HomeMy WebLinkAboutCity Council Committees - Kent City Council - 01/28/2020 (2)
KENT CITY COUNCIL
COMMITTEE OF THE WHOLE
Tuesday, January 28, 2020
4:00 PM
Chambers
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
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Item Description Speaker Time
1. CALL TO ORDER
2. ROLL CALL
3. AGENDA APPROVAL
Changes from Council, Administration, or Staff.
4. COMMITTEE BUSINESS
1. Resolution to Adopt a Template Small
Cell Master License Agreement - Adopt
Christina Schuck 30 MIN.
2. Payment of Bills Paula Painter
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.
OFFICE OF THE CITY ATTORNEY
Pat Fitzpatrick, City Attorney
220 Fourth Avenue South
Kent, WA 98032
253-856-5770
DATE: January 28, 2020
TO: Kent City Council - Committee of the Whole
SUBJECT: Resolution to Adopt a Template Small Cell Master License
Agreement - Adopt
MOTION: Adopt Resolution No. 2007, approving a small cell Master License
Agreement template and authorizing the execution of individual Master
License Agreements with qualified applicants administratively.
SUMMARY: Several telecommunication service providers have sought authorization
to deploy small cell equipment on existing Puget Sound Energy utility poles (PSE
poles) in the rights-of-way and on city-owned infrastructure, e.g., streetlights.
Small cells will be used to provide both existing 4G and future 5G service. The City
has entered into franchise agreements with two service providers to install small
cell facilities on PSE poles throughout the City. Because installation on city-owned
infrastructure differs in several important ways, the City will use a separate
agreement, called a Master License Agreement (MLA) to authorize the use of city-
owned infrastructure.
The MLA licenses portions of individual city-owned infrastructure as identified in an
individual Site License Addendum. The MLA functions as an umbrella agreement
and contains all of the main substantive terms, including requirements for
restoration, relocation, indemnification and maintenance responsibilities. Small cell
installations must comply with the design standards set forth in KCC 6.16.060 and
will require removal and replacement of the existing streetlight and pole. Because
this requires significant investment by the service provider, the term of the MLA is
set at 10 years. The City will charge rent for use of its infrastructure; however, in
2018, the Federal Communications Commission (FCC) limited the amount cities can
charge effectively to $270.00 per small cell facility, per year.
After researching and reviewing examples from other jurisdictions and working with
a carrier who has requested an MLA, the City has drafted a standard MLA for the
Council to adopt. The purpose of a standardized MLA is to streamline the process by
allowing administrative execution of an agreement without the need to bring
multiple similar agreements for Council approval. This streamlined process will also
help the City comply with the strict deadlines imposed by the FCC. Any qualified
applicant agreeing to use the standardized MLA without any substantive or material
changes may have the agreement approved administratively. Accordingly, this
proposed resolution adopts the standardized MLA and authorizes the Public Works
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Director or a designee to execute an MLA. Staff is still negotiating the specifics of
the notice provisions in Section 7.4 of the MLA and expects the final version of this
language to be in place shortly.
BUDGET IMPACT: Positive impact of $270.00 per pole, per year.
SUPPORTS STRATEGIC PLAN GOAL:
Evolving Infrastructure
ATTACHMENTS:
1. Small Cell MLA Resolution (PDF)
4.1
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1 Master License Agreement
Template Resolution
RESOLUTION NO. 2007
A RESOLUTION of the City Council of the
City of Kent, Washington, approving the Master
License Agreement (MLA) template and authorizing
execution of individual MLAs with qualified
applicants administratively.
RECITALS
A. As technology advances and the demand for wireless service
increases, telecommunication service providers are seeking to deploy small
cell facilities on existing utility poles and streetlights and other
infrastructure in city rights-of-way to provide and enhance 4G coverage
and capacity and to build 5G networks.
B. The City embraces and supports small cell technology and the
advances the City expects it to provide. Accordingly, the City Council has
used its authority pursuant to RCW 35A.47.040 to grant several franchises
for the use of its rights-of-way for the installation of small cell facilities on
utility poles owned by Puget Sound Energy (PSE).
C. In many areas of the City, utilities have been undergrounded
and there are no utility poles on which to install small cell facilities. In
these areas, telecommunications service providers have expressed an
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2 Master License Agreement
Template Resolution
interest to install small cell facilities on city-owned infrastructure, such as
existing streetlights.
D. Deploying small cell facilities on city-owned infrastructure
differs from the deployment on infrastructure owned by PSE or other third
parties. As a result, this use is not authorized in franchise agreements, but
will instead be authorized in a different type of agreement, called a Master
License Agreement (MLA).
E. The City has drafted a standard MLA that provides for siting,
installing, and operating small cells on City-owned streetlights in
accordance with City standards and subject to regulatory approvals. Under
the terms of the MLA, the licensee will be required to enter into individual
site license addendums (SLA) for the use of each individual City-owned
streetlight. Small cell equipment installed on city-owned infrastructure
must comply with the design and aesthetic requirements set forth in
Chapter 6.16 KCC.
F. The standard MLA has been drafted to comply with the 2018
adopted Federal Communications Commission Declaratory Ruling and Third
Report and Order (FCC 18-133), which not only limits local discretion to
regulate the location of small cell equipment and facilities, but also limits
the City’s ability to charge fees for licensing the use of its streetlights or
other such infrastructure. Specifically, FCC 18-133 only allows the City to
recover a reasonable approximation of its actual costs, which the FCC
estimates to be $270.00 per small cell facility, per year. Accordingly, the
MLA establishes $270.00 per calendar year per facility as rent, but allows
the City to charge additional rent at fair market value if FCC 18-133 is
ultimately overturned by the courts.
4.1.a
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3 Master License Agreement
Template Resolution
G. FCC 18-133 also imposes strict deadlines on the processing of
all applications and permits for small cell facilities. In particular, an
application to install small cell facilities on city-owned infrastructure is
subject to a 90-day deadline or shot clock. Thus, any authorization for the
small cell facility issued by the City, including the MLA or any permit, is
subject to this 90-day shot clock.
H. To streamline processes, improve efficiencies and comply with
the FCC shot clocks, this resolution will adopt a standard MLA and allow for
administrative execution of an MLA in substantially the form of the
standard MLA. Specifically, this resolution authorizes the Public Works
Director or a designee to execute individual MLAs with qualified applicants
who agree to use the standard MLA without requesting any substantive or
material changes to the form.
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY RESOLVE AS FOLLOWS:
RESOLUTION
SECTION 1. – Approval of Master License Agreement. The City
Council hereby approves the Master License Agreement (MLA) template and
authorizes the Public Works Director or his/her designee, to execute
individual MLAs, in substantially the form attached as Exhibit A, and all
other necessary documents to implement each MLA, administratively with
qualified applicants.
SECTION 2. – Severability. If any one or more section, subsection,
or sentence of this resolution is held to be unconstitutional or invalid, such
decision shall not affect the validity of the remaining portion of this
resolution and the same shall remain in full force and effect.
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4 Master License Agreement
Template Resolution
SECTION 3. – Corrections by City Clerk. Upon approval of the city
attorney, the city clerk is authorized to make necessary corrections to this
resolution, including the correction of clerical errors; resolution, section, or
subsection numbering; or references to other local, state, or federal laws,
codes, rules, or regulations.
SECTION 4. – Effective Date. This resolution shall take effect and
be in force immediately upon its passage.
February 4, 2020
DANA RALPH, MAYOR Date Approved
ATTEST:
February 4, 2020
KIMBERLEY A. KOMOTO, CITY CLERK Date Adopted
APPROVED AS TO FORM:
ARTHUR “PAT” FITZPATRICK, CITY ATTORNEY
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Master License Agreement
Template Resolution – Exhibit A
MASTER LICENSE AGREEMENT FOR
SMALL WIRELESS FACILITIES ON CITY-OWNED INFRASTRUCTURE
This MASTER LICENSE AGREEMENT FOR SMALL WIRELESS FACILITIES
ON CITY-OWNED INFRASTRUCTURE hereinafter (“License”) is entered into by
and between the City; a municipal corporation of the state of Washington (the
“City”) and New Cingular Wireless PCS, LLC, a Delaware limited liability company
(“AT&T” or “Licensee”).
RECITALS
A. The City owns and controls certain City-owned infrastructure located in the
public rights-of-way (ROW) situated within the city limits of Kent, WA.
B. Licensee is engaged in the operation of communications technology and
desires to license from the City, and the City is willing to license the City-owned
infrastructure (defined below).
