HomeMy WebLinkAboutCity Council Committees - Kent City Council - 07/14/2020 (2)
KENT CITY COUNCIL
COMMITTEE OF THE WHOLE
Tuesday, July 14, 2020
4:00 PM
THIS IS A REMOTE MEETING
THIS IS A REMOTE MEETING DUE TO THE COVID-19
CORONAVIRUS EMERGENCY
A live broadcast is available on Kent TV21,
www.facebook.com/CityofKent, and
www.youtube.com/user/KentTV21
To listen to this meeting, call 1-888-475-4499 or 1-877-853-5257
and enter Meeting ID 965 1886 5100
Mayor Dana Ralph
Council President Toni Troutner
Councilmember Bill Boyce Councilmember Marli Larimer
Councilmember Brenda Fincher Councilmember Zandria Michaud
Councilmember Satwinder Kaur Councilmember Les Thomas
**************************************************************
Item Description Speaker
1. CALL TO ORDER
2. ROLL CALL
3. AGENDA APPROVAL
Changes from Council, Administration, or Staff.
4. DEPARTMENT PRESENTATIONS
1. Community Development Block Grant Budget Adjustment -
Authorize
Dinah Wilson
2. King County Flood Control District Cooperative Watershed
Management Grant - Downey Farmstead Restoration -
Authorize
Melissa Dahl
3. INFO ONLY: Federal Way Link Extension Parking
Restriction Update
Rob Brown
Committee of the Whole Committee of the Whole -
Regular Meeting
July 14, 2020
4. INFO ONLY: Residential Traffic Calming Program Update Erik Preston
5. Appoint Sarah Davis to the Lodging Tax Advisory
Committee
Michelle Wilmot
6. INFO ONLY: May Financial Report Michelle Ferguson
7. Payment of Bills - Authorize Paula Painter
8. Ordinance Authorizing Fiber Franchise Agreement with
ExteNet Systems, Inc
Christina Schuck
9. Ordinance Authorizing Small Cell Franchise Agreement with
ExteNet Systems, Inc.
Christina Schuck
5. ADJOURNMENT
NOTE: A copy of the full agenda is available in the City Clerk's Office and at
KentWA.gov.
Any person requiring a disability accommodation should contact the City Clerk's
Office in advance at 253-856-5725. For TDD relay service, call the Washington
Telecommunications Relay Service 7-1-1.
PARKS, RECREATION AND COMMUNITY SERVICES
DEPARTMENT
Julie Parascondola
220 Fourth Avenue South
Kent, WA 98032
253-856-5100
DATE: July 14, 2020
TO: Kent City Council - Committee of the Whole
SUBJECT: Community Development Block Grant Budget Adjustment -
Authorize
MOTION: Authorize the Mayor to adjust the 2019 CDBG budget to accept
$670,541 in federal funds awarded to the City through the CARES Act for
coronavirus relief. These funds are administered by the Department of
Housing and Urban Development.
SUMMARY: On March 27, 2020, the U.S. Congress passed The Coronavirus
Aid, Relief, and Economic Security Act (H.R. 748), also known as the CARES
Act. The bill allocates $670,541 in supplemental Community Development
Block Grant (CDBG) funding to the City of Kent (hereinafter referred to as “the
City”) for grants to prevent, prepare for, and respond to the coronavirus
(CDBG-CV).
To add the additional $670,541 in CDBG-CV funding, a substantial amendment
to the FY 2019 Annual Action Plan was required. The City held a virtual public
hearing for this amendment on June 4, 2020. The Kent Human Services
Commission will consider a motion to approve the amendment on or before
July 16, 2020.
An application was released for organizations to apply for CDBG-CV funds.
Over $2.4 million in funds were requested by 30 organizations. Funds will be
managed by the Parks/Housing & Human Services Division and used to
support the following activities:
· Rental Assistance & CDBG Eligible Activity Move-in Costs Paid on
Behalf of a Resident to a Third Party: Evictions were suspended by
Governor Inslee for a period of time (the CARES Act also placed a 120-day
moratorium on evictions and foreclosures); but rent payments continue to
accrue for residents whose jobs were impacted by COVID-19 closures.
· Homeless Services (including shelter and transitional housing):
Services for the unhoused connected to COVID-19 such as support for
emergency shelter and transitional housing programs, motel vouchers for the
unsheltered (including domestic violence and sexual assault survivors), etc.
· Micro-enterprise Business Technical Assistance: A micro-enterprise is a
commercial enterprise that has five (5) or fewer employees, one (1) or more
4.1
Packet Pg. 3
of whom owns the enterprise. Micro-enterprises, especially those owned by
under-served individuals, require rental assistance along with hands on
support to navigate local and federal loan/grant programs, understand and
complete loan/grant applications, gather supporting documents, respond to
additional requests for information from lenders and help/education to build
planning processes to keep the business open.
· Virtual/Online Legal Assistance for Small Business and Non-profits:
Many small businesses and nonprofits cannot afford an attorney, but they
need to consult with an attorney regarding COVID-19 related business legal
questions (e.g., CARES Act loan programs, lease issues, employment law
questions, general business, nonprofit legal questions, bankruptcy/dissolution
issues, etc.).
· Expansion of Local COVID-19 Testing: Although the State and county
have increased COVID-19 testing over the last few weeks, it is still not at the
level we need to prevent additional virus spread. From the preliminary data
provided by the State, residents of Latinx, Native Hawaiian or Pacific
Islander, and African American descent are disproportionately impacted by
COVID-19 and have died at higher rates than their demographic
representation in the population. Funds provided to a community healthcare
organization(s) accessible to and trusted by under-served populations is a
high priority.
· Food Assistance: Because many new residents are unemployed, food banks
have been inundated with requests for assistance. Additional funds have
been provided by UWKC, Seattle Foundation, and other emergency funds,
however; this need remains high. Organizations need assistance to pay
personnel costs, purchase PPE for staff/volunteers, do background checks on
volunteers, and pay transportation costs to deliver meals to clients who do
not have vehicles to pick up food.
· Emergency Grant Payments: Not all residents qualify for State or federal
stimulus unemployment benefits; those residents are in dire need of
assistance. Normally, “income payments” is defined as a series of
subsistence-type grant payments made to an individual or family for items
such as food, clothing, housing (rent or mortgage), or utilities on behalf
of an individual or family and considered an ineligible activity. However, this
restriction excludes emergency grant payments made over a period of
up to three consecutive months directly to the provider of such items or
services. One-time emergency grants for such service are also an eligible
activity under public services.
· Financial literacy/management: In times of financial crisis, scams,
predatory lending, fraud, etc., increase. Residents and small business owners
need assistance to manage finances, deal with debt collectors, renegotiate
mortgage agreements, refinance auto loans, etc.
· COVID-19 Related Trauma Counseling: Mental health professionals
predict that many impacted by COVID-19 will experience PTSD symptoms
4.1
Packet Pg. 4
and those who have lost loved ones may need grief counseling.
· Outreach and Translated Materials to Under-Served Communities:
Marginalized, hard to reach, and under-served communities need assistance
understanding COVID-19, seeking healthcare, the importance of social
distancing, handwashing, etc.
· Assistance to Purchase COVID-19 Related Supplies (both for non-
profit organizations & for profits to purchase & distribute COVID-19
related supplies to clients)
· Internet Connection Assistance for Families: School buildings are closed
for the rest of this school year and potentially in the fall. Students in families
that cannot afford internet connection are technologically disadvantaged.
Moreover, since many businesses and institutions are closed, services, food,
applications for assistance, etc., are only accessible via the internet. Ensuring
digital connection for residents is also a need that HUD references in the
Consolidated Plan. CDBG can pay for utilities up to three-months.
· Childcare Services: Childcare services have been historically under-
funded, and demand will increase when parents return to work. The
CDBG 2020-2024 Consolidated Plan and Human Services Strategic Plan
prioritize this service as a basic need attached to employability.
BUDGET IMPACT: None.
SUPPORTS STRATEGIC PLAN GOAL:
Thriving City - Creating safe neighborhoods, healthy people, vibrant commercial districts, and
inviting parks and recreation.
Inclusive Community - Embracing our diversity and advancing equity through genuine community
engagement.
ATTACHMENTS:
1. Funding ltr-CARES Act (PDF)
4.1
Packet Pg. 5
U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
WASHINGTON, DC 20410-7000
ASSISTANT SECRETARY FOR
COMMUNITY PLANNING AND DEVELOPMENT
www.hud.gov espanol.hud.gov
April 2, 2020
The Honorable Dana Ralph
Mayor of Kent
220 4th Avenue S
Kent, WA 98032-5838
Dear Mayor Ralph:
I am pleased to inform you of a special allocation to your jurisdiction of Community
Development Block Grant funds to be used to prevent, prepare for, and respond to the coronavirus
(COVID-19). This allocation was authorized by the Coronavirus Aid, Relief, and Economic
Security Act (CARES Act), Public Law 116-136, which was signed by President Trump on March
27, 2020, to respond to the growing effects of this historic public health crisis.
The CARES Act made available $5 billion in Community Development Block Grant
Coronavirus (CDBG-CV) funds. Of this amount, the Department is immediately allocating $2
billion based on the fiscal year 2020 CDBG formula. The remaining $3 billion shall be allocated
based on needs using best available data, in the following tranches: $1 billion shall be allocated to
States and insular areas within 45 days of enactment of the Cares Act, and $2 billion shall be
distributed to states and local governments at the discretion of the Secretary. Up to $10 million will
be set aside for technical assistance. Given the immediate needs faced by our communities, the
Department has announced the first allocation of funds. Your jurisdiction’s allocation is $670,541.
The CARES Act adds additional flexibility for both the CDBG-CV grant and, in some cases,
for the annual FY2020 CDBG grants in these unprecedented times. The public comment period is
reduced to not less than 5 days, grantees may use virtual public hearings when necessary for public
health reasons, the public services cap is suspended during the emergency, and States and local
governments may reimburse costs of eligible activities incurred for pandemic response regardless of
the date.
In addition, the CARES Act authorizes the Secretary to grant waivers and alternative
requirements of statutes and regulations the Secretary administers in connection with the use of
CDBG-CV funds and fiscal year 2019 and 2020 CDBG funds (except for requirements related to
fair housing, nondiscrimination, labor standards, and the environment). Waivers and alternative
requirements can be granted when necessary to expedite and facilitate the use of funds to prevent,
prepare for, and respond to coronavirus.
The Department is developing a notice that will further describes the CARES Act’s
provisions, a Quick Guide to the CARES Act flexibilities and other provisions, and other resources
to enable swift implementation of CDBG-CV grants. As these become available, they will be
4.1.a
Packet Pg. 6
At
t
a
c
h
m
e
n
t
:
F
u
n
d
i
n
g
l
t
r
-
C
A
R
E
S
A
c
t
(
2
3
4
5
:
C
o
m
m
u
n
i
t
y
D
e
v
e
l
o
p
m
e
n
t
B
l
o
c
k
G
r
a
n
t
B
u
d
g
e
t
A
d
j
u
s
t
m
e
n
t
-
A
u
t
h
o
r
i
z
e
)
posted on HUD’s website and distributed to grantees. The Department will also support grantees
with technical assistance.
As you develop your plan for the use of these grant funds, we encourage you to consider
approaches that prioritize the unique needs of low- and moderate–income persons and the
development of partnerships between all levels of government and the private for-profit and non-
profit sectors. You should coordinate with state and local health authorities before undertaking any
activity to support state or local pandemic response. CDBG-CV grants will be subject to oversight,
reporting, and requirements that each grantee have adequate procedures to prevent the duplication
of benefits. HUD will provide guidance and technical assistance on DOB and regarding prevention
of fraud, waste, and abuse and documenting the impact of this program for beneficiaries.
The Office of Community Planning and Development (CPD) is looking forward to working
with you to successfully meet the urgent and complex challenges faced by our communities. If you
or any member of your staff has questions, please contact your local CPD Field Office Director or
CPDQuestionsAnswered@hud.gov.
Sincerely,
John Gibbs
Acting Assistant Secretary
for Community Planning and Development
U.S. Department of Housing and Urban Development
4.1.a
Packet Pg. 7
At
t
a
c
h
m
e
n
t
:
F
u
n
d
i
n
g
l
t
r
-
C
A
R
E
S
A
c
t
(
2
3
4
5
:
C
o
m
m
u
n
i
t
y
D
e
v
e
l
o
p
m
e
n
t
B
l
o
c
k
G
r
a
n
t
B
u
d
g
e
t
A
d
j
u
s
t
m
e
n
t
-
A
u
t
h
o
r
i
z
e
)
PUBLIC WORKS DEPARTMENT
Tim LaPorte, PE
220 Fourth Avenue South
Kent, WA 98032
253-856-5600
DATE: July 14, 2020
TO: Kent City Council - Committee of the Whole
SUBJECT: King County Flood Control District Cooperative Watershed
Management Grant - Downey Farmstead Restoration -
Authorize
MOTION: Authorize the Mayor to sign a grant agreement with the King
County Flood Control District and Water Resources Inventory Area 9 to
accept Cooperative Watershed Management Grant funds, in the amount of
$1,398,457 for the Downey Farmstead Restoration Project, subject to final
terms and conditions acceptable to the City Attorney and the Public Works
Director.
SUMMARY: Phased construction of the Downey Farmstead Restoration Project
(Project) has occurred over the last several years, along with another phase of
construction work anticipated this summer. Once fully constructed, the project will
include 2,000 LF of side channel tributary to the Green River, which will provide
rearing and refuge habitat for threatened Chinook and other salmon species.
This CWM Grant Agreement with the King County Flood Control District and WRIA 9
will fund $1,398,457 for earthen excavation, placement of habitat structures and
planting of native plants this summer.
The Downey Farmstead Restoration Project is a multi-benefit project which creates
and restore salmon habitat, and provides flood risk reduction for high water events
in the Green River.
BUDGET IMPACT: There are no match funds required for this grant. This amount,
in tandem with other grants provides the City with around $1.55 Million to continue
work on the Downey Farmstead Restoration Project.
SUPPORTS STRATEGIC PLAN GOAL:
Evolving Infrastructure - Connecting people and places through strategic investments in physical
and technological infrastructure.
Thriving City - Creating safe neighborhoods, healthy people, vibrant commercial districts, and
inviting parks and recreation.
Sustainable Services - Providing quality services through responsible financial management,
economic growth, and partnerships.
4.2
Packet Pg. 8
ATTACHMENTS:
1. CWM 2019 Grant Agreement Exhibit (PDF)
4.2
Packet Pg. 9
Project Name: Award Number:
Page 1 of 7
AGREEMENT FOR AWARD OF
COOPERATIVE WATERSHED MANAGEMENT GRANT FUNDS
BETWEEN XX AND KING COUNTY
This Agreement is made between King County, a municipal corporation, and XX
(“Recipient”), for the purposes set forth herein. This Agreement shall be in effect from the date
of execution to XX.
Primary Contact for King County: Kim Harper, Grant Administrator, 206-477-6079,
Kim.harper@kingcounty.gov.
Primary Contact for Recipient: XX
SECTION 1. RECITALS
1.1 Whereas, the King County Flood Control District (“District”) is a quasi-municipal
corporation of the State of Washington, authorized to provide funding for cooperative
watershed management arrangements and actions for purposes of water quality, water
resource, and habitat protection and management;
1.2 Whereas King County is the service provider to the District under the terms of an
interlocal agreement ("ILA") by and between King County and the District, dated
February 17, 2009, as amended, and as service provider implements the District's annual
work program and budget;
1.3 Whereas, the Board of Supervisors of the District (the “Board”), the District’s governing
body, passed Resolution FCD 2018-09 on November 5, 2018, authorizing the King
County executive or his designee to develop and administer a grant award program of up
to $4,684,168 in 2019 for water quality, water resources and habitat restoration and
management projects and activities allocated in the amounts of $929,807 for the
Snoqualmie Watershed, $1,756,563 for WRIA 8, $1,756,563 for WRIA 9, and $241,235
for WRIA 10 projects in King County, provided that the project list is approved by the
Board;
1.4 Whereas, in accordance with Resolution FCD2012-07.2 and in its capacity as service
provider to the District, King County has established a grant award program, called the
Cooperative Watershed Management Award Program, to fund water quality, water
resources and habitat restoration and management projects and activities;
1.5 Whereas, the Recipient submitted an application to its respective WRIA forum or
committee for the Project, as described in Exhibit A attached hereto and incorporated
herein by this reference, and that body has recommended the Project for funding under
the Cooperative Watershed Management Grant Program in accordance with King
County’s Cooperative Watershed Management Grant Program Policies and Procedures, a
copy of which has been furnished by King County to the Recipient and which are
incorporated herein by this reference (“Grant Policies and Procedures”);
4.2.a
Packet Pg. 10
At
t
a
c
h
m
e
n
t
:
C
W
M
2
0
1
9
G
r
a
n
t
A
g
r
e
e
m
e
n
t
E
x
h
i
b
i
t
(
2
3
4
1
:
K
i
n
g
C
o
u
n
t
y
F
l
o
o
d
C
o
n
t
r
o
l
D
i
s
t
r
i
c
t
C
o
o
p
e
r
a
t
i
v
e
W
a
t
e
r
s
h
e
d
M
a
n
a
g
e
m
e
n
t
G
r
a
n
t
-
Project Name: Award Number:
Page 2 of 7
1.6 Whereas the District’s Board of Supervisors has received a list of proposed projects that
includes the Project, and the Board of Supervisors, in Resolution FCD2019-10, has
approved the Project for funding up to the amount of $XX;
1.7 Whereas King County has received a Scope of Work and a Budget for the Project from
the Recipient and has determined that the Scope of Work, attached hereto and
incorporated herein as Exhibit B (“Scope of Work”), and the Budget, attached hereto and
incorporated herein as Exhibit C (“Budget Summary”), are consistent with the Grant
Policies and Procedures;
1.8 Whereas, King County and the Recipient desire to enter into this Agreement for the
purpose of establishing the terms and conditions under which King County will provide
funding from the District in accordance with the Policies and Procedures, and the
Recipient will implement the Project.
SECTION 2. AGREEMENT
2.1. The Recitals are an integral part of this Agreement and are incorporated herein by this
reference.
2.2. King County agrees to award the Recipient an award in the total amount of $XX from
District funds (the Award). The Award shall be used by the Recipient solely for the
performance of the Project. King County shall pay the Recipient in accordance with the
Grant Policies and Procedures.
2.3. The Recipient represents and warrants that it will only use the Award for the Scope of
Work of this Agreement and in accordance with the Project Budget. The Recipient shall
be required to refund to King County that portion of the Award which is used for work or
tasks not included in the Scope of Work. Further, the Recipient agrees that King County
may retain any portion of the Award that is not expended or remains after completion of
the Scope of Work and issuance of the Final Report, as further described below.
2.4. Activities carried out for this Project and expenses incurred by the Recipient may predate
the execution date of this Agreement provided that 1) they have been identified by
Recipient as being within the scopes of numbers 2) and 3) below, and have been
approved by King County as being within such scopes; 2) The activities are specified in
the Scope of Work of this Agreement; 3) the expenses are incurred in carrying out the
Scope of Work and are authorized by the Award as identified in the Budget of this
Agreement; 4) such activities and expenses otherwise comply with all other terms of this
Agreement; and 5) such activities and expenses do not occur prior to the date the grants
were approved by the District and reimbursements shall be paid to the Recipient only
after this Agreement has been fully executed.
2.5. The Recipient shall invoice King County for incurred expenses using the Request for
Payment form and Progress Report form for those documented and allowable expenses
identified in the Budgets and according to the rules set forth in the Grant Policies and
Procedures. Blank forms shall be provided to the Recipient by King County upon
4.2.a
Packet Pg. 11
At
t
a
c
h
m
e
n
t
:
C
W
M
2
0
1
9
G
r
a
n
t
A
g
r
e
e
m
e
n
t
E
x
h
i
b
i
t
(
2
3
4
1
:
K
i
n
g
C
o
u
n
t
y
F
l
o
o
d
C
o
n
t
r
o
l
D
i
s
t
r
i
c
t
C
o
o
p
e
r
a
t
i
v
e
W
a
t
e
r
s
h
e
d
M
a
n
a
g
e
m
e
n
t
G
r
a
n
t
-
Project Name: Award Number:
Page 3 of 7
execution of this Agreement. Progress reports for each project (with or without requests
for payment) shall be made no less frequently than every six months after the effective
date of this Agreement nor more frequently than every three months after the
aforementioned date. A Progress Report form shall be submitted with all payment
requests. A one-time advance may be allowed, in the discretion of King County, for
expenses anticipated to be incurred in the three months following the date of submission
of the advance Request for Payment only for work that is included in the Scope of Work
of this Agreement, and identified as such in the Request for Payment. The amount of the
advance may not exceed 20% of the total award amount. Documentation of payments
made from advances shall be submitted to King County prior to any further requests for
payment.
2.6. The Recipient shall be required to submit to King County a final report which documents
the Recipient’s completion of the work in conformance with the terms of this Agreement
within thirty (30) days after the completion of the work. The final report may be
submitted on the Close-out Report form unless a more detailed final report is specified in
the scope of work. A blank Close-out Report form shall be provided to the Recipient by
King County upon execution of this Agreement. The final report shall include a summary
of the Project’s successes and shall address the watershed benefits accomplished by the
work.
2.7. The Recipient's expenditures of Award funds shall be separately identified in the
Recipient's accounting records. If requested, the Recipient shall comply with other
reasonable requests made by King County with respect to the manner in which Project
expenditures are tracked and accounted for in the Recipient's accounting books and
records. The Recipient shall maintain such records of expenditures as may be necessary
to conform to generally accepted accounting principles as further described in Section 2.8
below, and to meet the requirements of all applicable state and federal laws.
2.8. The Recipient shall be required to track project expenses using the Budget Accounting
and Reporting System for the State of Washington ("BARS") or Generally Accepted
Accounting Principles set forth by the Financial Accounting Standards Board or by the
Governmental Accounting Standards Board.
2.9. King County or its representative, and the District or its representative shall have the
right from time to time, at reasonable intervals, to audit the Recipient's books and records
in order to verify compliance with the terms of this Agreement. The Recipient shall
cooperate with King County and the District in any such audit.
2.10. The Recipient shall retain all accounting records and project files relating to this
Agreement in accordance with criteria established by the Washington State Archivist
Local Government Common Records Retention Schedule (CORE) as revised.
2.11. The Recipient shall ensure that all work performed by its employees, agents, contractors
or subcontractors is performed in a manner which protects and safeguards the
environment and natural resources and which is in compliance with local, state and
federal laws and regulations. The Recipient shall implement an appropriate monitoring
system or program to ensure compliance with this provision.
