HomeMy WebLinkAbout4306ORDINANCE NO. 4305
AN ORDINANCE of the City Council of the
City of Kent, Washington, Granting to new Cingular
Wireless PCS, LLC and its affiliates, successors and
assigns, the right, privilege, authority and
nonexclusive franchise for five years, to construct,
maintain, operate, replace and repair a small cell
telecommunications network, in across, over,
along, under, through and below certain designatedpublic rights-of-way of the City of Kent,
Washington.
RECITALS
A. New Cingular Wireless PCS, LLC, a Delaware limited liability
company (the "Franchisee") has requested that the City Council grant it a
nonexclusive franchise (this "Franchise") to construct, maintain, operate,
repair, upgrade, remove, replace and restore small cell networks in the City's
right-of-way; and
B. The City Council has the authority to grant franchises for the
use of its streets and other public properties pursuant to RCW 35A.47.o40.
c. small cell facilities are relatively new technology deproyed by
wireless providers to meet the evolving needs of consumers and their
increased reliance upon mobile devices. To meet demand, wireless
infrastructure must continue to be upgraded and improved.
D. In contrast to the familiar cell phone towers and monopoles,
small cells are low-powered and low profile wireless base stations that
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function like cells in a mobile wireless network and typically cover localized
(smaller) areas. Wireless providers use small cells to provide connectivity in
areas where the coverage and capacity of traditional cell towers are
challenged by terrain or buildings and they also use small cells to provide
enhanced capacity to users (e.9,, more data, more quickly), Because they
are smaller, small cells are often mounted to existing structures within the
right-of-way, such as utility poles and light poles,
E. Small cell facilities and networks will also be integral to the
deployment of the next generation of wireless service, known as "5G" or "5th
Generation." Wireless providers and the Federal Communications
Commission claim that 5G will provide additional capacity in existing networks
for emergency service, increased data use, telecommuting, and the support
of Internet of Things applications.
F. The City embraces and supports small cell technology and the
advances the City expects it to provide, yet also has a fundamental role to
manage the rights-of-way fairly for the residents and tax-payers and protect
the City's significant investments of time, resources and money in
construction, design standards and undergrounding of utilities.
G. In order to balance the deployment of new technology with the
City's role to manage the rights-of-way, this franchise includes robust, yet
flexible design standards for the small cells. It also includes requirements to
keep a detailed record of small cell installations, relocation requirements and
penalties for unauthorized installations.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
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ORDINANCE
SECTION 7, - Definitions. In addition to terms otherwise defined
herein, the following definitions shall apply generally to the provisions of
this Franchise.
1.1 "Director" means the Public Works Director, the Economic and
Community Development Director, or his/her designee,
L.2 "Rights-of-Way" (singular "Right-of-Way") as used in this Franchise,
means the surface of, and the space above and below, dhy public street,
highway, freeway, bridge, land path, alley, court, boulevard, sidewalk,
wdy, lane, public way, drive, circle, pathways, spaces, or other public
right-of-way, and over which the City has authority to grant permits,
licenses or franchises for use thereof, or has regulatory authority
thereover. Rights-of-Way for the purpose of this Franchise do not include
railroad right-of-way, airports, harbor areas, buildings, parks, poles,
conduits, open spaces, nature trails, dedicated but un-opened right-of-
way, undedicated streets and/or right-of-way, environmentally sensitive
areas and any land, facilities, or property owned, maintained, or leased by
the City in its governmental or proprietary capacity or as an operator of a
utility.
1.3 "Small Cell Equipment" or "Small Cell Facilities" means Wireless
Telecommunications Facilities attached, mounted, or installed on a
proprietary or leased pole, excluding monopole towers, that is located in
Right-of-Way and used to provide "personal wireless service" as defined in
Title 47, United States Code, Section 332(cX7)(C), including all future
amendments and is substantially similar in aesthetics and proportion to
those pictured in Exhibit A.
L.4 "Utility Pole" means a pole or vertical structure owned by a utility
company or other third party with the right either pursuant to state law or
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a franchise to place such facilities in the Right-of-Way. An "Original Utility
Pole" is a pole that has not been replaced to accommodate Small Cell
Facilities, but that is capable of accommodating Small Cell Facilities, A
"Replacement Utility Pole" means a pole that replaces an Original Utility
Pole to accommodate Small Cell Facilities and does not result in an
increase in the total number of Utility Poles. Each reference to a Utility
Pole herein includes any Original Utility Pole and any Replacement Utility
Pole,
SECTION 2, - Franchise Granted.
2.L Pursuant to RCW 35A.47.O4O, the City of Kent, a Washington
municipal corporation ("City"), hereby grants to Franchisee, its successors,
legal representatives and assigns, subject to the terms and conditions set
forth below, a non-exclusive Franchise for a period of five (5) years
beginning on the effective date of this ordinance, set forth in Section 46.
2.2 This Franchise ordinance grants Franchisee the right, privilege, and
authority to construct, operate, maintain, replace, relocate, restore,
upgrade, remove, excavate, acquire, and use the Small cell Facilities, as
defined in Section 1.3, for its telecommunications network, in, under, on,
across, over, through, along or below the public Rights-of-way located in
the city of Kent, as approved pursuant to city codes and permits issued
pursuant to this Franchise. This Franchise does not authorize the
installation of any ground mounted equipment anywhere within the
Rights-of-Way.
2.3 This Franchise shall not prevent the City from granting franchises
in, along, over, through, under, below, or across any Rights-of-Way, This
Franchise shall not prevent or prohibit the City from using any Rights-of-
way or affect its jurisdiction over any Rights-of-way or any part of Rights-
of-Way. The City shall retain power to make all necessary changes,
relocations, repairs, maintenance, establishment, improvement, dedication
of Right-of-way as the city deems fit, including the dedication,
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establishment, maintenance, and improvement of all new Rights-of-Way,
thoroughfares, and other public properties of every type and description,
SECTION 3 Grant of Authority Limited.
3.1 The authority granted by this Franchise is a limited authorization to
occupy and use the Rights-of-way throughout the city (the "Franchise
Area"). The Franchisee is authorized to place its Facilities in the Rights-of-
Way only consistent with this Franchise, the City of Kent Zoning Code, the
Comprehensive Plan, the Area Design and Construction Standards and the
Kent Municipal Code (collectively the "Codes"). Nothing contained herein
shall be construed to grant or convey any right, title, or interest in the
Rights-of-Way of the City to the Franchisee other than for the purpose of
providing telecommunications services. Franchisee hereby warrants that it
expects to provide the following services within the City: small cell
network consisting of a collection of interrelated Small Cell Facilities
designed to deliver personal wireless services (the "services"). services
do not include personal wireless services and associated facilities that fall
outside of the definition of Small Cell Facilities (i.e., macro facilities).
3.2 This Franchise does not grant Franchisee the right to install and
operate wires and facilities to provide wireline broadband transmission
services, whether provided by a third party provider, Franchisee, or a
corporate affiliate of Franchisee. Any entity that provides such wireline
broadband transmission services must have an independent franchise to
use the Rights-of-Way outside of this Franchise. Further, this Franchise
does not grant the right to offer cable internet services or Cable Services
as those terms are definedin 47 U.S.C. 5 522(6) by wireline transmission.
3.3 This Franchise does not grant Franchisee the right to install any
facility, infrastructure, wires, lines, cables, or other equipment, on any
city property other than a Right-of-way, or upon private property without
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the owner's consent, or upon or in any City, public or privately owned
poles or conduits.
3.4 Nothing within this Franchise shall be construed to grant or convey
any right, title, or interest in the Rights-of-Way of the City to Franchisee
other than for the purpose of providing the Services, or to subordinate the
primary use of the Right-of-Way as a public thoroughfare.
3.5 If Franchisee desires to expand the Services provided within the
City, it shall request a written amendment to this Franchise. If Franchisee
desires to use City owned property, including poles and structures within
the Rights-of-Way it shall enter into a separate lease or license agreement
with the City.
3.6 Franchisee shall have the right, without prior City approval, to lease
the Facilities, grant a right of user interest in the Facilities or any portion
thereof or offer or provide capacity or bandwidth to its lessees or
customers consistent with this Franchise provided:
Franchisee at all times retains exclusive control over its
telecommunications system, Facilities and Services and
remains responsible for constructing, installing, and
maintaining its Facilities pursuant to the terms and
conditions of this Franchise;
Franchisee may not grant rights to any customer or lessee
that are greater than any rights Franchisee has pursuant to
this Franchise;
Such customer or lessee shall not be construed to be a third-
party beneficiary under this Franchise; and
No such customer or lessee may use the telecommunications
system or Services for any purpose not authorized by this
Franchise, nor to sell or offer for sale any service to the
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citizens of the City without all required business licenses,
franchise or other form of state wide approval.
SECTION 4. - Location of Facilities,
4.t Franchisee may locate its Facilities anywhere within the Franchise
Area consistent with the City's Design and Construction Standards and
area design and construction standards and subject to the City's applicable
Code requirements. Franchisee shall not be required to amend this
Franchise to construct or acquire Facilities within the Franchise Area,
provided that Franchisee does not expand its Services beyond those
described in Section 3,1.
4.2 To the extent that any Rights-of-Way within the Franchise Area are
part of the state highway system ("State Highways") and are governed by
the provisions of chapter 47.24 RCW and applicable Washington State
Department of Transportation ("WSDOT') regulations, Franchisee shall
comply fully with these requirements in addition to local ordinances and
other applicable regulations. Without limitation of the foregoing,
Franchisee specifically agrees that:
any pavement trenching and restoration performed by
Franchisee within State Highways shall meet or exceed
applicable WSDOT requirements;
any portion of a State Highway damaged or injured by
Franchisee shall be restored, repaired and/or replaced by
Franchisee to a condition that meets or exceeds applicable
WSDOT requirements; and
without prejudice to any right or privilege of the City, WSDOT
is authorized to enforce in an action brought in the name of
the State of Washington any condition of this Franchise with
respect to any portion of a State Highway.
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SECTION 5. - Relocation of Small Cell Facilities.
5.1 Relocation Requirement. Franchisee agrees to protect, support,
temporarily disconnect and then reconnect, relocate, or remove from any
Rights-of-Way any of its Facilities when reasonably required by the City by
reason of traffic conditions, public safety, dedications of new Rights-of-
Way, the establishment and improvement of new Rights-of-Way, widening
or improvement of existing Rights-of-Way or both, street vacations,
freeway construction, change or establishment of street grade, or the
construction of any public improvement or structure by any governmental
agency acting in a governmental capacity or as otherwise necessary for
the operations of the City or other governmental entity. Collectively, such
matters are referred to within this Franchise with the term "Public
Improvement."
5.2 Relocation. If the request for relocation from the City arises from a
Public Improvement, in which structures or poles are either replaced or
removed, then Franchisee shall relocate or remove its Facilities as required
by the City, and at no cost to the City, subject to the procedure in Section
5.4. Franchisee acknowledges and agrees that the placement of Small
Cell Facilities on third-party owned or City owned structures does not
convey an ownership interest in such structures. Franchisee
acknowledges and agrees, that to the extent Franchisee's Small Cell
Facilities are on poles owned by third parties, the City shall not be
responsible for any costs associated with requests for relocation which the
City makes solely for aesthetic purposes and where such request arises
out of a Public Improvement.
5,3 Locate. Upon written request of the City, or a third party
performing work in the Right-of-Way, and in order to facilitate the design
of City street and Right-of-Way improvements, Franchisee agrees, at its
sole cost and expense, to locate, and if determined necessary by the City,
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to excavate and expose its Facilities for inspection so that the Facilities'
location may be taken into account in the improvement design. The
decision as to whether any Facilities need to be relocated in order to
accommodate the Public Improvement shall be made by the city upon
review of the location and construction of Franchisee's Facilities. The City
shall provide Franchisee at least fourteen (14) calendar days' written
notice prior to any excavation or exposure of Facilities. Franchisee shall
be responsible for any delays due to failure to locate its Facilities when
requested, except that Franchisee shall not be responsible for delays or
damages due to circumstances beyond the control of the Franchisee.