C. This License applies only to the installation of Small Cell Facilities (defined
below) on and to City-owned infrastructure which at a minimum comply with the
requirements of Chapter 6.16 of the Kent City Code (“KCC”), subject to the terms
and conditions of this License.
The parties agree as follows:
1. Definitions
1.1 “City-owned infrastructure” has the same meaning as set forth in
KCC 6.16.030, as adopted or hereinafter amended and, if available and
approved by the City, any form of existing power supply, conduit or other
infrastructure equipment for the delivery of power to a structure or pole
located in the ROW.
1.2 “Combination Pole” has the same meaning as set forth in KCC 6.16.030, as
adopted or hereinafter amended.
1.3 “Design Standards” refer to the utility design standards in the right-of-way set
forth in KCC Chapter 6.16, as adopted or hereinafter amended.
1.4 “Facilities” mean Facilities or small cell facilities has the same meaning as set
forth in KCC 6.16.030, as adopted or hereinafter amended.
1.5 “Laws” mean any and all applicable statutes, codes, constitutions, ordinances,
resolutions, regulations, judicial decisions, rules, tariffs, administrative orders,
court orders, or other requirements of the City or other governmental agency
having joint or several jurisdiction over the parties to this License as such
laws may be amended from time to time.
1.6 “Rent Commencement Date” is the day that both Licensee and the City fully
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Master License Agreement
Template Resolution – Exhibit A
execute a Site License Addendum.
1.7 “Site License Addendum” means the document in the form substantially
similar to Exhibit A that, when fully executed by both parties, is subject and
subordinate to the provisions of this License and authorizes Licensee to
attach, install, operate, maintain, upgrade, remove, reattach, reinstall,
relocate and replace specific small cell facilities on specific City-owned
infrastructure together with City-owned infrastructure (if any) as identified in
the specific Site License Addendum subject to the License.
2. License Granted
2.1 The City hereby licenses to Licensee a portion of individual City-owned
infrastructure as identified in each fully executed Site License Addendum,
incorporated herein by reference, together with non-exclusive access rights to
the specified City-owned infrastructure, sufficient for Licensee’s use of the
City-owned infrastructure subject to the applicable Site License Addendum. All
Site License Addendums are subject and subordinate to the terms and
conditions of this License, the Kent City Code and all Laws. If City-owned
conduit or other infrastructure equipment is used by Licensee for the delivery
of power to its Facilities, in no event shall the City be liable for any loss or
interruption of power to such Facilities.
2.2 Licensee may attach, install, operate, maintain, upgrade, remove, reattach,
reinstall, relocate, and replace, at Licensee’s sole responsibility and expense,
the Facilities subject to this License, the applicable Site License Addendum,
and compliance with the Design Standards. Licensee represents, warrants and
covenants that Facilities installed pursuant to this License will be utilized
solely for providing data/telecommunications services and Licensee is not
authorized to and shall not use its Facilities to offer or provide any other
services without prior written permission or agreement from the City.
2.3 Nothing contained within this License shall be construed to grant or convey
any right, title, or interest in the City-owned infrastructure to Licensee other
than for the purpose of placing and operating the Facilities. Further, nothing in
this License shall be interpreted to create or vest in Licensee any easement or
other ownership or property interest or other right to any City-owned
infrastructure, property, or public ROW. This License shall not constitute an
assignment of any City rights to City-owned infrastructure, property, or public
right-of-way.
2.4 To the extent permitted under applicable law, the City’s municipal functions or
proprietary interests are not subordinated in any way to Licensee’s interest
under this License or Site License Addendum. If the City determines that the
usage of City-owned infrastructure is not feasible or not in the best interest of
the City due to the City’s municipal obligations or proprietary interests, the
City in its sole discretion and its decision being final may deny Licensee’s
request to use the City-owned infrastructure.
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Master License Agreement
Template Resolution – Exhibit A
2.5 Prior to any use of the City-owned infrastructure, both parties must have
executed a Site License Addendum in the form substantially similar to
Exhibit A. Upon review by the City of materials submitted for a Site License
Addendum, the City may deny the installation of Facilities or require
additional terms and/or conditions to determine whether the proposed small
cell facility will comport with this License, the Design Standards, or to
address health, safety, or other aesthetic concerns.
2.6 City-owned infrastructure is offered on an “as is” basis, in its present
condition.
2.7 This License is made subject to all easements, restrictions, conditions,
covenants, encumbrances, and claims of title which may affect this City-
owned infrastructure, and it is understood that Licensee at its own cost and
expense, shall obtain such other permissions, as may be necessary,
consistent with any other existing rights.
2.8 Licensee is solely responsible for procuring electricity for its small cell facilities
and directly paying its chosen electricity provider for such services. The City is
not responsible for managing Licensee’s electricity needs, payments, or for
supplying electricity to the small cell facilities. Where possible when deploying,
Licensee shall procure unmetered electricity services. Notwithstanding the
foregoing the City may, at its sole discretion, permit Licensee to connect a
Facility to the City’s electrical supply to minimize disruption to existing ROW
improvements, subject to a separate agreement, which shall include billing
and payment procedures.
2.9 Licensee, in the performance and exercise of its rights and obligations under
this License, shall not interfere in any manner with the existence and
operation of any and all existing and future public and private rights-of-way,
sanitary sewers, water mains, storm drains, gas mains, poles, aerial and
underground electrical and telephone wires, traffic signals, communication
facilities which are pre-existing at that location, electroliers, cable television,
location monitoring services, public safety and other then existing
telecommunications equipment, utility, or municipal property, without the
express written approval of the owner or owners of the affected property or
properties, except as permitted by applicable Laws or this License.
3. Effective Date
All references in this License to the “Effective Date”, “the date hereof”, or similar
references shall refer to the date that the License was fully executed by both Parties.
4. Term
4.1 The term of this License shall commence on the Effective Date and shall
expire 10 years from the Effective Date (the “Term”).
4.2 The Site License Addendums shall not extend this License. All Site License
Addendums terminate with the expiration or termination of this License.
4.1.a
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Master License Agreement
Template Resolution – Exhibit A
4.3 Both the City and Licensee have the right to terminate this License upon 12-
months’ notice to the other party, if due to a change of Laws, either party can
no longer technically, or practicably, comply with both the duties and
obligations of this License and the requirements of the Laws, provided if any
such law is reversed or revoked within the 12-month notice period, the
termination notice will be deemed null and void.
5. Fees and Charges
Licensee shall pay all fees and charges in connection with Licensee’s performance
under this License, including the following:
5.1 License Fee. The City may charge Licensee for the actual and reasonable
administrative expenses incurred by the City directly related to reviewing and
processing this License and Site License Addendums (or any amendment
thereto).
5.2 Permit Fees. Licensee shall be responsible for paying all actual and
reasonable costs associated with City review, processing and inspection as
part of all permit applications filed for the installation, modification,
maintenance and removal of small cell facilities or equipment. 5.3 Rent.
5.3.1 Licensee acknowledges that the Federal Communications Commission
(FCC) has adopted a Declaratory Ruling (FCC 18-133) that relates
to the rent but that Declaratory Ruling is currently the subject of
litigation. This Section 5.3 governs the payment of rent and how it
may be impacted by the resolution of related litigation during the
Term and any Renewal Terms.
5.3.2 During any period in which the Alternate Rent provisions in
Section 5.3.3 are not applicable, Licensee shall pay Rent as
described in this Section 5.3.2. For Site License Addendums
executed by both parties in 2019, Licensee shall pay to the City the
base amount of two hundred and seventy dollars ($270.00) per
calendar year for each individual pole or other City-owned
infrastructure covered by a Site License Addendum (i.e., Site License
Addendums may include more than one City Pole), and such base
amount shall be increased on January 1 of each calendar year after
2019 by the Average CPI Increase, defined below (the “Rent”). For
Site License Addendums executed by both parties in 2020 and
subsequent years, the base amount of rent shall commence at the
Rent, as adjusted annually by the Average CPI Increase to reflect the
then-current rate. Rent for the first calendar year of a Site License
Addendum for each individual City Pole shall be pro-rated based
on the number of days covered from the Rent Commencement Date
to December 31. The first payment of Rent shall be paid within 45
4.1.a
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Master License Agreement
Template Resolution – Exhibit A
days of the Rent Commencement Date. Every payment of Rent, after
the first payment, shall be due and payable in advance on January 1
of each calendar year throughout the term of each such Site
License Addendum. There shall be no refunds of Rent paid due to the
termination or expiration of the License for any reason.
