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TIC 2018-07-23 Item 2C - Ordinance - Small Cell Technology Franchise Agreement with Mobilitie LLC
9O& City of Tukwila Public Works Department - Henry Hash, Director INFORMATIONAL MEMORANDUM TO: Transportation and Infrastructure Committee FROM: Harry Hash, Public Works Director //1,4. BY; Cyndy Knighton, Senior Program Manager CC: Mayor Ekberg DATE: July 20, 2018 SUBJECT: Ordinance - Mobilitie, LLC Small CeII Technology Franchise Agreement ISSUE Approve Ordinance for Mobilitie, LLC Franchise Agreement. Allan Ekberg, Mayor BACKGROUND Mobilitie, headquartered in Nevada, is a telecommunications company that provides, among other things, high capacity interexchange transport to telecommunications common carriers. Mobilitie is currently in the stages of deploying small cell technology to expand the capacity of its wireless network. Staff has negotiated with Mobilitie to develop the attached draft Franchise Ordinance. ANALYSIS This Ordinance is consistent with the Verizon Franchise Ordinance approved by Council in February 2018 as well as the draft New Cingular Wireless Franchise Ordinance, 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, Mobilitie 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 Mobilitie 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 Mobilitie, 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 W:IPW Eng\PROJECTS1FranchiselTelecom\MOBILITIEIINFO MEMO Mobilise Franchise AG Small Cells 072018.docx 55 AN ORDINANCE OF THE CITY COUNCIL OF TUKWILA, WASHINGTON, GRANTING A NO FRANCHISE TO MOBILITIE, LLC, A N LIABILITY COMPANY, FOR THE CONSTRUCTING, OPERATING, A SMALL CELLS IN CERTAIN PUB THE CITY; PROVIDING FO ESTABLISHING AN EFFECTIV THE CITY OF -EXCLUSIVE DA LIMITED RPOSE OF INTAINING /RIGHT *WAY IN RABILI ; AND SEV WHEREAS, Mobilitie, LLC, a Ne OR limited ability company, d/b/a Mobilitie, � hereinafter referred to as "Mobilitie" or ` ark , " i a telecommunications company that, among other things, provides City interexchange transport to telecommunications common ding data transmission, linkage to long distance carriers, and other Sound region; and WHEREAS, Mobil'' as "City," requires operation, and mai eco unic ons //O///////// services to customers in the Puget ute through the City of Tukwila, hereinafter referred to v portions of City rights-of-way for the installation, all Cells; and use ance of WHEREAS, the Cit:was determined that the use of portions of the City's rights- of-way for installation of S `; ells is appropriate from the standpoint of the benefits to be derived by local business and the region as a result of such services; and WHEREAS, the City Council also recognizes that the use of public rights-of-way must be restricted to allow for the construction of amenities necessary to serve the future needs of the citizens of Tukwila and that the coordination, planning, and management of the City's rights-of-way is necessary to ensure that the burden of costs for the operations of non - municipal interests are not borne by the citizenry; and WHEREAS, the Revised Code of Washington (RCW) authorizes the City to grant and regulate non-exclusive franchises for the use of public streets, rights-of-way, and other public property for installation, operation, and maintenance of a fiber optic system and transmission of communications; W: Word Processing\Ordinances\Mobilitie Franchise Agreement markup TIS to C.O.W. 6-28-18 CK:bjs: LH Page 1 of 24 56 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: Section 1. Definitions, A. For the purposes of this Franchise and the ExhibitsExhibit 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 ords in the singular include the plural. The word "shall" is always mandatory. Refer ces to governmental entities (whether persons or entities) refer to those entities or the re essors in authority. If specific provisionsregulation, of law, re , or rule referred to herei =e re ; bered then the reference n ,? shall be read to refer to the renumbered provision. . 1. "Affiliate" when used in conn tions Franchisee means any Person who owns or controls, is owned or controlled by, ender common ownership or control with Franchisee. 9„ . 2. "Construct" shall means c�,pj . reconstruct, install, reinstall, align, realign, locate, relocate, adjust, affi,11 ach,� ce, r pair, monitor, maintain, use, relocate, remove, and/or support. irr�inrl 3. "Contrac� J II °��n any contractor selected and engaged by Mobilitie to Construct Facilities p; e Pub jig ° )-of-Way. 4. "Costsall mea ethe actual and documented costs incurred. 1� G: 5. "Defaul//9fir, ns under any failure of a Party to keep, observe, or perform any of its duties or obligati ns under this Franchise beyond applicable notice and cure periods. 6. "Design Document(s)" shall mean the plans and specifications for the Construction of the Facilities meeting at least the minimum applicable general plan submittal requirements for engineering services plan review as set forth in the City's Infrastructure Design and Construction Standards manual, ("the Standards"), illustrating and describing the refinement of the design of the Facilities to be Constructed, establishing the scope, relationship, forms, size, and appearance of the Facilities by means of plans, sections, and elevations, typical construction details, location, alignment, materials, and equipment layouts. The Design Documents shall include specifications that identify utilities, major material and systems, Public Right -of -Way improvements, restoration and repair, and establish in general their quality levels. W: Word Processing\Ordinances\Mobilitie Franchise Agreement markup TIS to C.0 W, 6-28-18 CK:bjs: LH Page 2 of 24 57 7. "Dispute" shall mean a question or controversy that arises between the Parties concerning the observance, performance, interpretation, or implementation of any of the terms, provisions, or conditions contained in this Franchise or the rights or obligations or either Party under this Franchise. 8. "Emergency" shall mean and refer to a sudden condition or set of circumstances that: (a) significantly disruptdisru is or interRiptinteir ts the operation of Facilities in the Public Rights -of -Way and Franchisee's ability to continue to provide services if immediate action is not taken or (b) present an immediate threat of harm to persons or property if immediate action is not taken. - 9. "Facility" or "Facilities" means any part or all of the facilities, equipment, and appurtenances of Franchisee whether underground or overhead and located within the Public Rights -of -Way as part of the Franchisee's Network, including but not limited to, radios, antennas, transmitters, wires, fiber optic cables, Sma) i Celis and other wireless transmission devices (collectively, "Transmission Media") an existing utility pole located in the Public Rights -of/ wireless, Wi-Fi, voice, data, messaging, or similar t; future offered to the public in general using spej r m radio fr licensed by the Federal Go ;mom,, €atccComm "Facilities" also means the control boxes, meters 4 power sources, poles and replacement p.les and appurtenances between the Transmissio $1 and and interconnects with broadband backha hed, mounted, or installed on %lor the purpose of providing •i•"ss service now or in the ncies, whether or not ommiss on ("FCC")._ "Facility" or c meter pedestals, cables, conduit, r equipment, structures, plant, and prpoint where the Facility terminates facilities. he grant giving general permission to hts-of-Way to use and occupy the same for d subject to the terms and conditions as set ation 10. "Franchise" Franchisee to enter into and the purposes authorized her forth herein. L, 11. (s)„ constitutionslaws, ances, federal, state, and local , or other governmental age iii; a ear the ldblic t an all present and future applicable statutes, les, regulations, resolutions, environmental standards, orders, decrees and requirements of the City all nents, the departments, bureaus, or commissions thereof, •..