HomeMy WebLinkAboutCAG2025-016 - Other - Ezee Fiber Texas, LLC - Limited License Agreement between the City of Kent and Ezee Fiber Texas LLC FOR CITY OF KENT OFFICIAL USE ONLY
Sup/Mgr:
Agreement Routing Form DirAsst:
• For Approvals,Signatures and Records Management Dir/Dep:
KEN T This form combines&replaces the Request for Mayor's Signature and Contract Cover (optional)
WASHINGTON Sheet forms. (Print on pink or cherry colored paper)
Originator: Department:
T. Reyes-Selden for C. Schuck Law
Date Sent: Date Required:
> 01/09/2025 ASAP
0
C Mayor or Designee to Sign. Date of Council Approval:
CL
Q Interlocal Agreement Uploaded to Website N/A
Budqet Account Number: Grant? Yes No[-v-/]
Budget? Yes E]No Type: N/A
Vendor Name: Category:
Ezee Fiber Texas, LLC License
Vendor Number: Sub-Category:
Original
0
aProject Name: Limited License Agreement between the City of Kent and Ezee Fiber Texas, LLC
I- Project Details: Limited license agreement to deploy a fiber network throughout the City of
= Kent to help provide telecommunications services to residents and
+, businesses.
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Agreement Amount: N/A
Basis for Selection of Contractor:
� "Memo to Mayor must be attached
°.' Start Date: Upon execution Termination Date: 1 year or adoption of franchise
IT
Q Local Business?[—]Yes[:]No*lfineetsrequirementsperKCC3.70.100,pleasecomplete"VendorPurchase-LocalExceptions"formonCityspace.
Business License Verification: 0Yes ln-Process❑Exempt(KCC 5.01.045) ElAuthorized Signer Verified
Notice required prior to disclosure? Contract Number:
F�YesONo CAG2025-016
Comments:
1 Mayor - Please sign and notarize.
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Date Received:City Attorney: 1/9/25 Date Routed:Mayor's Office dJCC(7� City Clerk's Office
adccW22373.1_20 Visit Documents.KentWA.gov to obtain copies of all agreements a✓
rev.20221201
LIMITED LICENSE BETWEEN
THE CITY OF KENT AND
EZEE FIBER TEXAS, LLC
THIS LIMITED LICENSE ("License") is between the CITY OF KENT, a
Washington Municipal Corporation ("City"), and Ezee Fiber Texas, LLC, a foreign
limited liability company ("Licensee").
RECITALS
A. Licensee seeks to deploy a fiber network throughout the City of Kent
("City"), to help provide telecommunications services, including Internet access
services to residents and businesses within the City.
B. The City has agreed to issue this license on a temporary basis, until
Licensee obtains a franchise agreement, the terms of which have already been
negotiated.
NOW, THEREFORE, THE CITY AND LICENSEE AGREE AS FOLLOWS:
LICENSE
SECTION 1. — Definitions. In addition to terms otherwise defined herein, the
following definitions shall apply generally to the provisions of this License.
1.1 '"Applicable Laws" means any local, federal, or state statute, law,
regulation, or other legal authority governing any of the matters addressed in this
License, as all now exist or as later amended or superseded.
1.2 '"City" means the City of Kent, Washington, a Washington municipal
corporation.
1.3 ' Director" means the Public Works Director, Economic and Community
Development Director or designee.
1.4 "Emergency Situation" means a condition posing an imminent threat to
property, life, health, or safety of any Person or entity.
1.5 "Facilities" or "Network" means one or more elements of Licensee's fiber
network, with all necessary aerial or underground fiber optic cables, lines, wires, or
strands and associated appurtenances; underground conduits, vaults, access
manholes and handholes; electronic equipment; power generators; batteries;
pedestals; boxes; cabinets; vaults; and other similar facilities. New utility poles or
towers for overhead wires, cabling or antennas are specifically excluded.
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1.6 "Force Majeure Event" means natural disasters, civil disturbances, work
stoppages or labor disputes, power outages, telephone network outages, and severe
or unusual weather conditions which have a direct and substantial impact on the
Licensee's ability to provide Services in the City and which was not caused and
could not have been avoided by the Licensee which used its best efforts in its
operations to avoid such results.
