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HomeMy WebLinkAboutCOW 2020-11-23 Item 4I - Ordinance - Telecommunications System Franchise with Extenet SystemsCOUNCIL AGENDA SYNOPSIS Initials Meeting Date Prepared Ig Mayor's review Council review 11/23/20 ESC ❑ Motion Mtg Date ❑ Resolution Mtg Date 12/07/20 ESC ❑ Public Hearing Mtg Date ❑ Other Mtg Date Mtg Date Mtg Date 12/7/20 SPONSOR ❑ Council ❑ Mayor ❑ HR ❑ DCD ❑ Finance ❑ Fire 11 TS ❑ P&R ❑ Polace ❑ PIF SPONSOR'S Extenet Systems, Inc. is a partner with wireless carriers in the region and helps to build SUMMARY their 5G/Small Cell Wireless facilities. The initial franchise term is for five years with the possibility of extending with council approval. Council is being asked to approve the new ordinance for the franchise agreement with Extenet Systems, Inc. REVIEWED BY /1 Trans&Infrastructure ❑ CommunitySvs/Safety ❑ Finance Com ❑ Planning/Economic Dev. ❑ Arts Comm. ❑ Parks Comm. ❑ Planning Comm. COMMITTEE CHAIR: DELOSTRINOS JOHNSON ❑ LTAC DATE: 11/16/20 ITEM INFORMATION ITEM NO. 4.1. 231 STAFF SPONSOR: JOSEPH TODD ORIGINAL AGENDA DATE: 11/23/2020 AGENDA ITEM TITLE Ordinance Granting a Non -Exclusive Franchise agreement with Extenet Systems, Inc. CATEGORY 11 Discussion 11/23/20 ❑ Motion Mtg Date ❑ Resolution Mtg Date 11 Ordinance ❑ Bid Award Mtg Date ❑ Public Hearing Mtg Date ❑ Other Mtg Date Mtg Date Mtg Date 12/7/20 SPONSOR ❑ Council ❑ Mayor ❑ HR ❑ DCD ❑ Finance ❑ Fire 11 TS ❑ P&R ❑ Polace ❑ PIF SPONSOR'S Extenet Systems, Inc. is a partner with wireless carriers in the region and helps to build SUMMARY their 5G/Small Cell Wireless facilities. The initial franchise term is for five years with the possibility of extending with council approval. Council is being asked to approve the new ordinance for the franchise agreement with Extenet Systems, Inc. REVIEWED BY /1 Trans&Infrastructure ❑ CommunitySvs/Safety ❑ Finance Com ❑ Planning/Economic Dev. ❑ Arts Comm. ❑ Parks Comm. ❑ Planning Comm. COMMITTEE CHAIR: DELOSTRINOS JOHNSON ❑ LTAC DATE: 11/16/20 RECOMMENDATIONS: SPONSOR/ADMIN. COMMITTEE Technology and Innovation Services Transportation and Infrastructure COST IMPACT / FUND SOURCE EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED $ Fund Source: Comments: MTG. DATE RECORD OF COUNCIL ACTION 11/23/20 12/07/20 MTG. DATE ATTACHMENTS 11/23/20 Informational Memorandum dated 11/13/20 Draft Franchise Ordinance with Exhibit A Extenet Conduit Inquiry Minutes from the 11/16/20 T&I Committee 12/7/20 231 232 City of Tukwila Allan Ekberg, Mayor INFORMATIONAL MEMORANDUM TO: Transportation and Infrastructure Committee FROM: Joseph Todd, Technology and Innovation Services Director BY: Eric Compton, Franchise and Technology Specialist CC: Mayor Ekberg DATE: November 13, 2020 SUBJECT: Extenet Systems, Inc. Franchise Agreement ISSUE Approve an ordinance granting Extenet Systems, Inc a Franchise Agreement with an initial period of ten (10) years. BACKGROUND State law provides cities the authority to establish franchises to telecommunication providers who wish to occupy city owned rights-of-way. Tukwila Municipal Code 11.32.060 requires all telecommunication providers to obtain franchise agreements with the City prior to approval to construct, maintain and operate within the City limits. DISCUSSION Extenet is a partner for multiple wireless carriers in building out 5G/Small Cell facilities. Extenet does not have a network of their own and, as part of building the Small Cell facilities, will run fiber from the site to the partner carrier's fiber backbone or hub. Extenet has also sought to partner with the City in asset sharing agreements which could provide additional sources of revenue or at least cost sharing/saving measures. A copy of their desired conduit in the City is attached. FINANCIAL IMPACT Under the terms of the Franchise, Extenet is required to pay the City a $5000 administrative fee. This fee has already been paid and processed by Finance. Potential cost savings or small rental fees are possible with asset sharing as desired by Extenet. RECOMMENDATION Council is being asked to approve the Ordinance allowing Extenet Systems, Inc. Franchise Agreement and consider this item on the Consent Agenda at the December 7, 2020 Regular Meeting. ATTACHMENTS Draft Franchise Ordinance with Exhibit A Extenet Conduit Inquiry 233 234 DRAFT AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, GRANTING A NON-EXCLUSIVE FRANCHISE TO EXTENET SYSTEMS, INC., A DELAWARE CORPORATION, LEGALLY AUTHORIZED TO CONDUCT BUSINESS IN THE STATE OF WASHINGTON, FOR THE PURPOSE OF CONSTRUCTING, OPERATING, AND MAINTAINING A TELECOMMUNICATIONS SYSTEM IN THE PUBLIC RIGHTS-OF-WAY IN THE CITY; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, EXTENET Systems, Inc., a Delaware corporation, hereinafter referred to as "EXTENET" is a telecommunications company that, among other things, provides personal wireless services to customers in the Puget Sound region; and WHEREAS, EXTENET's desired route through the City of Tukwila, hereinafter referred to as "City," requires the use of certain portions of City rights-of-way for the installation, operation and maintenance of a telecommunications system; and WHEREAS, the City Council has determined that the use of portions of the City's rights-of-way for installation of a telecommunications system is appropriate from the standpoint of the benefits to be derived by local business and the region as a result of such services; and WHEREAS, the City Council also recognizes that the use of public rights-of-way must be restricted to allow for the construction of amenities necessary to serve the future needs of the citizens of Tukwila and that the coordination, planning and management of the City's rights-of-way is necessary to ensure that the burden of costs for the operations of non -municipal interests are not borne by the citizenry; and WHEREAS, the Revised Code of Washington (RCW) authorizes the City to grant and regulate non-exclusive franchises for the use of public streets, rights-of-way and other public property for installation, operation and maintenance of communications facilities; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: CC: Legislative Development\Extenet Franchise Agreement 11-10-20 EC:bjs Page 1 of 20 235 Section 1. Definitions. A. For the purposes of this Franchise Agreement and the Exhibit 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 EXTENET. 