4.2.a
Packet Pg. 12
At
t
a
c
h
m
e
n
t
:
C
W
M
2
0
1
9
G
r
a
n
t
A
g
r
e
e
m
e
n
t
E
x
h
i
b
i
t
(
2
3
4
1
:
K
i
n
g
C
o
u
n
t
y
F
l
o
o
d
C
o
n
t
r
o
l
D
i
s
t
r
i
c
t
C
o
o
p
e
r
a
t
i
v
e
W
a
t
e
r
s
h
e
d
M
a
n
a
g
e
m
e
n
t
G
r
a
n
t
-
Project Name: Award Number:
Page 4 of 7
2.12. The Recipient agrees to indemnify, defend and hold harmless King County, and the
District, their elected or appointed officials, employees and agents, from all claims,
alleged liability, damages, losses to or death of person or damage to property arising out
of any acts or omissions of the Recipient, its employees, agents, contractors or
subcontractors in performing its obligations under the terms of this Agreement.
2.13. The Recipient agrees to acknowledge the District as a source of funding for the Project
on all literature, signage or press releases related to the Project.
SECTION 3. GENERAL PROVISIONS
3.1. This Agreement shall be binding upon and inure to the benefit of the parties and their
respective successors and assigns.
3.2. This Agreement constitutes the entire agreement between the parties with respect to the
subject matter hereof. No prior or contemporaneous representation, inducement, promise
or agreement between or among the parties which relate to the subject matter hereof
which are not embodied in this Agreement shall be of any force or effect.
3.3. No amendment to this Agreement shall be binding on any of the parties unless such
amendment is in writing and is executed by the parties. The parties contemplate that this
Agreement may from time to time be modified by written amendment which shall be
executed by duly authorized representatives of the parties and attached to this Agreement.
3.4. Each party warrants and represents that such party has full and complete authority to
enter into this Agreement and each person executing this Agreement on behalf of a party
warrants and represents that he/she has been fully authorized to execute this Agreement
on behalf of such party and that such party is bound by the signature of such
representative.
3.5. The Project shall be completed by no later than XX. In the event that the Project is not
completed by this date, King County has the discretion, but not the obligation to
terminate this Agreement and retain any unexpended Award funds.
3.6. This Agreement may be signed in multiple counterparts.
3.7. If any provision of this Agreement shall be wholly or partially invalid or unenforceable
under applicable law, such provision will be ineffective to that extent only, without in any
way affecting the remaining parts or provision of this Agreement, and the remaining
provisions of this Agreement shall continue to be in effect.
3.8. The amount of the Award has been fully funded by the District. To the extent that
funding of the Award requires future appropriations by the King County Council, King
County’s obligations are contingent upon the appropriation of sufficient funds by the
King County Council to complete the Scope of Work. If no such appropriation is made,
this Agreement will terminate at the close of the appropriation year for which the last
appropriation that provides funds under this Agreement was made.
4.2.a
Packet Pg. 13
At
t
a
c
h
m
e
n
t
:
C
W
M
2
0
1
9
G
r
a
n
t
A
g
r
e
e
m
e
n
t
E
x
h
i
b
i
t
(
2
3
4
1
:
K
i
n
g
C
o
u
n
t
y
F
l
o
o
d
C
o
n
t
r
o
l
D
i
s
t
r
i
c
t
C
o
o
p
e
r
a
t
i
v
e
W
a
t
e
r
s
h
e
d
M
a
n
a
g
e
m
e
n
t
G
r
a
n
t
-
Project Name: Award Number:
Page 5 of 7
This document has been approved as to form by the King County Prosecuting Attorney’s Office
as of July 15, 2016.
KING COUNTY: RECIPIENT:
By By
Name Name
Title Title
Date Date
4.2.a
Packet Pg. 14
At
t
a
c
h
m
e
n
t
:
C
W
M
2
0
1
9
G
r
a
n
t
A
g
r
e
e
m
e
n
t
E
x
h
i
b
i
t
(
2
3
4
1
:
K
i
n
g
C
o
u
n
t
y
F
l
o
o
d
C
o
n
t
r
o
l
D
i
s
t
r
i
c
t
C
o
o
p
e
r
a
t
i
v
e
W
a
t
e
r
s
h
e
d
M
a
n
a
g
e
m
e
n
t
G
r
a
n
t
-
Project Name: Award Number:
Page 6 of 7
EXHIBIT A: PROJECT DESCRIPTION
PROJECT RECIPIENT DESCRIPTION MATCH AWARD
Project Location
XX Insert Map XX
EXHIBIT B: SCOPE OF WORK
EXHIBIT C: BUDGET SUMMARY
Budget Item Grant Request
Staffing $
Project Supplies $
Commercial Services & Crew Time $
Office Expenses/Overhead $
TOTAL $
4.2.a
Packet Pg. 15
At
t
a
c
h
m
e
n
t
:
C
W
M
2
0
1
9
G
r
a
n
t
A
g
r
e
e
m
e
n
t
E
x
h
i
b
i
t
(
2
3
4
1
:
K
i
n
g
C
o
u
n
t
y
F
l
o
o
d
C
o
n
t
r
o
l
D
i
s
t
r
i
c
t
C
o
o
p
e
r
a
t
i
v
e
W
a
t
e
r
s
h
e
d
M
a
n
a
g
e
m
e
n
t
G
r
a
n
t
-
PUBLIC WORKS DEPARTMENT
Tim LaPorte, PE
220 Fourth Avenue South
Kent, WA 98032
253-856-5600
DATE: July 14, 2020
TO: Kent City Council - Committee of the Whole
SUBJECT: INFO ONLY: Federal Way Link Extension Parking Restriction
Update
SUMMARY: Midway Area
The completion of Sound Transit’s (ST) Federal Way Link Extension project on the
West Hill will bring significant changes to the Midway area. Redevelopment around
the new Link station is anticipated to be mixed use. To facilitate daytime parking
turnover for retail and dining near the Link station, while also accommodating a
residential component, we are proposing to limit daytime parking to four hours
between 9 a.m. and 6 p.m. except Sundays and holidays. These times match the
four-hour parking zones in the downtown area.
ST’s project will reconstruct 30th Avenue South between Kent-Des Moines Road and
South 240th Street. 30th Avenue South is currently a two-lane street and parking is
not allowed. The reconstructed 30th Avenue South will have a parking lane on the
east side between South 240th Street and Kent-Des Moines Road. A parking lane
will also be constructed on the west side of 30th Avenue South between South 236th
St and S 238th St. We are proposing four-hour restricted parking on 30th Ave S in
the new parking lanes.
The project will build east-west streets to connect Pacific Highway and 30th Ave S
via S 234th St, S 236th St, and S 238th St. Four-hour parking is proposed along S
234th St and S 238th St. S 236th St will provide access for redevelopment and will
also be the designated transit access route between Pacific Highway and the new
parking garage located east of 30th Ave S. S 236th St will provide on-street transit
loading and bus layover and is therefore proposed for No Parking.
S 252nd St
ST will construct an emergency access point at the east end of S 252nd St, next to
I-5. The north side of S 252nd St borders the Midway Landfill with single family
residential to the south. The street is less than 28 feet wide east of 29th Ave St,
and the fire code does not allow parking on streets less than 28 feet wide. We
propose No Parking on both sides of S 252nd St east of 29th Ave S for emergency
vehicle access.
Star Lake Park and Ride Area
4.3
Packet Pg. 16
The Federal Way Link Extension project will also build a light rail station and
parking garage at the Star Lake Park and Ride. There is a short segment of 26th
Ave S that is currently No Parking in the City Code. We propose No Parking on 26th
Ave S, S 270th St, and 28th Ave S.
SUPPORTS STRATEGIC PLAN GOAL:
Thriving City - Creating safe neighborhoods, healthy people, vibrant commercial districts, and
inviting parks and recreation.
Inclusive Community - Embracing our diversity and advancing equity through genuine community
engagement.
ATTACHMENTS:
1. FWLE Parking Exhibits (PDF)
4.3
Packet Pg. 17
Midway Federal Way Link Extension
Proposed Parking Restrictions
S 236th St
S 234th St
S 238th St
S 240th St
Light Rail
Proposed 4-Hour Parking
Proposed No Parking
Parking Garage
Proposed Transit Only
4.3.a
Packet Pg. 18
At
t
a
c
h
m
e
n
t
:
F
W
L
E
P
a
r
k
i
n
g
E
x
h
i
b
i
t
s
(
2
3
4
0
:
I
N
F
O
O
N
L
Y
:
F
e
d
e
r
a
l
W
a
y
L
i
n
k
E
x
t
e
n
s
i
o
n
P
a
r
k
i
n
g
R
e
s
t
r
i
c
t
i
o
n
U
p
d
a
t
e
)
ng
S 252nd St Federal Way Link Extension
Proposed Parking Restrictions
Midway
Landfill
30th Ave S
29th Ave S
Fred Meyer
Light Rail
Proposed No Parking
4.3.a
Packet Pg. 19
At
t
a
c
h
m
e
n
t
:
F
W
L
E
P
a
r
k
i
n
g
E
x
h
i
b
i
t
s
(
2
3
4
0
:
I
N
F
O
O
N
L
Y
:
F
e
d
e
r
a
l
W
a
y
L
i
n
k
E
x
t
e
n
s
i
o
n
P
a
r
k
i
n
g
R
e
s
t
r
i
c
t
i
o
n
U
p
d
a
t
e
)
g
Start Lake Federal Way Link Extension
Proposed Parking Restrictions
S 270th St
Light Rail
Existing No Parking
Proposed No Parking
Link Station and
Parking Garage
4.3.a
Packet Pg. 20
At
t
a
c
h
m
e
n
t
:
F
W
L
E
P
a
r
k
i
n
g
E
x
h
i
b
i
t
s
(
2
3
4
0
:
I
N
F
O
O
N
L
Y
:
F
e
d
e
r
a
l
W
a
y
L
i
n
k
E
x
t
e
n
s
i
o
n
P
a
r
k
i
n
g
R
e
s
t
r
i
c
t
i
o
n
U
p
d
a
t
e
)
PUBLIC WORKS DEPARTMENT
Tim LaPorte, PE
220 Fourth Avenue South
Kent, WA 98032
253-856-5600
DATE: July 14, 2020
TO: Kent City Council - Committee of the Whole
SUBJECT: INFO ONLY: Residential Traffic Calming Program Update
SUMMARY: Council adopted an updated Residential Traffic Calming Program
(RTCP) on June 2nd to better address cut through traffic, vehicle speeds and
neighborhood livability concerns. The number of requests for traffic calming has
increased significantly since the Stay Home, Stay Healthy orders were issued by
Governor Inslee in March. We would like to review the impacts of the update,
current status of the program, and the number of requests in each stage of the
process.
The last RTCP update was March 24, 2020. Since then there have been 13 new
RTCP requests made by residents, but no traffic studies have been completed due
to the abnormal traffic conditions created by the pandemic. Staff currently has a
backlog of 29 RTCP requests needing traffic studies and further evaluation under
the updated program. Given the potential for continued changes in travel patterns
due to the pandemic, we may go ahead with traffic studies to measure existing
conditions and begin discussions with residents this fall.
SUPPORTS STRATEGIC PLAN GOAL:
Evolving Infrastructure - Connecting people and places through strategic investments in physical
and technological infrastructure.
Thriving City - Creating safe neighborhoods, healthy people, vibrant commercial districts, and
inviting parks and recreation.
4.4
Packet Pg. 21
LODGING TAX ADVISORY COMMITTEE
220 Fourth Ave S
Kent, WA 98032
DATE: July 14, 2020
TO: Kent City Council - Committee of the Whole
FROM: Economic & Community Development
SUBJECT: Appoint Sarah Davis to the Lodging Tax Advisory Committee
MOTION: Recommend to Council the appointment of Sarah Davis to the Lodging
Tax Advisory Committee. This appointment will fill the vacancy left by the departure
of hotelier Mo Abouelrous.
SUMMARY: Ms. Davis is currently the Front Desk Manager at Marriott’s Townplace
Suites located in North Kent. She is a Kent resident and has 5 years experience as
a hospitality professional. For further details, please see her application attached
to this Agenda.
BUDGET IMPACT: N/A
SUPPORTS STRATEGIC PLAN GOAL:
Inclusive Community - Embracing our diversity and advancing equity through genuine community
engagement.
ATTACHMENTS:
1. Sarah Davis Application for LTAC Membership (PDF)
06/18/20 Lodging Tax Advisory Committee APPROVED
4.5
Packet Pg. 22
1
EXTERNAL EMAIL
A new entry to a form/survey has been submitted.
Form Name: Application for Lodging Tax Advisory Committee
Date & Time: 05/28/2020 4:01 pm
Response #: 8
Submitter ID: 25649
IP address: 50.226.190.194
Time to complete: 8 min. , 21 sec.
Survey Details
Page 1
Lodging Tax Advisory Committee Application Form
The information provided on this application is open to the public per the Public Records Act, Chapter 42.56 RCW
Full Name Sarah Davis
Home Address 11419 SE 258TH SE
Zip Code 98030
Phone 760‐900‐9089
Email sdavis@innventures.com
Occupation Front Office Manager
Employer Towneplace Suites by Marriott
Why do you want to serve on this committee?
I am an active member in the hotel world in Kent and I think it is a great opportunity to be more active with the city of Kent.
I would like to contribute my time and thoughts and be apart of something great.
What unique skills and relevant experience would you bring to the work of this Committee? Describe any experience you
may have with civic, professional or volunteer organizations and other city boards or commissions.
I currently work with the public each day, I am a Front Office Manger at Towneplace suites. I have been in the hospitality
world for almost 5 years and I learn and grow from it each day. I work with fundraising for the Children's Miracle network
and Save the Children and have gotten my hotel involved in this as well. Relationship management in huge in my world and
that would be great to bring to the committee. My experience with the Sale's world and Event would play a factor in my
experience as well.
List any awards or special
recognition.
Not answered
Standard Application
4.5.a
Packet Pg. 23
At
t
a
c
h
m
e
n
t
:
S
a
r
a
h
D
a
v
i
s
A
p
p
l
i
c
a
t
i
o
n
f
o
r
L
T
A
C
M
e
m
b
e
r
s
h
i
p
(
2
3
2
2
:
A
p
p
o
i
n
t
S
a
r
a
h
D
a
v
i
s
t
o
t
h
e
L
o
d
g
i
n
g
T
a
x
A
d
v
i
s
o
r
y
C
o
m
m
i
t
t
e
e
)
2
(○) Standard Application
Contact Rhonda Bylin at 253‐856‐5457 if you have specific questions related to the Lodging Tax Advisory Committee.
Thank you,
City of Kent
This is an automated message generated by the Vision Content Management System™. Please do not reply directly to this email.
4.5.a
Packet Pg. 24
At
t
a
c
h
m
e
n
t
:
S
a
r
a
h
D
a
v
i
s
A
p
p
l
i
c
a
t
i
o
n
f
o
r
L
T
A
C
M
e
m
b
e
r
s
h
i
p
(
2
3
2
2
:
A
p
p
o
i
n
t
S
a
r
a
h
D
a
v
i
s
t
o
t
h
e
L
o
d
g
i
n
g
T
a
x
A
d
v
i
s
o
r
y
C
o
m
m
i
t
t
e
e
)
FINANCE DEPARTMENT
Paula Painter, Finance Director
220 Fourth Avenue South
Kent, WA 98032
253-856-5264
DATE: July 14, 2020
TO: Kent City Council - Committee of the Whole
SUBJECT: INFO ONLY: May Financial Report
SUMMARY: Financial Planning Manager, Michelle Ferguson will report out the May,
2020 financial report.
SUPPORTS STRATEGIC PLAN GOAL:
Sustainable Services - Providing quality services through responsible financial management,
economic growth, and partnerships.
ATTACHMENTS:
1. May 2020 Monthly Financial Report (PDF)
4.6
Packet Pg. 25
2020
Adj Budget
2020
YTD
Revenues 108,462,070 44,900,051
Expenditures 111,557,570 37,488,202
Net Revenues Less Expenditures (3,095,500) 7,411,849
Beginning Fund Balance 34,399,775
Ending Fund Balance 31,304,275
Ending Fund Balance Detail:
General Fund Reserves 30,851,047
27.7%
Restricted for Annexation 453,228
Required Ending Fund Balance Calculation
Budgeted Expenditures for 2020 (from above)111,557,570
18.0%
18% GF Ending Fund Balance 20,080,363
May 2020 Monthly Financial Report
City of Kent, Washington
General Fund Overview
0.83 0.64
4.13
7.…
9.46
11.91
18.92 20.65 21.67
32.57
30.85
0
5
10
15
20
25
30
35
2010 2011 2012 2013 2014 2015 2016 2017 2018 2019 2020
Budget
General Fund Ending Fund Balance History (excluding Annexation)$ in
million
Page 1 of 14
4.6.a
Packet Pg. 26
At
t
a
c
h
m
e
n
t
:
M
a
y
2
0
2
0
M
o
n
t
h
l
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
(
2
3
3
8
:
I
N
F
O
O
N
L
Y
:
M
a
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
)
Revenue Categories 2020
Adj Budget
2020
YTD
Taxes:
Property 30,457,820 14,234,907
Sales & Use 20,849,490 10,615,126
Utility 19,278,260 8,864,167
Business & Occupation 14,900,000 3,513,354
Other 897,440 185,723
Licenses and Permits 7,490,520 2,831,899
Intergovernmental Revenue 2,966,570 1,467,352
Charges for Services 6,275,920 1,886,748
Fines and Forfeitures 1,145,660 427,229
Miscellaneous Revenue 2,445,620 423,546
Transfers In 1,754,770 450,000
Total Revenues 108,462,070 44,900,051
May 2020 Monthly Financial Report
City of Kent, Washington
General Fund Overview - Revenues
Property Taxes
28%
Sales Taxes
19%
Utility Taxes
18%
B&O Taxes
14%
Other Taxes
1%
Licenses and
Permits
7%Intergovernmental
2%
Charges for
Services
6%
Fines and Forfeits
1%
Misc & Transfers In
4%
Other
13%
2020 Budgeted General Fund Revenues
Page 2 of 14
4.6.a
Packet Pg. 27
At
t
a
c
h
m
e
n
t
:
M
a
y
2
0
2
0
M
o
n
t
h
l
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
(
2
3
3
8
:
I
N
F
O
O
N
L
Y
:
M
a
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
)
Prior Year
Revenues
Budgeted
Revenues
Actual
Revenues
January 6,139 6,068 6,877
February 5,923 5,403 5,736
March 7,624 8,036 6,774
April 20,431 18,006 16,925
May 9,230 7,786 8,588
June 6,226 6,388 0
July 8,682 7,795 0
August 6,437 5,773 0
September 7,074 7,055 0
October 21,274 18,486 0
November 8,154 7,336 0
December 12,620 10,330 0
Total 119,813 108,462 44,900
Prior Year
Revenues
Budgeted
Revenues
Actual
Revenues
January 0 12 0
February 262 237 247
March 866 890 1,461
April 12,268 12,635 9,328
May 2,730 2,110 3,199
June 128 131 0
July 87 110 0
August 80 106 0
September 842 652 0
October 11,573 11,685 0
November 1,688 1,657 0
December 208 233 0
Total 30,732 30,458 14,235
Prior Year
Revenues
Budgeted
Revenues
Actual
Revenues
January 2,060 1,574 2,158
February 2,485 1,940 2,425
March 2,058 1,564 2,143
April 1,788 1,484 1,929
May 2,244 1,758 1,959
June 1,765 1,487 0
July 2,331 1,702 0
August 2,540 1,898 0
September 2,310 1,736 0
October 2,532 1,787 0
November 2,589 1,916 0
December 2,418 2,005 0
Total 27,121 20,849 10,615
May 2020 Monthly Financial Report
City of Kent, Washington
General Fund Revenues ($ in Thousands)
All Revenues Sources
Property Tax
Sales Tax
$0
$20,000
$40,000
$60,000
$80,000
$100,000
$120,000
$140,000
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
20 Bud 19 Act 20 Act
$0
$5,000
$10,000
$15,000
$20,000
$25,000
$30,000
$35,000
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
20 Bud 19 Act 20 Act
$0
$5,000
$10,000
$15,000
$20,000
$25,000
$30,000
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
20 Bud 19 Act 20 Act
Page 3 of 14
4.6.a
Packet Pg. 28
At
t
a
c
h
m
e
n
t
:
M
a
y
2
0
2
0
M
o
n
t
h
l
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
(
2
3
3
8
:
I
N
F
O
O
N
L
Y
:
M
a
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
)
May 2020 Monthly Financial Report
City of Kent, Washington
General Fund Revenues ($ in Thousands)
Prior Year
Revenues
Budgeted
Revenues
Actual
Revenues
January 1,822 1,989 2,033
February 1,648 1,701 1,779
March 1,680 1,651 1,627
April 1,707 1,758 1,845
May 1,575 1,533 1,581
June 1,450 1,428 0
July 1,639 1,667 0
August 1,477 1,473 0
September 1,481 1,688 0
October 2,012 1,492 0
November 1,633 1,526 0
December 1,477 1,372 0
Total 19,600 19,278 8,864
Prior Year
Revenues
Budgeted
Revenues
Actual
Revenues
January 2 5 2
February 2 8 1
March 48 249 33
April 2,479 2,338 2,765
May 543 969 898
June 81 184 0
July 2,637 2,972 0
August 665 615 0
September 70 139 0
October 2,919 3,297 0
November 490 536 0
December 4,026 4,486 0
Total 13,963 15,797 3,699
Prior Year
Revenues
Budgeted
Revenues
Actual
Revenues
January 2,255 1,779 2,684
February 1,526 842 1,284
March 2,972 2,455 1,508
April 2,189 1,616 1,059
May 2,139 1,369 951
June 2,801 2,443 0
July 1,987 1,594 0
August 1,675 1,294 0
September 2,370 2,319 0
October 2,237 1,757 0
November 1,754 1,439 0
December 4,491 3,171 0
Total 28,396 22,079 7,487
Utility Tax
Other Taxes
Other Revenues
(Intergovernmental, Licenses & Permits, Charges for Service, Fines & Forfeits, and Misc Revenues)
$0
$5,000
$10,000
$15,000
$20,000
$25,000
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
20 Bud 19 Act 20 Act
$0
$2,000
$4,000
$6,000
$8,000
$10,000
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
20 Bud 19 Act 20 Act
$0
$5,000
$10,000
$15,000
$20,000
$25,000
$30,000
Jan Feb Mar Apr May Jun Jul Aug Sep Oct Nov Dec
20 Bud 19 Act 20 Act
Page 4 of 14
4.6.a
Packet Pg. 29
At
t
a
c
h
m
e
n
t
:
M
a
y
2
0
2
0
M
o
n
t
h
l
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
(
2
3
3
8
:
I
N
F
O
O
N
L
Y
:
M
a
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
)
Department 2020
Adj Budget
2020
YTD
City Council 491,610 169,261
Mayor's Office/City Clerk 2,042,670 728,365
Economic & Community Dev 7,982,390 2,869,869
Finance 2,906,800 947,024
Fire Contracted Services 3,676,240 1,516,394
Human Resources 1,985,880 689,623
Information Technology 202,550 208,812
Law 1,533,750 636,948
Municipal Court 3,714,520 1,405,567
Parks, Recreation & Comm Svcs 19,852,080 6,782,117
Police 45,647,930 18,096,502
Public Works 590,750 507,254
Non-Departmental 20,930,400 2,930,465
Total Expenditures 111,557,570 37,488,202
May 2020 Monthly Financial Report
City of Kent, Washington
General Fund Overview - Expenditures
City Council
0.4%
Human
Resources
1.8%
ECD
7%
Finance
3%
Fire Contracted
Services
3%
Human Resources
2%
I.T.