1.7 "Hazardous Substances" means any substance or material that is
regulated by any current or future federal, state, or local statutes, regulations,
ordinances, and rules relating to: the emission, discharge, release or threatened
release of any hazardous substance into the air, surface water, groundwater or
land; the manufacturing, processing, use, generation, treatment, storage, disposal,
transportation, handling, removal, remediation or investigation of a hazardous
material; and the protection human health, safety, or the indoor or outdoor
environment, including without limitation the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. §§ 9601, et seq.; the
Hazardous Materials Transportation Act, 49 U.S.C. §§ 5101, et seq.; the Resource
Conservation and Recovery Act, 42 U.S.C. §§ 6901, et seq.; the Toxic Substances
Control Act, 15 U.S.C. §§ 2601, et seq.; the Clean Water Act, 33 U.S.C. §§ 1251, et
seq.; the Clean Air Act, 42 U.S.C. §§ 7401, et seq.; the Occupational Safety and
Health Act, 29 U.S.C. §§ 651, et seq.; all applicable environmental statutes of the
State of Washington; and all other federal, state or local statutes, laws, ordinances,
resolutions, codes, rules, regulations, orders or decrees regulation, relating to, or
imposing liability or standards of conduct concerning any hazardous, toxic or
dangerous waste, substance or material, as now or at any time hereafter in effect.
1.8 "Licensee" means Ezee Fiber, LCC, a foreign limited liability company.
1.9 "Microtrenching" means a technique for installing conduit to house
fiberoptic cable, utilizing a shallower and narrower cut, up to 2" wide with a depth
up to 16".
1.10 "Parties" (singular""Party") refers to both the City and Licensee.
1.11 "Person" means any natural person, or public or private legal entity of any
kind.
1.12 "Public Improvement" means the establishment and improvement of new
Rights-of-Way, widening or improvement of existing Rights-of-Way or both, freeway
construction, change or establishment of street grade, or the construction of any
public infrastructure by any governmental agency acting in a governmental capacity
as approved by the City, or as otherwise necessary for the operations of the City or
other governmental entity.
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1.13 "Rights-of-Way" (singular `Right-of-Way") as used in this License, 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 Licenses 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
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. — License Granted.
2.1 License Term. The City grants this non-exclusive License ("License") for a
period of one year from the Effective Date or until an ordinance authorizing a
franchise agreement between the parties is effective, whichever occurs first
(`License Term"). The License shall automatically expire in accordance with this
Section 2.1.
2.2 License Purpose. This License grants Licensee 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 fiber
optic infrastructure Network in, under, on, across, over, through, along or below
the public Rights-of-Way located in the City, and any areas added to the corporate
limits of the City during the term of this License (the "License Area") for the
purpose of providing the Services (as defined in Section 2.5).
2.3 Revocation and Termination. The intent of this License is to authorize
Licensee to install its Facilities on City right-of-way, which right-of-way constitutes
a valuable property interest owned by the City. This License does not grant an
estate in the land; it is not an easement; it is not a License; it is not exclusive; and
it does not exclude the City from full possession of the right-of-way. As a License
upon real property, it is revocable at the will of the City. However, prior to
termination or revocation by the City before the end of the License Term, the City
shall provide Licensee with at least 60 days' written notice of termination or
revocation. Upon receipt of such notice from the City, Licensee is required to
remove all Facilities and restore the right-of-way in accordance with Section 3.9.
2.4 Limited Authorization. This License shall not prevent the City from granting
other franchises or licenses within its Rights-of-Way, nor shall it 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 retains power to make all necessary
changes, relocations, repairs, maintenance, establishment, improvement,
dedication of Right-of-Way as it deems fit, including the dedication, establishment,
maintenance, and improvement of all new Rights-of-Way, thoroughfares, and other
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I
public properties of every type and description.
2.5 Authorized Services.
2.5.1 Licensee represents that it intends to provide the following services
within the City (the "Services"): telecommunications services, including Internet
access services as defined RCW 82.04.297 and Voice over Internet Protocol
services, but excluding multichannel video programming services that would be
subject to a video services franchise, to residents and businesses within the City
(the "Customers"). Licensee may not offer Cable Services as that term is defined in
47 U.S.C. § 522(6). This License does not authorize any wireless communications
services.