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. 1. "Affiliate" when used in connection with EXTENET means any Person who owns or controls, is owned or controlled by, or is under common ownership or control with EXTENET. 2. "Construct" shall mean to construct, reconstruct, install, reinstall, align, realign, locate, relocate, adjust, affix, attach, replace, repair, monitor, maintain, use, relocate, remove, or support. 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 written notice from the non -defaulting Party. 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"), 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. 5. "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 Agreement or the rights or obligations of either Party under this Franchise Agreement. 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 EXTENET'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. CC: Legislative Development\Extenet Franchise Agreement 11-10-20 EC:bjs 236 Page 2 of 20 7. "Facility or Facilities" means any part or all of the facilities, equipment and appurtenances of EXTENET whether underground or overhead and located within the Public Rights -of -Way as part of EXTENET'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. 8. "Franchise" shall mean the grant, once accepted, giving general permission to EXTENET 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. 9. "Law(s)" shall mean all present and future applicable laws, ordinances, rules, regulations, resolutions, environmental standards, orders, decrees and requirements of all federal, state, and local governments, the departments, bureaus, or commissions thereof, or other governmental authorities, including the City acting in its governmental capacity. References to Laws shall be interpreted broadly to cover government actions, however nominated. 10. "Party(ies)" shall mean either the City or EXTENET or both. 11. "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. 12. "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. 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. 14. "Public Works Director" shall mean the Public Works Director for the City or their designee, or such officer or person who has been assigned the duties of Public Works Director or their designee. 15. "Service" shall mean the service or services authorized to be provided by EXTENET under the terms and conditions of this Franchise Agreement. 16. "Telecommunications System" shall mean all necessary Facilities to establish a small wireless network located in, under, and above City owned Public Right(s)-of-Way for the provision of personal wireless services, including: commercial CC: Legislative Development\Extenet Franchise Agreement 11-10-20 EC:bjs Page 3 of 20 237 mobile services, unlicensed wireless services, and common carrier wireless exchange access services. "Telecommunications System" shall not mean or include Facilities owned or used by EXTENET 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. 17. "Work" shall mean any and all activities of EXTENET, 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 EXTENET, 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". B. The foregoing franchise rights and authority ("Franchise") shall not be deemed to be exclusive to EXTENET 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 EXTENET; provided, that such other franchises do not unreasonably interfere with EXTENET'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 EXTENET 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 EXTENET. D. The City does not warrant its title or property interest in or to any franchise area nor undertake to defend EXTENET in the peaceable possession or use of the franchise area. No covenant of quiet enjoyment is made. Section 3. Authority. The Director of Public Works or designee is hereby granted the authority to administer and enforce the terms and provisions of this Franchise Agreement and may develop such lawful and reasonable rules, policies and procedures as the Public Works Director deems necessary to carry out the provisions contained herein. Section 4. Franchise Term. 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 EXTENET 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 EXTENET 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 in one-year increments beyond the CC: Legislative Development\Extenet Franchise Agreement 11-10-20 EC:bjs 238 Page 4 of 20 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 EXTENET prior to the Franchise expiration date. EXTENET must sign the written approval of the extension agreeing to all the terms of the prior agreement and the extension. 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 EXTENET to file said consent within 30 days of the effective date of this ordinance shall void and nullify any and all rights granted under this Franchise Agreement. Section 6. Construction Provisions and Standards. The following provisions shall be considered mandatory and failure to abide by any conditions described herein shall be deemed as non-compliance with the terms of this Franchise Agreement and may result in some or all of the penalties specified in Section 7. 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, EXTENET shall, within 24 hours of the emergency, obtain a Permit from the City of Tukwila's Public Works Department. 2. Coordination. Any element of a City capital construction project which is performed by EXTENET within the Franchise Area shall be inspected by a City inspector. All work and inspection shall be coordinated with the Engineering Division of the Public Works Department to ensure consistency with City infrastructure, future Capital Improvement Projects, all developer improvements, and pertinent codes and ordinances in effect on the date the permits and authorizations are issued for the affected Facilities. 