5.4 Notice and Relocation Process. If the City determines that the
project necessitates the relocation of Franchisee's existing Facilities, the
City shall:
At least ninety (90) calendar days prior to commencing the
project, provide Franchisee with written notice requiring such
relocation and a date by which relocation must be complete;
provided, however, that in the event of an emergency
situation, defined for purposes of this Franchise as a condition
posing an imminent threat to property, life, health, or safety
of any person or entity, the City shall give Franchisee written
notice as soon as practicable; and
At least ninety (90) calendar days prior to commencing the
project, provide Franchisee with copies of pertinent portions
of the plans and specifications for the improvement project
and a proposed location for Franchisee's Facilities so that
Franchisee may relocate its Facilities in other City Rights-of-
Way in order to accommodate such improvement project;
and
After receipt of such notice and such plans and specifications,
Franchisee shall complete relocation of its Facilities consistent
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with the date for relocation established in accordance with
this Section 5.4(a) at no charge or expense to the City,
except as otherwise provided by law. Relocation shall be
accomplished in such a manner as to accommodate the Public
Improvement.
5.5 Alternative Arrangements. The Franchisee may make its own
appropriate arrangements in response to a request for relocation of its
Facilities from a person or entity other than the City, so long as any
improvements being constructed are not or will not become City-owned,
operated or maintained; except that any such arrangements shall not
unduly delay a City construction project,
5.6 Contractor Delay Claims, Franchisee shall be solely responsible for
the out-of-pocket costs incurred by the City for delays in a Public Project
to the extent the delay is caused by or arises out of Franchisee's failure to
comply with the final schedule for the relocation (other than as a result of
a Force Majeure Event or causes or conditions caused by the acts or
omissions of the City or any third party unrelated to Franchisee;
Franchisee vendors and contractors shall not be considered unrelated third
parties). Such out-of-pocket costs may include, but are not limited to,
payment to the City's contractors and/or consultants for increased costs
and associated court costs, interest, and reasonable attorneys' fees
incurred by the City to the extent directly attributable to such Franchisee's
caused delay in the Public Project.
5.7 Indemnification. Franchisee will indemnify, hold harmless, and pay
the costs of defending the City, in accordance with the provisions of
Section 22,
5.8 Moving of Buildings or Other Objects. Franchisee shall, on the
request of any individual or private entity holding a valid permit issued by
a governmental authority, temporarily remove, raise or lower its Facilities
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to permit the moving of buildings or other objects, The expense of such
temporary removal, raising or lowering of Facilities shall be at the expense
of the requestor,
5.9 City's Costs. If Franchisee fails, neglects, or refuses to remove or
relocate its Facilities as directed by the City following the procedures
outlined in this Section 5, the City may perform such work or cause it to
be done, and the City's costs shall be paid by Franchisee pursuant to
Sections 15.3 and L5.4.
5.10 Survival. The provisions of this Section 5 shall survive the
expiration or termination of this Franchise during such time as Franchisee
continues to have Facilities in the Rights-of-Way.
SECTION 6. - Undergrounding of Facilities
6.1 No installation of Small Cell Facilities in Undergrounded Areas,
Franchisee shall not install Small Cell Facilities in areas that already have
undergrounding of aerial utilities, except as authorized by the Director and
in compliance with any Kent construction standards, Any Facilities so
located shall be approved by the Director and if such Facilities include the
installation of a new pole or installation on a City-owned pole, Franchisee
shall be required to enter into a separate agreement with the City for such
installations.
6.2 Requirement to Remove Small Cell Facilities. Franchisee hereby
acknowledges and agrees that whenever the City requires the
undergrounding of the aerial utilities in any area of the City, which
includes the removal of structures (e.9., Utility Poles) in the Rights-of-
Way, Franchisee will also be required to remove or relocate its Facilities
from such structures within the timeframe set for such undergrounding
project. If the aerial utilities are required to be undergrounded,
Franchisee's grant of permission for Small Cell Facilities on Utility Poles in
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that area will be automatically revoked upon removal of these Utility
Poles. Franchisee may re-install any Small Cell Facilities only as authorized
by the Director and in compliance with any Kent Construction Standards,
unless otherwise approved by the Director. Installation of new poles shall
require a separate agreement.
6.3 Survival. The provisions of this Section 6 shall survive the
expiration, revocation, or termination of this Franchise. Nothing in this
Section 6 shall be construed as requiring the City to pay any costs of
undergrounding any of the Franchisee's Facilities.
SECTION 7, - Information, Inventory and Records.
7.L InformationRequest
Franchisee shall supply and maintain updated, at no cost to
the City, any information reasonably requested by the City to
coordinate its functions with the Franchisee's activities and
fulfill any municipal functions under state law. This required
information may include, but is not limited to, any installation
inventory, location of existing or planned Facilities, maps,
plans, operational data, and as-built drawings of Franchisee's
Facilities in the City. Franchisee shall warrant the accuracy of
all information provided to the City.
Within thirty (30) calendar days of a written request from the
Director, but in no event more than once annually, the
Franchisee shall furnish the City with information sufficient to
demonstrate: 1) that the Franchisee has complied with all
applicable requirements of this Franchise; and 2) that all
utility taxes due the City in connection with the Franchisee's
services and Facilities provided by the Franchisee have been
properly collected and paid by the Franchisee.
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7.2 Current Inventory
a Franchisee shall maintain a current inventory of Small Cell
Facilities throughout the Term of this Franchise. Franchisee
shall provide to City a copy of the inventory report no later
than one hundred eighty (180) calendar days after the
Effective Date of this Franchise, and an updated inventory
report shall be provided by December 31 of each year and
within thirty (30) calendar days of a reasonable request by
the City. The inventory report shall include GIS coordinates,
date of installation, type of pole used for installation,
description/type of installation for each Small Cell Facility
installation and photographs taken before and after the
installation of the Small Cell Facility and taken from the public
street,
Small Cell Facilities that are considered Deactivated Facilities,
as described in Section 24.t, shall be included in the
inventory report and Franchisee shall provide the same
information as is provided for active installations as well as
the date the Facilities were deactivated and the date the
Deactivated Facilities were removed from the Right-of-Way.
The City shall compare the inventory report to its records to
identify any discrepancies, and the parties will work together
in good faith to resolve any discrepancies. Franchisee is not
required to report on future inventory reports any
Deactivated Facilities which were removed from the Right-of-
Way since the last reported inventory and may thereafter
omit reference to the Deactivated Facilities. Franchisee shall
keep the City reasonably informed of its long-range plans for
coordination with the City's long-range plans.
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7.3 Inspection. All books, records, maps, and other documents
maintained by Franchisee with respect to its Facilities within the Rights-of-
Way shall be made available for inspection by the City at reasonable times
and intervals; except that nothing in this Section 7.3 shall be construed to
require Franchisee to violate state or federal law regarding customer
privacy, nor shall this Section 7.3 be construed to require Franchisee to
disclose proprietary or confidential information without adequate
safeguards for its confidential or proprietary nature. Unless otherwise
permitted or required by state or federal law, nothing in this Section 7,3
shall be construed as permission to withhold relevant customer data from
the City that the City requests in conjunction with a tax audit or review;
provided, however, Franchisee may redact identifying information such as
names, street addresses (excluding City and zip code), Social Security
Numbers, or Employer Identification Numbers related to any
confidentiality agreements Franchisee has with third parties,
7.4 Public Records Act
Franchisee acknowledges that information submitted to the
City is subject to the Washington Public Records Act, chapter
42.56 RCW, and is open to public inspection, subject to any
exceptions permitted by law (i.e., unless an exemption
applies),
Franchisee may identify documents submitted to the City that
Franchisee believes are non-disclosable, such as trade
secrets. Franchisee shall be responsible for clearly and
conspicuously identifying the work as confidential or
proprietary, and shall provide a brief written explanation as
to why such information is confidential and how it may be
treated as such under state or federal law. The City agrees
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to keep confidential any proprietary or confidential books or
records to the extent permitted by law.
If the City receives a public records request under chapter
42.56 RCW or similar law for the disclosure of the documents
or any part of the documents Franchisee has designated as
confidential, trade secret, or proprietary, the City shall
provide Franchisee with written notice of the request,
including a copy of the request prior to disclosure so that
Franchisee can take appropriate steps to protect its interests.
Nothing in this Section 7.4 prohibits the City from complying
with chapter 42.56 RCW or any other applicable law or court
order requiring the release of public records, and the City
shall not be liable to Franchisee for compliance with any law
or court order requiring the release of public records. The
City will not assert an exemption from disclosure or
production on Franchisee's behalf.
The City shall comply with any injunction or court order
obtained by Franchisee that prohibits the disclosure of any
such confidential records. If a higher court overturns an
injunction or court order and such higher court action is or
has become final and non-appealable, Franchisee shall
reimburse the City for any fines or penalties imposed for
failure to disclose such records within forty-five (45) calendar
days of a request from the City, unless additional time is
reasonably necessary under the circumstances and is agreed
to by the parties.
7.5 Annual Audit. On an annual basis, upon thirty (30) calendar days
prior written notice, the City shall have the right to conduct an
independent audit of Franchisee's records reasonably related to the
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administration or enforcement of this Franchise, in accordance with GAAP.
If the audit shows that tax or fee payments have been underpaid by three
percent (3olo) or more, Franchisee shall pay the total cost of the audit.
SECTION 8. - Work in the Rights-of-Way
8.1 During any period of relocation, construction or maintenance, all
work performed by Franchisee or its contractors shall be accomplished in a
safe and workmanlike manner and only after obtaining permits pursuant
to Section 8.3. Franchisee shall minimize interference with the free
passage of traffic and the free use of adjoining property, whether public or
private, Franchisee shall at all times post and maintain proper traffic
control to warn and direct the road users. Traffic control devices include
but are not limited to barricades, traffic cones, traffic drums, tubular
markers, flags, certified flaggers, lights, flares, and other measures as
required for the safety of all members of the general public. Franchisee
shall also comply with all applicable safety regulations during such period
of construction as required by the ordinances of the City or the laws of the
State of Washington, including RCW 39.04,180 for the requirement of
trench safety systems for trench excavations. The provisions of this
Section 8.1 shall survive the expiration or termination of this Franchise
and during such time as Franchisee continues to have Facilities in the
Rights of Way.
8.2 Franchisee shall, at its own expense, maintain its Facilities in a safe
condition, in good repair, and in a manner suitable to the City.
Additionally, Franchisee shall keep its Facilities free of debris and anything
of a dangerous, noxious, or offensive nature or which would create a
hazard or undue vibration, heat, noise, or any interference with City
services. The provisions of this Section 8.2 shall survive the expiration of
this Franchise during such time as Franchisee continues to have Facilities
in the Rights-of-Way.
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8.3 Whenever Franchisee shall commence work in any Rights-of-Way
for the purpose of excavation, installation, construction, repair,
maintenance, or relocation of its Facilities, it shall apply to the City for a
permit to do so. During the progress of the work, the Franchisee shall not
unnecessarily obstruct the passage or proper use of the Rights-of-Way,
and all work by the Franchisee in the area shall be performed in
accordance with applicable City standards and specifications and
warranted for a period of two (2) years. In no case shall any work
commence within any Rights-of-Way without a permit, except as
otherwise provided in this Franchise.
8.4 If either the City or Franchisee plans to make excavations in any
area covered by this Franchise and as described in this Section 8.4, the
party planning such excavation shall afford the other an opportunity to
share such excavation, PROVIDED THAT:
The joint use shall not unreasonably delay the work of the
party causing the excavation to be made;
The joint use shall be arranged and accomplished on terms
and conditions satisfactory to both parties; and
The initiating party may deny such request for safety
reasons.
8.5 Upon prior written notice from the City, Franchisee shall meet with
the City and other franchise holders to schedule and coordinate
construction in the Rights-of-Way, To minimize public inconvenience,
disruption or damage, the Franchisee shall coordinate all construction
locations, activities, and schedules as reasonably directed by the City.
8.6 Franchisee acknowledges that it shall be solely responsible for
compliance with all marking and lighting requirements of the FAA and the
FCC with respect to Franchisee's Facilities. Franchisee shall indemnify,
defend and hold the City harmless from any fines or other liabilities caused
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by Franchisee's failure to comply with these requirements. Should
Franchisee or the City be cited by either the FCC or the FAA because the
Facilities or Franchisee's equipment is not in compliance and should
Franchisee fail to cure the conditions of noncompliance within the
timeframe allowed by the citing agency, the City may elect any or all of
the following remedies: (1) cure the conditions of noncompliance at
Franchisee's expense, and collect all reasonable costs from Franchisee in
accordance with the provisions of Section 15.3 and Section L5.4; (2)
collect damages pursuant to Section 28.2; or (3) revoke this Franchise
pursuant to Section 27. Franchisee shall not be liable for any claims,
damages or liability resulting from City's acts in effecting the cure on
behalf of Franchisee.