2.5.2 Licensee 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 this Section 2.5 to its Customers consistent with this License provided:
a. Licensee at all times retains exclusive control over its Facilities and
Services; remains responsible for constructing, installing, and
maintaining its Facilities pursuant to the terms and conditions of this
License; and solely responsible for providing and maintaining Services
to its Customers;
b. Licensee may not grant rights to any Customer or lessee that are
greater than any rights Licensee has pursuant to this License;
C. Such Customer or lessee will not be construed to be a third-party
beneficiary under this License; and
d. No Customer or lessee that accesses Licensee's Facilities within the
City limits may use the Facilities or Services for any purpose not
authorized by this License, unless that Customer has a License with
the City. Then, the Customer may use Licensee's Facilities or Services
consistent with the terms of its License.
SECTION 3. — Work in the Rights-of-Way.
3.1 Location of Facilities. Licensee may locate its Facilities within the License
Area consistent with the City's Design and Construction Standards and subject to
the City's applicable permit requirements. Except that, until the City adopts a code
amendment or administrative regulations addressing Microtrenching, Licensee may
only install Facilities by Microtrenching or in a micro trench under conditions
imposed in a separate agreement.
3.2 Permits Required. Licensee shall not commence any work within any Rights-
of-Way without first obtaining all necessary permits as required by Applicable Laws.
Licensee shall pay the standard permit fee, then all lawful processing, field marking,
engineering, and inspection fees associated with the issuance of permits by the
City.
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3.3 Work Requirements. During any period of relocation, construction or
maintenance, all work performed by Licensee or its contractors shall be
accomplished in a safe and workmanlike manner and only after obtaining permits or
other authorization pursuant to Section 3.2 and this Section 3.3. Licensee shall
minimize interference with the free passage of traffic and the free use of adjoining
property, whether public or private. Licensee shall at all times post and maintain
proper traffic control to warn and direct the road users, consistent with the
requirements of Applicable Law. 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. Licensee shall also comply with all applicable safety regulations
during such period of construction as required by all Applicable Laws, including,
without limitation, RCW 39.04.180 for the requirement of trench safety systems for
trench excavations.
3.4 Work of Contractors and Subcontractors. Licensee's contractors and
subcontractors shall be licensed and bonded in accordance with Applicable Laws.
Work by contractors and subcontractors is subject to the same restrictions,
limitations, and conditions as if the work were performed by Licensee. Licensee
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 Licensee
and shall ensure that all such work is performed in compliance with this License and
Applicable Laws.
3.5 Maintenance of Facilities. Licensee shall, at its own expense, maintain its
Facilities in a safe condition, in good repair, and in a manner suitable to the City.
Additionally, Licensee 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.
3.6 Shared Excavation. If either the City or Licensee plans to make excavations
in any area covered by this License and as described in this Section 3.6, the Party
planning the excavation shall endeavor to afford the other an opportunity to share
the 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 a request for constructability and/or
safety reasons.
3.7 Coordination of Construction.
3.7.1 Except for Emergency Situations, Licensee shall give advance written
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notice of intended construction to property owners and/or residents within 100 feet
of the construction area as follows: if construction is ground disturbing - at least
seven days; otherwise - 48 hours. This notice shall contain the dates, contact
number, nature, and location of the work to be performed; a door hanger is
permissible. At least 24 hours before entering private property or streets or public
easements adjacent to or on such private property, Licensee 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 License gives the Licensee
the right to enter onto private property without the permission of the private
property owner.
3.7.2 Licensee 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, Licensee shall restore the private property as nearly as possible to its
condition prior to construction, except for any change in condition not caused by
Licensee. Any disturbance of landscaping, fencing, or other improvements on
private property caused by Licensee's work shall, at the sole expense of Licensee,
be promptly repaired and restored to the reasonable satisfaction of the property
owner/resident.
3.7.3 Upon prior written notice from the City, Licensee 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
Licensee shall coordinate all construction locations, activities, and schedules as
directed by the City.
3.8 One Call Locator Service. Before doing any work in the Rights-of-Way, the
Licensee shall follow established procedures, including contacting the Utility
Notification Center in Washington and comply with all Applicable Laws regarding the
One Call Locator Service pursuant to chapter 19.122 RCW. Neither the City nor its
contractors, shall be liable for any damages to Licensee's Facilities or for
interruptions in service to Licensee's Customers that are a direct result of Licensee'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.
3.9 Restoration and Repair of Rights-of Way.
3.9.1 Licensee 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 15,
within 30 days following the date of any of these activities at Licensee's sole cost
and expense. Licensee shall restore the Rights-of-Way and the surface of the
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Rights-of-Way to the same or better condition as it was immediately prior to any
installation, construction, relocation, maintenance, or repair by Licensee. Licensee
shall not be responsible for any changes to the Rights-of-Way not caused by
Licensee or anyone doing work for Licensee.