3. Notice to the Public. Except in the case of an Emergency, the City retains the right to require EXTENET to notify the public prior to commencing any significant planned Construction that EXTENET 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 Franchise Area and may deny access if EXTENET 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 Agreement 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 EXTENET 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 CC: Legislative Development\Extenet Franchise Agreement 11-10-20 EC:bjs Page 5 of 20 239 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. EXTENET'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 the City or the City's existing lessees, licensees, permitees, franchisees, easement beneficiaries or lien holders, without prior written consent of the City or the parties whose improvements are interfered with and whose consent is required pursuant to agreements with the City existing prior to the effective date. 6. Duty to Restore. a. EXTENET 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. EXTENET agrees to promptly complete restoration work to the reasonable satisfaction of the City and in conformance with City Standards at the sole cost of EXTENET. b. If EXTENET's Work causes unplanned, unapproved, or unanticipated disturbance or alteration or damage to Public Rights -of -Way or other public property, EXTENET shall, at EXTENET's sole cost, 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, EXTENET shall temporarily restore the affected Public Right -of -Way or public property. EXTENET shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. 7. Notice. If EXTENET's Work causes unplanned, unapproved, or unanticipated disturbance or damage to Public Rights -of -Way or other public or private property, EXTENET shall promptly notify the property owner within 24 hours. 8. Warranty. EXTENET shall warrant any restoration work performed by EXTENET 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 EXTENET, the City may, after 30 days prior notice to EXTENET, or without notice where the disturbance or damage may create an imminent risk to public health or safety, cause the repairs to be made and recover the cost of those repairs from EXTENET. Within 30 days of receipt of an itemized list of those costs, including the costs of labor, materials and equipment, EXTENET shall pay the City. 9. Restoration of Private Property. When EXTENET 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. Nothing within this Franchise authorizes any work by EXTENET on private property. CC: Legislative Development\Extenet Franchise Agreement 11-10-20 EC:bjs 240 Page 6 of 20 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, EXTENET shall cease and shall cause its contractors and subcontractors to cease such activity until the City is satisfied that EXTENET 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 EXTENET 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 EXTENET fails to do so, and to reasonably charge EXTENET for the costs incurred to perform such inspection, repair, or correction. Payment by EXTENET will be made within 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, EXTENET and EXTENET'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 unreasonably withheld, delayed, 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 EXTENET's Facilities in the Franchise Area. Material alteration and/or deviation shall include, but not be limited to, a change in the dimension or height or location or placement of the Facilities. If EXTENET desires to change either the location of any Facilities or otherwise materially deviates from the approved design of any of the Facilities, EXTENET shall submit such change to the City in writing for its approval. EXTENET shall have no right to commence any such alteration or deviation until after EXTENET has received the City's approval of such change in writing. Under no circumstance shall EXTENET 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. This requirement shall only apply where all other similarly situated utilities are required to underground as well. 13. Relocation. a. The City shall have the right to require EXTENET to alter, adjust, relocate, re -attach, secure, or protect in place its Facilities within the public right-of-way CC: Legislative Development\Extenet Franchise Agreement 11-10-20 EC:bjs Page 7 of 20 241 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 EXTENET to relocate its Facilities, the City shall provide EXTENET 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 EXTENET 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 EXTENET 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. b. To ensure timely execution of relocation requirements, EXTENET shall, upon written request from the City, provide at EXTENET'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 time frame specified by the City. c. EXTENET 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 EXTENET 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, EXTENET shall submit additional information to assist the City in making such evaluation. The City shall give each alternative proposed by EXTENET full and fair consideration. In the event the City, in its sole discretion, decides not to accept the alternatives suggested by EXTENET, EXTENET shall relocate its Facilities as otherwise specified in Section 6, subparagraph 5. d. Upon final approval of the relocation plan by the City, EXTENET shall, at its own expense, unless otherwise prohibited by statute, and at the time frame specified by the City, temporarily or permanently remove, relocate, place underground, change, or alter the position of any Facilities or structures within the right-of-way whenever the City has determined that such removal, relocation, undergrounding, change or alteration is reasonably necessary