or convey any right,
title, or interest in the Franchise Area to Franchisee.
D. CITY DOES NOT WARRANT ITS TITLE OR PROPERTY INTEREST IN OR TO
ANY FRANCHISE AREA NOR UNDERTAKE TO DEFEND FRANCHISEE IN THE
PEACEABLE POSSESSION OR USE OF THE FRANCHISE AREA. NO COVENANT
OF QUIET ENJOYMENT IS MADE.
Section 3. Authority. The Director of Public Works or designee is hereby granted
the authority to administer and enforce the terms and provisions of this Franchise
Agreement and may develop such lawful and reasonable rules, policies, and procedures
21
as the Public Works Director deems necessary to carry out the provisions contained
herein.
Section 4. Franchise Term. The franchise rights granted herein shall remain in full
force and effect for a period of ten (10) years from the effective date of this ordinance.
However, this Franchise Agreement shall not take effect and Franchisee shall have no
rights under this Franchise Agreement unless a written acceptance with the City is
received pursuant to Section 5 of this Agreement. If Franchisee desires to renew this
Franchise Agreement, it shall file a renewal application with the City between 180 days
and 120 days prior to the expiration of the existing term. In the event of such filing, the
City may, at the City's sole discretion, extend the term of this Franchise Agreement for up
to one year beyond the expiration date to allow processing of renewal. If the City elects
to extend the term of this Franchise, written notice of the extension shall be provided to
Franchisee prior to the Franchise expiration date.
Section 5. Acceptance of Terms and Conditions. The full acceptance of this
Franchise Agreement and all the terms and conditions shall be filed with the City Clerk
within 30 days of the effective date of this ordinance in the form attached hereto as Exhibit
A. Failure on the part of Franchisee to file said consent within 30 days of the effective
date of this ordinance shall void and nullify any and all rights granted under this Franchise
Agreement.
Section 6. Construction Provisions and Standards. The following provisions
shall be considered mandatory and failure to abide by any conditions described herein
shall be deemed as non-compliance with the terms of this Franchise Agreement and may
result in some or all of the penalties specified in Section 7.
A. Permit Required. No construction, maintenance, or repairs (except for
emergency repairs) shall be undertaken in the Franchise Area without first obtaining
appropriate permits from the City of Tukwila. In case of an emergency, Franchisee shall,
within 24 hours of the emergency, obtain a permit from the City of Tukwila's Public Works
Department.
B. Coordination. All capital construction projects performed by Franchisee within
the Franchise Area shall be inspected by a City inspector. All work and inspection shall
be coordinated with the Engineering Division of the Public Works Department to ensure
consistency with City infrastructure, future Capital Improvement Projects, all developer
improvements, and pertinent codes and ordinances in effect on the date the permits and
authorizations are issued for the affected Facilities.
C. Notice to the Public. Except in the case of an Emergency, the City retains the
right to require the Franchisee to notify the public prior to commencing any significant
planned Construction that Franchisee reasonably anticipates will materially disturb or
disrupt public property or have the potential to present a danger or affect the safety of the
public generally.
D. Use of Public Rights -of -Way. Within parameters related to the City's role in
protecting the public health, safety, and welfare and except as may be otherwise
preempted by Law, the City may require that Facilities be installed at a particular time, at
22
a specific place, or in a particular manner as a condition of access to the proposed
Franchise Area and may deny access if Franchisee is not willing to comply with such
requirements; and, may require removal of any Facility that is not installed in compliance
with the Standards provided in this Franchise or which is installed without prior City
approval of the time, place, or manner of installation.
E. Construction Standards. Any construction, installation, maintenance and
restoration activities performed by or for Franchisee within the Franchise Area shall be
constructed and located so as to produce the least amount of interference with the free
passage of pedestrian and vehicular traffic and the rights and reasonable convenience of
property owners, businesses, and residents along the Public Rights -of -Way. All
construction, installation, maintenance, and restoration activities shall be conducted such
that they conform to City's development guidelines and standards in effect on the date
the permits and authorizations are issued for the affected Facilities and comply with Title
11 of the Tukwila Municipal Code. Franchisee's Facilities shall be designed, located,
aligned, and constructed so as not to disturb or impair the use or operation of any street
improvements, utilities, and related facilities of City or City's existing lessees, licensees,
permitees, franchisees, easement beneficiaries, or lien holders, without prior written
consent of City or the parties whose improvements are interfered with and whose consent
is required pursuant to agreements with the City existing prior to the Effective Date.
F. Duty to Restore.
1. Franchisee shall, after completion of construction of any party of its
Telecommunications System, leave the Public Rights -of -Way and other property
disturbed nearby, in as good or better condition in all respects as it was in before the
commencement of such Construction. Franchisee agrees to promptly complete
restoration work to the reasonable satisfaction of the City and in conformance with City
standards.
2. If Franchisee's Work causes unplanned, unapproved, or unanticipated
disturbance or alteration or damage to Public Rights -of -Way or other public property, it
shall promptly remove any obstructions therefrom and restore such Public Rights -of -Way
and public property to the satisfaction of the City and in accordance with City Standards.
3. If weather or other conditions do not allow the complete restoration required,
Franchisee shall temporarily restore the affected Public Right -of -Way or public property.
Franchisee shall promptly undertake and complete the required permanent restoration
when the weather or other conditions no longer prevent such permanent restoration.
G. Notice. If Franchisee's Work causes unplanned, unapproved, or unanticipated
disturbance or damage to Public Rights -of -Way or other public or private property, the
Franchisee shall promptly notify the property owner within twenty-four (24) hours.
H. Warranty. Franchisee shall warrant any restoration work performed by
Franchisee in the Public Rights -of -Way or on other public property for two (2) years,
unless a longer period is required by applicable City Standards. If restoration is not
satisfactorily and timely performed by the Franchisee, the City may, after prior notice to
the Franchisee, or without notice where the disturbance or damage may create an
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imminent risk to public health or safety, cause the repairs to be made and recover the
actual, and documented cost of those repairs from the Franchisee. Within thirty (30) days
of receipt of an itemized list of those costs, including the costs of labor, materials and
equipment, the Franchisee shall pay the City.
I. Restoration of Private Property. When Franchisee does any Work in the
Public Rights of Way that affects, disturbs, alters, or damages any adjacent private
property, it shall, at its own expense, be responsible for restoring such private property to
the reasonable satisfaction of the private property owner.
J. Stop Work. On notice from the City that any Work does not comply with the
Franchise, the approved Design Documents for the Work, the Standards, or other
applicable Law, or is being performed in an unsafe or dangerous manner as determined
by the City, the non-compliant Work may immediately be stopped by the City. The stop
work order shall be in writing, given to the Person doing the Work and be posted on the
Work site, indicate the nature of the alleged violation or unsafe condition and establish
conditions under which Work may be resumed. If so ordered, Franchisee shall cease
and shall cause its contractors and subcontractors to cease such activity until the City is
satisfied that Franchisee is in compliance. If an unsafe condition is found to exist, the
City, in addition to taking any other action permitted under applicable Law, may order
Franchisee to make the necessary repairs and alterations specified therein forthwith to
correct the unsafe condition by a time the City establishes in its discretion. The City has
the right to inspect, repair, and correct the unsafe condition if Franchisee fails to do so,
and to reasonably charge Franchisee for the actual and documented costs incurred to
perform such inspection, repair, or correction. Payment by Franchisee will be made within
thirty (30) days following receipt of written notice including itemized invoice and
supporting documentation evidencing such cost. The authority and remedy set forth
herein this section is in addition to, and not a substitute for, any authority the City may
otherwise have to take enforcement action for violation of City Codes or Standards.
K. Alteration. Except as may be shown in the Design Documents approved by the
City or the records drawings, or as may be necessary to respond to an Emergency,
Franchisee and Franchisee's contractors and subcontractors may not make any material
alterations to the Franchise Area without the City's prior written consent, which consent
shall not be unreasonably withheld. The parties acknowledge that nothing in this
Agreement limits the City's rights under applicable federal, state, and local laws to
regulate the placement and appearance of Franchisee's Facilities in the Franchise Area.
Material alteration shall include, but not be limited to: a change in the dimension, height,
location, or placement of the Facilities. If Franchisee desires to change either the location
of any Facilities or otherwise materially deviates from the approved design of any of the
Facilities, Franchisee shall submit such change to the City in writing for its approval.
Franchisee shall have no right to commence any such alteration until after Franchisee
has received the City's approval of such change in writing. Under no circumstance shall
Franchisee permanently affix anything in the Franchise Area that inconveniences the
public use of the right of way or adversely affects the public health, safety, or welfare.
L. Underground Installation Required. All telecommunications cables and
junction boxes or other vaulted system components shall be installed underground
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consistent with the requirements of Tukwila Municipal Code § 11.32.090(B), unless
otherwise exempted from this requirement, in writing, by the Public Works Director,
provided however, this requirement shall not apply to the Facilities that are required to
remain above ground in order to be functional.
M. Relocation.
1. The City shall have the right to require Franchisee to alter, adjust, relocate,
re -attach, secure, or protect in place its Facilities within the public right-of-way when
reasonably necessary for construction, alteration, repair, or improvement of any portion
of the public rights-of-way for purposes of public welfare, health, or safety ("Public
Improvements"). Such Public Improvements include, but are not limited to: public rights-
of-way construction; public rights-of-way repair (including resurfacing or widening);
change of public rights-of-way grade; construction, installation, or repair of sewers, drains,
water pipes, power lines, signal lines, communication lines, or any other type of
government-owned communications, utility or public transportation systems, public work,
public facility, or improvement of any government-owned utility; public rights-of-way
vacation, and the construction of any public improvement or structure by any
governmental agency acting in a governmental capacity. In the event the City requires
Franchisee to relocate its Facilities, the City shall provide Franchisee with written notice
requesting such relocation, along with plans for the public improvement that are
sufficiently complete to allow for the initial evaluation, coordination, and the development
of a relocation plan. The City and Franchisee shall meet at a time and location determined
by the City to discuss the project requirements including critical timelines, schedules,
construction standards, utility conflicts, as -built requirements, and other pertinent
relocation plan details. The City shall notify Franchisee as soon as practicable of the
need for relocation and shall specify the date by which relocation shall be completed.
Except in case of emergency such notice shall be no less than ninety (90) days.
2. To ensure timely execution of relocation requirements, Franchisee shall,
upon written request from the City, provide at Franchisee's expense, base maps, current
as -built information, detailed relocation plan (including detailed schedule of relocation
activities, identification of critical path, identification of Facilities, and relocation
procedures), and other design, technical, or operational requirements within the
timeframe specified by the City.
3. Franchisee may, after receipt of written notice requesting a relocation of its
Facilities, submit to the City written alternatives to such relocation within the time specified
by the City. Such alternatives shall include the use and operation of temporary Facilities
in adjacent rights-of-way. The City shall evaluate such alternatives and advise
Franchisee in writing if one or more of the alternatives are suitable to accommodate the
work, which would otherwise necessitate relocation of the Facilities. If requested by the
City, Franchisee shall submit additional information to assist the City in making such
evaluation. The City shall give each alternative proposed by Franchisee full and fair
consideration. In the event the City, in its sole discretion, decides not to accept the
alternatives suggested by Franchisee, Franchisee shall relocate its Facilities as directed
by the City.
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4. Upon final approval of the relocation plan by the City, Franchisee shall, at its
own expense, unless otherwise prohibited by statute, and at the time frame specified by
the City, temporarily or permanently remove, relocate, place underground, change or alter
the position of any Facilities or structures within the right-of-way whenever the City has
determined that such removal, relocation, undergrounding, change, or alteration is
reasonably necessary for the construction, repair, maintenance, installation, public safety,
or operation of any public improvement in or upon the rights-of-way. In the event
relocation is required by reason of construction by a third party, non-governmental entity,
for the sole benefit of the third party, non-governmental entity then Franchisee's relocation
costs shall be borne by the third party.
5. If during the construction, repair, or maintenance of the City's public
improvement project an unexpected conflict occurs from Franchisee's Facilities,
Franchisee shall, upon notification from the City, respond within 24 hours to resolve the
conflict.
6. Franchisee acknowledges and understands that any delay by Franchisee in
performing the work to alter, adjust, relocate, or protect in place its Facilities within the
public rights-of-way may delay, hinder, or interfere with the work performed by the City
and its contractors and subcontractors in furtherance of construction, alteration, repair, or
improvement of the public rights-of-way, and result in damage to the City, including but
not limited to delay claims. Franchisee shall cooperate with the City and its contractors
and subcontractors to coordinate such relocation work to accommodate the public
improvement project and project schedules to avoid delay, hindrance of, or interference
with such project.
7. Should Franchisee fail, within thirty (30) days of receipt of written notice from
the City, to alter, adjust, protect in place, or relocate any Facilities ordered by the City to
be altered, adjusted, protected in place, or relocated, within the time prescribed by the
City, given the nature and extent of the work, or if it is not done to the City's reasonable
satisfaction, the City may, to the extent the City may lawfully do so, cause such work to
be done and bill the reasonable cost of the work to Franchisee, including all reasonable
costs and expenses incurred by the City due to Franchisee's delay. In such event, the
City shall not be liable for any damage to any portion of Franchisee's system. In addition
to any other indemnity set forth in this Franchise Agreement, Franchisee will indemnify,
hold harmless, and pay the costs of defending the City from and against any and all
claims, suits, actions, damages, or liabilities for delays on public improvement
construction projects caused by or arising out of the failure of Franchisee to adjust,
modify, protect in place, or relocate its Facilities in a timely manner; provided that,
Franchisee shall not be responsible for damages due to delays caused by the City.
N. Removal or Abandonment. Upon the removal from service of any service
antennas or other associated structures, Facilities and/or amenities, Franchisee shall
comply with all applicable standards and requirements prescribed by the City of Tukwila's
Public Works Department for the removal or abandonment of said structures and
Facilities. No facility constructed or owned by Franchisee shall be abandoned without the
express written consent of the City.