�v. +ham R rt .e, -.,—e onties, including the City acting in its governmental capacity. References to Laws shall be interpreted broadly to cover government actions, however nominated. 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. 13. "Party(ies)" shall mean either the City or the Franchisee or both. 14. "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. W: Word Processing\Ordinances\Mobilitie Franchise Agreement markup TIS to C.O.W. 6-28-18 CK:bjs LH Page 3 of 24 58 15. "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. 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. 17. "Public Works Director" shall mean tublic Works Director for the City or their designee, or such officer or person who hassigned the duties of public ^�crc throw+orPubiic Works Director or their designe Li a r'.I irks 3n nnifin r an1,1 rcarya, ®Avr' ` . „ oin+oro ithrxi±l.... $ nes nrdi+•:.....n bI Righty of.Wa tea. cft do b t v, norm i+ r+rrsn�+,,,,,• vnn�ga +inn me-, rm6+ hn re; and "'Q'"`... GG ra®i• Y477 vw GG ��d,,� .. o n n+ rse--1 t�.�'�Zr•� in +hn I Ini+• r1 C��."�2"�' :...... vnine 4-+- -.-,v, ,,;: nrrinn r imi 1, •n i... �.. rnl using .y w 77 +r. +r.n inn•':=+ r'i+o, +hM+ J, roo� 'oa. ng cm, -l. g.-- din I 1 Com!%%% ?/F2\h + oh 11 1 ,. ,.,„ f non h`I•+�, r in !Tr. is 1; n.+� nr in +h.. f, 14, 1r,. nff M:;r,ad +n +hn, .^�.,,.."wh-eth -nr nn+ Iioenc_�_rl by.. the FCQ to ...� r. � .ti -n. 1'Sen 1inn11 shn,11�21.sf_ inn! the-. offering. . .. v . Y 1.l C.r. JT...a .. ...,.+ �.. ... lerinn + n nn nnrd nnn,+ent,,,,,,, via telpr•nmw+..nivn+i-'55 s the same may s...vote over ,Hy,1e +hcu+ ;.m i+n+inn 'eiirnlps-s-- /�Y nr in +h,,h,, f. ..r off r nn+ line sed by the FC f hlishin.yn •�i „nin or r imilur typo of WV;.r©{QAC+.. C en.finr, r o /lini�L4r, Nnn+ri WI" .r�,C,1}� ff-Can. arlesiQprth Cher. 18. "Service" or "Services" shall mean the service or services authorized to be provided by Franchisee under the terms and conditions of this Franchise. 19. "Small Cell" shall mean the Facilities at a particular location that comprises part of the Network. if 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 programminq, or services W: Word Processing\Ord'inances\Mobilitie Franchise Agreement markup TIS to C.O.W. 6-28-18 CK:bjs. LH Page 4 of 24 59 other than personal wireless services, including ownership, operation, and/or managing. of a dark fiber network. 21. "Work" shall mean any and all activities of -the Franchisee, or its officers, directors, employees, agents, contractors, subcontractors, volunteers, invitees, or licensees, within the Public Rights -of -Way to Construct the Facilities. Section 2. Non-exclusive Franchise Granted. A. The City hereby grants to Mobilitie, subject to the conditions prescribed in this ordinance ("Franchise Agreement"), the franchise rights and authority to Construct and operate its Facilities necessary for a to!ecow'm.wr icat`onc fa -iflt^yTelecommunications System within the City -owned Public Rights -of -Way, generally described as that area within the present and future boundaries of the City and hereinafter referred to as the "Franchise Area". B. The foregoing franchise rights and authority ("F chise") shall not be deemed to be exclusive to Mobilitie and shall in no way prohi o it the City's ability to grant other franchises,r permits or rights along, over, or u ger the as to which this Franchise has been granted to Mobilitie; provided, that su j.ther franchf4 do not unreasonably interfere with Mobilitie's exercise of franchise r ted herein as determined by the City. This Franchise shall in no way interferedI p, fisting utilities or in any way limit, prohibit, or prevent the City from using th Franch� �rea or affect the City's jurisdiction over such area in any way. , C. This Franchise Agreeme mere ���ionr%s Mobilitie to occupy and use the Franchise Area. Nothing conta d 0 ein 4 II be construed to grant or convey any right, title, or interest in the Francf) Are 10 Mobile. D. -City does not warran�F e or pr perty interest in or to any franchise area nor undertake to defend fr '�4 i , - peaceable possession or use of the franchise area. No covenant of qui,/njoym is •de. Section 3. Aut Vty. Th Director of Public Works or designee is hereby granted �`,� the authority to admin �d enforce the terms and provisions of this Franchise Agreement and may devef& 'such lawful and reasonable rules, policies, and procedures as the Public Works Director deems necessary to carry out the provisions contained herein. Section 4. Franchise Term. A. Term. The franchise rights granted herein shall remain in full force and effect for a period of 10) years from the effective date of this ordinance (the "Term"). However, this Franchise Agreement shall not take effect and Mobilitie shall have no rights under this Franchise Agreement unless a written acceptance with the City is received pursuant to Section 5 of this Agreement. _If Franchisee desires to renew this Franchise Agreement, it shall file a renewal application with the City between 180 days and 120 days prior to the expiration of the existing term. _In the event of such filing, the City may, at the City's sole discretion, extend the term of this Franchise Agreement for up to one year beyond the expiration date to allow processing of renewal. _If the City elects to extend the term of this W. Word Processing\Ordinances\Mobilitie Franchise Agreement markup TIS to C O.W, 6-28-18 CK:bjs: LH Page 5 of 24 60 Franchise, written notice of the extension shall be provided to Franchisee prior to the Franchise expiration date. B. Termination by Mobilitie. Mobilitie may terminate this Agreement, either in its entirety or only as to Facilities installed at a particular location, for any reason or no reason in Mobilitie's sole discretion by providing thirty (30} days' written notice to the City, in which case Mobilitie shall remove the subject Facilities or, with the approval of the City, abandon such Facilities in place. Section 5. Acceptance of Terms and Conditions. An acceptance of this Franchise Agreement and all the terms and conditions, in the form attached hereto as Exhibit A, shall be filed with the City Clerk within 30 days of the effective date of this ordinance. Failure on the part of Mobilitie to file said consent within 30 days of the effective date of this ordinance shall void and nullify any and all rights granted under this Franchise Agreement, and in such event this Agreement shall termina without further obligation to either party. Section 6. Construction Provisions and Sta 1('ar The following provisions shall be considered mandatory and failure to abij 1by any cdI1 itions described herein shall be deemed as non-compliance with the ter r'of t s Franck Ih Agreement and may result in some or all of the penalties specified i X07//i 1. Permit Required. No structid ijraintenance, or repairs (except for q ���i �i emergency repairs) shall be undertake Fra�P,.ise Area without first obtaining g Y p ) °i, �� appropriate permits from the City of TukS2a/ ;�� in the case of an Emergency. In case of an Emergency, Mobilitie, roc ith Construction, maintenance, or repairs necessary to address the Eme., ;,: ncy ,;,itho � rst obtaining appropriate permits, but shall, within 24 hours of the Emerge; cy o �� /°rit from the City of Tukwila's Public Works Department. Such 24-hour pe" / altended to accommodate the duration of any closure of the City of �s %,clic Works Department (for example, for a holiday or weekend). - 2. Co& nation I% Il capital Construction projects performed by Mobilitie within the Franchise Ar'p h..�=i /ell by a City inspector. All work and inspection shall be coordinated with Engineering Division of the Public Works Department to ensure consistency with City infrastructure, future Public Improvement projects, all developer improvements, and pertinent codes and ordinances in effect on the date the permits and authorizations are issued for the affected Facilities. 