HomeMy WebLinkAboutCOW 2018-07-09 COMPLETE AGENDA PACKETTukwila City Counci/ Agenda
•••• COMMITTEE OF THE WHOLE ❖
Allan Ekberg, Mayor Counci/members: + Dennis Robertson + Kathy Hougardy
David Cline, City Administrator •:• De'Sean Quinn •:• Kate Kruller
Verna Seal, Council President •:• Thomas McLeod •:• Zak Idan
Monday, July 9, 2018; 7:00 PM Tukwila City Hall Council Chambers
1. CALL TO ORDER I PLEDGE OF ALLEGIANCE
2. PUBLIC
COMMENTS
At this time, you are invited to comment on items not included on this agenda
(please limit your comments to five minutes per person). To comment
on an item listed on this agenda, please save your comments until the issue is
presented for discussion. (Refer to back of agenda page for additional information.)
3. SPECIAL ISSUES
a. Discussion on Change Order No. 3 to contract #17-090 with Active
Construction for the 42nd Avenue South Phase 3 Project (South 160th
Street—Southcenter Blvd.), in the amount of $2,741,136.00 (includes
sales tax).
b. A lease with Tukwila Village Development Associates.
c. A resolution to adopt an amended 2012 City of Tukwila Strategic Plan,
and an update on the 2019-2020 budget.
d. An ordinance for the New Cingular Wireless/AT&T franchise agreement.
e. An ordinance for the Mobilitie, LLC franchise agreement.
Pg.1
Pg.13
Pg.61
Pg.77
Pg.131
4. REPORTS
a. Mayor
b. City Council
c. Staff
d. Council Analyst
5. MISCELLANEOUS
6. ADJOURNMENT
Reasonable
City Clerk's Office
www.tukwilawa.aov.
Tukwila City Hall is ADA accessible.
accommodations are available at public hearings with advance notice to the
(206-433-1800 or TukwilaCitvClerk@TukwilaWA.aov). This agenda is available at
and in alternate formats with advance notice for those with disabilities.
Tukwila Council
meetings are audio/video taped (available at www.tukwilawa.aov)
HOW TO TESTIFY
When recognized by the Presiding Officer to address the Council, please go to the podium and state your
name and address clearly for the record. Please observe the basic rules of courtesy when speaking and limit
your comments to 5 minutes. The Council appreciates hearing from citizens and members of the public, and
may not be able to answer questions or respond during the meeting.
PUBLIC COMMENTS
Members of the public are given the opportunity to address the Council on items that are NOT included on
the agenda during PUBLIC COMMENTS. Please limit your comments to 5 minutes. If you have a
comment on an Agenda item, please wait until that item comes up for discussion to speak on that topic.
SPECIAL MEETINGS/EXECUTIVE SESSIONS
Special Meetings may be called at any time with proper public notice. Procedures followed are the same as
those used in Regular Council meetings.
Executive Sessions may be called to inform the Council of pending legal action, financial, or personnel
matters as prescribed by law. Executive Sessions are not open to the public.
PUBLIC HEARINGS
Public Hearings are required by law before the Council can take action on matters affecting the public
interest such as land -use laws, annexations, rezone requests, public safety issues, etc. Section 2.04.150 of the
Tukwila Municipal Code states the following guidelines for Public Hearings:
1. The proponent shall speak first and is allowed 15 minutes for a presentation.
2. The opponent is then allowed 15 minutes to make a presentation.
3. Each side is then allowed 5 minutes for rebuttal.
4. Members of the public who wish to address the Council may speak for 5 minutes each. No one may
speak a second time until everyone wishing to speak has spoken.
5. After each speaker has spoken, the Council may question the speaker. Each speaker can respond to the
question, but may not engage in further debate at that time.
6. After the Public Hearing is closed and during the Council meeting, the Council may choose to discuss
the issue among themselves, or defer the discussion to a future Council meeting, without further public
testimony. Council action may only be taken during Regular or Special Meetings.
COUNCIL MEETING SCHEDULE
No Council meetings are scheduled on the 5th Monday of the month unless prior public notification is given.
Regular Meetings - The Mayor, elected by the people to a four-year term, presides at all Regular Council
Meetings held on the 1st and 3rd Mondays of each month at 7:00 p.m. and Special Meetings. Official
Council action in the form of formal motions, adopting of resolutions and passing of ordinances can
only be taken at Regular or Special Council meetings.
Committee of the Whole Meetings - Councilmembers are elected for a four-year term. The Council
President is elected by the Councilmembers to preside at all Committee of the Whole meetings for a
one-year term. Committee of the Whole meetings are held the 2nd and 4th Mondays at 7:00 p.m.
Issues discussed there are forwarded to Regular or Special Council meetings for official action.
COUNCIL AGENDA SYNOPSIS
Initials
Meeting Date
Prepared by 1 Mayor's review
Council review
07/09/18
HH
Blvd)
Active Construction,
Inc.
07/16/18
HH
07/09/18
►1
Motion
Date 07/16/18
• Resolution
❑ Ordinance
Nits Date
N BidAward
ITEM INFORMATION
ITEM No.
3A
CAS NUMBER:
STAFF SPONSOR: HENRY HASH
( ORIGINAL AGENDA DATE: 07/09/18
AGENDA ITEM TITLE 42nd Ave S Phase III Project (S
Construction Change Order No.
160th St - Southcenter
3 with with
Blvd)
Active Construction,
Inc.
CATEGORY ►1 Discussion
07/09/18
►1
Motion
Date 07/16/18
• Resolution
❑ Ordinance
Nits Date
N BidAward
• Public Hearing
❑ Other
Mtg Date
Mtg Date
Mtg
Mtg Date
Mtg Date
Mtg Date
SPONSOR ❑ Council ❑ Mayor • HR ❑ DCD ❑ Finance ❑ Fire ❑ IT ❑ PSR ❑ Police PW
SPONSOR'S Change Order No. 3 to Contract #17-090 is for additional construction costs for the 42nd
SUMMARY Ave S Phase III Project. 42"d Ave S has had major issues with the Gilliam Creek Culvert and
utility conflicts which have caused delays and cost overruns. After extensive negotiations,
Active Construction's Change Order No. 3 will resolve all disputes and require that the
project be substantially complete by November 2018. Council is being asked to approve
Change Order No. 3 with Active Construction for $2,741,136 (with sales tax).
REVIEWED BY ❑ COW Mtg. ❑ CA&P Cmte
❑ Utilities Cmte ❑ Arts Comm.
DATE: 07/09/18
U F&S Cmte
Comm.
CHAIR: THOMAS
I1 Transportation
Cmte
N Parks
❑ Planning Comm.
MCLEOD
COMMITTEE
RECOMMENDATIONS:
SPONSOR/ADMIN.
COMMIrIEE
Public Works
Presented to TIC on same night, 7/9/18
COST IMPACT I FUND SOURCE
EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED
$2,741,136.00 $11,774,000.00 $1,992,407.00
Fund Source: 103 RESIDENTIAL STREETS & SURFACE WATER (PAGES 2 & 100, 2017 CIP)
Comments:
MTG. DATE
RECORD OF COUNCIL ACTION
07/09/18
07/16/18
MTG. DATE
ATTACHMENTS
07/09/18
Informational Memorandum dated 07/06/18
Active Construction Change Order No. 3
TIC Chair McLeod will report on action from Transportation & Infrastructure 7/9/18
07/16/18
1
2
City of Tukwila
INFORMATIONAL MEMORANDUM
TO: Transportation and Infrastructure Committee
FROM: Henry Hash, Public Works Director /'. 1/.
BY: Peter Lau, Senior Program Manager
CC: Mayor Allan Ekberg
DATE: July 6, 2018
SUBJECT: 42nd Avenue South Phase III & Gilliam Creek Culvert Replacement Projects
Project Nos. 99410303 & 99341208, Contract No. 17.090
Change Order No. 3
ISSUE
Approve Change Order (CO) No. 3 with Active Construction, Inc. (ACI) to resolve all outstanding claims and disputes
for the 42nd Avenue South Phase Ill Project.
BACKGROUND
The 42nd Avenue South Phase III Project has been challenging. Due to unexpected issues such as excessive ground
water, utility conflicts, and working through the winter, there have been construction delays and cost overruns.
However, due to a change in direction and negotiating with ACI to develop a better partnership, significant progress
has recently been made. Despite all of the challenges, we anticipate that substantial completion of 42nd Ave S will
remain close to the original date this fall. Curb and gutters were installed in early June and the first lift of asphalt was
placed on 6/25/18 and the road was reopened, as was committed by staff.
DISCUSSION & FISCAL IMPACT
After numerous negotiation meetings with ACI and Public Works staff, with assistance from the City's legal
department, CO No. 3 was mutually agreed to by all parties. CO No. 3 will alter the current procedures of construction
philosophy. The execution of CO No. 3 will relieve some of the cost overruns and avoid potential and costly claims
and delays, while improving efficiency and productivity.
Change Order No. 3 proposals include:
• transforms the project culture from spending much of ACI's and City's project staff time on assessing and
quantifying disputes, to having both parties working cooperatively in order to complete the construction
project as soon as possible;
• allows City's project staff to work with ACI's construction crews directly as a team, in order to efficiently finish
the construction project at the least amount of cost;
• compensates ACI for the actual construction costs plus a 14% mark-up, which includes costs for bond,
insurance, other general and administrative overhead costs, and profit;
• resolves all outstanding disputes between the City and ACI, and agrees not to pursue legal action against each
other when this CO is strictly followed;
• and requires ACI to complete the construction project by November 13, 2018, weather permitting and timely
utility work completion.
W IPW Eng \ PROJECTS \A- RW & RS Projects142nd Ave S Phase III (99410303 94-RS03)\Construc6onW.050 - Budget & Funding Docs Info Memo for CO #3 070618.docx
3
4
The table below shows the project budget and expenditures, including CO No. 3:
CH2M Hill Design
AECOM Original CM & Sup #1
CH2M Hill Supplemental No. 7 & 8
AKANA Consultant Contracts
Widener & WSDOT JA 9753
Active Construction Contract 17-090
Active Change Order Nos. 1 & 2 SWM
Active Construction CO No. 3 w/ sales tax
Total
Grand Total
Cost Overrun
Design
1,563,995
CM
$1,768,424
79,272
79,450
18,000
Construction Budget
$1,611,000
1,222,000
$6,599,266 6,933,000
916,864 1,000,000
2,741,136 1,008,000
$1.563.995 $1,945,146 $10,257.266
$13.766.407 $11,774,000
$ 1,992.407
To pay for the $1,992,407 cost overrun, staff is proposing the following funding sources:
104 Fund - South 144th Street Phase 2 Project Surplus $ 230,000
104 Fund - 2018 Overlay & Repair Surplus 40,000
A Budget Amendment from Utilities 474,961
A Budget Amendment from 412 Surface Water Fund 1,247,446
$1.992.407
Total
RECOMMENDATION
Council is being asked to approve CO No. 3 to Contract No. 17-090 with ACI in the amount of $2,428,504.03 for the
42nd Ave S Phase III and Gilliam Creek Culvert Replacement Projects and consider this item on the Agenda at the July
16, 2018 Regular Meeting.
Attachment: Change Order No.3
WSPW Eng \ PROJECTS \A. RW & RS Projectsl42nd Ave S Phase III 09410303 94-RS03)\ConstrucbonW.050 • Budget & funding Docs Info Memo for CO #3 070618.docx
DATE:
CITY OF TUKWILA
CONTRACT CHANGE ORDER NO. 3
June 21, 2018 BUDGET NOs.: 103.98.595.300.65.00
412.98.594.382.65.00
PROJECT NO.: 99410303 CONTRACT NO.: 17-090
PROJECT NAME: 40th - 42nd Avenue South Phase III Project
TO: Active Construction, Inc.
You are hereby directed to make the herein described changes to the plans and specifications or do the following described work not
included in the plans and specifications on this contract:
NOTE: This change order is not effective until approved by the "Owner" and a notice to proceed is issued.
Conditions:
A. The following change, and work affected thereby, are subject to all contract stipulations and covenants;
B. The rights of the "Owner" are not prejudiced;
C. All claims against the "Owner" which are incidental to or as a consequence of this change are waived; and
D. The Contractor must submit all Field Overhead and Home Office Overhead Rates for approval in advance of all change orders.
CHANGE:
See Attached Exhibit "A," incorporated herein by this reference.
We the undersigned Contractor, have given careful consideration to the change proposed and hereby agree, if this proposal is
approved, that we will provide all equipment, furnish all materials, except as may otherwise be noted above, and perform all services
necessary for the work above specified, and will accept the prices shown above and below as full payment for .
ACCEPTED: Date (1 Z2 /20 8 Contractor: Active Construction, Inc.
By l 'FG— BM-AE.0
Original Contract (without tax)
Previous Change Order
This Change Order (without tax)
REV. CONTRACT AMOUNT
$6,599,266.04
$ 916,863.94
$2,428,504.03 (to be finalized)
$9,944,634.01 (to be finalized)
Previous Contract Time: 200 Working Days
Additional Contract Time for this Change Order: 121 Working Days
Updated Contract Time: 321 Working Days
Title !'Rx cr- .--A•tarTid
APPROVED BY THE CITY OF TUKWILA
Date
By
Mayor
City Engineer
ORIGINAL:
City Clerk (1 of 2)
Contractor (2 of 2)
PW Project Finance File
cc: Finance Department (w/encumbrance)
Project Management File
5
6
40th — 42nd Avenue South Phase III Project
Contract Change Order No. 3
EXHIBIT A
DESCRIPTION OF WORK
Due to numerous challenges with the project and unexpected condition changes in the field, assessing, quantifying and determining the
necessary and applicable contract changes has become a difficult task for both the City and the Contractor (ACI).
In the spirit of cooperation and in order to move the project forward in the most expeditious and financially responsible manner, the City
and ACI have mutually agreed to work collaboratively to complete the project by or before November 13, 2018. The City agrees to
compensate the contractor for the actual cost of construction, plus an additional 14% markup on such actual cost to compensate ACT's
general and administrative overhead cost, and profit.
The actual cost of this 40th — 42nd Avenue South Phase 3 Project refers to all the direct expenditures spent by the Contractor on this
particular construction project, including the mobilization/field overhead cost. However, if the expenditure was caused by ACI's own
negligence or error, such expenditure will not be counted as part of the actual costs to be paid by the City, and ACI will remain fully
responsible for such expenditures. As for all the subcontracts among ACI and it's subcontractors, this Change Order (CO) #3 will not
apply to any subcontracts executed prior to the execution of this CO #3, and all the corresponding Bid Items paying for these
subcontracts. The City will just pay for these subcontract costs and an additional 14% markup. As a result, the existing payment
mechanism among ACI and it's current subcontractors will be preserved. After the execution of CO #3, all new subcontracts among
ACI and it's future subcontractors will be subjected to the same 14% mark-up as the subcontractors' direct costs.
ACI's actual cost for this 40th — 42nd Avenue South Phase 3 Project will be subject to a detailed review monthly before the issuance of
the monthly pay estimate for such work, and before the issuance of the final payment by the City. At the option of the City, the actual
cost reviews and verifications may be conducted by a Certified Public Accountant or other City of Tukwila designated representatives.
The current projected total cost for ACI to complete this 40th — 42°d Avenue South Phase 3 Project is $8,723,363.17, per the enclosed
projected cost breakdown provided by ACI. Adding 14% to the projected cost of $8,723,363.17, it would result in $9,944,634.01 as the
final cost.
The enclosed project schedule shows that the construction project is to be physically completed by November 13, 2018, or before. The
parties agree that after the execution of this CO #3, the City's CM team will have the option of determining the means and methods of
ACI in constructing this project.
The execution of this CO #3 supercedes the previous COs #1 and #2 on the payment and bid item parts, but the scope issues and
Contract time increase will remain in effect. This CO #3 also supercedes all other applicable Contract terms and conditions of the 40th —
42°d Avenue South Phase 3 Project.
The parties agree that mutual execution of this CO #3 resolves any and all outstanding disputes between the parties relating to the
Project, including any claims for prior delays, and ACI and the City hereby release each other from any such claims. Both the City and
ACI agree not to pursue legal action against each others if both parties strictly abide by the terms of this CO #3. The parties agree to
continue to discuss and negotiate when necessary, in order to resolve any additional Contract disputes that arise after the execution of
this CO #3.
The City looks forward to continuing to work with ACI to complete this important project.
CONTRACT TIME
Currently,
• with Contract time of 200 working days after the execution of CO #2;
• suspension of work from November 18, 2017 to March 6, 2018, per the Project Specifications, Special Provisions, Section 1-
08.6,
Page 2 of 3
• and 5 weather days in working day accounted for as of the execution of this CO #3;
the Contract is scheduled to be completed by August 27, 2018. However, the suspension of work never actually occurred. Thus, an
addition of 67 working days is needed to cover for the time between November 18, 2017 to March 6, 2018. By extending the project
completion date to November 13, 2018, the Contract time will need to be increased by 121 working days total.
As part of this CO #3, the parties agree that the Contract time will not be extended further, even with the utility cutover work anticipated
to be started in July 2018, with the exception of
• weather related delays;
• further unanticipated delays caused by third party utilities beyond the 74 working days of utility cut over time from July 11, 2018
to October 23, 2018;
• delays encountered that are out of the control of the Contractor or the City;
• and unanticipated changes to the work where extension of Contract time would otherwise be determined in accordance with
Section 1-08 of the WSDOT Standard Specifications, 2016 version.
Any determination made which authorizes additional Contract time will be performed on the project completion schedule provided in this
CO.
Page 3 of 3
7
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CoUNCLE AGENDA SY OPSIS
Initials
r'Pleetinc Date
Prepared by
Mayor's review
Coanci/review
07/09/18
DCS
lease the Tukwila
'}
07/16/18
DCS
7/9/18
Motion
Date 7/16/18
❑ Ordinanc•e
tldtg Date
■ Public.Hearing ❑ Other
CATEGORY ►1 Discussion
AI
• Resolution
• Bid /ward
Mtg Date
kits
ITEM INFORMATION
ITEM No.
3B
STAFF SPONSOR: DEREK SPECK ORIGINAL AGENDA D;DE: 7/9/18
AGENDA ITEM TITLE
Authorization
to
lease the Tukwila
Village plaza
and commons
7/9/18
Motion
Date 7/16/18
❑ Ordinanc•e
tldtg Date
■ Public.Hearing ❑ Other
CATEGORY ►1 Discussion
AI
• Resolution
• Bid /ward
Mtg Date
kits
Mtg Date
Mtg Date
Mtg Date (Il1tg Date
SPONSOR • Council 114ayor HR DCD ❑Finance RFire ❑TS •Pe''R LJPolice •PlV Court
SPONSOR'S The Council is being asked to authorize the Mayor to sign a lease for the Tukwila Village
SLTMn'IARY plaza and commons as provided by the Lease Option Agreement.
REVIEWED BY ❑ C.O.W. Mtg.
n Trans &Infrastructure
DATE: 06/26/18
►1
CDN Comm n Finance
Comm.
Comm.
CHAIR: KRULLER
Public Safety Comm.
•
Arts Comm.III Parks
Planning Comm.
COMMITTEE
RECOMMENDATIONS:
SPONSOR/ADMIN.
CommurThL
Mayor's Office
Unanimous Approval; Forward to Committee of the Whole
COST IMPACT I FUND SOURCE
EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED
$ $
Fund Source:
Comments:
1 MTG. DATE
RECORD OF COUNCIL ACTION
7/9/18
7/16/18
MTG. DATE
ATTACHMENTS
7/9/18
Informational Memorandum dated 6/19/18
Lease Option Agreement with amendments (City Contract 17-132)
Summary of Key Expenditures in the Lease Option Agreement
Minutes from the CDN meeting of 6/26/18
7/16/18
13
14
City of Tukwila
Allan Ekberg, Mayor
INFORMATIONAL MEMORANDUM
TO: Community Development and Neighborhoods
FROM: Derek Speck, Economic Development Administrator
CC: Mayor Ekberg
DATE: June 19, 2018
SUBJECT: Tukwila Village Plaza Lease Option
ISSUE
Staff is seeking Council authorization for the Mayor to exercise a lease option for the Tukwila
Village commons and plaza.