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O. Bond. Before undertaking any of the work, installation, improvements,
construction, repair, relocation, or maintenance authorized by this Franchise Agreement,
Franchisee shall, upon the request of the City, furnish one bond executed by Franchisee
for all of Facilities in the City's rights-of-way, in the amount of Twenty Five Thousand
Dollars and no/100 [$25,000.00]. At Franchisee's sole option, Franchisee may provide
alternate security in the form of an assignment of funds or a letter of credit, in the same
amount as the bond. All forms of security shall be in the form reasonably acceptable to
the City. The bond shall be conditioned so that Franchisee shall observe all the
covenants, terms, and conditions and shall faithfully perform all of the obligations of this
Franchise Agreement, and to repair or replace any defective Franchisee work or materials
discovered in the City's roads, streets, or property.
P. "One -Call" Location and Liability. Franchisee shall subscribe to and maintain
membership in the regional "One -Call" utility location service and shall promptly locate all
of its lines upon request. The City shall not be liable for any damages to Franchisee's
system components or for interruptions in service to Franchisee customers which are a
direct result of work performed for any City project for which Franchisee has failed to
properly locate its lines and Facilities within the prescribed time limits and guidelines
established by One -Call. The City shall also not be liable for any damages to the
Franchisee system components or for interruptions in service to Franchisee customers
resulting from work performed under a permit issued by the City.
Q. As -Built Plans Required. Franchisee shall maintain accurate engineering plans
and details of all installations within the City limits and shall provide, at no cost to the City,
such information in both paper form and electronic form using the most current AutoCAD
version prior to close-out of any permits issued by the City and any work undertaken by
Franchisee pursuant to this Franchise Agreement. The City shall reasonably determine
the acceptability of any as -built submittals provided under this section.
R. Recovery of Costs. Franchisee shall be subject to all permit fees associated
with activities undertaken through the authority granted in this Franchise Agreement or
under ordinances of the City in effect on the date the permits and authorizations are
issued for the affected Facilities. Where the City incurs costs and expenses for review or
inspection of activities undertaken through the authority granted in this Franchise
Agreement or any ordinances relating to the subject for which permit fees have not been
established, Franchisee shall pay such costs and expenses directly to the City.
S. Taxes. Nothing contained in this Franchise Agreement shall exempt
Franchisee's obligation to pay any applicable utility tax, business tax, or ad valorem
property tax, now or hereafter levied against real or personal property within the City, or
against any local improvement assessment imposed on Franchisee. Any fees, charges,
and/or fines provided for in the City Municipal Code or any other City ordinance, are
separate from, and additional to, any and all federal, state, local, and City taxes as may
be levied, imposed, or due from Franchisee.
T. Vacation. If, at any time, the City shall vacate any City road, right-of-way, or
other City property which is subject to rights granted by this Franchise Agreement and
said vacation shall be for the purpose of acquiring the fee or other property interest in
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said road, right-of-way, or other City property for the use of the City, in either its proprietary
or governmental capacity, then the City may, at its option and by giving 60- days written
notice to Franchisee, terminate this Franchise Agreement with reference to such City
road, right-of-way, or other City property so vacated, and the City shall not be liable for
any damages or loss to Franchisee by reason of such termination other than those
provided for in RCW 35.99.
Section 7. Franchise Compliance.
A. Franchise Violations. The failure by either the City or Franchisee (the
"Defaulting Party") to fully comply with any of the provisions of this Franchise Agreement
may result in a written notice from the other party (the "Non -Defaulting Party") that
describes the violations of the Franchise Agreement and requests remedial action within
60 days of receipt of such notice. If the Defaulting Party has not attained full compliance
at the end of the 60 -day period following receipt of the violation notification, the Non -
Defaulting Party may, declare an immediate termination of this Franchise Agreement,
provided that full compliance was reasonably possible within that 60 -day period.
B. Emergency Actions.
1. If any of Franchisee's actions under this Franchise Agreement, or any failure
by Franchisee to act to correct a situation caused by Franchisee, is reasonably deemed
by the City to create a threat to life or property, financial harm, or cause a delay of the
construction, repair or maintenance of the public improvement, the City may order
Franchisee to immediately correct said threat, financial harm, or delay or, at the City's
discretion, the City may undertake measures to correct said threat, financial harm or delay
itself; provided that, when possible, the City shall notify Franchisee and give Franchisee
an opportunity to correct within a specified time said threat, financial harm, or delay before
undertaking such corrective measures. Franchisee shall be liable for all reasonable
costs, expenses, and damages attributed to the correction of such an emergency situation
as undertaken by the City to the extent that such situation was caused by Franchisee and
shall further be liable for all reasonable costs, expenses, and damages resulting to the
City from such situation and any reimbursement of such costs to the City shall be made
within 30 days of written notice of the completion of such action or determination of
damages by the City. The failure by Franchisee to take appropriate action to correct a
situation caused by Franchisee and identified by the City as a threat to public or private
safety or property, financial harm, or delay of the construction, repair, or maintenance of
the public improvement shall be considered a violation of the terms of this Franchise
Agreement.
2. If, during construction or maintenance of Franchisee's Facilities, any
damage occurs to an underground facility and the damage results in the release of natural
gas or other hazardous substance or potentially endangers life, health, or property,
Franchisee or its contractor shall immediately call 911 or other local emergency response
number.
C. Other Remedies. Nothing contained in this Franchise Agreement shall limit the
City's available remedies in the event of Franchisee's failure to comply with the provisions
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of this Franchise Agreement, to include but not limited to, the City's right to a lawsuit for
specific performance and/or damages.
D. Removal of System. In the event this Franchise Agreement is terminated as a
result of violations of the terms of this Franchise Agreement, Franchisee shall, at its sole
expense, remove all system components and Facilities within 60 days of such termination,
provided that the City, at its sole option, may allow Franchisee to abandon its Facilities in
place.
E. Receivership. At the option of the City, subject to applicable law and lawful
orders of courts of competent jurisdiction, this Franchise may be revoked after the
appointment of a receiver or trustee to take over and conduct the business of Franchisee
whether in a receivership, reorganization, bankruptcy, or other action or proceeding,
unless:
1. The receivership or trusteeship is timely vacated; or
2. The receiver or trustee has timely and fully complied with all the terms and
provisions of this Franchise, and has remedied all defaults under the Franchise.
Additionally, the receiver or trustee shall have executed an agreement duly approved by
the court having jurisdiction, by which the receiver or trustee assumes and agrees to be
bound by each and every term, provision, and limitation of this Franchise.
Section 8. Insurance.
A. Franchisee shall maintain liability insurance during the full term of this Franchise
Agreement for personal injury and property damages which may arise from or in
connection with operations or activities performed by or on the Franchisee's behalf with
the issuance of this Franchise. The Franchisee's maintenance of insurance as required
by the Franchise Agreement shall not be construed to limit the liability of the Franchisee
to the coverage provided by such insurance, or otherwise limit the City's recourse to any
remedy available at law or in equity.
B. Such required insurance shall include as additional insured, the City, its officers,
officials, and employees as their interest may appear under this Franchise Agreement,
excluding worker's compensation and employer's liability; shall apply as primary
insurance; shall stipulate that no insurance affected by the City will be called on to
contribute to a loss covered thereunder. Commercial General Liability insurance shall be
at least as broad as Insurance Services Office (ISO) occurrence form CG 00 01 and shall
cover liability arising from premises, operations, independent contractors, products -
completed operations, stop gap liability, personal injury and advertising injury, and liability
assumed under an insured contract. The Franchisee's Commercial General Liability
insurance shall provide limits of $ 5,000,000 each occurrence; $ 10,000,000 aggregate.
There shall be no exclusion for liability arising from explosion, collapse or underground
property damage. The Public Entity shall be included as an additional insured under the
Permittee's Commercial General Liability insurance policy using ISO Additional Insured -
State or Political Subdivisions -Permits CG 20 12 or a substitute endorsement providing
at least as broad coverage. Automobile Liability insurance covering all owned, non -
owned, hired and leased vehicles. Automobile Liability insurance shall have a combined
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single limit for bodily injury and property damage or $ 3,000,000 per accident. Coverage
shall be at least as broad as Insurance Services Office (ISO) form CA 00 01. Further,
franchisee shall maintain Pollution Liability insurance (or Franchisee shall self-insure the
same) covering losses caused by pollution conditions that arise in connection with this
Franchise. Franchisee's Pollution Liability insurance shall be written in an amount of
$1,000,000 per loss, with an annual aggregate of $1,000,000. Pollution Liability
insurance shall cover bodily injury, property damage, cleanup costs, and defense,
including costs and expenses incurred in the investigation, defense, or settlement of
claims. Insurance is to be placed with insurers with a current A.M. Best rating of not less
than A minus: VII. Notwithstanding the foregoing, Licensee may, in its sole discretion,
self insure any of the required insurance under the same terms as required by this
Agreement as long as Franchisee or its affiliated parent maintains a net worth of at least
Two Hundred Million Dollars and no/100 ($200,000,000) as evidenced in its annual
certified financials. In the event Franchisee elects to self-insure its obligation under this
Agreement to include the City as an additional insured, the following conditions apply: (i)
the City shall promptly and no later than thirty (30) days after notice thereof provide
Franchisee with written notice of any claim, demand, lawsuit, or the like for which it seeks
coverage pursuant to this Section and provide Franchisee with copies of any demands,
notices, summonses, or legal papers received in connection with such claim, demand,
lawsuit, or the like; (ii) the City shall not settle any such claim, demand, lawsuit, or the like
without the prior written consent of Franchisee; and (iii) the City shall fully cooperate with
Franchisee in the defense of the claim, demand, lawsuit, or the like.
C. Franchisee's contractors and subcontractors performing Work in the Public
Rights-of-Way shall comply with such bond, indemnity, and insurance requirements as
may be required by City code or regulations, or other applicable Law. Any contractors or
subcontractors performing Work within the Public Rights-of-Way on behalf of the
Franchisee shall be deemed servants and agents of the Franchisee for the purposes of
this Franchise and are subject to the same restrictions, limitations, and conditions as if
the Work were performed by Franchisee. Franchisee shall be responsible for all Work
performed by its contractors and subcontractors and others performing Work on its behalf
as if the Work were performed by it, and shall ensure that all such Work is performed in
compliance with this Franchise and other applicable laws, and shall be jointly and
severally liable for all damages and correcting all damage caused by them. It is
Franchisee's responsibility to ensure that contractors, subcontractors, or other Persons
performing Work on Franchisee's behalf are familiar with the requirements of this
Franchise and other applicable Laws governing the Work performed by them.
Notwithstanding the foregoing, neither Franchisee nor any of its contractors,
subcontractors, or other Persons performing work on Franchisee's behalf shall be
required to apply any new laws to existing Facilities unless required by law.
D. The Franchisee shall provide the City with written notice of any required policy
cancellation at least thirty (30) days prior to the effective date of such cancellation if such
coverage is not replaced. Failure on the part of the Franchisee to maintain the insurance
as required shall constitute a material breach of the Franchise, upon which the City may,
after giving five business days' notice to the Franchisee to correct the breach, immediately
terminate the Franchise or, at its discretion, procure or renew such insurance and pay
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any and all premiums in connection therewith, with any reasonable sums so expended to
be repaid to the City on demand.
Section 9. Other Permits and Approvals. Nothing in this Agreement shall relieve
Franchisee from any obligation to obtain approvals or necessary permits from applicable
federal, state and City authorities for all activities in the Franchise Area.
Section 10. Transfer of Ownership.
A. The rights, privileges, benefits, title, or interest provided by this Franchise shall
not be sold, transferred, assigned or otherwise encumbered, without the prior written
consent of the City, with such consent not being unreasonably withheld or delayed. No
such consent shall be required, however, for a transfer in trust, by other hypothecation,
or by assignment or any rights, title or interest in Franchisee's telecommunications system
in order to secure indebtedness. Approval shall not be required for mortgaging purposes
provided that the collateral pledged for any mortgage shall not include the assets of this
franchise. Approval shall not be required for any transfer from Franchisee to another
person or entity controlling, controlled by, or under common control with Franchisee.
Franchisee may license fibers to other users without the consent of the City provided that
Franchisee remains solely responsible for the terms and conditions outlined in this
Franchise Agreement.
B. In any transfer of this Franchise which requires the approval of the City,
Franchisee shall show that the recipient of such transfer has the technical ability, financial
capability, and any other legal or general qualifications as reasonably determined by the
City to be necessary to ensure that the obligations and terms required under this
Franchise Agreement can be met to the full satisfaction of the City. This Franchise may
not be transferred without filing or establishing with the City the insurance certificates,
security fund, and performance bond as required pursuant to this Franchise. The
qualifications of any transferee shall be determined by hearing before the City Council
and the approval to such transfer shall be granted by resolution of the City Council. Any
reasonable administrative costs associated with a transfer of this Franchise that requires
the approval of the City shall be reimbursed to the City within 30 days of such transfer.
The transferee(s) shall thereafter be responsible for all obligations of Franchisee with
respect to the Franchise; provided, that the transfer shall not in any respect relieve the
Franchisee, or any of its successors in interest, of responsibility for acts or omissions,
known or unknown, or the consequences thereof, if the acts or omissions occur before
the time of the transfer.
Section 11. Administrative Fees.
A. Pursuant to the Revised Code of Washington (RCW), the City is precluded from
imposing franchise fees for "telephone businesses" as defined in RCW 82.16.010, or
"service provider" as defined in RCW 35.99.010, except that fees may be collected for
administrative expenses related to such franchise or site specific charges pursuant to
RCW 35.21.860(1)(e). Franchisee does hereby warrant that its operations, as authorized
under this Franchise Agreement, are those of a telephone business as defined in RCW
82.16.010 or a service provider as defined in 35.99.010.
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B. Franchisee shall be subject to a one-time $5,000 administrative fee for
reimbursement of costs associated with the preparation, processing and approval of this
Franchise Agreement. These costs shall include, but not be limited to, wages, benefits,
overhead expenses, equipment and supplies associated with such tasks as plan review,
site visits, meetings, negotiations and other functions critical to proper management and
oversight of City's right-of-way. Administrative fees exclude normal permit fees as
stipulated in Title 11 of the Tukwila Municipal Code. Payment of the one-time
administrative fee is due 30 days after notice of franchise approval.