for the construction, repair, maintenance, installation, public safety, or operation of any public improvement in or upon the rights-of-way. In the event relocation is required by reason of construction by a third party, non-governmental entity, CC: Legislative Development\Extenet Franchise Agreement 11-10-20 EC:bjs 242 Page 8 of 20 for the sole benefit of the third party, non-governmental entity, then EXTENET's relocation costs shall be borne by the third party. e. If during the construction, repair, or maintenance of the City's public improvement project an unexpected conflict occurs from EXTENET's Facilities, EXTENET shall, upon notification from the City, respond within 24 hours to resolve the conflict. f. EXTENET acknowledges and understands that any delay by EXTENET in performing the work to alter, adjust, relocate, or protect in place its Facilities within the public rights-of-way may delay, hinder, or interfere with the work performed by the City and its contractors and subcontractors in furtherance of construction, alteration, repair, or improvement of the public rights-of-way, and result in damage to the City, including but not limited to, delay claims. EXTENET 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. g. Should EXTENET 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 EXTENET, including all reasonable costs and expenses incurred by the City due to EXTENET's delay. In such event, the City shall not be liable for any damage to any portion of EXTENET's system. In addition to any other indemnity set forth in this Franchise Agreement, EXTENET 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 EXTENET to adjust, modify, protect in place, or relocate its Facilities in a timely manner; provided that, EXTENET 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 amenities, EXTENET 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 EXTENET shall be abandoned without the express written consent of the City. 15. Bond. Before undertaking any of the work, installation, improvements, construction, repair, relocation, or maintenance authorized by this Franchise Agreement, EXTENET shall, upon the request of the City, furnish one bond executed by EXTENET 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 EXTENET'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 EXTENET in the City rights-of- way. At EXTENET's sole option, EXTENET 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 CC: Legislative Development\Extenet Franchise Agreement 11-10-20 EC:bjs Page 9 of 20 243 security shall be in the form reasonably acceptable to the City. The bond shall be conditioned so that EXTENET 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 EXTENET work or materials discovered in the City's roads, streets, or property. 16. "One -Call" Location and Liability. EXTENET 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 EXTENET's system components or for interruptions in service to EXTENET customers which are a direct result of work performed for any City project for which EXTENET 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 EXTENET system components or for interruptions in service to EXTENET customers resulting from work performed under a permit issued by the City. 17. As -Built Plans Required. EXTENET 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 EXTENET 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. EXTENET 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 actual reasonable costs and expenses for review or inspection of activities undertaken through the authority granted in this Franchise Agreement or any ordinances relating to the subject for which permit fees have not been established, EXTENET shall pay such reasonable costs and expenses directly to the City. 19. Taxes. Nothing contained in this Franchise Agreement shall exempt EXTENET's obligation to pay any applicable utility tax, business tax, or ad valorem property tax, now or hereafter levied against real or personal property owned by EXTENET within the City, or against any local improvement assessment imposed on EXTENET. 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 EXTENET. 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, right-of-way or other City property for the use of the City, in either its proprietary or governmental capacity, then the City may, at its option and by giving 60 days written notice to EXTENET, 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 CC: Legislative Development\Extenet Franchise Agreement 11-10-20 EC:bjs 244 Page 10 of 20 damages or loss to EXTENET by reason of such termination other than those provided for in RCW 35.99. Section 7. Franchise Compliance. A. Franchise Violations. The failure by EXTENET 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 EXTENET has not attained full compliance at the end of the 60 -day period following receipt of the violation notification, the City may declare an immediate termination of all franchise rights and privileges, provided that full compliance was reasonably possible within that 60 -day period. B. Emergency Actions. 1. If any of EXTENET's actions under this Franchise Agreement, or any failure by EXTENET to act to correct a situation caused by EXTENET, 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 EXTENET 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 EXTENET in writing and give EXTENET an opportunity to correct within a specified time said threat, financial harm or delay before undertaking such corrective measures. EXTENET 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 EXTENET 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 EXTENET to take appropriate action to correct a situation caused by EXTENET and identified by the City as a threat to public or private safety or property, financial harm, or delay of the construction, repair or maintenance of the public improvement shall be considered a violation of the terms of this Franchise Agreement. 