0.2%Law
1%
Municipal Court
3%
Parks
18%
Police
41%
Public Works
1%
Non-Departmental
19%
Other
9%
2020 Budgeted General Fund Expenditures
Page 5 of 14
4.6.a
Packet Pg. 30
At
t
a
c
h
m
e
n
t
:
M
a
y
2
0
2
0
M
o
n
t
h
l
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
(
2
3
3
8
:
I
N
F
O
O
N
L
Y
:
M
a
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
)
2017 2018 2019 2020 2020
Actual Actual Actual Adj Budget YTD
Beginning Fund Balance 19,987,828 21,595,173 23,750,461 34,399,775 34,399,775
Revenues
Taxes:
Property 22,999,864 29,971,155 30,731,786 30,457,820 14,234,907
Sales & Use 21,109,277 24,699,301 27,121,400 20,849,490 10,615,126
Utility 19,648,349 19,289,162 19,600,347 19,278,260 8,864,167
Business & Occupation 9,141,800 9,422,048 12,999,564 14,900,000 3,513,354
Other 900,663 1,074,356 963,837 897,440 185,723
Licenses and Permits 6,962,130 7,557,658 7,483,643 7,490,520 2,831,899
Intergovernmental Revenue 8,102,414 7,919,860 6,645,962 2,966,570 1,467,352
Charges for Services 7,328,567 6,602,681 7,996,846 6,275,920 1,886,748
Fines and Forfeitures 1,549,964 1,360,976 1,289,334 1,145,660 427,229
Miscellaneous Revenue 2,241,585 2,642,511 3,586,979 2,445,620 423,546
Transfers In 934,128 950,000 984,411 1,754,770 450,000
Total Revenues 100,918,740 111,489,706 119,404,108 108,462,070 44,900,051
Expenditures
City Council 349,577 344,160 392,115 491,610 169,261
Mayor's Office/City Clerk 2,745,792 2,759,974 2,768,273 2,042,670 728,365
Economic & Community Dev 5,841,099 6,681,671 7,044,217 7,982,390 2,869,869
Finance 2,522,554 3,061,472 3,236,960 2,906,800 947,024
Fire Contracted Services 3,668,180 3,619,385 3,927,088 3,676,240 1,516,394
Human Resources 1,835,276 2,075,553 2,047,102 1,985,880 689,623
Information Technology 521,151 506,265 513,448 202,550 208,812
Law 1,600,450 1,673,438 1,801,507 1,533,750 636,948
Municipal Court 3,128,653 3,442,107 3,646,275 3,714,520 1,405,567
Parks, Recreation & Comm Svcs 16,655,355 17,992,171 18,396,678 19,852,080 6,782,117
Police 37,167,621 39,315,958 43,849,289 45,647,930 18,096,502
Public Works 1,111,563 1,155,562 1,208,835 590,750 507,254
Non-Departmental 22,164,122 26,706,702 20,332,204 20,930,400 2,930,465
Total Expenditures 99,311,395 109,334,419 109,163,991 111,557,570 37,488,202
Net Revenues less Expenditures 1,607,345 2,155,288 10,240,117 (3,095,500) 7,411,849
Ending Fund Balance 21,595,173 23,750,461 33,990,578 31,304,275 41,811,624
Ending Fund Balance Detail:
General Fund Reserves 20,654,413 22,069,241 32,573,348 30,851,047
based on same year actuals/budget 20.8% 20.2% 29.8% 27.7%
Restricted for Annexation 940,760 1,681,220 1,417,230 453,228
May 2020 Monthly Financial Report
City of Kent, Washington
General Fund
Page 6 of 14
4.6.a
Packet Pg. 31
At
t
a
c
h
m
e
n
t
:
M
a
y
2
0
2
0
M
o
n
t
h
l
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
(
2
3
3
8
:
I
N
F
O
O
N
L
Y
:
M
a
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
)
2018 2019 2020 % of
thru May thru May thru May Budget
Revenues
Taxes:
Property 15,576,486 16,124,922 14,234,907 (1,890,015) -11.7%46.7%
Sales & Use 9,293,534 10,635,425 10,615,126 (20,299) -0.2%50.9%
Utility 8,689,176 8,431,611 8,864,167 432,556 5.1%46.0%
Business & Occupation 1,721,544 2,838,913 3,513,354 674,441 23.8%23.6%
Other 325,441 234,988 185,723 (49,264) -21.0%20.7%
Licenses and Permits 3,093,031 3,379,961 2,831,899 (548,062) -16.2%37.8%
Intergovernmental Revenue 2,554,265 2,592,197 1,467,352 (1,124,845) -43.4%49.5%
Charges for Services 3,295,071 3,424,081 1,886,748 (1,537,333) -44.9%30.1%
Fines and Forfeitures 518,397 534,892 427,229 (107,663) -20.1%37.3%
Miscellaneous Revenue 861,866 1,111,650 423,546 (688,104) -61.9%17.3%
Transfers In - 37,631 450,000 412,369 1095.8%25.6%
Total Revenues 45,928,811 49,346,270 44,900,051 (4,446,219) -9.0%41.4%
Expenditures
City Council 153,385 164,889 169,261 4,372 2.7%34.4%
Mayor's Office/City Clerk 1,068,017 1,199,884 728,365 (471,520) -39.3%35.7%
Economic & Community Dev 2,776,010 2,884,605 2,869,869 (14,736) -0.5%36.0%
Finance 1,199,363 1,389,487 947,024 (442,463) -31.8%32.6%
Fire Contracted Services 1,493,563 1,565,143 1,516,394 (48,749) -3.1%41.2%
Human Resources 891,669 912,311 689,623 (222,687) -24.4%34.7%
Information Technology 212,089 209,786 208,812 (974) -0.5%103.1%
Law 725,850 739,135 636,948 (102,188) -13.8%41.5%
Municipal Court 1,359,164 1,450,826 1,405,567 (45,259) -3.1%37.8%
Parks, Recreation & Comm Svcs 6,829,460 7,333,427 6,782,117 (551,310) -7.5%34.2%
Police 16,319,176 17,726,946 18,096,502 369,556 2.1%39.6%
Public Works 477,667 489,002 507,254 18,252 3.7%85.9%
Non-Departmental 1,390,702 1,208,960 2,930,465 1,721,506 142.4%14.0%
Total Expenditures 34,896,115 37,274,401 37,488,202 213,800 0.6%33.6%
*General Govt. includes City Council, Mayor/Clerk, HR, IT, & Finance
Variance
May 2020 Monthly Financial Report
City of Kent, Washington
General Fund
Year-to-Year Month Comparison
2020-19
0
2,000,000
4,000,000
6,000,000
8,000,000
10,000,000
12,000,000
14,000,000
16,000,000
18,000,000
20,000,000
Property
Taxes
Sales &
Use Taxes
Utility
Taxes
Other
Revenues
GF Revenues thru May
2018
2019
2020
0
2,000,000
4,000,000
6,000,000
8,000,000
10,000,000
12,000,000
14,000,000
16,000,000
18,000,000
20,000,000
Police Parks *General
Govt.
ECD Non-Dept &
Other
GF Expenditures thru May
2018
2019
2020
Page 7 of 14
4.6.a
Packet Pg. 32
At
t
a
c
h
m
e
n
t
:
M
a
y
2
0
2
0
M
o
n
t
h
l
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
(
2
3
3
8
:
I
N
F
O
O
N
L
Y
:
M
a
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
)
2020 2020
Estimated
Beginning
Fund Balance
2020
Budgeted
Revenues
2020
Budgeted
Expenditures
Estimated
Ending Fund
Balance
Operating revenues and expenditures only; capital and non-capital projects are excluded.
General Fund 34,399,775 108,462,070 111,557,570 31,304,275
Street Fund 7,249,873 17,578,370 18,469,490 6,358,753
LEOFF 1 Retiree Benefits 1,921,274 1,201,170 1,546,320 1,576,124
Lodging Tax 185,825 303,510 299,780 189,555
Youth/Teen Programs 75,355 936,680 963,100 48,935
Capital Resources 18,658,224 20,581,220 27,615,030 11,624,414
Criminal Justice 7,867,703 7,679,270 7,959,070 7,587,903
ShoWare Operating 2,930,008 1,150,000 1,267,340 2,812,668
Other Operating 568,356 108,770 108,770 568,356
Councilmanic Debt Service 1,915,872 9,144,490 8,754,530 2,305,832
Special Assessments Debt Service 699,855 793,180 793,580 699,455
Water Utility 11,375,662 30,168,320 28,145,350 13,398,632
Sewer Utility 908,833 32,386,150 32,361,220 933,763
Drainage Utility 16,107,790 24,188,630 22,795,970 17,500,450
Solid Waste Utility 531,908 745,650 739,540 538,018
Golf Complex (601,973) 4,361,570 4,315,270 (555,673)
Fleet Services 4,351,502 5,163,800 7,207,460 2,307,842
Central Services 55,834 456,010 396,590 115,254
Information Technology 3,728,511 9,580,630 12,245,160 1,063,981
Facilities 3,280,379 6,236,060 7,073,980 2,442,459
Unemployment 1,358,838 144,690 177,480 1,326,048
Workers Compensation 2,839,993 1,129,480 1,516,600 2,452,873
Employee Health & Wellness 5,729,769 15,842,530 15,456,300 6,115,999
Liability Insurance 1,923,261 2,190,430 2,091,380 2,022,311
Property Insurance 722,999 581,140 572,240 731,899
Enterprise Funds
Internal Service Funds
Fund Balances
May 2020 Monthly Financial Report
City of Kent, Washington
General Fund
Special Revenue Funds
Debt Service Funds
Page 8 of 14
4.6.a
Packet Pg. 33
At
t
a
c
h
m
e
n
t
:
M
a
y
2
0
2
0
M
o
n
t
h
l
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
(
2
3
3
8
:
I
N
F
O
O
N
L
Y
:
M
a
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
)
2018 2019 2020 2020
Actual Prelim Budget YTD
Operating revenues and expenditures only; capital and non-capital projects are excluded.
In instances where expenditures exceed revenues, fund balance is being utilized.
Street Fund
Revenues 15,241,855 19,786,844 17,578,370 5,050,203
Expenditures 15,698,374 17,953,938 18,469,490 4,546,430
Net Revenues Less Expenditures (456,519)1,832,906 (891,120)503,773
LEOFF 1 Retiree Benefits
Revenues 1,948,504 1,401,786 1,201,170 302,365
Expenditures 1,372,764 1,352,624 1,546,320 661,644
Net Revenues Less Expenditures 575,740 49,162 (345,150)(359,279)
Lodging Tax
Revenues 320,774 314,588 303,510 73,080
Expenditures 441,566 465,527 299,780 156,905
Net Revenues Less Expenditures (120,791)(150,940)3,730 (83,826)
Youth/Teen Programs
Revenues 928,958 941,240 936,680 403,701
Expenditures 942,000 957,730 963,100 2,954
Net Revenues Less Expenditures (13,042)(16,490)(26,420)400,747
Capital Resources
Revenues 22,962,097 25,312,158 20,581,220 8,333,711
Expenditures 23,009,239 22,251,119 27,615,030 376,236
Net Revenues Less Expenditures (47,142)3,061,040 (7,033,810)7,957,475
Criminal Justice
Revenues 5,141,297 6,738,402 7,679,270 3,097,906
Expenditures 5,090,504 6,118,496 7,959,070 2,368,781
Net Revenues Less Expenditures 50,792 619,907 (279,800)729,125
ShoWare Operating
Revenues 1,502,759 1,456,311 1,150,000 29,009
Expenditures 1,373,763 1,089,763 1,267,340 215,261
Net Revenues Less Expenditures 128,996 366,548 (117,340)(186,253)
Other Operating
Revenues 133,288 113,321 108,770
Expenditures 72,045 132,366 108,770 73,604
Net Revenues Less Expenditures 61,243 (19,045)(73,604)
Councilmanic Debt Service
Revenues 10,535,010 10,266,923 9,144,490 800,358
Expenditures 10,070,185 9,802,097 8,754,530 850,569
Net Revenues Less Expenditures 464,826 464,826 389,960 (50,211)
Debt Service Funds
May 2020 Monthly Financial Report
City of Kent, Washington
Other Funds Overview (Revenues and Expenditures)
Special Revenue Funds
Page 9 of 14
4.6.a
Packet Pg. 34
At
t
a
c
h
m
e
n
t
:
M
a
y
2
0
2
0
M
o
n
t
h
l
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
(
2
3
3
8
:
I
N
F
O
O
N
L
Y
:
M
a
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
)
2018 2019 2020 2020
Actual Prelim Budget YTD
Operating revenues and expenditures only; capital and non-capital projects are excluded.
In instances where expenditures exceed revenues, fund balance is being utilized.
May 2020 Monthly Financial Report
City of Kent, Washington
Other Funds Overview (Revenues and Expenditures)
Special Assessment Debt Service
Revenues 1,458,264 1,339,332 793,180 156,375
Expenditures 1,561,009 1,119,393 793,580 327,472
Net Revenues Less Expenditures (102,745)219,939 (400)(171,097)
Water Utility
Revenues 29,438,960 32,626,406 30,168,320 11,794,774
Expenditures 28,004,249 35,348,583 28,145,350 9,303,640
Net Revenues Less Expenditures 1,434,710 (2,722,177)2,022,970 2,491,134
Sewer Utility
Revenues 33,063,798 32,386,150 13,972,091
Expenditures 31,664,339 32,361,220 12,030,542
Net Revenues Less Expenditures 1,399,458 24,930 1,941,549
Note: Sewer Utility was combined with Drainage Utility in 2018.
Drainage Utility
Revenues 57,343,023 29,373,133 24,188,630 9,652,050
Expenditures 56,890,091 28,566,673 22,795,970 5,762,478
Net Revenues Less Expenditures 452,932 806,461 1,392,660 3,889,572
Solid Waste Utility
Revenues 799,794 874,164 745,650 284,952
Expenditures 812,476 809,006 739,540 435,363
Net Revenues Less Expenditures (12,682)65,158 6,110 (150,410)
Golf Complex
Revenues 9,229,538 2,698,609 4,361,570 4,127,160
Expenditures 6,467,553 2,811,737 4,315,270 939,096
Net Revenues Less Expenditures 2,761,985 (113,128)46,300 3,188,064
Fleet Services
Revenues 5,686,534 8,514,159 5,163,800 2,246,137
Expenditures 7,286,339 6,413,500 7,207,460 2,493,567
Net Revenues Less Expenditures (1,599,805)2,100,659 (2,043,660)(247,429)
Central Services
Revenues 375,410 367,717 456,010 111,110
Expenditures 357,253 326,927 396,590 126,268
Net Revenues Less Expenditures 18,157 40,790 59,420 (15,158)
Enterprise Funds
Internal Service Funds
Note: Golf revenues include proceeds from the sale of land of $6m in 2018 and $3.8m in 2020. 2018 Exp
include $3.3m transfer to Capital Projects
Page 10 of 14
4.6.a
Packet Pg. 35
At
t
a
c
h
m
e
n
t
:
M
a
y
2
0
2
0
M
o
n
t
h
l
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
(
2
3
3
8
:
I
N
F
O
O
N
L
Y
:
M
a
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
)
2018 2019 2020 2020
Actual Prelim Budget YTD
Operating revenues and expenditures only; capital and non-capital projects are excluded.
In instances where expenditures exceed revenues, fund balance is being utilized.
May 2020 Monthly Financial Report
City of Kent, Washington
Other Funds Overview (Revenues and Expenditures)
Information Technology
Revenues 8,416,261 9,063,603 9,580,630 3,882,822
Expenditures 8,676,906 8,702,490 12,245,160 4,507,616
Net Revenues Less Expenditures (260,645)361,113 (2,664,530)(624,795)
Facilities
Revenues 4,941,020 5,967,608 6,236,060 2,202,072
Expenditures 4,933,077 5,035,505 7,073,980 1,844,839
Net Revenues Less Expenditures 7,943 932,103 (837,920)357,233
Unemployment
Revenues 158,565 178,465 144,690 68,430
Expenditures 181,851 220,850 177,480 116,227
Net Revenues Less Expenditures (23,286)(42,384)(32,790)(47,796)
Workers Compensation
Revenues 1,829,452 1,289,364 1,129,480 631,358
Expenditures 725,048 1,928,101 1,516,600 522,031
Net Revenues Less Expenditures 1,104,404 (638,737)(387,120)109,327
Employee Health & Wellness
Revenues 13,857,791 15,629,649 15,842,530 6,541,840
Expenditures 12,931,931 13,786,308 15,456,300 5,215,949
Net Revenues Less Expenditures 925,860 1,843,342 386,230 1,325,892
Liability Insurance
Revenues 1,950,908 2,798,493 2,190,430 1,117,423
Expenditures 2,733,726 1,753,545 2,091,380 1,115,837
Net Revenues Less Expenditures (782,818)1,044,947 99,050 1,586
Property Insurance
Revenues 587,906 1,328,717 581,140 241,902
Expenditures 632,404 1,213,255 572,240 254,676
Net Revenues Less Expenditures (44,498)115,462 8,900 (12,774)
0
20,000,000
40,000,000
60,000,000
80,000,000
100,000,000
2018
Actuals
2019
Actuals
2020
Budget
Other Fund Revenues
0
20,000,000
40,000,000
60,000,000
80,000,000
100,000,000
2018
Actuals
2019
Actuals
2020
Budget
Other Fund Expenditures
Special
Revenue
Funds
Enterprise
Funds
Internal
Service
Funds
Page 11 of 14
4.6.a
Packet Pg. 36
At
t
a
c
h
m
e
n
t
:
M
a
y
2
0
2
0
M
o
n
t
h
l
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
(
2
3
3
8
:
I
N
F
O
O
N
L
Y
:
M
a
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
)
2018 2019 2020
thru May thru May thru May
Operating revenues and expenditures only; capital and non-capital projects are excluded.
Street Fund
Revenues 4,712,199 6,052,029 5,050,203 (1,001,826)-16.6%
Expenditures 5,947,887 6,496,638 4,546,430 (1,950,209)-30.0%
Net Revenues Less Expenditures (1,235,688)(444,610)503,773
LEOFF 1 Retiree Benefits
Revenues 306,592 88,880 302,365 213,486 240.2%
Expenditures 554,300 593,936 661,644 67,708 11.4%
Net Revenues Less Expenditures (247,709)(505,057)(359,279)
Lodging Tax
Revenues 95,312 97,713 73,080 (24,634)-25.2%
Expenditures 135,120 165,078 156,905 (8,173)-5.0%
Net Revenues Less Expenditures (39,808)(67,365)(83,826)
Youth/Teen Programs
Revenues 431,515 410,160 403,701 (6,459)-1.6%
Expenditures 2,954 2,954
Net Revenues Less Expenditures 431,515 410,160 400,747
Capital Resources
Revenues 6,729,118 5,961,655 8,333,711 2,372,057 39.8%
Expenditures 1,756,608 1,969,342 376,236 (1,593,106)-80.9%
Net Revenues Less Expenditures 4,972,510 3,992,313 7,957,475
Criminal Justice
Revenues 1,988,358 2,104,902 3,097,906 993,003 47.2%
Expenditures 1,764,077 2,941,690 2,368,781 (572,909)-19.5%
Net Revenues Less Expenditures 224,282 (836,788)729,125
ShoWare Operating
Revenues 244,714 123,819 29,009 (94,811)-76.6%
Expenditures 336,760 477,827 215,261 (262,566)-54.9%
Net Revenues Less Expenditures (92,046)(354,008)(186,253)
Admissions Tax revenues received quarterly (April, July, September, January)
Other Operating
Revenues
Expenditures 20,542 22,765 73,604 50,839 223.3%
Net Revenues Less Expenditures (20,542)(22,765)(73,604)
Combines several small programs, including City Art Program and Neighborhood Matching Grants
May 2020 Monthly Financial Report
City of Kent, Washington
Other Funds Overview (Revenues and Expenditures)
Year-to-Year Month Comparison
2020-2019
Special Revenue Funds
Variance
Page 12 of 14
4.6.a
Packet Pg. 37
At
t
a
c
h
m
e
n
t
:
M
a
y
2
0
2
0
M
o
n
t
h
l
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
(
2
3
3
8
:
I
N
F
O
O
N
L
Y
:
M
a
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
)
2018 2019 2020
thru May thru May thru May
Operating revenues and expenditures only; capital and non-capital projects are excluded.
May 2020 Monthly Financial Report
City of Kent, Washington
Other Funds Overview (Revenues and Expenditures)
Year-to-Year Month Comparison
2020-2019
Variance
Councilmanic Debt Service
Revenues 807,962 816,986 800,358 (16,628)-2.0%
Expenditures 807,962 836,310 850,569 14,259 1.7%
Net Revenues Less Expenditures (19,324)(50,211)
Debt service payments are generally due in June and December.
Special Assessments Debt Service
Revenues 248,953 254,121 156,375 (97,746)-38.5%
Expenditures 736,788 436,072 327,472 (108,600)-24.9%
Net Revenues Less Expenditures (487,836)(181,951)(171,097)
Water Utility
Revenues 10,960,300 12,364,380 11,794,774 (569,606)-4.6%
Expenditures 8,805,437 8,610,838 9,303,640 692,801 8.0%
Net Revenues Less Expenditures 2,154,863 3,753,541 2,491,134
Sewer Utility
Revenues 13,570,846 13,972,091 401,246 3.0%
Expenditures 11,959,760 12,030,542 70,782 0.6%
Net Revenues Less Expenditures 1,611,085 1,941,549
Note: Sewer Utility was combined with Drainage Utility in 2018.
Drainage Utility
Revenues 23,507,774 10,405,981 9,652,050 (753,931)-7.2%
Expenditures 17,364,879 5,451,433 5,762,478 311,045 5.7%
Net Revenues Less Expenditures 6,142,895 4,954,548 3,889,572
Note: Sewer Utility was combined with Drainage Utility in 2018.