3. Notice to the Public. Except in the case of an Emergency, City retains the right to require the Franchisee to notify the public prior to commencing any significant planned Construction that Franchisee reasonably anticipates will materially disturb or disrupt public property or have the potential to present a danger or affect the safety of the public generally. 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 W. Word Processing\Ordinances\Mobilitie Franchise Agreement markup TIS to C.O.W. 6-28-18 CK:bjs: LH Page 6 of 24 61 Franchise Area and may deny access except in compliance with such requirements; and, may require removal of any Facility that is not installed in compliance with the Standards provided in this Franchise or which is installed without prior City approval of the time, place, or manner of installation. 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 e or operation of any street improvements, utilities, and related facilities of City r the City's existing lessees, licensees, permitees, franchisees, easement benefic�s9/ lien holders, without prior written consent of City or the parties whose improvents arterfered with and whose consent is required pursuant to agreements wi e City exisf prior to the Effective Date. 6. Duty to Restore. a. Franchisee shall, a Network, leave the Public Rights -of -Way or better condition in all resp- °e it Construction. Franchisee ag to p4 mptl satisfaction of the City and i ion of Construction of any part of its e 'perty disturbed nearby, in as good in before the commencement of such mplete restoration work to the reasonable h City standards. b. If /RV hi s Work causes unplanned, unapproved, or unanticipated disturce or is-ra or damage to Public Rights -of -Way or other public property, it shall p a�tly rem e any obstructions therefrom and restore such Public Rights -of -Way and pcjj prop y to the satisfaction of the City and in accordance with City Standards. 3: c. If weather or other conditions do not allow the complete restoration required, Franchisee shall temporarily restore the affected Public 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. 6: 7. Notice._ If Franchisee's Work causes unplanned, unapproved, or unanticipated disturbance or damage to Public Rights -of -Way or other public or private property, the Franchisee shall promptly notify the property owner within twenty four (24) - hours. 8. Warranty._ Franchisee shall warrant any restoration work performed by Franchisee in the Public Rights -of -Way or on other public property for two—(2) years, unless a longer period is required by applicable City Standards. If restoration is not W: Word Processing\Ordinances\Mobilitie Franchise Agreement markup TIS to C.O.W. 6-28-18 CK:.bjs: LH Page 7 of 24 62 satisfactorily and timely performed by the -Franchisee, the City may, after prior notice to the Franchisee, or without notice where the disturbance or damage may create an imminent risk to public health or safety, cause the repairs to be made and recover the actual, and documented cost of those repairs from the -Franchisee. Within thirty -(30) days of receipt of an itemized list of those costs, including the costs of labor, materials and equipment, the -Franchisee shall pay the City. - 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 immediately prior to the affect, disturbance, alteration, or damage, to the reasonable satisfaction of the private property owner. 10. Stop Work. On notice from the City that any Work does not comply with the Franchise, the approved Design Documents for the VjJ, ofk, the Standards, or other applicable Law, or is being performed in an unsafe or d ,, rous manner as determined by the City, the non-compliant Work may immediately • ped by the City. The stop work order shall be in writing, given to the Person •i 'g thefrk and be posted on the Work site, indicate the nature of the alleged viol �n or unsa 1ondition and establish conditions under which Work may be resume/If s• .rdered, Franchisee shall cease and shall cause its contractors and subcontrac �� ease such activity until the City is satisfied that Franchisee is in compliant . If an ,- afe condition is found to exist, the City, in addition to taking any other ac itte, der applicable Law, may order G, ��i/„//r Franchisee to make the necessary repai•�� an /� � tions specified therein forthwith to correct the unsafe condition by a the 4'stab ` (hes in its discretion. The City has ����"� safe condition if Franchisee fails to do the right to inspect, repair, an./ ape the so, and to reasonably charge Fj!% chis /for th4ctual and documented costs incurred to perform such inspection, reps#,•r . r mePayment tby �Franchisee will be made within thirty (30) days folio ec.�=t, of written notice including itemized invoice and supporting docume fbn nr such cost. The authority and remedy set forth herein in this sects ;%fs in addi to and not a substitute for, any authority the City may otherwise have to to nforce„ nt action for violation of City Codes or Standards. 11. Alteration. °°'r,7i5t as may be shown in the Design Documents approved by the City or the records dr -wings, 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 A.reen arreernent limits the City's rights under applicable federal, state, and local laws to regulate the placement and appearance of Franchisee's Facilities in the Franchise Area. Material alteration shall include, but not be limited to: a change in the dimension, height, location, or placement of the Facilities. If Franchisee desires to change either the location of any Facilities or otherwise materially deviates from the approved design of any of the Facilities, Franchisee shall submit such change to the City in writing for its approval. Franchisee shall have no right to commence any such alteration until after Franchisee has received the City's approval of such change in writing. Under no circumstance shall Franchisee permanently affix anything in the Franchise Area that has not been permitted by the City and/or that inconveniences the public use of the right of way or adversely W Word Processing\Ordinances\Mobilitie Franchise Agreement markup TIS to C.O.W. 6-28-18 CK:bjs: LH Page 8 of 24 63 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 fiftecn (15} days after the modification is made. K, 12. Underground Installation Required. All telecommunications cables and junction boxes or other vaulted system components shall be installed underground when and to the extent required by Tukwila Municipal Code §Section 11.32.090(B), unless otherwise exempted from this requirement, in writing, by the Public Works Director, provided however, this requirement shall not apply to the Facilities that are required to remain above ground in order to be functional. 13. Relocation. 1, a. The City shall have the rig O`o requir, Mobilitie to alter, adjust, relocate, re -attach, secure, or protect in place) , acil',V'es with Athe public right-of-way when reasonably necessary for construction, %„ ra , repair, or improvement of any portion of the Public gigh-t-Rights-of-_Way for pure s of public welfare, health, or safety ("Public Improvements"). Such Public mentLelude, but are not limited to: Public Rights -of -Way construction; Public R ts�%f ��, pair (including resurfacing or /D/ /%,, widening); change of Public Rights of -W ,. e; nstruction, installation, or repair of • sewers, drains, water pipes, po mss s: al lines, communication lines, or any other �e type of government-owned m �:catio �, utility or public transportation systems, public work, public facility,�� im , ;4ij ;1of any government-owned utility; Public iii ,i Rights -of -Way vacation, . d tl����nstruction of any public improvement or structure by any governmental a. 