HomeMy WebLinkAboutCOW 2018-07-23 Item 4C - Ordinance - Telecommunications System Franchise Agreement with New Cingular Wireless PCS (AT&T)COUNCIL AGENDA SYNOPSIS
Initials
Meeting Date
Prepared by 1 Mayor's review
Council review
07/23/18
HH I/4/1.
HH r
p ,`;'I
`J✓
08/06/18
❑ Motion
Mtg Date
1
❑ Bid Award
Nltg Date
❑ Public Hearing
i\itg Date
1
CATEGORY ►1 Discussion
ITEM INFORMATION
ITEM No.
4.C.
165
STAFF SPONSOR: HENRY HASH ORIGINAL AGENDA DATE: 07/23/18
AGENDA ITEM TITLE
Ordinance Granting a Non -Exclusive
AT&T/New Cingular Wireless for
Franchise
Small Cell
Agreement with
Technology
07/23/18
❑ Motion
Mtg Date
❑ Resolution
Mtg Date
❑ Bid Award
Nltg Date
❑ Public Hearing
i\itg Date
❑ Other
Mtg Date
CATEGORY ►1 Discussion
r Ordinance
Mtg Date
Mtg Date 08/06/18
❑ Finance ❑ Fire
SPONSOR ❑ Council ❑ Mayor ❑ HR ❑ DCD
❑ IT ❑ P&R ❑ Police ►1 PW
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 & 7/23/18 COMMITTEE CHAIR: THOMAS
' Transportation
Cmte
❑ Planning Comm.
MCLEOD
RECOMMENDATIONS:
SPONsoR/ADMIN.
COMMPTTEE
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
07/23/18
08/06/18
MTG. DATE
ATTACHMENTS
07/23/18
Informational Memorandum dated 07/20/18
Comparison documentation
Ordinance
Minutes from the Transportation & Infrastructure Committee meeting of 06/25/18
08/06/18
165
166
City of Tukwila
Allan Ekberg, Mayor
Public Works Department - Henry Hash, Director
INFORMATIONAL MEMORANDUM
TO: Transportation and Infrastructure Committee
FROM: Harry Hash, Public Works Director /Ay__
BY; Cyndy Knighton, Senior Program Manager
CC: Mayor Ekberg
DATE: July 20, 2018
SUBJECT: Ordinance — AT&T/New Cinaular Wireless Small CeII Technoloav Franchise
ISSUE
Approve Ordinance for AT&T/New Cingular Wireless Franchise Agreement.
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, which is also currently under consideration. The attached draft Franchise Ordinance establishes
high-level, city-wide permission for New Cingular's deployment of small cell technology in the City's right-of-way. A Franchise
Agreement establishes global requirements, expectations, and responsibilities between parties — essentially establishing the ground
rules which both parties agree to follow. Regulatory requirements, a separate approval process from that of the franchise
agreement, establish the physical standards and restrictions for specific installations. These requirements are enforced during the
individual application review and are typically found in zoning and right-of-way code sections. Finally, pole use agreements are
necessary to install small cell equipment on poles not owned by the Franchisee. In Tukwila, pole agreement will likely be with the
City, Puget Sound Energy, or Seattle City Light.
Information on how other Washington jurisdictions are approaching the new small cell technology was presented during the recent
Association of Washington Cities conference in Yakima. An analysis of Mukilteo and Renton's recently enacted legislation,
Tukwila's related current codes, and staff recommendations on changes to the Franchise Ordinance, if any, will be discussed at the
meeting.
FINANCIAL IMPACT
Under the terms of the Franchise Ordinance, 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 fees to providers of personal wireless services under certain circumstances
before the City issues a use permit. This Franchise Ordinance tracks that statutory language and provides that New Cingular and
the City will determine applicable site-specific fees 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 23, 2018 Committee of the Whole and subsequent August 6, 2018 Regular
Meeting.
Attachments: Draft Franchise Ordinance
Table Comparison of Small CeII Franchise Agreements
W:1PW Eng1PROJECTS1FranchlselTelescoMAT8T_Cingular11NF0 MEMO AT&T-Cingular Franchise AG Small Cells 072018.docx
167
168
Comparison of Small CeII Franchise Agreements
Location
Verizon Agreement
AT&T/Cingular Agreement
Mobilitie Agreement
Discussion
First Whereas
clause
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, New Cingular Wireless PCS, LLC,
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
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
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
Second
Whereas clause
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 telecommunications
system; 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, 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
Negotiated differences between
agreements
Fifth Whereas
clause
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;
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
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;
Specific language describing the type of
service provided by each Franchisee
negotiated specific to each agreement
of communications;
Section 1,
Definitions
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.
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.
Negotiated differences between
agreements
Section 1,
Definitions
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.
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.
Additional definitions provided
Section 1,
Definitions
3. "Default" shall mean any failure of a
Party to keep, observe, or perform any of its
duties or obligations under this Franchise that
is not cured within 30 days after receipt of
5. "Default" shall mean any failure of a
Party to keep, observe, or perform any of its
duties or obligations under this Franchise.
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.
Differences between agreements
negotiated specifically with each
Franchisee but the intent between the
Agreements is the same.
r r: - • u r- r e r r "-e r
1
Comparison of Small CeII Franchise Agreements
Location
Verizon Agreement
AT&T/Cingular Agreement
Mobilitie Agreement
Discussion
Section 1,
Definitions
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. "Design Document(s)" shall mean the
plans and specifications for the construction of
the Facilities meeting at least the minimum
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,
Language added to clarify the requirement
of meeting the ;minimum standards is the
lowest level acceptable.
Negotiated differences between
agreements
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,
Section 1,
Definitions
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.
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.
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.
Grammatical correction
Section 1,
Definitions
7. "Facility or Facilities" means any part
or all of the facilities, equipment and
appurtenances of VERIZON whether
underground or overhead and located within
the Public Rights-of-Way as part of
VERIZON's Telecommunications System,
including but not limited to, conduit, case, pipe,
line, fiber, cabling, equipment, equipment
cabinets and shelters, vaults, generators,
conductors, poles, carriers, drains, vents, guy
wires, encasements, sleeves, valves, wires,
supports, foundations, anchors, transmitters,
receivers, antennas, and signage.
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 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
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
Language specific to each agreement
negotiated individually to best reflect the
type of facility and services to be built and
provided.
to, radios, antennas, transmitters, wires, fiber
optic cables, Small Cells, and other wireless
transmission devices (collectively,
"Transmission Media") attached, mounted, or
switches, cut-off switches, electric meters,
installed on an existing utility pole located in the
conductors, poles, carriers, drains, vents, guy
wires, encasements, sleeves, valves, wires,
supports, foundations, anchors, transmitters,
receivers, antennas, and signage.
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.
2
Comparison of Small CeII Franchise Agreements
Location
Verizon Agreement
AT&T/Cingular Agreement
Mobilitie Agreement
Discussion
Section 1,
Definitions
8. "Franchise" mean the once
10. "Franchise" shall mean the once
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.
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.
shall grant,
accepted, to
grant,
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.
giving general permission
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.
Section 1,
Definitions
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.
Negotiated language specific to Mobilitie
Agreement
Section 1,
Definitions
13. "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.
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,
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.
New language broadens the definition of
publicly owned right-of-way negotiated
specific to AT&T Agreement
including areas that have been accepted by the
City for use as the public right-of-way and any
easement now or hereafter held by the City
within the corporate boundaries of the City as
now or hereafter constituted for the purpose of
public travel, and over which the City has
authority to grant permits, licenses, or
franchises for use thereof, or has regulatory
authority to thereover, excluding: railroad rights-
of-way, airports, harbor areas, buildings, parks,
poles, conduits, and excluding such similar
facilities or property owned, maintained, or
leased by the City in its proprietary capacity or
as an operator of a utility.
Section 1,
Definitions
15. "Service" shall mean the service or
services authorized to be provided by
VERIZON under the terms and conditions of
this Franchise Agreement.