5.3.3 If the relevant provisions of the FCC Declaratory Ruling are reversed
in a final and unappealable order of the FCC or a court of competent
jurisdiction, and continuing for so long as no legal or regulatory
requirement exists that would constrain or otherwise limit the Rent
that the City may charge Licensee for the right to place small cells
on the City Poles, the parties agree that Rent shall increase to the
fair market value for the use of the City Poles as reasonably
determined by the City (“Alternate Rent”). If Licensee disagrees with
the Alternate Rent amount, it may utilize the arbitration process
described in RCW 35.21.860. The Alternate Rent shall be due 60
days after the City issues the fair market value rent calculation, and
may be prorated from the date of the issuance of the documentation
stating the fair market value. If a subsequent legal or regulatory
requirement becomes effective that would constrain or otherwise
limit the Rent that the City may charge Licensee for the right to
place small cells on the City’s property in the public right-of-way, the
parties agree that Alternate Rent shall again be adjusted to comply
with such legal or regulatory requirement upon its effective date.
5.3.4 The City agrees that, irrespective of whether the relevant provisions
of the FCC Declaratory Ruling (FCC 18-133) go into effect and then
cease to be effective, no Alternate Rent shall be due for any periods
during which the relevant provisions of the FCC Declaratory Ruling
were in effect. However, if Licensee has paid Rent pursuant to the
provisions of Section 5.3.2 for a calendar year, and the relevant
provisions of the FCC Declaratory Ruling subsequently cease to be
effective during the same calendar year, Licensee shall pay the
difference between the Rent and the Alternate Rent for the period
from the date the relevant provisions of the FCC Declaratory Ruling
ceased to be effective, until December 31 of that year (“Rent
Adjustment”). Such Rent Adjustment shall be paid to the City on
January 1 of the following year.
5.3.5 Rent or Alternate Rent shall be delivered or mailed to the City of Kent,
Customer Service located at: 400 West Gowe, Kent, WA 98032. Rent
payment must reference the City Pole Identifier (pole number and
GIS location) Licensee’s site ID# and Site License Addendum
Number.
5.3.6 Receipt of any Rent or Alternate Rent by the City, with knowledge of
any breach of this License by Licensee, or of any default on the
part of Licensee in the observance or performance of any of the
conditions or covenants of this License, will not constitute a waiver of
4.1.a
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any provision of this License.
5.3.7 If any sums payable to the City under this License are not received
by the City on or before the 10th day following its due date, Licensee
agrees to pay a late fee of 5% of the unpaid Rent or Alternate Rent
for all Site License Addendums for which payment was not received.
Where a check is returned to the City by a bank or other financial
institution with the indication that the check cannot be honored, there
shall be a fee assessed to Licensee based on the current statutory
maximum allowed. The City and Licensee agree that such charges
represent a fair and reasonable estimate of the costs incurred by the
City by reason of late payments and uncollectible checks, and the
failure by Licensee to pay any such charges by no later than 30 days
after Licensee’s receipt of written demand therefore by the City shall
be a default under this License. The City’s acceptance of less than the
full amount of any payment due from Licensee will not constitute an
accord and satisfaction, waiver, or compromise of such payment
unless specifically agreed to in writing by the City.
6. Taxes, Assessments & Utilities
In addition to the Rent, Licensee shall pay when due directly to the applicable
authority all applicable taxes arising with respect to Licensee’s activities and
business under this License including, without limitation, paying to the City the
utility tax imposed pursuant to KCC Chapter 3.18, and the applicable leasehold
excise tax, unless Licensee is centrally assessed by the State of Washington and
provides documentation, that is acceptable to the City, of its central assessment,
which evidence shall then be attached to this License as Exhibit B. Should the City
collect from Licensee and pay to the Department of Revenue leasehold excise tax
which is subsequently determined to be a duplicate payment or over-payment of tax
by Licensee, Licensee shall not have any claim against the City, but shall look
directly to the Department of Revenue for reimbursement.
7. Permits
7.1 Prior to performing any construction, maintenance or repair work on the City-
owned infrastructure, Licensee shall secure all necessary federal (including
any FCC or FAA requirements), state and local licenses, permits and
approvals, including but not limited to, land use permits/approvals as
required, small cell permits, street use permits, traffic control plans, proof of
agency and permits for the construction and operation of the Facilities or
installation of a replacement pole (collectively referred to hereinafter as
“Government Approvals”) at its sole expense. No Government Approval shall
be considered a substitute for City approval required by this License, and no
approval granted under this License shall be considered a Government
Approval.
7.2 Licensee must obtain Governmental Approvals for each Site License
Addendum and within 12 months after the effective date of the Site License
4.1.a
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Addendum. The Site License Addendum shall automatically terminate on the
expiration of this 12-month period if the necessary Government Approvals
are not obtained; however, this 12-month period may be extended upon
approval by the City, which approval shall not be unreasonably withheld,
delayed or conditioned.
7.3 Licensee shall bear all costs for the installation of its Facilities pursuant to
this License, including installing Facilities and removing and replacing existing
City-owned infrastructure with a Combination Pole meeting the requirements
of KCC Chapter 6.16 and the Site License Addendum. Such costs shall
include, but are not limited to, costs for dismantling or removal of the
existing City-owned infrastructure in compliance with the KCC, removal and
replacement of foundation, replacement streetlight, replacement of junction
boxes to non-skid boxes, additional conduit if needed, and geotechnical
analysis (as appropriate for soil and foundation stability, etc.), replacement
of hardscape, vegetation or other existing urban design features impacted by
the work. Any such replacement shall be subject to prior approval by the
City, which approval shall not be unreasonably withheld, delayed or
conditioned, and approved as part of the Site License Addendum.
7.4 Prior to commencing any construction activities on City-owned infrastructure
after the Effective Date or the effective date of any Site License Addenda,
Licensee shall:
7.4.1 Mail notice of the construction of the Facilities to the [residents] of the
real property within ___ feet of the location of the proposed Facility.
The notice shall contain the location of the Facility, general
information about the Facility itself, including a photographic example
of a similar Facility, and contact information where additional
information may be obtained; and
7.4.2 Submit to the City for approval such information regarding the
proposed work as the City may reasonably request, including, without
limitation, plans and specifications of the planned modifications and
Licensee’s proposed schedule, for the City’s written approval, these
plans shall include the results of the RF emissions tests consistent
with the requirements of this License.
7.5 Representatives of the City shall have the right to inspect any and all
improvements and to require reasonable revisions to Licensee’s
improvements to ensure that the respective uses of the City-owned
infrastructure are compatible. This right does not impose any obligation upon
the City to make inspections to ascertain the safety of Licensee’s
improvements, Facilities, or the condition of the City-owned infrastructure.
7.6 Except as otherwise provided in this Section 7.6, revisions to equipment after
initial installation require an amendment to the Site License Addendum and
payment for the actual and reasonable administrative expenses incurred by
the City directly related to any amendment. Approval of the City under this
4.1.a
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License of these revisions does not relieve Licensee from obtaining permits
and/or Governmental Approvals as necessary to commence such
modifications. Replacement of like parts or modification during maintenance
and repair is acceptable without specific approval under this License provided
that: (a) such like-for-like replacement or modification does not change the
visual appearance or size, or increase weight beyond the loading or utilization
or noise of the Facilities, and (b) Licensee provides written notice explaining
in reasonable detail the nature of the parts replacement and/or other
modifications within 10 days of occurrence, including certification that the
level of RF emissions exposure from the Facilities remains within the limits
for general population/uncontrolled population exposure. At the City’s written
request, Licensee must conduct a new on-site RF emissions testing in
accordance with applicable rules, and certify actual compliance with the
applicable RF emissions limits for general population/uncontrolled RF
exposure, and provide a copy of such updated compliance report to the City.
8. Interference
8.1 Licensee agrees to install equipment of the type and frequency which will not
cause harmful interference which is measurable in accordance with then
existing industry standards to any City equipment or other licensees of the
City-owned infrastructure which existed prior to the Effective Date of this
License. If Licensee’s equipment causes such interference, Licensee agrees to
take all commercially reasonable steps necessary to correct and eliminate the
interference.
8.2 Licensee’s Facilities shall not interfere with any City operations (including,
but not limited to, traffic lights, radio systems, or other City communications
infrastructure), or PSERN (or its successor entity) communications operation
or equipment. If the City reasonably determines that the Facilities cause such
interference, Licensee shall respond to the City’s request to address the
source of the interference as soon as practicable, but in no event later than
48 hours of receipt of written notice. The City may require, by written notice,
that Licensee cease operation of the specific Facility causing such
interference and either modify, remove or relocate such Facilities. If, within
30 days after receipt of such written notice from the City of such
interference, Licensee has not abated such interference, the City or Licensee
may terminate the applicable Site License Addendum, or terminate the Site
License Addendum to the extent applicable to the interfering Facilities, upon
30 days’ notice to the other party and neither party shall have any further
obligations or responsibilities under the Site License Addendum.