SECTION 9. - Trees
9.1 Franchisee may trim trees upon and overhanging on Rights-of-Way,
streets, alleys, sidewalks, and other public places of the City so as to
prevent the branches of any such trees from coming in contact with
Franchisee's Facilities. The right to trim trees in this Section 9.1 only
applies to the extent necessary to protect above ground Facilities.
Franchisee shall avoid unnecessary trimming of trees and vegetation in
the vicinity of its Facilities and shall avoid damaging any trees or
vegetation, Franchisee shall ensure that its tree trimming activities
protect the appearance, integrity, and health of the trees to the extent
reasonably possible, Franchisee shall be responsible for all debris removal
from such activities.
9.2 Upon the written request of the Director, Franchisee shall prepare
and maintain a tree trimming schedule to ensure compliance with this
Section 9.2 and to avoid exigent circumstances where tree cutting,
trimming, or removal is necessary to protect the public safety or continuity
of service. Franchisee shall submit the tree trimming schedule to the
Director. Franchisee shall notify and obtain written approval from the
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City, which shall not be unreasonably withheld, delayed or conditioned,
before completing any trimming, except in an emergency.
9,3 All tree trimming shall be completed at the expense of Franchisee.
Franchisee may contract for such services, however, City approval is
required prior to commencing such trimming, which shall not be
unreasonably withheld, delayed or conditioned. Nothing in this Franchise
grants Franchisee any authority to act on behalf of the City, to enter upon
any private property, or to trim any tree or natural growth not owned by
the City. Except in an emergency, all tree trimming must be performed
under the direction of an arborist certified by the International Society of
Arboriculture, unless otherwise approved by the Director.
9.4 Franchisee shall be solely responsible and liable for any damage to
any third parties' trees or natural growth caused by Franchisee's actions.
Franchisee shall indemnify, defend and hold harmless the City from claims
of any nature arising out of any act or negligence of Franchisee with
regard to tree and/or natural growth trimming, damage, and/or removal.
Franchisee shall reasonably compensate the City or the property owner for
any damage caused by trimming, damage, or removal by Franchisee,
SECTION 10 One Call Locator Service
Prior to doing any work in the Rights-of-way, Franchisee shall follow
established procedures, including contacting the Utility Notification Center
in Washington and comply with all applicable State statutes regarding the
One Call Locator Service pursuant to chapter L9.I22 RCW, Further, upon
request by the City or a third party, Franchisee shall locate its Facilities
consistent with the requirements of chapter 19.122 RCW. The City shall
not be liable for any damages to Franchisee's Facilities or for interruptions
in service to Franchisee's customers that are a direct result of Franchisee's
failure to locate its Facilities within the prescribed time limits and
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guidelines established by the One Call Locator Service regardless of
whether the City issued a permit.
SECTION 11. - Safetv Requirements,
11.1 Franchisee shall, at all times, employ professional care and shall
install and maintain and use industry-standard methods for preventing
failures and accidents that are likely to cause damage, injuries, or
nuisances to the public. All structures and all lines, equipment, and
connections ifl, over, under, and upon the Rights-of-Way, wherever
situated or located, shall at all times be kept and maintained in a safe
condition. Franchisee shall comply with all federal, state, and City safety
requirements, rules, regulations, laws, and practices, and employ all
necessary devices as required by applicable law during the construction,
operation, maintenance, upgrade, repair, or removal of its Facilities. By
way of illustration and not limitation, Franchisee shall also comply with the
applicable provisions of the National Electric Code, National Electrical
Safety Code, FCC regulations, and Occupational Safety and Health
Administration (OSHA) Standards. The City reserves the general right to
inspect the Facilities to evaluate if they are constructed and maintained in
a safe condition.
tL.2 If an unsafe but non-emergent condition or a violation of Section
11.1 is found to exist, and becomes known to the City, the City agrees to
give Franchisee written notice of such condition and afford Franchisee a
reasonable opportunity to repair the condition. If Franchisee fails to start
to make the necessary repairs and alterations within a reasonable time
frame specified in such notice (and pursue such cure to completion), then
the City may make such repairs or contract for them to be made. All
costs, including administrative costs, incurred by the City in repairing any
unsafe conditions shall be borne by Franchisee and reimbursed to the City
pursuant to Sections 15.3 and 15,4.
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11.3 Additional safety standards include:
Franchisee shall endeavor to maintain all Facilities in an
orderly manner, including, but not limited to, the placement
of any cables connecting equipment in an orderly manner.
All installations of equipment, lines, and ancillary facilities
shall be installed in accordance with industry-standard
engineering practices and shall comply with all federal, state,
and local regulations, ordinances, and laws,
The Franchisee shall at all times protect any opening or
obstruction in the Rights-of-Way or other public places made
by Franchisee in the course of its operations by the
placement of adequate barriers, fences, or boarding, the
bounds of which, during periods of dusk and darkness, shall
be clearly marked and visible.
LL.4 On notice from the City that any work is being performed contrary
to the provisions of this Franchise, or in an unsafe or dangerous manner
as reasonably determined by the City, or in violation of the terms of any
applicable permit, laws, regulations, ordinances, or standards, the work
may immediately be stopped by the City. The stop work order shall:
a. Be in writing;
b, Be given to the person doing the work or posted on the work
site;
c. Be sent to Franchisee by overnight delivery;
d. Indicate the nature of the alleged violation or unsafe
condition; and
e, Establish conditions under which work may be resumed.
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SECTION 12. - Work of Contractors and Subcontractors
Franchisee's contractors and subcontractors shall be licensed and bonded
in accordance with State law and the City's ordinances, regulations, and
requirements, Work by contractors and subcontractors 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 Franchisee and shall
ensure that all such work is performed in compliance with this Franchise
and applicable law.
SECTION 13. - Restoration after Construction.
13.1 Franchisee shall repair any damage to the Rights-of-Way, and the
property of any third party, after installation, construction, relocation,
maintenance, or repair of its Facilities or after abandonment approved
pursuant to Section 24, within thirty (30) days following the date of any of
these activities at Franchisee's sole cost and expense. Franchisee shall
restore the Rights-of-Way and the surface of the Rights-of-Way to the
same or better condition as it was immediately prior to any installation,
construction, relocation, maintenance or repair by Franchisee, reasonable
wear and tear excepted, Franchisee shall not be responsible for any
changes to the Rights-of-Way not caused by Franchisee or anyone doing
work for Franchisee. No survey monument may be removed (or replaced)
without a professional land surveyor obtaining a permit in advance from
the Washington State Department of Natural Resources and submitting a
copy of the approved permit to the City. Franchisee shall restore all
concrete encased monuments that will be disturbed or displaced by such
work to City standards and specifications. The Director shall have final
approval of the condition of the Rights-of-Way after repair or restoration
by the Franchisee,
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L3.2 Franchisee agrees to complete all restoration work to the Franchise
Area or other affected area at its sole cost and expense and according to
the time and terms specified in the construction permit issued by the City.
All work by Franchisee pursuant to this Franchise shall be performed in
accordance with applicable City standards and warranted for a period of
two (2) years and for undiscovered defects as is standard and customary
for this type of work.
13.3 If conditions (e.9., weather) make the complete restoration required
under this Section 13 impracticable, Franchisee shall temporarily restore
the affected Right-of-Way or property. Such temporary restoration shall
be at Franchisee's sole cost and expense. Franchisee shall promptly
undertake and complete the required permanent restoration when
conditions no longer make such permanent restoration impracticable.
L3.4 If Franchisee does not repair a Right-of-Way or an improvement in
or to a Right-of-Way within the reasonable time agreed to by the Public
Works Director, or his/her designee, the City may repair the damage and
shall be reimbursed its actual cost within sixty (60) calendar days of
submitting an invoice to Franchisee in accordance with the provisions of
Section 15.3 and Section L5.4. In addition, and pursuant to Section 15.3
and 15.4, the City may bill Franchisee for expenses associated with the
inspection of such restoration work. The failure by Franchisee to complete
such repairs shall be considered a breach of this Franchise and is subject
to remedies by the City including the imposition of damages consistent
with Section 28.2.
13.5 The provisions of this Section 13 shall survive the expiration or
termination of this Franchise so long as Franchisee continues to have
Facilities in the Rights-of-Way and has not completed all restoration to the
City's standards.
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SECTION 14. - Emergency Work/Dangerous Conditions.
L4.L In the event of any emergency in which any of Franchisee's
Facilities located in the Rights-of-Way breaks, falls, becomes damaged, or
if Franchisee's Facilities is otherwise in such a condition as to immediately
endanger the property, life, health or safety of any person, entity or the
City, Franchisee shall immediately take the proper emergency measures to
repair its Facilities, to cure or remedy the dangerous conditions for the
protection of property, life, health or safety of any person, entity or the
City without first applying for and obtaining a permit as required by this
Franchise. However, this shall not relieve Franchisee from the
requirement of obtaining any permits necessary for this purpose, and
Franchisee shall apply for all such permits on the next day Kent City Hall is
open for business.
L4.2 The City retains the right and privilege to cut, move or remove any
Small Cell Facilities located within the Rights-of-Way of the City, as the
City may determine to be necessary, appropriate or useful in response to
any public health or safety emergency, including the knockdown of a
Utility Pole with Small Cell Facilities.
L4.3 The City shall not be liable for any damage to or loss of Facilities
within the Rights-of-Way as a result of or in connection with any public
works, public improvements, construction, grading, excavation, filling, or
work of any kind in the Rights-of-Way by or on behalf of the City, except
to the extent directly and proximately caused by the gross negligence or
willful acts of the City, its employees, contractors, or agents. The City
shall further not be liable to Franchisee for any direct, indirect, or any
other such damages suffered by any person or entity of any type as a
direct or indirect result of the City's actions under this Section 14 except
to the extent caused by the gross negligence or willful acts of the City, its
employees, contractors, or agents.
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L4.4 Whenever the construction, installation or excavation of Facilities
authorized by this Franchise has caused or contributed to a condition that
appears to substantially impair the lateral support of the adjoining street
or public place, or endangers the public, an adjoining public place, street
utilities or City property, the Public Works Director may direct Franchisee,
at Franchisee's own expense, to take reasonable action to protect the
public, adjacent public places, City property or street utilities, and such
action may include compliance within a prescribed time. If the Franchisee
fails or refuses to promptly take the actions directed by the City, or fails to
fully comply with such directions, or if emergency conditions exist which
require immediate action, before the City can timely contact Franchisee to
request Franchisee effect the immediate repair, the City may access the
Facilities and take such reasonable actions as are necessary to protect the
public, the adjacent streets, or street utilities, or to maintain the lateral
support thereof, or reasonable actions regarded as necessary safety
precautions, and Franchisee shall be liable to the City for the costs
thereof.
L4.5 Franchisee shall promptly reimburse the City in accordance with the
provisions of Section 15.3 and Section L5.4 for any and all costs the City
reasonably incurs in response to any emergency situation involving
Franchisee's Facilities, to the extent the emergency is not the fault of the
City. The City agrees to simultaneously seek reimbursement from any
franchisee or permit holder who caused or contributed to the emergency
situation.
SECTION 15 Recovery of Costs, Taxes and Fees
15.1 Franchisee shall pay a fee for the actual administrative expenses
incurred by the city that are directly related to the receiving and
approving this Franchise pursuant to RCW 35.21.860, including the costs
associated with the City's legal costs incurred in drafting and processing
Smatt Cett Francoffu;25
this Franchise. No permits shall be issued for the installation of any
Facilities until such time as the City has received payment of this fee.