C. The City reserves the right to exercise authority it has or may acquire in the future
to charge a franchise fee as authorized by law and Franchisee shall in good faith
endeavor to negotiate a reasonable Franchise fee or other fee if future law permits the
City to charge a Franchise fee. However, the parties shall negotiate a site-specific charge
acceptable to the parties for facilities for personal wireless services that meet one of the
criteria in RCW 35.21.860(1)(e)(i)-(iii). Pursuant to RCW 35.21.860(1)(e), the City is not
required to approve a use permit for the placement of a facility for personal wireless
services that meets one of the criteria set forth in RCW 35.21.860(1)(e)(i)-(iii) absent such
an agreement.
D. In the event Franchisee submits a request for work beyond the scope of this
Franchise Agreement, or submits a complex project that requires significant
comprehensive plan review or inspection, Franchisee shall reimburse the City for
franchise amendments and reasonable expenses associated with the project. Franchisee
shall pay such costs within 30 days of receipt of a bill from the City.
E. Failure by Franchisee to make full payment of bills within the time specified shall
be considered sufficient grounds for the termination of all rights and privileges existing
under this ordinance, utilizing the procedures specified in Section 7 of this ordinance.
Section 12. Notices. Any notice to be served upon the City or Franchisee shall be
delivered to the following addresses respectively:
City of Tukwila
Office of the City Clerk
6200 Southcenter Boulevard
Tukwila WA 98188
Email: christy.oflaherty(a�tukwilawa.gov
Phone: 206-433-1855
With a copy to:
Public Works Director
6300 Southcenter Boulevard Ste. 100
Tukwila, WA 98188
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FRANCHISEE
New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Re: Cell Site #: Tukwila Small Cells (WA)
575 Morosgo Drive NE
Atlanta, GA 30324
With a copy to:
New Cingular Wireless PCS, LLC
Attn: AT&T Legal Dept — Network Operations
Re: Cell Site #: Tukwila Small Cells (WA)
208 S. Akard Street
Dallas, TX 75202-4206
Section 13. Indemnification.
A. Franchisee shall use reasonable and appropriate precautions to avoid damage
to persons or property in the construction, installation, repair, operation, and maintenance
of its structures and Facilities within the Franchise Area. Franchisee shall release,
indemnify, defend, and hold the City, its agents, employees, officers, officials, and
volunteers harmless from all claims, actions, losses, or damages, including reasonable
attorneys' and expert witness fees, which may accrue to or be suffered by any person or
persons, corporation, or property to the extent caused in part or in whole by any act or
omission of Franchisee, its officers, agents, servants, or employees, carried on in the
furtherance of the rights, benefits, and privileges granted to Franchisee by this Franchise.
In the event any claim or demand is presented to or filed with the City that gives rise to
Franchisee's obligation pursuant to this section, the City shall within a reasonable time
notify Franchisee thereof and Franchisee shall have a right, at its election, to settle or
compromise such claim or demand. In the event any claim or action is commenced in
which the City is named a party, and which suit or action is based on a claim or demand
which gives rise to Franchisee's obligation pursuant to this section, the City shall promptly
notify Franchisee thereof, and Franchisee shall, at its sole cost and expense, defend such
suit or action by attorneys of its own election. In defense of such suit or action, Franchisee
may, at its election and at its sole cost and expense, settle or compromise such suit or
action. This section shall not be construed to require Franchisee to:
1. protect and save the City harmless from any claims, actions or damages;
2. settle or compromise any claim, demand, suit or action;
3. appear in or defend any suit or action; or,
4. pay any judgment or reimburse the City's costs and expenses (including
reasonable attorney's fees), to the extent such claim arises out of the negligence or
intentional acts of the City, its employees, agents or independent contractors.
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B. To the extent of any concurrent negligence between Franchisee and the City,
Franchisee's obligations under this paragraph shall only extend to its share of negligence
or fault. The City shall have the right at all times to participate through its own attorney in
any suit or action which arises out of any right, privilege, and authority granted by or
exercised pursuant to this Franchise Agreement when the City determines that such
participation is required to protect the interests of the City or the public. Such participation
by the City shall be at the City's sole cost and expense.
C. With respect to the performance of this Franchise and as to claims against the
City, its officers, agents and employees, Franchisee expressly waives its immunity under
Title 51 of the Revised Code Washington, the Industrial Insurance Act for injuries to its
officers, agents, and employees and agrees that the obligation to indemnify, defend, and
hold harmless provided for in this paragraph extends to any claim brought by or on behalf
of Franchisee's officers, agents, or employees directly against the City, its officers,
agents, officials, employees, and volunteers. This waiver is mutually negotiated by the
parties and the provisions of this section shall survive the expiration or termination of this
Franchise Agreement.
Section 14. Severability. If any section, sentence, clause, or phrase of this
ordinance is held to be invalid or unconstitutional by a court of competent jurisdiction, the
City may elect to treat the portion declared invalid or unconstitutional as severable and
enforce the remaining provisions of this ordinance; provided that, if the City elects to
enforce the remaining provisions of the ordinance, Franchisee shall have the option to
terminate the Franchise Agreement.
Section 15. Reservation of Rights.
A. The parties agree that this Franchise Agreement is intended to satisfy the
requirements of all applicable laws, administrative guidelines, rules, orders and
ordinances in effect on the date the permits and authorizations are issued for the affected
Facilities. Accordingly, any provision of this Franchise Agreement or any local ordinance
that may conflict with or violate the law shall be invalid and unenforceable, whether
occurring before or after the execution of this agreement, it being the intention of the
parties to preserve their respective rights and remedies under the law, and that the
execution of this Franchise Agreement does not constitute a waiver of any rights or
obligations by either party under the law.
B. Nothing in this Franchise shall prevent the City from constructing sanitary or
storm sewers; grading, changing grade, paving, repairing, widening, or otherwise altering
any Public Rights -of -Way; laying down, repairing or removing water mains; or installing
conduit or fiber optic cable.
Section 16. Police Powers. Nothing contained herein shall be deemed to affect the
City's authority to exercise its police powers. Franchisee shall not by this Franchise
Agreement obtain any vested rights to use any portion of the City Rights -of -Way except
for the locations approved by the City and then only subject to the terms and conditions
of this Franchise Agreement. This Franchise Agreement and the permits issued
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thereunder shall be governed by applicable City ordinances in effect at the time of
application for such permits.
Nothing in this Franchise shall be deemed to impose any duty or obligation upon the
City to determine the adequacy or sufficiency of Franchisee's Facilities. City's approvals
and inspections as provided herein, are for the sole purpose of protecting the City's rights
as the owner and/or manager of the Public Rights -of -Way and shall not constitute any
representation or warranty, express or implied, as to the adequacy of the design or
Construction of the Facilities or Telecommunications System, suitability of the Franchise
Area for Construction, or any obligation on the part of the City to ensure that Work or
materials are in compliance with any requirements imposed by a governmental entity.
The City is under no obligation or duty to supervise the design, Construction, or operation
of the Telecommunications System.
Section 17. Future Rules, Regulations, and Specifications. Franchisee
acknowledges that the City may develop rules, regulations, and specifications, including
a general ordinance or other regulations governing telecommunications operations in the
City. Such regulations, upon written notice to Franchisee, shall thereafter govern
Franchisee's activities hereunder. However, in no event shall regulations:
A. Materially interfere with or adversely affect Franchisee's rights pursuant to and
in accordance with this Franchise Agreement; or
B. Be applied in a discriminatory manner as it pertains to Franchisee and other
similar user of such facilities.
Section 18. Repealer. Intentionally Deleted.
Section 19. Entire Agreement. This Franchise contains all covenants and
agreements between the City and the Franchisee relating in any manner to the Franchise,
use, and occupancy of the Public Rights -of -Way and other matters set forth in this
Franchise. No prior agreements or understanding pertaining to the same, written or oral,
shall be valid or of any force or effect and the covenants and agreement of this Franchisee
shall not be altered, modified, or added to except in writing signed by the City and
Franchisee and approved by the City in the same manner as the original Franchise was
approved.
Section 20. Calculation of Time. Except where a period of time refers to "business
days," all periods of time referred to herein shall include Saturdays, Sundays, and legal
holidays in the State of Washington, except that if the last day of any period falls on any
Saturday, Sunday, or legal holiday in the State of Washington, the period shall be
extended to include the next day which is not a Saturday, Sunday, or legal holiday in the
State of Washington; provided that, the Effective Date shall be determined as provided in
this Franchise.
Section 21. Time Limits Strictly Construed. Whenever this Franchise sets forth
a time for any act to be performed by Franchisee, such time shall be deemed to be of the
essence, and any failure of Franchisee to perform within the allotted time may be
considered a Default of this Franchise.
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Section 22. Joint Venture. It is not intended by this Franchise to, and nothing
contained in this Franchise shall, create any partnership, joint venture, or principal -agent
relationship or other arrangement between Franchisee and City. Neither Party is
authorized to, nor shall either Party act toward third Persons or the public in any manner
that would indicate any such relationship. The Parties intend that the rights, obligations,
and covenants in this Franchise and any collateral instruments shall be exclusively
enforceable by the City and Franchisee, their successors, and assigns. No Person not a
Party hereto, and no such Person shall have any right or cause of action hereunder,
except as may be otherwise provided herein. Further, the Franchisee is not granted any
express or implied right or authority to assume or create any obligation or responsibility
on behalf of or in the name of the City. However, nothing in this Section prevents an
assignment as provided for in this Franchise.
Section 23. Binding Effect Upon Successors and Assigns. All of the provisions
contained in this Franchise shall be binding upon the heirs, successors, executors,
administrators, receivers, trustees, legal representatives, transferees, and assigns of the
Franchisee; and all privileges as well as any obligations and liabilities of the Franchisee
shall inure to its heirs, successors, and assigns equally as if they were specifically
mentioned wherever Franchisee is named herein.
Section 24. Waiver. No failure by either Party to insist upon the performance of any
of the terms of this Franchise or to exercise any right or remedy consequent upon a
Default thereof, shall constitute a waiver of any such Default or of any of the terms of this
Franchise. None of the terms of this Franchise to be kept, observed, or performed by
either Party, and no Default thereof, shall be waived, altered, or modified except by a
written instrument executed by the injured Party. No waiver of any Default shall affect or
alter this Franchise, but each of the terms of this Franchise shall continue in full force and
effect with respect to any other then existing or subsequent Default thereof. No waiver of
any Default of the defaulting Party shall be implied from any omission by the injured Party
to take any action on account of such default if such default persists or is repeated, and
no express waiver shall affect any default other than the default specified in the express
waiver and then only for the time and to the extent therein stated. One or more waivers
by the injured Party shall not be construed as a waiver of the subsequent Default of the
same covenant, term or conditions.
Section 25. Survival of Terms. Upon the expiration, termination, revocation, or
forfeiture of the Franchise, the Franchisee shall no longer have the right to occupy the
Franchise Area for the purpose of providing services authorized herein. However, the
Franchisee's obligations under this Franchise to the City shall survive the expiration,
termination, revocation, or forfeiture of these rights according to its terms for so long as
the Franchisee's Telecommunications System or any part thereof shall remain in whole
or in part in the Public Rights -of -Way, or until such time as the Franchisee transfers
ownership in all Facilities in the Franchise Area to the City or a third -Party, or until such
time as the Franchisee abandons said Facilities in place, all as provided herein. Said
obligations include, but are not limited to: Franchisee's obligations to indemnify, defend,
and protect the City, to provide insurance, to relocate its Facilities, and to reimburse the
City for its costs to perform Franchisee's work.
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Section 26. Force Majeure. In the event Franchisee is prevented or delayed in the
performance of any of its obligations herein due to circumstances beyond its control or by
reason of a force majeure occurrence, such as, but not limited to: acts of God, acts of
terrorism, war, riots, civil disturbances, natural disasters, floods, tornadoes, earthquakes,
severe weather conditions, employee strikes, and/or unforeseen labor conditions not
attributable to Franchisee or its employees, Franchisee shall not be deemed in Default of
provisions of this Franchise.
If Franchisee believes that circumstances beyond its control or by reason of a force
majeure occurrence have prevented or delayed its compliance with the provisions of this
Franchise, Franchisee shall provide documentation as required by the City to substantiate
the Franchisee's claim. Franchisee shall have a reasonable time, under the
circumstances, to perform the affected obligation under this Franchise or to procure a
substitute for such obligation with is satisfactory to the City; provided that the Franchisee
shall perform to the maximum extent it is able to perform and shall take reasonable steps
within its power to correct such cause(s) in as expeditious a manner as possible, provided
that the Franchisee takes prompt and diligent steps to bring itself back into compliance
and to comply as soon as possible under the circumstances with the Franchise without
unduly endangering the health, safety, and integrity of the Franchisee's employees or
property, or the health, safety, and integrity of the Franchisee's employees or property, or
the health, safety, and integrity of the public, Public Rights of Way, public property or
private property.
Section 27. Attorneys' Fees. In the event of a suit, action, arbitration, or other
proceeding of any nature whatsoever, whether in contract or in tort or both, is instituted
to enforce any word, article, section, subsection, paragraph, provision, condition, clause
or sentence of this Franchise or its application to any person or circumstance, the
prevailing Party shall be entitled to recover from the losing Party its reasonable attorneys,'
paralegals, accountants, and other expert fees and all other fees, costs, and expenses
actually incurred and reasonably necessary in connection therewith, as allowed by
Washington law and as determined by the judge or arbitrator at trial or arbitration, as the
case may be, or on any appeal or review, in addition to all other amounts provided by
Law. This provision shall cover costs and attorneys' fees related to or with respect to
proceedings in Federal Bankruptcy Courts, including those related to issues unique to
bankruptcy law. This provision shall not apply to the extent that the suit, action,
arbitration, or other proceeding is brought to interpret any term, condition, provision,
section, article, or clause of this Franchise.
Section 28. Venue. This Franchise shall be governed by, and construed in
accordance with the laws of the State of Washington. Any action brought relative to
enforcement of this Franchise, or seeking a declaration of rights, duties, or obligations
herein shall be initiated in the Superior Court of King County, and shall not be removed
to a federal court, except as to claims over which such Superior Court has no jurisdiction.
Removal to federal court shall be to the Federal Court of the Western District of
Washington.