Solid Waste Utility
Revenues 268,805 281,756 284,952 3,196 1.1%
Expenditures 342,791 293,439 435,363 141,924 48.4%
Net Revenues Less Expenditures (73,987)(11,682)(150,410)
Golf Complex
Revenues 6,817,403 811,500 4,127,160 3,315,660 408.6%
Expenditures 985,356 1,121,105 939,096 (182,009)-16.2%
Net Revenues Less Expenditures 5,832,046 (309,606)3,188,064
Golf revenues include proceeds from the sale of land of $6m in 2018 and $3.8m in 2020 (both for PAR3 sale).
Fleet Services
Revenues 2,034,375 3,965,677 2,246,137 (1,719,539)-43.4%
Expenditures 2,131,734 3,204,493 2,493,567 (710,926)-22.2%
Net Revenues Less Expenditures (97,360)761,184 (247,429)
Central Services
Revenues 171,850 165,531 111,110 (54,421)-32.9%
Expenditures 156,657 150,606 126,268 (24,338)-16.2%
Net Revenues Less Expenditures 15,193 14,925 (15,158)
Debt Service Funds
Enterprise Funds
Internal Service Funds
Page 13 of 14
4.6.a
Packet Pg. 38
At
t
a
c
h
m
e
n
t
:
M
a
y
2
0
2
0
M
o
n
t
h
l
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
(
2
3
3
8
:
I
N
F
O
O
N
L
Y
:
M
a
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
)
2018 2019 2020
thru May thru May thru May
Operating revenues and expenditures only; capital and non-capital projects are excluded.
May 2020 Monthly Financial Report
City of Kent, Washington
Other Funds Overview (Revenues and Expenditures)
Year-to-Year Month Comparison
2020-2019
Variance
Information Technology
Revenues 3,483,208 4,198,704 3,882,822 (315,882)-7.5%
Expenditures 3,476,775 3,373,932 4,507,616 1,133,684 33.6%
Net Revenues Less Expenditures 6,433 824,771 (624,795)
Facilities
Revenues 2,036,672 2,195,006 2,202,072 7,066 0.3%
Expenditures 1,667,952 1,737,847 1,844,839 106,992 6.2%
Net Revenues Less Expenditures 368,720 457,159 357,233
Unemployment
Revenues 58,498 67,949 68,430 482 0.7%
Expenditures 94,701 121,193 116,227 (4,966)-4.1%
Net Revenues Less Expenditures (36,203)(53,244)(47,796)
Workers Compensation
Revenues 420,709 507,779 631,358 123,579 24.3%
Expenditures 460,115 523,065 522,031 (1,033)-0.2%
Net Revenues Less Expenditures (39,406)(15,286)109,327
Employee Health & Wellness
Revenues 4,832,691 6,319,620 6,541,840 222,220 3.5%
Expenditures 5,717,742 5,611,864 5,215,949 (395,915)-7.1%
Net Revenues Less Expenditures (885,051)707,756 1,325,892
Liability Insurance
Revenues 724,092 941,878 1,117,423 175,546 18.6%
Expenditures 1,272,458 1,000,855 1,115,837 114,982 11.5%
Net Revenues Less Expenditures (548,366)(58,977)1,586
Property Insurance
Revenues 239,606 983,599 241,902 (741,697)-75.4%
Expenditures 220,288 409,540 254,676 (154,864)-37.8%
Net Revenues Less Expenditures 19,318 574,059 (12,774)
0
5,000,000
10,000,000
15,000,000
20,000,000
25,000,000
30,000,000
35,000,000
40,000,000
45,000,000
Special
Revenue Funds
Enterprise
Funds
Internal Service
Funds
Other Fund Revenues thru May
2018
2019
2020
0
5,000,000
10,000,000
15,000,000
20,000,000
25,000,000
30,000,000
35,000,000
40,000,000
45,000,000
Special
Revenue Funds
Enterprise
Funds
Internal
Service Funds
Other Fund Expenditures thru May
2018
2019
2020
Page 14 of 14
4.6.a
Packet Pg. 39
At
t
a
c
h
m
e
n
t
:
M
a
y
2
0
2
0
M
o
n
t
h
l
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
(
2
3
3
8
:
I
N
F
O
O
N
L
Y
:
M
a
y
F
i
n
a
n
c
i
a
l
R
e
p
o
r
t
)
FINANCE DEPARTMENT
Paula Painter, Finance Director
220 Fourth Avenue South
Kent, WA 98032
253-856-5264
DATE: July 14, 2020
TO: Kent City Council - Committee of the Whole
SUBJECT: Payment of Bills - Authorize
MOTION: Approve the payment of bills.
SUMMARY:
BUDGET IMPACT: None.
SUPPORTS STRATEGIC PLAN GOAL:
Sustainable Services - Providing quality services through responsible financial management,
economic growth, and partnerships.
4.7
Packet Pg. 40
OFFICE OF THE CITY ATTORNEY
Pat Fitzpatrick, City Attorney
220 Fourth Avenue South
Kent, WA 98032
253-856-5770
DATE: July 14, 2020
TO: Kent City Council - Committee of the Whole
SUBJECT: Ordinance Authorizing Fiber Franchise Agreement with
ExteNet Systems, Inc
INTRODUCTION OF Ordinance No. _____, authorizing a 10-year franchise
agreement with ExteNet Systems, Inc. for the installation of a fiber optic
network, subject to final terms and conditions acceptable to the City
Attorney.
SUMMARY: ExteNet Systems, Inc., is a telecommunications company that builds
communications infrastructure and has requested that the City grant it a franchise
to use the City’s rights-of-way to construct, operate and maintain the necessary
facilities for its fiber optic network. In addition to building a fiber optic network,
ExteNet also plans to deploy small cell facilities throughout the City on both Puget
Sound Energy utility poles and City-owned infrastructure. The installation of small
cell facilities will be authorized under separate agreements.
The City has the authority to grant non-exclusive franchises for the use of public
streets and other rights-of-way pursuant to RCW 35A.47.040.
This fiber franchise has a 10-year term and includes standard terms governing the
construction, operation and maintenance of ExteNet’s fiber optic network and
related equipment.
BUDGET IMPACT:
SUPPORTS STRATEGIC PLAN GOAL:
Innovative Government - Delivering outstanding customer service, developing leaders, and
fostering innovation.
Evolving Infrastructure - Connecting people and places through strategic investments in physical
and technological infrastructure.
ATTACHMENTS:
1. Ordinance - Franchise - ExteNet Fiber Franchise Including Ex A (PDF)
4.8
Packet Pg. 41
1 Fiber Franchise Authorized—
ExteNet Systems, Inc.
ORDINANCE NO.
AN ORDINANCE of the City Council of the
City of Kent, Washington, granting ExteNet
Systems, Inc. a 10-year non-exclusive fiber
franchise, and authorizing the Mayor to sign all
documents necessary to implement the full terms
of the negotiated agreement.
RECITALS
A. ExteNet Systems, Inc., a Delaware corporation,
(“Franchisee”) has requested that the City Council grant it a non-exclusive
franchise to construct, maintain and operate a telecommunications
network in the City’s right-of-way. This franchise does not authorize the
installation of small cells. ExteNet will enter into separate agreements with
the City for the installation of small cells.
B. RCW 35A.47.040 allows the City to grant nonexclusive
franchises to utility and cable providers for their use of City right of way,
but provides a franchise may not be adopted until at least five days have
passed after the franchise is first introduced to the City Council. This
franchise was first introduced to Council at its regular meeting on July 21,
2020. Thereafter, it was presented to Council a second time at its regular
meeting on August 4, 2020. Through this ordinance, Council grants a 10-
year fiber franchise to ExteNet and authorizes the Mayor to sign all
documents necessary to fully implement the agreement negotiated
between the City and ExteNet.
4.8.a
Packet Pg. 42
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
2 Fiber Franchise Authorized—
ExteNet Systems, Inc.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
ORDINANCE
SECTION 1. – Franchise Granted. The Fiber Franchise Agreement
between the City of Kent and ExteNet Systems, Inc., substantially in the
form attached and incorporated as Exhibit A, is hereby granted. Upon
ExteNet’s acceptance of the Fiber Franchise Agreement, the Mayor is
authorized to execute the same on behalf of the City of Kent, subject to
those changes that are not material in nature and may be authorized by
the City Attorney.
SECTION 2. – Mayoral Authorization. The Mayor is further
authorized to execute all documents necessary to implement the full terms
of the negotiated franchise.
SECTION 3. – 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 4. – Effective Date. This ordinance, being an exercise of
a power specifically delegated to the City’s legislative body, is not subject
to referendum. It shall be published and will take effect thirty (30) days
after its passage. The Fiber Franchise Agreement, however, shall become
effective only upon its acceptance by ExteNet Systems, Inc. and execution
by the Mayor. Should ExteNet fail to timely file its written acceptance of
the Fiber Franchise Agreement, ExteNet will be deemed to have rejected
and repudiated the Fiber Franchise Agreement and the franchise will be
voidable by the City.
4.8.a
Packet Pg. 43
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
3 Fiber Franchise Authorized—
ExteNet Systems, Inc.
DANA RALPH, MAYOR Date Approved
ATTEST:
KIMBERLEY A. KOMOTO, CITY CLERK Date Adopted
Date Published
APPROVED AS TO FORM:
ARTHUR “PAT” FITZPATRICK, CITY ATTORNEY
4.8.a
Packet Pg. 44
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
EXHIBIT A
Fiber Franchise Agreement
4.8.a
Packet Pg. 45
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page i
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
EXTENET SYSTEMS, INC, AND THE CITY OF KENT, WASHINGTON
__________________________________
FIBER FRANCHISE AGREEMENT
TABLE OF CONTENTS
SECTION 1. DEFINITIONS..................................................................1
SECTION 2. FRANCHISE GRANTED..................................................... 2
SECTION 3. GRANT OF AUTHORITY LIMITED......................................3
SECTION 4. LOCATION OF FACILITIES...............................................4
SECTION 5. RELOCATION OF FACILITIES...........................................4
5.1 Relocation Requirement......................................................4
5.2 Relocation.........................................................................5
5.3 Locate..............................................................................5
5.4 Notice and Relocation Process............................................. 6
5.5 Alternative Arrangements................................................... 6
5.6 Contractor Delay Claims..................................................... 7
5.7 Indemnification..................................................................7
5.8 Moving of Buildings or Other Objects.................................... 7
5.9 City’s Costs.......................................................................7
5.10 Survival............................................................................7
SECTION 6. UNDERGROUNDING OF FACILITIES.................................8
SECTION 7. INFORMATION, INVENTORY AND RECORDS...................10
7.1 Information Request..........................................................10
7.2 Current Inventory.............................................................11
7.3 Inspection........................................................................11
7.4 Public Records Act.............................................................12
7.5 Annual Audit....................................................................13
SECTION 8. UNAUTHORIZED FACILITIES..........................................13
SECTION 9. WORK IN THE RIGHTS-OF-WAY.....................................14
SECTION 10. TREES............................................................................17
SECTION 11. ONE CALL LOCATOR SERVICE.........................................18
4.8.a
Packet Pg. 46
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page ii
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
SECTION 12. SAFETY REQUIREMENTS...............................................18
SECTION 13. WORK ON CONTRACTORS AND SUBCONTRACTORS.........19
SECTION 14. PROVISION OF CONDUIT AND DARK FIBER...................20
SECTION 15. RESTORATION AFTER CONSTRUCTION..........................21
SECTION 16. EMERGENCIES...............................................................22
SECTION 17. RECOVERY OF COSTS.....................................................24
SECTION 18. CITY’S RESERVATION OF RIGHTS..................................25
SECTION 19. INDEMNIFICATION; LIABILITY......................................26
19.1 General Indemnification.....................................................26
19.2 Indemnification for Relocation............................................27
19.3 Procedures and Defense.....................................................27
19.4 Avoidance........................................................................28
19.5 Expenses.........................................................................28
19.6 RCW 4.24.115..................................................................28
19.7 Survival...........................................................................29
SECTION 20. INSURANCE...................................................................29
20.1 Policies............................................................................29
20.2 Deductible/Certificate of Insurance......................................30
20.3 Requirements...................................................................30
20.4 Acceptability of Insurers....................................................30
20.5 Verification of Coverage.....................................................31
20.6 Maintenance of Insurance..................................................31
SECTION 21. ABANDONMENT OF FRANCHISEE’S
TELECOMMUNICATIONS NETWORK...........................................................31
SECTION 22. BONDS...........................................................................32
22.1 Construction Guarantee.....................................................32
22.2 Maintenance Guarantee.....................................................33
22.3 Franchise Bond.................................................................33
22.4 Form of Bonds..................................................................34
SECTION 23. REMEDIES TO ENFORCE COMPLIANCE............................34
SECTION 24. REVOCATION.................................................................36
4.8.a
Packet Pg. 47
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page iii
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
SECTION 25. NON-WAIVER................................................................36
SECTION 26. POLICE POWERS AND CITY REGULATIONS....................36
SECTION 27. COST OF PUBLICATION..................................................37
SECTION 28. ACCEPTANCE.................................................................37
SECTION 29. SURVIVAL......................................................................37
SECTION 30. ASSIGNMENT AND CHANGES OF OWNERSHIP OR
CONTROL..................................................................................................38
SECTION 31. ENTIRE AGREEMENT......................................................39
SECTION 32. EMINENT DOMAIN.........................................................39
SECTION 33. VACATION.....................................................................40
SECTION 34. NOTICE..........................................................................40
SECTION 35. SEVERABILITY...............................................................40
SECTION 36. COMPLIANCE WITH ALL APPLICABLE LAWS...................41
SECTION 37. ATTORNEY’S FEES..........................................................41
SECTION 38. HAZARDOUS SUBSTANCES.............................................42
SECTION 39. LICENSES, FEES AND TAXES..........................................42
SECTION 40. MISCELLANEOUS...........................................................43
4.8.a
Packet Pg. 48
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 1
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
EXTENET SYSTEMS, INC., AND THE CITY OF KENT, WASHINGTON
____________________________________
FIBER FRANCHISE AGREEMENT
SECTION 1. – Definitions. In addition to terms otherwise defined herein,
the following definitions shall apply generally to the provisions of this Franchise.
1.1 Director means the Public Works Director or designee.
1.2 Emergency means a condition posing an imminent threat to property, life,
health, or safety of any person or entity.
1.3 Facilities mean one or more elements of Franchisee’s telecommunications
network, with all necessary cables, wires, conduits, ducts, pedestals, antennas,
electronics, and other necessary appurtenances; except that new utility poles or
towers for overhead wires, cabling or antennas are specifically excluded. Facilities
shall not include microcells or small cells to be owned or operated by Franchisee.
Equipment enclosures with air conditioners or other noise generating equipment are
also excluded from Facilities, to the extent any such equipment is located in zoned
residential areas of the City.
1.4 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. Right-of-Way does not include railroad right-of-way, airports,
harbor areas, buildings, parks, poles, conduits, open spaces, nature trails, poles,
dedicated but un-opened right-of-way, environmentally sensitive areas and any
4.8.a
Packet Pg. 49
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 2
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
land, facilities, or property owned, maintained, or leased by the City in its
governmental or proprietary capacity or as an operator of a utility.
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 ten (10) years, beginning on the effective
date of this Franchise.
2.2 This Franchise grants Franchisee the right, privilege, and authority to
construct, operate, maintain, replace, relocate, restore, upgrade, remove,
excavate, acquire, sell, lease, and use all necessary Facilities for a
telecommunications network in, under, on, across, over, through, along or below
the public Rights-of-Ways located in the City, and any areas added to the corporate
limits of the City during the term of this Franchise (the “Franchise Area”). All
Facilities require City permits issued pursuant to Section 9.3.
2.3 This Franchise shall not prevent the City from granting other or further
franchises in, along, over, through, under, below, or across any Rights-of-Way.
This Franchise shall not prevent or prohibit the City from using any Rights-of-Way
or affect its jurisdiction over any Rights-of-Way or any part of Right-of-Way. The
City shall retain power to make all necessary changes, relocations, repairs,
maintenance, establishment, improvement, dedication of Right-of-Way as the City
deems fit, including the dedication, establishment, maintenance, and improvement
of all new Rights-of-Way, thoroughfares, and other public properties of every type
and description.
4.8.a
Packet Pg. 50
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 3
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
SECTION 3. – Grant of Authority Limited.
3.1 The authority granted by this Franchise is a limited, non-exclusive
authorization to occupy and use the City’s Rights-of-Way. Franchisee represents
that it currently provides or intends to provide the following services within the
City: data transport, internet access, and local and long distance voice services,
including IP voice services, cell site fronthaul and backhaul and Facilities leasing to
third parties, and all other such regulated services that the Washington
Transportation and Utilities Commission has authorized Franchisee to offer and
provide as well as all other such non-regulated and lawful services that the
Franchisee may now or in the future offer (the “Services”). If Franchisee desires to
expand the regulated Services provided within the City, it shall provide written
notification of the addition of such regulated services prior to the addition of the
regulated service or within a reasonable time (not to exceed ninety (90) days) after
such regulated services are offered; except that Franchisee may not offer Cable
Services as that term is defined in 47 U.S.C. § 522(6).
3.2 Nothing within this Franchise shall be construed to grant or convey any right,
title, or interest in the Rights-of-Way of the City to Franchisee other than for the
purpose of providing the Services.
3.3 This Franchise does not and shall not convey any right to Franchisee to install
its Facilities on, under, over, across, or to otherwise use City owned or leased
properties of any kind outside of the incorporated area of the City or to install
Facilities on, under, over, across, or otherwise use any City owned or leased
property other than the City’s Rights-of-Way. This Franchise does not convey any
right to Franchisee to install its Facilities on, under, over, or across any facility or
structure owned by a third-party without such written approval of the third-party.
4.8.a
Packet Pg. 51
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 4
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
3.4 Franchisee is authorized without prior City approval, to offer or provide
capacity or bandwidth, leased fiber or leased conduits or any other Services set
forth in Section 3.1 to its customers consistent with this Franchise provided:
a. Franchisee at all times retains exclusive control over its
telecommunications system, Facilities and Services and remains
responsible for constructing, installing, and maintaining its Facilities
pursuant to the terms and conditions of this Franchise;
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
d. No such customer or lessee that accesses Franchisee’s
telecommunications Facilities within the City limits may use the
telecommunications system or Services for any purpose not authorized
by this Franchise, unless that customer has a franchise agreement
with the City and then the customer may use Franchisee’s Facilities or
Services consistent with the terms of its franchise.
SECTION 4. – Location of Facilities. Franchisee may locate its Facilities
anywhere within the Franchise Area consistent with the City’s Design and
Construction Standards and subject to the City’s applicable permit requirements.
Franchisee shall not be required to amend this Franchise to construct or acquire
Facilities within the Franchise Area.
SECTION 5. – Relocation of Facilities.
5.1 Relocation Requirement. Franchisee agrees to protect, support, temporarily
disconnect and then reconnect, relocate, or remove from any rights-of-way any of
its Facilities when reasonably required by the City by reason of traffic conditions,
public safety, dedications of new Rights-of-Way, the establishment and
4.8.a
Packet Pg. 52
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 5
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
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 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 Facilities are on poles
owned by third parties, the City shall not be responsible for any costs associated
with requests for relocation which the City makes solely for aesthetic purposes and
where such request arises out of a Public Improvement.
5.3 Locate. Upon written request of the City, or a third party performing work in
the Right-of-Way, and in order to facilitate the design of City street and Right-of-
Way improvements, Franchisee agrees, at its sole cost and expense, to locate, and
if determined necessary by the City, to excavate and expose its Facilities for
inspection so that the Facilities’ location may be taken into account in the
improvement design. The decision as to whether any Facilities need to be relocated
in order to accommodate the Public Improvement shall be made by the City upon
review of the location and construction of Franchisee’s Facilities. The City shall
provide Franchisee at least fourteen (14) calendar days’ written notice prior to any
excavation or exposure of Facilities. Franchisee shall be responsible for any delays
due to failure to locate its Facilities when requested, except that Franchisee shall
4.8.a
Packet Pg. 53
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 6
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
not be responsible for delays or damages due to circumstances beyond the control
of the Franchisee.
5.4 Notice and Relocation Procedure. If the City determines that the Public
Improvement necessitates the relocation of Franchisee’s existing Facilities, the City
shall:
a. At least ninety (90) calendar days prior to commencing the Public
Improvement, 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 Public
Improvement, provide Franchisee with copies of pertinent portions of
the plans and specifications for the improvement project and a
proposed location for Franchisee’s Facilities so that Franchisee may
relocate its Facilities in other City Rights-of-Way in order to
accommodate such improvement project; and
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 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
4.8.a
Packet Pg. 54
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 7
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
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 Improvement 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 Improvement.
5.7 Indemnification. Franchisee will indemnify, hold harmless, and pay the costs
of defending the City, in accordance with the provisions of Section 19.
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.
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 17.3 and 17.4.
4.8.a
Packet Pg. 55
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 8
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
5.10 Survival. The provisions of this Section 5 shall survive the expiration or
termination of this Franchise during such time as Franchisee continues to have
Facilities in the Rights-of-Way.
SECTION 6. – Undergrounding of Facilities.
6.1 Franchisee shall install all wires, cables or other facilities underground
(unless specifically authorized by permit of the City) in the manner required by the
City as described in chapter 7.10, Kent City Code, where all other utilities are
required to underground. Unless otherwise permitted by the City, Franchisee shall
also underground its Facilities in all new developments and subdivisions and in any
development or subdivision where utilities are currently underground. Except as
specifically authorized by the City, Franchisee shall not erect poles or run or
suspend wires, cables, or any other facilities on existing poles.
6.2 Franchisee acknowledges and agrees that if the City does not require the
undergrounding of its Facilities at the time of a permit application, the City may, at
any time in the future, require that the Franchisee to underground its Facilities at
Franchisee’s expense.
6.3 If the City requires the undergrounding of the aerial utilities in any area of
the City, Franchisee shall underground its aerial Facilities in the manner specified
by the City, concurrently with and in the area of the other affected utilities. The
location of any relocated and underground utilities shall be approved by the City.
Where other utilities are present and involved in the undergrounding project,
Franchisee shall only be required to pay its fair share of common costs borne by all
utilities, in addition to the costs specifically attributable to the undergrounding of
Franchisee’s own Facilities. “Common costs” shall include necessary costs not
specifically attributable to the undergrounding of any particular facility, such as
costs for common trenching and utility vaults. “Fair share” shall be determined for
4.8.a
Packet Pg. 56
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 9
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
a project on the basis of the number of conduits of Franchisee’s Facilities being
undergrounded in comparison to the total number of conduits of all other utility
facilities being undergrounded. This Section 6.3 shall only apply to the extent
Franchisee has existing aerial Facilities in the City or is specifically authorized to
build aerial Facilities by the City.