L5.2 Franchisee shall further be subject to all permit fees associated with
activities undertaken through the authority granted in this Franchise or
under the laws of the City. Where the City incurs costs and expenses for
review, inspection, or supervision of activities, including but not limited to
reasonable fees associated with attorneys, consultants, City Staff and City
Attorney time, undertaken through the authority granted in this Franchise
or any ordinances relating to the subject for which a permit fee is not
established, Franchisee shall pay such costs and expenses directly to the
City in accordance with the provisions of Section 15.3,
15.3 Franchisee shall reimburse the City within sixty (60) calendar days
of submittal by the City of an itemized billing for reasonably incurred
costs, itemized by project, for Franchisee's proportionate share of all
actual, identified expenses incurred by the City in planning, constructing,
installing, repairing, altering, or maintaining any City facility as the result
of the presence of Franchisee's Facilities in the Rights-of-Way. Such costs
and expenses shall include but not be limited to Franchisee's proportionate
cost of City personnel assigned to oversee or engage in any work in the
Rights-of-Way as the result of the presence of Franchisee's Facilities in the
Rights-of-Way. Such costs and expenses shall also include Franchisee's
proportionate share of any time spent reviewing construction plans in
order to either accomplish the relocation of Franchisee's Facilities or the
routing or rerouting of any utilities so as not to interfere with Franchisee's
Facilities.
L5.4 The time of City employees shall be charged at their respective rate
of salary, including overtime if applicable, plus benefits and reasonable
overhead. Any other costs will be billed proportionately on an actual cost
basis. All billings will be itemized so as to specifically identify the costs
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and expenses for each project for which the City claims reimbursement, A
charge for the actual costs incurred in preparing the billing may also be
included in the billing. At the City's option, the billing may be on an
annual basis, but the City shall provide the Franchisee with the City's
itemization of costs, in writing, at the conclusion of each project for
information purposes.
15.5 Franchisee hereby warrants that its operations as authorized under
this Franchise are those of a telephone business as defined in RCW
82.16.010, or service provider as defined in RCW 35.99.010. As a result,
the City will not impose a franchise fee under the terms of this Franchise,
other than as described herein, The City hereby reserves its right to
impose a franchise fee on Franchisee if Franchisee's operations as
authorized by this Franchise change such that the statutory prohibitions of
RCW 35.21.860 no longer apply, or if statutory prohibitions on the
imposition of such fees are removed, In either instance, the City also
reserves its right to require that Franchisee obtain a separate Franchise
for its change in use. Nothing contained herein shall preclude Franchisee
from challenging any such new fee or separate agreement under
applicable federal, state, or local laws.
15.6 Franchisee acknowledges that certain of its operations within the
City constitute a telecommunication business subject to the utility tax
imposed pursuant to chapter 3.18 of the Kent City Code. Franchisee
stipulates and agrees that certain of its business activities are subject to
taxation as a telecommunication business and that Franchisee shall pay to
the City the rate applicable to such taxable services under chapter 3.18 of
the Kent City Code, and consistent with state and federal law. The parties
agree however, that nothing in this Franchise shall limit the City's power
of taxation as may exist now or as later imposed by the City. This
provision does not limit the City's power to amend chapter 3.18 of the
Kent City Code as may be permitted by law.
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SECTION 16. - Small Cell Facilities - Approvals and Permits
16,1 City Retains Approval Authority. The City shall have the authority
at all times to control by appropriately exercised police powers through
ordinance or regulation, consistent with 47 U.S.C. S 253,47 U.S.C. S
332(c)(7) and the laws of the State of Washington, the location, elevation,
manner of construction, and maintenance of any Small Cell Facilities by
Franchisee, and Franchisee shall promptly conform with all such
requirements, unless compliance would cause Franchisee to violate other
requirements of law. This Franchise does not prohibit the City from
exercising its rights under federal, state or local law to deny or give
conditional approval to an application for a permit to construct any
individual Small Cell Facility.
L6.2 City Approvals and Permits. The granting of this Franchise is not a
substitute for any other City required approvals to construct Franchisee's
Facilities in the Rights-of-Way ("City Approvals"). The parties agree that
such City Approvals (except Right-of-Way use permits as described in
Section 8,3) are not considered use permits, as that term is defined in
RCW 35.99.010, These City Approvals do not grant general authorization
to enter and utilize the Rights-of-Way but rather grant Franchisee
permission to build its specific Small Cell Facilities. Therefore City
Approvals are not subject to the thirty (30) day issuance requirement
described in RCW 35.99.030. The parties recognize that this provision is
specifically negotiated as consideration for designating the entire City as
the Franchise Area. Such City Approvals shall be issued consistent with
the Codes, state and federal laws governing wireless communication
facility siting and shall be in addition to any permits required under
Section 8,3. This Section does not affect the thirty (30) day issuance
requirement described in RCW 35,99.030 required for use permits such as
Right-of-Way use permits and traffic control permits.
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SECTION 17. - Desion Standards
L7.L Purpose. The Franchisee acknowledges that the purpose of the
Design Standards set forth within this Section L7 is to locate Small Cell
Facilities in the City's Rights-of-Way in a manner that minimizes potential
incompatibilities with adjacent uses, limits bulk and minimizes aesthetic
impacts.
L7.2 Concealment. Franchisee shall construct its Facilities consistent
with the concealment or stealth requirements as described or shown in the
Kent City Code, any Kent Construction Standards, this Franchise and in
the applicable permit(s), in order to minimize the visual impact of such
Facilities, The design standards within this Franchise or in a future
Franchise Utility Permit, including the dimensions and number of
antennas and equipment boxes and the pole height are intended and
stipulated to be concealment features when considering whether a
proposed modification is a substantial change under Section 6409(a) of
the Spectrum Act, 47 U.S.C. $ 1455(a),
Locations.
i. Franchisee shall locate Small Cell Facilities on Utility
Poles in a location that minimizes the appearance of Small
Cell Facilities from existing adjacent residential structures to
the maximum extent feasible, For example, Franchisee shall
use its best efforts to avoid locations where Facilities would
be close to windows, in front of historically or architecturally
significant buildings, or in locations where Facilities would
disturb views of significance.
ii. In order to minimize negative visual impact to the
surrounding area, the Director may deny a request for a
proposed Small Cell Facility where the proposed location is
deemed inappropriate due to the extent of existing above
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b
ground wireless telecommunications or other electrical or
cable facilities existing within a one hundred fifty foot (150')
radius of the proposed Small Cell Facility location, The
Director may also deny a request for a proposed Small Cell
Facility on a Utility Pole already containing more than one
electrica I transformer,
iii. A Utility Pole shall not contain more than one Small
Cell Facility.
Replacement Utility Poles Height. The height of any
Replacement Utility Pole including antennas shall be: fifty
(50) feet or less; or not extended to a height of more than
ten percent (10olo) above its preexisting height as a result,
whichever is greater.
Small Cell Facilities Design. Small Cell Facilities shall comply
with the Design Standards set forth within this Section L7
and be in a design substantially similar in aesthetics and
proportion to those pictured in Exhibit A.
i. Color. Small Cell Facilities antennas, conduit,
mounting hardware and equipment cabinets shall be painted
a neutral color to match the color of the Utility Pole, or at the
City's preference, Franchisee shall paint its Small Cell
Facilities any color of the City's choosing, so long as the paint
is reasonably commercially available.
ii. Mount. Small Cell Facilities shall be mounted as closely
to the Utility Pole as possible, and shall not extend out more
than three (3) feet from the pole, Ground mounted
equipment is prohibited,
c
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iii. No Illumination. Except as otherwise required by
applicable law, Small Cell Facilities shall not be illuminated.
iv, Concealed Wires. Small Cell Facilities' external cables
and wires shall be enclosed in a conduit so that wires are
protected and not visible or visually minimized to the
maximum extent feasible. The number of conduit shall be
minimized to the number necessary to accommodate the
Small Cell Facility and the conduit shall be mounted as closely
to the pole, while still meeting the required safety clearances
necessary for the pole to remain climbable. The color of
external cables and wires and conduit shall match the color of
the Utility Pole or be a neutral color such as black, brown,
beige, off-white, or light gray. All cables shall be also be
concealed to the extent feasible. Franchisee agrees to
require any third party installing cables or wires on its Small
Cell Facilities to comply with the requirements in this Section,
subject to the approval of the pole owner.
v. Bulk.
1. Except as provided below, primary small cell
equipment enclosures shall not exceed twelve (12)
cubic feet in volume.
2. Multiple antennas are permitted provided that
the cumulative total antenna volume shall not exceed
twelve (12) cubic feet.
3. If, due to technological reasons, the proposed
equipment enclosures do not comply with Section
77.z(c)(v)(1), the Director may approve primary small
cell equipment enclosures up to twenty-eight (28)
cubic feet in volume following a submission to the
Director by the Franchisee demonstrating that
Franchisee is proposing to use the smallest small cell
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equipment enclosure that is technologically feasible for
the specific Small Cell Facility.
vi, Stickers. The use of stickers on Utility Poles should be
minimized to the extent feasible,
SECTION 18. - Unauthorized Facilities,
Any Small Cell Facilities installations in the City Right-of-Way that were
not authorized under this Franchise or other required City Approval or
were installed substantially out of compliance with the Design Standards in
Section L7(c) ("Unauthorized Facilities") will be subject to the payment of
an Unauthorized Facilities charge by Franchisee. City shall provide written
notice to Franchisee of any Unauthorized Facilities identified by City staff
and Franchisee shall have thirty (30) calendar days thereafter in which to
establish that this installation was authorized or obtain the applicable
permit. Failure to establish that the installation is authorized will result in
the imposition of an Unauthorized Facilities charge in the amount of One
Thousand Dollars ($1,000.00) per Unauthorized Facility per day starting
on the thirty-first (31't) day. Franchisee may submit an application to the
City under this Franchise for approval of the Unauthorized Facilities. If the
application for the Unauthorized Facilities is not approved, Franchisee shall
remove the Unauthorized Facilities from the City's Right-of-Way within
thirty (30) calendar days after the expiration of all appeal periods for such
denial, The City shall not refund any Unauthorized Facilities charges,
unless Franchisee is successful in an appeal, This Franchise remedy is in
addition to any other remedy available to the City at law or equity.
SECTION 19. - Graffiti Abatement,
As soon as practical, but not later than fourteen (14) days from the date
Franchisee receives written notice or is otherwise aware, Franchisee shall
remove all graffiti on any of its Small Cell Facilities in which it is the owner
of the pole or structure or on the Small Cells Facilities themselves
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attached to a third-party pole (e.9,, graffiti on the shrouding protecting
the radios). The foregoing shall not relieve Franchisee from complying
with any City graffiti or visual blight ordinance or regulation.
SECTION 20. - Emissions Reports,
20.L Franchisee is obligated to comply with all laws relating to allowable
presence of or human exposure to Radiofrequency Radiation ("RFs") or
Electromagnetic Fields ("EMFs") on or off any poles or structures in the
Rights-of-Way, including all applicable FCC standards as now or hereafter
adopted, whether such RF or EMF presence or exposure results from the
Small Cell Facility alone or from the cumulative effect of the Small Cell
Facility added to all other sources on or near the specific pole or structure,
2O.2 Franchisee must provide to the City a copy of the report (the
"Emissions Report") from a duly qualified engineer analyzing whether RF
and EMF emissions at the proposed Small Cell Facility locations would
comply with FCC General Population standards. Franchisee may provide
one standard Emissions Report which certifies that a standard Small Cell
configuration (including power output, elevation of antennas above ground
level, number of antennas) complies with FCC standards for its entire
deployment, provided that the configuration of its Facilities remains
identical ("Master Emissions Report"). Franchisee shall provide multiple
Master Emissions Reports if it deploys different configurations within the
City, All applications for Small Cells shall certify that the configuration is
the same as or emits less emissions than the design in the standard
Emissions Report. If an installation differs from the standard report as
being more intrusive, then Franchisee will be required to provide a
customized Emissions Report for such Small Cell installation. If not
provided earlier as part of a Master Emissions Report, Franchisee must
submit the Emissions Report to the City with the applicable Small Cell
Permit application. Further, following any subsequent modification to a
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Small Cell Facility that materially alters the configuration of such Small
Cell Facility, Franchisee shall, at its own cost and expense, perform an RF
emissions test following such modification to validate that the Small Cell
Facilities once modified comply with the FCC standards.
20.3 If the City discovers that the emissions from a Facility exceeds the
FCC standards, then the City may order Franchisee to immediately turn off
the Facility or portion thereof committing the violation, until the emissions
exposure is remedied.
20.4 If Small Cell Facilities have already been installed by the Franchisee
or other entities within the vicinity of a proposed Small Cell Facility,
Franchisee shall provide an Emissions Report for the proposed Facility that
includes the cumulative effects of all of these already existing Facilities.
SECTION 21 No Interference.