'P' ind ,;y a governmental capacity. In the event the City requires Mobilitie elocate F fifties, the City shall provide Mobilitie with written notice requesting suC relocatif° , along with plans for the Public Improvement that are sufficiently complete tc�iAow f;/he initial evaluation, coordination, and the development plan. Th of a relocation� ; and Mobilitie shall meet at a time and location determined by the City to discuss the 6roject requirements including critical timelines, schedules, construction standards, utility conflicts, as -built requirements, and other pertinent relocation plan details. The City shall notify Mobilitie as soon as practicable of the need for relocation and shall specify the date by which relocation shall be completed. Except in case of emergency, such notice shall be no less than 90 days before the relocation is to be completed. b. To ensure timely execution of relocation requirements, Mobilitie shall, upon written request from the City, provide at Mobilitie's expense, base maps, current as -built information, detailed relocation plan (including detailed schedule of relocation activities, identification of critical path, identification of Facilities, and relocation procedures), and other design, technical, or operational requirements within the timcframotime frame specified by the City. W Word Processing\Ordinances\Mobilitie Franchise Agreement markup TIS to C.O.W. 6-28-18 CK:bjs: LH Page 9 of 24 64 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 as directed by the City. d. Upon final approval of the relocation plan by the City, Mobilitie shall, at its own expense, unless otherwise prohibited by statute, and at the time frame specified ice underground, change or ublic Right -of -Way whenever dergrounding, change, or n, repai(,aintenance, installation, nt in or upor4$e Public RightRights- •onstruction by a third party, non - arty, non-governmental entity then arty. by the City, temporarily or permanently remove, relocate alter the position of any Facilities or structures within tl� the City has determined that such removal, reloca(,,'� alteration is reasonably necessary for the constru public safety, or operation of any public improv of -Way._ In the event relocation is required by r governmental entity, for the sole benefit of the t Mobilitie's relocation costs shall be borne e. If during the constru Improvement project an unexpe shall, upon notification from t I m r n the conflict)._ in performing the Public Rights-of-Wa and its contractors an improvement of the Publii not limited to, delay claims. o maintenance of the City's Public con fl��ccursfrom Mobilitie's Facilities, Mobilitie res fid within 24 hours to resolve the conflict prof time cc d t� to rosomow. e. r.. r,,., ,,,.. .., , ....,. ledges and understands that any delay by Mobilitie to alter, . jut!/, relocate, or protect in place its Facilities within the ay delay hinder, or interfere with the work performed by the City ctors in furtherance of construction, alteration, repair, or is -of -Way, and result in damage to the City, including but obilitie shall cooperate with the City and its contractors and subcontractors to coordinate such relocation work to accommodate the public improvement project and project schedules to avoid delay, hindrance of, or interference with such project. q. Should Mobilitie fail, within ` 30} days of receipt of written notice from the City, to alter, adjust, protect in place, or relocate any Facilities ordered by the City to be altered, adjusted, protected in place, or relocated, within the time prescribed by the City, given the nature and extent of the work, or if it is not done to the City's reasonable satisfaction, the City may, to the extent the City may lawfully do so, cause such work to be done and bill the reasonable cost of the work to Mobilitie, including all reasonable costs and expenses incurred by the City due to Mobilitie's delay. _In such event, the City shall not be liable for any damage to any portion of Mobilitie's system. In addition to any other indemnity set forth in this Franchise Agreement, Mobilitie will indemnify, hold W: Word Processing\Ordinances\Mobilitie Franchise Agreement markup TIS to C.O.W. 6-28-18 CK:bjs LH Page 10of24 65 harmless, and pay the costs of defending the City from and against any and all claims, suits, actions, damages, or liabilities for delays on public improvement construction projects caused by or arising out of the failure of Mobilitie to adjust, modify, protect in place, or relocate its Facilities in a timely manner; provided that, Mobilitie shall not be responsible for damages due to delays caused by the City. 14. Removal or Abandonment. Upon the removal from service of any service antennas or other associated structures, Facilities and/or amenities, Mobilitie shall comply with all applicable standards and requirements prescribed by the City of Tukwila's Public Works Department for the removal or abandonment of said structures and Facilities. No Facility Constructed or owned by Mobilitie shall be abandoned without the express written consent of the City. 15. Bond. Before undertaking any of the work, installation, improvements, Construction, repair, relocation, or maintenance authorized ,0 this Franchise Agreement, Mobilitie shall, upon the request of the City, furnish one b % • executed by Mobilitie for all of its Facilities in the City's rights-of-way, in the amou and! ne'100125,000.00.. At Franchisee's so'o tio4 ranchisee may provide alternate amount as the security bo d. All forms of security s o bends e` onably credit, the Y '/�,� fo m Yacceptable to the City. The bond shall be conditioned so tha e shall observe all the covenants, terms, and conditions and shall faithfully erform of the obligations of this Franchise Agreement, and repair or replace any d Mobs' �work or materials discovered in the City's roads, streets, or property. Ar 16. "One -Call" L• > fp an , lability. Mobilitie shall subscribe to and maintain membership in the r conal ne �$J" utility location service and shall promptly locate all of its lines upon 7 / ri p jue,�%o�j� /�y shall not be liable for any damages to Mobilities system compo nts / /ft in service to Mobilitie customers which are a direct result of !P for any City project for which Mobilitie has failed to properly locate its,' -s and "" '' lilt% within the prescribed time limits and guidelines established byOne�e � I. The C�-� shall also not be liable for any damages to the Mobilitie system components old;; y p r int /Uptions in service to Mobilitie customers resulting from work performed under alssued by the City. 17. As -Built Plans Required. Mobilitie shall maintain accurate engineering plans and details of all installations within the City limits and shall provide, at no cost to the City, such information in both paper form and electronic form using the most current AutoCAD version prior to close-out of any permits issued by the City and any work undertaken by Mobilitie pursuant to this Franchise Agreement. The City shall reasonably determine the acceptability of any as -built submittals provided under this section. 