6.4 Within forty-eight (48) hours (excluding weekends and City-recognized
holidays) following a request from the City, Franchisee shall, at its sole cost and
expense, locate underground Facilities by marking the location on the ground. The
location of the underground Facilities shall be identified using orange spray paint,
unless otherwise specified by the City, and within two feet of the actual location.
6.5 Franchisee shall be entitled to reasonable access to open utility trenches,
provided that such access does not interfere with the City’s placement of utilities or
increase the City’s costs. Franchisee shall pay the City’s actual costs resulting from
providing Franchisee access to an open trench, including without limitation the pro
rata share of the costs of access to an open trench and any costs associated with
the delay of the completion of a public works project. Franchisee shall reimburse
the City in accordance with the provisions of Section 17.3 and Section 17.4.
6.6 Franchisee shall not remove any underground cable or conduit that requires
trenching or other opening of the Rights-of-Way along the extension of cable to be
removed, except as provided in this Section 6.6. Franchisee may remove any
underground cable from the Right-of-Way that can be removed without trenching or
other opening of the Right-of-Way along the extension of cable to be removed, or if
otherwise permitted by the City. Franchisee may remove any underground cable
from the Rights-of-Way where reasonably necessary to replace, upgrade, or
enhance its Facilities, or pursuant to Section 5. Franchisee must apply and receive
a permit, pursuant to Section 9.3, prior to any such removal of underground cable
4.8.a
Packet Pg. 57
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 10
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
or conduit from the Right-of-Way and must provide as-built plans and maps
pursuant to Section 7.
6.7 When the City determines, in the City’s sole discretion, that Franchisee’s
underground Facilities must be removed in order to eliminate or prevent a
hazardous condition, Franchisee shall remove the Facilities at Franchisee’s sole cost
and expense.
6.8 Underground cable and conduit in the Right-of-Way that is not removed will
be deemed abandoned and title thereto shall vest in the City at no cost to the City.
The City may also pursue any available remedy set forth in Section 5 and Section
23.
6.9 The provisions of this Section 6 shall survive the expiration, revocation, or
termination of this Franchise during such time as Franchisee continues to have
Facilities in the Rights-of-Way. Nothing in this Section 6 shall be construed as
requiring the City to pay any costs of undergrounding any of 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 Facilities in the City. Franchisee shall warrant the
accuracy of all information provided to the City.
4.8.a
Packet Pg. 58
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 11
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
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. Franchisee shall maintain a current inventory of Facilities
throughout the Term of this Franchise. Franchisee shall provide to City a copy of
the inventory report no later than one hundred eighty (180) calendar days after the
effective date of this Franchise, and an updated inventory report shall be provided
by December 31 of each year and within thirty (30) calendar days of a reasonable
request by the City. The inventory report shall include a route map of those basic
portions of the fiber system that are located within the Right-of-Way and be in a
digital format. The inventory report shall include the vertical and horizontal
location of the facilities, including the height from the bottom of the pole to the
fiber or depth below the finished surface. The format of the data for overlaying on
the City’s GIS mapping system shall utilize NAD 83 HARN State Plane as the
horizontal datum.
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
4.8.a
Packet Pg. 59
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 12
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
City requests in conjunction with a tax audit or review; provided, however,
Franchisee may redact identifying information such as names, street addresses
(excluding City and zip code), Social Security Numbers, or Employer Identification
Numbers related to any confidentiality agreements Franchisee has with third
parties.
7.4 Public Records Act.
a. Franchisee acknowledges that information submitted to the City is
subject to the Washington Public Records Act, chapter 42.56 RCW, and
is open to public inspection, subject to any exceptions permitted by
law (i.e., unless an exemption applies).
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 conspicuously
identifying the work as confidential or proprietary, and shall provide a
brief written explanation as to why such information is confidential and
how it may be treated as such under State or federal law. The City
agrees to keep confidential any proprietary or confidential books or
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
4.8.a
Packet Pg. 60
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 13
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
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 injunction or court order and
such higher court action is or has become final and non-appealable,
Franchisee shall reimburse the City for any fines or penalties imposed
for failure to disclose such records within forty-five (45) 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 8. – Unauthorized Facilities. Any Facilities installed in the City
Right-of-Way that were not authorized under this Franchise or other required City
Approval (“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 (31st) 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
4.8.a
Packet Pg. 61
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 14
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
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 9. – Work in the Rights-of-Way.
9.1 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 9.3.
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.
9.2 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 9
shall survive the expiration of this Franchise during such time as Franchisee
continues to have Facilities in the Rights-of-Way.
4.8.a
Packet Pg. 62
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 15
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
9.3 Whenever Franchisee shall commence work in any public Rights-of-Way for
the purpose of excavation, installation, construction, repair, maintenance, or
relocation of its cable or equipment, it shall apply to the City for a permit to do so
and, in addition, shall give the City at least ten (10) working days prior notice of its
intent to commence work in the Rights-of-Way. All work by Franchisee in the area
shall be performed in accordance with applicable City standards and specifications
and warranted for a period of two (2) years, normal wear and tear excepted. In no
case shall any work commence within any Rights-of-Way without a permit, except
as otherwise provided in this Franchise.
9.4 If either the City or Franchisee plans to make excavations in any area
covered by this Franchise and as described in this Section 9.4, 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
c. The initiating party may deny such request for safety reasons.
9.5 Except for emergency situations, Franchisee shall give at least seven (7)
days’ prior written notice of intended construction to residents with in 100 feet of
the construction area. This notice shall contain the dates, contact number, nature
and location of the work to be performed; a door hanger is permissible. At least
twenty-four (24) hours prior to entering private property or streets or public
easements adjacent to or on such private property, Franchisee shall physically post
a notice on the property indicating the nature and location of the work to be
performed; a door hanger is permissible. Nothing in this Franchise gives the
Franchisee the right to enter onto private property without the permission of the
private property owner.
4.8.a
Packet Pg. 63
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 16
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
9.6 Franchisee shall make a good faith effort to comply with the property
owner/resident’s preferences, if any, on location or placement of underground
installations (excluding aerial cable lines utilizing existing poles and existing cable
paths), consistent with sound engineering practices. Following performance of the
work, Franchisee shall restore the private property as nearly as possible to its
condition prior to construction, except for any change in condition not caused by
Franchisee. Any disturbance of landscaping, fencing, or other improvements on
private property caused by Franchisee’s work shall, at the sole expense of
Franchisee, be promptly repaired and restored to the reasonable satisfaction of the
property owner/resident.
9.7 Franchisee shall at all times comply with the safety requirements contained
in Section 12 and all applicable federal, State and local safety requirements.
9.8 Upon prior written notice from the City, Franchisee shall meet with the City
and other franchise holders to schedule and coordinate construction in the Rights-
of-Way. To minimize public inconvenience, disruption or damage, the Franchisee
shall coordinate all construction locations, activities, and schedules as directed by
the City.
9.9 Franchisee acknowledges that it shall be solely responsible for compliance
with all applicable marking and lighting requirements of the FAA and the FCC with
respect to Franchisee’s Facilities. Franchisee shall indemnify 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
4.8.a
Packet Pg. 64
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 17
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
collect all reasonable costs from Franchisee in accordance with the provisions of
Section 17.3 and Section 17.4; (2) collect damages pursuant to Section 23.2; and
(3) revoke this Franchise pursuant to Section 24. 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 10. – Trees.
10.1 Franchisee may trim trees upon and overhanging on public ways, 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 10.1 only applies to the extent necessary to protect above
ground Facilities. Franchisee shall ensure that its tree trimming activities protect
the appearance, integrity, and health of the trees to the extent reasonably possible.
Franchisee shall be responsible for all debris removal from such activities.
10.2 Upon written request of the Director, Franchisee shall prepare and maintain a
tree trimming schedule to ensure compliance with this Section 10.2 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.
10.3 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. Franchisee shall be solely responsible and liable for
4.8.a
Packet Pg. 65
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 18
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
any damage to any third parties’ trees or natural growth caused by Franchisee’s
actions. Franchisee shall indemnify, defend and hold harmless the City from claims
of any nature arising out of any act or negligence of Franchisee with regard to tree
and/or natural growth trimming, damage, and/or removal. Franchisee shall
reasonably compensate the City or the property owner for any damage caused by
trimming, damage, or removal by Franchisee. 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.
SECTION 11. – One Call Locator Service. Prior to doing any work in the
Rights-of-Way, the 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. 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 accurately 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 12. – Safety Requirements.
12.1 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-
Ways, wherever situated or located, shall at all times be kept and maintained in a
safe condition. Franchisee shall comply with all applicable 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
4.8.a
Packet Pg. 66
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 19
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
not limitation, Franchisee shall also comply with the applicable provisions of the
National Electric Code, National Electrical Safety Code, FCC regulations, and
Occupational Safety and Health Administration (OSHA) Standards. Upon
reasonable notice to Franchisee, the City reserves the general right to inspect the
Facilities to evaluate if they are constructed and maintained in a safe condition.
12.2 If an unsafe condition or a violation of Section 12.1 is found to exist, and
becomes known to the City, the City agrees to give Franchisee written notice of any
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 the 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
Section 17.3 and Section 17.4.
12.3 Additional safety standards include:
a. Franchisee shall endeavor to maintain all equipment lines and facilities
in an orderly manner, including, but not limited to, the removal of all
bundles of unused cable.
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 protect any opening or obstruction in the Rights-
of-Way or other public places made by Franchisee in the course of its
operations with adequate barriers, fences, or boarding, the bounds of
which, during periods of dusk and darkness, shall be clearly marked
and visible at night.
4.8.a
Packet Pg. 67
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 20
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
SECTION 13. – 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 is 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 laws.
SECTION 14. – Provision of Conduit and Dark Fiber.
14.1 The City may request that Franchisee provide the City with a single inch and
a quarter (1.25”) conduit, and related structures necessary to access the conduit
pursuant to RCW 35.99.070 in one or more of the locations where Franchisee
constructs, installs or relocates Facilities underground. If requested by the City,
such conduit shall be provided at Franchisee’s incremental cost for providing the
conduit and shall only be used for the City’s own internal use and shall not be
resold, leased, exchanged to any third party. Franchise shall install a locator wire
and cap off all conduit ends. Conduit ends shall be marked on the as-built plans
and maps required in Section 7. Any conduit delivered to the City pursuant to this
Section will become property of the City, and Franchisee will have no ongoing
maintenance, liability or other obligations to the City or any third party with respect
to such conduit. Should City request any conduit as contemplated in this Section,
City must make the request in writing prior to issuance of the permit to Franchisee
and the parties will negotiate a separate agreement.
14.2 Except in emergency situations, Franchisee shall provide the Director with at
least thirty (30) days’ advance written notice of any construction, relocation, or
placement of ducts or conduits in the Rights-of-Way and provide the City an
4.8.a
Packet Pg. 68
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 21
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
opportunity to request that Franchisee provide the City with additional duct or
conduit, and related structures necessary to access the conduit pursuant to RCW
35.99.070. This notification shall be in addition to the requirement to apply for and
obtain permits pursuant to Section 9.3.
SECTION 15. – Restoration after Construction.
15.1 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 21, within thirty
(30) days following the date of any of these activities at Franchisee’s sole cost and
expense. Franchisee shall restore the Rights-of-Way and the surface of the Rights-
of-Way to the same or better condition as it was immediately prior to any
installation, construction, relocation, maintenance or repair by Franchisee.
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.
15.2 Franchisee agrees to complete all restoration work to the Franchise Area or
other affected area at its sole costs and expense and according to the time and
terms specified in the construction permit issued by the City. Franchisee also
agrees to repair any damage caused by work to the Franchise Area within fourteen
(14) days unless otherwise approved by the Director. All work by Franchisee
pursuant to this Franchise shall be performed in accordance with applicable City
4.8.a
Packet Pg. 69
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 22
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
standards and warranted for a period of two (2) years and for undiscovered defects
as is standard and customary for this type of work.
15.3 If conditions (e.g., weather) make the complete restoration required under
this Section 15 impracticable, Franchisee shall temporarily restore the affected
Right-of-Way or property at its sole cost and expense. Franchisee shall promptly
undertake and complete the required permanent restoration as soon as conditions
no longer make such permanent restoration impracticable.
15.4 If Franchisee does not repair a Right-of-Way or an improvement in or to a
Right-of-Way within the time prescribed by this Section 15, the City may repair the
damage and shall be reimbursed its actual cost within sixty (60) days of submitting
an itemized invoice to Franchisee in accordance with the provisions of Section 17.3
and Section 17.4. The City may also bill Franchisee for any expenses associated
with the inspection of such restoration work.
15.5 The provisions of this Section 15 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 16. – Emergencies.
16.1 In the event of any emergency in which any of Franchisee’s Facilities located
in or under any street endangers the property, life, health, or safety of any person,
entity or the City, or if Franchisee’s construction area 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 repair its Facilities and 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
4.8.a
Packet Pg. 70
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 23
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
permit as required by this Franchise. The Franchisee shall apply for any necessary
permits on the next day Kent City Hall is open for business.
16.2 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, an
adjoining public place, street utilities, City property, Rights-of-Way, or private
property (collectively “Endangered Property”) or endangers the public, the Director
may direct Franchisee, at Franchisee’s own expense, to take reasonable action to
protect the Endangered Property or the public within a prescribed time. If
Franchisee fails or refuses to promptly take the actions directed by the City, or fails
to fully comply with such directions, or if an emergency situation exists that
requires immediate action before the City can timely contact Franchisee to request
Franchisee effect the immediate repair, the City may enter upon the Endangered
Property and take such reasonable actions as are necessary to protect the
Endangered Property or the public. Franchisee shall be liable to the City for the
costs of any such repairs in accordance with the provisions of Sections 17.3 and
17.4.
16.3 The City shall not be liable for any damage to or loss of Facilities within the
Rights-of-Way as a result of or in connection with any public works, public
improvements, construction, grading, excavation, filling, or work of any kind in the
Rights-of-Way by or on behalf of the City, unless directly and proximately caused
by the negligence or willful acts of the City, its employees, contractors, or agents.
The City shall further not be liable to Franchisee for any direct, indirect, or any
other such damages suffered by any person or entity of any type as a direct or
indirect result of the City’s actions under this Section 16 unless caused by the
negligence or willful acts of the City, its employees, contractors, or agents.
4.8.a
Packet Pg. 71
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 24
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
16.4 Franchisee shall promptly reimburse the City in accordance with the
provisions of Section 17.3 and Section 17.4 for any and all costs the City
reasonably incurs in response to any emergency situation involving Franchisee’s
Facilities, to the extent said 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 17. – Recovery of Costs.
17.1 Franchisee shall reimburse the City for its actual and documented
administrative, legal, and other costs incurred in drafting and processing this
Franchise and all work related thereto pursuant to RCW 35.21.860(1)(b), in an
amount not to exceed $6,000.00. No construction permits shall be issued for the
installation of Facilities authorized until the City has received this reimbursement.
17.2 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 17.3.
17.3 Franchisee shall reimburse the City within sixty (60) days of submittal by the
City of an itemized billing for reasonably incurred costs, itemized by project, for
Franchisee’s proportionate share of all actual, identified expenses incurred by the
City in planning, constructing, installing, repairing, altering, or maintaining any City
facility as the result of the presence of Franchisee’s Facilities in the Rights-of-Way.
Such costs and expenses shall include but not be limited to Franchisee’s
4.8.a
Packet Pg. 72
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 25
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
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.
17.4 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.
SECTION 18. – City’s Reservation of Rights.
18.1 Franchisee represents that its Services, as authorized under this Franchise,
are a telephone business as defined in RCW 82.16.010, or that it is a service
provider as used in RCW 35.21.860 and defined in RCW 35.99.010. As a result, the
City will not impose franchise fees under the terms of this Franchise. The City
reserves its right to impose a franchise fee on Franchisee if Franchisee’s Services as
authorized by this Franchise change such that the statutory prohibitions of RCW
35.21.860 no longer apply or if statutory prohibitions on the imposition of such fees
are otherwise removed. The City also reserves its right to require that Franchisee
obtain a separate franchise for a change in use, which franchise may include
provisions intended to regulate Franchisee’s operations as allowed under applicable
law. Nothing contained within this Franchise shall preclude Franchisee from
4.8.a
Packet Pg. 73
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 26
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
challenging any fee, this Franchise, or separate agreement under applicable federal,
State, or local laws.
18.2 Franchisee acknowledges that certain of its operations within the City may
constitute a telephone business subject to the utility tax imposed pursuant to
chapter 3.18, Kent City Code. Franchisee understands that RCW 35.21.870
currently limits the rate of city tax upon telephone business activities to six percent
(6%) of gross income (as that term is defined in chapter 3.18, Kent City Code),
unless a higher rate is otherwise approved. Franchisee stipulates and agrees that
certain of its business activities may be subject to taxation as a telephone business
and that Franchisee shall pay to the City the rate applicable to such taxable
services under chapter 3.18, 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, Kent City Code as may be
permitted by law. Nothing in this Section 18 is intended to alter, amend, modify or
expand the taxes and fees that may lawfully be assessed on Verizon’s business
activities under this franchise under applicable law.
SECTION 19. – Indemnification; Liability.
19.1 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
4.8.a
Packet Pg. 74
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 27
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
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.
19.2 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
negligence or willful misconduct contributing to 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.
19.3 Procedures and Defense. If a claim or action arises, the City or any other
indemnified party shall promptly notify Franchisee of such claim or action and
tender the defense of the claim or action to Franchisee, which defense shall be at
Franchisee’s expense. The City’s failure to so notify and request indemnification
shall not relieve Franchisee of any liability that Franchisee might have, except to
the extent that such failure prejudice Franchisee’s ability to defend such claim or
suit. The City may participate in the defense of a claim, but if Franchisee provides
a defense at Franchisee’s expense then Franchisee shall not be liable for any
attorneys’ fees, expenses, or other costs the City may incur if it chooses to
participate in the defense of a claim, unless and until separate representation as
described in Section 19.5 is required. In that event, the provisions of Section 19.5
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.
4.8.a
Packet Pg. 75
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 28
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
19.4 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 19.
b. The fact that Franchisee carries out any activities under this Franchise
through independent contractors shall not constitute an avoidance of
or defense to Franchisee's duty of defense and indemnification under
this subsection.
19.5 Expenses. If separate representation to fully protect the interests of both
parties is or becomes necessary, such as a conflict of interest between the City and
the counsel selected by Franchisee to represent the City, Franchisee shall pay, from
the date such separate representation is required forward, all reasonable expenses
incurred by the City in defending itself with regard to any action, suit, or proceeding
subject to indemnification by Franchisee. Provided, however, that in the event that
such separate representation is or becomes necessary, and the City desires to hire
counsel or any other outside experts or consultants and desires Franchisee to pay
those expenses, then the City shall be required to obtain Franchisee’s consent to
the engagement of such counsel, experts, or consultants, such consent not to be
unreasonably withheld. The City's expenses shall include all reasonable
out-of-pocket costs and expenses, such as consultants' fees and court costs, but
shall not include outside attorneys’ fees for services that are unnecessarily
duplicative of services provided the City by Franchisee, except in the event of a
conflict of interest where such duplication may be required. Each party agrees to
cooperate and to cause its employees and agents to cooperate with the other party
in the defense of any claim or action.
4.8.a
Packet Pg. 76
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 29
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
19.6 RCW 4.24.115. The parties acknowledge that this Franchise is subject to
RCW 4.24.115. Accordingly, 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 Franchisee and the City, its officers, officials, employees,
and volunteers, Franchisee’s liability shall be only to the extent of Franchisee’s
negligence. It is further specifically and expressly understood that the
indemnification provided constitutes Franchisee’s waiver of immunity under Title 51
RCW, solely for the purposes of this indemnification. This waiver has been mutually
negotiated by the parties.
19.7 Survival. The provisions of this Section 19 shall survive the expiration,
revocation, or termination of this Franchise.
SECTION 20. – Insurance.
20.1 Policies. 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 no less than
$5,000,000 per occurrence and $5,000,000 general aggregate.
Coverage shall be at least as broad as that provided by ISO CG 00 01
1/96 or its equivalent and include severability of interests. Such
insurance shall name the City, its officers, officials and employees as
additional insureds per ISO CG 2026 or its equivalent. There shall be
a waiver of subrogation and rights of recovery against the City, its
officers, officials and employees. Coverage shall apply as to claims
between insureds on the policy, if applicable. Coverage may take the
form of a primary layer and a secondary or umbrella layer, but the
combination of layers must equal $5,000,000 at a minimum.
b. Commercial Automobile Liability insurance with minimum combined
single limits of $5,000,000.00 each occurrence with respect to each of
4.8.a
Packet Pg. 77
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 30
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
Franchisee’s owned, hired and non-owned vehicles assigned to or used
in the operation of the Facilities in the City. The policy shall contain a
severability of interests provision.
c. Workers’ Compensation coverage as required by the Industrial
Insurance laws of the State of Washington and employer’s liability with
a limit of $1,000,000 each accident/disease/policy limit.
20.2 Deductibles/Certificate of Insurance. Any deductible of the policies shall not
in any way limit Franchisee’s liability to the City.
20.3 Requirements. All policies shall contain, or shall be endorsed so that:
a. The City, its officers, officials, boards, commissions, employees, and
agents are to be covered as, and have the rights of, additional
insureds with respect to liability arising out of activities performed by,
or on behalf of, Franchisee under this Franchise or Applicable Law, or
in the construction, operation or repair, or ownership of the Cable
System;
b. Franchisee's insurance coverage shall be primary insurance with
respect to the City, its officers, officials, boards, commissions,
employees, and agents. Any insurance or self-insurance maintained
by the City, its officers, officials, boards, commissions, employees, and
agents shall be in excess of the Franchisee's insurance and shall not
contribute to it; and
c. Franchisee's 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.
20.4 Acceptability of Insurers. The insurance obtained by Franchisee shall be
placed with insurers with a Best's rating of no less than "A VII."
4.8.a
Packet Pg. 78
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 31
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
20.5 Verification of Coverage. The Franchisee shall furnish the City with
certificates of insurance and endorsements or a copy of the page of the policy
reflecting blanket additional insured status. The certificates and endorsements for
each insurance policy are to be signed by a Person authorized by that insurer to
bind coverage on its behalf. The certificates and endorsements for each insurance
policy are to be on standard forms or such forms as are consistent with standard
industry practices.