2L.l Interference with Public Facilities. Franchisee's Small Cell Facilities
shall not interfere with any City operations (including, but not limited to,
traffic lights, radio systems, or other City communications infrastructure),
or PSERN (or its successor entity) communications operation or
equipment. If the City reasonably determines that the Small Cell Facilities
cause such interference, Franchisee shall respond to the City's request to
address the source of the interference as soon as practicable, but in no
event later than forty-eight (48) hours of receipt of written notice. The
City may require, by written notice, that Franchisee cease operation of the
specific Small Cell Facilities causing such interference and either modify,
remove or relocate such Small Cell Facilities. If, within ten (10) calendar
days after receipt of such written notice from the City of such interference,
Franchisee has not abated such interference, such Small Cell Facility may
be deemed an Unauthorized Facility and subject to the provisions of
Section 18.
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2t.2 Interference with Other Facilities. Franchisee is solely responsible
for determining whether its Small Cell Facilities interfere with
telecommunications facilities of utilities and franchisees existing within the
Rights-of-Way prior to Franchisee's installation. Franchisee shall comply
with the rules and regulations of the Federal Communications Commission
regarding radio frequency interference when siting its Small Cell Facilities
within the Franchise Area. Franchisee, in the performance and exercise of
its rights and obligations under this Franchise shall not physically or
technically interfere in any manner with the existence and operation of
any and all existing utilities, sanitary sewers, water mains, storm drains,
gas mains, poles, aerial and underground electrical and telephone wires,
electroliers, cable television, and other telecommunications, utility, or
municipal property, without the express written approval of the owner or
owners of the affected property or properties.
SECTION 22. - Indemnification
22.t General Indemnification. Franchisee shall indemnify, defend, and
hold the City, its officers, officials, boards, commissions, agents, and
employees, harmless from any action or claim for injury, damage, loss,
liability, cost or expense, including court and appeal costs and reasonable
attorneys' fees or reasonable expenses, arising from any casualty or
accident to person or property, including, without limitation, damages in
any way arising out of, or by reason of, any construction, excavation,
operation, maintenance, reconstruction, or any other act done under this
Franchise, by or for Franchisee, its agents, or its employees, or by reason
of any neglect or omission of Franchisee. Franchisee shall consult and
cooperate with the City while conducting its defense of the City under this
Franchise. Franchisee shall not be obligated to indemnify the City to the
extent of the City's negligence or willful misconduct.
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22.2 Indemnification for Radio Frequency Emissions or Radiation.
Franchisee shall also indemnify, defend and hold harmless the City, its
officers, employees, agents, volunteers and representatives from any and
all claims, costs, judgments, awards or liability to any person arising from
radio frequency emissions or radiation emitted from Franchisee's Facilities
located in the Rights-of-Way, regardless of whether Franchisee's
equipment complies with applicable federal statutes and/or FCC
regulations related thereto, These indemnification obligations shall extend
to claims that are not reduced to a suit and any claims that may be
compromised, with Franchisee's prior written consent, prior to the
culmination of any litigation or the institution of any litigation.
22.3 Indemnification for Relocation. Franchisee shall defend, indemnify,
and hold the City harmless for any damages, claims, additional costs or
reasonable expenses and attorneys' fees, including contractor construction
delay damages, assessed against or payable by the City and arising out of
or resulting from Franchisee's failure to remove, adjust, or relocate any of
its Facilities in the Rights-of-Way in accordance with any relocation
required by the City, provided that Franchisee shall not be liable under this
section in the event Franchisee's failure to remove, adjust or relocate any
of its Facilities is the result of a force majeure event or events beyond the
control of Franchisee,
22.4 Avoidance
Inspection or acceptance by the City of any work performed
by Franchisee at the time of completion of construction shall
not be grounds for avoidance by Franchisee of any of its
obligations under this Section 22.
The fact that Franchisee carries out any activities under this
Franchise through independent contractors shall not constitute
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an avoidance of or defense to Franchisee's duty of defense
and indemnification under this subsection,
22.5 Procedures and Defense, If a claim or action arises, the City or any
other indemnified party shall promptly notify Franchisee of such claim or
action and tender the defense of the claim or action to Franchisee, which
defense shall be at Franchisee's expense. The City's failure to so notify
and request indemnification shall not relieve Franchisee of any liability that
Franchisee might have, except to the extent that such failure prejudices
Franchisee's ability to defend such claim or suit. The City may participate
in the defense of a claim, but if Franchisee provides a defense at
Franchisee's expense then Franchisee shall not be liable for any attorneys'
fees, expenses, or other costs the City may incur if it chooses to
participate in the defense of a claim, unless and until separate
representation as described in Section 22.6 is required. In that event, the
provisions of Section 22.6 shall govern Franchisee's responsibility for City's
attorney's fees, expenses, or other costs. In any event, Franchisee may
not agree to any settlement of claims affecting the City without the City's
consent, such consent not to be unreasonable withheld or delayed.
22,6 Payment of fees and costs
If Franchisee refuses the tender of defense in any suit or any
claim, as required pursuant to the indemnification provisions
within this Franchise, and said refusal is subsequently
determined by a court having jurisdiction (or such other
tribunal that the parties shall agree to decide the matter), to
have been a wrongful refusal on the part of Franchisee,
Franchisee shall pay all of the City's reasonable costs for
defense of the action, including all expert witness fees, costs,
and attorney's fees, and including costs and fees incurred in
recovering under this indemnification provision.
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If separate representation to fully protect the interests of
both parties is or becomes necessary, such as a conflict of
interest between the City and the counsel selected by
Franchisee to represent the City, Franchisee shall pay, from
the date such separate representation is required forward, all
reasonable expenses incurred by the City in defending itself
with regard to any action, suit, or proceeding subject to
indemnification by Franchisee, Provided, however, that in the
event that such separate representation is or becomes
necessary, and the City desires to hire counsel or any other
outside experts or consultants and desires Franchisee to pay
those expenses, then the City shall be required to obtain
Franchisee's consent to the engagement of such counsel,
experts, or consultants, such consent not to be unreasonably
withheld. The City's expenses shall include all reasonable out
of pocket costs and expenses, such as consultants' fees and
court costs, but shall not include outside attorneys' fees for
services that are unnecessarily duplicative of services
provided the City by Franchisee, except in the event of a
conflict of interest where such duplication may be required.
Each party agrees to cooperate and to cause its employees
and agents to cooperate with the other party in the defense
of any claim or action,
22.7 RCW 4.24.115. Should a court of competent jurisdiction
determine that this Franchise is subject to RCW 4.24.115, then, in the
event of liability for damages arising out of bodily injury to persons or
damages to property caused by or resulting from the concurrent
negligence of the Franchisee and the City, its officers, officials, employees,
and volunteers, the Franchisee's liability hereunder shall be only to the
extent of the Franchisee's negligence. It is further specifically and
expressly understood that the indemnification provided herein constitutes
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the Franchisee's waiver of immunity under Industrial Insurance, Title 51
RCW, solely for the purposes of this indemnification, This waiver has been
mutually negotiated by the parties. The provisions of this section shall
survive the expiration or termination of this Franchise.
22.8 Assumption of Risk. Notwithstanding any other provisions of this
Section 22, Franchisee assumes the risk of damage to its Facilities located
in the Rights-of-Way and upon City-owned property from activities
conducted by the City, its officers, agents, employees, volunteers, elected
and appointed officials, and contractors, except to the extent any such
damage or destruction is caused by or arises from the sole negligence or
the willful or criminal actions of the City, its officers, agents, employees,
volunteers, or elected or appointed officials, or contractors. Franchisee
releases and waives any and all such claims against the City, its officers,
agents, employees, volunteers, or elected or appointed officials, or
contractors, Franchisee further agrees to indemnify, hold harmless and
defend the City against any claims for damages, including, but not limited
to, business interruption damages, lost profits and consequential
damages, brought by or under users of Franchisee's Facilities as the result
of any interruption of service due to damage or destruction of Franchisee's
Facilities caused by or arising out of activities conducted by the City, its
officers, agents, employees or contractors, except to the extent any such
damage or destruction is caused by or arises from the gross negligence or
any willful misconduct on the part of the City, its officers, agents,
employees, volunteers, or elected or appointed officials, or contractors.
22.9 Survival. The provisions of this Section 22 shall survive the
expiration, revocation, or termination of this Franchise.
SECTION 23. - Insurance,
23.L Insurance Limits. Franchisee shall maintain in full force and effect
at its own cost and expense each of the following policies of insurance:
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Commercial General Liability insurance with limits of Five
Million Dollars ($5,000,000.00) per occurrence and Five
Million Dollars ($5,000,000.00) general aggregate. Coverage
shall be at least as broad as that provided by the ISO Form
CG 00 01 or its equivalent and include severability of
interests, Such insurance shall include the City, its officers,
officials and employees as additional insureds per ISO CG
2026 or its equivalent. There shall be a waiver of
subrogation and rights of recovery against the City, its
officers, officials and employees, Coverage shall apply as to
claims between insureds on the policy, if applicable.
Coverage may take the form of a primary layer and a
secondary or umbrella excess layer, but the combination of
layers must equal Five Million Dollars ($5,000,000.00) at a
minimum;
Commercial Automobile Liability insurance with combined
single limits of Five Million Dollars ($5,000,000.00) each
occurrence with respect to each of Franchisee's owned, hired
and non-owned vehicles assigned to or used in the operation
of the Facilities in the City. The policy shall contain a
severability of interests provision;
Workers' Compensation coverage or qualified self insurance
as required by the Industrial Insurance laws of the State of
Washington and employer's liability with limits of One Million
Dollars ($1,000,000.00) each accident/disease/policy limit.
23.2 Deductibles/Certificate of Insurance. Any deductible of the policies
shall not in any way limit Franchisee's liability to the City.
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23.3 Endorsements. All required liability policies shall contain, or shall
be endorsed so that:
The City, its officers, officials, boards, commissions,
employees, and agents are to be covered as, and have the
rights of, additional insureds with respect to liability arising
out of activities performed by, or on behalf of, Franchisee
under this Franchise or Applicable Law, or in the construction,
operation or repair, or ownership of the Cable System;
Franchisee's required insurance coverage shall be primary
insurance with respect to the City, its officers, officials,
boards, commissions, employees, and agents, Any insurance
or self-insurance maintained by the City, its officers, officials,
boards, commissions, employees, and agents shall be in
excess of the Franchisee's required insurance and shall not
contribute to it; and
Franchisee's required insurance shall apply separately to each
insured against whom a claim is made or lawsuit is brought,
except with respect to the limits of the insurer's liability,
Notwithstanding the forgoing, Licensee ffidy, in its sole
discretion, self-insure any of the required insurance under the
same terms as required by this Agreement. In the event
Licensee elects to self-insure its obligation under this
Agreement to include Licensor as an additional insured, the
following conditions apply: (i) Licensor shall promptly and no
later than sixty (60) calendar days after notice thereof
provide Licensee with written notice of any claim, demand,
lawsuit, or the like for which it seeks coverage pursuant to
this Section and provide Licensee with copies of any
demands, notices, summonses, or legal papers received in
connection with such claim, demand, lawsuit, or the like; (ii)
Licensor shall not settle any such claim, demand, lawsuit, or
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the like without the prior written consent of Licensee; and (iii)
Licensor shall fully cooperate with Licensee in the defense of
the claim, demand, lawsuit, or the like.
23.4 Acceptability of Insurers. The insurance obtained by Franchisee
shall be placed with insurers with a Best's rating of no less than "A minus
VII. ''
23.5 Verification of Coverage, The Franchisee shall furnish the City with
(a) certificates of insurance and (b) the additional insured endorsements
or a copy of the page of the policy reflecting blanket additional insured
status. The certificates and endorsements for each insurance policy are to
be signed by a person authorized by that insurer to bind coverage on its
behalf. The certificates and endorsements for each insurance policy are to
be on standard forms or such forms as are consistent with standard
industry practices.
23.6 Maintenance of Insurance. Franchisee's maintenance of insurance
as required by this Section 23 shall not be construed to limit the liability of
Franchisee to the coverage provided by such insurance, or otherwise limit
the City's recourse to any remedy available at law or equity. Further,
Franchisee's maintenance of insurance policies required by this Franchise
shall not be construed to excuse unfaithful performance by Franchisee.
SECTION 24, - Abandonment of Franchisee's Telecommunications
Network.