3.9.2 Licensee agrees to complete all restoration work to the License 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 or other agreement.
Licensee also agrees to repair any damage caused by work to the License Area
within 14 days unless otherwise approved by the Director. All work by Licensee
pursuant to this License shall be performed in accordance with applicable City
standards and shall be warranted for as long as Licensee has Facilities within the
Rights-of-Way and also for undiscovered defects including the condition of the
pavement surface altered by the installation, repair, relocation, or removal of
Licensee's Facilities. The warranty for Licensee's work in a specified location will end
if the City completes a Public Improvement modifying or altering the pavement
surface, such as: overlays, slurry seals, or chip seals.
3.9.3 If conditions (e.g., weather) make the complete restoration required
under this Section 3 impracticable, Licensee shall temporarily restore the affected
Right-of-Way or property at its sole cost and expense to the City's satisfaction.
Licensee shall promptly undertake and complete the required permanent
restoration as soon as conditions no longer make permanent restoration
impracticable.
3.9.4 If Licensee does not repair a Right-of-Way or an improvement in or to
a Right-of-Way within the time prescribed by this Section 3, the City may repair the
damage and shall be reimbursed its actual costs within 60 days of submitting an
itemized invoice to Licensee in accordance with the provisions of Section 11. The
City may also bill Licensee for any expenses associated with the inspection of this
repair work and for costs incurred by the City for delays impacting Public
Improvements.
3.10 Survey Monuments. 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. Licensee 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 Licensee.
3.11 Trees. Licensee may trim trees within the Right-of-Way so as to prevent the
branches of these trees from coming in contact with Licensee's above ground
Facilities. Licensee shall ensure that its tree trimming activities protect the
appearance, integrity, and health of the trees to the extent reasonably possible.
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Licensee shall be responsible for all debris removal from these activities. Nothing in
this License grants Licensee 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.
Licensee shall be solely responsible and liable for any damage to any third parties'
trees or natural growth caused by Licensee's actions.
3.12 Graffiti Removal. Licensee shall remove all graffiti on any of its Facilities no
later than 14 days from the date Licensee receives written notice from the City or is
otherwise made aware of the graffiti. Facilities installed above ground, such as
cabinets, shall have their exterior surface wrapped with an anti-graffiti gloss
overlaminate.
SECTION 4. — Relocation of Facilities.
4.1 Relocation Requirement.
4.1.1 Licensee 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 for Public Improvement.
4.1.2 If the City's request for relocation arises from a Public Improvement,
in which Facilities must be either replaced or removed, then Licensee shall relocate
or remove its Facilities at its sole cost and expense, subject to the procedure in
Section 4.3. Licensee acknowledges and agrees that the placement of Facilities on
third party-owned or City owned structures does not convey an ownership interest
in these structures.
4.2 Design Locates. To facilitate the design of City street and Right-of-Way
improvements, upon written request of the City, or a third party performing work in
the Right-of-Way, Licensee shall, at its sole cost and expense, locate, and if
determined necessary by the City, excavate, and/or survey its Facilities so that as
the Facilities' location may be taken into account in the design of the
improvements. The decision as to whether any Facilities need to be relocated to
accommodate the Public Improvement shall be made by the City. The Licensee shall
respond to the City's request for excavation and/or survey within 30 days.
4.3 Notice and Relocation Procedure. If the City determines a Public
Improvement necessitates the relocation of Licensee's existing Facilities, the City
shall:
a. At least 90 days before commencing the Public Improvement, provide
Licensee with written notice requiring such relocation and a date by
which relocation must be complete; except that in the event of an
Emergency Situation, the City shall give Licensee written notice as
soon as practicable; and
b. At least 90 days before commencing the Public Improvement, provide
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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 in other
City Rights-of-Way in order to accommodate such improvement
project; and
C. After receipt of this notice and such plans and specifications, Licensee
shall complete relocation of its Facilities by the date established in
accordance with this Section 4.3 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.
4.4 Alternative Arrangements. The 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 a City construction project.
4.5 Contractor Delay Claims. Licensee 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 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 shall not be considered
unrelated third parties). The 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 Licensee's caused delay in the Public
Improvement.
4.6 Moving of Buildings or Other Objects. Licensee 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 the temporary removal, raising or
lowering of Facilities shall be at the expense of the requestor.
