HomeMy WebLinkAbout4332 ! 7
ORDINANCE NO. 4332
AN ORDINANCE of the City Council of the
City of Kent, Washington, granting to Seattle SMSA
Limited Partnership, dba Verizon Wireless, 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 designated public rights-of-way of
the City of Kent, Washington.
RECITALS
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A. Seattle SMSA Limited Partnership, dba Verizon Wireless, (the I'
"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; '
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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.47.040.
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C. Small cell facilities are relatively new technology deployed 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.
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D. In contrast to the familiar cell phone towers and monopoles,
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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 I
(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
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enhanced capacity to users (e.g., more data, more quickly). Because they j
are smaller, small cells are often mounted to existing structures within the
right-of-way, such as utility poles and light poles.
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E. Small cell facilities and networks will also be integral to the
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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 l
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 under grounding of utilities.
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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.
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NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
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WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
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ORDINANCE
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SECTION 1. - Definitions. In addition to terms otherwise defined
herein, the following definitions shall apply generally to the provisions of
this Franchise.
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1.1 'Director" means the Public Works Director, the Economic and
Community Development Director, or his/her designee.
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1.2 "Rights-of-Way" (singular "Right-of-Way") as used in this Franchise,
means the surface of, and the space above and below, any public street,
highway, freeway, bridge, land path, alley, court, boulevard, sidewalk,
way, lane, public way, drive, circle, 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 j
railroad right-of-way, airports, harbor areas, buildings, parks, poles,
conduits, open spaces, nature trails, dedicated but un-opened right-of- 1
way, undedicated streets and/or right-of-way, environmentally sensitive
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areas and any land, facilities, or property owned, maintained, or leased by 1
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
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Right-of-Way and used to provide "personal wireless service" as defined in
Title 47, United States Code, Section 332(c)(7)(C), including all future j
amendments and is substantially similar in aesthetics and proportion to
those pictured in Exhibit A.
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1.4 "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
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.
2.1 Pursuant to RCW 35A.47.040, 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 48.
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-
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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 j
of Right-of-Way as the City deems fit, including the dedication, E
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.
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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
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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 j
providing telecommunications services. Franchisee hereby warrants that it
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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 j
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
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services, whether provided by a third party provider, Franchisee, or a
corporate affiliate of Franchisee. Any entity that provides such wireline j
broadband transmission services must have an independent franchise to j
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 defined in 47 U.S.C. § 522(6) by wireline transmission.
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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
the owner's consent, or upon or in any City, public or privately owned
poles or conduits.
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3.4 Nothing within this Franchise shall be construed to grant or convey
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any right, title, or interest in the Rights-of-Way of the City to Franchisee
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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. I
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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
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thereof or offer or provide capacity or bandwidth to its lessees or
customers consistent with this Franchise provided:
a. Franchisee at all times retains exclusive control over its
telecommunications system, Facilities and Services and
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remains responsible for constructing, installing, and
maintaining its Facilities pursuant to the terms and
conditions of this Franchise;
b. Franchisee may not grant rights to any customer or lessee
that are greater than any rights Franchisee has pursuant to
this Franchise;
C. Such customer or lessee shall not be construed to be a third-
party beneficiary under this Franchise; and
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d. 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
citizens of the City without all required business licenses,
franchise or other form of state wide approval.
SECTION 4. - Location of Facilities.
4.1 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:
a. any pavement trenching and restoration performed by
Franchisee within State Highways shall meet or exceed
applicable WSDOT requirements;
b. 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
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C. 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 S. - Relocation of Small Cell Facilities. j
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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.
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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
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sole cost and expense, to locate, and if determined necessary by the City,
to excavate and expose its Facilities for inspection so that the Facilities' j
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 j
be responsible for any delays due to failure to locate its Facilities when
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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:
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a. 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
b. 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
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Franchisee may relocate its Facilities in other City Rights-of-
Way in order to accommodate such improvement project;
and
C. After receipt of such notice and such plans and specifications,
Franchisee shall complete relocation of its Facilities consistent
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.
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5.7 Indemnification. Franchisee will indemnify, hold harmless, and pay
the costs of defending the City, in accordance with the provisions of
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Section 22.
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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
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.
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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 15.4.
5.10 Survival. The provisions of this Section 5 shall survive the
expiration or termination of this Franchise during such time as Franchisee i
continues to have Facilities in the Rights-of-Way.
SECTION 6. - Undergrounding of Facilities.
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6.1 No installation of Small Cell Facilities in Undergrounded Areas.
Franchisee shall not install Small Cell Facilities in areas that already have j
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.
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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.g., 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
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 site specific separate agreement pursuant to chapter
35.99 RCW.
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.