18. Recovery of Costs. Mobilitie shall be subject to all permit fees associated with activities undertaken through the authority granted in this Franchise Agreement or under ordinances of the City in effect on the date the permits and authorizations are issued for the affected Facilities. Where the City incurs reasonable costs and expenses for review or inspection of activities undertaken through the authority granted in this Franchise Agreement or any ordinances relating to the subject for which W Word Processing\Ordinances\Mobilitie Franchise Agreement markup TIS to C.O.W. 6-28-18 CK:bjs: LH Page 11 of 24 66 permit fees have not been established, Mobilitie shall pay such reasonable costs and expenses directly to the City. R: 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. S: 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, Public Right -of -Way, or other City property fie use of the City, in either its proprietary or governmental capacity, then the City m,gat its option and by giving 40 60 days written notice to Mobilitie, terminate this Franigreement with reference to such City road, right-of-way, or other City propertyp (/acaand the City shall not be liable for any damages or loss to Mobilitie by rea of such to tation other than those provided for in RCW 35.99. Section 7. Franchise Compliance. A. Franchise Violations. The fa4 j „ obi to fully comply with any of the provisions of this Franchise Agreement g ' ,��,�, a written notice from the City that � � describes the violations of the Fr P$se Aer ment and requests remedial action within 60 days of receipt of such not bilitih as not attained full compliance at the end of the 60 -day period followin eceif tf/&ation notification, the City may declare an immediate termination of all fro; e n M and privileges, provided that full compliance was reasonably posse;� t 60 -day period. B. Emergen 1. If an Mo �tie's actions under this Franchise Agreement, or any by ��° ® ect a situation caused by Mobilitie, is reasonably deemed failure Mobilitie to act ���� by the City to create a thre.t to life or property, financial harm, or cause a delay of the construction, repair or maintenance of the public improvement, the City may order Mobilitie to immediately correct said threat, financial harm, or delay or, at the City's discretion, the City may undertake measures to correct said threat, financial harm or delay itself; provided that, when possible, the City shall notify Mobilitie and give Mobilitie an opportunity to correct within a specified time said threat, financial harm, or delay before undertaking such corrective measures. Mobilitie shall be liable for all reasonable costs, expenses, and damages attributed to the correction of such an emergency situation as undertaken by the City to the extent that such situation was caused by Mobilitie and shall further be liable for all reasonable costs, expenses, and damages resulting to the City from such situation and any reimbursement of such costs to the City shall be made within 30 days of written notice of the completion of such action or determination of damages by the City. The failure by Mobilitie to take appropriate action to correct a situation caused by Mobilitie and identified by the City as a threat to public or private safety or property, W. Word Processing\Ordinances\Mobilitie Franchise Agreement markup TIS to C.O.W. 6-28-18 CK:bjs: LH Page 12 of 24 67 financial harm, or delay of the construction, repair, or maintenance of the public improvement shall be considered a violation of the terms of this Franchise Agreement. 2. If, during Construction or maintenance of Mobilitie's Facilities, any damage occurs to an underground facility and the damage results in the release of natural gas or other hazardous substance or potentially endangers life, health, or property, Mobilitie or its contractor shall immediately call 911 or other local emergency response number. C. Other Remedies. Nothing contained in this Franchise Agreement shall limit the City's available remedies in the event of Mobilitie's failure to comply with the provisions of this Franchise Agreement, to include but not limited to, the City's right to a lawsuit for specific performance and/or damages. D. Removal of System. In the event this Franchise result of violations of the terms of this Franchise Agree expense, remove all system components and Facil termination, provided that the City, at its sole optio Facilities in place. E.- Receivership. At the option of the orders of courts of competent jurisdiction, thi appointment of a receiver or trustee to to j over whether in a receivership, reorganizati° unless: reement is terminated as a Mobilitie shall, at its sole ithin 60 days of such Mobilitie to abandon its 1. The receivers 2. The receiv and provisions of this French'. Additionally, the recei' the court having jur ction, bound by each an• Ty term, Section 8. Insura ct to applicable law and lawful chise may be revoked after the nduct the business of Franchisee or other action or proceeding, ip is timely vacated; or s, nely and fully complied with all the terms nd ha remedied all defaults under the Franchise. hall have executed an agreement duly approved by I4, the receiver or trustee assumes and agrees to be ovision, and limitation of this Franchise. A. Mobilitie shall maintain liability insurance during the full term of this Franchise Agreement for personal injury and property damages which may arise from or in connection with operations or activities performed by or on the -Franchisee's behalf with the issuance of this Franchise. The Franchisee's maintenance of insurance as required by the Franchise Agreement shall not be construed to limit the liability of the -Franchisee to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. Notwithstanding anything to the contrary, Mobilitie may satisfy the foregoing insurance requirements through a combination of commercial general liability insurance and umbrella or excess liability insurance. B. Such required insurance shall include as additional insured, the City, its officers, officials, and employees as their interest may appear under this Franchise Agreement, excluding worker's compensation and employer's liability; shall apply as primary W. Word Processing\Ordinances\Mobilitie Franchise Agreement markup TIS to C.0 W. 6-28-18 CK,bjs: LH Page 13 of 24 68 insurance; shall stipulate that no insurance affected by the City will be called on to contribute to a loss covered thereunder. 1. Commercial General Liability insurance shall be at least as broad as Insurance Services Office (ISO) occurrence form CG 00 01 and shall cover liability arising from premises, operations, independent contractors, products -completed operations, stop gap liability, personal injury and advertising injury, and liability assumed under an insured contract. The Franchisee's Commercial General Liability insurance shall provide limits of $-5,000,000 each occurrence; $-10,000,000 aggregate._ There shall be no exclusion for liability arising from explosion, collapse or underground property damage. The Public EntityCityr 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• ned, non -owned, hired and leased vehicles. Automobile Liability insurance sha e��a combined single limit for bodily injury and property damage or $ of $3,000,0 .er acj nt. Coverage shall be at least as broad as Insurance Services Office (ISO rm CA 00 t° 3. Further, franchisee shall maintain ut ice? liability insurance (or Franchisee shall self -insure the same) covering losses cau jj y pollution conditions that arise in connection with this Franchise. Franchi ;�� olluti 1j lability insurance shall be written in an amount of l Liability insurance shallc0s over bodily injury�o� njury y n� rte mage, cleanup gregate of costs, aOd dfenses f including costs and expenses*, ;y;d in investigation, defense, or settlement of claims. 4. Insurance is to b d wi surers with a current A.M. Best rating of not less than A minus: VII , moo/ 5. Notwit tanding tr foregoing, Licensee may, in its sole discretion, self insure any of the req %% d insur��ce under the same terms as required by this Agreement as long as Franchisee o % a „ted parent maintains a net worth of at least T -w Mi!!ior. nc!!arc 2nd r 1i '° 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: (4)- a. the City shall promptly and no later than thirty (30) days after notice thereof provide Franchisee with written notice of any claim, demand, lawsuit, or the like for which it seeks coverage pursuant to this Sectionsection and provide Franchisee with copies of any demands, notices, summonses, or legal papers received in connection with such claim, demand, lawsuit, or the like; {i+} 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. W: Word Processing\Ordinances\Mobilitie Franchise Agreement markup TIS to C.0 W. 6-28-18 CK:bjs: LH Page 14 of 24 69 C.