Section 29. Corrections by City Clerk or Code Reviser. Upon approval of the
City Attorney, the City Clerk and the code reviser are authorized to make necessary
37
corrections to this ordinance, including the correction of clerical errors; references to other
local, state or federal laws, codes, rules, or regulations; or ordinance numbering and
section/subsection numbering.
Section 30. Effective Date. This ordinance or a summary thereof shall be published
in the official newspaper of the City, and shall take effect and be in full force five days
after passage and publication as provided by law.
PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at
a Regular Meeting thereof this day of , 2018.
ATTEST/AUTHENTICATED:
Christy O'Flaherty, MMC, City Clerk
APPROVED AS TO FORM BY:
Rachel B. Turpin, City Attorney
Allan Ekberg, Mayor
Filed with the City Clerk:
Passed by the City Council:
Published:
Effective Date:
Ordinance Number:
Attachments: — Exhibit A - Franchise Agreement Acceptance Form
38
EXHIBIT A
NEW CINGULAR WIRELESS PCS, LLC Acceptance Form
Date :
City of Tukwila
City Clerk's Office
6200 Southcenter Boulevard
Tukwila WA 98188
Re: Ordinance No.
Dear City Clerk:
, Adopted on
In accordance with and as required by Section 5 of City of Tukwila Ordinance No.
passed by the City Council and approved by the Mayor on (the
"Ordinance"), New Cingular Wireless, a Delaware limited liability company, hereby accepts the
terms, conditions and obligations to be complied with or performed by it under the Ordinance.
Sincerely,
NEW CINGULAR WIRELESS PCS, LLC
a Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
By:
Name:
Title:
Date:
cc: Tukwila Public Works Director, 6200 Southcenter Blvd, Tukwila, WA 98188
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40
014
City of Tukwila
Public Works Department - Henry Hash, Director
INFORMATIONAL MEMORANDUM
TO: Transportation and Infrastructure Committe
FROM: Harry Hash, Public Works Director ,
BY; Cyndy Knighton, Senior Program Manager
CC: Mayor Ekberg
DATE: June 22, 2018
SUBJECT: Ordinance - Mobilitie, LLC Small Cell Technology Franchise Agreement
Allan Ekberg, Mayor
ISSUE
Approval of Mobilitie, LLC Franchise Ordinance.
BACKGROUND
Mobilitie, headquartered in Nevada, is a telecommunications company that provides, among other things, high capacity interexchange
transport to telecommunications common carriers. Mobilitie is currently in the stages of deploying small cell technology to expand the
capacity of its wireless network. Staff has negotiated with Mobilitie to develop the attached draft Franchise Ordinance.
ANALYSIS
This Ordinance is consistent with the Verizon Franchise Ordinance approved by Council in February 2018 as well as the draft New
Cingular Wireless Franchise Ordinance being concurrently considered. The attached Franchise Ordinance establishes permission for
Mobilitie's deployment of small cellular technology in the City's right-of-way. Some of the features of the Mobilitie Franchise include:
• Definitions for clarity of references
• Provisions that the City provides no warranty in the right-of-way and will not defend Mobilitie for peaceable possession
or use of the franchise area
• Provides provisions allowing the City to require notice to the public for work that will disturb or disrupt public property.
Clarifies that the City can protect the public health, safety, and welfare by requiring facilities to be installed at a particular
time, place, or manner
• Establishes a duty to restore the right-of-way to a condition as good or better than before the construction and provides
a warranty of same. Protects private property by requiring Mobilitie to restore any private property damaged, disturbed,
or altered by Mobilitie
• Provides that any contractors or subcontractors of Mobilitie that perform work in the right-of-way must comply with the
City's indemnity and insurance requirements and mandates that Mobilitie take responsibility for all work performed by
their contractors and subcontractors
• Specifies the City's stop work authority should work be performed in an unsafe manner
• Provides for revocation of the franchise should Mobilitie's business end up in receivership
• Clarifies that the franchise does not preclude the City from constructing its own utility facilities, repairing, maintaining, or
widening the right-of-way.
FINANCIAL IMPACT
Under the terms of the Franchise, Mobilitie will pay a $5,000 administrative fee within 30 days of franchise approval.
Per RCW 35.21.860, cities may charge site-specific charges to providers of personal wireless services under certain circumstances
before the City issues a use permit. This Franchise tracks that statutory language and provides that Mobilitie and the City will determine
applicable site-specific charges at the use permit stage for eligible facilities.
RECOMMENDATION
Council is being asked to approve the Ordinance that will grant a Franchise Agreement to Mobilitie, LLC for Small Cell Technology and
consider this item at the July 9, 2018 Committee of the Whole and subsequent July 16, 2018 Regular Meeting.
Attachment: Draft Franchise Ordinance
W:\PW Eng\PROJECTS\Franchise\Telecom\MOBILITIE\INFO MEMO Mobilitie Franchise AG Small Cells 062218.docx
41
DRAFT
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TUKWILA, WASHINGTON, GRANTING A NON-EXCLUSIVE
FRANCHISE TO MOBILITIE, LLC, A NEVADA LIMITED
LIABILITY COMPANY, FOR THE PURPOSE OF
CONSTRUCTING, OPERATING, AND MAINTAINING SMALL
CELLS IN CERTAIN PUBLIC RIGHTS-OF-WAY IN THE CITY;
PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN
EFFECTIVE DATE.
WHEREAS, Mobilitie, LLC, a Nevada limited liability company, d/b/a Mobilitie,
hereinafter referred to as "Mobilitie" or "Franchisee" is a telecommunications company
that, among other things, provides high capacity interexchange transport to
telecommunications common carriers, including data transmission, linkage to long
distance carriers and other telecommunications services to customers in the Puget Sound
region; and
WHEREAS, Mobilitie's desired route through the City of Tukwila, hereinafter referred to
as "City," requires the use of certain portions of City rights-of-way for the installation,
operation, and maintenance of Small Cells; and
WHEREAS, the City Council has determined that the use of portions of the City's rights-
of-way for installation of Small Cells is appropriate from the standpoint of the benefits to be
derived by local business and the region as a result of such services; and
WHEREAS, the City Council also recognizes that the use of public rights-of-way must
be restricted to allow for the construction of amenities necessary to serve the future needs
of the citizens of Tukwila and that the coordination, planning, and management of the City's
rights-of-way is necessary to ensure that the burden of costs for the operations of non -
municipal interests are not borne by the citizenry; and
WHEREAS, the Revised Code of Washington (RCW) authorizes the City to grant and
regulate non-exclusive franchises for the use of public streets, rights-of-way, and other
public property for installation, operation, and maintenance of a fiber optic system and
transmission of communications;
137061302.3
42
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY ORDAINS AS FOLLOWS:
Section 1. Definitions
A. For the purposes of this Franchise and the Exhibits attached hereto, the
following terms, words, phrases, and their derivations where capitalized shall have the
meanings given herein. Terms not defined herein shall have the meaning given in Title 11
of the Tukwila Municipal Code. Terms not defined herein or in Title 11 of the Tukwila
Municipal Code, shall have the meaning given pursuant to such federal statutes, rules, or
regulations that apply to and regulate the services provided by the Franchisee. Words not
otherwise defined shall be given their common and ordinary meaning.
B. When not inconsistent with the context, words used in the present tense
include the future, words in the plural include the singular, and words in the singular include
the plural. The word "shall" is always mandatory. References to governmental entities
(whether persons or entities) refer to those entities or their successors in authority. If specific
provisions of law, regulation, or rule referred to herein are renumbered, then the reference
shall be read to refer to the renumbered provision.
C. "Affiliate" when used in connection with Franchisee means any Person who
owns or controls, is owned or controlled by, or is under common ownership or control with
Franchisee.
D. "Construct" shall mean to construct, reconstruct, install, reinstall, align,
realign, locate, relocate, adjust, affix, attach, replace, repair, monitor, maintain, use, relocate,
remove, and/or support.
E. "Costs" shall mean the actual, and documented costs incurred.
F. "Contractor" shall mean any contractor selected and engaged by Mobilitie to
Construct Facilities in the Public Right(s)-of-Way.
G. "Default" shall mean any failure of a Party to keep, observe, or perform any
of its duties or obligations under this Franchise beyond applicable notice and cure periods.
H. "Design Document(s)" shall mean the plans and specifications for the
Construction of the Facilities meeting at least the minimum applicable general plan submittal
requirements for engineering services plan review as set forth in the City's Infrastructure
Design and Construction Standards manual, illustrating and describing the refinement of
the design of the Facilities to be Constructed, establishing the scope, relationship, forms,
size, and appearance of the Facilities by means of plans, sections, and elevations, typical
construction details, location, alignment, materials, and equipment layouts. The Design
Documents shall include specifications that identify utilities, major material and systems,
Public Right -of -Way improvements, restoration and repair, and establish in general their
quality levels.
I. "Dispute" shall mean a question or controversy that arises between the Parties
concerning the observance, performance, interpretation, or implementation of any of the
137061302.3
43
terms, provisions, or conditions contained in this Franchise or the rights or obligations or
either Party under this Franchise.
J. "Emergency" shall mean and refer to a sudden condition or set of
circumstances that: (a) significantly disrupt or interrupt the operation of Facilities in the Public
Rights -of -Way and Franchisee's ability to continue to provide services if immediate action is
not taken, or (b) present an immediate threat of harm to persons or property if immediate
action is not taken.
K. "Facility" or "Facilities" means any part or all of the facilities, equipment,
and appurtenances of Franchisee whether underground or overhead and located within the
Public Rights -of -Way as part of the Franchisee's Network, including but not limited to, radios,
antennas, transmitters, wires, fiber optic cables, Small Cells, and other wireless
transmission devices (collectively, "Transmission Media") attached, mounted, or installed on
an existing utility pole located in the Public Rights -of -Way for the purpose of providing
wireless, Wi-Fi, voice, data, messaging, or similar type of wireless service now or in the
future offered to the public in general using spectrum radio frequencies, whether or not
licensed by the Federal Communication Commission ("FCC"). "Facility" or "Facilities" also
means the control boxes, meters, electric meter pedestals, cables, conduit, power sources,
poles and replacement poles and other equipment, structures, plant, and appurtenances
between the Transmission Media and the point where the Facility terminates and
interconnects with broadband backhaul transmission facilities.
L. "Franchise" shall mean the grant giving general permission to Franchisee to
enter into and upon the Public Rights -of -Way to use and occupy the same for the purposes
authorized herein, all pursuant and subject to the terms and conditions as set forth herein.
M. "Law(s)" shall mean all present and future applicable statutes, constitutions,
ordinances, rules, regulations, resolutions, environmental standards, judicial decisions,
administrative orders, orders, decrees and requirements of the City or other governmental
agency having jurisdiction over the Parties.
N. "Network" shall mean collectively the network of Facilities Constructed by or
for and managed by Mobilitie within the Public Rights -of -Way for the provision of the
Services.
0. "Party(ies)" shall mean either the City or the Franchisee or both.
P. "Person" means and includes any individual, corporation, partnership,
association, joint -stock -company, limited liability company, political subdivision, public
corporation, taxing district, trust, or any other legal entity, but not the City or any Person
under contract with the City to perform work in the Public Rights -of -Way.
Q. "Public Right(s)-of-Way" shall mean the surface of, and the space above and
below, any public street, highway, freeway, bridge, land path, alley, court, boulevard,
sidewalk, way, lane, public way, drive, circle, or other public right-of-way, including, any
easement now or hereafter held by the City within the corporate boundaries of the City as
now or hereafter constituted for the purpose of public travel, and over which the City has
authority to grant permits, licenses, or franchises for use thereof, or has regulatory authority
137061302.3
44
to thereover, excluding: railroad rights-of-way, airports, harbor areas, buildings, parks,
poles, conduits, and excluding such similar facilities or property owned, maintained, or
leased by the City in its proprietary capacity or as an operator of a utility.
R. "Public Works Director" shall mean the Public Works Director for the City or
their designee, or such officer or person who has been assigned the duties of public works
director or their designee.
S. "Permit" means a permit issued under the regulatory authority of the City that
provides specific requirements and conditions for Work to Construct Facilities within the
Public Rights -of -Way and includes, but is not limited to: a construction permit, building
permit, street excavation permit, barricade permit, and clearing and grading permit.
T. "Service" or "Services" shall mean has the same meaning as that term is
defined in the United States Code, 47 U.S.C. 153 (53), but shall also mean wireless, Wi-Fi,
voice, data, messaging, or similar type of wireless service now or in the future offered to the
public in general using spectrum radio frequencies, whether or not licensed by the FCC to
the extent not covered by the foregoing definition. "Service" shall also include the offering
of a capability for generating, acquiring, storing, transforming, processing, retrieving,
utilizing, or making available information and content via telecommunications, and
includes electronic publishing, as the same may evolve over time, including, without
limitation, wireless, Wi-Fi, voice, data, messaging, or similar type of wireless service now
or in the future offered to the public in general using spectrum radio frequencies, whether
or not licensed by the FCC.
U. "Small Cell" shall mean the Facilities at a particular location that comprises
part of the Network.
V. "Work" shall mean any and all activities of the Franchisee, or its officers,
directors, employees, agents, contractors, subcontractors, volunteers, invitees, or licensees,
within the Public Rights -of -Way to Construct the Facilities.
Section 2. Non-exclusive Franchise Granted.
A. The City hereby grants to Mobilitie, subject to the conditions prescribed in this
ordinance ("Franchise Agreement"), the franchise rights and authority to Construct and
operate its Facilities necessary for a telecommunications facility within the City -owned
Public Rights -of -Way, generally described as that area within the present and future
boundaries of the City and hereinafter referred to as the "Franchise Area".
B. The foregoing franchise rights and authority ("Franchise") shall not be deemed
to be exclusive to Mobilitie and shall in no way prohibit or limit the City's ability to grant
other franchises, permits, or rights along, over, or under the areas to which this Franchise
has been granted to Mobilitie; provided, that such other franchises do not unreasonably
interfere with Mobilitie's exercise of franchise rights granted herein as determined by the
City. This Franchise shall in no way interfere with existing utilities or in any way limit,
prohibit, or prevent the City from using the Franchise Area or affect the City's jurisdiction
over such area in any way.