4.7 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 4,
the City may perform this work or cause it to be done, and the Licensee shall pay
the City's costs in accordance with Section 11.
SECTION 5. — Undergrounding of Facilities.
5.1 Underground Installation. 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 ("KCC"),
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where all other utilities are required to underground. Unless otherwise permitted by
the City, Licensee shall also underground its Facilities in all new developments and
subdivisions and in any development or subdivision where utilities are currently
underground.
5.2 Future Requirement to Underground. If the City requires the undergrounding
of aerial utilities in any area of the City, Licensee shall underground its aerial
Facilities in the manner specified by the City, concurrently with and in the area of
the other affected utilities, in a location approved by the City and at Licensee's
expense. This requirement applies even if the City did not require the
undergrounding of Licensee's Facilities at the time of a permit application and/or
subsequent construction.
5.3 Utility Trench Access. Licensee may be provided reasonable access to open
utility trenches constructed as part of a Public Improvement, so long as this access
does not interfere with the City's placement of utilities or increase the City's costs.
Licensee shall pay the City's actual costs of providing Licensee 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 the
project. Licensee shall reimburse the City in accordance with the provisions of
Section 11.
5.4 Removal of Fiber. Licensee 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 without a permit as may be required by
Applicable Laws.
SECTION 6 — Information, Inventory and Records.
6.1 Information Request.
6.1.1 Licensee shall supply and maintain updated, at no cost to the City, any
information reasonably requested by the City to coordinate its functions with the
Licensee's activities and fulfill any municipal functions under Applicable Laws. 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.
6.1.2 Within 30 days of a written request from the Director, but no more
than once annually, the Licensee shall furnish the City with information sufficient to
demonstrate: 1) that the Licensee has complied with all applicable requirements of
this License; and 2) that all utility taxes due the City in connection with the
Licensee's Services and Facilities have been properly collected and paid by the
Licensee.
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6.2 Current Inventory. Licensee shall maintain a current inventory of Facilities
throughout the Term of this License. Licensee shall provide to City a copy of the
inventory report within 60 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 and 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. Licensee shall cooperate with the
City to furnish this information in an electronic mapping format compatible with the
current City electronic mapping format using the approved City datum.
6.3 Inspection. All books, records, maps, and other documents maintained by
Licensee 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 6.3 shall be construed to require Licensee to violate
Applicable Laws regarding customer privacy, nor shall this Section 6.3 be construed
to require Licensee to disclose proprietary or confidential information without
adequate safeguards for its confidential or proprietary nature. Unless otherwise
permitted or required by Applicable Laws, nothing in this Section 6.3 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; except that Licensee 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 Licensee has with third parties.
6.4 Public Records Act. 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 Applicable Laws.
6.4.1 Licensee may identify documents submitted to the City that Licensee
believes are non-disclosable, such as trade secrets. Licensee shall be responsible
for clearly and conspicuously identifying the work as confidential or proprietary, and
shall provide a brief written explanation as to why the information is confidential
and how it may be treated as such under Applicable Laws. The City agrees to keep
confidential any proprietary or confidential books or records to the extent permitted
by Applicable Laws.
6.4.2 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 proprietary, the City shall
provide Licensee with written notice of the request, including a copy of the request
before disclosure so that Licensee can take appropriate steps to protect its
interests. Nothing in this Section 6.4 prohibits the City from complying with chapter
42.56 RCW or any other Applicable Laws or court order requiring the release of
public records, and the City shall not be liable to Licensee for compliance with any
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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.
6.4.3 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 the 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 these 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.
6.5 Annual Audit. Upon 30 days' written notice, the City shall have the right to
conduct an independent audit of Licensee's records reasonably related to the
administration or enforcement of this License, in accordance with generally
accepted accounting practices and any standards adopted by the Governmental
Accounting Standards Board. If the audit shows that tax or fee payments have been
underpaid by 3% or more, Licensee shall pay the total cost of the audit.
SECTION 7. — Unauthorized Facilities. Any Facilities installed in the City Right-
of-Way that were not authorized under this License or other required City Approval
('Unauthorized Facilities") will be subject to the payment of an Unauthorized
Facilities charge by Licensee. City shall provide written notice to Licensee of any
Unauthorized Facilities identified by City staff and Licensee shall have 30 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 31st day.