17. "Service" shall mean the service or
services authorized to be provided by
Franchisee under the terms and conditions of
this Franchise.
18. "Service" or "Services" shall mean the
service or services authorized to be provided by
Franchisee under the terms and conditions of
this Franchise.
"Services" added for preference. Removed
"Agreement" throughout from
AT&T/Cingular and Mobilitie for preference,
intent not changed.
Section 1,
Definitions
19. "Small CeII" shall mean the Facilities at
a particular location that comprises part of the
Network.
Specific language negotiated by Mobilitie to
be included in the Agreement
3
Comparison of Small CeII Franchise Agreements
Location
Verizon Agreement
AT&T/Cingular Agreement
Mobilitie Agreement
Discussion
Section 1,
Definitions
16. "Telecommunications System" shall
mean all necessary Facilities to establish a
small cell network located in, under, and
above City owned Public Right(s)-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.
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.
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 other than
personal wireless services, including
ownership, operation, and/or managing of a
dark fiber network
Preference of use for the change from
Right(s) to Rights.
A dark fiber network is one that has fiber
but is not in use, therefore is not under
operation. Change to managing a dark fiber
network is a semantic change for
clarification purposes.
Section 2. Non-
exclusive
Franchse
Granted
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".
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
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".
Change is preference of wording but the
intent between agreements is the same.
within the present and future boundaries of
the City and hereinafter referred to as the
"Franchise Area".
Section 3.
Authority.
Section 3. Authority. The Director of Public
Works or his or her designee is hereby
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
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
Change to make language gender neutral
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
he deems to
Works Director deems necessary to carry out
Works Director deems necessary to carry out
procedures as or she necessary
carry out the provisions contained herein.
the provisions contained herein.
the provisions contained herein.
4
Comparison of Small CeII Franchise Agreements
Location
Verizon Agreement
AT&T/Cingular Agreement
Mobilitie Agreement
Discussion
Section 4.
Franchise Term
Section 4. Franchise Term. The franchise
rights granted herein shall remain in full force
and effect for a period of 10 years from the
effective date of this ordinance. However,
this Franchise Agreement shall not take effect
and VERIZON 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 VERIZON
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 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
VERIZON prior to the Franchise expiration
date.
Section 4. Franchise Term. The franchise
rights granted herein shall remain in full force
and effect for a period of 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
Section 4. Franchise Term.
A. Term. The franchise rights granted
herein shall remain in full force and effect for a
Period of 10 years from the effective date of
this ordinance (the "Term"). However, this
Franchise Agreement shall not take effect and
Mobilitie shall have no rights under this
Franchise Agreement unless a written
acceptance with the City is received pursuant
to Section 5 of this Agreement. If Franchisee
desires to renew this Franchise Agreement, it
shall file a renewal application with the City
between 180 days and 120 days prior to the
expiration of the existing term. In the event of
Use of "at the City's sole discretion" clarifies
that any decision to extend a franchise
agreement lies solely with the City.
"Termination by Mobility" section negotiated
specifically for their Agreement
discretion, extend the term of this Franchise
such filing, the City may, at the City's sole
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.
discretion, extend the term of this Franchise
Agreement for up to one year beyond the
expiration date to allow processing of renewal.
If the City elects to extend the term of this
Franchise, written notice of the extension shall
be provided to Franchisee prior to the
Franchise expiration date.
B. Termination by Mobilitie. Mobilitie
may terminate this Agreement, either in its
entirety or only as to Facilities installed at a
particular location, for any reason or no
reason in Mobilitie's sole discretion by
providing 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.
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 VERIZON 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 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 5. Acceptance of Terms and
Conditions. An acceptance of this Franchise
Language negotiated specific to Mobilitie
Agreement
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.
5
Comparison of Small CeII Franchise Agreements
Location
Verizon Agreement
AT&T/Cingular Agreement
Mobilitie Agreement
Discussion
Section 6.
Construction
Provisions and
Standards
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.
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. 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
"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.
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)
Section 6.
Construction
Provisions and
Standards
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
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
Public Improvement Projects, all developer
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
Public Improvement projects, all developer
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
improvements, and pertinent codes and
ordinances in effect on the date the permits
and authorizations are issued for the affected
Facilities.
improvements, and pertinent codes and
ordinances in effect on the date the permits
and authorizations are issued for the affected
Facilities.
improvements, and pertinent codes and
ordinances in effect on the date the permits
and authorizations are issued for the affected
Facilities.
Section 6.
Construction
Provisions and
Standards
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
VERIZON is not willing to comply with such
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 Franchisee is
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
Negotiated change specific to Mobilitie
Agreement, intent unchanged.
not willing to comply with such requirements;
compliance with such requirements; and, may
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.
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.
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.
6
Comparison of Small CeII Franchise Agreements
Location
Verizon Agreement
AT&T/Cingular Agreement
Mobilitie Agreement
Discussion
Section 6.
Construction
Provisions and
Standards
5. Construction Standards. Any
construction, installation, maintenance, and
restoration activities performed by or for
VERIZON 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.
VERIZON'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 tho City the City's
5. 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 the 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.
5. 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 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 the 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.
Grammatical preference in remove the
article before City.
Capitalization of "Effective Date" clarifies
the date is when this particular agreement
is enacted and governs. See below.
of or existing
lessees, licensees, permitees, franchisees,
easement beneficiaries or lien holders,
without prior written consent of tho 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.
Section 6.
Construction
Provisions and
Standards, 6.
Duty to Restore
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.
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.
a. Franchisee shall, after completion of
Construction of any part of its Network, leave
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"
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.
Section 6.
Construction
Provisions and
Standards, 6.
Duty to Restore
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.
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.
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.
Grammatical change made for consistency
7
Comparison of Small CeII Franchise Agreements
Location
Verizon Agreement
AT&T/Cingular Agreement
Mobilitie Agreement
Discussion
Section 6.
Construction
Provisions and
Standards
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
30 days notice to VERIZON, or without
8. 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 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 30 days of receipt of
an itemized list of those costs, including the
costs of labor, materials and equipment,
Franchisee shall pay the City.
8. 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 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 30 days of receipt of
an itemized list of those costs, including the
costs of labor, materials and equipment,
Franchisee shall pay the City.
Removal of "after 30 days" negotiated
prior
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.
Section 6.
Construction
Provisions and
Standards
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.
9. 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.
9. 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
Additional language specific to Mobilitie
Agreement
immediately prior to the affect, disturbance,
alteration, or damage, to the reasonable
satisfaction of the private property owner.
8
Comparison of Small CeII Franchise Agreements
Location
Verizon Agreement
AT&T/Cingular Agreement
Mobilitie Agreement
Discussion
Section 6.
Construction
Provisions and
Standards
10. Stop Work. On written notice from the
City that any Work does not comply with the
Franchise Agreement, the approved Design
Documents for the Work, the Standards, or
other applicable Law, or is being performed in
an unsafe or dangerous manner as
reasonably 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,
VERIZON shall cease and shall cause its
contractors and subcontractors to cease such
activity until the City is satisfied that
VERIZON 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 VERIZON 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 VERIZON fails to do so, and to
reasonably charge VERIZON for the costs
incurred to perform such inspection, repair, or
correction. Payment by VERIZON will be
made within 30 days following receipt of
written notice including itemized invoice and
supporting documentation evidencing such
cost.
10. 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
10. 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
"Written" removed to all for all types of
notices to be used.
Term "reasonably" removed to give final
authority to Tukwila to make the
determination when activity is unsafe or
dangerous, not compliant with standards or
laws, or not meeting the City-approved
designs.
Inclusion of "actual and documented"
provides assurance to the Franchisee that
the City will be able to produce a detailed
invoice of reimbursable costs incurred to
cure borne by the City.
costs incurred to perform such inspection,
repair, or correction. Payment by Franchisee
will be made within 30 days following receipt
of written notice including itemized invoice and
supporting documentation evidencing such
cost.
costs incurred to perform such inspection,
repair, or correction. Payment by Franchisee
will be made within 30 days following receipt
of written notice including itemized invoice and
supporting documentation evidencing such
cost.