8.3 If Licensee determines that interference is occurring, then the City will meet
and confer with Licensee within 5 days of the City’s receipt of notice of
interference from Licensee, and otherwise diligently work in good faith with
Licensee to determine the root cause of the interference and to develop
workable solutions to resolve the interference in a mutually acceptable
manner. The City and Licensee agree that the use of the City-owned
4.1.a
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infrastructure shall be governed by and subject to FCC rules and regulations.
8.4 To the extent any Facilities interfere or disturb equipment owned by any third
party, Licensee shall notify such third party directly and make good faith
efforts to resolve the matter before involving the City.
9. Compliance with Laws; Hazardous Materials
9.1 Compliance with Laws. Licensee shall, at all times and at its sole
responsibility and expense, comply with all applicable Laws relating to the
installation, operation, maintenance, repair and/or removal of small cell
facilities, including FCC regulations for compliance with limits on human
exposure to radio frequency (RF) emissions. Licensee shall not cause or
permit any nuisance, nor trespass, nor do any act on City-owned
infrastructure which would increase the rate of insurance thereon. Licensee
shall defend, indemnify and hold harmless the City and its employees and
agents against any claims arising from any violations by Licensee, its agents
or employees, of any such Laws. The indemnity provision of this paragraph
shall survive the termination or expiration of this License.
9.2 RF Exposure Compliance. Licensee’s Facilities must comply with all
standards and regulations of the FCC and any other state or federal
government agency with the authority to regulate exposure to radio frequency
(RF) emissions. Licensee or its representative shall include in any application
for a Site License Addendum certification that the small cell facilities will
comply with applicable RF emissions limits, and at the City’s written request,
which shall be no more than once per year, must conduct on-site post-
installation RF emissions testing in accordance with applicable rules, and
certify actual compliance with the applicable RF emissions limits for general
population/uncontrolled RF exposure, and provide a copy of such post-
installation compliance report to the City.
9.3 Hazardous Materials. Licensee shall not introduce or use any hazardous
substances (chemical or waste), in violation of any applicable law or
regulation, nor shall Licensee allow any of its agents, contractors or any
person under its control to do the same. Licensee 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’s fees and costs, arising out of or
in connection with the cleanup or restoration of the property associated with
Licensee’s use, storage, or disposal of hazardous substances, whether or not
intentional, and the use, storage or disposal of such substances by Licensee’s
agents, contractors or other persons acting under Licensee’s control, whether
or not intentional.
10. Maintenance, Restoration and Repair
10.1 Licensee Responsibilities.
4.1.a
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10.1.1 Licensee shall, at its sole cost and expense and to the reasonable
satisfaction of the City: (a) maintain its Facilities in a safe condition,
in good repair and in a manner suitable to the City; (b) remove,
repair or replace any of its Facilities that is damaged or becomes
detached; (c) keep Facilities free of debris and anything of a
dangerous, noxious or offensive nature or which would create a
nuisance or hazard; and/or (d) repair any damage to the right-of-
way, City-owned infrastructure, or other property, whether public or
private, caused by Licensee, its agents, employees or contractors in
their actions relating to attachment, operation, repair or maintenance
of Facilities. Licensee shall complete such removal, repair, or
replacement within 30 days of receipt of the City’s written notice.
10.1.2 If Licensee does not complete or commence all necessary repairs
within the 30-day period, to the City’s reasonable satisfaction, the
City reserves all rights to do so at Licensee’s expense.
10.1.3 The terms of this Section 10.1 shall survive the expiration, completion
or earlier termination of this License.
10.2 City Maintenance of City-owned Infrastructure.
10.2.1 The City reserves the right to make alterations, repairs, additions,
removals and improvements to all or any part of the City-owned
infrastructure for any operational purpose. The City shall make a good
faith effort to give Licensee 72 hours’ prior notice of any City work if
such work will impair the operation of the Facilities.
10.2.2 Licensee will turn antennas and other Facilities producing radio
frequency off, or authorize the City to do so, when the City performs
any work on the City-owned infrastructure. If Licensee fails to turn off
the Facilities producing radio frequency within 72 hours of receipt of
notice, the City may take reasonable steps to turn them off.
10.2.3 The City shall not be liable for any indirect, special or consequential
damages to any person or property, nor shall Licensee be relieved
from any of its obligations under this License, as a direct or indirect
result of temporary interruption in the electrical power provided to the
City-owned infrastructure.
10.2.4 If the City, while making any repairs or improvements to City-owned
infrastructure as described by this section, or conducting such
emergency work as described by this section, should incur any extra
costs derived from the presence of Facilities, then Licensee shall
reimburse the City for all reasonable costs within 45 days of receipt of
an invoice detailing costs.
4.1.a
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10.2.5 The City has no duty to Licensee to make any repairs or
improvements to the City-owned infrastructure except for damage
caused by the City, its employees or agents. The City is not
responsible for any third-party damage to Facilities.
10.3 Emergency Measures.
10.3.1 The City retains the right to take necessary, appropriate or useful
measures, in response to any public health or safety emergency. If
the City becomes aware of an emergency before Licensee, then the
City shall notify Licensee by telephone or e-mail promptly upon
learning of the emergency and shall exercise reasonable efforts to
avoid an interruption of Licensee’s operations. The City may require
Licensee to deactivate such Facilities if any of the City’s employees or
agents must move closer to the Facilities than the FCC recommended
minimum distance. In this case, the City will contact Licensee to
request immediate deactivation. Licensee’s Facilities shall include an
emergency override switch for use by the City that would turn off the
system in case of a public safety emergency that presents the threat
of immediate and irreparable harm, such that notification to Licensee
is not feasible or practical.
10.3.2 The City will not be liable in any manner, and Licensee hereby waives
any claims, for any inconvenience, disturbance, loss of business,
nuisance, or other damage arising out of the City's access to the
Facilities, including the removal of Facilities from City-owned
infrastructure in an emergency, except damage resulting directly and
exclusively from the negligence or willful misconduct of the City or its
agents and not contributed to by the acts, omissions, or negligence of
Licensee, its agents, or contractors.
11. Sub-licensing, Subleasing & Assignment by Licensee
The rights and privileges granted to Licensee as provided in this License may not be
assigned or transferred to any other entity without written approval of the City,
which shall not be unreasonably withheld, conditioned or delayed; provided,
however, that upon written notice to the City, Licensee may assign or transfer the
rights and privileges granted herein to any parent or subsidiary of Licensee, to an
entity with or into which Licensee may merge or consolidate, to an entity which
controls, is controlled by, or is under common control with such entity or to any
purchaser of all or substantially all of the assets of Licensee in the market defined
by the FCC in which the City-owned infrastructure are located without the
requirement for City approval, so long as the successor provides written notice to
the City that it is then fully liable to the City for compliance with all terms and
conditions of this License. Licensee shall reimburse the City for all actual and
reasonable costs and expenses reasonably incurred by the City in considering a
request to transfer or assign this License.
4.1.a
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12. Insurance
12.1 At Licensee’s sole cost and expense, Licensee shall maintain throughout the
term of this License insurance as set forth in Exhibit D.
12.2 No more than once per 24-month period, the City may require increases in
this coverage by 60 days written notice to Licensee, as the City deems
reasonably necessary, generally consistent with industry standards.
12.3 Licensee’s maintenance of insurance as required by this Section 12 shall not
be construed to limit the liability of Licensee to the coverage provided by such
insurance, or otherwise limit the City’s recourse to any remedy available at
law or equity. Further, Licensee’s maintenance of insurance policies required
by this License shall not be construed to excuse unfaithful performance by
Licensee.
13. Hold Harmless
13.1 The City and its employees and agents shall not be liable for injury or damage
to any persons or property, including City-owned infrastructure, resulting from
the installation, operation or maintenance of the Facilities or facilities on City-
owned infrastructure, except for injury or damage caused by the City’s, its
employees’ or agents’ negligence or willful misconduct.
13.2 Licensee releases, covenants not to bring suit, and agrees to indemnify,
defend, and hold harmless the City, its officers, employees, agents, and
representatives from any and all claims, costs, judgments, awards, or liability
to any person, for injury or death of any person, or damage to property
caused by or arising out of any acts or omissions of Licensee, its agents,
servants, officers, employees and contractors in the performance of this
License and any rights granted within this License, or the presence of the
Facilities, except if caused by the City’s, its employees’ or agents’ negligence
or willful misconduct.