BACKGROUND
In 2012 the City and Tukwila Village Development Associates (developer) approved a
Disposition and Development Agreement (DDA) that provided guidance for the development of
Tukwila Village. Section 2.8 (F) of the DDA addresses the management and operation of the
plaza and commons (community room and community kitchen). It provides that the developer,
in cooperation with the City, shall form an independent, community based non-profit
organization (community organization) that will, through a lease agreement, manage, operate
maintain, and promote the use of the plaza and commons. It further indicates the developer and
City shall agree upon a plan for the formation of the community organization including its initial
mission, articles of incorporation, bylaws, composition of board and officer positions, and board
member selection. The governing board of the community organization shall represent the
interest of both the community at large and the private owners and tenants of Tukwila Village.
Section 2.8 (G) of the DDA provided the basic terms for negotiating a long-term lease between
the developer and community organization.
In July 2017 the City and developer closed escrow on the sale of the land for the first phase of
Tukwila Village. At that time the community organization had not been formed and therefore it
could not sign a lease. Staff determined the best way we could ensure the community
organization would have a future opportunity to lease the plaza and commons would be for the
City to sign an option to lease which it could then assign to the community organization at a
later time. Therefore the City and developer signed a Lease Option Agreement that gave the
City the right to lease the plaza and commons or assign those rights to the community
organization. The City and developer have been working to form the community organization
but, due to other priorities, the work is still in progress. The Lease Option Agreement has been
amended twice to extend its expiration and it now expires on July 31, 2018.
DISCUSSION
Staff is asking the Council to authorize the Mayor to sign a lease as provided under the Lease
Option Agreement. It is important to note that staff does not intend for the City to sign the lease.
15
INFORMATIONAL MEMO
Page 2
The City and developer have a good relationship and have made progress on forming the
community organization and staff still intends for the City to assign its lease option to the
community organization. However, having the Council's authorization to sign the lease puts the
City in a stronger negotiating position in case the City and developer are unable to reach
agreement on the formation of the community organization. This extra protection becomes
more important as we get closer to the expiration date of the City's lease option since it can take
up to six weeks to get Council approval.
If the City executes the lease, it would have responsibility for managing the plaza and commons
per the terms in the lease. At such time that the City and developer reach mutual agreement
and complete the formation of the community organization, the City can then assign the lease to
the community organization.
FINANCIAL IMPACT
If the City executes the lease for the plaza and commons, it would incur some expenses, mainly
staffing, utilities and cleaning. Rent would be only $1 per year. The expenses are low for a
facility of this quality because the deal terms have been created to ensure the community
organization will be successful. A summary of the key expenditures in the Lease Option
Agreement is attached. The City or community organization could also earn revenue by renting
out the facility. The City could probably operate the facility in a manner in which the revenues
exceed the costs. This financial impact and/or benefit would occur until the City assigns the
lease to the community organization.
RECOMMENDATION
The Council is being asked to authorize the Mayor to sign a lease for the Tukwila Village plaza
and commons as provided in the Lease Option Agreement and consider this item at the July 9,
2018 Committee of the Whole meeting and the subsequent July 16, 2018 Regular Meeting's
consent agenda.
ATTACHMENTS
1. Lease Option Agreement (City contract 17-132)
2. Summary of Key Expenditures in the Lease Option Agreement
16
17-132
Council Approval N/A
Reference 12-129
LEASE OPTION AGREEMEN
C-rke .CmyvykosA no9 P
THIS LEASE OPTION AGREEMENT is made as of this 196 day of July, 2017, by and
between TUKWILA VILLAGE DEVELOPMENT ASSOCIATES, LLC, a Washington limited
liability company, ("TVDA"), and the CITY OF TUKWILA, a municipal corporation operating
under the laws of the State of Washington as a non -charter code city ("Tukwila").
Recitals
Tukwila is the owner of real property legally described on Exhibit A attached (the
"Property"). Pursuant to (i) that certain Disposition and Development Agreement dated as of
October 30, 2012 entered into by and between the City of Tukwila and Tukwila Village
Development Associates, LLC, and amended by that certain First Amendment to the Disposition
and Development Agreement dated as of May 18, 2015 (as amended, the "Disposition
Agreement"), and (ii) that certain Real Estate Purchase and Sale Agreement (Tukwila Village
Phase 1) dated August 15, 2016, as amended by Addendum #1 dated January 30, 2017 and by
Addendum #2 dated June 12, 2017 (as amended, the "Purchase Agreement"), Tukwila has
agreed to convey the Property to TDVA. As a condition to the closing of the purchase and sale
of the Property in accordance with the Disposition Agreement and the Purchase Agreement,
TVDA has agreed to grant Tukwila an option to lease a portion of the Property as provided
herein.
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt the receipt and
sufficiency of which are acknowledged, TVDA and Tukwila agree as follows:
I. Grant of Option. TVDA hereby grants Tukwila an option (the "Option") to lease a
portion of the Property (defined as the "Premises" in the form of Lease attached hereto as
Exhibit B), for the term and upon all of the terms and conditions as provided in the form
of Lease attached hereto as Exhibit B (the "Lease").
2. Term of Option. The Option granted to Tukwila herein shall commence on the date
hereof and shall expire on February 15, 2018 ("Termination Date").
3. Exercise of Option. Tukwila may exercise this Option by giving written notice to
TVDA by the Termination Date. If Tukwila does not give such written notice by the
Termination Date, this Option shall terminate.
4. Execution of Lease. If Tukwila or a Permitted Assignee exercises the Option by giving
written notice to TVDA by the Termination Date, TVDA and Tukwila or a Permitted
Assignee shall each cause the Lease in the form attached as Exhibit B to be fully
executed, acknowledged and delivered within ten (10) days thereafter.
5. Operations Prior to Commencement Date. Between the closing date under the
Purchase Agreement and the Commencement Date under the Lease, TVDA shall operate
the Property in a commercially reasonable manner and in accordance with Section 2.8A.
17
of the Disposition Agreement and the Statements of Purpose and Design for the Property
subsequently attached to and incorporated by reference into the Disposition Agreement as
Exhibit N and Exhibit 0 thereto, respectively, and shall not default in any of its
obligations under any other agreement affecting the Property.
6. Notices. All notices required or permitted hereunder shall be in writing and shall be
given as follows:
If to TVDA:
If to Tukwila:
Tukwila Village Development Associates, LLC
c/o Pacific Northern Construction Company, Inc.,
Manager
201 — 27th Avenue SE, Building A, Suite 300
Puyallup, WA 98374
ATTN: Bryan M. Park, Manager
Email: bryanp@housing4seniors.com
Office: (253) 231-5001
Fax: (253) 231-5010
City of Tukwila
Office of the City Clerk
6200 Southcenter Boulevard
Tukwila, WA 98188
With a copy to: Pepple Cantu Schmidt PLLC
1000 Second Avenue, Suite 2950
Seattle, Washington 98104
Attn: Jeffrey M. Hawkinson
Email: jhawkinson@a,pcslegal.com
Office: (206) 625-2302
Fax No. (206) 625-1627
Any such notices shall be (a) sent by certified mail, return receipt requested, in which
case notice shall be deemed delivered three business days after deposit, postage prepaid
in the U.S. mail, or (b) sent by a nationally recognized overnight courier, in which case
notice shall be deemed delivered one business day after deposit with such courier; or (c)
served personally, in which case notice shall be deemed given on the date of such service.
The above addresses may be changed by written notice to the other party; provided that
no notice of a change of address shall be effective until actual receipt of such notice.
7. Assignment. Tukwila may assign this Option or the Lease to a "Community
Organization" (the "Permitted Assignee") as defined in Section 2.8F. of the Disposition
Agreement and in Section 1.2 of the Lease for the purposes set forth in Section 2.8 of the
Disposition Agreement.
18
8. General Provisions. TVDA and Tukwila agree as follows:
(a)
If TVDA defaults hereunder, Tukwila may seek specific performance, damages or
rescission.
(b) This Agreement may be modified or amended only by a writing signed by TVDA
and Tukwila.
(c) This Agreement shall be binding upon and shall inure to the benefit of the
respective successors and assigns of the parties, including without limitation any
transferee of fee simple title to the Property.
(d) This Agreement shall be governed by the laws of the State of. Washington.
(e) Time is of the essence of this Agreement.
(f) In the event of any claim or dispute arising out of this Agreement, the party that
substantially prevails shall be awarded, in addition to all other relief, all legal fees
and other costs and expenses incurred in connection with such claim or dispute;
including without limitation those fees, costs, and expenses incurred with or
without suit, and in any appeal, any proceedings under any present or future
bankruptcy act or receivership, and any post judgment proceedings.
IN WITNESS WHEREOF, this Agreement is executed as of the day and year first above
written.
Tukwila:
CITY OF TUKWILA, a municipal
corporation
By: _— — -
Name: rt C61,0P eTitle: Mayor n
Date: 9-1 Cj - ( t
/5
Approved as to form:
By:
TVDA:
TUKWILA VILLAGE DEVELOPMENT
ASSOCIATES, LLC, a Washington corporation
By:
Name: ryan M. Park
Title: Manager
Date: q/i /o/7
19
EXHIBIT A
TO
LEASE OPTION AGREEMENT
LEGAL DESCRIPTION OF PROPERTY
The Property which is subject to this Agreement is situate in the County of King, State of
Washington, and legally described as follows:
Parcel C, City of Tukwila Lot Consolidation No. LI3-021, recorded under King County
Recording No. 20150428900001.
20
EXHIBIT B
TO
LEASE OPTION AGREEMENT
FORM OF LEASE
21
22
LEASE
between
TUKWILA VILLAGE ASSOCIATES (1) LIMITED PARTNERSHIP, as LANDLORD
and
CITY OF TUKWILA, as TENANT
Dated , 201_
For a portion of The Commons and Plaza at Tukwila Village
Tukwila, Washington
23
LEASE
TABLE OF CONTENTS
1. EXHIBITS, DEFINITIONS AND CONDITIONS. 4
1.1 Exhibits. 4
1.2 Definitions 4
2. PREMISES AND TERM 6
2.1 Premises and Demise. 6
2.2 Term 6
2.3 Surrender of Premises. 6
3. RENT. 6
3.1 Rent. 6
3.2 No Deduction or Offset 7
4. TITLE AND USE. 7
4.1 Title and Authority of Landlord 7
4.2 Hazardous Substances 7
4.3 Quiet Enjoyment. 7
4.4 Use of the Premises 8
4.5 Signs 8
5. ALTERATIONS. 8
5.1 ' Trade Fixtures; Alterations. 8
5.2 Structural Alterations. 8
5.3 Standard of Work 8
5.4 Liens. 9
6. TAXES, ASSESSMENTS & UTILITIES 9
6.1 Real Estate Taxes and Assessments 9
6.2 Personal Property Taxes. 9
6.3 Utilities 9
7. LANDLORD'S MAINTENANCE AND REPAIR OBLIGATIONS 9
7.1 Maintenance of Building 9
7.2 Maintenance of Plaza 10
8. TENANT'S MAINTENANCE OBLIGATIONS 10
8.1 Maintenance of Commons Premises 10
8.2 Maintenance of Plaza Premises. 10
9. INDEMNITY AND INSURANCE. 10
9.1 Indemnity By Tenant. 10
9.2 Indemnity By Landlord 10
9.3 Property Insurance. 11
9.4 Liability Insurance. II
9.5 General. I 1
9.6 Waiver of Subrogation. 12
9.7 Certificates of Insurance. 12
10. DAMAGE BY CASUALTY. 12
10.1 Repair and Restoration 12
10.2 Rental Abatement 12
Commons Lease (Tukwita Village) 071917 Page 2
24
I 1. CONDEMNATION AND GOVERNMENTAL ACTION 12
11.1 Total Taking 12
11.2 Partial Taking 13
11.3 Restoration. 13
11.4 Proceedings. 13
12. DEFAULT. 13
12.1 Tenant's Default 13
12.2 Landlord's Remedies. 14
12.3 Landlord's Defaults. 14
12.4 Tenant's Remedies 15
12.5 Other Remedies 15
13. GENERAL PROVISIONS. 15
13.1 Attorney Fees. 15
13.2 Assignment and Subletting. 15
13.3 Subordination; Recognition. 15
13.4 Estoppel Certificate 16
13.5 Sale by Landlord. 16
13.6 Trade Fixtures and Personal Property 17
13.7 Memorandum of Lease. 17
13.8 Notices. 17
13.9 Rights of Successors. 17
13.10 Holdover. 17
13.11 Interest 17
13.12 Severability. 18
13.13 Time of Essence. 18
13.14 Commercial Reasonableness. 18
1115 Amendments. 18
13.16 Entire Agreement. 18
13.17 Force Maieure. 18
13.18 Relationship of Parties. 19
13.19 No Brokerage Commission 19
13.20 Prevailing Law. 19
EXHIBIT A LEGAL DESCRIPTION OF PROPERTY 23
EXHIBIT B VISUAL DEPICTION OF PREMISES 24
EXHIBIT C MEMORANDUM OF LEASE 25
Commons Lcase (Tukwila V illagc) 071917 Page 3
25
26
LEASE
THIS LEASE is entered into as of this _ day of , 201_, between TUKWILA
VILLAGE ASSOCIATES (1) LIMITED PARTNERSHIP, a Washington limited partnership,
("Landlord") whose address 201 — 27`l' Avenue SE, Building A, Suite 300, Puyallup, WA
98374, and the CITY OF TUKWILA, a municipal corporation operating under the laws of the
State of Washington as a non -charter code city [or the "Community Organization" defined
below] ("Tenant's, whose address is 6200 Southcenter Boulevard, Tukwila, WA 98188 [or
address of the Community Organization].
1.
EXHIBITS, DEFINITIONS AND CONDITIONS.
1.1 Exhibits.
The following exhibits are attached and made a part of this Lease:
Exhibit A
Exhibit B
Exhibit C
Legal Description of the Property
Visual Depiction of Premises
Memorandum of Lease
1.2 Definitions.
The following terms used in this Lease shall have the definitions as set forth below:
"Building": means the community center building located on the Property, commonly
known as the "Commons at Tukwila Village," consisting of approximately 4,253 square feet.
"Commencement Date": The first date on which all of the following have occurred:
(a) Landlord has completed construction of the Building and the Premises in accordance with
City of Tukwila Permit No. D14-0178 and the Statement of Purpose and Design subsequently
attached as Exhibit 0 to the Disposition Agreement; (b) Landlord's architect has provided a
certificate of substantial completion to Landlord and Tenant with respect to the Building;
(c) Landlord has delivered possession of the Premises to Tenant for Tenant's exclusive use in
accordance with Section 2.8 of the Disposition Agreement and the Statement of Purpose and
Design subsequently attached as Exhibit 0 to the Disposition Agreement; (d) the City of Tukwila
has issued a certificate of occupancy for the Building; (e) Tenant has exercised the Option in
accordance with the Option Agreement dated July _, 2017 between Landlord and Tenant; and
(f) Landlord has provided Tenant with commercially reasonable SNDA(s) with respect to any
Master Lease or Mortgage in accordance with Section 13.3 of this Lease.
"Common Area": Those portions of the Building which are available for the common
use, convenience, and benefit of all tenants of the Building, and not intended for lease to anyone,
including without limitation the reception area, the restrooms, and the mechanical room as
depicted on Exhibit B.
Commons Leasc (T uk %ila Village) 071917 Page 4
27
"Commons Premises": the portion of the Building consisting of the Community Room,
the Catering Kitchen, and the Storage Room adjacent to the Community Room, as depicted on
Exhibit B.
"Community Organization": A non-profit corporation formed with the mutual approval
of Landlord and the City of Tukwila to serve the purpose and function of the "Community
Organization" under Section 2.8F. of the Disposition Agreement.
"Disposition Agreement"; Disposition Agreement shall mean that certain Disposition
and Development Agreement dated as of October 30, 2012 entered into by and between the City
of Tukwila and Tukwila Village Development Associates, LLC, and amended by that certain
First Amendment to the Disposition and Development Agreement dated as of May 18, 2015.
"Environmental Law": Any federal, state or local law, statute, ordinance, or regulation
pertaining to health, industrial hygiene, or environmental conditions, including, without
limitation, the Comprehensive Environmental Response, Compensation and Liability Act of
1980, 42 U.S.C. § 9601, et seq.; the Resource Conservation and Recovery Act of 1976, 42
U.S.C. § 6901, et seq.; the Toxic Substances Control Act of 1976, 15 U.S.C. § 2601, et seq.; the
Superfund Amendments and Reauthorization Act of 1986, Title III, 42 U.S.C. § 1101, et seq.; the
Clean Air Act, 41 U.S.C. § 740I, et seq.; the Federal Water Pollution Control Act, 33 U.S.C.
§ 1251, et seq.; The Safe Drinking Water Act, 41 U.S.C. § 300f, et seq.; the Solid Waste
Disposal Act, 42 U.S.C. § 3251, et seq.; and any other federal, state or local law, statute,
ordinance, or regulation now in effect or hereinafter enacted which pertains to health, industrial
hygiene, or the regulation or protection of the environment, including without limitation, ambient
air, soil, groundwater, surface water, or land use.
"Hazardous Substances": Any material, waste, substance, pollutant, or contaminant
which may or could pose a risk of injury or threat to health or the environment, including,
without limitation: (i) those substances included within the definitions of "hazardous substance",
"hazardous waste", "hazardous material", "toxic substance", "solid waste", or "pollutant or
contaminant" in or otherwise regulated by, any Environmental Law; (ii) those substances listed
in the United States Department of Transportation Hazardous Materials Table (49 C.F.R. 17.10I,
including appendices and amendments thereto), or by the Environmental Protection Agency (or
any successor agency) as hazardous substances (40 C.F.R. Part 302 and amendments thereto);
(iii) such other substances, materials, or wastes which are or become regulated or classified as
hazardous or toxic under any Environmental Law; and (iv) any material, waste, or substance
which is (A) petroleum or refined petroleum products; (B) asbestos in any form;
(C) polychlorinated biphenyls; (D) flammable explosives; or (E) radioactive materials.
"Interest": Interest shall mean 2% per annum above the rate of interest publicly
announced by Bank of America, N.A., or its successors in interest, as its "prime rate", adjusted
simultaneously with each adjustment in such "prime rate". If Bank of America, N.A. no longer
publicly announces its "prime rate", the rate of interest designated by Citibank, N.A. or its
successors in interest as its "prime rate" shall be used.
"Lease Year": The first Lease Year shall be the period beginning on the Commencement
Date and terminating twelve (12) months from the last day of the calendar month in which the
Commons Lease (rukwila V itlaee) 071917 Page 5
28
Commencement Date occurs (except that if the Commencement Date occurs on the first day of a
calendar month, the first Lease Year shall terminate on the day prior to the first anniversary of
the Commencement Date), and in the case of each subsequent Lease Year, means each twelve
(12) month period following the first Lease Year.
"Plaza Premises": The outdoor plaza on the Property, consisting of all of the real
property Iegally described on Exhibit A except for (i) the portion on which the Building is
situated; and (ii) the outdoor cafe seating area located north of the Building, as depicted on
Exhibit B.
"Premises": the Commons Premises and the Plaza Premises, together with the non-
exclusive use of the Reception area, Restrooms, and Mechanical Room, as depicted on Exhibit
B.
"Property": The real property legally described on Exhibit A attached, the Building, all
other improvements located on the real property, and appurtenant easements and rights.
2.
PREMISES AND TERM.
2.1 Premises and Demise.
Landlord leases the Premises to Tenant, and Tenant leases the Premises from Landlord, subject
to the terms and conditions of this Lease.
2.2 Term.
The term ("Term") of this Lease shall commence on the Commencement Date, and shall
terminate at 11:59 P.M. on the last day of the month which is forty (40) Lease Years after the
Commencement Date.
2.3 Surrender of Premises.
Upon expiration or earlier termination of this Lease, Tenant shall surrender possession of the
Premises to Landlord in good condition, as modified by any repairs, alterations or improvements
made by Tenant in accordance with this Lease, subject to ordinary wear and tear, and subject to
the provisions of Article 10 and Article 1 I .
3.
RENT.
3.1 Rent.
Beginning on the Commencement Date, Tenant agrees to pay annual rent ("Rent") of One Dollar
($1.00) for each Lease Year of the Term. The annual Rent for each Lease Year of the Term shall
be payable in advance on the first day of each Lease Year.