2. If, during construction or maintenance of EXTENET'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, EXTENET 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 EXTENET'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, EXTENET shall, at its sole expense, remove all system components and Facilities within 60 days of such CC: Legislative Development\Extenet Franchise Agreement 11-10-20 EC:bjs Page 11 of 20 245 termination, provided that the City, at its sole option, may allow EXTENET to abandon its Facilities in place. E. Receivership. At the option of the City, subject to applicable law and lawful orders of courts of competent jurisdiction, this Franchise may be revoked after the appointment of a receiver or trustee to take over and conduct the business of EXTENET whether in a receivership, reorganization, bankruptcy, or other action or proceeding, unless: 1. The receivership or trusteeship is timely vacated; or 2. The receiver or trustee has timely and fully complied with all the terms and provisions of this Franchise Agreement, and has remedied all defaults under the Franchise Agreement. 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 Agreement. Section 8. Insurance. A. EXTENET 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. 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 EXTENET will not replace such insurance with coverage as required by this Franchise Agreement, EXTENET shall provide the City with 30 days prior written notice of such cancellation. Notice shall be provided as required by Section 12 below. Should the City receive such notice, at City's discretion, the City may send a notice of default to EXTENET allowing EXTENET 15 days to cure its failure to maintain insurance as required by this Franchise Agreement. If EXTENET fails to cure the default within such 15 -day period, the City may unilaterally terminate this Franchise Agreement by sending a written notice of termination to EXTENET. C. EXTENET'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 EXTENET shall be deemed servants and agents of EXTENET for the purposes of this Franchise Agreement and are subject to the same restrictions, limitations, and conditions as if the Work were performed by EXTENET. EXTENET 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 CC: Legislative Development\Extenet Franchise Agreement 11-10-20 EC:bjs 246 Page 12 of 20 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 EXTENET's responsibility to ensure that contractors, subcontractors, or other Persons performing Work on EXTENET's behalf are familiar with the requirements of this Franchise Agreement and other applicable Laws governing the Work performed by them. Section 9. Other Permits and Approvals. Nothing in this Agreement shall relieve EXTENET 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 EXTENET'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 EXTENET to another person or entity controlling, controlled by, or under common control with EXTENET. EXTENET may license Facilities to other users without the consent of the City provided that EXTENET remains solely responsible for the terms and conditions outlined in this Franchise Agreement. B. The Parties acknowledge that Small Wireless Facilities or wireline facilities ("Site Equipment") deployed by EXTENET pursuant to this Agreement may be owned and/or remotely operated by a third -party wireless carrier customer ("Carriers") and installed and maintained by EXTENET pursuant to existing agreements between EXTENET and a Carrier. Such use of EXTENET'S equipment by third parties, or Attachment of third party (Carrier) owned equipment shall not constitute an Assignment under this Agreement. The Site Equipment shall be treated as EXTENET's Site Equipment for all purposes under this Franchise. EXTENET shall remain solely responsible and liable for the performance of all obligations under this Franchise with respect to any Site Equipment owned and/or remotely operated by a Carrier. EXTENET shall identify the Carrier on whose behalf it is operating the Site Equipment on each Pole at the time of permitting. EXTENET is not required to submit its contract with such Carrier. C. In any transfer of this Franchise which requires the approval of the City, EXTENET 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 CC: Legislative Development\Extenet Franchise Agreement 11-10-20 EC:bjs Page 13 of 20 247 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 EXTENET with respect to the Franchise; provided, that the transfer shall not in any respect relieve EXTENET, or any of its successors in interest, of responsibility for acts or omissions, known or unknown, or the consequences thereof, if the acts or omissions occur before the time of the transfer. Section 11. Administrative Fees. A. Pursuant to the Revised Code of Washington (RCW), the City is precluded from imposing franchise fees for "telephone businesses" as defined in RCW 82.16.010, or "service provider" as defined in RCW 35.99.010, except that fees may be collected for administrative expenses related to such franchise. EXTENET 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. EXTENET shall be subject to a one-time $5,000 administrative fee for reimbursement of costs associated with the preparation, processing and approval of this Franchise Agreement. These costs shall include, but not be limited to, wages, benefits, overhead expenses, equipment and supplies associated with such tasks as plan review, site visits, meetings, negotiations and other functions critical to proper management and oversight of 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 EXTENET shall in good faith endeavor to negotiate a reasonable Franchise fee or other fee if future law permits the City to charge a Franchise fee. However, the parties shall negotiate a site-specific charge acceptable to the parties for facilities for personal wireless services that meet one of the criteria in RCW 35.21.860(1)(e)(i)-(iii). Pursuant to RCW 35.21.860(1)(e), the City is not required to approve a use permit for the placement of a facility for personal wireless services that meets one of the criteria