13.3 Inspection or acceptance by the City of any work performed by Licensee at
the time of completion of construction shall not be grounds for avoidance by
Licensee of any of its obligations under this Section 13.
13.4 The City shall promptly notify Licensee of any claim or suit and request in
writing that Licensee indemnify the City. The City’s failure to so notify and
request indemnification shall not relieve Licensee of any liability that Licensee
might have, except to the extent that such failure prejudices Licensee’s ability
to defend such claim or suit.
13.5 Licensee may choose counsel to defend the City at Licensee’s sole expense
subject to this Section 13, provided the City consents to Licensee’s choice of
counsel, which consent shall not be unreasonably withheld. If Licensee refuses
the tender of defense in any suit or any claim, as required pursuant to the
indemnification provisions within this License, and this refusal is subsequently
4.1.a
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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 Licensee, Licensee 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. If separate representation to fully protect the
interests of both parties is necessary, such as a conflict of interest between
the City and the counsel selected by Licensee and approved by the City to
represent the City, then upon the prior written approval and consent of
Licensee, which shall not be unreasonably withheld, the City shall have the
right to employ separate counsel in any action or proceeding and to
participate in the investigation and defense thereof, and Licensee shall pay
the reasonable fees and expenses of such separate counsel. The City’s fees
and expenses shall include all out-of-pocket expenses, such as consultants
and expert witness fees, and shall also include the reasonable value of any
services rendered by the counsel retained by the City (including the use of in-
house counsel). Each party agrees to cooperate and to cause its employees
and agents to cooperate with the other party in the defense of any such claim
and the relevant records of each party shall be available to the other party
with respect to any such defense.
13.6 The parties acknowledge that this License 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 Licensee and the City, its officers, officials, employees, and
volunteers, Licensee’s liability shall be only to the extent of Licensee’s
negligence. It is further specifically and expressly understood that the
indemnification provided constitutes Licensee’s waiver of immunity under Title
51 RCW, solely for the purposes of this indemnification. This waiver has been
mutually negotiated by the parties.
13.7 Licensee acknowledges and agrees that Licensee bears all risks of loss or
damage or relocation or replacement of its Facilities from any cause, and the
City shall not be liable for any cost of replacement or of repair to damaged
Facilities, including, without limitation, damage caused by the City’s removal
of the Facilities, loss of line of sight path, activities conducted by the City, its
officers, agents, employees, volunteers, elected and appointed officials, or
contractors, except to the extent any such damage or destruction is caused by
or arises from any negligent, willful misconduct, or criminal actions on the
part of the City, its officers, agents, employees, volunteers, or elected or
appointed officials, or contractors. Licensee releases and waives any and all
such claims against the City, its officers, agents, employees, volunteers, or
elected or appointed officials, or contractors.
13.8 Licensee shall indemnify, hold harmless and defend the City against any
claims for damages, including, but not limited to, consequential, special,
indirect, business interruption damages and lost profits, brought by or under
users of the Facilities as the result of any interruption of service due to
damage or destruction of the Facilities caused by or arising out of activities
4.1.a
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conducted by the City, its officers, agents, employees or contractors, or any
third parties, except to the extent any such damage or destruction is caused
by or arises from the negligence, willful misconduct, or criminal actions on the
part of the City, its officers, employees, or elected or appointed officials. This
limitation of liability shall apply even if the City is advised of the possibility
thereof, whether such damages arise out of breach of contract, breach of
warranty, negligence, strict liability or any other theory of liability and
whether such damages were foreseeable or not at the time this License was
executed.
13.9 Neither party shall be liable to the other, or any of their respective agents,
representatives, employees for any lost revenue, lost profits, loss of
technology, rights or services, incidental, punitive, indirect, special or
consequential damages, loss of data, or interruption or loss of use of service,
even if advised of the possibility of such damages, whether under theory of
contract, tort (including negligence), strict liability or otherwise.
13.10 The provisions of this Section 13 shall survive the expiration, revocation, or
termination of this License.
14. Performance Bond
Licensee shall furnish a surety bond or bonds, in a form reasonably acceptable to the
City, covering faithful performance of this License and payment of all obligations
arising thereunder, including but not limited to proper construction, long-term
facility maintenance, rent, timely removal of equipment and restoration. The bond
shall be in-force during the entire term or subsequent extensions or month-to-month
tenancies. The performance bond for this License shall not only indemnify the City
for the usual performance provisions of this License, but in addition shall be a bond
to guarantee payment of any and all tax liability of any type, kind, nature or
description due as a result of this License. This performance bond shall be issued to
the City prior to the issuance of any approvals for the construction of its Facilities on
the City-owned infrastructure. If the City so uses or applies any portion of the
performance bond, Licensee shall, upon 30 days’ written notice, restore the
performance bond to the full amount above specified, and Licensee’s failure to do so
shall constitute a material breach of this License. This performance bond shall be in
addition to any construction or maintenance bonds imposed by the City as part of its
permitting process. This performance bond shall remain in place until all of
Licensee’s Facilities have been removed by Licensee unless otherwise permitted to
remain by the City. The amount of the bond shall be dependent on the number of
City Poles used by Licensee as follows:
$25,000 bond for authorization to use 1-10 City Poles;
$125,000 bond for authorization to use 11-50 City Poles; and
$250,000 bond for authorization to use 50 or more City Poles. Licensee may
elect to combine the bond required by Licensee’s permits together with the
bond required by this License provided: (i) the combined bond meets all
4.1.a
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requirements for the performance bond outlined in this License and also
meets all of the requirements of the permit; and (ii) the City approves the
combining of bonds, such approval not to be unreasonably withheld.
15. Nondiscrimination
Licensee, for itself, its successors, and assigns does hereby covenant and agree to
comply with all civil rights and anti-discrimination requirements of Laws applicable to
City-owned infrastructure, including, without limitation, chapter 49.60 RCW and Title
49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A,
Office of the Secretary, Part 21, Nondiscrimination in Federally assisted programs of
the U.S. Department of Transportation-Effectuation of Title VI of the Civil Rights Act
of 1964, and as these regulations may be amended. If any of the above
nondiscrimination covenants are breached, the City may terminate the License and
to re-enter and repossess the City-owned infrastructure, and hold the same as if this
License had never been made or issued.
16. Site License Addendum Application Process
16.1 Prior to installation of any Facilities on a City-owned infrastructure, Licensee
shall first obtain a Site License Addendum executed by the City. To request a
Site License Addendum, Licensee shall submit the Site License Addendum in
the form attached as Exhibit A, executed by Licensee and accompanied by all
of the submittal requirements specified by the City. The Site License
Addendum must include Licensee’s certification that the plans submitted
comply with the Design Requirements. The Public Works Director or designee,
is authorized to execute a Site License Addendum provided that all submittal
requirements have been met.
16.2 The City may in its reasonable discretion require Licensee to make design
modifications in order to comply with the Design Requirements, to address
safety concerns, or applicable contractual, regulatory, or legal requirements or
may ask additional questions as necessary to determine feasibility of use of
the City-owned infrastructure.
16.3 If the City receives more than one Site License Addendum for the same City
Pole, then the City Pole shall be awarded to the first Site License Addendum
signed by both parties and for which Licensee has submitted the first payment
of Rent or Alternate Rent.
17. Default; City Remedies
17.1 Default. The following occurrences will constitute an “Event of Default” by
Licensee, if any such occurrence continues beyond the applicable notice and
cure period set forth in Section 19:
17.1.1 Failure to Pay. Licensee fails to pay any sum, including Rent or
taxes, due under this License upon the due date.
4.1.a
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17.1.2 Abandonment. Licensee’s failure to remove Facilities as further
described in Section 21.2.
17.1.3 Insolvency. Immediately, upon written notice, if a receiver is
appointed to take possession of Licensee’s assets, Licensee makes a
general assignment for the benefit of creditors, or Licensee becomes
insolvent or takes a suffers action under the Bankruptcy Act. Waiver
or acceptance by the City of any default of the terms of this License
by Licensee shall not operate as a release of Licensee’s responsibility
for any prior or subsequent default.
17.1.4 Lapsed Governmental Approvals. Licensee fails to maintain or
obtain any Governmental Approvals required to install and operate
small cell facilities and continues to operate such facilities.
17.1.5 Failure to Maintain Insurance. Licensee fails to maintain
appropriate insurance as required pursuant to Exhibit D.
17.1.6 Prohibited Assignment. Licensee assigns this License in violation of
Section 11.