24.t Where any Facilities or portions of Facilities are no longer needed
and their use is to be discontinued, the Franchisee shall immediately
report such Facilities in writing ("Deactivated Facilities") to the Public
Works Director. This notification is in addition to the inventory revisions
addressed in Section 7.2, Deactivated Facilities, or portions thereof, shall
be completely removed within ninety (90) days and the site, pole or
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infrastructure restored to its pre-existing condition, reasonable wear and
tear and damage by casualty excepted.
24.2 If Franchisee leases a structure from a landlord and such landlord
later abandons the structure, for example by building a replacement
structure, Franchisee shall remove or relocate its Facilities as soon as
possible but no later than ninety (90) calendar days of such written
notification from the landlord, at no cost to the City.
24.3 Upon the expiration, termination, or revocation of the rights granted
under this Franchise, Franchisee shall remove all of its Facilities from the
Rights-of-Way within ninety (90) calendar days of receiving written notice
from the Director. The Facilities, in whole or in part, may not be
abandoned by Franchisee without written approval by the City. Any plan
for abandonment or removal of Franchisee's Facilities must be first
approved by the Public Works Director or his/her designee and all
necessary permits must be obtained prior to such work. Franchisee shall
restore the Rights-of-Way to at least the same condition the Rights-of-
Way were in immediately prior to any such installation, construction,
relocation, maintenance or repair (reasonable wear and tear and damage
by casualty excepted), provided Franchisee shall not be responsible for
any changes to the Rights-of-Way not caused by Franchisee or any person
doing work for Franchisee. Franchisee shall be solely responsible for all
costs associated with removing its Facilities.
24.4 Notwithstanding Section 24.3, the City may permit Franchisee's
Facilities to be abandoned in place in such a manner as the City may
prescribe, Upon permanent abandonment, and Franchisee's agreement to
transfer ownership of the Facilities to the City, Franchisee shall submit to
the City a proposal and instruments for transferring ownership to the City.
24.5 Any Facilities which are not removed within one hundred and eighty
(180) calendar days of either the date of termination or revocation of this
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Franchise or the date the City issued a permit authorizing removal,
whichever is later, shall automatically become the property of the City.
Any costs incurred by the City in safeguarding such Facilities or removing
the Facilities shall be reimbursed by Franchisee, Nothing contained within
this Section 24,5 shall prevent the City from compelling Franchisee to
remove any such Facilities through judicial action when the City has not
permitted Franchisee to abandon these Facilities in place.
24.6 The provisions of this Section 24 shall survive the expiration,
revocation, or termination of this Franchise and for so long as Franchisee
has Facilities in Rights-of-Way.
SECTION 25. - Bonds,
25.L Construction Guarantee. As a condition of performing work in the
Right-of-Way, the timely, complete, and faithful performance of all
construction work in the Right-of-Way shall be guaranteed in an amount
equal to one hundred twenty-five percent (L25o/o) of the cost estimate
(prepared by a licensed contractor, professional engineer, or architect) of
the construction work, The guarantee may be by performance bond or
irrevocable letter of credit, If Franchisee, in the sole judgment of the City,
has a history of corrections or defaults, Franchisee must provide the full
guarantee by assignment of funds. These funds shall guarantee the
following: (1) timely completion of construction; (2) construction in
compliance with all applicable plans, permits, technical codes, and
standards; (3) proper location of the Facilities as specified by the City; (a)
restoration of the Rights-of-Way and other City properties affected by the
construction; (5) submission of as-built drawings after completion of
construction; and (6) timely payment and satisfaction of all claims,
demands, or liens for labor, materials, or services provided in connection
with the work that could be asserted against the City or City property.
The guarantee must remain in full force until the completion of
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construction, including final inspection, corrections, and final approval of
the work, recording of all easements, provision of as-built drawings, and
the posting of a maintenance bond as described in Section 25.2.
Compliance with the performance guarantee requirement of the City's
current Design and Construction Standards shall satisfy the provisions of
this Section 25.1.
25.2 Maintenance Bond. Maintenance and the successful operation of
the Right-of-Way improvements shall be bonded for a period of at least
two (2) years (or other period as required by Kent City Code) from the
date of final construction approval, The bond shall be in an amount to be
determined by the City. The minimum maintenance guarantee shall be
Five Thousand Dollars ($5,000.00) or twenty percent (20o/o) of the original
performance construction guarantee as described in Section 25.L,
whichever is greater, At six (6)-month intervals during this maintenance
period, the City will inspect the improvements and identify to Franchisee
any noted deficiencies. Franchisee will have thirty (30) days to correct
any deficiencies. The satisfactory correction of the work may commence a
new two (2)-year maintenance period for the improvements as corrected,
as determined by the City. The City will initiate collection against the
financial guarantee if deficiencies are not satisfactorily addressed by the
end of the thirty (30)-day response period. Compliance with the
maintenance guarantee requirement of the City's current Design and
Construction Standards shall satisfy the provisions of this Section 25.2.
Original financial guarantee amounts described in Section 25.1 and
Section 25.2 above may be reduced one time only prior to the
maintenance period, at the discretion of the City. If an extension to any
associated permits are granted, the financial guarantees may be increased
based on an updated engineer's cost estimate or as determined by the
City. Financial guarantees will be fully released only after all final punch
list items are accomplished, final construction approval, and the elapse of
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the two (2)-year maintenance guarantee period with all corrective actions
complete and accepted by the City.
25.3 Franchise Bond. Franchisee shall provide the City with a bond in
the amount of Twenty-Five Thousand Dollars ($25,000.00) ("Franchise
Bond") running or renewable for the term of this Franchise, in a form and
substance reasonably acceptable to the City. If Franchisee fails to
substantially comply with any one or more of the provisions of this
Franchise, following written notice and a reasonable opportunity to cure,
then there shall be recovered jointly and severally from Franchisee and
the bond any actual damages suffered by the City as a result thereof,
including but not limited to staff time, material and equipment costs,
compensation or indemnification of third parties, and the cost of removal
or abandonment of Facilities, Franchisee specifically agrees that its failure
to comply with the terms of this Section 25 shall constitute a material
breach of this Franchise, subject to the notice and cure provisions of
Section 28. Franchisee further agrees to replenish the Franchise Bond
within fourteen (14) calendar days after written notice from the City that
there is a deficiency in the amount of the Franchise Bond. The amount of
the Franchise Bond shall not be construed to limit Franchisee's liability or
to limit the City's recourse to any remedy to which the City is otherwise
entitled at law or in equity,
25.4 Form of Bonds. All bonds provided to the City under this Section 25
shall be on a form provided by the City and with sureties registered with
the Washington State Insurance Commissioner or other financial
institutions acceptable to the City.
SECTION 26. - Modification
The City and Franchisee hereby reserve the right to alter, amend, or
modify the terms and conditions of this Franchise upon written agreement
of both parties to such alteration, amendment or modification.
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SECTION 27 Revocation.
If Franchisee willfully violates or fails to comply with any material
provisions of this Franchise, then at the election of the City Council after at
least thirty (30) calendar days written notice to Franchisee specifying the
alleged violation or failure, or such extended periods as may be required
beyond the thirty (30) day cure period to cure any violation if the nature
of the cure is such that it reasonably requires more than thirty (30) days
to cure, the City may revoke all rights conferred and this Franchise may
be revoked by the City Council after a hearing held upon such notice to
Franchisee. Such hearing shall be open to the public and Franchisee and
other interested parties may offer written and/or oral evidence explaining
or mitigating such alleged noncompliance, Within thirty (30) calendar
days after the hearing, the City Council, on the basis of the record, will
make the determination as to whether there is cause for revocation,
whether the Franchise will be terminated, or whether lesser sanctions
should otherwise be imposed, The City Council may in its sole discretion
fix an additional time period to cure violations, If the deficiency has not
been cured at the expiration of any additional time period or if the City
Council does not grant any additional period, the City Council may by
resolution declare the Franchise to be revoked and forfeited or impose
lesser sanctions. If Franchisee appeals revocation and termination, such
revocation may be held in abeyance pending judicial review by a court of
competent jurisdiction, provided Franchisee is otherwise in compliance
with the Franchise.
SECTION 28 Remedies to Enforce Compliance
28.L The City may elect, without any prejudice to any of its other legal
rights and remedies, to obtain an order from the superior court having
jurisdiction compelling Franchisee to comply with the provisions of the
Franchise and to recover damages and costs incurred by the City by
reason of Franchisee's failure to comply. In addition to any other remedy
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provided herein, the City reserves the right to pursue any remedy to
compel or force Franchisee and/or its successors and assigns to comply
with the terms hereof, and the pursuit of any right or remedy by the City
shall not prevent the City from thereafter declaring a forfeiture or
revocation for breach of the conditions herein. Provided, further, that by
entering into this Franchise, it is not the intention of the City or Franchisee
to waive any other rights, remedies, or obligations as otherwise provided
by law equity, or otherwise, and nothing contained here shall be deemed
or construed to effect any such waiver.
28.2 If Franchisee shall violate, or fail to comply with any of the
provisions of this Franchise, or should it fail to heed or comply with any
notice given to Franchisee under the provisions of this Franchise, the City
shall provide Franchisee with written notice specifying with reasonable
particularity the nature of any such breach and Franchisee shall undertake
all commercially reasonable efforts to cure such breach within thirty (30)
calendar days of receipt of notification. If the parties reasonably
determine the breach cannot be cured within (30) thirty days, the City
may specify a longer cure period, and condition the extension of time on
Franchisee's submittal of a plan to cure the breach within the specified
period, commencement of work within the original thirty (30) day cure
period, and diligent prosecution of the work to completion. If the breach
is not cured within the specified time, or Franchisee does not comply with
the specified conditions, the City ffidy, at its sole discretion, (1) revoke
this Franchise with no further notification, or (2) claim damages of Two
Hundred Fifty Dollars ($250.00) per day against the Franchise Bond set
forth in Section 25.3, or (3) pursue other remedies as described in this
Section 28. Liquidated damages described in this Section 28.2 shall not
be offset against any sums due to the City as a tax or reimbursement
pursuant to Section 15.6.
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SECTION 29. - Non-Waiver.
The failure of the City to insist upon strict performance of any of the
covenants and agreements of this Franchise or to exercise any option
herein conferred in any one or more instances, shall not be construed to
be a waiver or relinquishment of any such covenants, agreements or
option or any other covenants, agreements or option.
SECTION 30. - Police Powers and City Ordinances,
Nothing herein shall be deemed to restrict the City's ability to adopt and
enforce all necessary and appropriate ordinances regulating the
performance of the conditions of this Franchise, including any valid
ordinance made in the exercise of its police powers in the interest of public
safety and for the welfare of the public. The City shall have the authority
at all times to reasonably control by appropriate regulations the location,
elevation, manner of construction and maintenance of Facilities by
Franchisee, and Franchisee shall promptly conform with all such
regulations unless compliance would cause Franchisee to violate other
requirements of law. In the event of a conflict between the provisions of
this Franchise and any other generally applicable ordinance(s) enacted
under the City's police power authority, such other ordinances(s) shall
take precedence over the provisions set forth herein,
SECTION 31. - Cost of Publication
The cost of publication of this Franchise shall be borne by Franchisee
SECTION 32. - Acceptance.
Franchisee shall execute and return to the City its execution and
acceptance of this Franchise in the form attached hereto as Exhibit B. In
addition, Franchisee shall submit proof of insurance obtained and
additional insured endorsement pursuant to Section 23, any Construction
Guarantee, if applicable, pursuant to Section 25.1 and the Franchise Bond
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required pursuant to Section 25.3. The administrative fee pursuant to
Section 15.1 is due within thirty (30) days of receipt of the invoice from
the City.
SECTION 33 Survival
All of the provisions, conditions, and requirements of Section 5, Section 6,
Section 8, Section 13, Section 22, and Section 24 of this Franchise shall be
in addition to any and all other obligations and liabilities Franchisee may
have to the City at common law, by statute, or by contract, and shall
survive the City's Franchise to Franchisee for the use of the Franchise
Area, and any renewals or extensions thereof. All of the provisions,
conditions, regulations and requirements contained in this Franchise shall
further be binding upon the heirs, successors, executors, administrators,
legal representatives and assigns of Franchisee and all privileges, as well
as all obligations and liabilities of Franchisee shall inure to its heirs,
successors and assigns equally as if they were specifically mentioned
where Franchisee is named herein.