9
Comparison of Small CeII Franchise Agreements
Location
Verizon Agreement
AT&T/Cingular Agreement
Mobilitie Agreement
Discussion
Section 6.
Construction
Provisions and
Standards
11. 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,
VERIZON and VERIZON's contractors and
subcontractors may not make any material
alterations to the Franchise Area without the
City's prior consent, which consent shall not
be delayed,
11. 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
11. 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
Negotiated changes between Tukwila and
the Franchisees.
Additional language in Mobilitie Agreement
provides clarification on maintenance-type
work not requiring additional permitting and
restricts replacement of equipment to the
same size and weight or smaller as the
original permitted use.
shall not be unreasonably withheld. The
parties acknowledge that nothing in this
agreement limits the City's rights under
applicable federal, state, and local laws to
regulate the placement and appearance of
Franchisee's Facilities in the Franchise Area.
Material alteration shall include, but not be
limited to: a change in the dimension, height,
location, or placement of the Facilities
shall not be unreasonably withheld. The
parties acknowledge that nothing in this
agreement limits the City's rights under
applicable federal, state, and local laws to
regulate the placement and appearance of
Franchisee's Facilities in the Franchise Area.
Material alteration shall include, but not be
limited to: a change in the dimension, height,
location, or placement of the Facilities. If
Franchisee desires to change either the
unreasonably withheld, or
conditioned. The parties acknowledge that
nothing in this agreement limits the City's
rights under applicable federal, state, and
local laws to regulate the placement and
appearance of VERIZON's Facilities in the
Franchise Area. Material alteration and/or
deviation shall include, but not be limited to:
a change in the dimension er height er
location or placement of the Facilities
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 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.
10
Comparison of Small CeII Franchise Agreements
Location
Verizon Agreement
AT&T/Cingular Agreement
Mobilitie Agreement
Discussion
Section 6.
Construction
Provisions and
Standards
12. Underground Installation Required.
All telecommunications cables and junction
boxes or other vaulted system components
shall be installed consistent with
12. Underground Installation Required.
All telecommunications cables and junction
boxes or other vaulted system components
shall be installed consistent with
12. Underground Installation Required.
All telecommunications cables and junction
boxes or other vaulted system components
shall be installed underground when and to
Language preference negotiated specific to
Mobilitie Agreement, intent of the section is
unchanged
underground
the requirements 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.
underground
the requirements 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.
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.
Section 6.
Construction
Provisions and
Standards, 13,
Relocation
a. The City shall have the right to require
VERIZON to alter, adjust, relocate, re -attach,
secure, or protect in place its Facilities within
the public right-of-way when reasonably
necessary for construction, alteration, repair,
or improvement of any portion of the public
rights-of-way for purposes of public welfare,
health, or safety ("Public Improvements").
Such Public Improvements include, but are
not limited to: public rights-of-way
construction; public rights-of-way repair
(including resurfacing or widening); change of
public rights-of-way grade; construction,
installation or repair of sewers, drains, water
pipes, power lines, signal lines,
communication lines, or any other type of
government-owned communications, utility,
or public transportation systems, public work,
public facility, or improvement of any
government-owned utility; public rights-of-way
vacation, and the construction of any public
improvement or structure by any
governmental agency acting in a
governmental capacity.
a. The City shall have the right to require
Franchisee to alter, adjust, relocate, re -attach,
secure, or protect in place its Facilities within
the public right-of-way when reasonably
necessary for construction, alteration, repair,
or improvement of any portion of the Public
Rights -of -Way for purposes of public welfare,
health, or safety ("Public Improvements").
Such Public Improvements include, but are
not limited to: Public Rights -of -Way
construction; Public Rights -of -Way repair
(including resurfacing or widening); change of
Public Rights -of -Way grade; construction,
installation, or repair of sewers, drains, water
pipes, power lines, signal lines,
communication lines, or any other type of
government-owned communications, utility or
public transportation systems, public work,
public facility, or improvement of any
government-owned utility; Public Rights -of-
Way vacation, and the construction of any
public improvement or structure by any
governmental agency acting in a
governmental capacity. In the event the City
requires Franchisee to relocate its Facilities,
the City shall provide Franchisee with written
notice requesting such relocation, along with
plans for the public improvement that are
sufficiently complete to allow for the initial
evaluation, coordination, and the development
of a relocation plan. The City and Franchisee
shall meet at a time and location determined
by the City to discuss the project requirements
including critical timelines, schedules,
construction standards, utility conflicts, as -built
requirements, and other pertinent relocation
plan details. The City shall notify Franchisee
as soon as practicable of the need for
a. 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
Rights -of -Way for purposes of public welfare,
health, or safety ("Public Improvements").
Such Public Improvements include, but are
not limited to: Public Rights -of -Way
construction; Public Rights -of -Way repair
(including resurfacing or widening); change of
Public Rights -of -Way grade; construction,
installation, or repair of sewers, drains, water
pipes, power lines, signal lines,
communication lines, or any other type of
government-owned communications, utility or
public transportation systems, public work,
public facility, or improvement of any
government-owned utility; Public Rights -of -
Way vacation, and the construction of any
public improvement or structure by any
governmental agency acting in a
governmental capacity. In the event the City
requires 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
"Public Rights -of -Way" and the use of
capital letters indicates the publicly owned
ROW specific to the Franchise and the
City's rights to require relocation. Change
included after Verizon Agreement was
approved.
Addition to last sentence negotiated
specific to Mobilitie Agreement
11
Comparison of Small CeII Franchise Agreements
Location
Verizon Agreement
AT&T/Cingular Agreement
Mobilitie Agreement
Discussion
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.
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.
Section 6.
Construction
Provisions and
Standards, 13,
Relocation
c. VERIZON 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
VERIZON 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, VERIZON shall submit additional
information to assist the City in making such
evaluation. The City shall give each
alternative proposed by VERIZON full and fair
consideration. In the event the City, in its
sole discretion, decides not to accept the
alternatives suggested by VERIZON,
VERIZON shall relocate its Facilities as
in Section 6,
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 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
c. 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 sole discretion, decides
not to accept the alternatives suggested by
Mobilitie, Mobilitie shall relocate its Facilities
Change gives more control to the City to
direct relocation but does not give authority
to go beyond authority or requirements
defined within the Franchise.
Facilities as directed by the City.
as directed by the City.
otherwise specified
subparagraph 5.
Section 6.
Construction
Provisions and
Standards, 13,
Relocation
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.
e. 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.
e. 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.
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
Section 6.
Construction
Provisions and
Standards
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
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.
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.
Inclusion of "/or" provides clarity on removal
and abandonment definition.
Use of "Facilities Constructed" implies the
facility in question is specifically related to
the Agreements
and Facilities. No facility constructed or
No Facility Constructed or owned by
No Facility Constructed or owned by Mobilitie
owned by VERIZON shall be abandoned
without the express written consent of the
City.
Franchisee shall be abandoned without the
express written consent of the City.
shall be abandoned without the express
written consent of the City.
12
Comparison of Small CeII Franchise Agreements
Location
Verizon Agreement
AT&T/Cingular Agreement
Mobilitie Agreement
Discussion
Section 6.
Construction
Provisions and
Standards
15. Bond. Before undertaking any of the
work, installation, improvements,
construction, repair, relocation, or
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 be in the
15. 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 $25,000.00. At Franchisee's sole
option, Franchisee may provide alternate
security in the form of an assignment of funds
or a letter of credit, in the same amount as the
bond. All forms of security shall be in a form
reasonably acceptable to the City. The bond
shall be conditioned so that Franchisee 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 Franchisee
work or materials discovered in the City's
roads, streets, or property.