Commons Lease (Tukwila Village) 071917 Page 6
29
3.2 No Deduction or Offset.
All Rent due under this Lease shall be paid without deduction or withholding, and except as
specifically provided in this Lease, without offset.
4.
TITLE AND USE.
4.1 Title and Authority of Landlord.
Landlord represents and warrants to Tenant as follows, which representations and warranties
shall be true on the date hereof and on the Commencement Date: (a) Landlord is a limited
partnership duly organized and validly existing under the laws of the State of Washington, and is
duly authorized to conduct its business in the State of Washington; (b) Landlord has fee simple
title to the Premises and has all the requisite right, power, title and authority to enter into this
Lease and to perform its obligations hereunder; and (c) no consent or approval of any other
person is necessary for the effectiveness of Landlord's obligations under this Lease.
4.2 Hazardous Substances.
(a) Tenant's Obligation to Comply with Law. Tenant will at all times operate its
business on the Premises in compliance with all Environmental Laws. Tenant will immediately
notify Landlord if Tenant becomes aware of (i) any actual or alleged violation of any
Environmental Laws on the Premises or (ii) any actual or alleged violation of any Environmental
Laws on other properties resulting from activities on or contamination of the Premises.
(b) Tenant's Indemnity for Contamination Caused by Tenant. Tenant will hold
harmless, protect, indemnify and defend Landlord from and against any claims, demands,
penalties, fees, liens, damages, losses, expenses, or liabilities (including the cost of investigation,
clean-up and alt legal fees and costs), incurred by Landlord as a result of the presence or release
of any Hazardous Substance on the Premises (i) resulting from Tenant's use of the Property or
(ii) caused by Tenant, its employees, agents or contractors. This indemnity shall survive
termination of this Lease.
(c) Landlord's Indemnity. Landlord will hold harmless, protect, indemnify and
defend Tenant from and against any claims, demands, penalties, fees, liens, damages, losses,
expenses, or liabilities (including the cost of investigation, clean-up and all legal fees and costs),
incurred by Tenant as a result of (i) the presence or release of any Hazardous Substance on the
Premises which existed prior to the Commencement Date, or (ii) the presence or release of any
Hazardous Substance on the Premises or any adjoining property to the extent caused by
Landlord, its employees, agents or contractors. This indemnity shall survive termination of this
Lease.
4.3 Quiet Enjoyment.
Landlord warrants that Tenant shall have quiet enjoyment of the Premises and all of the rights
granted hereunder without interference by Landlord, anyone acting by, through or under
Landlord, or anyone having title or any lien or interest paramount to Landlord.
Commons Lease (Tukwila Village) 071917 Pap 7
30
4.4 Use of the Premises.
The Premises shall be used for the purposes set forth in the Statements of Purpose and Design
subsequently attached as Exhibit N and Exhibit 0, respectively to the Disposition Agreement and
in accordance with Section 2.8A. of the Disposition Agreement, and for such community, civic
and recreational purposes, and ancillary uses, consistent with the foregoing. Tenant shall comply
with all governmental rules and regulations (including, without limit, all Environmental Laws)
applicable to the conduct of its business in the Premises or applicable to its use or occupancy of
the Premises.
4.5 Signs.
Tenant may at its own expense erect, illuminate, and maintain such illuminated and non -
illuminated signs on the Premises, provided that such signs are reasonable approved by Landlord
and conform with all applicable regulations and building and sign codes of the applicable public
authority. Landlord will, at no cost to Landlord, cooperate with Tenant's applications for sign
permits and will do nothing to impair or impede such applications. At the termination of this
Lease, all signs, symbols and advertising matter attached to the Premises, whether the exterior or
interior thereof, shall be promptly removed by Tenant at its own expense, and any damage or
injury to the Premises caused thereby shall be promptly repaired by Tenant.
5.
ALTERATIONS.
5.1 Trade Fixtures; Alterations.
Tenant, at its sole cost and expense, without need for Landlord's approval, may make such non-
structural repairs, alterations, and improvements to the Premises as Tenant deems desirable in its
sole discretion. Tenant may install necessary trade fixtures, equipment and furniture in the
Premises, provided that such items are installed and are removable without structural or material
damage to the Building.
5.2 Structural Alterations.
Tenant shall not construct, nor allow to be constructed, any structural alterations or additions in.
about or to the Premises or Building without obtaining the prior written consent of Landlord,
which consent may be conditioned upon Tenant's compliance with Landlord's reasonable
requirements regarding construction of improvements and alterations but such consent otherwise
shall not be unreasonably withheld, conditioned or delayed.
5.3 Standard of Work.
All work to be performed by or for Tenant pursuant hereto shall be performed in a good and
workmanlike manner, and in compliance with all applicable laws, ordinances, regulations and
rules of any public authority having jurisdiction over the Premises. Landlord shall have the
right, but not the obligation, to inspect periodically the work on the Premises.
Commons Lease (Tukwila Viflage) 071917 Page 8
31
5.4 Liens.
Tenant shall not permit any liens to be filed against the Premises for work done, materials
furnished or obligations incurred by or on behalf of Tenant. Tenant covenants and agrees that
any liens filed against the Premises for work claimed to have been done for or materials claimed
to have been furnished to, or obligations incurred by, Tenant, shall be discharged by Tenant, by
bond or otherwise, within thirty (30) days after the filing of such lien, at the sole cost and
expense of Tenant. Should Tenant fail to timely discharge any such lien, Landlord may, at
Landlord's election, pay such claim or post a bond or otherwise provide security to eliminate the
lien as a claim against title and the cost thereof shall be immediately due from Tenant.
6.
TAXES, ASSESSMENTS & UTILITIES.
6.1 Real Estate Taxes and Assessments.
Landlord shall be responsible to pay, prior to delinquency, all real estate taxes and assessments
levied upon the Building or Property, including all assessments for Common Expenses under the
Declaration of Covenants, Conditions, Restrictions and Easements for Tukwila Village.
Landlord acknowledges that Tenant is not responsible for payment of any portion of the real
estate taxes or assessments levied upon the Premises, Building or Property.
6.2 Personal Property Taxes.
Tenant shall pay prior to delinquency all personal property taxes assessed during the term of this
Lease upon Tenant's fixtures, furnishings, and equipment or upon any other personal property of
Tenant situated in or upon the Premises.
6.3 Utilities.
Landlord `shall separately meter electricity, water/sewer and gas to the Commons Premises.
Tenant agrees to pay for, when due, all water, sewer, heat, gas, electricity, garbage collection and
all other utility services consumed or used at the Commons Premises during the Term of this
Lease. Nothing contained herein shall be deemed to render Tenant liable for any charges
incurred after the termination or expiration of this Lease, all such charges being solely for the
account of Landlord. Landlord agrees to pay for, when due, all water, electricity and other utility
services for the Plaza Premises.
7.
LANDLORD'S MAINTENANCE AND REPAIR OBLIGATIONS
7.1 Maintenance of Building.
Except for Tenant's obligations under Section 8, Landlord agrees, at its own expense, to operate
and maintain all aspects of the Building and the Plaza in good order, condition and repair,
including without limitation making all necessary repairs and replacements to: (a) the interior of
the Building, including interior walls and floor coverings; (b) the exterior of the Building,
including exterior doors, exterior windows and door glass; (c) all structural portions of the
Commons Lease (Tukwila Village) 071917 Page 9
32
Building, including foundation and all load bearing walls; (d) the roof of the Building, including
the roof membrane, structure, parapets, flashings, copings, and roof drains; and (e) all heating,
ventilation, air conditioning, electrical, plumbing and life safety systems serving the Building.
7.2 Maintenance of Plaza.
Except for Tenant's obligations under Section 8, Landlord agrees, at its own expense, to
maintain the Plaza in good order, condition and repair, including without limitation: (a) remove
snow and ice and apply salt as necessary; (b) maintain, repair and replace grass, landscaping,
plantings, trees and shrubs within the Plaza in an attractive and healthy condition, trimmed and
weed -free; (c) maintain, repair and replace irrigation systems within the Plaza; (d) operate, keep
in repair and replace all Plaza lighting facilities, including light standards, wires, conduits, lamps,
bulbs, ballasts and lenses, time clocks and circuit breakers; and (e) operate, keep in repair and
replace all Plaza art, fountains and water features.
8.
TENANT'S MAINTENANCE OBLIGATIONS.
8.1 Maintenance of Commons Premises.
Tenant, at its sole expense, shall be responsible for keeping the Commons Premises in a neat,
clean and orderly condition, including sweeping or vacuuming the Commons Premises and the
removal of all papers, debris, filth, and refuse.
8.2 Maintenance of Plaza Premises.
In connection with any events or gatherings organized or permitted by Tenant on the Plaza
Premises, Tenant, at its sole expense, shall be responsible to clean and restore the Plaza Premises
to a neat, clean and orderly condition, including the removal of all papers, debris, filth, and
refuse.
9.
INDEMNITY AND INSURANCE.
9.1 Indemnity By Tenant.
During the Term of this Lease, Tenant agrees to hold harmless, protect, indemnify and defend
Landlord from all demands, claims, damages, causes of action or judgments, and all reasonable
expenses incurred in investigating and defending the same (including reasonable attorney fees
and costs) for injury to person or property occurring to or on or about the Premises or Property
and arising out of the negligence or willful misconduct of Tenant or its agents, employees or
contractors, except to the extent caused by the negligence or willful misconduct of Landlord or
its agents, employees or contractors.
9.2 Indemnity By Landlord.
During the Term of this Lease, Landlord agrees to hold harmless, protect, indemnify and defend
Tenant from all demands, claims, damages, causes of action or judgments, and all reasonable
Commons Lease (7ukuila Village) 071917 Pay 10
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expenses incurred in investigating and defending the same (including reasonable attorney fees
and costs) for injury to person or property occurring to or on or about the Premises or Property
and arising out of the negligence or willful misconduct of Landlord or its agents, employees or
contractors, except to the extent caused by the negligence or willful misconduct of Tenant or its
agents, employees or contractors.
9.3 Property Insurance.
During Term of this Lease, Landlord shall maintain in full force and effect, at its sole cost and
expense, one or more policies of "Special Form" casualty insurance, insuring the Building and
Plaza against loss or damage for the full replacement cost of the Building and Plaza.
9.4 Liability Insurance.
(a) During the Term of this Lease, Landlord shall keep in full force and effect, at its
sole cost and expense, a policy or policies of liability insurance for property damage and bodily
injury, with minimum coverage amounts of $2,000,000 per occurrence within or about the
Building or Plaza, and in an aggregate coverage amount of not less than $5,000,000 which
amount may be achieved through the use of umbrella liability insurance. Each such policy shall
name Tenant as an additional insured.
(b) During the Term of this Lease, Tenant shall keep in full force and effect, at its
sole cost and expense, a policy or policies of liability insurance for property damage and bodily
injury, with minimum coverage amounts of $1,000,000 per occurrence within or about the
Premises, and in an aggregate coverage amount of not less than $2,000,000 which amount may
be achieved through the use of umbrella liability insurance. Each such policy shall name
Landlord as an additional insured.
9.5 General.
Landlord shall provide to Tenant certificates of insurance promptly upon the request of Landlord.
All policies of insurance required under shall; (a) be written as primary policies not contributing
with and not in excess of coverage that Tenant may carry; (b) contain an endorsement providing
that such insurance may not be cancelled with respect to Tenant except after 30 days' prior
written notice from insurance company to Tenant (10 days for nonpayment of premium); and
(c) be written by insurance companies having a A.M. Best's rating of "A- VII" or better.
Commons Lase (Tukwila Village1071917 Page 11
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9.6 Waiver of Subrogation.
Landlord and Tenant hereby release each other from any and all liability or responsibility (to the
other or anyone claiming through or under the other by way of subrogation or otherwise) for any
loss or damage to real or personal property on the Premises or Property caused by fire or any
other insured peril, even if such fire or other casualty shall have been caused by the fault or
negligence of the other party or anyone for whom such party may be responsible. All insurance
policies procured by Landlord or and Tenant that relate to the Premises shall include a waiver of
subrogation and a clause or endorsement to the effect that the foregoing release shall not
adversely affect or impair such policies or prejudice the right of the releaser to recover
thereunder.
9.7 Certificates of Insurance.
Certificates issued by an authorized representative of the insurance carrier for each policy of
insurance required to be maintained by Landlord hereunder shall be delivered to Tenant before
the Commencement Date, and thereafter at least ten (10) days prior to the expiration of the term
of each such policy.
10.
DAMAGE BY CASUALTY.
10.1 Repair and Restoration.
During the Term of this Lease, if the Building is damaged or destroyed by fire or other insured
casualty, subject to availability of sufficient insurance proceeds, Landlord shall promptly rebuild
and restore the Building to its pre-existing condition unless it is mutually agreed in writing
between Landlord and Tenant that the Building will not be rebuilt.
10.2 Rental Abatement.
In the event of damage or destruction to the Building, Tenant's obligation to pay Rent shall
entirely abate from the date of such damage or destruction until the damage or destruction has
been repaired or restored.
11.
CONDEMNATION AND GOVERNMENTAL ACTION.
11.1 Total Taking.
In the event of a total taking of the Premises by condemnation or eminent domain or under the
threat thereof ("Total Taking"), this Lease shall automatically terminate as of the date of any
final condemnation judgment or as of the date possession is taken by the condemning authority,
whichever is earlier, and Tenant shall be released from any liability arising thereafter under this
Lease except for any payments due Landlord by Tenant arising prior to the date of termination
set forth above.
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11.2 Partial Taking.
If any portion of the Premises is taken by condemnation or eminent domain or under the threat
thereof ("Partial Taking"), and such Partial Taking in Tenant's sole judgment, renders the
Premises unsuitable for Tenant's business operations, then Tenant may terminate this Lease by
written notice to Landlord given no more than thirty (30) days following the earlier of (i) the date
of any final condemnation judgment, or (ii) the date possession is taken by the condemning
authority (such earlier date, the "Taking Date"). In the event of such termination, Tenant shall
be released from any liability arising thereafter under this Lease except for any payments due
Landlord by Tenant arising prior to the Taking Date.
11.3 Restoration.
If this Lease is not so terminated upon condemnation or eminent domain, Landlord shall
promptly restore the Premises to a unit architecturally and functionally comparable to the unit
existing just prior to such taking or damage, and this Lease shall continue.
11.4 Proceedings.
Nothing contained herein shall prevent Landlord and Tenant from prosecuting claims in any
condemnation proceedings for the value of their respective interests. Tenant reserves all rights to
an award for a taking of the Building to the extent of the investment in the Building by Tenant
and/or Tenant's affiliates, and Landlord reserves all rights to an award for a taking of the real
property. Tenant reserves all rights to receive compensation for the value of improvements,
trade fixtures and personal property in the Premises and any award for Tenant's interruption of
business and moving expenses shall be the property of Tenant. Neither Landlord nor Tenant
shall have the right to claim any portion of the condemnation award separately allocated to the
other party.
12.
DEFAULT.
12.1 Tenant's Default.
Any one or more of the following is an "Event of Default" by Tenant:
(a) Tenant fails to make any payment of Rent when due, and such failure is not cured
within ten (10) calendar days after Landlord's notice to Tenant. The notice shall specify the
amounts past due.
(b) Tenant fails to observe or perform any other covenant, condition or provision of
this Lease (other than the payment of Rent) to be observed or performed by Tenant, and such
failure is not cured within thirty (30) calendar days after Landlord's notice to Tenant. The notice
shall specify the covenant, condition or provision of this Lease that Tenant has failed to observe.
However, if Tenant's default is such that more than thirty (30) calendar days are reasonably
required for its cure, then Tenant shall not be deemed to be in default if Tenant commences such
cure within said thirty (30) calendar day period and thereafter diligently prosecutes such cure to
completion.
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(c) A petition to have Tenant adjudged a bankrupt, or a petition for reorganization or
arrangement under any law relating to bankruptcy is filed against Tenant (unless, in the case of a
petition filed against Tenant, it is dismissed within sixty calendar days of filing), or a trustee or
receiver is appointed to take possession of substantially all of Tenant's assets located on the
Premises or of Tenant's interest in this Lease, and such possession is not released in thirty (30)
calendar days after appointment of said trustee or receiver, or the filing of the petition for the
appointment of the same, whichever occurs first.
12.2 Landlord's Remedies.
Upon the occurrence of an Event of Default by Tenant, Landlord may thereafter exercise any
right and obtain any remedy available to it at law or in equity including, without limit, the
following remedies:
(a) Terminate the Lease and Tenant's right to possession of the Premises by any
lawful means and upon such notice as may be required hereunder and by law, in which case this
Lease shall terminate and Tenant shall surrender possession of the Premises to Landlord.
OR
(b) Upon written notice to Tenant, continue the Lease in effect whether or not Tenant
shall have abandoned the Premises. In such event Landlord shall be entitled to enforce all
Landlord's rights and remedies under this Lease, including the right to recover Rent as it
becomes due. In such event, Landlord shall use reasonable diligence to relet the Premises. Any
rental or other amounts realized by Landlord from such reletting, after deducting all expenses
incurred by Landlord to put the Premises in tenantable condition and to obtain a new tenant shall
be applied against amounts due from Tenant hereunder.
12.3 Landlord's Defaults.
It is an "Event of Default" by Landlord if (a) there is a breach of any covenant or warranty of
Landlord, or (b) Landlord fails to perform its obligations under this Lease, and in either such
event, such breach or failure is not cured within thirty (30) calendar days after Tenant's notice to
Landlord and, if Tenant has agreed in writing to attorn to a first lienholder on the Premises,
Tenant's notice to such first lienholder. The notice shall specify Landlord's breach or failure to
perform such obligation. If the nature of Landlord's breach or obligation is such that more than
thirty (30) calendar days are required for cure or performance, then Landlord shall not be in
default if it commences performance to cure within said thirty (30) calendar day period and
thereafter diligently prosecutes the same to completion. Any Mortgagee or any Master Lessee
whose contact information has been provided to Tenant in writing shall be afforded the same
opportunity to cure Landlord's defaults as is given Landlord hereunder. For so long as the
Landlord is Tukwila Village Associates (1) Limited Partnership, the following entity shall be
entitled to notice of default and shall have the same cure rights as provided to Landlord:
U.S. Bancorp Community Development Corporation, its successors and assigns
c/o U.S Bank Community Development Corporation
ATTENTION: Director of LIHTC Asset Management
Commons I.case(Tukwila Vinaee)071917 Paee 14
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1307 Washington Avenue, Suite 300
St. Louis, MO 63103
12.4 Tenant's Remedies.
Upon the occurrence of an Event of Default by Landlord, then at the option of Tenant and
without limiting any other available legal or equitable remedy, Tenant may terminate this Lease.
Upon any Event of Default by Landlord, Tenant shall have the right, but not the obligation, to
incur any cost or make any expenditure reasonably necessary to remedy Landlord's default, in
which case Landlord shall reimburse Tenant for any expenditure made or cost incurred and
Tenant shall have the right to withhold Rent. lf, as the result of Landlord's default or failure to
perform, immediate action is necessary to avoid potential injury to Tenant's customers or
employees or actual injury to Tenant's business or property, Tenant may, but shall not be
required, to take such action immediately and withhold Rent or seek recovery from Landlord.
12.5 Other Remedies.
Except as provided herein, Landlord and Tenant shall have all other remedies provided by law or
statute to the same extent as if fully set forth herein. No remedy herein conferred upon or
reserved to Landlord or Tenant shall exclude any other remedy herein or by law provided,
including termination of this Lease, but each shall be cumulative.
13.
GENERAL PROVISIONS.
13.1 Attorney Fees.
If legal action is necessary to enforce or interpret this Lease, the prevailing party in such
litigation shall be entitled to be reimbursed by the other party for reasonable attorney fees,
litigation expenses, and statutory costs as awarded by the court. Such fees, costs and expenses
shall include those incurred in the enforcement and collection of any judgment, the litigation of
any right under bankruptcy law, and any appeal from any proceeding.
13.2 Assignment and Subletti g.
Tenant may assign this Lease or sublease the entirety of the Premises to a Community
Organization. If Tenant assigns this Lease to a Community Organization, Tenant shall be
released from all duties, obligations and liabilities hereunder upon the effective date of such
assignment. Landlord may, in connection with Landlord's conveyance of its fee simple title to
the Property, assign this Lease to the successor owner of the Property.