set forth in RCW 35.21.860(1)(e)(i)-(iii) absent such an agreement. D. In the event EXTENET 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, EXTENET shall reimburse the City for franchise amendments and reasonable actual -incurred expenses associated with the project. EXTENET shall pay such costs within 60 days of receipt of a bill from the City. E. Failure by EXTENET 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 EXTENET shall be delivered to the following addresses respectively: CC: Legislative Development\Extenet Franchise Agreement 11-10-20 EC:bjs 248 Page 14 of 20 City of Tukwila Office of the City Clerk 6200 Southcenter Boulevard Tukwila, WA 98188 Email: TukwilaCityClerk(a�tukwilawa.gov Phone: 206-433-1800 With a copy to: Public Works Director City of Tukwila 6300 Southcenter Boulevard Ste. 100 Tukwila, WA 98188 EXTENET ExteNet Systems, Inc. Attn: CFO 3030 Warrenville Road, Suite 340 Lisle, Illinois 60532 With copy to General Counsel & COO at same address Copy email to NOTICE@extenetsystems.com Section 13. Indemnification. A. EXTENET 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. EXTENET 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 EXTENET, its officers, agents, servants or employees, carried on in the furtherance of the rights, benefits, and privileges granted to EXTENET by this Franchise, except in cases of City's gross negligence. In the event any claim or demand is presented to or filed with the City that gives rise to EXTENET's obligation pursuant to this section, the City shall within a reasonable time notify EXTENET thereof and EXTENET 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 EXTENET's obligation pursuant to this section, the City shall promptly notify EXTENET thereof, and EXTENET shall, at its sole cost and expense, defend such suit or action by attorneys of its own election. In defense of such suit or action, EXTENET 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 EXTENET to: 1. protect and save the City harmless from any claims, actions or damages; 2. settle or compromise any claim, demand, suit or action; 3. appear in or defend any suit or action; or, CC: Legislative Development\Extenet Franchise Agreement 11-10-20 EC:bjs Page 15 of 20 249 4. pay any judgment or reimburse the City's costs and expenses (including reasonable attorney's fees), to the extent such claim arises out of the negligence or intentional acts of the City, its employees, agents or independent contractors. B. To the extent of any concurrent negligence between EXTENET and the City, EXTENET's obligations under this paragraph shall only extend to its share of negligence or fault. The City shall have the right at all times to participate through its own attorney in any suit or action that arises out of any right, privilege, and authority granted by or exercised pursuant to this Franchise Agreement when the City determines that such participation is required to protect the interests of the City or the public. Such participation by the City shall be at the City's sole cost and expense. C. With respect to the performance of this Franchise and as to claims made by EXTENET 's employees against the City, its officers, agents and employees, EXTENET 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 EXTENET's officers, agents or employees against the City. This waiver is mutually negotiated by the parties. 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, EXTENET shall have the option to terminate the Franchise Agreement. Section 15. Reservation of Rights. A. The parties agree that this Franchise Agreement is intended to satisfy the requirements of all applicable laws, administrative guidelines, rules, orders and ordinances in effect on the date the permits and authorizations are issued for the affected Facilities. Accordingly, any provision of this Franchise Agreement or any local ordinance that may conflict with or violate the law shall be invalid and unenforceable, whether occurring before or after the execution of this agreement, it being the intention of the parties to preserve their respective rights and remedies under the law, and that the execution of this Franchise Agreement does not constitute a waiver of any rights or obligations by either party under the law. B. Nothing in this Franchise Agreement shall prevent the City from constructing sanitary or storm sewers; grading, changing grade, paving, repairing, widening or otherwise altering any Public Rights -of -Way; laying down, repairing or removing water mains; or installing conduit or fiber optic cable. Section 16. Police Powers. A. Nothing contained herein shall be deemed to affect the City's authority to exercise its police powers. EXTENET shall not by this Franchise Agreement obtain any vested rights to use any portion of the City right-of-way except for the locations approved CC: Legislative Development\Extenet Franchise Agreement 11-10-20 EC:bjs 250 Page 16 of 20 by the City and then only subject to the terms and conditions of this Franchise Agreement. This Franchise Agreement and the permits issued thereunder shall be governed by applicable City ordinances in effect at the time of application for such permits. 