20.6 Maintenance of Insurance. Franchisee’s maintenance of insurance as
required by this Section 20 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 21. – Abandonment of Franchisee’s Telecommunications
Network. Upon the expiration, termination, or revocation of the rights granted
under this Franchise, Franchisee shall remove all of its Facilities from the Rights-of-
Way within thirty (30) days of receiving written notice from the Director. The
Facilities, in whole or in part, may not be abandoned by Franchisee without written
approval by the City. Any plan for abandonment or removal of Franchisee’s
Facilities must be first approved by the Director, and all necessary permits must be
obtained prior to this work. The plan for abandonment shall include a proposal and
instruments for transferring ownership to the City. Any Facilities that are not
permitted to be abandoned in place and that are not removed within thirty (30)
days of receipt of City’s notice shall automatically become the property of the City.
Except that nothing contained within this Section 21 shall prevent the City from
compelling Franchisee to remove any such Facilities through judicial action when
the City has not permitted the Franchisee to abandon the Facilities in place. The
4.8.a
Packet Pg. 79
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 32
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
provisions of this Section 21 shall survive the expiration, revocation, or termination
of this Franchise.
SECTION 22. – Bonds.
22.1 Construction Guarantee. As a condition of performing work in the Right-of-
Way, the timely, complete, and faithful performance of all construction work in the
Right-of-Way shall be guaranteed in an amount equal to one hundred twenty five
percent (125%) of the cost estimate (prepared by a licensed contractor,
professional engineer, or architect) of the construction work, by either the
Franchisee or the Franchisee’s contractor performing the actual construction work.
The guarantee may be by performance bond or irrevocable letter of credit, or cash
deposit, as may be determined by the Franchisee or the Franchisee’s contractor. 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 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 guarantee as described in Section 22.2. Compliance with
the performance guarantee requirement of the City’s current Design and
Construction Standards shall satisfy the provisions of this Section 22.1.
4.8.a
Packet Pg. 80
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 33
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
22.2 Maintenance Guarantee. 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 22.1, whichever is greater. At six (6)-month intervals during
this maintenance period, the City will inspect the improvements and identify to
Franchisee any noted deficiencies. Franchisee will have thirty (30) days to correct
any deficiencies. The satisfactory correction of the work may commence a new two
(2)-year maintenance period for the improvements as corrected, as determined by
the City. The City will initiate collection against the financial guarantee if
deficiencies are not satisfactorily addressed by the end of the thirty (30)-day
response period. Compliance with the maintenance guarantee requirement of the
City’s current Design and Construction Standards shall satisfy the provisions of this
Section 22.2. Original financial guarantee amounts described in Section 22.1 and
this Section 22.2 may be reduced one time only prior to the maintenance period, at
the discretion of the City. If an extension to any associated permits are granted,
the financial guarantees may be increased based on an updated engineer’s cost
estimate or as determined by the City. Financial guarantees will be fully released
only after all final punchlist 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.
22.3 Franchise Bond. Franchisee shall provide 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 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
4.8.a
Packet Pg. 81
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 34
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
Franchisee and the bond any actual damages suffered by 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 22.4 will constitute a material breach of this Franchise, subject to the
notice and cure provisions of Section 23.2. Franchisee further agrees to replenish
the Franchise Bond within thirty (30) 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.
22.4 Form of Bonds. All bonds provided to the City under this Section 22 shall be
on forms provided by the City and with sureties registered with the Washington
State Insurance Commissioner or other financial institutions acceptable to the City.
SECTION 23. – Remedies to Enforce Compliance.
23.1 In addition to any other remedy provided in this Franchise, the City reserves
the right to pursue any remedy available at law or in equity to compel or require
Franchisee and/or its successors and assigns to comply with the terms of this
Franchise. The pursuit of any right or remedy by the City shall not prevent the City
from thereafter declaring a revocation for breach of the conditions. In addition to
any other remedy provided in this Franchise, Franchisee reserves the right to
pursue any remedy available at law or in equity to compel or require the City, its
officers, employees, volunteers, contractors and other agents and representatives,
to comply with the terms of this Franchise. Further, all rights and remedies
provided in this Franchise shall be in addition to and cumulative with any and all
other rights and remedies available to either the City or Franchisee. Such rights
and remedies shall not be exclusive, and the exercise of one or more rights or
4.8.a
Packet Pg. 82
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 35
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
remedies shall not be deemed a waiver of the right to exercise at the same time or
thereafter any other right or remedy. 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 provided by law, equity or otherwise, and nothing
contained in this Franchise shall be deemed or construed to effect any such waiver.
The parties reserve the right to seek and obtain injunctive relief with respect to this
Franchise to the extent authorized by applicable law. The execution of this
Franchise shall not constitute a waiver or relinquishment of this right. The parties
agree that if a party obtains injunctive relief, neither party shall be required to post
a bond or other security and the parties agree not to seek the imposition of such a
requirement.
23.2 If either party violates or fails to comply with any of the provisions of this
Franchise or a permit issued as required by Section 9.3, or should it fail to heed or
comply with any notice given to such party under the provisions of this Franchise
(the “Defaulting Party”), the other Party (the “Non-defaulting Party”) shall provide
the Defaulting Party with written notice specifying with reasonable particularity the
nature of any such breach and the Defaulting Party shall undertake all commercially
reasonable efforts to cure such breach within thirty (30) days of receipt of
notification. If the Non-defaulting Party reasonably determines the breach cannot
be cured within thirty (30) days, the Non-defaulting Party may specify a longer cure
period, and condition the extension of time on the Defaulting Party’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 the Defaulting
Party does not comply with the specified conditions, the Non-Defaulting Party may
pursue any available remedy at law or in equity as provided in Section 23.1, or in
the event Franchisee has failed to timely cure the breach, the City, at its sole
discretion, may elect to: (1) revoke this Franchise pursuant to Section 24; (2) claim
damages of Two Hundred Fifty Dollars ($250.00) per day against Franchisee (and
4.8.a
Packet Pg. 83
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 36
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
collect from the Franchise Bond if necessary); or (3) extend the time to cure the
breach if under the circumstances additional time is reasonably required.
SECTION 24. – Revocation. If Franchisee willfully violates or fails to
comply with any material provisions of this Franchise, the City may revoke this
Franchise after (1) providing at least thirty (30) days’ written notice to Franchisee
specifying the alleged violation or failure; and (2) holding a hearing before City
Council. This 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) days after the hearing, the Kent
City Council, on the basis of the record, shall 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 Kent 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 Kent City Council
does not grant any additional period, the Kent City Council may by resolution
declare the Franchise to be revoked and forfeited or impose lesser sanctions. If
Franchisee appeals revocation and termination, such revocation may be held in
abeyance pending judicial review by a court of competent jurisdiction, provided
Franchisee is otherwise in compliance with the Franchise.
SECTION 25. – Non-Waiver. The failure of either party to insist upon strict
performance of any of the covenants and agreements of this Franchise or to
exercise any option conferred in any one or more instances shall not be construed
to be a waiver or relinquishment of any such covenants, agreements, or option or
any other covenants, agreements or option.
SECTION 26. – Police Powers and City Regulations. Nothing within this
Franchise shall be deemed to restrict the City’s ability to adopt and enforce all
necessary and appropriate ordinances regulating the performance of the conditions
4.8.a
Packet Pg. 84
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 37
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
of this Franchise, including any valid ordinance made in the exercise of its police
powers in the interest of public safety and for the welfare of the public. The City
shall have the authority at all times to reasonably control by appropriate
regulations, consistent with 47 U.S.C. § 253, the location, elevation, manner of
construction, and maintenance of any Facilities by Franchisee, and Franchisee shall
promptly conform with all such regulations, unless compliance would cause
Franchisee to violate other requirements of law. The City reserves the right to
promulgate any additional regulations of general applicability as it may find
necessary in the exercise of its lawful police powers consistent with 47 U.S.C. §
253. In the event of a conflict between the provisions of this Franchise and any
other ordinance(s) enacted under the City’s police power authority, such other
ordinances(s) shall take precedence over this Franchise.
SECTION 27. – Cost of Publication. The cost of publication of this
Franchise shall be borne by Franchisee.
SECTION 28. – Acceptance. This Franchise may be accepted by
Franchisee by its filing with the City Clerk of an unconditional written acceptance,
within sixty (60) days from the City’s execution of this Franchise, in the form
attached as Exhibit A. Failure of Franchisee to so accept this Franchise shall be
deemed a rejection by Franchisee and the rights and privileges granted shall cease.
In addition, Franchisee shall file the certificate of insurance and the additional
insured endorsements obtained pursuant to Section 20, any construction
guarantees, if applicable, pursuant to Section 22.1, the Franchise Bond required
pursuant to Section 22.3, and the costs described in Section 17.1.
SECTION 29. – Survival. All of the provisions, conditions, and
requirements of Section 5, Section 6, Section 9, Section 15, Section 19, Section 21,
and this Section 29 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
4.8.a
Packet Pg. 85
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 38
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
statute, or by contract, and shall survive this Franchise, and any renewals or
extensions, to the extent provided for in those sections. All of the provisions,
conditions, regulations, and requirements contained in this Franchise shall further
be binding upon the 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 successors and assigns equally as if they were
specifically mentioned where Franchisee is named.
SECTION 30. – Assignment and Changes of Ownership or Control.
30.1 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, unless there is a change of control as
described in Section 30.2 to an entity that does not have the similar or better
financial worth, as Franchisee, as of the date of such assignment or change .
Franchisee shall provide prompt, written notice to the City of any such assignment.
In the case of transfer or assignment as security by mortgage or other security
instrument in whole or in part to secure indebtedness, such consent shall not be
required unless and until the secured party elects to realize upon the collateral. For
purposes of this Section 30, 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 the provisions of this Franchise.
30.2 Any transactions that singularly or collectively result in a change of more
than fifty percent (50%) of the: ultimate ownership or working control of
Franchisee, ownership or working control of the Facilities, ownership or working
4.8.a
Packet Pg. 86
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 39
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
control of affiliated entities having ownership or working control of Franchisee or of
the Facilities, or of control of the capacity or bandwidth of Franchisee’s Facilities,
shall be considered an assignment or transfer requiring City approval. Transactions
between affiliated entities are not exempt from City approval if there is a change in
control as described in the preceding sentence. Franchisee shall promptly notify
the City prior to any proposed change in, or transfer of, or acquisition by any other
party of control of Franchisee.
30.3 Franchisee may, without prior consent from the City: (1) lease the Facilities,
or any portion, to another person; (2) grant an indefeasible right of user interest in
the Facilities, or any portion, to another person; or (3) offer to provide capacity or
bandwidth in its Facilities to another person, provided further, that Franchisee shall
at all times retain exclusive control over its Facilities and remain fully responsible
for compliance with the terms of this Franchise. Franchisee’s obligation to remain
fully responsible for compliance with the terms under this Section 30.3 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 31. – Entire Agreement. This Franchise constitutes the entire
understanding and agreement between the parties as to the subject matter within
this Franchise and no other agreements or understandings, written or otherwise,
shall be binding upon the parties upon execution of this Franchise.
SECTION 32. – 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 Franchisee’s Facilities for the fair market value. In
determining the value of such Facilities, no value shall be attributed to the right to
occupy the area conferred by this Franchise.
4.8.a
Packet Pg. 87
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 40
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
SECTION 33. – Vacation. If at any time the City, by ordinance and in
accordance with applicable laws, 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 Franchisee in writing not less than
sixty (60) days before vacating all or any portion of any such area. The City will, if
practicable, reserve an easement for Franchisee’s telecommunications network
under the same terms and conditions as this Franchise at the location vacated by
City, and if not practicable, the City may, after sixty (60) days’ written notice to
Franchisee, terminate this Franchise with respect to such vacated area.
SECTION 34. – Notice. Any notice or information required or permitted to
be given to the parties under this Franchise shall be sent to the following addresses
unless otherwise specified by personal delivery, overnight mail by a nationally
recognized courier, or by U.S. certified mail, return receipt requested and shall be
effective upon receipt or refusal of delivery:
CITY OF KENT
Attn: City Clerk
220 Fourth Avenue South
Kent, WA 98032
Company Address:
EXTENET SYSTEMS, INC
Attn: CFO
3030 Warrenville Road, Suite 340
Lisle, Illinois 60532
With copy to General Counsel & COO at same address
Copy email to NOTICE@extenetsystems.com
SECTION 35. – 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
4.8.a
Packet Pg. 88
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 41
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
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, in which event either party may request
renegotiation of those remaining terms of this Franchise materially affected by such
court’s ruling.
SECTION 36. – Compliance with all Applicable Laws. Each party agrees
to comply with all present and future federal, state, and local laws, ordinances,
rules, and regulations. This Franchise is subject to ordinances of general
applicability enacted pursuant to the City’s police powers. The City reserves the
right at any time to amend this Franchise to conform to any 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, when such statute,
regulation, or ordinance necessitates this Franchise be amended in order to remain
in compliance with applicable laws, but only upon providing Franchisee with thirty
(30) 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 regarding 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, either party may pursue any available remedies at law or in equity.
Nothing shall preclude either party from challenging the lawfulness of any provision
of this Franchise under state or federal law.
SECTION 37. – Attorney’s Fees. If a suit or other action is instituted in
connection with any controversy arising out of this Franchise, each party shall pay
all its legal costs and attorney fees incurred in defending or bringing such claim or
lawsuit, including all appeals, in addition to any other recovery or award provided
4.8.a
Packet Pg. 89
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 42
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
by law; except that nothing in this section shall be construed to limit the City’s right
to indemnification under Section 19 of this Franchise.
SECTION 38. – Hazardous Substances. Franchisee shall not introduce or
use any hazardous substances (chemical or waste), in violation of any applicable
law or regulation, nor shall Franchisee allow any of its agents, contractors, or any
person under its control to do the same. Franchisee will be solely responsible for
and will defend, indemnify, and hold the City, its officers, officials, employees,
agents, and volunteers harmless from and against any and all claims, costs, and
liabilities including reasonable attorney fees and costs, arising out of or in
connection with the cleanup or restoration of the property to the extent caused by
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. Franchisee shall have only that responsibility or liability for
managing, monitoring, or abating a hazardous condition that it may have under
state or federal law and this Franchise shall not be interpreted to expand
Franchisee’s legal obligations relating to any pre-existing hazardous substances
undisturbed by Franchisee.
SECTION 39. – Licenses, Fees and Taxes. Prior to constructing any
Facilities or providing Services within the City, Franchisee shall obtain a business or
utility license from the City, if so required. Franchisee shall pay all applicable taxes
on personal property and Facilities owned or placed by Franchisee in the Rights-of-
Way and shall pay all applicable license fees, permit fees, and any applicable tax
unless documentation of exemption is provided to the City and shall pay utility
taxes and license fees properly imposed by the City under this Franchise. However,
nothing in this Franchise is intended to alter, amend, modify or expand the taxes
and fees that may lawfully be assessed on Franchisee’s business activities under
applicable law.
4.8.a
Packet Pg. 90
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 43
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
SECTION 40. – Miscellaneous.
40.1 The City and Franchisee respectively represent that their respective
signatories are duly authorized and have full right, power, and authority to execute
this Franchise on such party’s behalf.
40.2 This Franchise shall be construed in accordance with the laws of the State of
Washington. The United States District Court for the Western District of
Washington, and King County Superior Court have proper venue for any dispute
related to this Franchise.
40.3 Section captions and headings are intended solely to facilitate the reading of
this Franchise. These captions and headings shall not affect the meaning or
interpretation of the text within this Franchise.
40.4 Where the context so requires, the singular shall include the plural and the
plural includes the singular.
40.5 Franchisee shall be responsible for obtaining all other required 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.
40.6 This Franchise is subject to all applicable federal, State and local laws,
regulations and orders of governmental agencies as amended, including but not
limited to the Communications Act of 1934, as amended, the Telecommunications
Act of 1996, as amended, and the Rules and Regulations of the FCC. Neither the
City nor Franchisee waive any rights they may have under any such laws, rules or
regulations.
4.8.a
Packet Pg. 91
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 44
City of Kent – EXTENET SYSTEMS, INC
2020 Franchise Agreement
40.7 There are no third party beneficiaries to this Franchise.
40.8 This Franchise may be enforced at both law and in equity.
IN WITNESS WHEREOF, this Franchise is signed in the name of the City of
Kent, Washington this ____ day of ___________, 2020.
ATTEST: CITY OF KENT, WASHINGTON:
City Clerk Mayor
APPROVED AS TO FORM:
City Attorney
Accepted and approved this ____ day of _________, 2020.
ATTEST: EXTENET SYSTEMS, INC
Public Notary Name/Title:
4.8.a
Packet Pg. 92
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
EXHIBIT A
STATEMENT OF ACCEPTANCE
EXTENET SYSTEMS, INC, a Delaware corporation, (“ExteNet”) for itself, its
successors and assigns, accepts and agrees to be bound by all lawful terms,
conditions and provisions of the Franchise attached and incorporated by this
reference. ExteNet declares that it has carefully read the terms and conditions
of this Franchise and unconditionally accepts all of the terms and conditions of
the Franchise and agrees to abide by such terms and conditions. ExteNet has
relied upon its own investigation of all relevant facts and it has not been induced
to accept this Franchise and it accepts all reasonable risks related to the
interpretation of this Franchise.
ExteNet Systems, Inc., a Delaware corporation
By: _____________________ Date: _______________________
Name: ____________________
Title: ____________________
4.8.a
Packet Pg. 93
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
F
i
b
e
r
F
r
a
n
c
h
i
s
e
I
n
c
l
u
d
i
n
g
E
x
A
(
2
3
4
2
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
F
i
b
e
r
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
OFFICE OF THE CITY ATTORNEY
Pat Fitzpatrick, City Attorney
220 Fourth Avenue South
Kent, WA 98032
253-856-5770
DATE: July 14, 2020
TO: Kent City Council - Committee of the Whole
SUBJECT: Ordinance Authorizing Small Cell Franchise Agreement with
ExteNet Systems, Inc.
INTRODUCTION OF Ordinance No. _____, authorizing a 5-year franchise
agreement with ExteNet Systems, Inc. for the installation of small cell
facilities, subject to final terms and conditions acceptable to the City
Attorney.
SUMMARY: ExteNet Systems, Inc., is a telecommunications company that builds
communications infrastructure and has requested that the City grant it a franchise
to use the City’s rights-of-way to construct, operate and maintain small cell
facilities on utility poles. In addition to the installation of small cell facilities on
utility poles, ExteNet also plans to deploy small cell facilities throughout the City on
City-owned infrastructure and to build a fiber optic network. The installation of the
fiber optic network will be authorized under a separate franchise. The installation of
small cell facilities on City-owned infrastructure will be authorized administratively
through a Master License Agreement. Council adopted a template Master License
Agreement on January 28, 2020 and also authorized the administrative execution of
these agreements.
Like previous small cell franchises authorized by Council, this small cell franchise
has a 5-year term and includes standard terms governing the construction,
operation and maintenance of ExteNet’s small cell facilities.
The City has the authority to grant non-exclusive franchises for the use of public
streets and other rights-of-way pursuant to RCW 35A.47.040.
BUDGET IMPACT: None
SUPPORTS STRATEGIC PLAN GOAL:
Innovative Government - Delivering outstanding customer service, developing leaders, and
fostering innovation.
Evolving Infrastructure - Connecting people and places through strategic investments in physical
and technological infrastructure.
ATTACHMENTS:
4.9
Packet Pg. 94
1. Ordinance - Franchise - ExteNet Small Cell Francise Inc Ex A (PDF)
4.9
Packet Pg. 95
1 Small Cell Franchise Authorized—
ExteNet Systems, Inc.
ORDINANCE NO.
AN ORDINANCE of the City Council of the
City of Kent, Washington, granting ExteNet
Systems, Inc. a five-year non-exclusive small cell
franchise, and authorizing the Mayor to sign all
documents necessary to implement the full terms
of the negotiated agreement.
RECITALS
A. ExteNet Systems, Inc., a Delaware corporation,
(“Franchisee”) has requested that the City Council grant it a non-exclusive
franchise to construct, maintain, operate, repair, upgrade, remove, replace
and restore small cell networks in the City’s right-of-way.
B. RCW 35A.47.040 allows the City to grant nonexclusive
franchises to utility and cable providers for their use of City right of way,
but provides a franchise may not be adopted until at least five days have
passed after the franchise is first introduced to the City Council. This
franchise was first introduced to Council at its regular meeting on July 21,
2020. Thereafter, it was presented to Council a second time at its regular
meeting on August 4, 2020. Through this ordinance, Council grants a five-
year small cell franchise to ExteNet and authorizes the Mayor to sign all
documents necessary to fully implement the agreement negotiated
between the City and ExteNet.
C. Small cells are low-powered and low profile wireless base
stations that function like cells in a mobile wireless network and typically
4.9.a
Packet Pg. 96
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
2 Small Cell Franchise Authorized—
ExteNet Systems, Inc.
cover localized (smaller) areas. Wireless providers use small cells to provide
connectivity in areas where the coverage and capacity of traditional cell
towers are challenged by terrain or buildings and they also use small cells to
provide enhanced capacity to users (e.g., more data, more quickly). Because
they are smaller, small cells are often mounted to existing structures within
the right-of-way, such as utility poles and light poles.
D. Small cell facilities and networks will also be integral to the
deployment of the next generation of wireless service, known as “5G” or “5th
Generation.” Wireless providers and the Federal Communications Commission
claim that 5G will provide additional capacity in existing networks for
emergency service, increased data use, telecommuting, and the support of
Internet of Things applications.
E. The City embraces and supports small cell technology and the
advances the City expects it to provide, yet also has a fundamental role to
manage the rights-of-way fairly for the residents and tax-payers and protect
the City’s significant investments of time, resources and money in
construction, design standards and undergrounding of utilities. In order to
balance the deployment of new technology with the City’s role to manage the
rights-of-way, this franchise includes requirements to keep a detailed record
of small cell installations, to relocate facilities to accommodate public
improvement projects and penalties for unauthorized installations.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
ORDINANCE
4.9.a
Packet Pg. 97
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
3 Small Cell Franchise Authorized—
ExteNet Systems, Inc.
SECTION 1. – Franchise Granted. The Small Cell Franchise
Agreement between the City of Kent and ExteNet Systems, Inc.,
substantially in the form attached and incorporated as Exhibit A, is hereby
granted. Upon ExteNet’s acceptance of the Small Cell Franchise
Agreement, the Mayor is authorized to execute the same on behalf of the
City of Kent, subject to those changes that are not material in nature and
may be authorized by the City Attorney.
SECTION 2. – Mayoral Authorization. The Mayor is further
authorized to execute all documents necessary to implement the full terms
of the negotiated franchise.