13.3 Subordination; Recognition.
If Landlord desires to place a mortgage or deed of trust on the Property ("Mortgage"), or to place
a master lease on the Property ("Master Lease"), and the holder of such Mortgage
("Mortgagee") or the lessor under such Master Lease ("Master Lessor') requires that this Lease
be subordinate thereto, Tenant, upon the written request of Landlord, agrees to execute a
commercially reasonable subordination, non -disturbance and attomment agreement ("SNDA")
Commons Lease (Tukwila vitlagc) 071917
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Pace 15
with such Mortgagee or Master Lessor, provided that the Mortgagee or Master Lessor, as
applicable, executes an agreement with Tenant, as follows: (a) that in the event of foreclosure of
such Mortgage, the Mortgagee shall not join Tenant in any foreclosure action and Tenant's
possession of the Premises shall remain undisturbed and Tenant's rights under this Lease shall be
recognized and shall not be adversely affected so long as there is no Event of Default by Tenant
hereunder; and (b) that in the event of the termination of any such Master Lease, this Lease shall
not be terminated, but shall continue as a direct Lease between the Master Lessor and Tenant,
and that Tenant's possession of the Premises shall remain undisturbed and Tenant's rights under
this Lease shall be recognized and shall not be adversely affected so long as there is no Event of
Default by Tenant hereunder; (c) that Tenant may remove Tenant's fixtures from the Premises in
accordance with the provisions of this Lease; and (d) the form is otherwise reasonably acceptable
to Tenant. In the event that, as of the date this Lease is executed, the Premises is then subject to
any Mortgage or any Master Lease, Landlord agrees to use commercially reasonable efforts to
obtain and deliver to Tenant SNDAs with such Mortgagee and/or Master Lessor, which are in
commercially reasonable form and comply with the provisions of this Section 13.3. Landlord
acknowledges that the Commencement Date will not be deemed to have occurred unless or until
such SNDAs are provided or this condition is waived by Tenant.
13.4 Estoppel Certificate.
Whenever requested in writing by Landlord, Tenant shall execute and deliver within twenty (20)
days an estoppel certificate stating: (a) the Commencement Date and the expiration date of the
Lease; (b) the amount of Rent and the date to which such Rent has been paid; (c) that this Lease
is in full force and effect and has not been assigned, modified, supplemented or amended in any
way (or specifying the date and terms of agreement so affecting this Lease); (d) that this Lease
represents the entire agreement between the parties as to this leasing; (e) that there are no
existing claims, defenses or offsets which the Tenant has against the enforcement of this Lease
by the Landlord (or specifying any existing claims, defenses or offsets); (f) that no Rent has been
paid more than one month in advance; and (g) the amount of any security which has been
deposited with Landlord.
13.5 Sale by Landlord.
If Landlord sells or otherwise transfers or assigns all or part of its interest in the Premises in a
bona fide transaction where the proposed purchaser or transferee of such interest is an unrelated
third party who shall assume Landlord's obligations under this Lease and agree that so long as
such purchaser or transferee retains any interest in the Premises such purchaser or transferee will
be bound by the provisions of the Lease, then Landlord shall be relieved of any obligation
hereunder arising after the effective date of such transfer, to the extent assumed by such
purchaser or transferee, other than any continuing Event of Default by Landlord. However the
foregoing requirements of Landlord shall not apply to any transfer of only a part of the Premises
to any municipality or other governmental or similar authority or utility supplier, including,
without limitation, for road widenings, utility easements, easements for access, grade, pipes,
poles, transformers, wires, or other like purposes. Nothing herein shall prevent the partners or
members of Landlord from selling or otherwise transferring or assigning their ownership
interests in the Landlord entity.
Commons Lease (Tukwila Village) 071917 Page 16
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13.6 Trade Fixtures and Personal Property.
Any trade fixtures, equipment and other property installed in or attached to the Premises by and
at the expense of Tenant shall remain the property of Tenant, except in any case where Tenant is
the lessee of any trade fixtures, equipment or other property,in which case the lessor of such
property shall retain title. Not later than the last day of the Term Tenant shall remove any and all
of its trade fixtures, equipment and other property which it may have stored, attached to, or
installed in the Premises; provided, however, that Tenant will repair all damage to the Premises
occasioned by such removal.
13.7 Memorandum of Lease.
On the Commencement Date, or as soon thereafter as practical, Landlord and Tenant shall each
sign a Memorandum of Lease substantially in the form attached as Exhibit C which may be
recorded by either Landlord or Tenant.
13.8 Notices.
Any notice provided for herein shall be delivered personally, by a reputable overnight courier
service or by certified United States mail, postage prepaid, addressed as set out in the opening
paragraph of this Lease. The person and the place to which notices are to be mailed may be
changed by either party by written notice to the other. For so long as the Landlord is Tukwila
Village Associates (1) Limited Partnership, a copy of any notices to Landlord shall be sent to:
U.S. Bancorp Community Development Corporation, its successors and assigns
c/o U.S Bank Community Development Corporation
ATTENTION: Director of LIHTC Asset Management
1 307 Washington Avenue, Suite 300
St. Louis, MO 63103
13.9 Rights of Successors.
All rights and obligations under this Lease shall bind, and inure to the benefit of, the parties
hereto and their successors and assigns.
13.10 Holdover.
If Tenant shalt hold over following the expiration of the Term of this Lease, such holding over
shall be deemed to be a month-to-month tenancy under the terms of this Lease and any non -
conflicting terms of this Lease shall apply to the holdover tenancy.
13.11 Interest.
Except as otherwise provided herein, any sum which remains due and owing from either
Landlord or Tenant to the other after the date on which it should have been paid in accordance
with the provisions of this Lease shall bear Interest.
Commrn,s I.casc (Fuk+Oa Villaec) 071917 Page 17
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13.12 Severability.
If any term or provision of this Lease or the application thereof to any person or circumstances
shall to any extent be invalid and unenforceable, the remainder of this Lease or the application of
such term or provision to persons or circumstances other than those as to which it is invalid or
unenforceable shall not be affected thereby, and each remaining term and provision of this Lease
shall be valid and be enforced to the extent permitted by law.
13.13 Time of Essence.
Time is of the essence. The failure of a party to insist upon a strict performance of any of the
terms, conditions and covenants herein shall not be deemed a waiver of any rights or remedies
that said party may have and shall not be deemed a waiver of any subsequent breach or default in
the terms, conditions and covenants herein contained.
13.14 Commercial Reasonableness.
Every consent or approval of either Landlord or Tenant required or contemplated under this
Lease (except those that, by their express terms, may be made in the "sole discretion" of the
party giving such consent or approval) implies a covenant of commercial reasonableness and
shall not be unreasonably withheld or delayed.
13.15 Amendments.
No provision of this Lease may be amended, waived, terminated or supplemented except by a
non -electronic writing or a facsimile document transmission, in either case bearing the hand
signature for the party against whom enforcement of the amendment, waiver, termination or.
supplement is sought.
13.16 Entire Agreement.
There is no verbal or other agreement (unless attached hereto or specifically referred to herein)
which modifies or affects this Lease. This Lease supersedes any and all prior agreements
executed by or on behalf of the parties hereto regarding the Premises.
13.17 Force Majeure.
Notwithstanding anything in this Lease to the contrary, Landlord and Tenant shall not be deemed
to be in default in respect of the performance of any term, covenant or condition of this Lease if
any failure or delay in such performance is due to any strike, lockout, civil commotion, warlike
operation, invasion, rebellion, hostilities, terrorism, military or usurped power, sabotage,
governmental regulations or controls, act of God, or other cause beyond the reasonable control of
Landlord or Tenant; provided, however, that this provision shall not excuse any obligation of
Landlord or Tenant to make any payment due to the other, including, but not limited to, Rent.
Commons Lease (Tukwila Village) X71917 Page 18
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13.18 Relationship of Parties.
Nothing contained herein shall be deemed or construed by the parties hereto, nor by any third
party, as creating the relationship of principal and agent or of partnership or of joint venture
between the parties hereto and nothing in this Lease is intended or shall be construed to benefit
anyone not a party to this Lease.
13.19 No Brokerage Commission.
Landlord and Tenant each represent and warrant to the other that, to its knowledge, no broker,
agent or finder (a) negotiated or was instrumental in negotiating or consummating this Lease on
its behalf, or (b) is or might be entitled to a commission or compensation in connection with this
Lease. Landlord shall promptly indemnify, protect, defend and hold Tenant harmless from and
against any and all claims, damages, judgments, suits, causes of action, losses, liabilities,
penalties, fines, expenses and costs (including attorneys' fees and court costs) that may be
asserted or brought by any broker, agent or finder alleging representation of or agreement with
Landlord in connection with this Lease. Tenant shall promptly indemnify, protect, defend and
hold Landlord harmless from and against any and all claims, damages, judgments, suits, causes
of action, losses, liabilities, penalties, fines, expenses and costs (including attorneys' fees and
court costs) that may be asserted or brought by any broker, agent or finder alleging
representation of or agreement with Tenant in connection with this Lease. The foregoing
indemnities shall survive the expiration or earlier termination of this Lease.
13.20 Prevailing Law.
This Lease shall be governed exclusively by the provisions hereof and by the laws of the State of
Washington as they exist from time to time.
Commons Lcasc (Tukwila Village) 071917 Pace 19
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IN WITNESS WHEREOF, Landlord and Tenant have signed this Lease as of the date first above
written.
"Landlord"
TUKWILA VILLAGE ASSOCIATES (I)
LIMITED PARTNERSHIP, a Washington limited
partnership
By: Tukwila Village Development Associates,
LLC, its Sole General Partner
By:
Name: Bryan M. Park
Title: Manager
Date:
"Tenant"
CITY OF TUKWILA, a municipal corporation
By:
Name: Allan Ekberg
Title: Mayor
Date:
Attest:
By:
, City Clerk
Approved as to form:
By:
City Attorney
Commons eau (Tukwila Village) 071917 Pane 20
43
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I HEREBY CERTIFY that on this day of , 201_, before me, the
undersigned, a notary public in and for the State of Washington, duty commissioned and sworn,
personally appeared Bryan M. Park, to me known to be the Manager of Tukwila Village
Development Associates, LLC, a Washington limited liability company, the Sole General Partner
of TUKWILA VILLAGE ASSOCIATES (I) LIMITED PARTNERSHIP, a Washington limited
partnership, the company that executed the within and foregoing instrument, and acknowledged
the said instrument to be the free and voluntary act and deed of said company for the uses and
purposes therein mentioned, and on oath stated that he or she was authorized to execute said
instrument on behalf of said company.
WITNESS my hand and official seal the day and year certificate first above written.
(Print Name)
Residing at
My appointment expires
Commons Lease (Tukwila Villaec) 071917 Page 21
44
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I HEREBY CERTIFY that on this day of July, 2017, before me, the undersigned, a
notary public in and for the State of Washington, duly commissioned and sworn, personally
appeared Allan Ekberg, to me known to be the Mayor of the CITY OF TUKWILA, a
Washington non -charter optional municipal code city, the municipal code city that executed the
within and foregoing instrument, and acknowledged the said instrument to be the free and
voluntary act and deed of said municipal code city for the uses and purposes therein mentioned,
and on oath stated that he or she was authorized to execute said instrument on behalf of said
municipal code city.
WITNESS my hand and official seal the day and year certificate first above written.
(Print Name)
Residing at
My appointment expires
Commons Lease (Tukwila Village) 071917 Paac 22
45
46
EXHIBIT A
LEGAL DESCRIPTION OF PROPERTY
Parcel C, City of Tukwila Lot Consolidation No. L13-021, recorded under King County
Recording No. 20150428900001.
Commons Lase (Tukm ita Village) 071917 Page 23
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EXHIBIT B
VISUAL DEPICTION OF PREMISES
Cornmocis Lease (Tukwila Villam) 071917 Pae 24
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EXHIBIT C
MEMORANDUM OF LEASE
After Recording Mail To:
City of Tukwila
Attn: City Clerk
6200 Southcenter Boulevard
Tukwila, WA 98188
MEMORANDUM OF LEASE
GRANTOR: TUKWILA VILLAGE ASSOCIATES (1) LIMITED
PARTNERSHIP
GRANTEE: CITY OF TUKWILA
LEGAL Parcel C of City of Tukwila Lot Consolidation No.
DESCRIPTION L13-021, King County Rec. No. 20150428900001
The complete legal description is on Exhibit A.
ASSESSOR'S PROPERTY TAX PARCEL ACCOUNT NUMBERS:
1523049096
Reference is made to the lease ("Lease") dated , 201_, between TUKWILA
VILLAGE ASSOCIATES (I) LIMITED PARTNERSHIP, a Washington limited partnership
("Landlord") and the CITY OF TUKWILA, a municipal corporation operating under the laws of
the State of Washington as a non -charter code city ("Tenant"), whereby Landlord leased to
Tenant and Tenant leased from Landlord the certain premises ("Premises") on land legally
described on the attached Exhibit A.
Tenant and Landlord hereby agree as follows:
(I) The Commencement Date is , 201_.
(2) The Term of the Lease is forty (40) years from the Commencement Date.
Commons l.casc (Tukwila Village) 071917 Pa,e 23
49
IN WITNESS WHEREOF, this Memorandum of Lease is executed this day of
, 20
"Landlord"
TUKWILA VILLAGE ASSOCIATES (1)
LIMITED PARTNERSHIP, a Washington limited
partnership
By: Tukwila Village Development Associates,
LLC, its Sole General Partner
By:
Name: Bryan M. Park
Title: Manager
Date:
"Tenant"
CITY OF TUKWILA, a municipal corporation
By:
Name: Allan Ekberg
Title: Mayor
Date:
Attest:
By:
, City Clerk
Approved as to form:
By:
City Attorney
Commons Lease (Tukwila Village) 071917 Pagc 26
50
STATE OF WASHINGTON )
) ss.
COUNTY OF KING )
I HEREBY CERTIFY that on this day of , 201_, before me, the
undersigned, a notary public in and for the State of Washington, duly commissioned and sworn,
personally appeared Bryan M. Park, to me known to be the Manager of Tukwila Village
Development Associates, LLC, a Washington limited liability company, the Sole General Partner
of TUKWILA VILLAGE ASSOCIATES (1) LIMITED PARTNERSHIP, a Washington limited
partnership, the company that executed the within and foregoing instrument, and acknowledged
the said instrument to be the free and voluntary act and deed of said company for the uses and
purposes therein mentioned, and on oath stated that he or she was authorized to execute said
instrument on behalf of said company.
WITNESS my hand and official seal the day and year certificate first above written.
(Print Name)
Residing at
My appointment expires
Commons Lrijsc (Tukwila Viltaae) 071917 Pagc 27
51
STATE OF WASHINGTON )
) ss.
COUNTY OF KING
I HEREBY CERTIFY that on this day of , 201_, before me, the
undersigned, a notary public in and for the State of Washington, duly commissioned and sworn,
personally appeared Allan Ekberg, to me known to be the Mayor of the CITY OF TUKWILA, a
Washington non -charter optional municipal code city, the municipal code city that executed the
within and foregoing instrument, and acknowledged the said instrument to be the free and
voluntary act and deed of said municipal code city for the uses and purposes therein mentioned,
and on oath stated that he or she was authorized to execute said instrument on behalf of said
municipal code city.
WITNESS my hand and official seal the day and year certificate first above written.
(Print Name)
Residing at
My appointment expires
Commons Lease (Tukwila Village) 071917 Pace 28
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17-132(a)
Contract Approval N/A
FIRST AMENDMENT TO LEASE OPTION AGREEMENT
THIS FIRST AMENDMENT TO LEASE OPTION AGREEMENT ("Amendment') is
made as of this .9'111day of February, 2018, by and between TUKWILA VILLAGE
DEVELOPMENT ASSOCIATES, LLC, a Washington limited liability company, ("TVDA"), and
the CITY OF TUKWILA, a municipal corporation operating under the laws of the State of
Washington as a non -charter code city ("Tukwila").
Recitals
A. TVDA and Tukwila are the parties to that certain Lease Option Agreement dated as of July
19, 2017 for reference purposes, which grants Tukwila the Option to lease the Commons
Premises and the Plaza Premises as described therein (the "Option Agreement").
B. TVDA and Tukwila desire to amend the Option Agreement on the terms and conditions
set forth herein.
Agreement
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements set
forth herein, and for good and valuable consideration, the receipt the receipt and sufficiency of
which are acknowledged, TVDA and Tukwila agree as follows:
1. Definitions. Capitalized terms used but not defined or amended herein shall have the
meaning given to such terms in the Option Agreement.
2. Extension of Termination Date. The Termination Date referenced in Section 2 of the
Option Agreement is hereby extended from February 15, 2018 to May 31, 2018.
3. Full Force and Effect. Except as specifically amended herein, all of the terms, conditions
and covenants in the Option Agreement are ratified and restated herein as if set forth in
full, and shall continue in full force and effect.
4. Counterparts. This Amendment may be executed in several counterparts and all so
executed shall constitute one Agreement, binding on all the parties hereto even though all
the parties are not signatories to the original or the same counterpart. Delivery of a
facsimile, scanned, or other copy of a signed version of this Amendment has the same
effect as delivery of an original. Delivery by electronic transmission such as email or
facsimile shall be deemed effective delivery of a copy.
la Amendment to Lease Option Agreement Page 1
53
IN WITNESS WHEREOF, this Amendment is executed as of the day and year first above
written.
Tukwila:
CITY OF TUKWILA, a municipal
corporation
By:
Name: A l 1 Q i►`-sr46
Title: r11 au./ oe-
Date: o?/Qi//
Attest:
By:
ChnS�j 0 'Fta b , City Clerk
Approved as to form:
By:
Jeffrey M. Hawkinson
City Attorney
TVDA:
TUKWILA VILLAGE DEVELOPMENT
ASSOCIATES, LLC, a Washington corporation
By:
Name. Bryan M. Park
Title: Manager
Date: �/ 7/a 0/g
A Pd
1' Amendment to Lease Option Agreement Page 2
54
17-132(b)
Council Approval N/A
SECOND AMENDMENT TO LEASE OPTION AGREEMENT
THIS SECOND AMENDMENT TO LEASE OPTION AGREEMENT ("Amendment') is
made as of this '-day of May 2018, by and between TUKWILA VILLAGE DEVELOPMENT
ASSOCIATES, LLC, a Washington limited liability company, ("TYDA"), and the CITY OF
TUKWILA, a municipal corporation operating under the laws of the State of Washington as a non -
charter code city ("Tukwila").
Recitals
A. TVDA and Tukwila are the parties to that certain Lease Option Agreement dated as of July
19, 2017 for reference purposes, which grants Tukwila the Option to lease the Commons
Premises and the Plaza Premises as described therein (the "Option Agreement").
B. The Option Agreement was previously amended by the First Amendment to Lease Option
Agreement dated February 8, 2018. TVDA and Tukwila desire to further amend the Option
Agreement on the terms and conditions set forth herein.
Agreement
NOW, THEREFORE, in consideration of the foregoing and the mutual agreements set
forth herein, and for good and valuable consideration, the receipt the receipt and sufficiency of
which are acknowledged, TVDA and Tukwila agree as follows:
1. Definitions. Capitalized terms used but not defined or amended herein shall have the
meaning given to such terms in the Option Agreement.
2. Extension of Termination Date. The Termination Date referenced in Section 2 of the
Option Agreement is hereby extended from May 31, 2018 to July 31, 2018.
3. Full Force and Effect. Except as specifically amended herein, all of the terms, conditions
and covenants in the Option Agreement are ratified and restated herein as if set forth in
full, and shall continue in full force and effect.
4. Counterparts. This Amendment may be executed in several counterparts and all so
executed shall constitute one Agreement, binding on all the parties hereto even though all
the parties are not signatories to the original or the same counterpart. Delivery of a
facsimile, scanned, or other copy of a signed version of this Amendment has the same
effect as delivery of an original. Delivery by electronic transmission such as email or
facsimile shall be deemed effective delivery of a copy.
i v- 0 f 02 0 r4tio,—.,
1
55
IN WITNESS WHEREOF, this Amendment is executed as of the day and year first above
written.