SECTION 34. - Assignment.
34.L This Franchise may not be directly or indirectly assigned,
transferred, or disposed of by sale, lease, merger, consolidation or other
act of Franchise€, by operation of law or otherwise, unless approved in
writing by the City, which approval shall not be unreasonably withheld,
conditioned or delayed. The above notwithstanding, Franchisee may
freely assign this Franchise in whole or in part to a parent, subsidiary, or
affiliated entity or for collateral security purposes. Franchisee shall
provide prompt, written notice to the City of any such assignment. In the
case of transfer or assignment as security by mortgage or other security
instrument in whole or in part to secure indebtedness, such consent shall
not be required unless and until the secured party elects to realize upon
the collateral. For purposes of this Section 34, no assignment or transfer
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of this Franchise shall be deemed to occur based on the public trading of
Franchisee's stock; provided, however, any tender offer, merger, or
similar transaction resulting in a change of control shall be subject to the
provisions of this Franchise.
Any transactions which singularly or collectively result in a change of fifty
percent (50%) or more of the ownership or working control (for example,
management of Franchisee or its Telecommunications facilities) of the
Franchisee or of the ownership or working control of the Franchisee's
Telecommunications facilities within the City, or of the ownership or working
control having ownership or working control of the Franchisee or of the
Franchisee's Telecommunications facilities within the City, or of control of
the capacity or bandwidth of the Franchisee's Telecommunication facilities
within the City, shall be considered an assignment or transfer requiring
notice to the City pursuant to this Franchise, Such transactions between
affiliated entities are not exempt from notice requirements. A Franchisee
shall notify the City of any proposed change in, or transfer of, or acquisition
by any other party of control of a Franchisee within sixty (60) days following
the closing of the transaction.
34.2 Franchisee's obligation to remain fully responsible for compliance
with the terms under this Section 34 shall survive the expiration of this
Franchise but only if and to the extent and for so long as Franchisee is still
the owner or has exclusive control over the Facilities used by a third party.
SECTION 35. - Extension
If this Franchise expires without renewal, the City ffi?y, subject to
applicable law either allow Franchisee to maintain and operate its Facilities
on a month-to-month basis, provided that Franchisee maintains insurance
for such Facilities during such period and continues to comply with this
Franchise; or order the removal of any and all Facilities at Franchisee's
sole cost and expense consistent with Section 24.3.
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SECTION 35 Entire Agreement
This Franchise constitutes the entire understanding and agreement
between the parties as to the subject matter herein and no other
agreements or understandings, written or otherwise, shall be binding upon
the parties upon execution of this Franchise,
SECTION 37. - Eminent Domain,
The existence of this Franchise shall not preclude the City from acquiring
by condemnation in accordance with applicable law, all or a portion of the
Franchisee's Facilities for the fair market value thereof. In determining
the value of such Facilities, no value shall be attributed to the right to
occupy the area conferred by this Franchise.
SECTION 38.Vacation
If at any time the City, by ordinance, vacates all or any portion of the area
affected by this Franchise, the City shall not be liable for any damages or
loss to the Franchisee by reason of such vacation. The City shall notify the
Franchisee in writing not less than sixty (60) calendar days before
vacating all or any portion of any such area. The City may, after sixty
(60) calendar days' written notice to the Franchisee, terminate this
Franchise with respect to such vacated area.
SECTION 39. - Notice
Any Notice or information required or permitted to be given to the parties
under this Franchise agreement may be sent to the following addresses
unless otherwise specified :
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If to Licensee (including
invoices):
New Cingular Wireless PCS, LLC
Attn: Tower Asset Group - Lease
Administration
Re: Wireless Installation on Public
Structures
(City of Kent) (WA)
FA No.:
575 Morosgo Drive NE
Atlanta, GA 30324
CITY OF KENT
Attn: City Clerk
220 Fourth Avenue South
Kent, WA 98032
If to Licensor:
With a copy to the AT&T Legal
Department:
New Cingular Wireless PCS, LLC
Attn: AT&T Legal Dept. - Network
Operations
Re: Wireless Installation on Public
Structures
(City of Kent) (WA)
FA No:
208 S. Akard Street
Dallas, TX 75202-4206
SECTION 40. - Severability.
If any section, sentence, clause or phrase of this Franchise should be held
to be invalid or unconstitutional by a court of competent jurisdiction, such
invalidity or unconstitutionality shall not affect the validity or
constitutionality of any other section, sentence, clause or phrase of this
Franchise unless such invalidity or unconstitutionality materially alters the
rights, privileges, duties, or obligations hereunder, in which event either
party may request renegotiation of those remaining terms of this
Franchise materially affected by such court's ruling.
SECTION 41. - Compliance with All Applicable Laws.
Franchisee agrees to comply with all present and future federal, state and
local laws, ordinances, rules and regulations, except to the extent that the
Sm a I I Ce I I F ra nc O,o:fU;53
Franchisee has a vested right in accordance with the vested rights doctrine
under Washington case law or as codified at RCW L9.27.O95, This
Franchise is subject to ordinances of general applicability enacted pursuant
to the City's police powers, Franchisee shall, at its own expense, maintain
its Facilities in a safe condition, in good repair and in a manner suitable to
the City, Additionally, Franchisee shall keep its Facilities free of debris and
anything of a dangerous, noxious or offensive nature or which would
create a hazard or undue vibration, heat, noise or any interference with
City services. City reserves the right at any time to amend this Franchise
to conform to any hereafter enacted, amended, or adopted federal or state
statute or regulation relating to the public health, safety, and welfare, or
relating to roadway regulation, or a City ordinance enacted pursuant to
such federal or state statute or regulation upon providing Franchisee with
thirty (30) calendar days written notice of its action setting forth the full
text of the amendment and identifying the statute, regulation, or
ordinance requiring the amendment. Said amendment shall become
automatically effective upon expiration of the notice period unless, before
expiration of that period, Franchisee makes a written request for
negotiations over the terms of the amendment. If the parties do not reach
agreement as to the terms of the amendment within thirty (30) days of
the call for negotiations, City may enact the proposed amendment, by
incorporating Franchisee's concerns to the maximum extent City deems
possible.
SECTION 42. - Attorneys' Fees.
If a suit or other action is instituted in connection with any controversy
arising out of this Franchise, the prevailing party shall be entitled to
recover all of its costs and expenses, including such sum as the court may
judge as reasonable for attorneys' fees, costs, expenses and attorneys'
fees upon appeal of any judgment or ruling.
Small Cell Franchise -
AT&T
54
SECTION 43 Hazardous Substances
Franchisee shall not introduce or use any hazardous substances (chemical
or waste), in violation of any applicable law or regulation, nor shall
Franchisee allow any of its agents, contractors or any person under its
control to do the same. Franchisee will be solely responsible for and will
defend, indemnify and hold the City, its officers, officials, employees,
agents and volunteers harmless from and against any and all claims, costs
and liabilities including reasonable attorneys'fees and costs, arising out of
or in connection with the cleanup or restoration of the property associated
with Franchisee's use, storage, or disposal of hazardous substances,
whether or not intentional, and the use, storage or disposal of such
substances by Franchisee's agents, contractors or other persons acting
under Franchisee's control, whether or not intentional,
SECTION 44. - Licenses. Fees and Taxes
Prior to constructing any improvements, Franchisee shall obtain a business
or utility license from the City. Franchisee shall pay promptly and before
they become delinquent, all taxes on personal property and improvements
owned or placed by Franchisee and shall pay all license fees and public
utility charges relating to the conduct of its business, shall pay for all
permits, licenses and zoning approvals, shall pay any other applicable tax
unless documentation of exemption is provided to the City and shall pay
utility taxes and license fees imposed by the City.
SECTION 45 Miscellaneous.
45.t City and Franchisee respectively represent that its signatory is duly
authorized and has full right, power and authority to execute this
Franchise.
45.2 This Franchise shall be construed in accordance with the laws of the
State of Washington. Venue for any dispute related to this Franchise shall
Small Cell Franchise -
AT&T
55
be the United States District Court for the Western District of Washington,
or King County Superior Court, without waiver of any right to removal.
45.3 Section captions and headings are intended solely to facilitate the
reading thereof. Such captions and headings shall not affect the meaning
or interpretation of the text herein.
45.4 Where the context so requires, the singular shall include the plural
and the plural includes the singular.
45.5 Franchisee shall be responsible for obtaining all other necessary
approvals, authorizations and agreements from any party or entity and it
is acknowledged and agreed that the City is making no representation,
warranty or covenant whether any of the foregoing approvals,
authorizations or agreements are required or have been obtained by
Franchisee by any person or entity.
45.6 This Franchise may be enforced at both law and equity.
SECTION 46. - Severability. If any one or more section,
subsection, or sentence of this ordinance is held to be unconstitutional or
invalid, such decision shall not affect the validity of the remaining portion
of this ordinance and the same shall remain in full force and effect.
SECTION 47. - 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; ordinance, section, or subsection numbering;
or references to other local, state, or federal laws, codes, rules, or
regulations,
SECTION 48. - Effective Date. This ordinance shall take effect and
be in force thirty days from and after its passage, as provided by law.
Small Celt rrancn';;O;56
Februarv 5. 2019
DANA RALPH, M
ATTEST:
a
KIMBERLEY A,OTO, CITY
APPROVED AS TO
Date Approved
Februarv 5. 2019
Date Adopted
Februarv 8. 2019
Date Published
PAT'FITZPATRICK, CIry RNEY
Small Cell Franchrse -
AT&T
57
EXHIBIT A
REPRESENTATIVE PHOTO SIMULATIONS OF SMALL CELL FACILITIES
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EXHIBIT B
STATEM ENT OF ACCEPTANCE
New Cingular Wireless PCS' LLc, a Delaware limited liability company, foritself, its successor.s and assigns, hereby accepts and agrees to be uouha by alllawful terms, conditions and provisions of the Franchise attached hereto andincorporated herein by this reference.
By Date 9-zC^ tl
Name:
Title:
STATE OF (y
COUNW OF A- )ss
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)
on this..2L- day of 201q, before me the undersigned, a NotaryPublic in and for s duly commissioned and sworn,personally appeared,of New Cingular Wireless PCS, LLC, thecompany that executed the within and foreg oing instrument, and acknowledged thesaid instrument to be the free and vot untary act and deed of said compan y, for theuses and purposes therein mentioned , and on oath stated that he/she is a uthorizedto execute said instrument.
IN WITNESS WHE REOF, I have hereunto set my hand and affixed m y official seal on
h n set forth.
ature
Lot\ L
NOr{$Y;us11LJl{*C in and for the State of
MY COMMISSION EXPIRES:L tl.s-{)
residing at
{8R21744692.0OO(;21@08s.0soo1 t/ }
STATE OF WASHINGTON' COUNTY OF KING lAFFIDAVIT OF PUBLICATION
PUBLIC NOTICE
Polly Shepherd, being first duly swom on oath that she is the
Publisher of the
Kent Reporter
a weekly newspaper, which newspaper is a legal newspaper of general
circulation and is now and has been for more than six months prior to the date
of publication hereinafter referred to, published in the Englishluttguuge
continuously as a weekly newspaper in King county, washington. The
Kent Reporter has been approved as aLegalNewspaper by order of
the Superior Court of the State of Washington for King County.
The notice in the exact form annexed was published in regular issues of
the Kent Reporter (and not in supplement form) which was regularly
distributed to its subscribers during the below stated period. The annexed
notice, a:
Public Notice
was published on February 8rZ0lg.
The full amount of the fee charged for said foregoing publication is the
sum of $1"57
Polly
Publisher,Reporter
Subscribed to me this 8th day of Februaryr20lg.
Gale Gwin, N Public for the State of Washington, Residing in
Covington,Washington
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CITY OF KENT
NOTICE OF ORDINANCES
PASSED BY THE CITY COUNCIL
fh" following are summaries of the ordinances passed by the Kent CityCouncil on February 5, 20t9.
ORDINANCE NO' 43OO - AN ORDINANCE of the City Council of the Cityof Kent, Washington, granting to new Cingular Wirelejs pCS, LLC and itlaffiliates, successors and assigns, the right, privilege, authority and non-exclusive franchise for five years, to construct, maintain, operate, replace andrepair a small cell telecommunications network, in across, over, along, under,through and below certain designated pubic rights-of-way of the City-of fent,Washington.