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 EXTENET'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. Section 17. Future Rules, Regulations and Specifications. EXTENET 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 EXTENET, shall thereafter govern EXTENET's activities hereunder; provided, however, that in no event shall regulations: 1. materially interfere with or adversely affect EXTENET's rights pursuant to and in accordance with this Franchise Agreement; or 2. be applied in a discriminatory manner as it pertains to EXTENET and other similar user of such facilities. Section 18. Entire Agreement. This Franchise Agreement contains all covenants and agreements between the City and EXTENET relating in any manner to the Franchise, use, and occupancy of the Public Rights -of -Way and other matters set forth in this Franchise Agreement. No prior agreements or understanding pertaining to the same, written or oral, shall be valid or of any force or effect and the covenants and agreement of EXTENET shall not be altered, modified, or added to except in writing signed by the City and EXTENET and approved by the City in the same manner as the original Franchise was approved. Section 19. Calculation of Time. Except where a period of time refers to "business days," all periods of time referred to herein shall include Saturdays, Sundays, and legal holidays in the State of Washington, except that if the last day of any period falls on any Saturday, Sunday, or legal holiday in the State of Washington, the period shall be extended to include the next day which is not a Saturday, Sunday, or legal holiday in the State of Washington; provided that, the effective date shall be determined as provided in this Franchise Agreement. Section 20. Time Limits Strictly Construed. Whenever this Franchise Agreement sets forth a time for any act to be performed by EXTENET, such time shall be deemed to be of the essence, and any failure of EXTENET to perform within the allotted time may be considered a Default of this Franchise Agreement. CC: Legislative Development\Extenet Franchise Agreement 11-10-20 EC:bjs Page 17 of 20 251 Section 21. Joint Venture. It is not intended by this Franchise Agreement to, and nothing contained in this Franchise Agreement shall, create any partnership, joint venture, or principal -agent relationship or other arrangement between EXTENET and City. Neither Party is authorized to, nor shall either Party act toward third Persons or the public in any manner that would indicate any such relationship. The Parties intend that the rights, obligations, and covenants in this Franchise Agreement and any collateral instruments shall be exclusively enforceable by the City and EXTENET, 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, EXTENET is not granted any express or implied right or authority to assume or create any obligation or responsibility on behalf of or in the name of the City. However, nothing in this section prevents an assignment as provided for in this Franchise Agreement. Section 22. Binding Effect Upon Successors and Assigns. All of the provisions contained in this Franchise Agreement shall be binding upon the heirs, successors, executors, administrators, receivers, trustees, legal representatives, transferees and assigns of EXTENET; and all privileges as well as any obligations and liabilities of EXTENET shall inure to its heirs, successors, and assigns equally as if they were specifically mentioned wherever EXTENET is named herein. Section 23. Waiver. No failure by either Party to insist upon the performance of any of the terms of this Franchise Agreement 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 Agreement. None of the terms of this Franchise Agreement 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 Agreement, but each of the terms of this Franchise Agreement shall continue in full force and effect with respect to any other then existing or subsequent Default thereof. No waiver of any Default of the defaulting Party shall be implied from any omission by the injured Party to take any action on account of such default if such default persists or is repeated, and no express waiver shall affect any default other than the default specified in the express waiver and then only for the time and to the extent therein stated. One or more waivers by the injured Party shall not be construed as a waiver of the subsequent Default of the same covenant, term, or conditions. Section 24. Survival of Terms. Upon the expiration, termination, revocation, or forfeiture of the Franchise Agreement, EXTENET shall no longer have the right to occupy the Franchise area for the purpose of providing services authorized herein. However, EXTENET's obligations under this Franchise Agreement to the City shall survive the expiration, termination, revocation, or forfeiture of these rights according to its terms for so long as EXTENET's Telecommunications System or any part thereof shall remain in whole or in part in the Public Rights -of -Way, or until such time as EXTENET transfers ownership in all Facilities in the Franchise Area to the City or a third -Party, or until such time as EXTENET abandons said Facilities in place, all as provided herein. Said obligations include, but are not limited to: EXTENET's obligations to indemnify, defend, CC: Legislative Development\Extenet Franchise Agreement 11-10-20 EC:bjs 252 Page 18 of 20 and protect the City, to provide insurance, to relocate its Facilities, and to reimburse the City for its costs to perform EXTENET's work. Section 25. Force Majeure. A. In the event EXTENET 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 EXTENET's employees, EXTENET shall not be deemed in Default of provisions of this Franchise Agreement. B. If EXTENET 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, EXTENET shall provide documentation as reasonably required by the City to substantiate EXTENET's claim. EXTENET 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; provided that EXTENET 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 EXTENET takes prompt and diligent steps to bring itself back into compliance and to comply as soon as possible under the circumstances with the Franchise Agreement without unduly endangering the health, safety, and integrity of EXTENET's employees or property, or the health, safety, and integrity of the public, Public Rights -of -Way, public property or private property. 