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
Negotiated differences between
Agreements.
rights-of-way, in the amount of $25,000.00. At
Franchisee's sole option, Franchisee may
provide alternate security in the form of an
assignment of funds or a letter of credit, in the
same amount as the bond. All forms of
security shall be in a form reasonably
acceptable to the City. The bond shall be
conditioned so that Mobilitie shall observe all
the covenants, terms, and conditions and shall
faithfully perform all of the obligations of this
Franchise Agreement, and repair or replace
any defective Mobilitie work or materials
discovered in the City's roads, streets, or
property.
of security shall
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
City's roads, streets, or property.
Section 6.
Construction
Provisions and
Standards
18. Recovery of Costs. VERIZON 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
reasonablc 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
reasonablc costs and expenses directly to the
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 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.
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.
Negotiated change to ensure that any costs
incurred by the City are recovered without
the qualifier of "reasonable"
City.
13
Comparison of Small CeII Franchise Agreements
Location
Verizon Agreement
AT&T/Cingular Agreement
Mobilitie Agreement
Discussion
Section 7.
Franchise
Compliance
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.
A. Franchise Violations. The failure by
either the City or Franchisee (the "Defaulting
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.
Change provides direction should the City
be the Defaulting Party in the agreement.
Risk to the City is low.
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.
Section 7.
Franchise
Compliance, B,
Emergency
Actions
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 in-writi-ng and give
VERIZON 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.
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.
"in writing" removed to all for all types of
notices to be used.
14
Comparison of Small CeII Franchise Agreements
Location
Verizon Agreement
AT&T/Cingular Agreement
Mobilitie Agreement
Discussion
Section 8.
Insurance.
A. VERIZON shall maintain Commercial
General liability insurance during the full term
of this Franchise Agreement for bodily injury
(including death) and property damages. The
limit of liability shall be a combined single limit
in the amount of $2,000,000 for each
occurrence and $2,000,000 general
aggregate.
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.
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 anything to the contrary,
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.
Mobilitie may satisfy the foregoing insurance
requirements through a combination of
commercial general liability insurance and
umbrella or excess liability insurance.
Section 8.
Insurance.
B. Such 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; and shall stipulate that no
insurance affected by the City will be called
on to contribute to a loss covered thereunder.
Upon receipt of notice from its insurer(s) that
any insurance required by this Franchise
Agreement will be cancelled or will not be
renewed, and VERIZON will not replace such
insurance with coverage as required by this
Franchise Agreement, VERIZON shall
provide theeCity with 3days prior written
notice of such cancellation. Notice shall be
provided as required by Section 12 below.
at
Should the City receive such notice,City'sCommercial
discretion, the City may send a notice of
default to VERIZON allowing VERIZON 15
days to cure its failure to maintain insurance
as required by this Franchise Agreement. If
VERIZON fails to cure the default within such
15 -day the City may unilaterally
terminate period,this yAgreementyby
sending written Franchisenoticeof termination to
VERIZON. a.
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.
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
frompremises, operations, independent
p p
contractors, products -completed operations,
stop gap liability, personal injury and
advertisinginjury, and liability assumed under
Y
an insured contract. The Franchisee's
General Liability insurance shall
provide limits of $5,000,000 each occurrence;
$10,000,000 aggregate. There shall be no
exclusion for liabilityarisingfrom explosion,
ex p ,
collapse or underground property damage.
The 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.
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.
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 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.
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.
15
Comparison of Small CeII Franchise Agreements
Location
Verizon Agreement
AT&T/Cingular Agreement
Mobilitie Agreement
Discussion
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 of
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 of
$3,000,000 per accident. Coverage shall be
at least as broad as Insurance Services Office
$3,000,000 per accident. Coverage shall be
at least as broad as Insurance Services Office
(ISO) form CA 00 01.
(ISO) form CA 00 01.
3. Further, franchisee shall maintain
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 (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
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.
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.
4. Insurance is to be placed with
insurers with a current A.M. Best rating of not
less than A minus: VII.
4. Insurance is to be placed with
insurers with a current A.M. Best rating of not
less than A minus: VII.
5. 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 $200,000,000 as
evidenced in its annual certified financials. In
the event Franchisee elects to self-insure its
obligation under this Agreement to include the
5. 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 $200,000,000 as
evidenced in its annual certified financials. In
the event Franchisee elects to self-insure its
obligation under this Agreement to include the
City as an additional insured, the following
conditions apply:
City as an additional insured, the following
conditions apply:
(a) the City shall promptly and no later
than 30 days after notice thereof provide
a. 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 section and provide
Franchisee with written notice of any claim,
demand, lawsuit, or the like for which it seeks
coverage pursuant to this section and provide
Franchisee with copies of any demands,
notices, summonses, or legal papers received
in connection with such claim, demand,
lawsuit, or the like;
Franchisee with copies of any demands,
notices, summonses, or legal papers received
in connection with such claim, demand,
lawsuit, or the like;
16
Comparison of Small CeII Franchise Agreements
Location
Verizon Agreement
AT&T/Cingular Agreement
Mobilitie Agreement
Discussion
(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.
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.
Section 8.
Insurance.
C. VERIZON'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 VERIZON
shall be deemed servants and agents of
VERIZON for the purposes of this Franchise
Agreement and are subject to the same
restrictions, limitations, and conditions as if
the Work were performed by VERIZON.
VERIZON 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
Agreement and other applicable laws, and
shall be jointly and severally liable for all
damages and correcting all damage caused
by them. It is VERIZON's responsibility to
ensure that contractors, subcontractors, or
other Persons performing Work on
VERIZON's behalf are familiar with the
requirements of this Franchise Agreement
and other applicable Laws governing the
Work performed by them.
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 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 30 days prior to the
effective date of such cancellation if suoh
coverage is not replaced. Failure on the part
of Franchisee to maintain the insurance as
required shall constitute a material breach of
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 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.
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 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 Franchisee to correct
the breach, immediately terminate the
Franchise or, at its discretion, procure or
renew such insurance and pay any and all
Changes to the required insurance
coverage was negotiated with
AT&T/Cingular and Mobilitie after
recommendations by WCIA.
17
Comparison of Small CeII Franchise Agreements
Location
Verizon Agreement
AT&T/Cingular Agreement
Mobilitie Agreement
Discussion
the Franchise, upon which the City may, after
giving five business days' notice to 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.
premiums in connection therewith, with any
reasonable sums so expended to be repaid to
the City on demand.
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
VERIZON'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
transfer from VERIZON to
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
transfer from Franchisee to
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
Negotiated changes specific to Mobilitie
Agreement
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
any another
by,
any another
by,
into which Mobilitie may be merged or
person or entity controlling, controlled or
VERIZON.
person or entity controlling, controlled or
Franchisee.
consolidated or which purchases all or
under common control with
e •-.. - • - ' ' - - -
under common control with
Franchisee license fibers to
substantially all of the assets of Mobilitie that
_ _
the the City
may othcr uscrs
the the City that
are subject to this Agreement. The parties
users without consent of provided
that VERIZON for
without consent of provided
Franchisee for the
agree and acknowledge that, notwithstanding
remains solely responsible
the terms in this
remains solely responsible
terms in this Franchise
anything in this Agreement to the contrary,
and conditions outlined
Franchise Agreement.
and conditions outlined
Agreement.
certain Facilities deployed by Mobilitie in the
Public Rights-of-Way pursuant to this
Agreement may be owned by Mobilitie's third-
party wireless carrier customers ("Carriers")
and installed and maintained by Mobilitie
pursuant to license agreements between
Mobilitie and such Carriers. Such Facilities
shall be treated as Mobilitie's Facilities for all
purposes under this Agreement and
sublicensing shall not require the City's
consent provided that: (i) Mobilitie remains
responsible and liable for all performance
obligations under the Agreement with respect
to such Facilities; (ii) the City's sole point of
contact regarding such Facilities shall be
Mobilitie; and (iii) Mobilitie shall have the right
to remove and relocate the Facilities.
18
Comparison of Small CeII Franchise Agreements
Location
Verizon Agreement
AT&T/Cingular Agreement
Mobilitie Agreement
Discussion
Section 10.