This ordinance shall take effect and be in force 30 days from and after itspassage, as provided by law.
ORDINANCE NO. 4307 - AN ORDINANCE of the City Council of the City ofKent, Washington, approving the consolidating budget adjustments madebetween December 1, 2018 and December 30, 20L8, reflecting an overallbudget increase of 9820,500.
This ordinance shall take effect and be in force 5 days after publication, asprovided by law.
ORDINANCE NO. 4308 - AN ORDINANCE of the City Council of the City ofKent, Washington, repealing Ordinance No. 4302 and right-of-way dedicationsmade therein, and through this ordinance dedicating as right-of-way a portionof City-owned property located at Morrill Meadows paik and abutting SE248th Street, authorizing the Mayor to sign all documents necessary tofinalize and define the dedications authorized by this ordinance, and direitingthe City Clerk to record a certified copy of this amending ordinance upon itipassage.
This ordinance shall take effect and be in force 30 days from and after itspassage, as provided by law.
A copy of the complete text of any ordinance or resolution will be mailedupon request of the City Clerk.
Kimberley A. Komoto, City Clerk
12 Friday, February 8,1019' x6ht neponer .t
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STATE OF WASHINGTON, COUNTY OF KING }
AFFIDAVIT OF PUBLICATION
PUBLIC NOTICE
Polly Shepherd, being first duly sworn on oath that she is the
Publisher of the
Kent Reporter
a weekly newspaper, which newspaper is a legal newspaper of general
circulation and is now and has been for more than six months prior to the date
of publication hereinafter referred to, published in the English language
continuously as a weekly newspaper in King County, Washington. The
Kent Reporter has been approved as a Legal Newspaper by order of
the Superior Court of the State of Washington for King County.
The notice in the exact form annexed was published in regular issues of
the Kent Reporter (and not in supplement form) which was regularly
distributed to its subscribers during the below stated period. The annexed
notice, a:
Public Notice
was published on December 7, 2018
The full amount of the fee charged for said foregoing publication is the
sum of $73.96 .
Polly hephe'-
Publisher, Kent Reporter
Subscribed and sworn to me this 7' day of December, 2018.
Je ifer Tri , Notary Public for the State of Washington, Residing in
rting, Washington
Kent City Council
NOTICE OF PUBLIC HEARING
Ordinance Granting a Small Cell Franchise
NOTICE IS HEREBY GIVEN that the Kent City Council's Public Works Committee will
hold a public hearing on an ordinance granting a small cell franchise with New
Cingular Wireless (AT&T) at 4 p.m. on Monday, December 10, 2018, in the Council
Chambers at Kent City Hall, 220 4th Avenue South, Kent. All interested persons are
invited to attend and will be given an opportunity to speak.
Any person requiring a disability accommodation should contact the City Clerk's
Office in advance at 253-856-5725. For TDD relay service, call the Washington
Telecommunications Relay Service at 7-1-1.
Kimberley A. Komoto
City Clerk
12 Friday, December 7, 2018 Kent Reporter
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AMERIrAN
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,..: Legal Notices Legal Notices Legal Notices Legal Notices Legal Notices
tion of Benson Road and family residential lots, a Kent, Washington 98030 Washington camber 7, 2018
_ S. 216th, as provided by private recreation tract, a PROJECT SCOPE 2607 Wetmore Avenue AP PLI CATION
Ordinance No. 3896. landscape tract, a storm The Kent School District Everett, Washington NAME/NUMBER:
Notice is hereby given drainage tract, a wetland wishes to contract all 98201-2926 Cuttings Reasonable
that the sixth (6th) in- tract, and two private so- services required to con- (425) 258-1303 Use Exception
stallment of the assess- cess/utility tracts. The struct a warehouse on www.bxwa.com R E C A- 2 018 -1 / K I -
real estate ment levied for the existing residence on the school district adminis- Contractor Plan Center VA#RECR-2184965
above named improve- property, a storage tration site utilizing a 5468 SE International
I ment, comprising Local shed, and a sport court pre-engineered metal Way Milwaukie, Oregon PROJECT DESCRIP-
Improvement District No. will all be removed. Pri- building manufactured 97222 TION:The applicant re-
Apa.tments for Rent 363 under Ordinance mary access to the de- off -site and assembled (503) 650-0148 quests a Reasonable
King County Announcements No. 4051, is now due velopment is proposed onsita. Building shall be www.contto orplan Use Exception to con -
and payable and unless from a new public street approx. 10,500 sf and in- center.com struct a 780 square toot
KEW Alcoholics Anonymous payment is made on or connecting to SE 244th cludes a mezzanine and Seattle Daily Journal of single family home with
Scenic Vista for information & before December 16, Street. A public pedes- 4 truck loading bays. Commerce carport within a wetland
Senior Apartments meeting times call 2018, said installment trian access easement Site work includes pav- 83 Columbia Street buffer. The subject par-
26404 104th Ave SE 206-587-2838. will be delinquent, will located at the south end ing, construction of a de- #200, PO Box 11050, oel is vacant, but entirely
Kent, WA 98030 Please visit online have a penalty of ten of the property will oon- tention vault, improve- 98111 encumbered with a wet -
Apartments Now www.seattleaa.org point two five (10.25) nect the plat to Daniel ments to SE 256th St. Seattle, Washington land and its buffer. The
Available HOME SECURITY. percent added, and the Elementary Schooland other misc. site im- 98104 proposed development
Beautiful n & 2 BRs, Leading smart home collection of such delin- There is a category 4 provements. Work to the (206) 622-8272 footprint will impact ap-
startig at: provider Vivint Smart quent installment will be wetland located at the building includes HVAC www.plancenter.djc.com proximately 3,871
1 BR- $946/mo. Home has an offer just enforced in the manner northeast corner of the and electrical systems. # 836064 square feet of wetland
2 BRs- $1130/mo. for you. Call 866-387- prescribed by law. property. The building is dry (no 11/30/18, 12/7/18 buffer. The applicant
1) Section 8 accepted. Dated this 16th day of The site is located at bathrooms or sinks). The proposes
Income Limits Apply. 2013 to get a profession- ) Kent CI Council P Poses approximately
al installed home se- AaronNoveB Miller . 11315 nt 244th Street remaining campus will ri 16544 square feet of
Cell Susan ly. Aaron BeMiller and identified as Kin NOTICE RI PUBLIC
curity system with $0 so- 9 be open for normal HEARING wetland buffer enhance-
253-520 987E Finance Director County Assessor parcel school district adminis- ment, to include removal
tivafion. Ordinance Granting a
TDD: 711 City of Kent, Washington number 2022059130. tration use, schedules, of invasive plants and
This Institution is anE Equal PROMOTE YOUR RE- Published in the Kent The project site is zoned Small Cell Franchise
q P 1 and activities. The Con- NOTICE IS HEREBY replacement with native
Opportunity Provider and GIONAL EVENT state- Reporter November 30, SR-6, single family resi- tractor shall establish trees and shrubs, in or -
Employer GIVEN that the Kent City der to mitigate for the
fied listingor $1,575 for 2018. Comments are due for Council's Public Works
separation between con- buffer impacts. No work
a display ad. Call this # 830618 the above project b Committee will hold a
p y P 1 Y struction activities and is to be completed in the
V newspaper or 360-344- 4:30 m., Friday,De- public hearing on an or-
D' • ou ect
2938 forr details. CITY OF KENT cember 21, 2018, o City PROJECT DOCU- di a franchise granting
a smallparcelparcel wetland.
locatedwithinPUBLIC NOTICE of Kent Planning Servic- MENTS 200 feet of lake me -
ear DETERMINATION OF es. Cingular Wireless
Legal Notices Plans, specifications, ad- ridian, but the proposed
NONSIGNIFICANCE For more information, deride, and bidder's list Monde at 4 p.m. 0, home is outside the 200
When it comes Pursuant to KCC 11.03, contact Kent Plannin Monday, December 10,
ASSESSMENT 9 for this project is foot shoreline jurisdiction
to employment, INSTALLMENT Environmental Policy, Services at 220 Fourth available through Kent 2018, in the Council area. This property is
Sound Clesslfieds NOTICE the City of Kent has is- Avenue S., Kent, WA School District's on-line Chambers at Kent City zoned SR-6- single fami-
Hall 220 4th Avenue
has it all ... the LOCAL sued a threshold deter- 98032, Telephone: plan room. Free of a residential. The prop -
LOCAL for the follow- 253 856-5454. An g P South, Kent. All interest- �,
IMPROVEMENT ( ) Y charge access is rovid- a does not have as -
latest job DISTRICT #363 ing: person requiring a ed to Prime Bidders, ed Persons are invited to signed address the prop -
latest s, Determination of Nonsi disabilityaccommoda- attend and will be given
P 9 CITY OF on of nfficance DNS for: g tion sould contact the Subcontractors, and an opportunity to speak. any S on the south side
educational For construction of ire- (DNS) Vendors by going to: "" of SE 272nd Street
opportunities provements beginning at MONTCLAIR SUBDIVI- City for more informs- and clicking on: "Posted Any person requiring a across from Lake Me -
the intersection of East SIGN ENV-2017-35, KI- lion. For TDD role stir- disability accommoda-
and more Y Projects," "Public tion should contact the ridian Park near 148th
Valley Highway and S. VA# RPSW-2174999 vice, call Works," "Education; Street. The parcel num-
224th Street via S. The applicant proposes 1-800-833-6388 or the and "Kent School Dis- City Clerk's Office in ad- bar 6648500830.
vance at 253-856-5725
SOUNDCLASSIFIEDS.COM 218th/216th Street, ter- to subdivide a 3.72 acre City of Kent at trict." Bidders are en- . OTHER PERMITS AND
minatine at the intersec- parcel into 18 single (253) 856-5725. For TDD relay service,
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/s/ Erin George, Respon- order to receive auto- cell the Washington REQUIRED: Building
sible Official Telecommunications Re-
matic email notification permit, Civil Construc-
la
Dated: Friday, Decem- of future addenda and to y Service at 7-1-1. lion permit
bar 7, 2018 be placed on Kimberley A. Komoto
the y PUBLIC COMMENT PE -
City Clerk
# 836838
"Bidders List." This on- RIOD: December 7,
INVITATION TO line plan room provides 2018- December 21,
KENTSCHOOL
12/7/18 # 836878
Bidders with fully usable 2018
DISTRICT NO.415 on-line documents; with NOTICE OF All persons may com-
he Kent School District the ability to download, APPLICATION ment on this application.
extends an invitation to print to your own printer, A Project Permit Appli- Comments must be in
qualified General Con- order fulUpartial plan cation was filed with City writing and received in
tractors to bid the oon- sets from hundreds of of Kent Planning Servic- Kent Planning Services
struction project herein- reprographic sources es on June 12th 2018 for by 4:30 P.M., Friday De -
after identified as the (on-line print order form), a shoreline variance un- cember 21, 2018 at 220
Storage Warehouse at and a free on-line digitiz- der Kiva # 2182388. 4th Avenue South, Kent
Kent School District Ad- er/take-off tool. Contact This application was ad- WA 98032. For ques-
ministration Site. Builders Exchange of had and resubmitted as tions regarding this pro -
PROJECT SCHED- Washington at 425- a new permit on Decem- ject, please contact Kee-
ULED BID DATE 258-1303 should you re- ber 3, 2018 to be a rea- lone Noble at
Sealed construction bids quire assistance. sonable use exception. (253) 856-5428; KNo-
will be due no later than Drawings and specifies- Following is a descrip- bis@
2:00 PM, Wednesday, tions may also be exam- tion of the application kentwa.gov.
December 19, 2018, and ined at the Architecfs of- and the process for re- DATED: December 4,
opened at 2:00 PM at fice at 1402 Third Ave- view. The application 2018
the following location: nue, Suite 730, Seattle, and listed studies may FOR PUBLICATION:
KENT SCHOOL DIS- WA 98101, be reviewed at the offic- December 7, 2018
TRICT NO.415 (206) 228-1014 and at es of Kent Planning Ser- #
A D M I N I STRATI O N local data centers in the vices, 400 W. Gowe
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BUILDING "B" listed below. DATE OF NOTICE OF Continued on
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Please state which position and geographic
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Please email application to:
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careers@soundpublishing.com and be sure to
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Fora list of our most currentjob openings and to learn more about us visit our website: www.soundpublishing.com