137061302.3
45
C. This Franchise Agreement merely authorizes Mobilitie to occupy and use the
Franchise Area. Nothing contained herein shall be construed to grant or convey any right,
title, or interest in the Franchise Area to Mobilitie.
D. CITY DOES NOT WARRANT ITS TITLE OR PROPERTY INTEREST IN OR TO
ANY FRANCHISE AREA NOR UNDERTAKE TO DEFEND FRANCHISEE IN THE
PEACEABLE POSSESSION OR USE OF THE FRANCHISE AREA. NO COVENANT
OF QUIET ENJOYMENT IS MADE.
Section 3. Authority. The Director of Public Works or designee is hereby granted
the authority to administer and enforce the terms and provisions of this Franchise
Agreement and may develop such lawful and reasonable rules, policies, and procedures
as the Public Works Director deems necessary to carry out the provisions contained
herein.
Section 4. Franchise Term.
A. Term. The franchise rights granted herein shall remain in full force and effect for
a period of ten (10) years from the effective date of this ordinance (the "Term"). However,
this Franchise Agreement shall not take effect and Mobilitie shall have no rights under
this Franchise Agreement unless a written acceptance with the City is received pursuant
to Section 5 of this Agreement. If Franchisee desires to renew this Franchise Agreement,
it shall file a renewal application with the City between 180 days and 120 days prior to the
expiration of the existing term. In the event of such filing, the City may, at the City's sole
discretion, extend the term of this Franchise Agreement for up to one year beyond the
expiration date to allow processing of renewal. If the City elects to extend the term of this
Franchise, written notice of the extension shall be provided to Franchisee prior to the
Franchise expiration date.
B. Termination by Mobilitie. Mobilitie may terminate this Agreement, either in its
entirety or only as to Facilities installed at a particular location, for any reason or no reason
in Mobilitie's sole discretion by providing thirty (30) days' written notice to the City, in
which case Mobilitie shall remove the subject Facilities or, with the approval of the City,
abandon such Facilities in place.
Section 5. Acceptance of Terms and Conditions. An acceptance of this Franchise
Agreement and all the terms and conditions, in the form attached hereto as Exhibit A,
shall be filed with the City Clerk within 30 days of the effective date of this ordinance.
Failure on the part of Mobilitie to file said consent within 30 days of the effective date of
this ordinance shall void and nullify any and all rights granted under this Franchise
Agreement, and in such event this Agreement shall terminate without further obligation to
either party.
Section 6. Construction Provisions and Standards. The following provisions
shall be considered mandatory and failure to abide by any conditions described herein
shall be deemed as non-compliance with the terms of this Franchise Agreement and may
result in some or all of the penalties specified in Section 7.
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A. Permit Required. No Construction, maintenance, or repairs (except for
emergency repairs) shall be undertaken in the Franchise Area without first obtaining
appropriate permits from the City of Tukwila, except in the case of an Emergency. In
case of an Emergency, Mobilitie may proceed with Construction, maintenance, or repairs
necessary to address the Emergency without first obtaining appropriate permits, but shall,
within 24 hours of the Emergency, obtain a permit from the City of Tukwila's Public Works
Department. Such 24-hour period shall be extended to accommodate the duration of any
closure of the City of Tukwila's Public Works Department (for example, for a holiday or
weekend).
B. Coordination. All capital Construction projects performed by Mobilitie within
the Franchise Area shall be inspected by a City inspector. All work and inspection shall
be coordinated with the Engineering Division of the Public Works Department to ensure
consistency with City infrastructure, future Public Improvement projects, all developer
improvements, and pertinent codes and ordinances in effect on the date the permits and
authorizations are issued for the affected Facilities.
C. Notice to the Public. Except in the case of an Emergency, City retains the
right to require the Franchisee to notify the public prior to commencing any significant
planned Construction that Franchisee reasonably anticipates will materially disturb or
disrupt public property or have the potential to present a danger or affect the safety of the
public generally.
D. Use of Public Rights -of -Way. Within parameters related to the City's role
in protecting the public health, safety, and welfare and except as may be otherwise
preempted by Law, the City may require that Facilities be installed at a particular time, at
a specific place, or in a particular manner as a condition of access to the proposed
Franchise Area and may deny access except in compliance with such requirements; and,
may require removal of any Facility that is not installed in compliance with the Standards
provided in this Franchise or which is installed without prior City approval of the time,
place, or manner of installation.
E. Construction Standards. Any Construction, installation, maintenance and
restoration activities performed by or for Mobilitie within the Franchise Area shall be
Constructed and located so as to produce the least amount of interference with the free
passage of pedestrian and vehicular traffic and the rights and reasonable convenience of
property owners, businesses, and residents along the Public Rights -of -Way. All
Construction, installation, maintenance, and restoration activities shall be conducted such
that they conform to City's development guidelines and standards in effect on the date
the permits and authorizations are issued for the affected Facilities and comply with Title
11 of the Tukwila Municipal Code. Franchisee's Facilities shall be designed, located,
aligned, and Constructed so as not to disturb or impair the use or operation of any street
improvements, utilities, and related facilities of City or City's existing lessees, licensees,
permitees, franchisees, easement beneficiaries, or lien holders, without prior written
consent of City or the parties whose improvements are interfered with and whose consent
is required pursuant to agreements with the City existing prior to the Effective Date.
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F. Duty to Restore.
1. Franchisee shall, after completion of Construction of any part of its Network,
leave the Public Rights -of -Way and other property disturbed nearby, in as good or better
condition in all respects as it was in before the commencement of such Construction.
Franchisee agrees to promptly complete restoration work to the reasonable satisfaction
of the City and in conformance with City standards.
2. If Franchisee's Work causes unplanned, unapproved, or unanticipated
disturbance or alteration or damage to Public Rights -of -Way or other public property, it
shall promptly remove any obstructions therefrom and restore such Public Rights -of -Way
and public property to the satisfaction of the City and in accordance with City Standards.
3. If weather or other conditions do not allow the complete restoration required,
Franchisee shall temporarily restore the affected Public Right -of -Way or public property.
Franchisee shall promptly undertake and complete the required permanent restoration
when the weather or other conditions no longer prevent such permanent restoration.
G. Notice. If Franchisee's Work causes unplanned, unapproved, or
unanticipated disturbance or damage to Public Rights -of -Way or other public or private
property, the Franchisee shall promptly notify the property owner within twenty-four (24)
hours.
H. Warranty. Franchisee shall warrant any restoration work performed by
Franchisee in the Public Rights -of -Way or on other public property for two (2) years,
unless a longer period is required by applicable City Standards. If restoration is not
satisfactorily and timely performed by the Franchisee, the City may, after prior notice to
the Franchisee, or without notice where the disturbance or damage may create an
imminent risk to public health or safety, cause the repairs to be made and recover the
actual, and documented cost of those repairs from the Franchisee. Within thirty (30) days
of receipt of an itemized list of those costs, including the costs of labor, materials and
equipment, the Franchisee shall pay the City.
I. Restoration of Private Property. When Franchisee does any Work in the
Public Rights of Way that affects, disturbs, alters, or damages any adjacent private
property, it shall, at its own expense, be responsible for restoring such private property to
its condition immediately prior to the affect, disturbance, alteration, or damage, to the
reasonable satisfaction of the private property owner.
J. Stop Work. On notice from the City that any Work does not comply with the
Franchise, the approved Design Documents for the Work, the Standards, or other
applicable Law, or is being performed in an unsafe or dangerous manner as determined
by the City, the non-compliant Work may immediately be stopped by the City. The stop
work order shall be in writing, given to the Person doing the Work and be posted on the
Work site, indicate the nature of the alleged violation or unsafe condition and establish
conditions under which Work may be resumed. If so ordered, Franchisee shall cease
and shall cause its contractors and subcontractors to cease such activity until the City is
satisfied that Franchisee is in compliance. If an unsafe condition is found to exist, the
City, in addition to taking any other action permitted under applicable Law, may order
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Franchisee to make the necessary repairs and alterations specified therein forthwith to
correct the unsafe condition by a time the City establishes in its discretion. The City has
the right to inspect, repair, and correct the unsafe condition if Franchisee fails to do so,
and to reasonably charge Franchisee for the actual and documented costs incurred to
perform such inspection, repair, or correction. Payment by Franchisee will be made within
thirty (30) days following receipt of written notice including itemized invoice and
supporting documentation evidencing such cost. The authority and remedy set forth
herein this section is in addition to, and not a substitute for, any authority the City may
otherwise have to take enforcement action for violation of City Codes or Standards.
K. Alteration. Except as may be shown in the Design Documents approved
by the City or the records drawings, or as may be necessary to respond to an Emergency,
Franchisee and Franchisee's contractors and subcontractors may not make any material
alterations to the Franchise Area without the City's prior written consent, which consent
shall not be unreasonably withheld. The parties acknowledge that nothing in this
Agreement limits the City's rights under applicable federal, state, and local laws to
regulate the placement and appearance of Franchisee's Facilities in the Franchise Area.
Material alteration shall include, but not be limited to: a change in the dimension, height,
location, or placement of the Facilities. If Franchisee desires to change either the location
of any Facilities or otherwise materially deviates from the approved design of any of the
Facilities, Franchisee shall submit such change to the City in writing for its approval.
Franchisee shall have no right to commence any such alteration until after Franchisee
has received the City's approval of such change in writing. Under no circumstance shall
Franchisee permanently affix anything in the Franchise Area that has not been permitted
by the City and that inconveniences the public use of the right of way or adversely affects
the public health, safety, or welfare. Notwithstanding the foregoing, alterations shall not
be material and shall not be subject to additional permitting or City approval to the extent
that: (i) such modification to the attachment involves only substitution of internal
components, and does not result in any change to the external appearance, dimensions,
or weight of the attachment, as approved by the City; or (ii) such modification involves
replacement of the attachment with an attachment that is the same, or smaller in weight
and dimensions as the approved attachment. Mobilitie will notify the City of any such
modification within fifteen (15) days after the modification is made.
L. Underground Installation Required. All telecommunications cables and
junction boxes or other vaulted system components shall be installed underground when
and to the extent required by Tukwila Municipal Code § 11.32.090(B), unless otherwise
exempted from this requirement, in writing, by the Public Works Director, provided
however, this requirement shall not apply to the Facilities that are required to remain
above ground in order to be functional.
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M. Relocation.
1. The City shall have the right to require Mobilitie to alter, adjust, relocate,
re -attach, secure, or protect in place its Facilities within the public right-of-way when
reasonably necessary for construction, alteration, repair, or improvement of any portion
of the Public Right of Way for purposes of public welfare, health, or safety ("Public
Improvements"). Such Public Improvements include, but are not limited to: Public Rights -
of -Way construction; Public Rights -of -Way repair (including resurfacing or widening);
change of Public Rights -of -Way grade; construction, installation, or repair of sewers,
drains, water pipes, power lines, signal lines, communication lines, or any other type of
government-owned communications, utility or public transportation systems, public work,
public facility, or improvement of any government-owned utility; Public Rights -of -Way
vacation, and the construction of any public improvement or structure by any
governmental agency acting in a governmental capacity. In the event the City requires
Mobilitie to relocate its Facilities, the City shall provide Mobilitie with written notice
requesting such relocation, along with plans for the Public Improvement that are
sufficiently complete to allow for the initial evaluation, coordination, and the development
of a relocation plan. The City and Mobilitie shall meet at a time and location determined
by the City to discuss the project requirements including critical timelines, schedules,
construction standards, utility conflicts, as -built requirements, and other pertinent
relocation plan details. The City shall notify Mobilitie as soon as practicable of the need
for relocation and shall specify the date by which relocation shall be completed. Except
in case of emergency, such notice shall be no less than 90 days before the relocation is
to be completed.
2. To ensure timely execution of relocation requirements, Mobilitie shall,
upon written request from the City, provide at Mobilitie's expense, base maps, current as -
built information, detailed relocation plan (including detailed schedule of relocation
activities, identification of critical path, identification of Facilities, and relocation
procedures), and other design, technical, or operational requirements within the
timeframe specified by the City.
3. Mobilitie may, after receipt of written notice requesting a relocation of its
Facilities, submit to the City written alternatives to such relocation within the time specified
by the City. Such alternatives shall include the use and operation of temporary Facilities
in adjacent rights-of-way. The City shall evaluate such alternatives and advise Mobilitie
in writing if one or more of the alternatives are suitable to accommodate the work, which
would otherwise necessitate relocation of the Facilities. If requested by the City, Mobilitie
shall submit additional information to assist the City in making such evaluation. The City
shall give each alternative proposed by Mobilitie full and fair consideration. In the event
the City, in its reasonable discretion, decides not to accept the alternatives suggested by
Mobilitie, Mobilitie shall relocate its Facilities as directed by the City.
4. Upon final approval of the relocation plan by the City, Mobilitie shall, at
its own expense, unless otherwise prohibited by statute, and at the time frame specified
by the City, temporarily or permanently remove, relocate, place underground, change or
alter the position of any Facilities or structures within the Public Right -of -Way whenever
the City has determined that such removal, relocation, undergrounding, change, or
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alteration is reasonably necessary for the construction, repair, maintenance, installation,
public safety, or operation of any public improvement in or upon the Public Right -of -Way.
In the event relocation is required by reason of construction by a third party, non-
governmental entity, for the sole benefit of the third party, non-governmental entity then
Mobilitie's relocation costs shall be borne by the third party.
5. If during the construction, repair, or maintenance of the City's Public
Improvement project an unexpected conflict occurs from Mobilitie's Facilities, Mobilitie
shall, upon notification from the City, respond within 24 hours to resolve the conflict
(provided, however, that Mobilitie shall be given a reasonable period of time to resolve
the conflict).
6. Mobilitie acknowledges and understands that any delay by Mobilitie in
performing the work to alter, adjust, relocate, or protect in place its Facilities within the
Public Rights -of -Way may delay, hinder, or interfere with the work performed by the City
and its contractors and subcontractors in furtherance of construction, alteration, repair, or
improvement of the Public Rights -of -Way, and result in damage to the City, including but
not limited to, delay claims. Mobilitie shall cooperate with the City and its contractors and
subcontractors to coordinate such relocation work to accommodate the public
improvement project and project schedules to avoid delay, hindrance of, or interference
with such project.