Transfer of
Ownership.
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
hearing before the City Council and the
approval to such transfer shall be granted by
resolution of the City Council.
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.
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
Negotiated change specific to Mobilitie
Agreement
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.
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. 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.
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
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
Negotiated change between Franchisees
RCW 35.21.860(1)(e). Franchisee does
RCW 35.21.860(1)(e). Mobilitie does hereby
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.
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.
Administrative
Fees.
D. In the event VERIZON 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,
VERIZON shall reimburse the City for
franchise amendments and reasonable
expenses associated with the project.
VERIZON shall pay such costs within 60 days
of receipt of a bill from the City.
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.
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.
Negotiated change more beneficial to the
City.
19
Comparison of Small CeII Franchise Agreements
Location
Verizon Agreement
AT&T/Cingular Agreement
Mobilitie Agreement
Discussion
Section 13.
Indemnification
A. VERIZON 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. VERIZON shall
release, indemnify, defend, and hold the City
harmless from all claims, actions or damages,
including reasonable attorney's 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
VERIZON, its officers, agents, servants or
employees, carried on in the furtherance of
the rights, benefits, and privileges granted to
VERIZON by this Franchise.
A. Franchisee shall use reasonable and
appropriate precautions to avoid damage to
persons or property in the construction,
installation, repair, operation, and
maintenance of its structures and Facilities
within the Franchise Area. Franchisee shall
release, indemnify, defend, and hold the City,
its agents, employees, officers, officials, and
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,
its agents, employees, officers, officials, and
Negotiated change to expand
indemnification coverage.
Typographical correction from "attorney's"
to "attorneys-
volunteers harmless from all claims, actions,
volunteers harmless from all claims, actions,
losses, or damages, including reasonable
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.
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.
Section 13.
Indemnification
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.
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.
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.
Grammatical correction from "that" to
"which"
Section 13.
Indemnification
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.
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
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,
Negotiated changes to expand
indemnification coverage. Also extends the
coverage of this clause beyond the
termination of the Franchise Agreement.
officers, agents, officials, employees, and
officials, employees, and volunteers. This
volunteers. This waiver is mutually negotiated
waiver is mutually negotiated by the parties
and the provisions of this section shall survive
by the parties and the provisions of this
20
Comparison of Small CeII Franchise Agreements
Location
Verizon Agreement
AT&T/Cingular Agreement
Mobilitie Agreement
Discussion
section shall survive the expiration or
the expiration or termination of this Franchise
termination of this Franchise Agreement.
Agreement.
Section 16.
Police Powers.
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 System.
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.
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.
Negotiated change from
"Telecommunications System" to "Network"
specific to Mobilitie Agreement
Capitalization of "Area" to clarify that the
area in question is specific to the franchise
agreement, change throughout the AT&T
and Mobilitie agreements
Correction of typographical error from
"insure" to "ensure"
Section 17.
Future Rules,
Regulations
and
Specifications
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 hereunder;
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.
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.
Preference changes, intent unchanged
activities provided,
however, that 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.
21
Comparison of Small CeII Franchise Agreements
Location
Verizon Agreement
AT&T/Cingular Agreement
Mobilitie Agreement
Discussion
Section 19.
Calculation of
Time.
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 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 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.
Use of "Effective Date" defined under
Section 29 (see below)
Section 20.
Time Limits
Strictly
Construed.
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.
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.
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
Negotiated change specific to Mobilitie
Agreement
expiration of applicable notice and cure
periods.
Section 25.
Force Majeure.
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.
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 its employees, Franchisee shall
. 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.
Negotiated changes
not be deemed in Default of provisions of this
Franchise.
Section 25.
Force Majeure.
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
reasonably required by the City to
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;
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;
Negotiated change to remove "reasonably"
Grammatical correction from "that" to
"which"
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;
22
Comparison of Small CeII Franchise Agreements
Location
Verizon Agreement
AT&T/Cingular Agreement
Mobilitie Agreement
Discussion
Section 26.
Attorneys'
Fees.
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,
paralegals, accountants,
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 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,
Grammatical correction
Section 29.
Effective Date.
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.
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").
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").
Additional language further defines and
clarifies previous usages of "the Effective
Date" within the document
23
192
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, OFE_RATING, AND
MAINTAINING A TELECOMMUNICATIONS SYSI EM IN CERTAIN
PUBLIC RIGHTS-OF-WAY IN THE CITY; PROVIDING FOR
SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, New Cingular Wireless PCS, LLG, Delaware limited liability company,
hereinafter referred to as "Franchisee" i a ?lecoml inications company that, among
other things, provides personal wireless s,--rvicc .. ming data transmission, and other
telecommunications services to customers in Cie Puget Sound region; and
WHEREAS, Franchisee's desired route thrnugh 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 Cori}cil 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;
W: Word Processing \Ordinances\New Cingular Wireless Franchise Agreement markup TIS to C 0 W 6-27-18
CK.bjs:LH Page 1 of 23
193
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, HEREBY ORDAINS AS FOLLOWS:
Section 1. Definitions.
For the purposes of this Franchise and the E-1-it)i- Fxih.ibit attached hereto,
the following terms, words, phrases, and their derivations where capitalized shall have the
meanings given herein. Terms not defined herein shall have the meaning given in Title 11
of the Tukwila Municipal Code. Terms not defined herein or in Title 11 of the Tukwila
Municipal Code, shall have the meaning given pursuant to such federal statutes, rules, or
regulations that apply to and regulate the services provided by the -Franchisee. Words not
otherwise defined shall be given their common and ordinary meaning.
B. When not inconsistent with the context, words used in the present tense
include the future, words in the plural include the singular, and words in the singular include
the plural. The word "shall" is always mandatory. References to governmental entities
(whether persons or entities) refer to those entities or their successors in authority. If specific
provisions of law, regulation, or rule referred to herein are renumbered, then the reference
shall be read to refer to the renumbered provision.
C: 1. "Affiliate" when used in connection wall Franchisee means any Person
who owns or controls, is owned or controlled by, or is under common ownership or control
with Franchisee.
2. "Construct" shall mean ° cc su u_}, reconstruct, install, reinstall, align,
realign, locate, relocate, adjust, affix, attact ; eplace, repair, upgrade, monitor, maintain,
use, relocate, remove, or support.
3. "Contractor" shGRll rn, , ttractor selected and engaged by Franchisee
to Construct Facilities in t".- Riaht(s)-of-Way.
E. 4. "Costs" shall t nean 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.
G. 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 10a=4 -=;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.
7. "Dispute" shall mean a question or controversy that arises between the
Parties concerning the observance, performance, interpretation, or implementation of any
W: Word Processing\Ordinances\New Cingular Wireless Franchise Agreement markup TIS to C.O.W. 6-27-18
CK bis.LH Page 2 of 23
194
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.
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 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, ,-trains, vents, guy wires,
encasements, sleeves, valves, wires, supports, founds. -pions, anchors, transmitters,
receivers, antennas, and signage.
10. "Franchise" shall mean the grant, once t, 'epted, giving general
permission to Franchisee to enter into and upon the Public Rights -of -Nay to use and occupy
the same for the purposes authorized herein, all pursuant and subject to the terms and
conditions as set forth herein.
11. "Law(s)" shall mean all present and future applicable laws, ordinances,
rules, regulations, resolutions, environmental staridalub, orders, decrees and requirements
of all federal, state, and local governments. the departments, bureaus, or commissions
thereof, or other governmental authoa ties, it r luding the City acting in its governmental
capacity. References to Laws shalt k;=,_ int,7rr~i-eted 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.
14. "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.
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 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
W: Word Processing\Ordinances\New Cingular Wireless Franchise Agreement markup TIS to C.O.W 6-27-18
CK:bjs:LH
Page 3 of 23
195
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.
16. "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 pi -hl -i -e
d::.-orPubiic Works Director or their designee.