17.1.7 Interference. Licensee operates or maintains its Facilities in
violation of the interference obligations in Section 8.
17.1.8 Unauthorized Construction. Licensee constructs or installs
Facilities without first obtaining a Site License Addendum.
17.1.9 Failure to Construct or Install Per Approved Design. Licensee
constructs, installs or modifies any Facilities in any manner which
does not comply with the requirements of the applicable Site License
Addendum or modification rights as set forth in Section 7.6.
17.1.10 Ceases to Provide Telecommunications Services. That Licensee
ceases to operate as a provider of telecommunications services under
federal law and fails to terminate this License and the existing Site
License Addendums.
17.1.11 Other Defaults. Licensee violates any material agreement, term or
covenant of this License.
17.2 City Remedies. Subject to the cure period described in Section 19, the City
shall have the following remedies upon an Event of Default. The City’s rights
and remedies under this License shall be cumulative, and none shall exclude
any other right or remedy allowed by law.
17.2.1 Continuation of License. Without prejudice to its right to other
remedies, the City may continue this License and applicable Site
License Addendums in effect, with the right to enforce all of its rights
and remedies, including the right to payment of Rent and other
charges as they become due for the remainder of the then-existing
term. The City may elect, in its discretion, upon written notice to
4.1.a
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Licensee, to suspend processing or response of any/all Licensee
requests, or granting of any/all approvals required of the City, with
respect to any matter (or requested matter) pursuant to this License.
17.2.2 Termination of License. If Licensee's default is of such a serious
nature in the City's sole judgment that the default materially affects
the purposes of this License, the City may terminate this License.
Termination of this License will affect the termination of all Site
License Addendums issued under it automatically and without the
need for any further action by the City. Upon termination of this
License, Licensee will remain liable to the City for damages in an
amount equal to the Rent and other sums that would have been owed
by Licensee under this License for the balance of the year in which the
termination is effective.
17.2.3 Termination of Site License Addendums. If an Event of Default
specific to one or more Site License Addendums is not cured by
Licensee within the applicable cure period, the City may terminate
such specific Site License Addendum(s).
17.2.4 Interest and Collection Costs on Past Due Monetary
Obligations. If Licensee fails or refuses to pay any of its payment
obligations due under this License (including without limitation any
Site License Addendum) on the due date then Licensee is obligated to
pay and shall immediately pay interest on amount due calculated at
the lesser of 10% per annum or the highest rate of interest allowed
under applicable law. Interest shall be calculated on a per day basis
commencing on the due date and continuing until paid in full. If
Licensee fails or refuses to pay any or all amounts due upon written
demand then Licensee shall be liable to pay all collection costs and
reasonable attorney’s fees incurred with respect thereto. The accrual
of interest on past due monetary obligations is automatic and does
not require the giving of notice.
18. Termination of Site License Addendum
In addition to the City’s rights contained in Section 17 (upon the occurrence of an
Event of Default), the parties have the following termination rights.
18.1 City’s Termination Rights. Subject to the cure provision of Section 19, the
City may terminate any Site License Addendum if the City determines that
Licensee’s exercise of its rights under this License:
18.1.1 Interferes with the City’s use of the City-owned infrastructure and/or
the structures on City-owned infrastructure for the municipal
purposes for which the City owns and administers such
structures/site, which may include the necessity to widen a street or
for other municipal projects that result in removing the streetlight;
18.1.2 Poses a threat to public health or safety, or constitutes a public
4.1.a
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nuisance; or
18.1.3 Unreasonably interferes with the use of the City-owned infrastructure
or attached equipment by a governmental agency with which the City
has an agreement to provide services to the City, e.g., PSERN or its
successor entity.
18.1.4 Notwithstanding the above and not subject to the cure provisions of
Section 19, the City shall have the following additional termination
rights:
a. The City may, in its sole discretion, determine that exigent
circumstances require immediate removal of Facilities from
City-owned infrastructure. Such exigent circumstances may
only include reasons of public health, safety or the need to
provide street lighting. Licensee shall remove its Facilities
within 48 hours, unless a longer period is provided by the City.
The applicable Site License Addendum will terminate upon the
removal of the Facilities.
b. The City may, in its sole discretion, remove any City-owned
infrastructure that it determines is unnecessary for its
municipal purposes. If the City decides to remove City-owned
infrastructure, it shall provide Licensee with at least 120 days’
written notice to remove its Facilities. The applicable Site
License Addendum will terminate upon the removal of the
Facilities.
18.2 Termination by Licensee. Licensee has the right to terminate any Site
License Addendum upon 90 days’ notice if Licensee determines in its sole
discretion that it desires to discontinue use of the City-owned infrastructure
for any reason.
18.3 General Termination Rights.
18.3.1 Condemnation. If all or any portion of the City-owned infrastructure
is needed, taken, vacated, conveyed, or condemned for any public
purpose such that Licensee cannot use its Facilities on the City-owned
infrastructure, either party may terminate the applicable Site License
Addendum. All proceeds from any taking or condemnation of the Site
or City-owned infrastructure shall belong and be paid to the City.
Licensee shall have all rights to its Facilities, which shall not be
included in any taking or condemnation.
18.3.2 Fire or Casualty. If all or any portion of the City-owned infrastructure
is so damaged by fire or other casualty that it cannot reasonably be
expected to be repaired within 90 days following the date of such
damage, either party may terminate the applicable Site License
Addendum upon 90 days’ written notice to the other party.
4.1.a
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19. Cure
If there is a breach by a Party with respect to any provisions or obligations of this
License, the non-breaching Party shall give the breaching Party written notice of the
breach. After receipt of this written notice, the breaching Party shall have 30 days in
which to cure any breach. If the breach cannot reasonably be cured within 30 days,
the breaching party shall not be in default if the party has commenced the cure
within the 30-day period and continuously and diligently pursues the cure to
completion.
20. Relocation
20.1 Relocation Requirement. Licensee understands and acknowledges that the
City may require Licensee to relocate, temporarily or permanently, one or
more 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 to meet adopted land use or design standards. Collectively, such
matters are referred to within this License with the term “Public
Improvement.” The City may also require relocation because the Facilities
interfere with or adversely affect proper operation of City-owned poles, traffic
signals, communications, or other City-owned infrastructure or to protect or
preserve the public health or safety.
20.2 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 Licensee shall relocate or remove its Facilities as required by the City,
and at no cost to the City, subject to the procedure in this Section 20.
Licensee acknowledges and agrees that the placement of Facilities on City-
owned structures does not convey an ownership interest in these structures.
20.3 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, Licensee 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
Licensee’s Facilities. The City shall provide Licensee at least 30 days’ written
notice prior to any excavation or exposure of Facilities. Licensee shall be
responsible for any delays due to failure to locate its Facilities when
requested, except that Licensee shall not be responsible for delays or
damages due to circumstances beyond the control of Licensee.
4.1.a
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20.4 Notice and Relocation Process. If the City determines that the Public
Improvement necessitates the relocation of Licensee’s existing Facilities, the
City shall:
20.4.1 At least 90 days prior to commencing the project, provide Licensee
with written notice requiring such relocation and a date by which
relocation must be complete; provided, however, that in 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 Licensee written notice as
soon as practicable; and
20.4.2 At least 90 days prior to commencing the project, provide Licensee
with copies of pertinent portions of the plans and specifications for the
improvement project and a proposed location for Licensee’s Facilities
so that Licensee may relocate its Facilities on other City-owned
infrastructure to accommodate the improvement project; and
20.4.3 After receipt of such notice and such plans and specifications,
Licensee shall complete relocation of its Facilities consistent with the
date for relocation established in accordance with this Section 20 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.
20.5 Alternative Arrangements. Licensee may make its own appropriate
arrangements in response to a request for relocation of its Facilities from a
person or entity other than the City, so long as any improvements being
constructed are not or will not become City-owned, operated or maintained;
except that any such arrangements shall not unduly delay the Public
Improvement and the proper permits are obtained. In this case, the Site
License Addendum may be terminated in accordance with Section 17.2.3.
20.6 Contractor Delay Claims. Licensee shall be solely responsible for the actual
and reasonable 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 Licensee'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 Licensee; Licensee
vendors and contractors will 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 attorney’s fees incurred by the City to the extent
directly attributable to such Licensee’s caused delay in the Public
Improvement.
20.7 Indemnification. Licensee will indemnify, hold harmless, and pay the costs
4.1.a
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of defending the City, in accordance with the provisions of Section 13.