7.1 Information Request.
a. 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
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Facilities in the City. Franchisee shall warrant the accuracy of
all information provided to the City.
b. 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.
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
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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
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installation and photographs taken before and after the
installation of the Small Cell Facility and taken from the public
street. j
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b. Small Cell Facilities that are considered Deactivated Facilities,
as described in Section 24.1, shall be included in the
inventory report and Franchisee shall provide the same
information as is provided for active installations as well as
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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.
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;
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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
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confidentiality agreements Franchisee has with third parties.
7.4 Public Records Act.
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a. Franchisee acknowledges that information submitted to the
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City is subject to the Washington Public Records Act, chapter j
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42.56 RCW, and is open to public inspection, subject to any
exceptions permitted by law (i.e., unless an exemption ;
applies).
b. 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
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conspicuously
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proprietary, and shall provide a brief written explanation as
to why such information is confidential and how it may be
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treated as such under state or federal law. The City agrees
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to keep confidential any proprietary or confidential books or
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records to the extent permitted by law.
C. 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.
d. 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
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injunction or court order and such higher court action is or
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has become final and non-appealable, Franchisee shall j
reimburse the City for any fines or penalties imposed for I
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failure to disclose such records within forty-five (45) calendar
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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
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 (3%) or more, Franchisee shall pay the total cost of the audit.
SECTION S. - 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
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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.
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:
a. The joint use shall not unreasonably delay the work of the
party causing the excavation to be made;
b. The joint use shall be arranged and accomplished on terms
and conditions satisfactory to both parties; and
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C. The initiating party may deny such request for safety
reasons.
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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,
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disruption or damage, the Franchisee shall coordinate all construction
locations, activities, and schedules as reasonably directed by the City.
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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
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 15.4; (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
18 Small Cell Franchise Agreement--
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applies to the extent necessary to protect above ground Facilities. j
i
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
i
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
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.
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Franchisee shall reasonably compensate the City or the property owner for
any damage caused by trimming, damage, or removal by Franchisee.
SE
CTION 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 19.122 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
guidelines established by the One Call Locator Service regardless of
whether the City issued a permit.
SECTION 11. - Safety 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 in, 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
20 Small Cell Franchise Agreement—
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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.
11.2 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.
11.3 Additional safety standards include:
a. 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.
b. 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.
C. 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.
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11.4 On notice from the City that any work is being performed contrary
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to the provisions of this Franchise, or in an unsafe or dangerous manner
i
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.
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
22 Small Cell Franchise Agreement--
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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.
13.2 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.g., 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.
13.4 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
23 Small Cell Franchise Agreement--
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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 15.4. 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 j
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.
SECTION 14. - Emergency Work/Dangerous Conditions.
14.1 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.
14.2 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
24 Small Cell Franchise Agreement--
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any public health or safety emergency, including the knockdown of a
Utility Pole with Small Cell Facilities.
i
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14.3 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
E
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
i
shall further not be liable to Franchisee for any direct, indirect, or any
E
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.
14.4 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
25 Small Cell Franchise Agreement--
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precautions, and Franchisee shall be liable to the City for the costs
thereof.
14.5 Franchisee shall promptly reimburse the City in accordance with the
provisions of Section 15.3 and Section 15.4 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 The City may charge 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 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.
15.2 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
26 Small Cell Franchise Agreement--
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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.
15.4 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
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
27 Small Cell Franchise Agreement--
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imposition of such fees are removed. In either instance, the City also
reserves its right to require that Franchisee obtain a separate Franchise
i
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
i
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.
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. § 253, 47 U.S.C. §
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 I
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.
28 Small Cell Franchise Agreement--
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16.2 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.
SECTION 17. - Design Standards. 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. These requirements 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). These requirements
are intended to be used solely for the purpose of concealment and siting.
Nothing shall be interpreted or applied in a manner which dictates the use
of a particular technology. When strict application of these standards or
requirements would unreasonably impair the function of the technology
chosen by the applicant, alternative forms of concealment or deployment
29 Small Cell Franchise Agreement--
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may be permitted which provide similar or greater protections from
negative visual impacts to the streetscape.
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 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) ("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
(315t) 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 attached to a third-party pole
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(e.g., 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.
20.1 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.
20.2 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
1
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.
21.1 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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21.2 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.
22.1 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.
a. 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.
b. The fact that Franchisee carries out any activities under this
Franchise through independent contractors shall not constitute
34 Small Cell Franchise Agreement--
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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
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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
i
Franchisee's ability to defend such claim or suit. The City may participate j
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.
a. 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.
35 Small Cell Franchise Agreement--
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b. If separate representation to fully protect the interests of
both parties is or becomes necessary, such as a conflict of 1
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
36 Small Cell Franchise Agreement--
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expressly understood that the indemnification provided herein constitutes
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.