1, 17. "Service" or "Services" shall mean the service or services authorized to
be provided by the -Franchisee under the terms and conditions of this Franchise.
S: 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 xchange access services.
Telecommunications System shall not mean or include i acilities owned or used by
Franchisee for the provision of cable television services v,r:o programming, or services
other than personal wireless services, including ownership, op._ 'ation, and/or managing of
a dark fiber network.
T: 19. "Work" shall mean any and air activities of -the Franchisee, or its officers,
directors, employees, agents, contractors, subcontractors, volunteers, invitees, or licensees,
within the Public Rights -of -Way to Construct the Facilities.
Section 2. Non-exclusive Franchise Granted.
A. The City hereby grants t. Franchisee, subject to the conditions prescribed in this
ordinance ("Franchise Agrees Hent"), the franchise rights and authority to Construct and
operate its Facilities necessary for a Telecon)lmunications 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.
W Word Processing \Ordinances\New Lingular Wireless Franchise Agreement markup TIS to C.O.W 6-27-18
CK:bjs:LH
196
Page 4 of 23
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 ten ..-(10years 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 tar renewal, _If the City elects
to extend the term of this Franchise, written notice of thee' tension shall be provided to
Franchisee prior to the Franchise expiration date.
Section 5. Acceptance of Terms and Conditions. The III 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 thy= 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 froin 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 Warks
Department.
B- 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 C-alPublic 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.
G- 3. Notice to the Public. Except in the case of an Emergency, the City retains
the right to require -the Franchisee to notify the public prior to commencing any significant
planned Construction that Franchisee reasonably anticipates will materially disturb or
disrupt public property or have the potential to present a danger or affect the safety of the
public generally.
W. Word Processing\Ordinances\New Cingular Wireless Franchise Agreement markup TIS to C.O.W. 6-27-18
CK: bjs. LH
Page 5 of 23
197
l- 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 Franchisee is not willing to comply with such
requirements; and, may require removal of any Facility that is not installed in compliance
with the Standards provided in this Franchise or which is installed without prior City
approval of the time, place, or manner of installation.
E. 5. 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 '..)peration of any street
improvements, utilities, and related facilities of City or the City's existing lessees,
licensees, permitees, franchisees, easement benefic;iaries, or lien holders, without prior
written consent of City or the parties where improver,nts are interfered with and whose
consent is required pursuant to agreements vwi1h1 the City existing prior to the Effective
Date.
6. Duty to Restore.
I, a. Franchisee shall, after completion of construction of any Ra-r-typart of its
Telecommunications System, leave the Public Rights -of -Way and other property
disturbed nearby, in as good or better condition in all respects as it was in before the
commencement of such Construction. Franchisee agrees to promptly complete
restoration work to the reasonable satisfaction of the City and in conformance with City
standards.
2: b. 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.
c. If weather or other conditions do not allow the complete restoration
required, Franchisee shall temporarily restore the affected Public R g4 4Rights-of-Way or
public property. Franchisee shall promptly undertake and complete the required
permanent restoration when the weather or other conditions no longer prevent such
permanent restoration.
G— 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 twe+ ty-four (24),
hours.
W' Word Processing\Ordinances\New Cingular Wireless Franchise Agreement markup TIS to C,0 W. 6-27-18
CK:bis LH
198
Page 6 of 23
M: 8. Warranty._ Franchisee shall warrant any restoration work performed by
Franchisee in the Public Rights -of -Way or on other public property for tense -(2) years,
unless a longer period is required by applicable City Standards. If restoration is not
satisfactorily and timely performed by the -Franchisee, the City may, after prior notice to
the Franchisee, or without notice where the disturbance or damage may create an
imminent risk to public health or safety, cause the repairs to be made and recover the
actual, and documented cost of those repairs from the -Franchisee. Within thipty-(30) days
of receipt of an itemized list of those costs, including the costs of labor, materials and
equipment, the -Franchisee shall pay the City.
I- 9. 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.
d- 10. Stop Work. On notice from the City that any 'Nork does not comply with the
Franchise, the approved Design Documents for the VVoi I,: the Standards, or other
applicable Law, or is being performed in an unsafe or dangero'.s manner as determined
by the City, the non-compliant Work may immediately be stopp by the City. The stop
work order shall be in writing, given to the Per: on doing the Work and be posted on the
Work site, indicate the nature of the alleged viol ttirrn or unsafe condition and establish
conditions under which Work may be re-'lmed. If 'o ordered, Franchisee shall cease
and shall cause its contractors and subs, nil to c> -ase such activity until the City is
satisfied that Franchisee is in compliance If o 'fe condition is found to exist, the
City, in addition to taking any other action ; s rmitted under applicable Law, may order
Franchisee to make the necessary repairs G 'd 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 conect the unsafe condition if Franchisee fails to do so,
and to reasonably charge Franchisee for the actual and documented costs incurred to
perform such inspection, repair, or correction. Payment by Franchisee will be made within
thirty (30), days following receipt of written notice including itemized invoice and
supporting documentation evidencing such cost. The authority and remedy set forth
herein 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.
11. 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
Ag+ree tacireen nt 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
W. Word Processing\Ordinances\New Cingular Wireless Franchise Agreement markup TIS to C.O.W 6-27-18
CK.bjs:l.N Page 7 of 23
199
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.
12. 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 §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.
M.- 13. Relocation.
4 a. 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 p#:, right&Public Ricl s-of-w-ayWay for purposes of public welfare, health,
or safety ("Public Improvements"). Such Public Improvements include, but are not limited
to: pub4i _ Public Rights-of-wayWay construction; p Y Ivic rig-ht-sPublic Rights-of-
wayWay repair (including resurfacing or wideningl: change of rr -rig t6Pubiic Rights-
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; right -Public Rights of-wayWay
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 plays 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 n,-ty -(90) days.
2 b. 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
ti-rne#f--ar+etime frame specified by the City.
3 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
W: Word Processing\Ordinances\New Cingular Wireless Franchise Agreement markup TIS to C.O.W 6-27-18
CK bjs LH Page 8 of 23
200
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.
4 d. 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 n }htPublic Rictht-of-wayWay
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 ght-sPublic Ricahts-of- v -;Way. In the event relocation is required by reason of
construction by a third party, non-governmental entity, for rhe sole benefit of the third
party, non-governmental entity then Franchisee's relocprion costs shall be borne by the
third party.
6 e. If during the construction, repair, or maintenal e of the City's public
improvement project an unexpected conflict occu-: from Franchisee's Facilities,
Franchisee shall, upon notification from the City, gond within 24 hours to resolve the
conflict.
6 f. 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 publrc right Public Rights -of way'v Jay. may delay, hinder, or interfere with the
work performed by the City and its contras, :)rs and subcontractors in furtherance of
construction, alteration, repair, or improvement of the public rightoPubfic Rights-of-
wayWay, and result in damage o the City, including but not limited to delay claims.
Franchisee shall cool:erate °' ith E , -. City and its contractors and subcontractors to
coordinate such relocation wog to accommodate the public improvement project and
project schedules to avoid dela\ hindrance of, or interference with such project.
7 q. Should 1-,::r.nisee fail, within thi-rty-(30) days of receipt of written notice
from the City, to alter, adjust, protect in place, or relocate any Facilities ordered by the
City to be altered, adjusted, protected in place, or relocated, within the time prescribed by
the City, given the nature and extent of the work, or if it is not done to the City's reasonable
satisfaction, the City may, to the extent the City may lawfully do so, cause such work to
be done and bill the reasonable cost of the work to Franchisee, including all reasonable
costs and expenses incurred by the City due to Franchisee's delay. _1n 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.
W Word Processing\Ordinances\New Cingular Wireless Franchise Agreement markup TIS to C.O.W 6-27-18
CK bjs:LH Page 9 of 23
201
N.
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 f-a-ci!;ty oorctr: cto Facility Constructed or owned by Franchisee shall be
abandoned without the express written consent of the City.