7. Should Mobilitie fail, within thirty (30) days of receipt of written notice
from the City, to alter, adjust, protect in place, or relocate any Facilities ordered by the
City to be altered, adjusted, protected in place, or relocated, within the time prescribed by
the City, given the nature and extent of the work, or if it is not done to the City's reasonable
satisfaction, the City may, to the extent the City may lawfully do so, cause such work to
be done and bill the reasonable cost of the work to Mobilitie, including all reasonable
costs and expenses incurred by the City due to Mobilitie's delay. In such event, the City
shall not be liable for any damage to any portion of Mobilitie's system. In addition to any
other indemnity set forth in this Franchise Agreement, Mobilitie will indemnify, hold
harmless, and pay the costs of defending the City from and against any and all claims,
suits, actions, damages, or liabilities for delays on public improvement construction
projects caused by or arising out of the failure of Mobilitie to adjust, modify, protect in
place, or relocate its Facilities in a timely manner; provided that, Mobilitie shall not be
responsible for damages due to delays caused by the City.
N. Removal or Abandonment. Upon the removal from service of any service
antennas or other associated structures, Facilities and/or amenities, Mobilitie shall comply
with all applicable standards and requirements prescribed by the City of Tukwila's Public
Works Department for the removal or abandonment of said structures and Facilities. No
Facility Constructed or owned by Mobilitie shall be abandoned without the express written
consent of the City.
0. Bond. Before undertaking any of the work, installation, improvements,
Construction, repair, relocation, or maintenance authorized by this Franchise Agreement,
Mobilitie shall, upon the request of the City, furnish one bond executed by Mobilitie for all
of Facilities in the City's rights-of-way, in the amount of Twenty -Five Thousand Dollars
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and no/100 [$25,000.00]. At Franchisee's sole option, Franchisee may provide alternate
security in the form of an assignment of funds or a letter of credit, in the same amount as
the bond. All forms of security shall be in a form reasonably acceptable to the City. The
bond shall be conditioned so that Mobilitie shall observe all the covenants, terms, and
conditions and shall faithfully perform all of the obligations of this Franchise Agreement,
and repair or replace any defective Mobilitie work or materials discovered in the City's
roads, streets, or property.
P. "One-Call" Location and Liability. Mobilitie shall subscribe to and
maintain membership in the regional "One-Call" utility location service and shall promptly
locate all of its lines upon request. The City shall not be liable for any damages to
Mobilitie's system components or for interruptions in service to Mobilitie customers which
are a direct result of work performed for any City project for which Mobilitie has failed to
properly locate its lines and Facilities within the prescribed time limits and guidelines
established by One-Call. The City shall also not be liable for any damages to the Mobilitie
system components or for interruptions in service to Mobilitie customers resulting from
work performed under a permit issued by the City.
Q. As-Built Plans Required. Mobilitie shall maintain accurate engineering
plans and details of all installations within the City limits and shall provide, at no cost to
the City, such information in both paper form and electronic form using the most current
AutoCAD version prior to close-out of any permits issued by the City and any work
undertaken by Mobilitie pursuant to this Franchise Agreement. The City shall reasonably
determine the acceptability of any as-built submittals provided under this section.
R. Recovery of Costs. Mobilitie shall be subject to all permit fees associated
with activities undertaken through the authority granted in this Franchise Agreement or
under ordinances of the City in effect on the date the permits and authorizations are
issued for the affected Facilities. Where the City incurs reasonable costs and expenses
for review or inspection of activities undertaken through the authority granted in this
Franchise Agreement or any ordinances relating to the subject for which permit fees have
not been established, Mobilitie shall pay such reasonable costs and expenses directly to
the City.
S. Taxes. Nothing contained in this Franchise Agreement shall exempt
Franchisee's obligation to pay any applicable utility tax, business tax, or ad valorem
property tax, now or hereafter levied against real or personal property within the City, or
against any local improvement assessment imposed on Franchisee. Any fees, charges,
and/or fines provided for in the City Municipal Code or any other City ordinance, are
separate from, and additional to, any and all federal, state, local, and City taxes as may
be levied, imposed, or due from Franchisee.
T. Vacation. If, at any time, the City shall vacate any City road, right-of-way,
or other City property which is subject to rights granted by this Franchise Agreement and
said vacation shall be for the purpose of acquiring the fee or other property interest in
said road, Public Right-of-Way, or other City property for the use of the City, in either its
proprietary or governmental capacity, then the City may, at its option and by giving 90
days written notice to Mobilitie, terminate this Franchise Agreement with reference to such
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City road, right-of-way, or other City property so vacated, and the City shall not be liable
for any damages or loss to Mobilitie by reason of such termination other than those
provided for in RCW 35.99.
Section 7. Franchise Compliance.
A. Franchise Violations. The failure by Mobilitie to fully comply with any of
the provisions of this Franchise Agreement may result in a written notice from the City
that describes the violations of the Franchise Agreement and requests remedial action
within 60 days of receipt of such notice. If Mobilitie has not attained full compliance at the
end of the 60 -day period following receipt of the violation notification, the City may declare
an immediate termination of all franchise rights and privileges, provided that full
compliance was reasonably possible within that 60 -day period.
B. Emergency Actions.
1. If any of Mobilitie's actions under this Franchise Agreement, or any
failure by Mobilitie to act to correct a situation caused by Mobilitie, is reasonably deemed
by the City to create a threat to life or property, financial harm, or cause a delay of the
construction, repair or maintenance of the public improvement, the City may order
Mobilitie to immediately correct said threat, financial harm, or delay or, at the City's
discretion, the City may undertake measures to correct said threat, financial harm or delay
itself; provided that, when possible, the City shall notify Mobilitie and give Mobilitie an
opportunity to correct within a specified time said threat, financial harm, or delay before
undertaking such corrective measures. Mobilitie shall be liable for all reasonable costs,
expenses, and damages attributed to the correction of such an emergency situation as
undertaken by the City to the extent that such situation was caused by Mobilitie and shall
further be liable for all reasonable costs, expenses, and damages resulting to the City
from such situation and any reimbursement of such costs to the City shall be made within
30 days of written notice of the completion of such action or determination of damages
by the City. The failure by Mobilitie to take appropriate action to correct a situation caused
by Mobilitie and identified by the City as a threat to public or private safety or property,
financial harm, or delay of the construction, repair, or maintenance of the public
improvement shall be considered a violation of the terms of this Franchise Agreement.
2. If, during Construction or maintenance of Mobilitie's Facilities, any
damage occurs to an underground facility and the damage results in the release of natural
gas or other hazardous substance or potentially endangers life, health, or property,
Mobilitie or its contractor shall immediately call 911 or other local emergency response
number.
C. Other Remedies. Nothing contained in this Franchise Agreement shall limit
the City's available remedies in the event of Mobilitie's failure to comply with the
provisions of this Franchise Agreement, to include but not limited to, the City's right to a
lawsuit for specific performance and/or damages.
D. Removal of System. In the event this Franchise Agreement is terminated
as a result of violations of the terms of this Franchise Agreement, Mobilitie shall, at its
sole expense, remove all system components and Facilities within 90 days of such
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termination, provided that the City, at its sole option, may allow Mobilitie to abandon its
Facilities in place.
E. Receivership. At the option of the City, subject to applicable law and lawful
orders of courts of competent jurisdiction, this Franchise may be revoked after the
appointment of a receiver or trustee to take over and conduct the business of Franchisee
whether in a receivership, reorganization, bankruptcy, or other action or proceeding,
unless:
1. The receivership or trusteeship is timely vacated; or
2. The receiver or trustee has timely and fully complied with all the terms
and provisions of this Franchise, and has remedied all defaults under the Franchise.
Additionally, the receiver or trustee shall have executed an agreement duly approved by
the court having jurisdiction, by which the receiver or trustee assumes and agrees to be
bound by each and every term, provision, and limitation of this Franchise.
Section 8. Insurance.
A. Mobilitie shall maintain liability insurance during the full term of this Franchise
Agreement for personal injury and property damages which may arise from or in
connection with operations or activities performed by or on the Franchisee's behalf with
the issuance of this Franchise. The Franchisee's maintenance of insurance as required
by the Franchise Agreement shall not be construed to limit the liability of the Franchisee
to the coverage provided by such insurance, or otherwise limit the City's recourse to any
remedy available at law or in equity. Notwithstanding anything to the contrary, Mobilitie
may satisfy the foregoing insurance requirements through a combination of commercial
general liability insurance and umbrella or excess liability insurance.
B. Such required insurance shall include as additional insured, the City, its officers,
officials, and employees as their interest may appear under this Franchise Agreement,
excluding worker's compensation and employer's liability; shall apply as primary
insurance; shall stipulate that no insurance affected by the City will be called on to
contribute to a loss covered thereunder. Commercial General Liability insurance shall be
at least as broad as Insurance Services Office (ISO) occurrence form CG 00 01 and shall
cover liability arising from premises, operations, independent contractors, products -
completed operations, stop gap liability, personal injury and advertising injury, and liability
assumed under an insured contract. The Franchisee's Commercial General Liability
insurance shall provide limits of $ 5,000,000 each occurrence; $ 10,000,000 aggregate.
There shall be no exclusion for liability arising from explosion, collapse or underground
property damage. The Public Entity shall be included as an additional insured under the
Permittee's Commercial General Liability insurance policy using ISO Additional Insured -
State or Political Subdivisions -Permits CG 20 12 or a substitute endorsement providing
at least as broad coverage. Automobile Liability insurance covering all owned, non -
owned, hired and leased vehicles. Automobile Liability insurance shall have a combined
single limit for bodily injury and property damage or $ 3,000,000 per accident. Coverage
shall be at least as broad as Insurance Services Office (ISO) form CA 00 01. Further,
franchisee shall maintain Pollution Liability insurance (or Franchisee shall self -insure the
same) covering losses caused by pollution conditions that arise in connection with this
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Franchise. Franchisee's Pollution Liability insurance shall be written in an amount of
$1,000,000 per loss, with an annual aggregate of $1,000,000. Pollution Liability
insurance shall cover bodily injury, property damage, cleanup costs, and defense,
including costs and expenses incurred in the investigation, defense, or settlement of
claims. Insurance is to be placed with insurers with a current A.M. Best rating of not less
than A minus: VII. Notwithstanding the foregoing, Licensee may, in its sole discretion,
self insure any of the required insurance under the same terms as required by this
Agreement as long as Franchisee or its affiliated parent maintains a net worth of at least
Two Hundred Million Dollars and no/100 ($200,000,000) as evidenced in its annual
certified financials. In the event Franchisee elects to self -insure its obligation under this
Agreement to include the City as an additional insured, the following conditions apply: (i)
the City shall promptly and no later than thirty (30) days after notice thereof provide
Franchisee with written notice of any claim, demand, lawsuit, or the like for which it seeks
coverage pursuant to this Section and provide Franchisee with copies of any demands,
notices, summonses, or legal papers received in connection with such claim, demand,
lawsuit, or the like; (ii) the City shall not settle any such claim, demand, lawsuit, or the like
without the prior written consent of Franchisee; and (iii) the City shall fully cooperate with
Franchisee in the defense of the claim, demand, lawsuit, or the like.
C. Franchisee's contractors and subcontractors performing Work in the Public
Rights -of -Way shall comply with such bond, indemnity, and insurance requirements as
may be required by City code or regulations, or other applicable Law. Any contractors or
subcontractors performing Work within the Public Rights -of -Way on behalf of the
Franchisee shall be deemed servants and agents of the Franchisee for the purposes of
this Franchise and are subject to the same restrictions, limitations, and conditions as if
the Work were performed by Franchisee. Franchisee shall be responsible for all Work
performed by its contractors and subcontractors and others performing Work on its behalf
as if the Work were performed by it, and shall ensure that all such Work is performed in
compliance with this Franchise and other applicable laws, and shall be jointly and
severally liable for all damages and correcting all damage caused by them. It is
Franchisee's responsibility to ensure that contractors, subcontractors, or other Persons
performing Work on Franchisee's behalf are familiar with the requirements of this
Franchise and other applicable Laws governing the Work performed by them.
D. The Franchisee shall provide the City with written notice of any policy cancellation,
within two business days of their receipt of such notice if coverage is not replaced. Failure
on the part of the Franchisee to maintain the insurance as required shall constitute a
material breach of the Franchise, upon which the City may, after giving five business days'
notice to the Franchisee to correct the breach, immediately terminate the Franchise or, at
its discretion, procure or renew such insurance and pay any and all premiums in
connection therewith, with any reasonable sums so expended to be repaid to the City on
demand.
Section 9. Other Permits and Approvals. Nothing in this Agreement shall relieve
Mobilitie from any obligation to obtain approvals or necessary permits from applicable
federal, state and City authorities for all activities in the Franchise Area.
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Section 10. Transfer of Ownership.
A. The rights, privileges, benefits, title, or interest provided by this Franchise shall
not be sold, transferred, assigned or otherwise encumbered, without the prior written
consent of the City, with such consent not being unreasonably withheld, conditioned, or
delayed. No such consent shall be required, however, for a transfer in trust, by other
hypothecation, or by assignment or any rights, title or interest in Mobilitie's Network in
order to secure indebtedness. Approval shall not be required for mortgaging purposes
provided that the collateral pledged for any mortgage shall not include the assets of this
franchise. Approval shall not be required for any transfer from Mobilitie to an Affiliate or
to any entity into which Mobilitie may be merged or consolidated or which purchases all
or substantially all of the assets of Mobilitie that are subject to this Agreement. The parties
agree and acknowledge that, notwithstanding anything in this Agreement to the contrary,
certain Facilities deployed by Mobilitie in the Public Rights -of -Way pursuant to this
Agreement may be owned by Mobilitie's third -party wireless carrier customers ("Carriers")
and installed and maintained by Mobilitie pursuant to license agreements between
Mobilitie and such Carriers. Such Facilities shall be treated as Mobilitie's Facilities for all
purposes under this Agreement and sublicensing shall not require the City's consent
provided that (i) Mobilitie remains responsible and liable for all performance obligations
under the Agreement with respect to such Facilities; (ii) the City's sole point of contact
regarding such Facilities shall be Mobilitie; and (iii) Mobilitie shall have the right to remove
and relocate the Facilities.