Licensee may submit an application to the City under this License for approval of
the Unauthorized Facilities. If the application for the Unauthorized Facilities is
denied, Licensee shall remove the Unauthorized Facilities from the City's Right-of-
Way within 30 days after the expiration of all appeal periods for such denial. The
City shall not refund any Unauthorized Facilities charges, unless Licensee is
successful in an appeal. This License remedy is in addition to any other remedy
available to the City at law or equity.
SECTION 8. — Safety Reauirements.
8.1 Safe Condition. Licensee shall at all times, at its own expense, maintain its
Facilities in, over, under, and upon the Rights-of-Way in a safe condition, in good
repair, and in a manner suitable to the City. Additionally, Licensee 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. Upon reasonable notice to Licensee, the City reserves the
general right to inspect the Facilities to evaluate if they are being maintained in a
safe condition. If an unsafe condition or a violation of this Section 8.1 becomes
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known to the City, the City agrees to give Licensee written notice of the condition
and afford Licensee a reasonable opportunity to repair the condition. If Licensee
fails to start to make the necessary repairs and alterations within a reasonable time
frame specified in the notice (and pursue the cure to completion), then the City
may make the 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 Licensee and reimbursed to the City.
8.2 Additional Safety Standards. Additional safety standards include:
a. Licensee shall 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 Licensee shall protect any opening or obstruction in the Rights-of-
Way or other public places made by Licensee 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.
8.3 Hazardous Substances. Licensee shall not introduce or use any Hazardous
Substances, in violation of any Applicable Laws, 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 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 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. Licensee 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 License shall not be interpreted to expand Licensee's legal
obligations relating to any pre-existing Hazardous Substances undisturbed by
Licensee.
SECTION 9. — Provision of Conduit. Except in Emergency Situations, Licensee
shall provide the Director with at least 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 opportunity to request that Licensee provide the City with
additional duct or conduit, and related structures necessary to access the conduit
pursuant to RCW 35.99.070 in one or more of the locations where Licensee
constructs, installs, or relocates Facilities underground. If so requested, the conduit
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shall be provided at Licensee's incremental cost and per the terms of a separate
agreement. License shall install a locator wire and cap off all conduit ends. Conduit
ends shall be marked on any as-built plans and maps requested pursuant to Section
6. Any conduit delivered to the City pursuant to this Section 9 will become property
of the City, and Licensee will have no ongoing maintenance, liability, or other
obligations to the City or any third party with respect to the conduit. The City shall
make any request for conduit per this Section 9 request in writing before issuance
of the applicable permit to Licensee.
SECTION 10. — Emergency Situations.
10.1 Immediate Action Required. In the event of any Emergency Situation in
which any of Licensee's Facilities located in or under any street endangers the
property, life, health, or safety of any Person, entity or the City, or if Licensee'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, Licensee 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 permit as required by this License. The
Licensee shall apply for any necessary permits on the next day Kent City Hall is
open for business.
10.2 Lateral Support. Whenever the construction, installation, or excavation of
Facilities authorized by this License 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 Licensee, at Licensee's own expense, to take reasonable action
to protect the Endangered Property or the public within a prescribed time. If
Licensee fails or refuses to promptly take the actions directed by the City, or fails to
fully comply with the directions, or if an Emergency Situation exists that requires
immediate action before the City can timely contact Licensee to request Licensee
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. Licensee shall be liable to the City for the costs of any such repairs in
accordance with the provisions of Section 11.
10.3 Reimbursement. Licensee shall promptly reimburse the City in accordance
with the provisions of Section 11 for any and all costs the City reasonably incurs in
response to any Emergency Situation involving Licensee's Facilities, to the extent
this emergency is not the City's fault. The City agrees to simultaneously seek
reimbursement from any other Licensee or permit holder who caused or contributed
to the Emergency Situation.
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SECTION 11. — Recovery of Costs.
11.1 License Costs. Licensee shall reimburse the City for its actual and
documented administrative, legal, and other costs incurred in drafting and
processing this License and all work related thereto pursuant to RCW
35.21.860(1)(b). No construction permits shall be issued for the installation of
Facilities authorized until the City has received this reimbursement.
11.2 Additional Costs. Licensee shall further be subject to all permit fees
associated with activities undertaken through the authority granted in this License
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 License or any ordinances relating
to the subject for which a permit fee is not established, Licensee shall pay these
costs and expenses directly to the City in accordance with the provisions of Section
11.4.