0. 15. 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 T'.•.'onty F:':c'
Dc!icrc off, , J� nn [$$25,000.00}-_ At Franchisee's sole option, Franchisee may provide
alternate security in the form of an assignment of funds or a letter of credit, in the same
amount as the bond. An forms of security shall be in thea f_ i m reasonably acceptable to
the City. The bond shall be conditioned so that Frt;i ii hisee shall observe all the
covenants, terms, and conditions and shall faithfully perform SII of the obligations of this
Franchise Agreement, and te-repair or replace any r'F1=ective Frei i-hisee work or materials
discovered in the City's roads, streets, or proper'
P.-- 16. "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 interruption ; in service to Franchisee customers
which are a direct result of work performed for any City project for which Franchisee has
failed to properly locate its lines and Facilities within the prescribed time limits and
guidelines established by One -Call. The City shall also not be liable for any damages to
the Franchisee system components or for interruptions in service to Franchisee
customers resulting from work performed under a permit issued by the City.
Q. 17. As-Bui`r Plans Re,Auired. Franchisee shall maintain accurate engineering
plans and details of a installati -:is within the City limits and shall provide, at no cost to
the City, such informatiu. ilk h .n paper form and electronic form using the most current
AutoCAD version prior to ose-out of any permits issued by the City and any work
undertaken by Franchisee pursuant to this Franchise Agreement. The City shall
reasonably determine the acceptability of any as -built submittals provided under this
section.
R— 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 date the permits and
authorizations are issued for the affected Facilities. Where the City incurs costs and
expenses for review or inspection of activities undertaken through the authority granted
in this Franchise Agreement or any ordinances relating to the subject for which permit
fees have not been established, Franchisee shall pay such costs and expenses directly
to the City.
S.
W Word Processing\Ordinances\New Cingular Wireless Franchise Agreement markup TIS to C.O.W. 6-27-18
CK:bjs LH Page 10 of 23
202
19. 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.
20. 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, nghtPublic Ri,iht-of-w-ayWay, 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; declar_. 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 } situation caused by Franchisee, is reasonably deemed
by the City to create a threat . 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
W: Word Processing\Ordinances\New Cingular Wireless Franchise Agreement markup TIS to C.0 W 6-27-18
CK:bjs LH Page 11 of 23
203
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 Facilitiesi! 60 days of such termination,
provided that the City, at its sole option, may allow Fra,lchise o abandon its Facilities in
place.
E.- Receivership. At the option of the Co sl u' ;ect to applicable law and lawful
orders of courts of competent jurisdiction, this I r.anchise may be revoked after the
appointment of a receiver or trustee to take over and onduct the business of Franchisee
whether in a receivership, reorganization bankruptcy, or other action or proceeding,
unless:
1. -__The receivership or trusteeship timely vacated; or
2. -_The receiver or trustee has tow -31y and fully complied with all the terms and
provisions of this Franchise, and has remedied all defaults under the Franchise.
Additionally, the receiver or trustee shall have executed an agreement duly approved by
the court having jurisdiction, by which the receiver or trustee assumes and agrees to be
bound by each and every term, provision, and limitation of this Franchise.
Section 8. Insurance
A.- Franchisee shall maintain liability insurance during the full term of this Franchise
Agreement for personal injury and property damages which may arise from or in
connection with operations or activities performed by or on the -Franchisee's behalf with
the issuance of this Franchise. The Franchisee's maintenance of insurance as required
by the Franchise Agreement shall not be construed to limit the liability of the -Franchisee
to the coverage provided by such insurance, or otherwise limit the City's recourse to any
remedy available at law or in equity.
B.- Such required insurance shall include as additional insured, the City, its officers,
officials, and employees as their interest may appear under this Franchise Agreement,
excluding worker's compensation and employer's liability; shall apply as primary
insurance; shall stipulate that no insurance affected by the City will be called on to
contribute to a loss covered thereunder.
W: Word Processing\Ordinances\New Cingular Wireless Franchise Agreement markup TIS to C O.W 6-27-18
CK:brs:LH Page 12 of 23
204
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 Plic F--Rtit-yCity 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 e --of $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 Pollut:on Liability insurance (or Franchisee
shall self -insure the same) covering losses cauc uLa by pollution, conditions that arise in
connection with this Franchise. Franchisee's 9ruliution Liability insurance shall be written
in an amount of $1,000,000 per Toss, 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 n the 'nvestitation, defense, or settlement of
claims.
4. Insurance is to be r. cee .Kith :urers with a current A.M. Best rating of not
less than A minus: VII.
5. Notwithstanding the foregoing, Licensee may, in its sole discretion, self
insure any of the rFlaired insurance under the same terms as required by this
Air --e rne-rtagreeme as long Franchisee or its affiliated parent maintains a net worth
of at least "^'.1( $$200,000,000) as evidenced in its
annual certified financials._ In !`le event Franchisee elects to self -insure its obligation
under this Agreement to in Je the City as an additional insured, the following conditions
apply: {f}
a. the City shall promptly and no later than t-h+rty (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 Se-et+onsection and provide Franchisee with
copies of any demands, notices, summonses, or legal papers received in connection with
such claim, demand, lawsuit, or the like; (ii)
b. the City shall not settle any such claim, demand, lawsuit, or the like
without the prior written consent of Franchisee; and (i%
G. the City shall fully cooperate with Franchisee in the defense of the claim,
demand, lawsuit, or the like.
W: Word Processing\Ordinances\New Cingular Wireless Franchise Agreement markup TIS to C,O.W 6-27-18
CK:bjs:LH Page 13 of 23
205
C.- Franchisee's contractors and subcontractors performing Work in the Public
Rights -of -Way shall comply with such bond, indemnity, and insurance requirements as
may be required by City code or regulations, or other applicable Law. Any contractors or
subcontractors performing Work within the Public Rights -of -Way on behalf of the
Franchisee shall be deemed servants and agents of -the Franchisee for the purposes of
this Franchise and are subject to the same restrictions, limitations, and conditions as if
the Work were performed by Franchisee. Franchisee shall be responsible for all Work
performed by its contractors and subcontractors and others performing Work on its behalf
as if the Work were performed by it, and shall ensure that all such Work is performed in
compliance with this Franchise and other applicable laws, and shall be jointly and
severally liable for all damages and correcting all damage caused by them. It is
Franchisee's responsibility to ensure that contractors, subcontractors, or other Persons
performing Work on Franchisee's behalf are familiar with the requirements of this
Franchise and other applicable Laws governing the V.'ork performed by them.
Notwithstanding the foregoing, neither Franchisee ror any of its contractors,
subcontractors, or other Persons performing work o-) Franchisee's behalf shall be
required to apply any new laws to existing Facilities unless rec.uired by law.
D. The Franchisee shall provide the City w:th 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 the Franchise, upon which the City may,
after giving five business days' notice to 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 therewit 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.
W Word Processing\Ordinances\New Cingular Wireless Franchise Agreement markup TIS to C,0 W. 6-27-18
CK:bjs.LH Page 14 of 23
206
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. Any
reasonable administrative costs associated with a transfer of this Franchise that requires
the approval of the City shall be reimbursed to the City within 30 days of such transfer.
The transferee(s) shall thereafter be responsible for all obligations of Franchisee with
respect to the Franchise; provided, that the transfer shall not in any respect relieve the
Franchisee, or any of its successors in interest, of responsibility for acts or omissions,
known or unknown, or the consequences thereof, if the acts or omissions occur before
the time of the transfer.
Section 11. Administrative Fees.
A.- Pursuant to the Revised Code of Washington (RCW), the City is precluded from
imposing franchise fees for "telephone businesses" as defined in RCW 82.116.010, 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 :.ubjeet Le one-time $5,000 administrative fee for
reimbursement of costs ar,snciatc:d with the preparation, processing and approval of this
Franchise Agreement rhese -osL •'hall include, but not be limited to, wages, benefits,
overhead expenses equipment 'nd supplies associated with such tasks as plan review,
site visits, meetings, I. iotiation and other functions critical to proper management and
oversight of the City's rei't-of • ,ay. Administrative fees exclude normal permit fees as
stipulated in Title 11 of e. 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.