20.8 City’s Costs. If Licensee fails, neglects, or refuses to remove or relocate its
Facilities as directed by the City following the procedures outlined in this
Section 20, the City may perform such work or cause it to be done, and the
City’s actual and reasonable costs shall be paid by Licensee. The City may also
terminate this License and repossess the City-owned infrastructure and hold
the same as if this License had never been made or issued in accordance with
Section 16.1.
20.9 Survival. The provisions of this Section 20 shall survive the expiration or
termination of this Franchise during such time as Licensee continues to have
Facilities on City-owned infrastructure.
20.10 No Relocation. Licensee acknowledges that the signing of this License does
not entitle Licensee to assistance under the Uniform Relocation and Real
Property Acquisition Policy (chapter 8.26 RCW).
21. Removal of Facilities Upon Termination
21.1 Within 60 days after the expiration or earlier termination of a Site License
Addendum or this License, unless a shorter window of time applies under
this License, upon request by the City, Licensee shall, at Licensee’s sole
expense, replace the Combination Pole with a replacement pole meeting the
standard design and construction criteria of the City. Rent shall continue to
accrue during any time period in which Licensee continues to have Facilities
on the City-owned infrastructure. This obligation shall survive the expiration
or earlier termination of this License. Any Facilities which are not removed
within 180 days, shall automatically become the property of the City. Any
actual and reasonable costs incurred by the City in safeguarding such
Facilities or removing the Facilities shall be reimbursed by Licensee. Nothing
within this Section 21 prohibits the City from compelling Licensee to remove
Facilities through judicial action when Licensee has not been permitted to
abandon the Facilities in place.
21.2 The Facilities, in whole or in part, may not be abandoned by Licensee without
written approval by the City. Any plan for abandonment or removal of
Facilities must be first approved by the City, and all necessary permits must
be obtained prior to such work. Notwithstanding the above, the City may
permit Facilities to be abandoned and placed in such a manner as the City
may prescribe. Upon permanent abandonment, Licensee shall execute such
necessary documents to transfer title to the City.
21.3 Prior to removal of its Facilities, Licensee shall notify the City in writing when
the Facilities have been removed, and comply with any other requirements
under Law.
21.4 The provisions of this Section 21 shall survive the expiration, revocation, or
termination of this License.
4.1.a
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22. Records; Audits
22.1 Information Request.
22.1.1 The City may require such information, records, and documents from
Licensee from time to time as are appropriate to reasonably monitor
compliance with the terms of this License. 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 Licensee’s Facilities in the City. Licensee shall
warrant the accuracy of all information provided to the City.
22.1.2 Licensee shall provide such records, at no cost to the City, within thirty
(30) days of a written request by the City for production of the same
unless additional time is reasonably needed by Licensee, in which case,
Licensee shall have such reasonable time as needed for the production
of the same, but no longer than sixty (60) days. If any person other
than Licensee maintains records on Licensee’s behalf, Licensee shall be
responsible for making such records available to the City.
22.2 Current Inventory. Licensee shall maintain a current inventory of Facilities
throughout the Term of this License. Licensee shall provide to the City a copy
of the inventory report by December 31 of each year and within 30 days of a
reasonable request by the City, which request shall be no more than once per
year. The inventory report shall include GIS coordinates, date of installation,
type of pole used for installation, description/type of installation for each
Facility and photographs taken before and after the installation of the Facility
and taken from the public street.
22.3 Public Records Act.
22.3.1 Licensee 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).
22.3.2 Licensee may identify documents submitted to the City that Licensee
believes are non-disclosable, such as trade secrets. Licensee is
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.
22.3.3 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 Licensee has designated as confidential, trade secret, or
4.1.a
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proprietary, the City shall provide Licensee with written notice of the
request, including a copy of the request prior to disclosure so that
Licensee can take appropriate steps to protect its interests. Nothing in
this Section 22.3 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 Licensee
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 Licensee’s behalf.
22.3.4 The City shall comply with any injunction or court order obtained by
Licensee 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,
Licensee shall reimburse the City for any fines or penalties imposed
for failure to disclose such records within 45 days of a request from
the City, unless additional time is reasonably necessary under the
circumstances and is agreed to by the parties.
23. Miscellaneous
23.1 Entire Agreement. This License 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 License, except that any subsequently
adopted City policies and procedures for telecommunications/communications
license agreements, Site License Addendums and final applicable permits shall
be binding on the parties.
23.2 Modifications. The City and Licensee hereby reserve the right to alter,
amend, or modify the terms and conditions of this License upon written
agreement of both parties to such alteration, amendment or modification.
23.3 Non-Waiver. The failure of the City to insist upon strict performance of any
of the covenants and agreements of this License or to exercise any option in
any one or more instances, shall not constitute a waiver or relinquishment of
any such covenants, agreements or option or any other covenants,
agreements or option.
23.4 Police Powers and City Ordinances. Nothing within this License restricts
the City’s ability to adopt and enforce all necessary and appropriate
ordinances regulating the performance of the conditions of this License,
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 has the
authority at all times to reasonably control by appropriate regulations the
location, elevation, manner of construction and maintenance of Facilities by
Licensee, and Licensee shall promptly conform with all such regulations unless
compliance would cause Franchisee to violate other requirements of law. In
4.1.a
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the event of a conflict between the provisions of this License 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 in this License.
23.5 Conflicts. If any provision of this License or the applicable Site License
Addendum conflicts or inconsistencies with the terms, conditions or
requirements of the Design Standards, then the stricter term shall have
precedence.
23.6 Cooperation in Execution of Subsequent Documents. The City and
Licensee agree to cooperate in executing any documents necessary to protect
the rights of the parties granted by this License.
23.7 Headings. The headings to paragraphs or sections of this License are for
convenience only, and shall have no effect on the construction or
interpretation of any paragraph hereof.
23.8 Notices. Except as otherwise designated in this License, any notice, request,
demand, statement, or consent herein required or permitted to be given by
either party to the other hereunder, shall be in writing, signed by or on behalf
of the party giving the notice and addressed to the other at the address as set
forth in Exhibit C. Each party may by notice in writing change its address for
the purpose of this License, which address shall thereafter be used in place of
the former address. Each notice, demand, request, or communication which
shall be mailed to any of the aforesaid shall be deemed sufficiently given,
served, or sent for all purposes hereunder (i) two business days after it shall
be mailed by United States registered or certified mail, postage prepaid and
return receipt requested, in any post office or branch post office regularly
maintained by the United States Postal Service, (ii) upon personal delivery, or
(iii) one business day after deposit with any recognized commercial air courier
or express service. Any communication made by e-mail or similar method
shall not constitute notice pursuant to this License.
23.9 Authority to Execute. Any individual executing this License, represents and
warrants that he or she is duly authorized to execute and deliver this License
on behalf of such party and this License is binding upon such party in
accordance with its terms.
23.10 Executed in Counterparts. This License may be executed in any number of
counterparts, each of which shall be an original, but all of which together shall
constitute but one instrument.
23.11 Governing Law and Venue. This License shall be governed and construed
by and in accordance with the laws of the State of Washington, without
reference to its conflicts of law principles. The venue for any dispute related to
this License shall be the United States District Court for the Western District of
Washington, or King County Superior Court, without waiver for any right to
removal.
4.1.a
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23.12 Binding on Successors. This License shall be binding upon and inure to the
benefits of the heirs, executors, administrators, successors and assigns of the
parties.
23.13 No Recording. Licensee shall not record any documents (such as, for
example, a memorandum, lien, assignment or security interest) against the
City’s title without the City’s express prior written approval which it may
withhold in its sole discretion.
23.14 Business License. Prior to constructing any Facilities or providing services
within the City, Licensee shall obtain a business and/or utility license from the
City.
23.15 Severability. The provisions of this License shall be deemed severable and if
any portion shall be held invalid, illegal or unenforceable for any reason, the
remainder of this License shall be effective and binding upon the parties.
23.16 No Third Party Beneficiaries. It is not intended by any of the provisions of
this License to create for the public, or any member thereof, a third-party
beneficiary right or remedy, or to authorize anyone to maintain a suit for
personal injuries or property damage pursuant to the provisions of this
License.
23.17 Force Majeure. Time periods for performance under this Agreement shall be
deemed extended day for day for time lost attributable to any delay resulting
from any Event of Force Majeure. An “Event of Force Majeure” means any act
of God, strike or material or labor shortage, or other events, if the occurrence
was not reasonably foreseeable by the party and is beyond the reasonable
control of the party whose performance is required under the License.
