HomeMy WebLinkAboutTIC 2018-06-25 Item 2C - Ordinance - Mobilitie LLC Small Cell Technology Franchise Agreement014
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.
137061302.3
46
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.
137061302.3
47
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
137061302.3
48
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.
137061302.3
49
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
137061302.3
50
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
137061302.3
51
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
137061302.3
52
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
137061302.3
53
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
137061302.3
54
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.
137061302.3
55
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