W: Word Processing\Ordinances\New Cingular Wireless Franchise Agreement markup TIS to C O.W 6-27-18
CK bjs.LH Page 15 of 23
207
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
�"Yiae 1. :h r; 4r. ,-. r•
l .l T,��aZa1
Email: TukwilaCitvClerkc tukwilawa.dov
Phone: 206-433-1855
With a copy to:
Public Works Director
City of Tukwila
6300 Southcenter Boulevard Ste. 1 d
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
W Word Processing\Ordinances\New Cingular Wireless Franchise Agreement markup TIS to C.O.W 6-27-18
CK bis I -H Page 16 of 23
208
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, ections or damages;
2. settle or compromise any claim, demand : uit or action;
3. appear in or defend any suit or action; or.
4. pay any judgment or reimburse the City' 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 •oncurrent negligence between Franchisee and the City,
Franchisee's obligations under paragraph shall only extend to its share of negligence
or fault. The City shall -e right at all times to participate through its own attorney in
any suit or action ,. .ich arise. out of any right, privilege, and authority granted by or
exercised pursuant this Franchise Agreement when the City determines that such
participation is required protea 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.
W Word Processing\Ordinances\New Cingular Wireless Franchise Agreement markup TIS to C O.W. 6-27-18
CK bjs LH Page 17 of 23
209
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 i+: being the intention of the
parties to preserve their respective rights and remedie :: under the law, and that the
execution of this Franchise Agreement does not conLitup u 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, r+r:paiiing, widening, or otherwise altering
any Public Rights -of -Way; laying down, repairing ci removing water mains; or installing
conduit or fiber optic cable.
Section 16. Police Powers.
A. Nothing contained herein shill 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 ar a t. n only subject to the terms and conditions of this Franchise
Agreement. This F, anchise ,z.greeiTlent and the permits issued thereunder shall be
governed by applic: d ,le City orlinances in effect at the time of application for such
permits.
B. Nothing in this Frar:.arise 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.
W Word Processing\Ordinances\New Cingular Wireless Franchise Agreement markup TIS to C O.W 6-27-18
CK.bjs'LH Page 18 of 23
210
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
8— 2. Be applied in a discriminatory manner as it pertains to Franchisee and other
similar user of such facilities.
Section 18.
..�.. ........ c ...etc.. .J .. .t5 �.
Scot?^' 4.1'. Entire Agreement. This Franchise contains all covenants and
agreements between the City and -the Franchisee relating in ,y manner to the Franchise,
use, and occupancy of the Public Rights -of -Way and f :her matters set forth in this
Franchise. No prior agreements or understanding pertillitL to the same, written or oral,
shall be valid or of any force or effect and the covenants and ay 'ement of th+s-Franchisee
shall not be altered, modified, or added to exc., pt in writing . +ned by the City and
Franchisee and approved by the City in the sa.,H, manner as the original Franchise was
approved.
Section 2019. 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 performc: 1 by Franchisee, such time shall be deemed to be of the
essence, and any failure of F ianchisee to perform within the allotted time may be
considered a Default of this Franchise.
Section 2221. 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 the City. Neither Party is
authorized to, nor shall either Party act toward third Persons or the public in any manner
that would indicate any such relationship. The Parties intend that the rights, obligations,
and covenants in this Franchise and any collateral instruments shall be exclusively
enforceable by the City and Franchisee, their successors, and assigns. No Person not a
Party hereto, and no such Person shall have any right or cause of action hereunder,
except as may be otherwise provided herein. Further, --the Franchisee is not granted any
express or implied right or authority to assume or create any obligation or responsibility
on behalf of or in the name of the City. However, nothing in this Seattsection prevents
an assignment as provided for in this Franchise.
W Word Processing\Ordinances\New Cingular Wireless Franchise Agreement markup TIS to C.O W 6-27-18
CK bjs•LH Page 19 of 23
211
Section 2322. 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 2423. 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 subsequen' L'Jefault thereof. No waiver of
any Default of the defaulting Party shall be implied from rai, : omission by the injured Party
to take any action on account of such default if such Default -nrsists or is repeated, and
no express waiver shall affect any default other th2 , the defau; :specified in the express
waiver and then only for the time and to the ext.: -+t therein stated. One or more waivers
by the injured Party shall not be construed as a ,vaivr- 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, the -Franchisee shall no longer have the right to occupy the
Franchise Area for the purpose of providing services authorized herein. However, --tire
Franchisee's obligations uncle' this Franchise to the City shall survive the expiration,
termination, revocation, or foiteiture*`^Pse rights according to its terms for so long as
the -Franchisee's Telecommunications System or any part thereof shall remain in whole
or in part in the Public Rights -of -‘,Nay, or until such time as the --Franchisee transfers
ownership in all Facilities in the Franr.hise Area to the City or a third -Party, or until such
time as the -Franchisee abandons said Facilities in place, all as provided herein. Said
obligations include, but are not limited to: _Franchisee's obligations to indemnify, defend,
and protect the City;; to provide insurance,_ to relocate its Facilities;; and to reimburse the
City for its costs to perform Franchisee's work.
Section 2-625. Force Majeure.
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 its employees, Franchisee shall not be deemed in Default of provisions of
this Franchise.
W: Word ProcessinglOrdinances\New Cingular Wireless Franchise Agreement markup TIS to C.0 W. 6-27-18
CK.bjs:LH Page 20 of 23
212
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 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 withwhich is satisfactory to the City; provided that -The
Franchisee shall perform to the maximum extent it is able to perform and shall take
reasonable steps within its power to correct such cause(s) in as expeditious a manner as
possible;i 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 tho Fro:-;ch oo'c
arnni,-., coo ..,-.,. ct,' or +h„ hoa! k s f-e-t , .,,1 ;rt.., r ty fh., Franchisee's employees
or property, or the health, safety, and integrity of the public, Public Rights--of _Way, public
property or private property.
Section 726. Attorneys' Fees. In the event--of a 'action, arbitration, or other
proceeding of any nature whatsoever, whether in con, act of in tort or both, is instituted
to enforce any word, article, section, subsection, p : agraph, pi :; rision, condition, clause
or sentence of this Franchise or its applicatier, to any person, or circumstance, the
prevailing Party shall be entitled to recover from rie losing Party its reasonable
attore attomnays'. paralegals, accountants, and ,..Lher expert fees and all other fees,
costs, and expenses actually incurred an ,:!asonably 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 shell 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 2827. 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 X928. 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.
W: Word Processing\Ordinances\New Cingular Wireless Franchise Agreement markup TIS to C.O.W. 6-27-18
CK:bjs.LH Page 21 of 23
213
Section 3029. 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 °.i e City Clerk:
Passed by thc ,ity Council:
Pubikited:
EF dive Date:
Number:
Attachments:— Exhibit A - Franchise Agreeme . AccLptance Form
W: Word Processing\Ordinances\New Cingular Wireless Franchise Agreement markup TIS to C.O.W. 6-27-18
CK bjs:LH Page 22 of 23
214
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 ' of City of Tukwila Ordinance
No. , passed by the City Council and at ,:>'ov:J by the Mayor on
(the "Ordinance"), N Cingular Wireless, a Delaware
limited liability company, hereby accepts 'he terms, cc, -litions and obligations to be
complied with or performed by it under the Ordin.
Sincerely,
NEW CINGULAR WIRELESS SCS LLL.,
a Delaware limited liabili+,�mp�- ,fir
By: AT&T Mobility nrporation
By:
Name:
Title:
Date:
cc: Public Works Director, City of Tukwila, 6200 Southcenter Blvd, Tukwila, WA 98188
W: Word Processing\Ordinances\ew Cingular Wireless Franchise Agreement markup TIS to C O.W 6-27-18
CK:bjs LH Page 23 of 23
215
216
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 forthe 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 forthe 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.
217