Tukwila:
CITY OF TUKWILA, a municipal
corpora o
TVDA:
TUKWILA VILLAGE DEVELOPMENT
ASSOCIATES, LLC, a Washington corporation
:9d_B}.By: `'G���A
Name: Allan Ekberg 5121 f j� Name: Bryan M. Park
Title: Mayor Title: Manager
Date: oft l'} `l' yI 2alb' Date: Si/S/d
Attest:
By:
Name: r iS
Title: City Clerk
Approved as to form:
By:
Name: Jefl1-ey NI. Hawkinson
Title: City Attorney
56
2
Lease Option Agreement Summary of Key Expenditures
On July 19, 2017 Tukwila Village Development Associates, LLC (TVDA) and the City of Tukwila executed a
Lease Option Agreement through which the City can exercise a lease of the community room,
community kitchen, and plaza. The City can also assign the lease option to the Community Organization
being formed by SHAG (Sustainable Housing for Ageless Generations) and the City. The Lease Option
was amended on February 8, 2018 and again on May 24, 2018. It currently terminates on July 31, 2018.
Following are key terms related to responsibilities for expenditures:
Item Responsible Party
Rent: $1/year for 40 years Tenant
Real estate taxes and assessments Landlord
Personal property taxes on tenant's personal property Tenant
Utilities for Commons Premises* Tenant
Utilities for Plaza Premises* Landlord
Maintenance of Building and Plaza Landlord
Maintenance of Commons Premises - Cleaning Tenant
Maintenance of Plaza Premises - Clean and restore when Tenant
connected to events organized or permitted by the tenant.
Insurance — Liability of at least $1 million/$2 million Tenant
Insurance — Liability of at least $2 million/$5 million Landlord
*water, sewer, heat, gas, electric, garbage, etc.
Updated: 6/18/18
57
58
City of Tukwila
City Council Community Development & Neighborhoods Committee
COMMUNITY DEVELOPMENT & NEIGHBORHOODS COMMITTEE
Meeting Minutes
June 26, 2018 - 5:30 p.m. - Hazelnut Conference Room, City Hall
Councilmembers: Zak Idan, Acting Chair, Dennis Robertson, De'Sean Quinn
Staff: Jack Pace, Derek Speck, Minnie Dhaliwal, Laurel Humphrey
Guest: Chuck Parrish, resident
CALL TO ORDER: Acting Chair Idan called the meeting to order at 5:30 p.m.
I. BUSINESS AGENDA
A. Tukwila Village Lease Authorization
Staff is seeking Council approval of a lease for the Tukwila Village commons and plaza pursuant
to a Lease Option Agreement set to expire July 31, 2018. Because the City and the developer are
still working on formation of the nonprofit/community organization that will manage the
property, this will afford the City the ability to manage the plaza and commons until the
nonprofit is formed and can assume the lease. There will be minor expenses associated with
staffing, utilities and cleaning, but the City could earn revenue on rentals to offset the costs. With
regard to the formation of the nonprofit, the City is allotted one Board position, which will be
filled by the Mayor for one year. Staff plans to seek direction from Council on how to handle
future appointments to this position. UNANIMOUS APPROVAL. FORWARD TO JULY 9, 2018
COMMITTEE OF THE WHOLE.
B. Tukwila Municipal Code Update: Environmentally Sensitive Areas
Staff briefed the Committee on efforts to update Tukwila Municipal Code 18.45, Environmentally
Sensitive Areas. The Growth Management Act requires all cities to periodically review and
update regulations for "critical areas," which include wetlands, frequently flooded areas,
streams, steep slopes, and fish and wildlife habitat. The update must include "best available
science" and this process is overseen by the Washington State Department of Ecology. Staff's
proposed timeline includes public outreach between July and October, Planning Commission
review in October and November, and Council review in early 2019. FORWARD TO PLANNING
COMMISSION.
Adjourned 6:06 p.m.
ZI Committee Chair Approval
Minutes by LH
59
60
Co UNCI. A G F,NDA SOPSIS
I
lJ
Meeting Date
Prepared by
Mayor's review
Council review
07/09/18
LH
❑ Motion
Mtg Date
L.,.Ut
07/16/18
LH
❑ Other
Mtg Date
CATEGORY Discussion
Resolution
Mtg Date
Mtg Date 7/9/18
SPONSOR ❑Council
❑HR ❑DCD
(—Fire ETS EP&&R ❑Police •PW ❑Court
►.Mayor
►1 Finance
ITEM INFORMATION
ITEM No.
3C
Si u 1 SPONSOR: LAUREL HUMPHREY 1 ORIGIN,yIAGI.NDA DATF: 07/09/18
AGENDA Ii'ls iTrIUS
A resolution adopting
an amended
Strategic Plan.
7/9/18
❑ Motion
Mtg Date
❑ Ordinance
Mfg Date
❑ Bid Award
Mtg Date
❑ Public Hearing
Mtg Date
❑ Other
Mtg Date
CATEGORY Discussion
Resolution
Mtg Date
Mtg Date 7/9/18
SPONSOR ❑Council
❑HR ❑DCD
(—Fire ETS EP&&R ❑Police •PW ❑Court
►.Mayor
►1 Finance
SPONSOR'S In preparation for phase one of Priority Based Budgeting, City staff conducted public
SUMMARY outreach to gather feedback on the 2012 Strategic Plan to see if its goals are still relevant.
Amendments are proposed based upon that feedback, and the draft resolution would adopt
the amended Plan. This briefing will also include an update on the status of the Priority
Based Budget process for the 2019-2020 Budget.
RF.viF:WED 1-31' 7 C.O.W.
Ti Trans &Infrastructure
DATE: 7/5/18
Mtg. •
CDN Comm ® Finance
Comm. ❑ Public Safety Comm.
Comm. H Planning Comm.
CHAIR: QUINN
❑ Arts Comm.
• Parks
COMMITTEE
RECOMMENDATIONS:
SPONSOR/ADMIN.
COMMIT
Council Analyst/Finance
I, Unanimous Approval; Forward to C.O.W.
COST IMPACT / FUND SOURCE
EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED
$
Fund Source:
Comments:
MTG. DATE
RECORD OF COUNCIL ACTION
7/9/18
7/16/18
MTG. DATE
ATTACHMENTS
7/9/18
Informational Memo dated June 21, 2018 (updated after 7/5/18 Finance Com)
Draft resolution
Proposed amendments to 2012 Strategic Plan
Draft attributes for Priority Based Budgeting scoring
7/16/18
61
62
City of Tukwila
Allan Ekberg, Mayor
INFORMATIONAL MEMORANDUM
TO: Finance Committee
FROM: Peggy McCarthy, Finance Director
BY: Vicky Carlsen, Deputy Finance Director, and Mia Navarro, Community
Engagement Manager
CC: Mayor Ekberg
DATE: 06/21/2018
SUBJECT: Strategic Plan and Priority Based Budgeting
ISSUE
This memo provides an update on the implementation of Priority Based Budgeting, and
recommended changes to the City's Strategic Plan for use in developing the 2019-2020 budget.
BACKGROUND
The City is implementing a new budgeting method called Priority Based Budgeting. Each
department has drafted a list of programs, and have almost completed allocating their 2017-18
expenditure budget to these programs as a practice run. The next step in Priority Based
Budgeting is to score the programs against the City's goals identified in the adopted Strategic
Plan. Staff has done outreach to the community to see if the Strategic Plan still reflects the
Community's priorities and values. The outreach included an online survey, print surveys
distributed to the City's Boards & Commissions, community groups, the Foster High School
civics classes (71), the Community Connectors, and other opportunities, as well as a community
dinner and workshop on May 3rd at Thorndyke Elementary School attended by around 50
people. The survey was translated into Spanish, Somali, Burmese, Nepali, Vietnamese, and
Amharic. The City also offered an online survey to staff as well.
DISCUSSION
Strateaic Plan:
The following is a summary of the survey feedback from the community and from staff.
1. What has been accomplished since 2012? Accomplishments that constituents and
staff are proud of include improvements to roads and sidewalks, the new library, Tukwila
Village, general improvements to Tukwila International Boulevard, and adding residential
development to the Southcenter business district.
2. What does our community still need to work on? Constituents report that the City still
has work to do with regard to safety, projecting a positive image, ensuring that Tukwila
residents can get basic needs met—affordable housing being at the top of the list—and
community outreach and engagement.
3. What do you like about the Plan? What is important to you that the City should
consider when developing the budget? For the most part, constituents agree with the
vision, mission, goals and objectives laid out in the 2012 Strategic Plan, and that the City
should keep working toward the aspirational vision of being "The City of Opportunity, the
Community of Choice."
63
INFORMATIONAL MEMO
Page 2
4. What would you change about the Plan? What's missing? Important items that the
community and staff have identified as missing from the Strategic Plan in its current
form, are:
a. Equity, particularly with regard to race
b. Addressing gentrification and displacement
c. Health and environmental health
d. Infrastructure
e. Technology and innovation
Priority Based Budgeting and 2019-2020 Budget Process:
The priority based budget model will be implemented over the next few budget cycles. For the
2019-2020 biennium, it is anticipated that all departments will have identified programs and will
allocate the 2019 and 2020 budgets to those programs. Additionally, programs will be scored
against an established set of attributes that will allow the City to place programs in tiers based
on how they score against the attributes.
The attributes that are being recommended to score programs are attributes that are used by
most of the organizations the Center for Priority Based Budgeting contracts with. By using the
same attributes that other organizations use will provide another tool to evaluate our own
programs against other like cities with similar programs.
Departments will be presenting departmental and fund budgets to Council committees
beginning in August. It is anticipated that budget information presented during the committee
meetings will include, not only the traditional budget information, but will also include budgets
allocated to programs ac r;o cctho_s.,.,, pscito. The °Ian is to present the final oacikaae of
scored and tiered oroorams to C cnAli later in ti8 budant ;process. mast likely in late September
or early October. -Staff is still on track to meet the committee review schedule presented to the
Finance Committee at its April 3, 2018 meeting, copied below:
Committee Date Departments/Funds
Finance 817118 Council
Transp, Infra 8/13/18 Public Works, Street
CDN 8/14/18 Land Acquisition & Park Fund, DCD
Public Safety 8/20/18 Court, Fire Impact Fee, Public Safety Plan, PW Shops funds
Finance 8/21/18 FIR, Self -Insurance, LEOFF 1
Transp. Infra 8/27/18 Residential Street, Arterial Street
CDN 8/28/18 Recreation, Parks
Public Safety 9/4/18 Police, Drug Seizure
Finance 9/5/18 Finance, Contingency Fund, Debt Service, Urban Renewal, General Government
Transp, Infra 9/10/18 Fleet
CDN 9/11/18 Golf Course
Public Safety 9/17/18 Fire, Firemen's Pension
Finance 9/18/18 Mayor, TIS
Transp, Infra 9/24/18 Water, Sewer, Surface Water
CDN 9/25/18 Lodging Tax
Each department will score their own programs. A cross -departmental workgroup will then
review the scoring down by departments. A final review of program scoring will be done by
Administration.
INFORMATIONAL MEMO
Page 3
RECOMMENDATION
The Council is being asked to approve changes to the Strategic Plan and the recommended
attributes for scoring via a motion. Staff requests that the recommended changes go before the
Committee of the Whole for discussion on July 9th, and that the motion be presented for a vote
at the July 16th regular meeting.
ATTACHMENTS
Strategic Plan Recommended Changes for PBB
Draft attributes for program scoring
65
66
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF TUKWILA, WASHINGTON, AMENDING RESOLUTION
NO. 1784, TO ADOPT AN AMENDED 2012 CITY OF
TUKWILA STRATEGIC PLAN.
WHEREAS, on December 10, 2012, the City of Tukwila passed Resolution No.
1784, adopting a Strategic Plan for the purpose of developing a broader understanding
of the needs of its community; and
WHEREAS, the City desires to use the goals from the Strategic Plan as part of the
City's 2019-2020 priority -based budget development process; and
WHEREAS, as part of the budget development process, the City also desires to
ensure that the 2012 City of Tukwila Strategic Plan continues to reflect the priorities and
values of the community; and
WHEREAS, to gather feedback and encourage participation from as many
community members as possible regarding community priorities and values, a range of
events and tools were utilized including via online and written surveys, newspaper and
City publications, and a community meeting; and
WHEREAS, common themes emerged from this community feedback,
necessitating adjustments to the 2012 City of Tukwila Strategic Plan prior to its use as
part of the 2019-2020 budget development process; and
WHEREAS, as amended, this Strategic Plan will continue to provide a broad
strategy for prioritizing the needs of the community in the months and years ahead;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY RESOLVES AS FOLLOWS:
Exhibit A to Resolution No. 1784 (exhibit entitled "2012 City of Tukwila Strategic
Plan,") is hereby amended and incorporated by this reference as if fully set forth herein,
and the amended version is attached to this resolution as Exhibit A.
W: Word Processing\Resolutions\Strategic Plan amended 7-2-18.doc
MN/LH-ay
Page 1 of 2 67
68
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 Verna Seal, Council President
APPROVED AS TO FORM BY:
Rachel B. Turpin, City Attorney
Filed with the City Clerk:
Passed by the City Council:
Resolution Number:
Exhibit A: Amended 2012 City of Tukwila Strategic Plan
W: Word Processing\Resolutions\Strategic Plan amended 7-2-18.doc
MN/LH:ay
Page 2 of 2
City of Tukwila Strategic Plan 2012
Recommended Changes
GOAL ONE A Community of Inviting Neighborhoods & Vibrant Business Districts
A. Cultivate community ownership of shared spaces.
1. Expand the system of incentives, tools, and supports that encourage investment in and
maintenance of private and public spaces. Improve enforcement of the City's regulations.
2. Ensure City -owned properties meet the community's desired look and feel. Encourage partners to
maintain their properties to similar standards.
3. Explore ways to use public art to beautify and enrich the community.
4. Reduce commercial activity that is not compatible with residential neighborhoods as opportunities
arise.
B. Build a broad and collaborative approach to preventing crime and increasing the sense of safety.
1. Engage all City departments in reducing crime.
2. Use environmental design principles to improve public safety.
3. Engage businesses and residents in preventing crime and preparing for emergencies.
Over time, broaden the focus of this engagement to other community -building efforts.
Explore opportunities to engage visitors in crime prevention and crime reporting.
Improve relationships between the City and immigrant communities around public safety.
4. Partner with social service organizations and explore regional solutions to prevent crime.
— Review case data to identify frequent violators and coordinate with service providers to resolve
issues.
C. Focus City planning and investments on creating a connected, dynamic urban environment.
1.
Prioritize changes that promote public safety, encourage the active use of space, and facilitate foot
and bike access.
Make smart investments to support the desired environment, including sidewalk, trail, street,
and lighting improvements to support biking and walking as funding and other factors allow.
— Identify appropriate parks to be made safer for all users by reducing vegetation to improve
visibility, allowing other parks to have more native landscaping.
Advance implementation of the City Walk & Roll Plan.
2. Explore creative ways to increase transit, foot, and bicycle access to community amenities, stores,
and jobs.
3. Work with the community to identify desirable retail opportunities in residential neighborhoods.
D. Use City efforts and investments to realize established visions for specific sub -areas.
1. Implement the community -led vision for the Tukwila International Boulevard neighborhood.
2. Work with businesses to finalize and implement the City's Southcenter Plan.
3. Continue to support the development of Tukwila South.
69
4. Tailor land use codes for the specific circumstances of individual subdistricts rather than applying
one set of codes citywide.
5. Identify public and private infrastructure investments that will be needed to support the long-term
vision for specific areas of the City.
— Use multi -department teams in long-term planning efforts to establish shared goals and target
City investments in catalytic projects.
Build and maintain public infrastructure that supports a healthy and attractive built and natural
environment.
1. Ensure that all neighborhoods and business districts have the necessary utilities, roads, bridges,
sidewalks, and other infrastructure to thrive.
2. Ensure that all public infrastructure in the City supports a healthy and attractive natural
environment.
GOAL TWO A Solid Foundation for All Tukwila Residents
A. Partner with organizations that help meet the basic needs of all residents.
1. Continue to advocate for vulnerable populations and increase understanding of the challenges they
face.
2. Actively collaborate with service providers supporting basic needs, including housing, food, health
care, education, employment and job readiness.
3. Be a regional leader in efforts to increase housing security and meeting the needs of a dynamic
community.
— Explore opportunities for supporting cooperative and alternative housing for transitioning and
recent refugees.
B. Strive for excellent education, vocational supports, and personal growth opportunities through
effective partnerships and City services.
C. Encourage maintenance, improvements, and diversity in the City's housing stock.
D. Work to eliminate systemic barriers and provide equitable access to opportunities and services as
outlined in the City's Equity Policy.
GOAL THREE A Diverse & Regionally Competitive Economy
A. Embrace the City's economic potential and strengthen the City's role as a regional business and
employment center.
1. Establish and implement an economic development strategy that identifies ambitious goals and
leverages the efforts of all City departments to strengthen the City's economy.
2. Employ a business -friendly approach to regulation while protecting the long-term interest of
neighborhoods and businesses districts.
3. Strengthen the City's image as an economic hub, promoting Tukwila's businesses and the City as a
good place to do business.
4. Promote understanding of the interdependencies and mutual interests among Tukwila residents,
Tukwila businesses, and the City of Tukwila.
B. Strengthen the City's engagement and partnership with the business community.
1. Improve the City's ability to have two-way communication with Tukwila businesses.
70
2. Cultivate business participation in strengthening and promoting the Tukwila community.
C. Encourage development, maintenance, improvements, and diversity in the City's stock of business
space.
1. Promote the availability of quality business space options at all price points to support business
diversity and ensure that businesses of all sizes can and want to remain in Tukwila..
GOAL FOUR A High -Performing & Effective Organization
A. Use Tukwila's Vision, Mission, and Strategic Plan to focus and prioritize City efforts.
1. Align City efforts and priorities around the Strategic Plan, including Council goal -setting, the City's
regular budgeting processes, and department -level workplanning.
- Create a results -oriented customer service culture focused on achieving the City's Mission.
Establish an annual process for reviewing progress and establishing new action plans for
implementing the community aspirations set by this Strategic Plan.
Establish City of Tukwila Values or Guiding Principles to shape organizational culture and guide
decision-making.
2. Track and report progress on meeting Strategic Plan Goals to City staff, residents, businesses, and
other interested parties.
— Identify performance measures by department and establish tools and schedules for reviewing,
sharing, and learning from progress.
3. Improve communication and strengthen relationships up, down, and across the organization.
B. Advance Tukwila's interests through participation in regional partnerships.
1. Encourage broad participation of City staff and elected officials in regional partnerships.
2. Be a regional leader in building common goals with our local and regional partners to achieve the
greatest possible results.
C. Continue to innovate and develop as an organization, and support individual growth.
1. Encourage employee leadership throughout the organization. Engage and leverage the full.
abilities of each employee.
2. Establish a culture and mechanisms to support ongoing growth and learning as an organization.
3. Seek innovative opportunities to improve public service.
D. Ensure City facilities are safe, efficient, and inviting to the public.
E. Ensure the long-term fiscal sustainability of the City.
1. Promote shared staff and community understanding of the City's fiscal position. Share information
about significant revenue and cost factors, as well as the rationale for decision-making.
2. Focus City expenditures on community priorities and maximize efficiencies in service delivery.
Evaluate City services and service delivery models relative to the City's Mission, Strategic Plan,
fiscal outlook, and ongoing input from the community.
- Establish policies and processes to adopt technology that improves City services and makes
them more efficient.
Explore opportunities for regional partnerships and regional service delivery models that are
fiscally beneficial to the City and in line with community values.
Encourage future development in locations where existing infrastructure can absorb the
growth.
71
3. Increase City revenues to support quality services for the whole community.
- Aggressively pursue opportunities to grow the City's business tax base through economic
development.
Explore options to increase revenues for the provision of City services or facilities for the
benefit of our residents, businesses, and visitors through mechanisms that are fair and
appropriate.
GOAL FIVE A Positive Community Identity & Image
A. Improve the City's ability to build trust and work with all members of the Tukwila community.
1. Broaden the City's toolkit to include new technology and formats that enable two-way
communication and improve business processes.
2. Strengthen the City's ability to engage with communities that do not participate in traditional
formats.
— Adopt engagement strategies that bring City staff and decision makers out into the
communities they serve to engage in meaningful dialogue.