- Franchisee's contractors and subcontractors performing Work in the Public Rights -of -Way shall comply with such bond, indemnity, and insurance requirements as may be required by City code or regulations, or other applicable Law. Any contractors or subcontractors performing Work within the Public Rights -of -Way on behalf of the Franchisee shall be deemed servants and agents of the Franchisee for the purposes of this Franchise and are subject to the same restrictions, limitations, and conditions as if the Work were performed by Franchisee. Franchisee shall be responsible for all Work performed by its contractors and subcontractors and others performing Work on its behalf as if the Work were performed by it, and shall ensure that all such Work is performed in compliance with this Franchise and other applicable laws, and shall be jointly and severally liable for all damages and correcting all damage caused by them. It is Franchisee's responsibility to ensure that contractors, subcontractors, or other Persons performing Work on Franchisee's behalf are familiar with the requirements of this Franchise and other applicable Laws governing the Work p--< ormed by them. D. -_The Franchisee shall provide the City wit tten notice of any policy '�� notice if coverage is not cancellation, within two business days of their receip.�� g replaced. Failure on the part of the Franchisee /maintain4 , insurance as required shall constitute a material breach of the Franchi 'pon which , City may, after giving five business days' notice to -the Franchisee to rrec o c'e breach, immediately terminate the Franchise or, at its discretion, procure or re� �ch insurance and pay any and all premiums in connection therewith, withRreaso e sums so expended to be repaid to the City on demand. Section 9. Other Permits ar� Nothing in this Agreement shall relieve ,pp Mobilitie from any obligationt , app ' als or necessary permits from applicable federal, state and City authof es for (Iactiv s in the Franchise Area. ,rship i/ Section 10. Transf of ,;� r A. The rights�,i, Ilege4end , title, or interest provided by this Franchise shall not be sold, transf/d, assig / d or otherwise encumbered, without the prior written i consent of the City, W such y sent not being unreasonably withheld, conditioned, or delayed. No such con y.II be required, however, for a transfer in trust, by other hypothecation, or by assigent or any rights, title or interest in Mobilitie's Network in order to secure indebtedness. Approval shall not be required for mortgaging purposes provided that the collateral pledged for any mortgage shall not include the assets of this franchise. Approval shall not be required for any transfer from Mobilitie to an Affiliate or to any entity into which Mobilitie may be merged or consolidated or which purchases all or substantially all of the assets of Mobilitie that are subject to this Agreement. The parties agree and acknowledge that, notwithstanding anything in this Agreement to the contrary, certain Facilities deployed by Mobilitie in the Public Rights -of -Way pursuant to this Agreement may be owned by Mobilitie's third -party wireless carrier customers ("Carriers") and installed and maintained by Mobilitie pursuant to license agreements between Mobilitie and such Carriers. Such Facilities shall be treated as Mobilitie's Facilities for all purposes under this Agreement and sublicensing shall not require the City's consent provided that: (1) 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 W Word Processing \Ord'inances\Mobilitie Franchise Agreement markup TIS to C.O.W.. 6-28-18 CK:bjs: LH Page 15 of 24 70 regarding such Facilities shall be Mobilitie; and (iii) Mobilitie shall have the right to remove and relocate the Facilities. B. In any transfer of this Franchise which requires the approval of the City, Mobilitie shall show that the recipient of such transfer has the technical ability, financial capability, and any other legal or general qualifications as reasonably determined by the City to be necessary to ensure that the obligations and terms required under this Franchise Agreement can be met to the full satisfaction of the City. _This Franchise may not be transferred without filing or establishing with the City the insurance certificates, security fund, and performance bond as required pursuant to this Franchise. The qualifications of any transferee in a transfer that requires the approval of the City shall be determined by 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) sh ;hereafter be responsible for all obligations of Franchisee with respect to the Franchis�� ovided, that the transfer shall not in any respect relieve the -Franchisee, or any ite uccessors in interest, of responsibility for acts or omissions, known or unk wn, or t onsequences thereof, if the acts or omissions occur before the time of tl , ransfer.p Section 11. Administrative Fees. A. Pursuant to the Revised Code o ' (RCW), the City is precluded from �simposing�� �-,,fl a b� sses" as defined in RCW 82.16.010 and RCN82. franchise or "service rptel der $s dep may -d in RCW 35.99.010, except that fees be collected for administrati xpe dd to such franchise or site specific charges pursuant to RCW 35.21.860( obi ‘does hereby warrant that its operations, as authorized under thisftt e I -ement, are those of a telephone business as defined in RCW 82.16.010 servi ro l r as defined in 35.99.010. B. Mobilitie s� be s ject to a one-time $5,000 administrative fee for reimbursement of costed with the preparation, processing and approval of this Franchise Agreement. T/e costs shall include, but not be limited to, wages, benefits, overhead expenses, equipment and supplies associated with such tasks as plan review, site visits, meetings, negotiations and other functions critical to proper management and oversight of the City's right-of-way. Administrative fees exclude normal permit fees as stipulated in Title 11 of the Tukwila Municipal Code. Payment of the one-time administrative fee is due 30 days after notice of franchise approval. C. The City reserves the right to exercise authority it has or may acquire in the future to charge a franchise fee as authorized by law and Franchisee shall in good faith endeavor to negotiate a reasonable Franchise fee or other fee if future law permits the City to charge a Franchise fee. However, the parties shall negotiate a site-specific charge acceptable to the parties for facilities for personal wireless services that meet one of the criteria in RCW 35.21.860(1)(e)(i)-(iii). Pursuant to RCW 35.21.860(1)(e), the City is not required to approve a use permit for the placement of a facility for personal wireless W: Word Processing\Ordinances\Mobilitie Franchise Agreement markup TIS to C.O.W. 6-28-18 CK:bjs: LH Page 16 of 24 71 services that meets one of the criteria set forth in RCW 35.21.860(1)(e)(i)-(iii) absent such an agreement. D. In the event Mobilitie submits a request for work beyond the scope of this Franchise Agreement, or submits a complex project that requires significant comprehensive plan review or inspection, Mobilitie shall reimburse the City for franchise amendments and reasonable expenses associated with the project. Mobilitie shall pay such costs within 30 days of receipt of a bill from the City. E. Failure by Mobilitie to make full payment of bills within the time specified shall be considered sufficient grounds for the termination of all rights and privileges existing under this ordinance, utilizing the procedures specified in Section 4 7 of this ordinance. Section 12. Notices. Any notice to be served upon the City or Mobilitie shall be delivered to the following addresses respectively: City of Tukwila Office of the City Clerk 6200 Southcenter Boulevard Tukwila, WA 98188 Cm ..I• h.i,ty nf!