SECTION 3. – 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 4. – Effective Date. This ordinance, being an exercise of a
power specifically delegated to the City’s legislative body, is not subject to
referendum. It shall be published and will take effect thirty (30) days after
its passage. The Small Cell Franchise Agreement, however, shall become
effective only upon its acceptance by ExteNet Systems, Inc. and execution
by the Mayor. Should ExteNet fail to timely file its written acceptance of
the Small Cell Franchise Agreement, ExteNet will be deemed to have
rejected and repudiated the Small Cell Franchise Agreement and the
franchise will be voidable by the City.
DANA RALPH, MAYOR Date Approved
ATTEST:
4.9.a
Packet Pg. 98
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
4 Small Cell Franchise Authorized—
ExteNet Systems, Inc.
KIMBERLEY A. KOMOTO, CITY CLERK Date Adopted
Date Published
APPROVED AS TO FORM:
ARTHUR “PAT” FITZPATRICK, CITY ATTORNEY
4.9.a
Packet Pg. 99
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
EXHIBIT A
Small Cell Franchise Agreement
4.9.a
Packet Pg. 100
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page i
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
EXTENET SYSTEMS, INC AND THE CITY OF KENT, WASHINGTON
__________________________________
SMALL CELL FRANCHISE AGREEMENT
TABLE OF CONTENTS
SECTION 1. DEFINITIONS..................................................................1
SECTION 2. FRANCHISE GRANTED......................................................2
SECTION 3. GRANT OF AUTHORITY LIMITED......................................3
SECTION 4. LOCATION OF FACILITIES...............................................5
SECTION 5. RELOCATION OF FACILITIES...........................................6
5.1 Relocation Requirement.......................................................6
5.2 Relocation.........................................................................6
5.3 Locate...............................................................................6
5.4 Notice and Relocation Process..............................................7
5.5 Alternative Arrangements....................................................7
5.6 Contractor Delay Claims......................................................8
5.7 Indemnification..................................................................8
5.8 Moving of Buildings or Other Objects.....................................8
5.9 City’s Costs........................................................................8
5.10 Survival.............................................................................9
SECTION 6. UNDERGROUNDING OF FACILITIES.................................9
6.1 No Installation of Small Cell Facilities in Undergrounded
Areas................................................................................9
6.2 Requirement to Remove Small Cell Facilities...........................9
6.3 Survival.............................................................................9
SECTION 7. INFORMATION, INVENTORY AND
RECORDS..................................................................................................10
7.1 Information Request..........................................................10
7.2 Current Inventory.............................................................10
7.3 Inspection........................................................................11
7.4 Public Records Act.............................................................12
7.5 Annual Audit....................................................................13
SECTION 8. WORK IN THE RIGHTS-OF-WAY.....................................13
4.9.a
Packet Pg. 101
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page ii
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
SECTION 9. TREES............................................................................15
SECTION 10. ONE CALL LOCATOR SERVICE.........................................16
SECTION 11. SAFETY REQUIREMENTS................................................17
SECTION 12. WORK OF CONTRACTORS AND SUBCONTRACTORS.........19
SECTION 13. RESTORATION AFTER CONSTRUCTION..........................19
SECTION 14. EMERGENCY WORK/DANGEROUS CONDITIONS.............21
SECTION 15. RECOVERY OF COSTS, TAXES AND FEES.........................22
SECTION 16. SMALL CELL FACILITIES – APPROVALS AND PERMITS...25
16.1 City Retains Approval Authority...........................................25
16.2 City Approvals and Permits.................................................25
SECTION 17. DESIGN STANDARDS.....................................................26
SECTION 18. UNAUTHORIZED FACILITIES..........................................26
SECTION 19. GRAFFITI ABATEMENT...................................................27
SECTION 20. EMISSIONS REPORTS....................................................27
SECTION 21. NO INTERFERENCE........................................................28
21.1 Interference with Public Facilities........................................28
21.2 Interference with Other Facilities.........................................29
SECTION 22. INDEMNIFICATION........................................................29
22.1 General Indemnification.....................................................29
22.2 Indemnification for Radio Frequency Emissions or Radiation....30
22.3 Indemnification for Relocation............................................30
22.4 Avoidance........................................................................31
22.5 Procedures and Defense.....................................................31
22.6 Payment of Fees and Costs................................................31
22.7 RCW 4.24.115..................................................................32
22.8 Assumption of Risk............................................................33
22.9 Survivial..........................................................................34
SECTION 23. INSURANCE...................................................................34
23.1 Insurance Limits...............................................................34
23.2 Deductible/Certificate of Insurance......................................34
23.3 Endorsements..................................................................35
4.9.a
Packet Pg. 102
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page iii
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
23.4 Acceptability of Insurers....................................................36
23.5 Verification of Coverage.....................................................36
23.6 Maintenance of Insurance..................................................36
SECTION 24. ABANDONMENT OF FRANCHISEE’S
TELECOMMUNICATIONS NETWORK...........................................................36
SECTION 25. BONDS...........................................................................38
25.1 Construction Guarantee.....................................................38
25.2 Maintenance Bond.............................................................39
25.3 Franchise Bond.................................................................40
25.4 Form of Bonds..................................................................40
SECTION 26. MODIFICATION.............................................................40
SECTION 27. REVOCATION.................................................................40
SECTION 28. REMEDIES TO ENFORCE COMPLIANCE............................41
SECTION 29. NON-WAIVER................................................................42
SECTION 30. POLICE POWERS AND CITY ORDINANCES......................42
SECTION 31. COST OF PUBLICATION..................................................43
SECTION 32. ACCEPTANCE.................................................................43
SECTION 33. SURVIVAL......................................................................43
SECTION 34. ASSIGNMENT.................................................................44
SECTION 35. EXTENSION...................................................................45
SECTION 36. ENTIRE AGREEMENT......................................................45
SECTION 37. EMINENT DOMAIN.........................................................45
SECTION 38. VACATION.....................................................................45
SECTION 39. NOTICE..........................................................................46
SECTION 40. SEVERABILITY...............................................................46
SECTION 41. COMPLIANCE WITH ALL APPLICABLE LAWS...................47
4.9.a
Packet Pg. 103
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page iv
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
SECTION 42. ATTORNEY’S FEES..........................................................47
SECTION 43. HAZARDOUS SUBSTANCES.............................................48
SECTION 44. LICENSES, FEES AND TAXES..........................................48
SECTION 45. MISCELLANEOUS...........................................................48
4.9.a
Packet Pg. 104
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 1
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
EXTENET SYSTEMS, INC AND THE CITY OF KENT, WASHINGTON
____________________________________
SMALL CELL FRANCHISE AGREEMENT
SECTION 1. - Definitions. In addition to terms otherwise defined herein,
the following definitions shall apply generally to the provisions of this Franchise.
1.1 “Director” means the Public Works Director or designee.
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 railroad right-of-way, airports, harbor areas, buildings, parks, poles,
conduits, open spaces, nature trails, dedicated but un-opened right-of-way,
undedicated streets and/or right-of-way, environmentally sensitive areas and any
land, facilities, or property owned, maintained, or leased by the City in its
governmental or proprietary capacity or as an operator of a utility.
1.3 “Small Cell Equipment” or “Small Cell Facilities” means Wireless
Telecommunications Facilities attached, mounted, or installed on a proprietary or
leased pole, excluding monopole towers, that is located in Right-of-Way and used to
provide “personal wireless service” as defined in Title 47, United States Code,
Section 332(c)(7)(C), including all future amendments.
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
4.9.a
Packet Pg. 105
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 2
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
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 ExteNet Systems, Inc (“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 agreement.
2.2 This Franchise agreement grants Franchisee the right, privilege, and
authority to construct, operate, maintain, replace, relocate, restore, upgrade,
remove, excavate, acquire, sell, lease, and use the Small Cell Facilities, as defined
in Section 1.3, for its telecommunications network, in, under, on, across, over,
through, along or below the public Rights-of-Way located in the City of Kent, as
approved pursuant to City codes and permits issued pursuant to this Franchise. This
Franchise does not authorize the installation of any ground mounted equipment
anywhere within the Rights-of-Way.
2.3 This Franchise shall not prevent the City from granting franchises in, along,
over, through, under, below, or across any Rights-of-Way. This Franchise shall not
prevent or prohibit the City from using any Rights-of-Way or affect its jurisdiction
over any Rights-of-Way or any part of Rights-of-Way. The City shall retain power to
make all necessary changes, relocations, repairs, maintenance, establishment,
improvement, dedication of Right-of-Way as the City deems fit, including the
4.9.a
Packet Pg. 106
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 3
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
dedication, establishment, maintenance, and improvement of all new Rights-of-
Way, thoroughfares, and other public properties of every type and description.
SECTION 3. - Grant of Authority Limited.
3.1 The authority granted by this Franchise is a limited authorization to occupy
and use the Rights-of-Way throughout the City (the “Franchise Area”). The
Franchisee is authorized to place its Facilities in the Rights-of-Way only consistent
with this Franchise, the City of Kent Zoning Code, the Comprehensive Plan, the
Area Design and Construction Standards and the Kent Municipal Code (collectively
the “Codes”). Nothing contained herein shall be construed to grant or convey any
right, title, or interest in the Rights-of-Way of the City to the Franchisee other than
for the purpose of providing telecommunications services. Franchisee hereby
warrants that it expects to provide the following services within the City: small cell
network consisting of a collection of interrelated Small Cell Facilities designed to
deliver personal wireless services (the “Services”). Services do not include personal
wireless services and associated facilities that fall outside of the definition of Small
Cell Facilities (i.e., macro facilities).
3.2 This Franchise does not grant Franchisee the right to install and operate
wires and facilities to provide wireline broadband transmission services, whether
provided by a third party provider, Franchisee, or a corporate affiliate of Franchisee.
Any entity that provides such wireline broadband transmission services must have
an independent franchise to use the Rights-of-Way outside of this Franchise.
Further, this Franchise does not grant the right to offer cable internet services or
Cable Services as those terms are defined in 47 U.S.C. § 522(6) by wireline
transmission.
3.3 This Franchise does not grant Franchisee the right to install any facility,
infrastructure, wires, lines, cables, or other equipment, on any City property other
4.9.a
Packet Pg. 107
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 4
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
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.
3.4 Nothing within this Franchise shall be construed to grant or convey any right,
title, or interest in the Rights-of-Way of the City to Franchisee other than for the
purpose of providing the Services, or to subordinate the primary use of the Right-
of-Way as a public thoroughfare.
3.5 If Franchisee desires to expand the Services provided within the City, it shall
request a written amendment to this Franchise. If Franchisee desires to use City
owned property, including poles and structures within the Rights-of-Way it shall
enter into a separate lease or license agreement with the City.
3.6 Franchisee shall have the right, without prior City approval, to lease the
Facilities, grant a right of user interest in the Facilities or any portion thereof or
offer or provide capacity or bandwidth to its lessees or customers consistent with
this Franchise provided:
a. Franchisee at all times retains exclusive control over its
telecommunications system, Facilities and Services and remains
responsible for constructing, installing, and maintaining its Facilities
pursuant to the terms and conditions of this Franchise;
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
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.
4.9.a
Packet Pg. 108
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 5
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
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
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.
4.9.a
Packet Pg. 109
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 6
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
SECTION 5. - Relocation of Small Cell Facilities.
5.1 Relocation Requirement. Franchisee agrees to protect, support, temporarily
disconnect and then reconnect, relocate, or remove from any Rights-of-Way any of
its Facilities when reasonably required by the City by reason of traffic conditions,
public safety, dedications of new Rights-of-Way, the establishment and
improvement of new Rights-of-Way, widening or improvement of existing Rights-of-
Way or both, street vacations, freeway construction, change or establishment of
street grade, or the construction of any public improvement or structure by any
governmental agency acting in a governmental capacity or as otherwise necessary
for the operations of the City or other governmental entity. Collectively, such
matters are referred to within this Franchise with the term “Public Improvement.”
5.2 Relocation. If the request for relocation from the City arises from a Public
Improvement, in which structures or poles are either replaced or removed, then
Franchisee shall relocate or remove its Facilities as required by the City, and at no
cost to the City, subject to the procedure in Section 5.4. Franchisee acknowledges
and agrees that the placement of Small Cell Facilities on third-party owned or City
owned structures does not convey an ownership interest in such structures.
Franchisee acknowledges and agrees, that to the extent Franchisee’s Small Cell
Facilities are on poles owned by third parties, the City shall not be responsible for
any costs associated with requests for relocation which the City makes solely for
aesthetic purposes and where such request arises out of a Public Improvement.
5.3 Locate. Upon written request of the City, or a third party performing work in
the Right-of-Way, and in order to facilitate the design of City street and Right-of-
Way improvements, Franchisee agrees, at its sole cost and expense, to locate, and
if determined necessary by the City, to excavate and expose its Facilities for
inspection so that the Facilities’ location may be taken into account in the
improvement design. The decision as to whether any Facilities need to be relocated
4.9.a
Packet Pg. 110
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 7
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
in order to accommodate the Public Improvement shall be made by the City upon
review of the location and construction of Franchisee’s Facilities. The City shall
provide Franchisee at least fourteen (14) calendar days’ written notice prior to any
excavation or exposure of Facilities. Franchisee shall be responsible for any delays
due to failure to locate its Facilities when requested, except that Franchisee shall
not be responsible for delays or damages due to circumstances beyond the control
of the Franchisee.
5.4 Notice and Relocation Procedure. If the City determines that the Public
Improvement necessitates the relocation of Franchisee’s existing Facilities, the City
shall:
a. At least ninety (90) calendar days prior to commencing the Public
Improvement, 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 Public
Improvement, provide Franchisee with copies of pertinent portions of the plans and
specifications for the improvement project and a proposed location for Franchisee’s
Facilities so that Franchisee may relocate its Facilities in other City Rights-of-Way in
order to accommodate such Public Improvement; 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 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
4.9.a
Packet Pg. 111
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 8
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
or entity other than the City, so long as any improvements being constructed are
not or will not become City-owned, operated or maintained; except that any such
arrangements shall not unduly delay a City construction project.
5.6 Contractor Delay Claims. Franchisee shall be solely responsible for the out-
of-pocket costs incurred by the City for delays in a Public Project to the extent the
delay is caused by or arises out of Franchisee's failure to comply with the final
schedule for the relocation (other than as a result of a Force Majeure Event or
causes or conditions caused by the acts or omissions of the City or any third party
unrelated to Franchisee; Franchisee vendors and contractors shall not be
considered unrelated third parties). Such out-of-pocket costs may include, but are
not limited to, payment to the City's contractors and/or consultants for increased
costs and associated court costs, interest, and reasonable attorneys' fees incurred
by the City to the extent directly attributable to such Franchisee’s caused delay in
the Public Project.
5.7 Indemnification. Franchisee will indemnify, hold harmless, and pay the costs
of defending the City, in accordance with the provisions of Section 22.
5.8 Moving of Buildings or Other Objects. Franchisee shall, on the request of any
individual or private entity holding a valid permit issued by a governmental
authority, temporarily remove, raise or lower its Facilities to permit the moving of
buildings or other objects. The expense of such temporary removal, raising or
lowering of Facilities shall be at the expense of the requestor.
5.9 City’s Costs. If Franchisee fails, neglects, or refuses to remove or relocate its
Facilities as directed by the City following the procedures outlined in this Section 5,
the City may perform such work or cause it to be done, and the City’s costs shall be
paid by Franchisee pursuant to Sections 15.3 and 15.4.
4.9.a
Packet Pg. 112
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 9
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
5.10 Survival. The provisions of this Section 5 shall survive the expiration or
termination of this Franchise during such time as Franchisee continues to have
Facilities in the Rights-of-Way.
SECTION 6. - Undergrounding of Facilities.
6.1 No Installation of Small Cell Facilities in Undergrounded Areas. Franchisee
shall not install Small Cell Facilities in areas that already have undergrounding of
aerial utilities, except as authorized by the Director and in compliance with any
Kent Construction Standards. Any Facilities so located shall be approved by the
Director and if such Facilities include the installation of a new pole or installation on
a City-owned pole, Franchisee shall be required to enter into a separate agreement
with the City for such installations.
6.2 Requirement to Remove Small Cell Facilities. Franchisee hereby
acknowledges and agrees that whenever the City requires the undergrounding of
the aerial utilities in any area of the City, which includes the removal of structures
(e.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
4.9.a
Packet Pg. 113
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 10
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
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 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 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
4.9.a
Packet Pg. 114
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 11
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
installation, type of pole used for installation, description/type of
installation for each Small Cell Facility installation and photographs
taken before and after the installation of the Small Cell Facility and
taken from the public street.
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 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; provided, however,
Franchisee may redact identifying information such as names, street addresses
(excluding city and zip code), Social Security Numbers, or Employer Identification
4.9.a
Packet Pg. 115
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 12
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
Numbers related to any confidentiality agreements Franchisee has with third
parties.
7.4 Public Records Act.
a. Franchisee acknowledges that information submitted to the City is
subject to the Washington Public Records Act, chapter 42.56 RCW, and
is open to public inspection, subject to any exceptions permitted by
law (i.e., unless an exemption applies).
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 conspicuously
identifying the work as confidential or proprietary, and shall provide a
brief written explanation as to why such information is confidential and
how it may be treated as such under state or federal law. The City
agrees to keep confidential any proprietary or confidential books or
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
4.9.a
Packet Pg. 116
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 13
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
records. If a higher court overturns an injunction or court order and
such higher court action is or has become final and non-appealable,
Franchisee shall reimburse the City for any fines or penalties imposed
for failure to disclose such records within forty-five (45) calendar days
of a request from the City, unless additional time is reasonably
necessary under the circumstances and is agreed to by the parties.
7.5 Annual Audit. On an annual basis, upon thirty (30) calendar days prior
written notice, the City shall have the right to conduct an independent audit of
Franchisee's records reasonably related to the 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 8. - Work in the Rights-of-Way.
8.1 During any period of relocation, construction or maintenance, all work
performed by Franchisee or its contractors shall be accomplished in a safe and
workmanlike manner and only after obtaining permits pursuant to Section 8.3.
Franchisee shall minimize interference with the free passage of traffic and the free
use of adjoining property, whether public or private. Franchisee shall at all times
post and maintain proper traffic control to warn and direct the road users. Traffic
control devices include but are not limited to barricades, traffic cones, traffic drums,
tubular markers, flags, certified flaggers, lights, flares, and other measures as
required for the safety of all members of the general public. Franchisee shall also
comply with all applicable safety regulations during such period of construction as
required by the ordinances of the City or the laws of the State of Washington,
including RCW 39.04.180 for the requirement of trench safety systems for trench
excavations. The provisions of this Section 8.1 shall survive the expiration or
4.9.a
Packet Pg. 117
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 14
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
termination of this Franchise and during such time as Franchisee continues to have
Facilities in the Rights-of-Way.
8.2 Franchisee shall, at its own expense, maintain its Facilities in a safe
condition, in good repair, and in a manner suitable to the City. Additionally,
Franchisee shall keep its Facilities free of debris and anything of a dangerous,
noxious, or offensive nature or which would create a hazard or undue vibration,
heat, noise, or any interference with City services. The provisions of this Section
8.2 shall survive the expiration of this Franchise during such time as Franchisee
continues to have Facilities in the Rights-of-Way.
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
c. The initiating party may deny such request for safety reasons.
4.9.a
Packet Pg. 118
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 15
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
8.5 Upon prior written notice from the City, Franchisee shall meet with the City
and other franchise holders to schedule and coordinate construction in the Rights-
of-Way. To minimize public inconvenience, disruption or damage, the Franchisee
shall coordinate all construction locations, activities, and schedules as reasonably
directed by the City.
8.6 Franchisee acknowledges that it shall be solely responsible for compliance
with all marking and lighting requirements of the FAA and the FCC with respect to
Franchisee’s Facilities. Franchisee shall indemnify, defend and hold the City
harmless from any fines or other liabilities caused 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 applies to the extent necessary to protect above
ground Facilities. Franchisee shall avoid unnecessary trimming of trees and
vegetation in the vicinity of its Facilities and shall avoid damaging any trees or
vegetation. Franchisee shall ensure that its tree trimming activities protect the
4.9.a
Packet Pg. 119
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 16
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
appearance, integrity, and health of the trees to the extent reasonably possible.
Franchisee shall be responsible for all debris removal from such activities.
9.2 Upon the written request of the Director, Franchisee shall prepare and
maintain a tree trimming schedule to ensure compliance with this Section 9.2 and
to avoid exigent circumstances where tree cutting, trimming, or removal is
necessary to protect the public safety or continuity of service. Franchisee shall
submit the tree trimming schedule to the Director. Franchisee shall notify and
obtain written approval from the City, which shall not be unreasonably withheld,
delayed or conditioned, before completing any trimming, except in an emergency.
9.3 All tree trimming shall be completed at the expense of Franchisee. Franchisee
may contract for such services, however, City approval is required prior to
commencing such trimming, which shall not be unreasonably withheld, delayed or
conditioned. Nothing in this Franchise grants Franchisee any authority to act on
behalf of the City, to enter upon any private property, or to trim any tree or natural
growth not owned by the City. Except in an emergency, all tree trimming must be
performed under the direction of an arborist certified by the International Society of
Arboriculture, unless otherwise approved by the Director.
9.4 Franchisee shall be solely responsible and liable for any damage to any third
parties’ trees or natural growth caused by Franchisee’s actions. Franchisee shall
indemnify, defend and hold harmless the City from claims of any nature arising out
of any act or negligence of Franchisee with regard to tree and/or natural growth
trimming, damage, and/or removal. Franchisee shall reasonably compensate the
City or the property owner for any damage caused by trimming, damage, or
removal by Franchisee.
SECTION 10. - One Call Locator Service. Prior to doing any work in the
Rights-of-Way, Franchisee shall follow established procedures, including contacting
4.9.a
Packet Pg. 120
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 17
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
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 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
4.9.a
Packet Pg. 121
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 18
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
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.
11.4 On notice from the City that any work is being performed contrary to the
provisions of this Franchise, or in an unsafe or dangerous manner as reasonably
determined by the City, or in violation of the terms of any applicable permit, laws,
regulations, ordinances, or standards, the work may immediately be stopped by the
City. The stop work order shall:
a. Be in writing;
b. Be given to the person doing the work or posted on the work site;
c. Be sent to Franchisee by overnight delivery;
d. Indicate the nature of the alleged violation or unsafe condition; and
e. Establish conditions under which work may be resumed.
4.9.a
Packet Pg. 122
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 19
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
SECTION 12. - Work of Contractors and Subcontractors. Franchisee’s
contractors and subcontractors shall be licensed and bonded in accordance with
State law and the City’s ordinances, regulations, and requirements. Work by
contractors and subcontractors are subject to the same restrictions, limitations, and
conditions as if the work were performed by Franchisee. Franchisee shall be
responsible for all work performed by its contractors and subcontractors and others
performing work on its behalf as if the work were performed by Franchisee and
shall ensure that all such work is performed in compliance with this Franchise and
applicable law.