37 Small Cell Franchise Agreement--
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SECTION 23. - Insurance.
I
i
23.1 Insurance Limits. Franchisee shall maintain in full force and effect
at its own cost and expense each of the following policies of insurance:
a. 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 or
its equivalent and include severability of interests. Such
insurance shall include the City, its officers, officials and
i
employees as additional insureds as their interest may
appear under this Agreement per ISO Form 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;
b. Commercial Automobile Liability insurance with combined
single limits of Five Million Dollars ($5,000,000.00) each j
accident for bodily injury and property damage 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;
C. 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.
23.3 Endorsements. All required liability policies shall:
I
38 Small Cell Franchise Agreement—
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a. Except workers compensation and employer's liability include
i
The City, its officers, officials, boards, commissions, and 11
employees, additional insureds as their interest may appear
under this Agreement with respect to liability arising out of
activities performed by Franchisee under this Franchise or
Applicable Law, or in the construction, operation or repair, or j
ownership of the Cable System;
E
b. Franchisee's required insurance coverage shall be primary j
insurance with respect to the City, its officers, officials,
boards, commissions and employees. Any insurance or self-
insurance maintained by the City, its officers, officials,
boards, commissions and employees shall be in excess of the
Franchisee's required insurance and shall not contribute to it;
and
C. 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.
d. Notwithstanding the forgoing, Licensee may, 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
the like without the prior written consent of Licensee; and (iii)
39 Small Cell Franchise Agreement--
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Licensor shall fully cooperate with Licensee in the defense of
3
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) blanket additional insured
endorsements. The certificates and endorsements for each insurance
policy are to be signed by an authorized representative of the insurer.
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.
24.1 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
40 Small Cell Franchise Agreement--
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infrastructure restored to its pre-existing condition, reasonable wear and
tear and damage by casualty excepted.
n
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
i
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
i
approved by the Public Works Director or his/her designee and all j
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.
41 Small Cell Franchise Agreement--
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24.5 Any Facilities which are not removed within one hundred and eighty
i
(180) calendar days of either the date of termination or revocation of this
Franchise or the date the City issued a permit authorizing removal, I
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 j
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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.
25.1 Construction Guarantee. As a condition of performing work in the j
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 (125%) 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; (4) '
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
42 Small Cell Franchise Agreement—
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with the work that could be asserted against the City or City property.
The guarantee must remain in full force until the completion of
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 (20%) of the original
performance construction guarantee as described in Section 25.1,
Whichever is greater. At six (6)-month intervals during this maintenance
period, the City will inspect the improvements and identify to Franchisee
I 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
43 Small Cell Franchise Agreement—
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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
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.
44 Small Cell Franchise Agreement—
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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.
i
SECTION 27. - Revocation. If Franchisee willfully violates or fails
4
to comply with any material provisions of this Franchise, then at the
I
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.
45 Small Cell Franchise Agreement--
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SECTION 28. - Remedies to Enforce Compliance.
28.1 The City may elect, without any prejudice to any of its other legal
i
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
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
I
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 j
particularity the nature of any such breach and Franchisee shall undertake
E
all commercially reasonable efforts to cure such breach within thirty (30)
calendar days of receipt of notification. If the parties reasonably
I
determine the breach cannot be cured within (30) thirty days, the City
i
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 may, at its sole discretion, (1) revoke
i
i
46 Small Cell Franchise Agreement-- I
Verizon Wireless
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.
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
i
such covenants, agreements or option or any other covenants,
agreements or option.
I
SECTION 30. - Police Powers and City Ordinances. Nothing herein j
i
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 s
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.
i
i
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SECTION 31. - Cost of Publication. The cost of publication of this
Franchise shall be borne by Franchisee.
i
47 Small Cell Franchise Agreement—
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SECTION 32. - Acceptance. Franchisee shall execute and return to
the City its execution and acceptance of this Franchise in the form I
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 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.
34.1 This Franchise may not be directly or indirectly assigned,
transferred, or disposed of by sale, lease, merger, consolidation or other
act of Franchisee, 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
48 Small Cell Franchise Agreement--
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provide prompt, written notice to the City of any such assignment. In the
1
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
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 may, subject to applicable law either allow Franchisee to
49 Small Cell Franchise Agreement--
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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.