— Cultivate meaningful, long-term relationships with members of the City's communities.
— Expand the linguistic and cultural competencies of City staff through training and hiring.
3. Cultivate participation by Tukwila's many communities in the City's decision-making processes.
B. Facilitate connections among Tukwila's communities.
1. Build connections among the many communities that make up the broader Tukwila community.
2. Improve broad understanding and appreciation of all of the City's cultures.
C. Promote a positive identity and image of Tukwila.
1. Take a proactive role in generating positive media coverage of the community.
— Promote the City's amenities, cultural dynamism, and geographic location.
— Shift negative perceptions about crime in Tukwila.
2. Implement a long-term, scalable community branding effort.
- Establish common themes that promote Tukwila's many positive attributes.
— Expand community markers at City boundaries and at key points throughout the community,
establishing a clear community signature.
- Use public art that is representative of the City's diverse communities in the branding effort.
3. Promote Tukwila's international diversity as a strength and draw for regional visitors.
- Support neighborhood businesses in reaching new markets through improved facades, way -
finding banners, and common promotions.
Explore opportunities for establishing a neighborhood business district organization to provide
ongoing support for small businesses operating within a defined geographic area.
Explore opportunities to establish a shopping and dining destination, similar to Seattle's Pike
Place Market or International District.
72
Portion of the
Community/
Organization
Served
Programs that benefit or serve a
larger segment of the City's
residents, businesses and/or
visitors will receive a higher score
for this attribute compared to
programs that benefit or serve
only a small segment of these
populations
Program benefits/serves a
SUBSTANTIAL portion of
the
community/organization
>75%
Program benefits/serves a
SIGNIFICANT portion of
the
community/organization-
>50%
Program benefits/serves
SOME portion of the
com mu nity/organ izati on -
>10%
Program benefits/serves a
SMALL portion of the
community/organization-
<10%
Change in Demand 1 Cost Recovery of
for Program the Program
Programs that demonstrate the
ability to "pay for themselves"
through user fees,
intergovernmental grants or
other user -based charges for
services will receive a higher score
for this attribute compared to
programs that generate limited
or no funding to cover their cost
Fees generated cover 50-
74% of the cost to provide
the program
Fees generated cover 25-
49% of the cost to provide
the program
Fees generated cover 1-
24% of the cost to provide
the program
No fees are generated that
cover the cost to provide
the program
Programs demonstrating an increase
in demand or utilization will receive a
higher score for this attribute
compared to programs that show no
growth in demand for the program.
Programs demonstrating a decrease
in demand or utilization will actually
receive a negative score for this
attribute
,L
Programs experiencing a
SIGNIFICANT increase (or
score of -3 for decrease) in
demand of 15-24%
Program experiencing a
MODEST increase in demand
of 5-14% (or -2 for decrease)
Program experiencing
MINIMAL increase in demand
of 1-4% (or -1 for decrease)
Program experiencing NO
change in demand
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Program
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another level of government (i.e. i businesses and visitors can look only
federal, state or county) will receive to the City to obtain the service will
a higher score for this attribute receive a higher score for this
compared to programs that ore attribute compared to programs
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no mandate whatsoever another intergovernmental agency
or a private business
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76
COUNCIL AGENDA SYNOPSIS
—Initials
Meeting Date
I Prepared by
tifa torr review
Council review
07/09/18
❑ Motion
Mtg Date
HH
I
g
07/16/18
❑ Other
Mtg Date
HH
I
REVIEWED BY ❑ COW Mtg. ❑ CA&P Cmte ❑ F&S Cmte
❑ Utilities Cmte ❑ Arts Comm. ❑ Parks Comm.
DATE: 06/25/18 COMMI1'1 EE CHAIR: THOMAS
►t Transportation
Cmte
❑ Planning Comm.
MCLEOD
RECOMMENDATIONS:
SPONSOR/ADMIN.
COMMITTEE
Public Works Department
Unanimous approval; forward to Committee of the Whole
1
EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED
$0.00 $0.00 $0.00
Fund Source:
Comments:
ITEM INFORMATION
ITEM No.
3D
STAFF SPONSOR: HENRY HASH
I ORIGINAL AGENDA DATE: 07/09/18
AGENDA ITEM TITLE Ordinance Granting a Non -Exclusive Franchise Agreement with
AT&T/New Cingular Wireless for Small Cell Technology
CATEGORY ►1 Discussion
Mtg Date 07/09/18
❑ Motion
Mtg Date
I Resolution
Mtg Date
® Ordinance
Mtg Date 07/16/18
❑ Bid Award
Mtg Date
❑ Public Hearing
Abltg Date
❑ Other
Mtg Date
SPONSOR ❑ Council II Mayor ❑ HR ❑ DCD • Finance ❑ Fire ❑ IT ❑ P&R ❑ Police /1 PIV
SPONSOR'S AT&T/New Cingular Wireless provides personal wireless communication systems. Council
SUMMARY is being asked to approve the new ordinance for the franchise agreement that will allow
Cingular Wireless to deploy small cell technology to expand the capacity of its wireless
network. Additional language has been added to insure safety, protect property, list
insurance requirements, and require restoration to any property damaged, disturbed, or
altered by Cingular.
REVIEWED BY ❑ COW Mtg. ❑ CA&P Cmte ❑ F&S Cmte
❑ Utilities Cmte ❑ Arts Comm. ❑ Parks Comm.
DATE: 06/25/18 COMMI1'1 EE CHAIR: THOMAS
►t Transportation
Cmte
❑ Planning Comm.
MCLEOD
RECOMMENDATIONS:
SPONSOR/ADMIN.
COMMITTEE
Public Works Department
Unanimous approval; forward to Committee of the Whole
COST IMPACT / FUND SOURCE
EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED
$0.00 $0.00 $0.00
Fund Source:
Comments:
MTG. DATE
RECORD OF COUNCIL ACTION
07/09/18
07/16/18
MTG. DATE
ATTACHMENTS
07/09/18
Informational Memorandum dated 06/22/18
Comparison documentation
Ordinance in strike-thru underlined format showing differences from T&I packet
Minutes from the Transportation & Infrastructure Committee meeting of 06/25/18
07/16/18
77
78
City of Tukwila
o ";.
Dir_ or
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 Cell Technoloav Franchise Agreement
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
N.!'PW Eng4PRGJEGTS1FranchiselTeleco nM.14f_Cmgular1INFO MEMO AT&T-Cingular Franchise AG Small Cells 062218.docs
79
80
Comparison of Small Cell Franchise Agreements
Discussion I
Company name is unique for each
Franchisee and differences are carried
throughout the agreements
Description of what each company provides
is negotiated specific to each agreement
Negotiated differences between
agreements
Specific language describing the type of
service provided by each Franchisee
negotiated specific to each agreement
Negotiated differences between
agreements
Additional definitions provided
Differences between agreements
negotiated specifically with each
Franchisee but the intent between the
Agreements is the same.
Mobilitie Agreement
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 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;
2. "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.
3. "Contractor" shall mean any contractor
selected and engaged by Mobilitie to Construct
Facilities in the Public Right(s)-of-Way.
4. "Costs" shall mean the actual, and
documented costs incurred.
5. "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.
AT&T/Cingular Agreement
WHEREAS, New Cinaular 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. includina 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 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
• f communications;
2. "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.
3. "Contractor" shall mean any contractor
selected and engaged by Franchisee to
Construct Facilities in the Public Right(s)-of-
Way.
4 "Costs" shall mean the actual, and
documented costs incurred.
5. "Default" shall mean any failure of a
Party to keep, observe, or perform any of its
duties or obligations under this Franchise.
Verizon Agreement
WHEREAS, Seattle SMSA Limited
Partnership, a Delaware limited partnership,
d/b/a Verizon Wireless, hereinafter referred to
as "VERIZON" is a telecommunications
company that, among other things, provides
personal wireless services to customers in
the Puget Sound region; and
WHEREAS, VERIZON'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 teleoommunicaftlons
system; 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 communications facilities;
3. "Default" shall mean any failure of a
Party to keep, observe, or perform any of its
duties or obligations under this Franchise that
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Section 1,
Definitions
Section 1,
Definitions
81
Comparison of Small Cell Franchise Agreements
Discussion
Language added to clarify the requirement
of meeting the ;minimum standards is the 1
lowest level acceptable.
Negotiated differences between
agreements
Grammatical correction
Mobilitie A. reement
6. "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 ("the
Standards"), illustrating and describing the
refinement of the design of the Fad!ities to be
Constructed,
8. "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; or (b) present an immediate threat of
harm to persons or property if immediate action
is not taken.
9. "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. antennastransmitters 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 oumose of
providina wireless Wi-Fi. voice. data,
messaaina or similar type of wireless service
now or in the future offered to the public in
general usina spectrum radio frequencies,
whether or not licensed by the Federal
Communications 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_
AT&T/Cingular Agreement
6. "Design Document(s)" shall mean the
plans and specifications for the construction of
the Facilities meeting pt 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 ("the
"Standards"), illustrating and describing the
refinement of the design of the
Telecommunications System Facilities to be
Constructed,
8. "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; or (b) pry an immediate threat of
harm to persons or property if immediate action
is not taken.
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4. "Design Document(s)" shall mean the
plans and specifications for the construction of
the Facilities meeting 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 (the
'Standards"),
6. "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 VERIZON's ability to continue to
provide services if immediate action is not
taken; or (b) presents an immediate threat of
harm to persons or property if immediate
action is not taken.
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Comparison of Small Cell Franchise Agreements 1
Discussion
Negotiated change, not substantive to the
Agreement as Exhibit A must be submitted
by the Franchisee for the Agreement to be
in effect, essentially functioning as the
Franchisee "accepting" the Agreement.
Negotiated language specific to Mobilitie
Agreement
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"Services" added for preference. Removed
"Agreement" throughout from
AT&T/Cingular and Mobilitie for preference,
intent not changed.
Specific language negotiated by Mobilitie to
be included in the Agreement
Mobilitie A. reement
10. "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.
12. "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.
16. "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 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.
18. "Service" or "Services" shall mean the
service or services authorized to be provided by
Franchisee under the terms and conditions of
this Franchise.
19. "Small Cell" shall mean the Facilities at
a particular location that comprises part of the
Network.
AT&T/Cingular Agreement
10. "Franchise" shall mean the grant, epee
aeeepted, 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.
15. "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 naht-of-wav 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 o.erator of a utility.
17. "Service" shall mean the service or
services authorized to be provided by
Franchisee under the terms and conditions of
this Franchise.
Verizon Agreement
8. "Franchise" shall mean the grant, ease '
aceepted; giving general permission to
VERIZON 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.
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Comparison of Small Cell Franchise Agreements 1
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AT&T!Cingular Agreement Mobilitie Agreement
18. "Telecommunications System" shall ! 20. "'Telecommunications System" shall
mean all necessary Facilities to establish a i mean all necessary Facilities to establish a
small cell network located in, under, and above small cell network located in, under, and above
City owned Public Rights -of -Way for the City owned Public Rights -of -Way for the
provision of personal wireless services, provision of personal wireless services,
including: commercial mobile services, including: commercial mobile services,
unlicensed wireless services, and common unlicensed wireless services, and common
carrier wireless exchange access services. carrier wireless exchange access services.
Telecommunications System shall not mean or Telecommunications System shall not mean or
I include Facilities owned or used by Franchisee include Facilities owned or used by Franchisee
for the provision of cable television services, for the provision of cable television services,
video programming, or services other than video programming, or services other than
personal wireless services, including personal wireless services, including
ownership, operation, and/or managing of a ownership, operation, and/or managing of a
dark fiber network. dark fiber network
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 System 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".
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.
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".
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 .rovisions contained herein.
Verizon A. reement
16 "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
VERIZON for the provision of cable television
services, video programming, or services
other than personal wireless services,
including ownership and/or operation of a
dark fiber network.
A. The City hereby grants to VERIZON,
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 all 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".
Section 3. Authority. The Director of Public
Works or his•w-Jar 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 he-er--she deems necessary to
car out the •rovisions contained herein.
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Comparison of Small Cell Franchise Agreements
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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 oblioation to either oartv.
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Comparison of Small Cell Franchise Agreements
Discussion
"Permit(s)" and the use of a capital letter
indicates the Permit in question is defined
in the Franchise Agreement. That is not the
case, therefore use of "permit(s)" is correct
in that it references a generic permit
required as part of the larger permitting
process.
Use of "Construction" implies construction
specific to the Agreement
Remainder of the difference negotiated
specific to Mobilitie Agreement address
steps to be taken in the case of a bonafide
emergency.
Change from "Capital" to "Public" clarifies
that the projects in question are
coordinated with publicly owned and
controlled projects whereas "Capital" could
be construed to encompass private projects
which are not part of this Franchise
Agreement.
Use of "Construction" implies construction
specific to the Agreement, used throughout
Mobilitie Agreement
Negotiated change specific to Mobilitie
Agreement, intent unchanged.
Mobilitie A. reement
1. 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
weeke
2. 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
evblic 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.
4. 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.
AT&T/Cin . ular A. reement
1. 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.
2. 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
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.
4. 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 if ra hisee-is
netuilting tc:amply 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.
Verizon A. reement
1 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, VERIZON shall,
within 24 hours of the emergency, obtain a
Permit from the City of Tukwila's Public
Works Department.
2. Coordination. All capital construction
projects performed by VERIZON 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.
4. 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 if
ie
�R;2_.,00 , .= ..,.- ‘,.;""7.a e ...,,-,, ,fi with such ,
requirements; and, may require removal of
any Facility that is not installed in compliance
with the Standards provided in this Franchise
Agreement or which is installed without prior
City approval of the time, place, or manner of
installation.
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Comparison of Small Cell Franchise Agreements
Discussion
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Use of "Network" in lieu of
"Telecommunications System" negotiated
specifically for Mobilitie Agreement
Change to "standards" in this clause is an
oversight and should be changed to
"Standards"
Grammatical change made for consistency
Mobilitie Agreement
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a. 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.
c. If weather or other conditions do not
allow the complete restoration required,
Franchisee shall temporarily restore the
affected Public Rights -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.
LAT&T/Cingular Agreement
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7 C C O O R L-' C• O -0 R _ 0 -. C O C N 7 X
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ui 0 LL U 0_ R C. R U 0),.. O LL R U 0_.0 3 U 3 0
I a. Franchisee shall, after completion of
construction of any part 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_
c. If weather or other conditions do not
allow the complete restoration required,
Franchisee shall temporarily restore the
affected Public Rights -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.
Verizon Agreement
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• C n .. 7 O Q c 5 a U- T 0 N 'O O -a N a) 0 - N .0
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R .� a) m >i ; 0 N R .� y C o () 0 O Vi N .0 O w $ m
73 E t_ o c0)v m N� E� c_.° U m� a)U m= C c T
0 0 0 0 0 0 N0 — U N '0 n— N O 0 O .-
000 N N R N C N OCs a) o .N N U N O N 'C µL E 0 0 E N
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co47, R•„L o C V)-aLR N.2 N 7 =..= co _c c.T. u ' y 0.OL
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a. VERIZON shall, after completion of
construction of any part 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.
VERIZON agrees to promptly complete
restoration work to the reasonable
satisfaction of the City and in conformance
with City Standards.
c. If weather or other conditions do not
allow the complete restoration required,
VERIZON shall temporarily restore the
affected Public Right -of -Way or public
property. VERIZON shall promptly undertake
and complete the required permanent
restoration when the weather or other
conditions no longer prevent such permanent
restoration.
I Location
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Comparison of Small Cell Franchise Agreements
Discussion
Removal of "after 30 days" negotiated
Additional language specific to Mobilitie
Agreement
AT&T/Cin • ular A •reement Mobilitie A,. reement
8. Warranty. Franchisee shall warrant 8. Warranty. Franchisee shall warrant
any restoration work performed by Franchisee any restoration work performed by Franchisee
in the Public Rights -of -Way or on other public in the Public Rights -of -Way or on other public
property for 2 years, unless a longer period is property for 2 years, unless a longer period is
required by applicable City Standards. If required by applicable City Standards. If
restoration is not satisfactorily and timely restoration is not satisfactorily and timely
performed by Franchisee, the City may, after performed by Franchisee, the City may, after
prior notice to Franchisee, or without notice prior notice to Franchisee, or without notice
where the disturbance or damage may create where the disturbance or damage may create
an imminent risk to public health or safety, an imminent risk to public health or safety,
cause the repairs to be made and recover the cause the repairs to be made and recover the
I actual, and documented cost of those repairs actual, and documented cost of those repairs
i from Franchisee. Within 30 days of receipt of from Franchisee. Within 30 days of receipt of
an itemized list of those costs, including the an itemized list of those costs, including the
costs of labor, materials and equipment, costs of labor, materials and equipment,
Franchisee shall pay the City. Franchisee shall pay the Cit
Verizon A. reement
8. Warranty. VERIZON shall warrant
any restoration work performed by VERIZON
in the Public Rights -of -Way or on other public
property for 2 years, unless a longer period is
required by applicable City Standards. If
restoration is not satisfactorily and timely
performed by VERIZON, the City may, after
4 -days prior notice to VERIZON, 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 cost of those repairs from
VERIZON. Within 30 days of receipt of an
itemized list of those costs, including the
costs of labor, materials and equipment,
VERIZON shall pay the City.
9. Restoration of Private Property.
When VERIZON 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.
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Comparison of Small Cell Franchise Agreements 1
Discussion
Language preference negotiated specific to
Mobilitie Agreement, intent of the section is
unchanged
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Mobilitie Agreement
12. 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
Section 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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AT&T/Cingular Agreement
12, Underground Installation Required.
All telecommunications cables and junction
boxes or other vaulted system components
shall be installed underground sen.stefa-wit
the r•equicerne,gits of Tukwila Municipal Code
Section 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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Verizon Agreement
12. Underground Installation Required.
All telecommunications cables and junction
boxes or other vaulted system components
shall be installed underground
the reg erements of Tukwila Municipal Code
Section 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
round in order to be functional.
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Comparison of Small Cell Franchise Agreements _
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Use of "Public Improvement" clarifies that
the project in question specifically relates to
the Relocation section of the Franchise
Agreement. Negotiated specific to Mobilitie
Agreement
Inclusion of "for" provides clarity on removal
and abandonment definition
Use of "Facilities Constructed" implies the
facility in question is specifically related to
the Agreements
c. Franchisee may, after receipt of written c Mobilitie may, after receipt of written
notice requesting a relocation of its Facilities, notice requesting a relocation of its Facilities,
submit to the City written alternatives to such submit to the City written alternatives to such
relocation within the time specified by the City. relocation within the time specified by the City.
Such alternatives shall include the use and Such alternatives shall include the use and
operation of temporary Facilities in adjacent operation of temporary Facilities in adjacent
I rights-of-way. The City shall evaluate such rights-of-way. The City shall evaluate such
alternatives and advise Franchisee in writing if alternatives and advise Mobilitie in writing if
one or more of the alternatives are suitable to one or more of the alternatives are suitable to
accommodate the work, which would accommodate the work, which would
otherwise necessitate relocation of the otherwise necessitate relocation of the
Facilities. If requested by the City, Franchisee Facilities. If requested by the City, Mobilitie
shall submit additional information to assist shall submit additional information to assist
the City in making such evaluation. The City the City in making such evaluation. The City
shall give each alternative proposed by shall give each alternative proposed by
Franchisee full and fair consideration. In the ' Mobilitie full and fair consideration. In the
event the City, in its sole discretion, decides event the City, in its sole discretion, decides
not to accept the alternatives suggested by not to accept the alternatives suggested by
Franchisee, Franchisee shall relocate its I Mobilitie, Mobilitie shall relocate its Facilities
Facilities as directed by the City. as directed by the City.
e. If during the construction, repair, or e. If during the construction, repair, or
maintenance of the City's public improvement I maintenance of the City's Public Improvement
project an unexpected conflict occurs from project an unexpected conflict occurs from
Franchisee's Facilities, Franchisee shall, upon Mobilitie's Facilities, Mobilitie shall, upon
notification from the City, respond within 24 notification from the City, respond within 24
hours to resolve the conflict. hours to resolve the conflict.
14. 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.
14. 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.