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, and other expert fees and all other fees, costs, and expenses actually incurred and reasonably necessary in connection therewith, as allowed by Washington law and as determined by the judge or arbitrator at trial or arbitration, as the case may be, or on any appeal or review, in addition to all other amounts provided by Law. This provision shall cover costs and attorneys' fees related to or with respect to proceedings in Federal Bankruptcy Courts, including those related to issues unique to bankruptcy law. This provision shall not apply to the extent that the suit, action, arbitration, or other proceeding is brought to interpret any term, condition, provision, section, article, or clause of this Franchise Agreement. Section 27. Venue. This Franchise Agreement 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 Agreement, 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 CC: Legislative Development\Extenet Franchise Agreement 11-10-20 EC:bjs Page 19 of 20 253 jurisdiction. Removal to federal court shall be to the Federal Court of the Western District of Washington. Section 28. Corrections by City Clerk or Code Reviser Authorized. Upon approval of the City Attorney, the City Clerk and the code reviser are authorized to make necessary corrections to this ordinance, including the correction of clerical errors; references to other local, state or federal laws, codes, rules, or regulations; or ordinance numbering and section/subsection numbering. Section 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. PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of , 2020. ATTEST/AUTHENTICATED: Christy O'Flaherty, MMC, City Clerk APPROVED AS TO FORM BY: Office of the City Attorney Allan Ekberg, Mayor Filed with the City Clerk: Passed by the City Council: Published: Effective Date: Ordinance Number: Attachment: Exhibit A — Franchise Agreement Acceptance Form CC: Legislative Development\Extenet Franchise Agreement 11-10-20 EC:bjs 254 Page 20 of 20 Date: EXHIBIT A Extenet Franchise Agreement Acceptance Form City of Tukwila City Clerk's Office 6200 Southcenter Boulevard Tukwila, WA 98188 Re: Ordinance No. , adopted on , 2020. Dear City Clerk: In accordance with and as required by Section 5 of City of Tukwila Ordinance No. , passed by the City Council and approved by the Mayor on (the "Ordinance"), Extenet Systems, Inc., a Delaware limited partnership, hereby accepts the terms, conditions and obligations to be complied with or performed by it under the Ordinance. By: Extenet Systems, Inc. Signature Name Title Date cc: Public Works Director, City of Tukwila, 6300 Southcenter Blvd., Tukwila, WA 98188 255 256 City of Tukwila City Council Transportation & Infrastructure Committee Meeting Minutes November 16, 2020 - 5:30 p.m. - Electronic Meeting due to COVID-19 Emergency CouncilmembersPresent: Cynthia Delostrinos Johnson, Chair, Verna Seal, Kate Kruller Staff Present: Rachel Bianchi, Hari Ponnekanti, Ryan Larson, Scott Bates, Eric Compton, Joel Bush, and Gail Labanara Guest: Rachel Fenton (Extenet Systems), Richard Adair-Zayo (Zayo) Chair Delostrinos Johnson called the meeting to order at 5:30 p.m. I. BUSINESS AGENDA A. Bid Award: Andover Park East Water Main Pavement Repair Staff is seeking Council approval of a contract with Icon Materials in the amount of $141,546.00 for construction of the Andover Park East Water Main Pavement Repair Project. Committee Recommendation Unanimous approval, forward to November 16, 2020 Regular Meeting. B. Consultant Agreement: East Marginal Way South Stormwater Outfalls Staff is seeking Council approval of an agreement with KPG, Inc. in the amount of $179,978.98 for design and construction management of the East Marginal Way Stormwater Outfalls Project. Committee Recommendation Unanimous approval, forward to November 23, 2020 Consent Agenda at the Special Meeting. C. Contract Amendment: 2020/2021 Annual Small Drainage Programs Staff is seeking Council approval of KPG's Amendment No. 2 to Contract No 20-029 in the amount of $248,966 for design of an additional three sites and construction management services for the 2020/2021 Small Drainage Programs. Committee Recommendation Unanimous approval, forward to December 7, 2020 Regular Consent Agenda. D. Ordinance: Extenet Systems Franchise Agreement Staff is seeking Council approval of an Ordinance that would grant Extenet Systems, Inc. a franchise agreement with an initial ten-year term. Item(s) requiring follow-up: • Seek input from city attorney about including an off -ramp provision in the franchise agreement if the City does not approve of the locations of the small cell facilities. • Whether the $5,000 pre -paid administration fee can be refunded if we do not enter into an agreement. 257 Transportation & Infrastructure Committee Minutes Novemberl6, 2020 Committee Recommendation Unanimous approval, forward to November 23, 2020 Committee of the Whole. E. Asset Sharing Agreement: Zayo Group Staff is seeking Council approval of an asset sharing agreement with Zayo Group, LLC. Item(s) requiring follow-up: • Change Pierce County to King County in the agreement. Committee Recommendation Unanimous approval, forward to November 23, 2020 Special Consent Agenda. F. 2020 Committee Work Plan Committee members and staff discussed the status of items on the Committee work plan. Item(s) requiring follow-up: • Update items listing TBD status Committee Recommendation Discussion only. 11. Miscellaneous a. 53rd Ave S Street Improvements - A group of 8-10 residents attended the Saturday morning meeting. Direction of the one-way was questioned and the City is working with the design consultant to change it as the initial reason was due to bicycle flow. The sidewalk and curb installation were originally part of the 2020 Overlay, but the 2020 project was reduced due to COVID budget reductions. The eastside sidewalk will be included in the 2021 Overlay project and the channelization will change during that construction. Flashing stop signs were requested and the downhill stop sign will be changed. Safety issues will also be looked at with the possibility of adding additional streetlights. Committee consensus was to prioritize the 53rd Ave S traffic revision project as part of the 2021 Overlay & Repair Project. A communication strategy for public outreach on CIP projects was recommended to be included in the Committee's 2021 Work Plan. The meeting adjourned at 6:30 p.m. CDJ Committee Chair Approval Minutes by GL 258