11.3 City Project Costs. Licensee shall reimburse the City for Licensee'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 Licensee's Facilities in the Rights-of-Way. These
costs and expenses shall include but not be limited to Licensee'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 Licensee's Facilities in the Rights-of-Way. These
costs and expenses shall also include Licensee's proportionate share of any time
spent reviewing construction plans in order to either accomplish the relocation of
Licensee's Facilities or the routing or rerouting of any utilities so as not to interfere
with Licensee's Facilities.
11.4 Payment of Costs. 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.
Licensee shall reimburse the City within 60 days of submittal by the City of an
itemized billing for costs incurred under this Section 11.
SECTION 12. — Citv's Reservation of Rights.
12.1 License Fees. The City is not seeking to impose any License fee or similar
compensation for the benefits and privileges granted under this License and in
consideration of the permission to use the City's Rights-of-Way as of the effective
date of this License. However, the City reserves the right to impose a License fee
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upon 120 days' notice to Licensee, if it believes it is consistent with Applicable
Laws. Licensee reserves the right to challenge the imposition of any such
compensation if it believes it is inconsistent with Applicable Laws. Payment of a
License fee under this License shall not exempt Licensee from the payment of any
generally applicable fee, tax, or charge on the business, occupation, property, or
income of Licensee that may be imposed by the City. The City also reserves its right
to require that Licensee obtain a separate License for a change in use, which
License may include provisions intended to regulate Licensee's operations as
allowed under Applicable Law. Nothing contained within this License shall preclude
Licensee from challenging any fee, this License, or separate agreement under
Applicable Laws.
12.2 Utility Tax. Licensee 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 KCC. Licensee understands that RCW 35.21.870 currently limits the
rate of city tax upon telephone business activities to 6% of gross income (as that
term is defined in chapter 3.18 KCC), unless a higher rate is otherwise approved.
Licensee stipulates and agrees that certain of its business activities may be subject
to taxation as a telephone business and that Licensee shall pay to the City the
applicable rate under chapter 3.18 KCC, and consistent with state and federal law.
The Parties agree however, that nothing in this License 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 KCC as may be permitted by law.
Nothing in this Section 12.2 is intended to alter, amend, modify, or expand the
taxes and fees that may lawfully be assessed on Licensee's business activities
under this License under Applicable Laws.
SECTION 13. — Indemnification; Liability.
13.1 General Indemnification. Licensee 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 License, by or for Licensee, its agents, or its employees, or by reason of any
neglect or omission of Licensee. Licensee shall consult and cooperate with the City
while conducting its defense of the City under this License. Licensee shall not be
obligated to indemnify the City to the extent of the City's negligence or willful
misconduct.
13.2 Indemnification for Relocation. Licensee 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
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against or payable by the City contributing to Licensee'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 Licensee shall not be liable under this
section if Licensee'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 Licensee.
13.3 Procedures and Defense. If a claim or action arises, the City or any other
indemnified party shall promptly notify Licensee of such claim or action and tender
the defense of the claim or action to Licensee, which defense shall be at Licensee's
expense. 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. The City may
participate in the defense of a claim, but if Licensee provides a defense at
Licensee's expense then Licensee 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 is necessary. Then, the
provisions of Section 13.5 shall govern Licensee's responsibility for City's attorney's
fees, expenses, or other costs. In any event, Licensee 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.
13.4 Avoidance. 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. Whether
Licensee carries out any activities under this License through independent
contractors shall not constitute an avoidance of or defense to Licensee's duty of
defense and indemnification under this subsection.
13.5 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 Licensee to represent the City, Licensee 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 Licensee. Except that, if separate representation is or
becomes necessary, and the City desires to hire counsel or any other outside
experts or consultants and desires Licensee to pay those expenses, then the City
shall be required to obtain Licensee's consent to the engagement of such counsel,
experts, or consultants, such consent not to be unreasonably withheld or delayed.
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
Licensee, 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.
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13.6 RCW 4.24.115. 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 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.
SECTION 14. — Insurance.
14.1 Policies. Licensee 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
Licensee'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.
If the Licensee maintains broader coverage and/or higher limits than the minimums
within this Section 14.1, the City requires and shall be entitled to the broader
coverage and/or the higher limits maintained by the Licensee. Any available
insurance proceeds in excess of the specified minimum limits of insurance and
coverage shall be available to the City.