-!—I tl! Wit,.!Kwilawa "% Email: TukwilaCitvClerk(@tukwilawa.q Phone: 206-433-1855 With a copy to: Public Works Director City of Tukwila 6300 Southcenter Tukwila, WA 9 FRANCHI Mobilitie,LLC e 660 Newport Ce 'rive, Suite 200 Newport Beach, C 92660 Attention: _Legal Department legal &,mobilitie.com With a copy to: Mobilitie, LLC 660 Newport Center Drive, Suite 200 Newport Beach, CA 92660 Attention: Asset Management WestAssetMgmt@mobilitie.com Notices shall be delivered by U.S. Mail, overnight courier (e.g., UPS or FedEx), or in person, and shall be deemed delivered upon receipt. W.. Word Processing\Ordinances\Mobilitie Franchise Agreement markup TIS to C,O.W. 6-28-18 CK::bjs: LH Page 17 of 24 72 Section 13. Indemnification. A. Mobilitie shall use reasonable and appropriate precautions to avoid damage to persons or property in the Construction, installation, repair, operation, and maintenance of its structures and Facilities within the Franchise Area. Mobilitie shall release, indemnify, defend, and hold the City, its agents, employees, officers, officials, and volunteers harmless from all claims, actions, or damages, including reasonable attorneys' and expert witness fees, which may accrue to or be suffered by any person or persons, corporation, or property to the extent caused in part or in whole by any act or omission of Mobilitie, its officers, agents, servants, or employees, carried on in the furtherance of the rights, benefits, and privileges granted to Mobilitie by this Franchise. In the event any claim or demand is presented to or filed with the City that gives rise to Mobilitie's obligation pursuant to this section, the City shall within a reasonable time notify Mobilitie thereof and Mobilitie shall have a right, at its election, to settle or comp ise such claim or demand. ��i In the event any claim or action is commenced in which t City is named a party, and which suit or action is based on a claim or demand whic � �� rise to Mobilitie's obligation pursuant to this section, the City shall promptly notif , bil� ereof, and Mobilitie shall, at its sole cost and expense, defend such suit oron by at �� keys of its own election. In defense of such suit or action, Mobilitie ma ,at its -lection Aid at its sole cost and expense, settle or compromise such suit or act/ T L section shall not be construed to require Mobilitie to: 1. protect and save the City h 2. settle or compromise any cla //O/%/,, 3. appear in or defer�� n /// it o 4. pay any judgm reasonable attorney's fees), intentional acts of the B. To the e Mobilitie's obligation°°°'der thi aragraph shall only extend to its share of negligence or fault. The City shall h ght at all times to participate through its own attorney in any suit or action which s out of any right, privilege, and authority granted by or exercised pursuant to this Franchise Agreement when the City determines that such participation is required to protect the interests of the City or the public. Such participation by the City shall be at the City's sole cost and expense. C. With respect to the performance of this Franchise and as to claims against the City, its officers, agents and employees, Mobilitie expressly waives its immunity under Title 51 of the Revised Code Washington, the Industrial Insurance Act for injuries to its officers, agents, and employees and agrees that the obligation to indemnify, defend, and hold harmless provided for in this paragraph extends to any claim brought by or on behalf of Mobilitie's officers, agents, or employees, directly against the City, its officers, agents officials, employees, and volunteers. This waiver is mutually negotiated by the parties and the provisions of this section shall survive the expiration or termination of this Franchise Agreement. rom p, ��y claims, actions or damages; suit or action; tion; or, the City's costs and expenses (including exteft such claim arises out of the negligence or ees, agents or independent contractors. current negligence between Mobilitie and the City, W Word Processing \Ord'inances\Mobilitie Franchise Agreement markup TIS to C.O.W. 6-28-18 CK:bjs: LH Page 18 of 24 73 Section 14. Severability. If any section, sentence, clause, or phrase of this ordinance is held to be invalid or unconstitutional by a court of competent jurisdiction, the City may elect to treat the portion declared invalid or unconstitutional as severable and enforce the remaining provisions of this ordinance; provided that, if the City elects to enforce the remaining provisions of the ordinance, Mobilitie shall have the option to terminate the Franchise Agreement. Section 15. Reservation of Rights. A. The parties agree that this Franchise Agreement is intended to satisfy the requirements of all applicable laws, administrative guidelines, rules, orders and ordinances in effect on the date the permits and authorizations are issued for the affected Facilities. Accordingly, any provision of this Franchise Agreement or any local ordinance that may conflict with or violate the law shall be invalid and unenforceable, whether occurring before or after the execution of this agreement0 being the intention of the parties to preserve their respective rights and remedies nder the law, and that the execution of this Franchise Agreement does not co a waiver of any rights or obligations by either party under the law. B. Nothing in this Franchise shall pre) storm sewers; grading, changing grade, paving,/ any Public Rights -of -Way; laying down, repairing conduit or fiber optic cable. Section 16. Police Powers. A. Nothing contained h exercise its police powers. vested rights to use any porti approved by the City a Agreement. This F governed by appli permits. / ity fromdonstructing sanitary or widening, or otherwise altering removing water mains; or installing II btdeemed to affect the City's authority to hall n by this Franchise Agreement obtain any tcf, Rights of-wayWay except for the locations subject to the terms and conditions of this Franchise pent and the permits issued thereunder shall be inances in effect at the time of application for such B. Nothing in this Frdn'h se shall be deemed to impose any duty or obligation upon the City to determine the adequacy or sufficiency of Franchisee's Facilities. City's approvals and inspections as provided herein; are for the sole purpose of protecting the City's rights as the owner and/or manager of the Public Rights -of -Way and shall not constitute any representation or warranty, express or implied, as to the adequacy of the design or Construction of the Facilities or Network, suitability of the Franchise Area for Construction, or any obligation on the part of the City to ensure that Work or materials are in compliance with any requirements imposed by a governmental entity. The City is under no obligation or duty to supervise the design, Construction, or operation of the Network. Section 17. Future Rules, Regulations, and Specifications. A. Mobilitie acknowledges that the City may develop rules, regulations, and specifications, including a general ordinance or other regulations governing telecommunications operations in the City. Such regulations, upon written notice to W: Word Processing\Ordinances\Mobilitie Franchise Agreement markup TIS to C.O.W. 6-28-18 CK:bjs: LH Page 19 of 24 74 Mobilitie, shall thereafter govern Mobilitie's activities hereunder. However, in no event shall regulations: Al. Materially interfere with or adversely affect Mobilitie's rights pursuant to and in accordance with this Franchise Agreement; or B2. Be applied in a discriminatory manner as it pertains to Mobilitie and other similar user of such facilities. If .,r , fnrJnrnl c+ntn r.r Inno1 !c nr r ,. .I,+;-,-, /i rs r Bryn h, r} r Iimi+v rl �� t z ..� .. �... u.:C...,.... �.,, „ c e10, I !"` C.