24. 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:
4.1.a
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If to Licensee (including invoices):
New Cingular Wireless PCS, LLC
Attn: Tower Asset Group – Lease
Administration
Re: Wireless Installation on Public
Structures
(City of Kent) (WA)
FA No.: ____________________
1025 Lenox Park Blvd. NE
3rd Floor
Atlanta, GA 30319
If to the City:
CITY OF KENT
Attn: City Clerk
220 Fourth Avenue South
Kent, WA 98032
With a copy to the AT&T Legal
Department:
New Cingular Wireless PCS, LLC
Attn:AT&T Legal Dept. - Network
Operations
Re: Wireless Installation on Public
Structures
(City of Kent) (WA)
FA No: ________________
208 S. Akard Street
Dallas, TX 75202-4206
4.1.a
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IN WITNESS WHEREOF, the parties hereto have executed this License on the
respective dates below indicated.
LICENSEE: New Cingular Wireless
PCS, LLC
By: AT&T Mobility Corporation
Its: Manager
By:
(signature)
Print Name:
Its
(title)
DATE:
CITY OF KENT:
By:
(signature)
Print Name: Dana Ralph
Its Mayor
DATE:
APPROVED AS TO FORM:
Kent Law Department
ATTEST:
Kent City Clerk
STATE OF WASHINGTON COUNTY OF KING
I certify that I know or have satisfactory evidence that
is the person who appeared before me, and said person acknowledged that (he/she)
signed this instrument, on oath stated that (he/she) was authorized to execute the
instrument and acknowledged it as the of
to be the free and voluntary act of such party for the uses and purposes mentioned
in the instrument.
DATED this day of , 20 .
(SEAL)
4.1.a
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Exhibit A
Site License Addendum
This Site License Addendum (“Addendum”), dated ____between the
City of Kent, (“City”) and New Cingular Wireless PCS, LLC (“Licensee”):
1. Addendum. This is a Site License Addendum as referenced in the Master License
Agreement between the City and Licensee, dated ("License"). The
purpose of the Site License Addendum is for the Licensee to reserve one or more
City-owned infrastructure at the following location(s):
__________________________________________________________
__________________________________________________________
This Addendum is subject and subordinate to the terms and conditions of the
License. In the event of a contradiction, modification or inconsistency between
the terms of the License and this Addendum, the terms of the License shall
govern. Unless otherwise indicated, terms used in this Addendum have the same
meaning as set forth in the License.
2. Term. The term of this Addendum shall commence on the Rent Commencement
Date and shall terminate upon the License termination unless earlier terminated
by a party consistent with the License. Upon termination of the License and,
consequently, this Addendum, Licensee shall comply with all applicable License
terms and conditions.
3. Fees/Payments Due.
3.1 Rent. Licensee shall pay Rent for Facilities to be installed on each City-
owned infrastructure pursuant to this Site License Addendum in
accordance with the License.
3.2 Additional Fees. In addition, Licensee shall pay such additional fees and
charges, including Administrative or Permit Fees, such as are required
pursuant to the terms of the License.
4.1.a
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This Addendum is not valid or enforceable until fully executed by authorized
representatives of both parties.
LICENSEE: NEW CINGULAR
WIRELESS PCS, LLC
By: AT&T Mobility Corporation
Its: Manager
By:
(signature)
Print Name:
Its
(title)
DATE:
CITY OF KENT:
By:
(signature)
Print Name:
Its
DATE:
APPROVED AS TO FORM:
Kent Law Department
ATTEST:
Kent City Clerk
4.1.a
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Exhibit B
Leasehold Excise Tax Exemption
To be inserted, if applicable
4.1.a
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Exhibit C
Contact Information/Notices
If to City: If to Licensee:
City of Kent
220 Fourth Avenue S
Kent, WA 98032
ATTN: Transportation Director
New Cingular Wireless PCS, LLC
Attn: Tower Asset Group – Lease
Administration
Re: Wireless Installation on Public
Structures
(City of Kent) (WA)
1025 Lenox Park Blvd. NE
3rd Floor
Atlanta, GA 30319
With copies to:
City of Kent
220 Fourth Avenue S
Kent, WA 98032
ATTN: City Attorney
City of Kent
220 Fourth Avenue S
Kent, WA 98032
ATTN: City Engineer
With copies to:
New Cingular Wireless PCS, LLC
Attn: AT&T Legal Dept. - Network
Operations
Re: Wireless Installation on Public
Structures
(City of Kent) (WA)
208 S. Akard Street
Dallas, TX 75202-4206
For Emergencies:
City of Kent
220 Fourth Avenue S
Kent, WA 98032
City shall notify Licensee via email
with names, address, phone, email of
person(s) to contact in case of
emergency
For Emergencies:
ATTN:
NOC:
1-800-832-6662
4.1.a
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Exhibit D Insurance Requirements
The Licensee shall procure and maintain for the duration of this License insurance
against claims for injuries to persons or damages to property which may arise from
or in connection with the performance of the work hereunder by the Licensee, or its
agents, representatives, employees or subcontractors. Such insurance certificates
and required endorsements evidencing the insurance required below shall be
provided to the City upon execution of this License. The cost of such insurance shall
be paid by the Licensee. Insurance shall meet or exceed the following limits and shall
be maintained for the Term and so long as Licensee has Facilities on any City-owned
infrastructure.
A. Minimum Insurance.
1. Commercial General Liability coverage with limits of $3,000,000 per occurrence
/ $6,000,000 annual aggregate.
2. Stop Gap/Employers Liability coverage with limits of $2,000,000 per
accident/disease policy limit.
3. Commercial Automobile Liability coverage with combined single limits of
$2,000,000 per each accident for bodily injury and property damage covering
all owned, non-owned, and hired vehicles.
4. Worker’s Compensation coverage or qualified self-insurance as required by the
Industrial Insurance Laws of the State of Washington.
5. Excess Liability with limits of $15,000,000 per occurrence and in the
aggregate. The Licensee may use any combination of primary and excess to
meet required limits.
B. Other Provisions. Required Commercial General Liability and the Excess Liability
policies shall:
1. Be endorsed to include the City, its officials, employees and volunteers as
additional insureds as their interests may appear under the Agreement. A
blanket insurance additional insured endorsement is acceptable;
2. State the policy number; name of insurance Licensee; name and address of
the agent or authorized representative; name and address of insured; project
name; policy expiration date; and specific coverage amounts;
3. Provide that Licensee’s Commercial General Liability insurance policy is primary
as respects any other valid or collectible insurance that the City may possess,
including any self-insured retentions the City may have; and any other
insurance the City does possess shall be considered excess insurance only and
shall not be required to contribute with this insurance;
4.1.a
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4. That Licensee’s Commercial General Liability insurance policy waives any right
of recovery the insurance Licensee may have against the City; and
5. Endeavor to provide that coverage shall not be canceled except after 30 days’
written notice has been given to the City. Further, within 5 days prior to send
cancellation or intent not to renew, Licensee shall obtain and furnish to City
replacement insurance policies meeting the above requirements. Licensee shall
provide at least 30 days written notice of cancellation or nonrenewal of any
required coverage that is not replaced.
C. Acceptability of Insurers. Insurance shall be placed with insurers with a rating
of A.M. Best & Licensee’s Key Rating Guide of A Overall and a Financial Size
Category of “VII.”
D. Verification of Coverage. Licensee shall furnish the City with certificates of
insurance required by this License. The certificates are to be received by the City
before work commences.
E. Subcontractors. Subcontractors are to provide coverage which complies with
the requirements with reasonable and prudent limits and practices of the City for
the issuance of right of way use permits.
F. Self-Insurance. As of the effective date of this License and the use granted
herein, Licensee is not self-insured for any coverage other than worker’s
compensation (if applicable). Should Licensee wish to become self-insured for any
other required coverage at the levels outlined in this License at a later date,
Licensee must provide the City with thirty (30) days advanced written notice of its
intent to self-insure. In order to self-insure, Licensee shall comply with the
following: (i) Licensee or its parent Licensee shall maintain throughout the term of
this License a net worth of at least $250,000,000; (ii) Licensee shall provide the
City, upon written request, a letter outlining the current equity balance of Licensee
(or parent entity); (iii) Licensee is responsible for all payments within the self-
insured retention, if any; and (iv) Licensee assumes all defense and indemnity
obligations as outlined in this License.
4.1.a
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FINANCE DEPARTMENT
Paula Painter, Finance Director
220 Fourth Avenue South
Kent, WA 98032
253-856-5264
DATE: January 28, 2020
TO: Kent City Council - Committee of the Whole
SUBJECT: Payment of Bills
MOTION: Approve the Payment of Bills.
SUMMARY:
4.2
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