SECTION 13. – Restoration after Construction.
13.1 Franchisee shall repair any damage to the Rights-of-Way, and the property of
any third party, after installation, construction, relocation, maintenance, or repair of
its Facilities or after abandonment approved pursuant to Section 24, within thirty
(30) days following the date of any of these activities at Franchisee’s sole cost and
expense. Franchisee shall restore the Rights-of-Way and the surface of the Rights-
of-Way to the same or better condition as it was immediately prior to any
installation, construction, relocation, maintenance or repair by Franchisee,
reasonable wear and tear excepted. Franchisee shall not be responsible for any
changes to the Rights-of-Way not caused by Franchisee or anyone doing work for
Franchisee. No survey monument may be removed (or replaced) without a
professional land surveyor obtaining a permit in advance from the Washington
State Department of Natural Resources and submitting a copy of the approved
permit to the City. Franchisee shall restore all concrete encased monuments that
will be disturbed or displaced by such work to City standards and specifications. The
Director shall have final approval of the condition of the Rights-of-Way after repair
or restoration by the Franchisee.
4.9.a
Packet Pg. 123
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 20
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
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 Director, the City may
repair the damage and shall be reimbursed its actual cost within sixty (60) calendar
days of submitting an invoice to Franchisee in accordance with the provisions of
Section 15.3 and Section 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 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.
4.9.a
Packet Pg. 124
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 21
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
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 any public health or safety
emergency, including the knockdown of a Utility Pole with Small Cell Facilities.
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 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 negligence or willful acts of the City, its employees,
contractors, or agents. The City shall further not be liable to Franchisee for any
direct, indirect, or any other such damages suffered by any person or entity of any
type as a direct or indirect result of the City’s actions under this Section 14 except
to the extent caused by the negligence or willful acts of the City, its employees,
contractors, or agents.
4.9.a
Packet Pg. 125
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 22
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
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
Director may direct Franchisee, at Franchisee’s own expense, to take reasonable
action to protect the public, adjacent public places, City property or street utilities,
and such action may include compliance within a prescribed time. If the Franchisee
fails or refuses to promptly take the actions directed by the City, or fails to fully
comply with such directions, or if emergency conditions exist which require
immediate action, before the City can timely contact Franchisee to request
Franchisee effect the immediate repair, the City may access the Facilities and take
such reasonable actions as are necessary to protect the public, the adjacent
streets, or street utilities, or to maintain the lateral support thereof, or reasonable
actions regarded as necessary safety precautions, and Franchisee shall be liable to
the City for the costs thereof.
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, and all work related thereto
pursuant to RCW 35.21.860(1)(b), in an amount not to exceed $6,000,00. No
4.9.a
Packet Pg. 126
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 23
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
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 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
4.9.a
Packet Pg. 127
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 24
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
preparing the billing may also be included in the billing. At the City’s option, the
billing may be on an annual basis, but the City shall provide the Franchisee with the
City’s itemization of costs, in writing, at the conclusion of each project for
information purposes.
15.5 Franchisee hereby warrants that its operations as authorized under this
Franchise are those of a telephone business as defined in RCW 82.16.010, or
service provider as defined in RCW 35.99.010. As a result, the City will not impose
a franchise fee under the terms of this Franchise, other than as described herein.
The City hereby reserves its right to impose a franchise fee on Franchisee if
Franchisee’s operations as authorized by this Franchise change such that the
statutory prohibitions of RCW 35.21.860 no longer apply, or if statutory prohibitions
on the imposition of such fees are removed. In either instance, the City also
reserves its right to require that Franchisee obtain a separate Franchise for its
change in use. Nothing contained herein shall preclude Franchisee from challenging
any such new fee or separate agreement under applicable federal, state, or local
laws.
15.6 Franchisee acknowledges that certain of its operations within the City
constitute a telecommunication business subject to the utility tax imposed pursuant
to chapter 3.18 of the Kent City Code. Franchisee stipulates and agrees that certain
of its business activities are subject to taxation as a telecommunication business
and that Franchisee shall pay to the City the rate applicable to such taxable
services under chapter 3.18 of the Kent City Code, and consistent with state and
federal law. The parties agree however, that nothing in this Franchise shall limit the
City's power of taxation as may exist now or as later imposed by the City. This
provision does not limit the City's power to amend chapter 3.18 of the Kent City
Code as may be permitted by law.
4.9.a
Packet Pg. 128
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 25
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
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 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.
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.
4.9.a
Packet Pg. 129
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 26
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
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 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 (31st) 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-
4.9.a
Packet Pg. 130
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 27
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
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 (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
4.9.a
Packet Pg. 131
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 28
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
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 Small
Cell Facility that materially alters the configuration of such Small Cell Facility,
Franchisee shall, at its own cost and expense, perform an RF emissions test
following such modification to validate that the Small Cell Facilities once modified
comply with the FCC standards.
20.3 If the City discovers that the emissions from a Facility exceeds the FCC
standards, then the City may order Franchisee to immediately turn off the Facility
or portion thereof committing the violation, until the emissions exposure is
remedied.
20.4 If Small Cell Facilities have already been installed by the Franchisee or other
entities within the vicinity of a proposed Small Cell Facility, Franchisee shall provide
an Emissions Report for the proposed Facility that includes the cumulative effects of
all of these already existing Facilities.
SECTION 21. – No Interference.
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
4.9.a
Packet Pg. 132
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 29
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
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.
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
4.9.a
Packet Pg. 133
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 30
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
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.
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
negligence or willful misconduct contributing to 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.
4.9.a
Packet Pg. 134
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 31
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
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 an avoidance of
or defense to Franchisee's duty of defense and indemnification under
this subsection.
22.5 Procedures and Defense. If a claim or action arises, the City or any other
indemnified party shall promptly notify Franchisee of such claim or action and
tender the defense of the claim or action to Franchisee, which defense shall be at
Franchisee’s expense. The City’s failure to so notify and request indemnification
shall not relieve Franchisee of any liability that Franchisee might have, except to
the extent that such failure prejudices Franchisee’s ability to defend such claim or
suit. The City may participate in the defense of a claim, but if Franchisee provides a
defense at Franchisee’s expense then Franchisee shall not be liable for any
attorneys’ fees, expenses, or other costs the City may incur if it chooses to
participate in the defense of a claim, unless and until separate representation as
described in Section 22.6 is required. In that event, the provisions of Section 22.6
shall govern Franchisee’s responsibility for City’s attorney’s fees, expenses, or other
costs. In any event, Franchisee may not agree to any settlement of claims affecting
the City without the City's consent, such consent not to be unreasonable withheld
or delayed.
22.6 Payment of Fees and Costs.
a. If Franchisee refuses the tender of defense in any suit or any claim, as
required pursuant to the indemnification provisions within this
4.9.a
Packet Pg. 135
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 32
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
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.
b. If separate representation to fully protect the interests of both parties
is or becomes necessary, such as a conflict of interest between the
City and the counsel selected by Franchisee to represent the City,
Franchisee shall pay, from the date such separate representation is
required forward, all reasonable expenses incurred by the City in
defending itself with regard to any action, suit, or proceeding subject
to indemnification by Franchisee. Provided, however, that in the event
that such separate representation is or becomes necessary, and the
City desires to hire counsel or any other outside experts or consultants
and desires Franchisee to pay those expenses, then the City shall be
required to obtain Franchisee’s consent to the engagement of such
counsel, experts, or consultants, such consent not to be unreasonably
withheld. The City's expenses shall include all reasonable out of pocket
costs and expenses, such as consultants' fees and court costs, but
shall not include outside attorneys’ fees for services that are
unnecessarily duplicative of services provided the City by Franchisee,
except in the event of a conflict of interest where such duplication may
be required. Each party agrees to cooperate and to cause its
employees and agents to cooperate with the other party in the defense
of any claim or action.
22.7 RCW 4.24.115. Should a court of competent jurisdiction determine that
this Franchise is subject to RCW 4.24.115, then, in the event of liability for
4.9.a
Packet Pg. 136
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 33
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
damages arising out of bodily injury to persons or damages to property caused by
or resulting from the concurrent negligence of the Franchisee and the City, its
officers, officials, employees, and volunteers, the Franchisee’s liability hereunder
shall be only to the extent of the Franchisee’s negligence. It is further specifically
and expressly understood that the indemnification provided herein constitutes 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.
4.9.a
Packet Pg. 137
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 34
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
22.9 Survival. The provisions of this Section 22 shall survive the expiration,
revocation, or termination of this Franchise.
SECTION 23. - Insurance.
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 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 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.
4.9.a
Packet Pg. 138
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 35
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
23.3 Endorsements. All required liability policies shall:
a. Except workers compensation and employer’s liability include The City,
its officers, officials, boards, commissions, and 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 ownership of the Small Cell Facilities;
b. Franchisee's required insurance coverage shall be primary 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: (1) 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; (2) Licensor shall not settle any such claim, demand, lawsuit, or
the like without the prior written consent of Licensee; and (3) Licensor
shall fully cooperate with Licensee in the defense of the claim,
demand, lawsuit, or the like.
4.9.a
Packet Pg. 139
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 36
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
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 (1)
certificates of insurance and (2) 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 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
infrastructure restored to its pre-existing condition, reasonable wear and tear and
damage by casualty excepted.
4.9.a
Packet Pg. 140
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 37
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
24.2 If Franchisee leases a structure from a landlord and such landlord later
abandons the structure, for example by building a replacement structure,
Franchisee shall remove or relocate its Facilities as soon as possible but no later
than ninety (90) calendar days of such written notification from the landlord, at no
cost to the City.
24.3 Upon the expiration, termination, or revocation of the rights granted under
this Franchise, Franchisee shall remove all of its Facilities from the Rights-of-Way
within ninety (90) calendar days of receiving written notice from the Director. The
Facilities, in whole or in part, may not be abandoned by Franchisee without written
approval by the City. Any plan for abandonment or removal of Franchisee’s
Facilities must be first approved by the Director and all necessary permits must be
obtained prior to such work. Franchisee shall restore the Rights-of-Way to at least
the same condition the Rights-of-Way were in immediately prior to any such
installation, construction, relocation, maintenance or repair (reasonable wear and
tear and damage by casualty excepted), provided Franchisee shall not be
responsible for any changes to the Rights-of-Way not caused by Franchisee or any
person doing work for Franchisee. Franchisee shall be solely responsible for all costs
associated with removing its Facilities.
24.4 Notwithstanding Section 24.3, the City may permit Franchisee’s Facilities to
be abandoned in place in such a manner as the City may prescribe. Upon
permanent abandonment, and Franchisee’s agreement to transfer ownership of the
Facilities to the City, Franchisee shall submit to the City a proposal and instruments
for transferring ownership to the City.
24.5 Any Facilities which are not removed within one hundred and eighty (180)
calendar days of either the date of termination or revocation of this Franchise or the
date the City issued a permit authorizing removal, whichever is later, shall
automatically become the property of the City. Any costs incurred by the City in
4.9.a
Packet Pg. 141
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 38
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
safeguarding such Facilities or removing the Facilities shall be reimbursed by
Franchisee. Nothing contained within this Section 24.5 shall prevent the City from
compelling Franchisee to remove any such Facilities through judicial action when
the City has not permitted Franchisee to abandon these Facilities in place.
24.6 The provisions of this Section 24 shall survive the expiration, revocation, or
termination of this Franchise and for so long as Franchisee has Facilities in Rights-
of-Way.
SECTION 25. - Bonds.
25.1 Construction Guarantee. As a condition of performing work in the Right-of-
Way, the timely, complete, and faithful performance of all construction work in the
Right-of-Way shall be guaranteed in an amount equal to one hundred twenty-five
percent (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 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
4.9.a
Packet Pg. 142
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 39
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
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 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 this Section
25.2 above may be reduced one time only prior to the maintenance period, at the
discretion of the City. If an extension to any associated permits are granted, the
financial guarantees may be increased based on an updated engineer’s cost
estimate or as determined by the City. Financial guarantees will be fully released
only after all final punch list items are accomplished, final construction approval,
and the elapse of 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
4.9.a
Packet Pg. 143
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 40
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
renewable for the term of this Franchise, in a form and substance reasonably
acceptable to the City. If Franchisee fails to substantially comply with any one or
more of the provisions of this Franchise, following written notice and a reasonable
opportunity to cure, then there shall be recovered jointly and severally from
Franchisee and the bond any actual damages suffered by the City as a result
thereof, including but not limited to staff time, material and equipment costs,
compensation or indemnification of third parties, and the cost of removal or
abandonment of Facilities. Franchisee specifically agrees that its failure to comply
with the terms of this Section 25 shall constitute a material breach of this
Franchise, subject to the notice and cure provisions of Section 28. Franchisee
further agrees to replenish the Franchise Bond within fourteen (14) calendar days
after written notice from the City that there is a deficiency in the amount of the
Franchise Bond. The amount of the Franchise Bond shall not be construed to limit
Franchisee's liability or to limit the City's recourse to any remedy to which the City
is otherwise entitled at law or in equity.
25.4 Form of Bonds. All bonds provided to the City under this Section 25 shall be
on a form provided by the City and with sureties registered with the Washington
State Insurance Commissioner or other financial institutions acceptable to the City.
SECTION 26. - Modification. The City and Franchisee hereby reserve the
right to alter, amend, or modify the terms and conditions of this Franchise upon
written agreement of both parties to such alteration, amendment or modification.
SECTION 27. - Revocation. If Franchisee willfully violates or fails to
comply with any material provisions of this Franchise, then at the election of the
City Council after at least thirty (30) calendar days written notice to Franchisee
specifying the alleged violation or failure, or such extended periods as may be
required beyond the thirty (30) day cure period to cure any violation if the nature
of the cure is such that it reasonably requires more than thirty (30) days to cure,
4.9.a
Packet Pg. 144
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 41
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
the City may revoke all rights conferred and this Franchise may be revoked by the
City Council after a hearing held upon such notice to Franchisee. Such hearing shall
be open to the public and Franchisee and other interested parties may offer written
and/or oral evidence explaining or mitigating such alleged noncompliance. Within
thirty (30) calendar days after the hearing, the City Council, on the basis of the
record, will make the determination as to whether there is cause for revocation,
whether the Franchise will be terminated, or whether lesser sanctions should
otherwise be imposed. The City Council may in its sole discretion fix an additional
time period to cure violations. If the deficiency has not been cured at the expiration
of any additional time period or if the City Council does not grant any additional
period, the City Council may by resolution declare the Franchise to be revoked and
forfeited or impose lesser sanctions. If Franchisee appeals revocation and
termination, such revocation may be held in abeyance pending judicial review by a
court of competent jurisdiction, provided Franchisee is otherwise in compliance with
the Franchise.
SECTION 28. - Remedies to Enforce Compliance.
28.1 The City may elect, without any prejudice to any of its other legal rights and
remedies, to obtain an order from the superior court having jurisdiction compelling
Franchisee to comply with the provisions of the Franchise and to recover damages
and costs incurred by the City by reason of Franchisee’s failure to comply. In
addition to any other remedy 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.
4.9.a
Packet Pg. 145
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 42
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
28.2 If Franchisee shall violate, or fail to comply with any of the provisions of this
Franchise, or should it fail to heed or comply with any notice given to Franchisee
under the provisions of this Franchise, the City shall provide Franchisee with written
notice specifying with reasonable particularity the nature of any such breach and
Franchisee shall undertake all commercially reasonable efforts to cure such breach
within thirty (30) calendar days of receipt of notification. If the parties reasonably
determine the breach cannot be cured within (30) thirty days, the City may specify
a longer cure period, and condition the extension of time on Franchisee's submittal
of a plan to cure the breach within the specified period, commencement of work
within the original thirty (30) day cure period, and diligent prosecution of the work
to completion. If the breach is not cured within the specified time, or Franchisee
does not comply with the specified conditions, the City may, at its sole discretion,
(1) revoke this Franchise with no further notification, or (2) claim damages of Two
Hundred Fifty Dollars ($250.00) per day against the Franchise Bond set forth in
Section 25.3, or (3) pursue other remedies as described in this Section 28.
Liquidated damages described in this Section 28.2 shall not be offset against any
sums due to the City as a tax or reimbursement pursuant to Section 15.6.
SECTION 29. - Non-Waiver. The failure of the City to insist upon strict
performance of any of the covenants and agreements of this Franchise or to
exercise any option herein conferred in any one or more instances, shall not be
construed to be a waiver or relinquishment of any such covenants, agreements or
option or any other covenants, agreements or option.
SECTION 30. - Police Powers and City Ordinances. Nothing herein shall
be deemed to restrict the City’s ability to adopt and enforce all necessary and
appropriate ordinances regulating the performance of the conditions of this
Franchise, including any valid ordinance made in the exercise of its police powers in
the interest of public safety and for the welfare of the public. The City shall have
4.9.a
Packet Pg. 146
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 43
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
the authority at all times to reasonably control by appropriate regulations the
location, elevation, manner of construction and maintenance of Facilities by
Franchisee, and Franchisee shall promptly conform with all such regulations unless
compliance would cause Franchisee to violate other requirements of law. In the
event of a conflict between the provisions of this Franchise and any other generally
applicable ordinance(s) enacted under the City’s police power authority, such other
ordinances(s) shall take precedence over the provisions set forth herein.
SECTION 31. - Cost of Publication. The cost of publication of this
Franchise shall be borne by Franchisee.
SECTION 32. - Acceptance. Franchisee shall execute and return to the
City its execution and acceptance of this Franchise in the form attached hereto as
Exhibit B. In addition, Franchisee shall submit proof of insurance obtained and
additional insured endorsement pursuant to Section 23, any Construction
Guarantee, if applicable, pursuant to Section 25.1 and the Franchise Bond 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.
4.9.a
Packet Pg. 147
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 44
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
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 provide prompt, written notice to the City of any such assignment.
In the case of transfer or assignment as security by mortgage or other security
instrument in whole or in part to secure indebtedness, such consent shall not be
required unless and until the secured party elects to realize upon the collateral. For
purposes of this Section 34, no assignment or transfer 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.
4.9.a
Packet Pg. 148
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 45
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
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 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 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
4.9.a
Packet Pg. 149
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 46
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
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:
If to Franchisee (including
invoices):
EXTENET SYSTEMS, INC
Attn: CFO
3030 Warrenville Road, Suite 34
Lisle, Illinois 60532
With copy to General Counsel & COO at
same address
Copy email to
NOTICE@extenetsystems.com
If to City:
CITY OF KENT
Attn: City Clerk
220 Fourth Avenue South
Kent, WA 98032
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.
4.9.a
Packet Pg. 150
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 47
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
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 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, each party shall pay
all its legal costs and attorney fees incurred in defending or bringing such claim or
lawsuit, including all appeals, in addition to any other recovery or award provided
by law; except that nothing in this section shall be construed to limit the City’s right
to indemnification under Section 22 of this Franchise.
4.9.a
Packet Pg. 151
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 48
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
SECTION 43. - Hazardous Substances. Franchisee shall not introduce or
use any hazardous substances (chemical or waste), in violation of any applicable
law or regulation, nor shall Franchisee allow any of its agents, contractors or any
person under its control to do the same. Franchisee will be solely responsible for
and will defend, indemnify and hold the City, its officers, officials, employees,
agents and volunteers harmless from and against any and all claims, costs and
liabilities including reasonable attorneys’ fees and costs, arising out of or in
connection with the cleanup or restoration of the property associated with
Franchisee’s use, storage, or disposal of hazardous substances, whether or not
intentional, and the use, storage or disposal of such substances by Franchisee’s
agents, contractors or other persons acting under Franchisee’s control, whether or
not intentional.
SECTION 44. - Licenses, Fees and Taxes. Prior to constructing any
improvements, Franchisee shall obtain a business or utility license from the City.
Franchisee shall pay promptly and before they become delinquent, all taxes on
personal property and improvements owned or placed by Franchisee and shall pay
all license fees and public utility charges relating to the conduct of its business,
shall pay for all permits, licenses and zoning approvals, shall pay any other
applicable tax unless documentation of exemption is provided to the City and shall
pay utility taxes and license fees imposed by the City.
SECTION 45. - Miscellaneous.
45.1 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
4.9.a
Packet Pg. 152
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 49
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
States District Court for the Western District of Washington, or King County
Superior Court, without waiver of any right to removal.
45.3 Section captions and headings are intended solely to facilitate the reading
thereof. Such captions and headings shall not affect the meaning or interpretation
of the text herein.
45.4 Where the context so requires, the singular shall include the plural and the
plural includes the singular.
45.5 Franchisee shall be responsible for obtaining all other necessary approvals,
authorizations and agreements from any party or entity and it is acknowledged and
agreed that the City is making no representation, warranty or covenant whether
any of the foregoing approvals, authorizations or agreements are required or have
been obtained by Franchisee by any person or entity.
45.6 This Franchise may be enforced at both law and equity.
4.9.a
Packet Pg. 153
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
Page 50
ExteNet Systems, Inc. and City of Kent
2020 Franchise Agreement
IN WITNESS WHEREOF, this Franchise is signed in the name of the City of
Kent, Washington this ____ day of ___________, 2020.
ATTEST: CITY OF KENT, WASHINGTON:
City Clerk Mayor
APPROVED AS TO FORM:
City Attorney
Accepted and approved this ____ day of _________, 2020.
ATTEST: EXTENET SYSTEMS, INC
Public Notary Name/Title:
4.9.a
Packet Pg. 154
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h
EXHIBIT A
STATEMENT OF ACCEPTANCE
EXTENET SYSTEMS, INC., a Delaware corporation, (“ExteNet”) for itself, its
successors and assigns, accepts and agrees to be bound by all lawful terms,
conditions and provisions of the Franchise attached and incorporated by this
reference. ExteNet declares that it has carefully read the terms and conditions of
this Franchise and unconditionally accepts all of the terms and conditions of the
Franchise and agrees to abide by such terms and conditions. ExteNet has relied
upon its own investigation of all relevant facts and it has not been induced to
accept this Franchise and it accepts all reasonable risks related to the
interpretation of this Franchise.
ExteNet Systems, Inc., a Delaware corporation
By: _____________________ Date: _______________________
Name: ____________________
Title: ____________________
4.9.a
Packet Pg. 155
At
t
a
c
h
m
e
n
t
:
O
r
d
i
n
a
n
c
e
-
F
r
a
n
c
h
i
s
e
-
E
x
t
e
N
e
t
S
m
a
l
l
C
e
l
l
F
r
a
n
c
i
s
e
I
n
c
E
x
A
(
2
3
4
3
:
O
r
d
i
n
a
n
c
e
A
u
t
h
o
r
i
z
i
n
g
S
m
a
l
l
C
e
l
l
F
r
a
n
c
h
i
s
e
A
g
r
e
e
m
e
n
t
w
i
t
h