B. In any transfer of this Franchise which requires the approval of the City, Mobilitie
shall show that the recipient of such transfer has the technical ability, financial capability,
and any other legal or general qualifications as reasonably determined by the City to be
necessary to ensure that the obligations and terms required under this Franchise
Agreement can be met to the full satisfaction of the City. This Franchise may not be
transferred without filing or establishing with the City the insurance certificates, security
fund, and performance bond as required pursuant to this Franchise. The qualifications of
any transferee in a transfer that requires the approval of the City shall be determined by
hearing before the City Council and the approval to such transfer shall be granted by
resolution of the City Council. Any reasonable administrative costs associated with a
transfer of this Franchise that requires the approval of the City shall be reimbursed to the
City within 30 days of such transfer. The transferee(s) shall thereafter be responsible for
all obligations of Franchisee with respect to the Franchise; provided, that the transfer shall
not in any respect relieve the Franchisee, or any of its successors in interest, of
responsibility for acts or omissions, known or unknown, or the consequences thereof, if
the acts or omissions occur before the time of the transfer.
Section 11. Administrative Fees.
A. Pursuant to the Revised Code of Washington (RCW), the City is precluded from
imposing franchise fees for "telephone businesses" as defined in RCW 82.16.010 and
RCW 82.04.065, or "service provider" as defined in RCW 35.99.010, except that fees may
be collected for administrative expenses related to such franchise or site specific charges
pursuant to RCW 35.21.860(1)(e). Mobilitie does hereby warrant that its operations, as
137061302.3
56
authorized under this Franchise Agreement, are those of a telephone business as defined
in RCW 82.16.010 or a service provider as defined in 35.99.010.
B. Mobilitie shall be subject to a one-time $5,000 administrative fee for
reimbursement of costs associated with the preparation, processing and approval of this
Franchise Agreement. These costs shall include, but not be limited to, wages, benefits,
overhead expenses, equipment and supplies associated with such tasks as plan review,
site visits, meetings, negotiations and other functions critical to proper management and
oversight of City's right-of-way. Administrative fees exclude normal permit fees as
stipulated in Title 11 of the Tukwila Municipal Code. Payment of the one-time
administrative fee is due 30 days after notice of franchise approval.
C. The City reserves the right to exercise authority it has or may acquire in the future
to charge a franchise fee as authorized by law and Franchisee shall in good faith
endeavor to negotiate a reasonable Franchise fee or other fee if future law permits the
City to charge a Franchise fee. However, the parties shall negotiate a site-specific charge
acceptable to the parties for facilities for personal wireless services that meet one of the
criteria in RCW 35.21.860(1)(e)(i)-(iii). Pursuant to RCW 35.21.860(1)(e), the City is not
required to approve a use permit for the placement of a facility for personal wireless
services that meets one of the criteria set forth in RCW 35.21.860(1)(e)(i)-(iii) absent such
an agreement.
D. In the event Mobilitie submits a request for work beyond the scope of this
Franchise Agreement, or submits a complex project that requires significant
comprehensive plan review or inspection, Mobilitie shall reimburse the City for franchise
amendments and reasonable expenses associated with the project. Mobilitie shall pay
such costs within 30 days of receipt of a bill from the City.
E. Failure by Mobilitie to make full payment of bills within the time specified shall be
considered sufficient grounds for the termination of all rights and privileges existing under
this ordinance, utilizing the procedures specified in Section 4 of this ordinance.
Section 12. Notices. Any notice to be served upon the City or Mobilitie shall be
delivered to the following addresses respectively:
City of Tukwila
Office of the City Clerk
6200 Southcenter Boulevard
Tukwila, WA 98188
Email: christy.oflaherty(a�tukwilawa.gov
Phone: 206-433-1855
With a copy to:
Public Works Director
6300 Southcenter Boulevard Ste. 100
Tukwila, WA 98188
137061302.3
57
FRANCHISEE
Mobilitie, LLC
660 Newport Center Drive, Suite 200
Newport Beach, CA 92660
Attention: Legal Department
legak mobilitie.com
With a copy to:
Mobilitie, LLC
660 Newport Center Drive, Suite 200
Newport Beach, CA 92660
Attention: Asset Management
WestAssetMgmt@mobilitie.com
Notices shall be delivered by U.S. Mail, overnight courier (e.g., UPS or FedEx), or in
person, and shall be deemed delivered upon receipt.
Section 13. Indemnification.
A. Mobilitie shall use reasonable and appropriate precautions to avoid damage to
persons or property in the Construction, installation, repair, operation, and maintenance
of its structures and Facilities within the Franchise Area. Mobilitie shall release,
indemnify, defend, and hold the City harmless from all claims, actions, or damages,
including reasonable attorneys' and expert witness fees, which may accrue to or be
suffered by any person or persons, corporation, or property to the extent caused in part
or in whole by any act or omission of Mobilitie, its officers, agents, servants, or employees,
carried on in the furtherance of the rights, benefits, and privileges granted to Mobilitie by
this Franchise. In the event any claim or demand is presented to or filed with the City that
gives rise to Mobilitie's obligation pursuant to this section, the City shall within a
reasonable time notify Mobilitie thereof and Mobilitie shall have a right, at its election, to
settle or compromise such claim or demand. In the event any claim or action is
commenced in which the City is named a party, and which suit or action is based on a
claim or demand which gives rise to Mobilitie's obligation pursuant to this section, the City
shall promptly notify Mobilitie thereof, and Mobilitie shall, at its sole cost and expense,
defend such suit or action by attorneys of its own election. In defense of such suit or
action, Mobilitie may, at its election and at its sole cost and expense, settle or compromise
such suit or action. This section shall not be construed to require Mobilitie to:
1. protect and save the City harmless from any claims, actions or damages;
2. settle or compromise any claim, demand, suit or action;
3. appear in or defend any suit or action; or,
4. pay any judgment or reimburse the City's costs and expenses (including
reasonable attorney's fees), to the extent such claim arises out of the negligence or
intentional acts of the City, its employees, agents or independent contractors.
137061302.3
58
B. To the extent of any concurrent negligence between Mobilitie and the City,
Mobilitie's obligations under this paragraph shall only extend to its share of negligence or
fault. The City shall have the right at all times to participate through its own attorney in
any suit or action which arises out of any right, privilege, and authority granted by or
exercised pursuant to this Franchise Agreement when the City determines that such
participation is required to protect the interests of the City or the public. Such participation
by the City shall be at the City's sole cost and expense.
C. With respect to the performance of this Franchise and as to claims against the
City, its officers, agents and employees, Mobilitie expressly waives its immunity under
Title 51 of the Revised Code Washington, the Industrial Insurance Act for injuries to its
officers, agents, and employees and agrees that the obligation to indemnify, defend, and
hold harmless provided for in this paragraph extends to any claim brought by or on behalf
of Mobilitie's officers, agents, or employees. This waiver is mutually negotiated by the
parties and the provisions of this section shall survive the expiration or termination of this
Franchise Agreement.
Section 14. Severability. If any section, sentence, clause, or phrase of this
ordinance is held to be invalid or unconstitutional by a court of competent jurisdiction, the
City may elect to treat the portion declared invalid or unconstitutional as severable and
enforce the remaining provisions of this ordinance; provided that, if the City elects to
enforce the remaining provisions of the ordinance, Mobilitie shall have the option to
terminate the Franchise Agreement.
Section 15. Reservation of Rights.
A. The parties agree that this Franchise Agreement is intended to satisfy the
requirements of all applicable laws, administrative guidelines, rules, orders and
ordinances in effect on the date the permits and authorizations are issued for the affected
Facilities. Accordingly, any provision of this Franchise Agreement or any local ordinance
that may conflict with or violate the law shall be invalid and unenforceable, whether
occurring before or after the execution of this agreement, it being the intention of the
parties to preserve their respective rights and remedies under the law, and that the
execution of this Franchise Agreement does not constitute a waiver of any rights or
obligations by either party under the law.
B. Nothing in this Franchise shall prevent the City from constructing sanitary or
storm sewers; grading, changing grade, paving, repairing, widening, or otherwise altering
any Public -of -Way; laying down, repairing or removing water mains; or installing conduit
or fiber optic cable.
Section 16. Police Powers. Nothing contained herein shall be deemed to affect the
City's authority to exercise its police powers. Mobilitie shall not by this Franchise
Agreement obtain any vested rights to use any portion of the City right-of-way except for
the locations approved by the City and then only subject to the terms and conditions of
this Franchise Agreement. This Franchise Agreement and the permits issued thereunder
shall be governed by applicable City ordinances in effect at the time of application for
such permits.
137061302.3
59
Nothing in this Franchise shall be deemed to impose any duty or obligation upon the
City to determine the adequacy or sufficiency of Franchisee's Facilities. City's approvals
and inspections as provided herein, are for the sole purpose of protecting the City's rights
as the owner and/or manager of the Public Rights -of -Way and shall not constitute any
representation or warranty, express or implied, as to the adequacy of the design or
Construction of the Facilities or Network, suitability of the Franchise Area for Construction,
or any obligation on the part of the City to ensure that Work or materials are in compliance
with any requirements imposed by a governmental entity. The City is under no obligation
or duty to supervise the design, Construction, or operation of the Network.
Section 17. Future Rules, Regulations, and Specifications. Mobilitie
acknowledges that the City may develop rules, regulations, and specifications, including
a general ordinance or other regulations governing telecommunications operations in the
City. Such regulations, upon written notice to Mobilitie, shall thereafter govern Mobilitie's
activities hereunder. However, in no event shall regulations:
A. Materially interfere with or adversely affect Mobilitie's rights pursuant to and
in accordance with this Franchise Agreement; or
B. Be applied in a discriminatory manner as it pertains to Mobilitie and other
similar user of such facilities.
If any federal, state, or local laws or regulations (including, but not limited to, those
issued by the Federal Communications Commission or its successor agency) and any
binding judicial interpretations thereof (collectively, "Laws") that govern any aspect of
the rights or obligations of the parties under this Agreement shall change after the
Effective Date and such change makes any aspect of such rights or obligations
inconsistent with the then -effective Laws, then the parties agree to promptly amend the
Agreement as reasonably required to accommodate and/or ensure compliance with any
such legal or regulatory change.
Section 18. Repealer. Intentionally Deleted.
Section 19. Entire Agreement. This Franchise contains all covenants and
agreements between the City and the Franchisee relating in any manner to the Franchise,
use, and occupancy of the Public Rights -of -Way and other matters set forth in this
Franchise. No prior agreements or understanding pertaining to the same, written or oral,
shall be valid or of any force or effect and the covenants and agreement of this Franchisee
shall not be altered, modified, or added to except in writing signed by the City and
Franchisee and approved by the City in the same manner as the original Franchise was
approved.
Section 20. Calculation of Time. Except where a period of time refers to "business
days," all periods of time referred to herein shall include Saturdays, Sundays, and legal
holidays in the State of Washington, except that if the last day of any period falls on any
Saturday, Sunday, or legal holiday in the State of Washington, the period shall be
extended to include the next day which is not a Saturday, Sunday, or legal holiday in the
State of Washington; provided that, the Effective Date shall be determined as provided in
this Franchise.
137061302.3
60
Section 21. Time Limits Strictly Construed. Whenever this Franchise sets forth
a time for any act to be performed by Franchisee, such time shall be deemed to be of the
essence, and any failure of Franchisee to perform within the allotted time may be
considered a Default of this Franchise upon expiration of applicable notice and cure
periods.
Section 22. Joint Venture. It is not intended by this Franchise to, and nothing
contained in this Franchise shall, create any partnership, joint venture, or principal -agent
relationship or other arrangement between Franchisee and City. Neither Party is
authorized to, nor shall either Party act toward third Persons or the public in any manner
that would indicate any such relationship. The Parties intend that the rights, obligations,
and covenants in this Franchise and any collateral instruments shall be exclusively
enforceable by the City and Franchisee, their successors, and assigns. No Person not a
Party hereto, and no such Person shall have any right or cause of action hereunder,
except as may be otherwise provided herein. Further, the Franchisee is not granted any
express or implied right or authority to assume or create any obligation or responsibility
on behalf of or in the name of the City. However, nothing in this Section prevents an
assignment as provided for in this Franchise.
Section 23. Binding Effect Upon Successors and Assigns. All of the provisions
contained in this Franchise shall be binding upon the heirs, successors, executors,
administrators, receivers, trustees, legal representatives, transferees, and assigns of the
Franchisee; and all privileges as well as any obligations and liabilities of the Franchisee
shall inure to its heirs, successors, and assigns equally as if they were specifically
mentioned wherever Franchisee is named herein.
Section 24. Waiver. No failure by either Party to insist upon the performance of any
of the terms of this Franchise or to exercise any right or remedy consequent upon a
Default thereof, shall constitute a waiver of any such Default or of any of the terms of this
Franchise. None of the terms of this Franchise to be kept, observed, or performed by
either Party, and no Default thereof, shall be waived, altered, or modified except by a
written instrument executed by the injured Party. No waiver of any Default shall affect or
alter this Franchise, but each of the terms of this Franchise shall continue in full force and
effect with respect to any other then existing or subsequent Default thereof. No waiver of
any Default of the defaulting Party shall be implied from any omission by the injured Party
to take any action on account of such default if such default persists or is repeated, and
no express waiver shall affect any default other than the default specified in the express
waiver and then only for the time and to the extent therein stated. One or more waivers
by the injured Party shall not be construed as a waiver of the subsequent Default of the
same covenant, term or conditions.
Section 25. Survival of Terms. Upon the expiration, termination, revocation, or
forfeiture of the Franchise, the Franchisee shall no longer have the right to occupy the
Franchise Area for the purpose of providing services authorized herein. However, the
Franchisee's obligations under this Franchise to the City shall survive the expiration,
termination, revocation, or forfeiture of these rights according to its terms for so long as
the Franchisee's Network or any part thereof shall remain in whole or in part in the Public
Rights -of -Way, or until such time as the Franchisee transfers ownership in all Facilities in
137061302.3
61
the Franchise Area to the City or a third -Party, or until such time as the Franchisee
abandons said Facilities in place, all as provided herein. Said obligations include, but are
not limited to: Franchisee's obligations to indemnify, defend, and protect the City, to
provide insurance, to relocate its Facilities, and to reimburse the City for its costs to
perform Franchisee's work.