SECTION 36. - 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 I
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:
//
50 Small Cell Franchise Agreement--
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If to Licensee (including If to Licensor:
invoices):
Seattle SMSA Limited Partnership, CITY OF KENT
dba Verizon Wireless Attn: City Clerk
(City of Kent) (WA) 220 Fourth Avenue South
d/b/a Verizon Wireless Kent, WA 98032
Attn: Network Real Estate
180 Washington Valley Road
Bedminster, New Jersey 07921
with an additional copy to:
With a copy to:
Seattle SMSA Limited Partnership
d/b/a Verizon Wireless
j Attn: Pacific Market General Counsel
15505 Sand Canyon Avenue
Irvine, CA 92618
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 Franchisee
has a vested right in accordance with the vested rights doctrine under
Washington case law or as codified at RCW 19.27.095. 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
51 Small Cell Franchise Agreement--
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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. This 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.
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
52 Small Cell Franchise Agreement--
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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.
45.1 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
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.
53 Small Cell Franchise Agreement--
Verizon Wireless'
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.
1 September 3, 2019
DANA RALPH, MAYOR Date Approved
54 Small Cell Franchise Agreement--
Verizon Wireless
ATTES
September 3, 2019
KIMBERLEY OMOTO, CITY CLERK Date Adopted
September 6, 2019
Date Published
APPROVED AS TO FORM: a4.t' !'
• rr6'--4kR • a
H AT" FI Z PATRICK CIfY ATTORNEY •
55 Small Cell Franchise Agreement--
Verizon Wireless
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EXHIBIT B
STATEMENT OF ACCEPTANCE
Seattle SMSA Limited Partnership, dba Verizon Wireless for itself, its
successors and assigns, hereby accepts and agrees to be bound by all lawful terms,
conditions and provisions of the Franchise attached hereto and incorporated herein
by this reference.
By: Date: - 2../ — /9
Name: Gordon
Title: Director- Network Field Engineering
STATE OF l )
)ss.
COUNTY OF )
On this?6L day of , 201�, before me the undersigned, a Notary
Public in and for the Staf,6 of u, , duly commissioned and sworn,
personally appeared, (2&2!-;E�Cv-, �e of Seattle SMSA Limited Partnership,
dba Verizon Wireless, the company that executed the within and foregoing
instrument, and acknowledged the said instrument to be the free and voluntary act
and deed of said company, for the uses and purposes therein mentioned, and on
oath stated that he/she is authorized to execute said instrument.
IN WITNESS WHEREO , have hereu to set my hand and affixed my official seal on
the date-h b set rth.
r
Signature KART C MARINO
Notary Public
State of Washington
NOTARY PUBLIC in and for the State of Commission 11 10
My Comm. Expires Augug 10, 2023
residing atC� l/u-e._
MY COMMISSION EXPIRES:
{ERZ1744692.DOCX;2/00085.080011/}
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 - Covington 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 - Covington 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- Covington Reporter(and not in supplement form) which was regularly
distributed to its subscribers during the below stated period. The annexed
notice (871927), a:
Public Notice
was published on September 6`h,2019.
The full amount of the fee charged for said foregoing publication is the
sum of$,j1,�
G'W
Polly Shepherd, Publisher, Kent - Covington Reporter •;o��.ExP oe;:•
NOTARY w•
Subscribed an s orn to me this 6`h day of September, 2019. PUBLIC •z
o
i �'• NO.
"i � WAS
�1'1trl11110%�
Gale Gwin,Notary Public for the State of Washington, Residing in Covington,WA
Classified Proof
CITY OF KENT
NOTICE OF
ORDINANCES
PASSED BY THE
CITY COUNCIL
The following are sum-
maries Of ordinances
passed by the Kent City
Council on September 3,
2019.
ORDINANCE NO.4332-
AN ORDINANCE of the
City Council of the City
of Kent, Washington,
granting to Seattle
SMSA Limited Partner-
ship, dba Venzon Wire-
less, and its affiliates,
successors and assigns,
the right, privilege, au-
thority and nonexclusive
franchise for five years,
to construct, maintain,
operate, replace and re-
pair a small cell telecom-
munications network, in
across, over, along, un-
der, through and below
certain designated public
rights-of-way of the City
of Kent,Washington.
This ordinance shall take
effect and be in force 30
days from and after its
Passage,as provided by
law.
ORDINANCE NO.4333 AN ORDINANCE of the
City Council of the City
of Kent,Washington,re-
pealing Chapter 2.34 of
the Kent City Code relat-
ing to the Kent Municipal
Court, and enacting a
new Chapter 2.34 relat-
ing to the Kent Municipal
Court.
This ordinance shall take
effect and be in force 30
days from and after its
passage,as provided by
law.
A copy of the complete
text of this ordinance will
be mailed upon request
of the City Clerk.
Kimberley A. Komoto,
City Clerk
Classified Proof
�.
253-856-5725
CitvClerIAKentWA A.v
Published in the Kent-
Covington Reporter Sep-
tember 6,2019#871927