Verizon Agreement
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e. If during the construction, repair, or
maintenance of the City's public improvement
project an unexpected conflict occurs from
VERIZON's Facilities, VERIZON shall, upon
notification from the City, respond within 24
hours to resolve the conflict.
14. Removal or Abandonment. Upon
the removal from service of any service
antennas or other associated structures,
Facilities and amenities, VERIZON 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 VERIZON shall be abandoned
without the express written consent of the
City.
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Comparison of Small Cell Franchise Agreements 1
Discussion I
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Negotiated change to ensure that any costs
incurred by the City are recovered without
the qualifier of "reasonable"
�. Mobilitie Agreement
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OO O (II D.C.- O O O,C N
18. 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
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.
AT&T/Cingular Agreement
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18. 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 dale 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.
Verizon Agreement
Section 6. 15. Bond. Before undertaking any of the
Construction work, installation, improvements,
Provisions and construction, repair, relocation, or
Standards maintenance authorized by this Franchise
Agreement, VERIZON shall, upon the request
of the City, furnish one bond executed by
VERIZON for all of its Facilities in the City's
rights-of-way, in such sum as may be set and
approved by the City as sufficient to ensure
performance of VERIZON's obligations under
this Franchise Agreement, provided.
however, that such sum shall not exceed
150% of the cost of the Telecommunications
System to be installed by VERIZON in the
City rights-of-way. At VERIZON's sole
option, VERIZON 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 VERIZON
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
VERIZON work or materials discovered in the
Cit 's roads, streets, or .ro.ertv.
Section 6. 18. Recovery of Costs. VERIZON shall
Construction be subject to all permit fees associated with
Provisions and activities undertaken through the authority
Standards 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
reasanabte 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, VERIZON shall pay such
reaeeaable costs and expenses directly to the
City.
Location
93
Comparison of Small Cell Franchise Agreements C
Discussion
Change provides direction should the City
be the Defaulting Party in the agreement.
Risk to the City is low.
"in writing" removed to all for all types of
notices to be used.
Mobilitie Agreement
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.
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.
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.
Verizon A reement
A. Franchise Violations. The failure by
VERIZON 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
VERIZON 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.
1. If any of VERIZON's actions under this
Franchise Agreement, or any failure by
' VERIZON to act to correct a situation caused
by VERIZON, 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
VERIZON 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 VERIZON iramiting and give
VERIZON an opportunity to correct within a
specified time said threat, financial harm or
delay before undertaking such corrective
measures.
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94
Comparison of Small Cell Franchise Agreements
Discussion
Changes to the required insurance
coverage was negotiated with
AT&T/Cingular and Mobilitie after
recommendations by WCIA. The insurance
coverage in the Mobilitie and AT&T
Franchises provides significantly higher
coverage than the Verizon Franchise
Mobilitie negotiated last clause to allow
flexibility in meeting the higher coverage
requirements through umbrella and/or
excess liability insurance.
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Mobilitie Agreement
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 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 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 anvthina to the contrary.
Mobilitie may satisfy the foreooinq insurance
requirements throuah a combination of
commercial oeneral liability insurance and
umbrella or excess liability insurance.
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AT&T/Cingular Agreement
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 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 Franchisee
to the coverage provided by such insurance,
or otherwise limit the City's recourse to any
remedy available at law or in equity.
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Comparisonof Small Cell Franchise Agreements
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Comparison of Small Cell Franchise Agreements
I Discussion
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Mobilitie A. reement
b. the City shall not settle any such
claim, demand, lawsuit, or the like without the
prior written consent of Franchisee; and
c. the City shall fully cooperate with
Franchisee in the defense of the claim,
demand, lawsuit, or the like,
a)
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AT&T/Cin • ular A • reement
(b) the City shall not settle any such
claim, demand, lawsuit, or the like without the
prior written consent of Franchisee; and
(c) the City shall fully cooperate with
Franchisee in the defense of the claim,
demand, lawsuit, or the like.
C. VERIZON's contractors and C. Franchisee's contractors and
subcontractors performing Work in the Public subcontractors performing Work in the Public
Rights -of -Way shall comply with such bond, Rights -of -Way shall comply with such bond,
indemnity, and insurance requirements as indemnity, and insurance requirements as
may be required by City code or regulations, may be required by City code or regulations,
or other applicable Law. Any contractors or or other applicable Law. Any contractors or
subcontractors performing Work within the subcontractors performing Work within the
Public Rights -of -Way on behalf of VERIZON Public Rights -of -Way on behalf of Franchisee
shall be deemed servants and agents of shall be deemed servants and agents of
VERIZON for the purposes of this Franchise Franchisee for the purposes of this Franchise
Agreement and are subject to the same and are subject to the same restrictions,
restrictions, limitations, and conditions as if limitations, and conditions as if the Work were
the Work were performed by VERIZON. performed by Franchisee. Franchisee shall
VERIZON shall be responsible for all Work be responsible for all Work performed by its
performed by its contractors and contractors and subcontractors and others
subcontractors and others performing Work performing Work on its behalf as if the Work
on its behalf as if the Work were performed were performed by it, and shall ensure that all
by it, and shall ensure that all such Work is such Work is performed in compliance with
performed in compliance with this Franchise this Franchise and other applicable laws, and
Agreement and other applicable laws, and shall be jointly and severally liable for all
shall be jointly and severally liable for all damages and correcting all damage caused
damages and correcting all damage caused by them. It is Franchisee's responsibility to
by them. It is VERIZON's responsibility to ensure that contractors, subcontractors, or
ensure that contractors, subcontractors, or other Persons performing Work on
other Persons performing Work on Franchisee's behalf are familiar with the
VERIZON's behalf are familiar with the requirements of this Franchise and other
requirements of this Franchise Agreement applicable Laws governing the Work
and other applicable Laws governing the performed by them. Notwithstanding the
Work performed by them. 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 30 days prior to the
effective date of such cancellation if such
coverage is not replaced. Failure on the part
of Franchisee to maintain the insurance as
required shall constitute a material breach of
Verizon A• reement
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Comparison of Small Cell Franchise Agreements
Location Verizon Agreement AT&T/Cingular Agreement
Mobilitie Agreement Discussion
Negotiated change specific to Mobilitie
Agreement
Negotiated change between Franchisees
Negotiated change more beneficial to the
City.
_ F
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 a
hearing before the City Council and the
approval to such transfer shall be granted by
resolution of the City Council.
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). Mobilitie 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.
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.
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 a
hearing before the City Council and the
approval to such transfer shall be granted by
resolution of the City Council.
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 soecific 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.
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.
B. In any transfer of this Franchise which
requires the approval of the City, VERIZON
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 a
I hearing before the City Council and the
approval to such transfer shall be granted by
resolution of the City Council.
Section 11. A. Pursuant to the Revised Code of
Administrative Washington (RCW), the City is precluded
Fees. 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. VERIZON 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.
Section 11. D. In the event VERIZON submits a
Administrative request for work beyond the scope of this
Fees. Franchise Agreement, or submits a complex
• project that requires significant
comprehensive plan review or inspection,
VERIZON shall reimburse the City for
franchise amendments and reasonable
expenses associated with the project.
VERIZON shall pay such costs within 60 days
of recei.t of a bill from the Cit .
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99
Comparison of Small Cell Franchise Agreements
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Negotiated changes to expand
indemnification coverage. Also extends the
coverage of this clause beyond the
termination of the Franchise Agreement.
volunteers 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.
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
directly against the City, its officers. agent&
officials. employees. and volunteers. This
waiver is mutually negotiated by the parties
and the ojovlsions of this section shall survive
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B. To the extent of any concurrent
negligence between VERIZON and the City,
VERIZON'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 that 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 made by
VERIZON's employees against the City, its
officers, agents and employees, VERIZON
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 VERIZON's officers, agents or employees
against the City. This waiver is mutually
negotiated by the parties.
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Comparison of Small Cell Franchise Agreements
1 Discussion
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Preference changes, intent unchanged
1 Mobilitie Agreement
the expiration or termination of this Franchise
Agreement -
B. 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.
A. 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:
1. Materially interfere with or adversely
affect Mobilitie's rights pursuant to and in
accordance with this Franchise Agreement; or
2. Be applied in a discriminatory manner
as it pertains to Mobilitie and other similar
user of such facilities.
AT&T/Cingular Agreement
section shall survive the expiration or
Utrmirtetlon of this Franchise Agreement
B. 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:
1. Materially interfere with or adversely
affect Franchisee's rights pursuant to and in
accordance with this Franchise Agreement; or
2. Be applied in a discriminatory manner
as it pertains to Franchisee and other similar
user of such facilities.
Location I Verizon Agreement
B. Nothing in this Franchise Agreement
shall be deemed to impose any duty or
obligation upon the City to determine the
adequacy or sufficiency of VERIZON'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 insure 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 S stem.
Section 17. Future Rules, Regulations and
Specifications. VERIZON 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
VERIZON, shall thereafter govern
VERIZON's activities hereunder; pfeviciact,
howevefrthat in no event shall regulations:
1. materially interfere with or adversely
affect VERIZON's rights pursuant to and in
accordance with this Franchise Agreement;
or
2. be applied in a discriminatory
manner as it pertains to VERIZON and other
similar user of such facilities.
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101
Comparison of Small Cell Franchise Agreements 1
Discussion
Use of "Effective Date" defined under
Section 29 (see below)
Negotiated change specific to Mobilitie
Agreement
Negotiated changes
Negotiated change to remove "reasonably"
Grammatical correction from "that" to
"which"
Mobilitie Agreement
Section 19. 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 20. 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.
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.
B. 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 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 which is
satisfactory to the City;
AT&T/Cingular Agreement
Section 19. 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 20. 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.
A. 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 tts employees, Franchisee shall
not be deemed in Default of provisions of this
Franchise.
B. 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 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 which is
satisfactory to the City;
Verizon Agreement
Section 19. 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 Agreement.
Section 20. Time Limits Strictly
Construed. Whenever this Franchise
Agreement sets forth a time for any act to be
performed by VERIZON, such time shall be
deemed to be of the essence, and any failure
of VERIZON to perform within the allotted
time may be considered a Default of this
Franchise Agreement.
A. In the event VERIZON 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 unforeseen
labor conditions not attributable to
VERIZON's employees, VERIZON shall not
be deemed in Default of provisions of this
Franchise Agreement.
B. If VERIZON 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 Agreement,
VERIZON shall provide documentation as
amenably required by the City to
substantiate VERIZON's claim. VERIZON
shall have a reasonable time, under the
circumstances, to perform the affected
obligation under this Franchise Agreement or
to procure a substitute for such obligation that
is satisfactory to the City;
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Comparison of Small Cell Franchise Agreements C
Discussion
Grammatical correction
Additional language further defines and
clarifies previous usages of "the Effective
Date" within the document
Mobilitie Agreement
Section 26. Attorneys' Fees. In the event 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,
• Section 29. 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").
AT&T/Cingular Agreement
Section 26. Attorneys' Fees. In the event 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,
Section 29. 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".
Verizon A. reement
Section 26. Attorneys' Fees. In the event 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 Agreement or its application to
any person or circumstance, the prevailing
Party shall be entitled to recover from the
losing Party its reasonable attorneys,
parale•als, accountants,
Section 29. 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.
46 fA
C N T
O C N
- O C
C) U N
JV)<LL
Section 29.
Effective Date.
103
104
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;
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NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY ORDAINS AS FOLLOWS:
Section 1. Definitions
A A. For the purposes of this Franchise and the NtsExh't 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 tk --Franchisee. Words not
otherwise defined shall be given their common and ordinary meaning.
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.
1. "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.
"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.
3. "Contractor" shall mean any contractor se'ected and enaaaed by Franchisee
to Construct Facilities in the Public Riaht(s)-of-Way.
4. "Costs" shall mean the actual, and documented costs incurred.
5. "Default" shall mean any failure of a Party to keep, observe, or perform
any of its duties or obligations under this Franchise.
6 _ 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 l fat*eat;Manual ("the "Standards"). 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.
"Dispute" shall mean a question or controversy that arises between the
Parties concerning the observance, performance, interpretation, or implementation of any
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of the terms, provisions, or conditions contained in this Franchise or the rights or obligations
of either Party under this Franchise.
8. "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 or (b) presents an immediate threat of harm to persons or property if
immediate action is not taken.
"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.
`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.
"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.
12. "Party(ies)" shall mean either the City or the Franchisee or both.
13. "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.
"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.
"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
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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.
6. "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
';crkc dircctorPublic'. s Director or their designee.
17. "Service" or "Services" shall mean the service or services authorized to
be provided by tl e Franchisee under the terms and conditions of this Franchise.
18. "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.
19. "Work" shall mean any and all activities of - 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.
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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. The franchise rights granted herein shall remain in full
force and effect for a period of te-R-(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— 1. 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.
1"s 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 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.
Notice to the Public. Except in the case of an Emergency, the City retains
the right to required 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.
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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 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.
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 the 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.
_ Duty to Restore.
1-:- Franchisee shall, after completion of construction of any pa, 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.
27- 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 _ c. If weather or other conditions do not allow the complete restoration
required, Franchisee shall temporarily restore the affected Public RightRmhts-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.
6—
7. 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 rw +r,tu
hours.
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=Y 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 - Franchisee. Within t30 days
of receipt of an itemized list of those costs, including the costs of labor, materials and
equipment, the-Franchisee shall pay the City.
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.
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 ¢304 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.
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
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
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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.
;; Underground Installation Required. All telecommunications cables and
junction boxes or other vaulted system components shall be installed underground
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.
Relocation.
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 sign: P L,h 4? I. hts-of-wwyWay for purposes of public welfare, health,
or safety ("Public Improvements"). Such Public Improvements include, but are not limited
to: public rqf,' 'ublic Rights-of-wayWaa construction; Rim. _-of-
wayWay repair (including resurfacing or widening); change of :+ t Public Rsghts-
of-wayWay 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; 1;..,4ic rightE • ,..11t-of-wa ►Wa
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 . 90 days.
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
tiimetfametirne tram specified by the City.
c. 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
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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.
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 of -
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
r ghtsPublic Riohts-of-way,Wa•Y 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.
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.
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 rigntt;Putmc h hts of- Y '` 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 p► il+ Ott _ilts-of-
wa-yW'a, 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.
Should Franchisee fail, within thirty (304 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.
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• 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 `ac'.:'.ty ocr.ctructcc'Facility Constructec or owned by Franchisee shall be
abandoned without the express written consent of the City.
_ _ 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 its Facilities in the City's rights-of-way, in the amount of 13:..c.. ;.
r,c"2rF_ ^r.! ~c1100�Q 25,000.0' 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 thea 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 two -repair or replace any defective Franchisee work or materials
discovered in the City's roads, streets, or property.
"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.
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.
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.
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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.
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, e4g444Pubfic FiigLit-of-waWav, 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
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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
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 e --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.
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.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 - ti City 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.
2. 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 : _3,000,000 per accident. Coverage shall be at
least as broad as Insurance Services Office (ISO) form CA 00 01.
3. 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.
r 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 � ". 'rod "."..'.'.: ., Doo nod ,x''00. ;$$200,000,0003 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:
the City shall promptly and no later than `: 30q 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 3ectiorasection and provide Franchisee with
copies of any demands, notices, summonses, or legal papers received in connection with
such claim, demand, lawsuit, or the like; (n
b. the City shall not settle any such claim, demand, lawsuit, or the like
without the prior written consent of Franchisee; and 444.
the City shall fully cooperate with Franchisee in the defense of the claim,
demand, lawsuit, or the like.
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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 tFe
Franchisee shall be deemed servants and agents of- 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 t i4), ,30-, days prior to the effective date of such cancellation if such
coverage is not replaced. Failure on the part of she-FFranchisee 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
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.
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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 b 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
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.
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.
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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: TukwilaCitvClerk(tukwilawa.aov
Phone: 206-433-1855
With a copy to:
Public Works Director
City of Tukwila
6300 Southcenter Boulevard Ste. 100
Tukwila, WA 98188
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
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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 suitor 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.
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.
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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 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.
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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:- 1. Materially interfere with or adversely affect Franchisee's rights pursuant to
and in accordance with this Franchise Agreement; or
13— 2. Be applied in a discriminatory manner as it pertains to Franchisee and other
similar user of such facilities.
Section 18. �= c.. !r.to. ,tio .c.i!„ D`�ctod
S4 -4 -Seep -4944-1-R Entire Agreement. This Franchise contains all covenants and
agreements between the City and-"-.- 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 oft:,.c., '> ranchisee
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 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 2420. 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.
Section 2-221. 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 tn= 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,--: j,a 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.
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Section £;ad','. 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 :' - t- .. 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 2-s '. Survival of Terms. Upon the expiration, termination, revocation, or
forfeiture of the Franchise, Franchisee shall no longer have the right to occupy the
Franchise Area for the purpose of providing services authorized herein. However,-th---
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
t 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 Cityto provide insurance to relocate its Facilities-- and to reimburse the
City for its costs to perform Franchisee's work.
Section =' . 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.
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20 23
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 w4*which is satisfactory to the City; provided that-44e
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 to Fr^n h oo's
es re,..o.t'; .,r th.. h O!th ,.F x.. .t 11 :.. ,... .:+., .,f +h„ Franchisee's -........__._. _r._-„ _.._....._�..., _. ,,.., empoyees
or property, or the health, safety, and integrity of the public, Public Rights- of Way, public
property or private property.
Section s : Attorneys' Fees. In the even ,f_ 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
3ttornevs, attorneysparalegals, 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 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 . 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.
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Section . 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
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Page 22 of 23
Date:
EXHIBIT A
NEW CINGULAR WIRELESS PCS, LLC 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"), 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
By:
Name:
Title:
Date:
cc: Public Works Director, City of Tukwila, 6200 Southcenter Blvd, Tukwila, WA 98188
127
128
Transportation & Infrastructure Committee Minutes June 25, 2018
C. Small Cell Technology Franchise Agreements with AT&T/New Cingular and Mobilitie. LLC
Staff is seeking Council approval of franchise agreement ordinances with both AT&T/New Cingular
Wireless, PCS, LLC, and Mobilitie, LLC. Both are telecommunications companies currently in the
stages of deploying small cell technology to expand wireless network capacity and the respective
ordinances would grant permission for this deployment in the City's right-of-way. While the
agreements represent negotiations with each company, the ordinances are substantially
consistent with one another as well as with the Verizon Franchise Ordinance approved in February
2018. The agreements provide for the City to charge site-specific charges prior to permit issuance
as allowable by state law. Committee members asked clarifying questions. Staff mentioned that
the ordinances in the Committee packet were not the most current and those would be provided
before the Committee of the Whole. Councilmembers and staff discussed the need to balance
meeting current technological needs and reducing visual clutter on poles throughout the City, and
how the permitting process will play a role in this. Councilmember Quinn mentioned the
importance of establishing criteria and looking at what neighboring jurisdictions are doing. Ms.
Pellegrini, representing AT&T/New Cingular, offered to bring photo examples of different styles.
Following discussion, the Committee requested the following information for the Committee of
the Whole:
• Table explaining differences between the AT&T, Mobilitie, and Verizon franchise
agreements
• First drafts of AT&T and Mobilitie agreements
• Number and locations of City -owned and non -City owned poles
UNANIMOUS APPROVAL WITH ADDITIONAL INFORMATION. FORWARD TO JULY 9, 2018
COMMITTEE OF THE WHOLE.
D. Traffic Calming in Residential Neighborhoods
Councilmembers commonly hear complaints about speeding and requests for traffic calming in
neighborhoods and have requested for the City to have a strong, defensible process for prioritizing and
implementing requests. The Committee discussed and provided input on this topic multiple times in
2017, most recently focusing on data collection from the portable speed signs. The Police Department
and Public Works recently attended a community meeting focused on speed and traffic concerns.
Councilmember Quinn stated that he has previously requested that Council be notified and invited to
participate in such community meetings and was disappointed to hear that didn't happen in this case.
Staff acknowledged the oversight and will make sure Council is notified in the future. Staff mentioned
that the City has applicable policy documents such as the Traffic Calming Program, Walk & Roll Plan,
and the Residential Street Prioritization Study, but funding will continue to be a challenge. Staff plans
to present the results of the data collected by the mobile signs at a future Committee meeting, as well
as propose new funding for traffic calming and sidewalks for the 2019-2020 budget. Councilmember
Quinn stated that a purely complaint -based system such as that outlined in the Traffic Calming
Program does not typically result in equitable implementation. Complaints can factor in but all data
should be evaluated, and the Council should be well informed considering its fiduciary authority.