-.. -r—r±- r. or its cr me -e -s cr , e-nc y\ ,a+-rl arr,_y1 %.ridin.-tRt41-Ypref. +innc thy rnnf I n!la.. the rir+rh+s-vr �4�Ijrrn}ir�r�r -f fhn p2 tins under Icer k ' C p + e -h I n r�gc .tf+rr the ,.. .:y-..., .:�.., .yu...,...,-. ... r.,...... .,.......,. ,..... , :C�,£'£rT� n: tai: �� .,y .. .� Effecti fo Drttn 'n4.ss.LN. ch n ry+�VL^ .a y -a ryvn+ of n�r�nh r nhts yr Iirvnt;�ns . r., n+ .ri`h + tho . the parties agree -t promptly ry r= Tri ryd th n_ n rrrnr.mnryt nc rvnc nnnhlyi rn.vrrirnr•I to nnnnm mod n+n rd (nr//�,�w c+, rre c3 r !i r c with my �..:� v..m��i�i. .. � �ur��l l ...1 ��. -r rvg 4^ater €vwh^a._nge, Section -18. Rcpcalcr. lntenticn!!y Do!ctcd Sc n & Entire Agreement. This agreements between the City and Franchise use, and occupancy of the Public Rigls-of-Wa Franchise. No prior agreements or and shall be valid or of any force or effect and t shall not be altered, modified, o Franchisee and approved by t approved. e contains all covenants and g in any manner to the Franchise, d other matters set forth in this pet ing to the same, written or oral, ///0 Section 2019. Ca ati f Time. Except where a period of time refers to "business days," all p�� 0�91� 4! ferred to herein shall include Saturdays, Sundays, � ���� imp and legal holidays ji he Stat ithington, except that if the last day of any period falls on any Saturd/ unday,yr legal holiday in the State of Washington, the period shall be extended to in � th ext day which is nota Saturday, Sunday, or legal holiday in the State of Washing 9 rovided that, the Effective Date shall be determined as provided in this Franchise. Section 2120. Time Limits Strictly Construed. Whenever this Franchise sets forth a time for any act to be performed by Franchisee, such time shall be deemed to be of the essence, and any failure of Franchisee to perform within the allotted time may be considered a Default of this Franchise upon expiration of applicable notice and cure periods. Section 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 end agreement of this -Franchisee in writing signed by the City and me manner as the original Franchise was W: Word Processing\Ordinances\Mobilitie Franchise Agreement markup TIS to C.O.W. 6-28-18 CK:.bjs: LH Page 20 of 24 75 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 Sectionsection prevents an assignment as provided for in this Franchise. Section 2222. 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® est upon the performance of any of the terms of this Franchise or to exercise any ri / remedy consequent upon a Default thereof, shall constitute a waiver of any such ally of any of the terms of this i Franchise. None of the terms of this Franchise e kept, /erved, or performed by either Party, and no Default thereof, shall be ed, altered, 0 modified except by a written instrument executed by the injured Pare liver of any Default shall affect or alter this Franchise, but each of the terms of this ` ��chise shall continue in full force and effect with respect to any other then exis1or sub ent Default thereof. No waiver of any Default of the defaulting Party shall b. / ny omission by the injured Party to take any action on account of such deL(eiefault persists or is repeated, and no express waiver shall affect a r'nil ult over than the default specified in the express waiver and then only for the an �, o thetent therein stated. One or more waivers by the injured Party shall n %la waiver of the subsequent Default of the same covenant, term or condi Section 2524. Iva i �Te '� . Upon the expiration, termination, revocation, or forfeiture of the Fr hese, the ranchhisee shall no longer have the right to occupy the Franchise Area for t'�•'° ur os O/ f providingservices authorized herein. However, -the Franchisee's obligation /this Franchise to the City shall survive the expiration, termination, revocation, o eiture of these rights according to its terms for so long as the -Franchisee's Network or any part thereof shall remain in whole or in part in the Public Rights -of -Way, or until such time as the Franchisee transfers ownership in all Facilities in the Franchise Area to the City or a third -Party, or until such time as the Franchisee abandons said Facilities in place, all as provided herein. Said obligations include, but are not limited to: _Franchisee's obligations to indemnify, defend, and protect the City,., to provide insurance to relocate its Facilities;i and to reimburse the City for its costs to perform Franchisee's work. Section 2625. 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 W. Word Processing\Ordinances\Mobilitie Franchise Agreement markup TIS to C.O.W. 6-28-18 CK:bjs: LH Page 21 of 24 76 conditions, employee strikes, and/or unforeseen labor conditions not attributable to Franchisee or its employees, Franchisee shall not be deemed in Default of provisions of this Franchise. B. If Franchisee believes that circumstances beyond its control or by reason of a force majeure occurrence have prevented or delayed its compliance with the provisions of this Franchise, Franchisee shall provide documentation as required by the City to substantiate 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, 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 hr.. +h ,�vN,+ea I safety, and integrity of the Franchisee'snmr�h _prepw Franchisee's employees or property, nor the health, fe!j nd integrity of the public, Public Rights -=of --_Way, public property or private p perty. Section 2726. Attorneys' Fees. In the 'nt /°psuit, action, arbitration, or other proceeding of any nature whatsoever, whether it, tract or in tort or both, is instituted to enforce any word, article, section, sub ection, �� graph, provision, condition, clause or sentence of this Franchise or its °±>! •n to!�person or circumstance the prevailingParty $pv 41 jthe osing Party its reasonable revailin shall be entitled to r� ove ��- ys paralegals, ��� ,and other expert fees and all other fees, „'attorneys', arale als, ountd�" � � costs, and expenses actually i , rre nd r , sonably necessary in connection therewith, as allowed by Washington//d/lappeabor he review, in addition toall other eor arbitrator atrial a arbitration, as the case ma amounts provided by vision shall cover costs and attorneys' fees related to or with respect to 17 edin6/) n ,eral Bankruptcy Courts, including those related to issues unique to bi �r uptcy la Thi provision shall not apply to the extent that the suit, action, arbitration, •99 ether p� ceeding is brought to interpret any term, condition, provision, section, artici r se of this Franchise. Section 2927. 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 2928. 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\Mobilitie Franchise Agreement markup TIS to C.O.W. 6-28-18 CK:bjs: LH Page 22 of 24 77 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 Allan Ekberg, Mayor APPROVED AS TO FORM BY: Rachel B. Turpin, City Attorney Attachments: Exhibit A - Franchise A re Filed with Passed jp Publi „;ed: O City Clerk: ity Council: Eff ' ve Date: Obi,,, Cnan7bNumber:' cep ce Form W: Word Processing\Ord'inances\Mobilitiie Franchise Agreement markup TIS to C.O.W. 6-28-18 CK:bjs: LH Page 23 of 24 78 Date: EXHIBIT A Mobilitie, LLC, Acceptance Form City of Tukwila City Clerk's Office 6200 Southcenter Boulevard Tukwila WA 98188 Re: Ordinance No. , adopted on Dear City Clerk: In accordance with and as required by Section No. , passed by the City Council and a (the "Ord( liability company, hereby accepts the ter with or performed by it under the Ordinan of Tukwila Ordinance ved by the Mayor on gl1ndLLC, obligations ons o be complied Sincerely, MOBILITIE, LLC, a Nevada limited Iiabi By: Name: Title: Date: cc: Public Works Director, City of Tukwila, 6200 Southcenter Blvd, Tukwila, WA 98188 W. Word Processing\Ordinances\Mobilitie Franchise Agreement markup TIS to C.O.W. 6-28-18 CK:bjs: LH Page 24 of 24 79