Section 26. Force Majeure. In the event Franchisee is prevented or delayed in the
performance of any of its obligations herein due to circumstances beyond its control or by
reason of a force majeure occurrence, such as, but not limited to: acts of God, acts of
terrorism, war, riots, civil disturbances, natural disasters, floods, tornadoes, earthquakes,
severe weather conditions, employee strikes, and/or unforeseen labor conditions not
attributable to Franchisee or its employees, Franchisee shall not be deemed in Default of
provisions of this Franchise.
If Franchisee believes that circumstances beyond its control or by reason of a force
majeure occurrence have prevented or delayed its compliance with the provisions of this
Franchise, Franchisee shall provide documentation as required by the City to substantiate
the Franchisee's claim. Franchisee shall have a reasonable time, under the
circumstances, to perform the affected obligation under this Franchise or to procure a
substitute for such obligation with is satisfactory to the City; provided that the franchisee
shall perform to the maximum extent it is able to perform and shall take reasonable steps
within its power to correct such cause(s) in as expeditious a manner as possible, provided
that the Franchisee takes prompt and diligent steps to bring itself back into compliance
and to comply as soon as possible under the circumstances with the Franchise without
unduly endangering the health, safety, and integrity of the Franchisee's employees or
property, or the health, safety, and integrity of the Franchisee's employees or property, or
the health, safety, and integrity of the public, Public Rights of Way, public property or
private property.
Section 27. Attorneys' Fees. In the event of a suit, action, arbitration, or other
proceeding of any nature whatsoever, whether in contract or in tort or both, is instituted
to enforce any word, article, section, subsection, paragraph, provision, condition, clause
or sentence of this Franchise or its application to any person or circumstance, the
prevailing Party shall be entitled to recover from the losing Party its reasonable attorneys,'
paralegals, accountants, and other expert fees and all other fees, costs, and expenses
actually incurred and reasonably necessary in connection therewith, as allowed by
Washington law and as determined by the judge or arbitrator at trial or arbitration, as the
case may be, or on any appeal or review, in addition to all other amounts provided by
Law. This provision shall cover costs and attorneys' fees related to or with respect to
proceedings in Federal Bankruptcy Courts, including those related to issues unique to
bankruptcy law. This provision shall not apply to the extent that the suit, action,
arbitration, or other proceeding is brought to interpret any term, condition, provision,
section, article, or clause of this Franchise.
Section 28. Venue. This Franchise shall be governed by, and construed in
accordance with the laws of the State of Washington. Any action brought relative to
enforcement of this Franchise, or seeking a declaration of rights, duties, or obligations
herein shall be initiated in the Superior Court of King County, and shall not be removed
137061302.3
62
to a federal court, except as to claims over which such Superior Court has no jurisdiction.
Removal to federal court shall be to the Federal Court of the Western District of
Washington.
Section 29. Corrections by City Clerk or Code Reviser. Upon approval of the
City Attorney, the City Clerk and the code reviser are authorized to make necessary
corrections to this ordinance, including the correction of clerical errors; references to other
local, state or federal laws, codes, rules, or regulations; or ordinance numbering and
section/subsection numbering.
Section 30. Effective Date. This ordinance or a summary thereof shall be published
in the official newspaper of the City, and shall take effect and be in full force five days
after passage and publication as provided by law (the "Effective Date").
PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at
a Regular Meeting thereof this day of , 2018.
ATTEST/AUTHENTICATED:
Christy O'Flaherty, MMC, City Clerk
APPROVED AS TO FORM BY:
Rachel B. Turpin, City Attorney
Allan Ekberg, Mayor
Filed with the City Clerk:
Passed by the City Council:
Published:
Effective Date:
Ordinance Number:
Attachments: — Exhibit A - Franchise Agreement Acceptance Form
137061302.3
63
Date :
EXHIBIT A
Mobilitie Acceptance Form
City of Tukwila
City Clerk's Office
6200 Southcenter Boulevard
Tukwila WA 98188
Re: Ordinance No. , Adopted on
Dear City Clerk:
In accordance with and as required by Section 5 of City of Tukwila Ordinance No.
passed by the City Council and approved by the Mayor on (the
"Ordinance"), Mobilitie, LLC, a Nevada limited liability company, hereby accepts the terms,
conditions and obligations to be complied with or performed by it under the Ordinance.
Sincerely,
MOBILITIE, LLC, a Nevada limited
liability company
By:
Name:
Title:
Date:
cc: Tukwila Public Works Director, 6200 Southcenter Blvd, Tukwila, WA 98188
137061302.3
64
City of Tukwila
Allan Ekberg, Mayor
Public Works Department - Henry Hash, Director
INFORMATIONAL MEMORANDUM
TO: Transportation and Infrastructure Committee
FROM: Henry Hash, Public Works Director
BY: Steve Carstens, Senior Program Manager
CC: Mayor Ekberg
DATE: June 22, 2018
SUBJECT: Annual Bridge Inspections and Repairs 2018
Project No. 91810402 and 91710406, Contract No. 18-056
Design Consultant Supplement No. 1
ISSUE
Approve Supplement No. 1 to Contract No. 18-056 with TranTech Engineering, LLC for the repair of the
S 196th/200th St Bridge as part of the Annual Bridge Inspections and Repairs.
BACKGROUND
The City has been monitoring the S 196th/200th St Bridge for settlement on the west end of the bridge
structure. Upon a recent inspection, it was noted the settlement had increased to three inches. This
settlement now requires action to be taken by the City to remedy the issue.
ANALYSIS
TranTech Engineering will provide full Plans, Specifications, and Engineering estimate to complete the
work for the project. Once design is complete, bids are estimated to be advertised with construction
scheduled for September 2018.
FISCAL IMPACT
TranTech has provided a cost not to exceed $20,000.00 to perform the final design as part of the 2018
Annual Bridge Inspections and Repairs Project. The project costs are within budget.
Design Repair Services (original)
Design Supplement No. 1
2018 Bridge
Contract Budget
$39,950.00 $335,000.00
20, 000.00 0.00
$59,950.00 $335,000.00
RECOMMENDATION
Council is being asked to approve Supplement No. 1 to Contract No. 18-056 with TranTech
Engineering for the S 196th/200th St Bridge Repairs as part of the 2018 Annual Bridge Inspections and
Repairs Project in the amount of $20,000.00 and consider this item on the Consent Agenda at the
July 2, 2018 Regular Meeting.
Attachment: Consultant Agreement for Engineering Services
W:1PW Eng1PROJECTSIA- RW 8 RS Projects\S 196th -200th St Bridge Repair (91710406)101 - Preliminary EngineeringlInfo Memo Trantech 20180622 gl sm.docx
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City of Tukwila
6200 Southcenter Boulevard, Tukwila WA 98188
Agreement Number: 18-056
CONTRACT FOR SERVICES
Amendment # 1
Between the City of Tukwila and _TranTech Engineering, LLC.
That portion of Contract No. 18-056
TranTech Engineering, LLC is amended as follows:
Section 4A:
between the City of Tukwila and
The "not to exceed" amount is increased to $59,950.00 per the attached Exhibit B1.
All other provisions of the contract shall remain in full force and effect.
Dated this
day of , 20
CITY OF TUKWILA CONTRRAACTQEt-TraATecti Engineering, LLC
Allan Ekberg, Mayor
Printed -Name: Grant D Griffi
ATTEST/AUTHENTICATED APPROVED AS TO FORM
Christy O'Flaherty, MMC, City Clerk City Attorney
Page 1 of 1
66
SCOPE OF WORK
TRANTECH Engineering
2018 Bridge Program Engineering Support
Amendment No. 1
City of Tukwila, WA
PROJECT DESCRIPTION
The City of Tukwila has identified several tasks necessary for the advancement of their Citywide
Bridge Program in 2018. These tasks include providing construction documents for west approach
span repairs of the 196`h/ 200th Street Bridge, permit load rating services to manage the load posting
of the 42nd Street truss bridge, and providing miscellaneous engineering support for other bridge
program tasks as identified by the City.
This Amendment No. 1 provides additional funds to complete the open-ended work as described
in the original Scope of Work and as directed by the City. These funds also provide for projected
additional work as detailed in the original contract and as required by the City.
All work shall be in accordance with the original contract Scope of Work.
SC EDULE
The contract schedule shall remain as detailed in the original contract.
SCOPE OF WORK — TECHNICAL APPROACH
The task items listed below will be performed by TRANTECH for the City in accordance with
the original contract Scope of Work.
Task 1 — 196'111 200'1' Street fi ridge Repair Construction Documents
The 90% complete contract documents have been submitted to the City. Amendment No. 1 will
provide additional funds to incorporate the final review comments to be provided by the City
into the contract documents. A final 100% contract document submittal will be provided to the
City as detailed in the original contract documents under Task 1 deliverables.
Task 2 — 42°d Street Load Rating Services
Amendment 1 will provide additional funds to allow TranTech to finalize load rating analysis
currently in progress and to continue providing load rating analysis for any additional trucks
identified as requiring permit access to cross the load posted bridge as requested by the City.
Task 2 deliverables will remain as detailed in the original contract.
Task 4 — Miscellaneous ti ridge Program Support
Task 4 remains as detailed in the original contract document Scope of Work.
Tukwila Bridge Program Engineering Support, Amendment No. 1 -- SCOPE OF WORK Page 1
TRANTECH ENGINEERING
67
Feasibility Study
Page 1
1 1
EXHIBIT B1 - BudgetTRANTECH
1
Engineering
LLC
City of Tukwila 2018 Bridge Program Engineering Support, Amendment No. 1
Project
QA/QC
Senior
Project
Staff
Senior
Senior
Senior
Senior
Const.
Assistant
Clerical
Total
Task Items
Manager
Engr.
Struc.
Engr.
Struc.
Engr.
Struc.
Engr.
Coating
Engr.
Traffic
Engr.
CAD
Civil
Engr.
Engr.
Inspector
_
Task 1 - 196th/ 200th Street Bridge Repair Construction Documents
4
8
8
8
8
2
16
2
4
60
Task 2 - 42nd Street Load Rating Services
4
4
8
32
32
2
82
Task 4- Miscellaneous Bridge Program Support
8
2
2
2
2
2
18
Total Manhours
16
14
18
42
42
2
2
16
0
2
0
6
160
Direct Labor Rates (DLR)
$ 57.50
$ 59.00
$ 58.00
$ 55.00
$ 39.00
$ 36.00
$ 50.00
$ 37.00
$ 52.00
$ 56.00
$ 36.00
$ 22.00
Total Direct Salary Cost
$920
$826
$1,044
$2,310
$1,638
$72
$100
$0
1 $112
$0
$132
$7,154
Profit at 30% of DLR
$2,146
Overhead at 1.4272 times DLR
$10,210
$19,510
Total Labor Cost
Direct Costs (Copy, Fedex, ...)
$500
Total
$20,010
Page 1
City of Tukwila
Public Works Department - Henry Hash, Director
INFORMATIONAL MEMORANDUM
Allan Ekberg, Mayor
TO: Transportation and Infrastructure Comfnitee
FROM: Henry Hash, Public Works Director d7'
BY: Cyndy Knighton, Senior Program Manager
CC: Mayor Ekberg
DATE: June 22, 2018
SUBJECT: Traffic Calming, Safe Routes to Schools, and Pedestrian/Bicycle Improvements in Residential
Neighborhoods
ISSUE
Discuss traffic calming options and update on Safe Routes to Schools and other pedestrian and bicycle improvements
for residential neighborhoods.
BACKGROUND
At the May 29, 2018 Transportation and Infrastructure Committee meeting, staff presented a packet of information on
stop sign and crosswalk guidelines and traffic calming. These handouts were provided as information for review before
a larger discussion could be held with the Committee.
DISCUSSION
Specific requests for information were made by Committee members during the May 29'h meeting regarding which
projects have been submitted for grants, status of projects identified in the Walk and Roll Plan, and a cost estimate for
the removal of the speed cushions in place on S 160th St.
Safe Routes to School Grant Program. This year, Tukwila applied for two SRTS grants: 46th Ave S (S 152nd St to 5 144th
St) and S 152nd St (TIB to 42nd Ave S). Results will not be known on the success of these grants for up to one year. In
2014 and 2016, grant applications were submitted and awarded for Cascade View SRTS Phase I and 11 Projects. The
Thorndyke SRTS project was awarded after the 2012 call for projects.
Pedestrian & Bicycle Grant Program. Tukwila applied for two projects under this grant umbrella: S 144th St Sidewalks
(bridge over 1-5) and Macadam Rd (S 144th St to S 150th St). Both are under review and results may not be known for
up to one year. Tukwila has repeatedly and unsuccessfully applied to this program for the S 144th St Sidewalks project
for several grant cycles. In 2012, an unsuccessful grant for the right-of-way phase for the Pedestrian/Bicycle Bridge
project was submitted.
Walk & Roll Plan. The original 2009 ordinance implementing the Walk & Roll Plan included a list of high priority projects.
Since then, project priorities have been updated via a 2014 update to the Walk & Roll Plan and the 2016 Residential
Street Prioritization Study.
Traffic Calming Program. In 2005, the Transportation Committee accepted a Neighborhood Traffic Calming Program
(NTCP), but no funding or staffing was made available. A pilot project on S 130th St was studied, resulting in the
conversion of 35th Ave S between Tukwila International Blvd and S 130th St into a one-way northbound street. In 2017,
a second pilot project on S 160th St installed speed cushions in advance of the road closure for construction on 42nd Ave
S. The Transportation and Infrastructure Committee discussed the NTCP in October 2017.
FISCAL IMPACT
There currently is no dedicated funding or staff for traffic calming or specifically, dedicated implementation of the Walk
& Roll Plan. Per Committee's direction at the May 29, 2018 meeting, staff is proposing to add $150,000 per year to the
Neighborhood Traffic Calming CIP sheet and $250,000 per year for neighborhood sidewalks in the upcoming budget.
As other CIP projects are funded, complete street principles are included.
RECOMMENDATION
For discussion only.
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