Council is very interested in data gathered by staff to compare with perceptions of concerned citizens
who have spoken up regarding speeding. Mr. Ahmed asked about the status of safety improvements
at Tukwila International Boulevard and South 141" Street, noting that Abu Bakr Islamic Center is
willing to contribute. Staff has been unsuccessful in securing grants and will provide a status update
at the next Committee meeting. RETURN TO COMMITTEE.
129
130
COUNCIL AGENDA S
°PSIS
Initials
Meeting Date
Prepared by
Mayor's review
Council review
07/09/18
HH
❑ Motion
Meg Date
• Resolution
07/16/18
HH
❑ Public Hearing
Meg Date
■ Other
Meg Date
Meg Date
Meg Date
SPONSOR ❑ Council ❑ Mayor U HR ❑ DCD ❑ Finance ❑ Fire ❑ IT ❑ P&R ❑ Police 1:/ PW
SPONSOR'S Mobilitie, LLC provides high capacity interexchange transport to telecommunications
SUMMARY common carriers. Council is being asked to approve the new ordinance for the franchise
agreement that will allow Mobilitie to deploy small cell technology to expand the capacity
of its wireless network. Additional language has been added to insure safety, protect
property, list insurance requirements, and require restoration to any property damaged,
disturbed, or altered by Mobilitie.
REVIEWED BY ❑ COW Mtg.
❑ Utilities Cmte
DATE: 06/25/18
I
CA&P Cmte U F&S Cmte Transportation
ITEM INFORMATION
ITEM No.
3E
STAFF SPONSOR: HENRY HASH ORIGINAL AGENDA DATE: 07/09/18
AGENDA ITEM TITLE Ordinance Granting a Non -Exclusive Franchise Agreement with
Mobilitie, LLC for Small Cell Technology
CATEGORY Discussion
07/09/18
❑ Motion
Meg Date
• Resolution
® Ordinance
Mtg Date 07/16/18
❑ Bid Award
Mtg Date
❑ Public Hearing
Meg Date
■ Other
Meg Date
Meg Date
Meg Date
SPONSOR ❑ Council ❑ Mayor U HR ❑ DCD ❑ Finance ❑ Fire ❑ IT ❑ P&R ❑ Police 1:/ PW
SPONSOR'S Mobilitie, LLC provides high capacity interexchange transport to telecommunications
SUMMARY common carriers. Council is being asked to approve the new ordinance for the franchise
agreement that will allow Mobilitie to deploy small cell technology to expand the capacity
of its wireless network. Additional language has been added to insure safety, protect
property, list insurance requirements, and require restoration to any property damaged,
disturbed, or altered by Mobilitie.
REVIEWED BY ❑ COW Mtg.
❑ Utilities Cmte
DATE: 06/25/18
U
CA&P Cmte U F&S Cmte Transportation
Cmte
❑ Arts Comm. ❑ Parks
COMIVIITTEE
Comm. U Planning Comm.
CHAIR: THOMAS MCLEOD
RECOMMENDATIONS:
SPONSOR/ADMIN.
CoMMII
Public Works Department
IEE Unanimous approval; forward to Committee of the Whole
COST IMPACT I FUND SOURCE
EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED
$0.00 $0.00 $0.00
Fund Source:
Comments:
MTG. DATE
RECORD OF COUNCIL ACTION
07/09/18
07/16/18
MTG. DATE
ATTACHMENTS
07/09/18
Informational Memorandum dated 06/22/18
Comparison documentation (see CAS 3D- New Ci ngul ar)
Ordinance in strike-thru underlined format showing differences from T&I packet
Minutes from the Transportation & Infrastructure Committee meeting of 06/25/18
07/16/18
132
City of Tukwila
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 — Mobilitie. LLC Small Cell Technoloav Franchise Agreement
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:IPW Eng\PROJECTS\Franchise\TelecomlMOBILITIEIINFO MEMO Mobilitie Franchise AG Small Cells 062218.docx
133
134
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 (RCVV) 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;
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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 E-3(444614sF ^ ` 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 tom= -Franchisee. Words not
otherwise defined shall be given their common and ordinary meaning.
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.
"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.
`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.
the
"Contractor" shall mean any contractor selected and engaged by Mobilitie to
Construct Facilities in the Public Right(s)-of-Way.
4. "Costs" shall mean the actual. and documented costs incurred.
6: 5. "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.
6_ "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 ("the Standards"), 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.
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"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
or either Party under this Franchise.
"Emergency" shall mean and refer to a sudden condition or set of
circumstances that: (a) significantly-•,toisiuott, orter4+.:ptirtteirupts 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.
g "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 Communications 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.
"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.
6 111. "Law(s)" shall mean all present and future applicable statioges,
seoskitotionslaws, ordinances, rules, regulations, resolutions, environmental standards,
orders, decrees and requirements of :.14 -City -ail
federal. state`. and local aovernments. the departments. bureaus, or commissions thereof,
or other governmental -ge ovcr tho Pcrt'oo uthorities. including the
City actino in its governmental capacity. References to Laws shall be interpreted broadly to
cover aovernment actions, however nominated.
1111 12 "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.
1, 13. "Party(ies)" shall mean either the City or the Franchisee or both.
14. "Permit" means a permit issued under the reaulatory authority of the City that
provides specific reauirements and conditions for Work to Construct Facilities within the
Public Riahts-of-Way and includes. but is not limited to: a construction permit. buildina
permit. street excavation permit. barricade permit, and c€earina and aradina permit.
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`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.
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
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.
b1L _ 17. "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 • ,.
v. (irks o«rerPublic Works Director or their designee.
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18. "Service” or "Services" shall mean the service or services authorized to be
provided by Franchisee under the terms and conditions of this Franchise.
19. "Small Cell" shall mean the Facilities at a particular location that
comprises part of the Network.
20. "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
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other than personal wireless services, including ownership, operation. and/or manaainci of
a dark fiber network.
21. "Work" shall mean any and all activities of- -- 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 tc'ccc,rrv,�� o2t o c fc;!!!tyTelecommunications
System 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.
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 t=, -=410q 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
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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 - --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.
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). ---
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.
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.
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
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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.
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 tie 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.
6. Duty to Restore.
1- a. 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.
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.
If weather or other conditions do not allow the complete restoration
required, Franchisee shall temporarily restore the affected Public RRttlhts-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.
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 testy 24
hours.
Warranty. Franchisee shall warrant any restoration work performed by
Franchisee in the Public Rights -of -Way or on other public property for 2 years,
unless a longer period is required by applicable City Standards. If restoration is not
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satisfactorily and timely performed by Franchisee, the City may, after prior notice to
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 Franchisee. Within X30} days
of receipt of an itemized list of those costs, including the costs of labor, materials and
equipment, the- Franchisee shall pay the City.
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.
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
-130} days following receipt of written notice including itemized invoice and
supporting documentation evidencing such cost. The authority and remedy set forth
herein in 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.
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
rrratasare� 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/or that inconveniences the public use of the right of way or adversely
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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 15 days after the modification is made.
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.
Relocation.
-e 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 '=#€ F?_1[._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.
- 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
t. e' mRettme frame specified by the City.
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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 f awor1al:)losule discretion, decides not to accept
the alternatives suggested by Mobilitie, Mobilitie shall relocate its Facilities as directed by
the City.
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
alteration is reasonably necessary for the construction, repair, maintenance, installation,
public safety, or operation of any public improvement in or upon the Public 4f r. -
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.
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
the -404144k
f 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.
Should Mobilitie fail, within _ . -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
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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.
IVl 1 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.
15. 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 its Facilities in the City's rights-of-way, in the amount of ty r,_;,aT:
and .,o1100 ($525,000.00 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.
"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.
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.
18. 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 1.e-46E014194e
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
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permit fees have not been established, Mobilitie shall pay such reasonable costs and
expenses directly to the City.
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.
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 ,.',&C)
days
days written notice to Mobilitie, 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 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.
is 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,
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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.
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 days of such
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:
_The receivership or trusteeship is timely vacated; or
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 -4-le-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 tbe-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
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insurance; shall stipulate that no insurance affected by the City will be called on to
contribute to a loss covered thereunder.
1 . 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 Pry-mitvCity 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 2L$3,000,000 per accident. Coverage shall be at
least as broad as Insurance Services Office (ISO) form CA 00 01.
3. 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
nntir r n,.u2.-C Cn� .,vi1nn (_$200,000,000i 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: t
the City shall promptly and no later than 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 S.eGtieesecticn and provide Franchisee with
copies of any demands, notices, summonses, or legal papers received in connection with
such claim, demand, lawsuit, or the like; (4)
the City shall not settle any such claim, demand, lawsuit, or the like
without the prior written consent of Franchisee; and (4t)
the City shall fully cooperate with Franchisee in the defense of the claim,
demand, lawsuit, or the like.
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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 s , , 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.
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
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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 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 an.c;
or��ni o� 0 r O 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
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 ity'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
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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 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
C r....,„
Email: TukwilaCitvClerkc tukwilawa.aov
Phone: 206-433-1855
With a copy to:
Public Works Director
6300 Southcenter Boulevard Ste. 100
Tukwila, WA 98188
FRANCHISEE
Mobilitie, LLC
660 Newport Center Drive, Suite 200
Newport Beach, CA 92660
Attention: _Legal Department
leaalt'a�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.
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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 emolovees. officers. officials and
voluntee 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.
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- 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.
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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.
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.
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-.j,rit=-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 r h-tFsghNN-of-way`:id x 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.
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
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Mobilitie, shall thereafter govern Mobilitie's activities hereunder.
shall regulations:
. Materially interfere with or adversely affect Mobilitie's
in accordance with this Franchise Agreement; or
Be applied in a discriminatory manner as it pertains
similar user of such facilities.
However, in no event
rights pursuant to and
to Mobilitie and other
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19. Entire Agreement. This Franchise contains all covenants and
agreements between the City and 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 . 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 24224. 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 12 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 _._ ity. 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
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20
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, 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 .'- i sect;:: -e, prevents
an assignment as provided for in this Franchise.
Section `_ 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 Franchisee; and all privileges as well as any obligations and liabilities of
Franchisee shall inure to its heirs, successors, and assigns equally as if they were
specifically mentioned wherever Franchisee is named herein.
Section n. 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 2524. Survival of Terms. Upon the expiration, termination, revocation, or
forfeiture of the Franchise, Franchisee shall no longer have the right to occupy the
Franchise Area for the purpose of providing services authorized herein. However,
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 Franchisee transfers ownership in all Facilities in
the Franchise Area to the City or a third -Party, or until such time as t ---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 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
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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 -tom;- ranchisee'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 w4which is satisfactory to the City; provided that
tka+seeFranchisee 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 public,
Public Rights—of-May, public property or private property.
Section 2-726. Attorneys' Fees. In the event -o -r 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
at eys-att 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 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 2£: 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.
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Section _ 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
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Date:
EXHIBIT A
Mobilitie, LLC, 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: Public Works Director, City of Tukwila, 6200 Southcenter Blvd, Tukwila, WA 98188
159
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Transportation & Infrastructure Committee Minutes June 25, 2018
C. Small Cell Technology Franchise Agreements with AT&T/New Cingular and Mobilitie, LLC
Staff is seeking Council approval of franchise agreement ordinances with both AT&T/New Cingular
Wireless, PCS, LLC, and Mobilitie, LLC. Both are telecommunications companies currently in the
stages of deploying small cell technology to expand wireless network capacity and the respective
ordinances would grant permission for this deployment in the City's right-of-way. While the
agreements represent negotiations with each company, the ordinances are substantially
consistent with one another as well as with the Verizon Franchise Ordinance approved in February
2018. The agreements provide for the City to charge site-specific charges prior to permit issuance
as allowable by state law. Committee members asked clarifying questions. Staff mentioned that
the ordinances in the Committee packet were not the most current and those would be provided
before the Committee of the Whole. Councilmembers and staff discussed the need to balance
meeting current technological needs and reducing visual clutter on poles throughout the City, and
how the permitting process will play a role in this. Councilmember Quinn mentioned the
importance of establishing criteria and looking at what neighboring jurisdictions are doing. Ms.
Pellegrini, representing AT&T/New Cingular, offered to bring photo examples of different styles.
Following discussion, the Committee requested the following information for the Committee of
the Whole:
• Table explaining differences between the AT&T, Mobilitie, and Verizon franchise
agreements
• First drafts of AT&T and Mobilitie agreements
• Number and locations of City -owned and non -City owned poles
UNANIMOUS APPROVAL WITH ADDITIONAL INFORMATION. FORWARD TO JULY 9, 2018
COMMITTEE OF THE WHOLE.
D. Traffic Calming in Residential Neighborhoods
Councilmembers commonly hear complaints about speeding and requests for traffic calming in
neighborhoods and have requested for the City to have a strong, defensible process for prioritizing and
implementing requests. The Committee discussed and provided input on this topic multiple times in
2017, most recently focusing on data collection from the portable speed signs. The Police Department
and Public Works recently attended a community meeting focused on speed and traffic concerns.
Councilmember Quinn stated that he has previously requested that Council be notified and invited to
participate in such community meetings and was disappointed to hear that didn't happen in this case.
Staff acknowledged the oversight and will make sure Council is notified in the future. Staff mentioned
that the City has applicable policy documents such as the Traffic Calming Program, Walk & Roll Plan,
and the Residential Street Prioritization Study, but funding will continue to be a challenge. Staff plans
to present the results of the data collected by the mobile signs at a future Committee meeting, as well
as propose new funding for traffic calming and sidewalks for the 2019-2020 budget. Councilmember
Quinn stated that a purely complaint -based system such as that outlined in the Traffic Calming
Program does not typically result in equitable implementation. Complaints can factor in but all data
should be evaluated, and the Council should be well informed considering its fiduciary authority.
Council is very interested in data gathered by staff to compare with perceptions of concerned citizens
who have spoken up regarding speeding. Mr. Ahmed asked about the status of safety improvements
at Tukwila International Boulevard and South 141" Street, noting that Abu Bakr Islamic Center is
willing to contribute. Staff has been unsuccessful in securing grants and will provide a status update
at the next Committee meeting. RETURN TO COMMITTEE.
161
162
Upcoming Meetings & Events
July 2018
1 9th (Monday)
10th (Tuesday)
11th (Wednesday)
12th (Thursday)
13th (Friday) 14th (Saturday)
i > Transportation &
' Infrastructure
Cmte.,
5 30 PM
(Hazelnut
Conference Room )
➢ City Council
Committee of
the Whole Mtg ,
7.00 PM
(Council Chambers)
> Community
Development &
Neighborhoods
Cmte ,
530 PM
(Hazelnut
Conference
Room)
➢ Tukwila
International
Boulevard
Action Cmte,
7 00 PM
(Valley View
Sewer Dist..
3460 S 148th)
See You in the
Park
5:00 PM- 7.00 PM
(Foster Park)
Tukwila Parks &
Recreation invites
you out to meet our
staffl Food, games
and recreational
opportunities for
all age groups!
D Equity &
Social Justice
Commission,
5:15 PM
(Hazelnut
Conference
Room)
DPari
Commission,
> COPCAB,
6:30 PM
(Duwamish
Conference
Room)
Cancelled
16th (Monday)
17th (Tuesday)
18th (Wednesday)
19th (Thursday)
20th (Friday) 21st (Saturday)
> Public Safety
Cmte,
530 PMHazelnut
(Hazelnut
Conference Room)
➢ City Council
Regular Mtg.,
7 00 PM
(Council
Chambers)fora
July 16 is the Deadline
to register if you are
participating in
Tukwila's Community
garage sale and want
your address published
in the list of locations
(Garage Sale to be
held on August 18)
Visit www.tukwila
➢ Finance Cmte,
5 30 PM
(
Conference
Room)
See you in the 1
Park
5:00 PM - 7 00 PM i
(Riverton Park) 1
Tukwila Parks &
Recreation invites '
9
you out to meet our
Y j
staff! Food, games €
and recreational 1
opportunities for
all age groups!
g g pRefreshments
�
D Art
Commission,
> Tukwila
Historical
Society,
Y
7:00 PM
(Tukwila
Heritage &
Cultural
Center, 14475
59" Ave S.)
a
Peanut Butter and I Tukwila Village
Jam Family ° Community
Performance
Series Celebration
FREE family funs 100 - 4:00 PM
1.00 PM l 2:00 kwi/aBONCePla Ga
(Tukwila Village Plaza
(Community Center d
14350 Tukwila
by the Spray Park) International Blvd.)
This week: Entertainment,
Tweenlan`i Activities for Kids,
FREE but we ask
Peanut Butter and
or Jam donation to much more!
support our summer More info at
food drive www facebook.com/
TukwilaVillage
Cancelled
wa gov/Yardsale
➢ Arts Commission: 3rd Wed , 5 00 PM, Tukwila Community Center Contact Tracy Gallaway at 206-767-2305.
>Community Development and Neighborhoods Committee: 2nd & 4th Tues , 5:30 PM, Hazelnut Conf Room. Contact Laurel
Humphrey at 206-433-8993 (A) Lodging Tax Funding Applications.
➢ COPCAB (Community Oriented Policing Citizens Adv. Board): 2nd Thurs , 6.30 PM, Duwamish Conference Room
Contact Chris Portman at 206-431-2197
' Equity & Social Justice Commission: 1st Thurs , 5 15 PM, Hazelnut Conf. Room Contact Mia Navarro at 206-454-7564
Finance Committee: lst & 3rd Tues , 5 30 PM, Hazelnut Conf. Room. Contact Laurel Humphrey at 206-433-8993.
> Library Advisory Board: 1st Tues , 530 PM, Community Center Contact Stephanie Gardner at 206-767-2342
> Park Commission: 2nd Wed., 5.30 PM, Community Center Contact Robert Eaton at 206-767-2332.
' Planning Commission/Board of Architectural Review: 4`5 Thurs , 6'30 PM, Council Chambers at City Hall. Contact Wynetta Bivens
at 206-431-3670.
>Public Safety Committee: 1st & 3rd Mon., 5-30 PM, Hazelnut Conf. Room Contact Laurel Humphrey at 206-433-8993
> Tukwila Historical Society: 3rd Thurs , 7 00 PM, Tukwila Heritage & Cultural Center, 14475 59`h Avenue S
Contact Louise Jones -Brown at 206-244-4478
>Tukwila Int'l. Blvd. Action Crate: 2nd Tues., 7.00 PM, Valley View Sewer District Contact Chief Linton at 206-433-1815.
>Transportation and Infrastructure Committee: 2nd & 4th Mon , 530 PM, Hazelnut Conf Room Contact Laurel Humphrey at
206-433-8993 (A) Resolution to Surplus and Sell Two Vehicles for 2018. (B) Resolution to Surplus City Equipment for 2018. (C) 42'
Ave S Ph III and Gilliam Creek Culvert Replacement Change Order #3 with Active Construction. (D) 53`'`r Ave S Memorandum of
Agreement with Comcast (E) South 14011i Street Intersection Improvement updates. (F) SCATBd. (G) Strander Boulevard update. (H)
Small Cell Technologies Franchise Agreements. (I) Sea Tac International Airport Provisio Study.
163
Tentative Agenda Schedule
MONTH
MEETING 1 -
REGULAR
MEETING 2 -
C.O.W.
MEETING 3 -
REGULAR
MEETING 4 -
C.O.W.
July
2
9
See agenda packet
cover sheet for
this week's agenda:
July 9, 2018
Committee of the
Whole Meeting.
16
Special Presentations:
23
Special Issues:
-Promotion of Fire
Captain.
-Annual update from
Tukwila Library
Advisory Board.
Consent Agenda
An ordinance establishing
regulations relating to
compliance with federal
immigration laws.
A Special meeting
to be followed by
the Committee of
the Whole.
Lodging Tax Funding
Applications.
Unfinished Business:
- New Cingular
Wireless/AT&T
franchise agreement.
- MobiIitie franchise
agreement.
August
6
Appointments/
13
20
27
Proclamations:
-Appointment to Human
Services Advisory Board.
-National Night Out
Against Crime.
Unfinished Business
An ordinance establishing
regulations relating to
compliance with federal
immigration laws.
164