14.2 Deductibles. Any deductible of the policies shall not in any way limit
Licensee's liability to the City.
14.3 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
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insureds with respect to liability arising out of activities performed by,
or on behalf of, Licensee under this License or Applicable Laws, or in
the construction, operation or repair, or ownership of the Network;
b. Licensee'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 Licensee's insurance and shall not contribute to it;
and
C. Licensee'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.
14.4 Acceptability of Insurers. The insurance obtained by Licensee shall be placed
with insurers with a Best's rating of no less than "A VII."
14.5 Verification of Coverage. The Licensee 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 shall be signed by a Person authorized by that insurer to bind
coverage on its behalf. The certificates and endorsements for each insurance policy
shall be on forms that are consistent with standard industry practices.
14.6 Maintenance of Insurance. Licensee's maintenance of insurance as required
by this Section 14 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.
SECTION 15 — Abandonment of Licensee's Telecommunications Network.
Upon the expiration, termination, or revocation of the rights granted under this
License, Licensee shall remove all of its Facilities from the Rights-of-Way within 30
days of receiving written notice from the Director. 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 Licensee's Facilities must be first approved by the
Director, and all necessary permits must be obtained before 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 30 days of receipt of City's notice may be removed by the City
and the area restored at Licensee's cost. Licensee shall pay these costs to the City
within 30 days of receiving an invoice. If Licensee fails to pay the City within this
timeframe, the City may avail itself of any remedy available at law or equity.
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SECTION 16. — Bonds.
16.1 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 125% of the cost estimate
(prepared by a licensed contractor, professional engineer, or architect) of the
construction work, by either the Licensee or the Licensee'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 Licensee
or the Licensee's contractor. If Licensee, in the sole judgment of the City, has a
history of corrections or defaults, Licensee 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) repair and restoration of any damage to public or
private property caused by the construction; (6) submission of as-built drawings
after completion of construction; and (7) 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 and/or any
necessary repairs, 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 16.2. Compliance with the
performance guarantee requirement of the City's current Design and Construction
Standards shall satisfy the provisions of this Section.
16.2 Maintenance Guarantee. Maintenance and the successful operation of the
Right-of-Way improvements shall be bonded for a period of at least two 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
20% of the original performance construction guarantee as described in Section
16.1, whichever is greater. At six-month intervals during this maintenance period,
the City will inspect the improvements and identify to Licensee any noted
deficiencies. Licensee will have 30 days to correct any deficiencies. The satisfactory
correction of the work may commence a new two-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 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 16.2. Original financial
guarantee amounts described in Section 16.1 and this Section 16.2 may be reduced
one time only before the maintenance period, at the discretion of the City. If an
extension to any associated permits are granted, the financial guarantees may be
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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-year
maintenance guarantee period with all corrective actions complete and accepted by
the City.
16.3 Form of Bonds. All bonds provided to the City under this Section 16 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 17. — Remedies to Enforce Compliance.
17.1 Reservation of Rights.
17.1.1 In addition to the remedies provided in this License, the City reserves
the right to pursue any remedy available at law or in equity to compel or require
Licensee to comply with the terms of this License. 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.
17.1.2 All rights and remedies provided in this License shall be in addition to
and cumulative with any and all other rights and remedies available to either the
City or Licensee. These rights and remedies are not exclusive, and the exercise of
one or more rights or remedies may not be deemed a waiver of the right to
exercise any other right or remedy at any time. Neither Party intends to waive any
other rights, remedies, or obligations as provided by law, equity, or otherwise, and
nothing contained in this License shall be construed to effect any such waiver.
17.2 Procedure upon Breach. If either Party violates or fails to comply with any of
the provisions of this License or a permit issued as required by Section 3.2, or fails
to heed or comply with any notice given under the provisions of this License (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 the breach and the Defaulting Party shall undertake all commercially
reasonable efforts to cure the breach within 30 days of receipt of notification. If the
Non-defaulting Party reasonably determines the breach cannot be cured within 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 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. Or if Licensee has failed to timely cure the
breach, the City, at its sole discretion, may elect to: (1) terminate this License
pursuant to Section 2.3; (2) claim liquidated damages of Two Hundred Fifty Dollars
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($250.00) per day against Licensee (and collect from the License Bond if necessary)
as an estimate for damages that the Parties understand will be difficult to calculate
in the event of a default; or (3) extend the time to cure the breach if under the
circumstances additional time is reasonably required.
SECTION 18. — Non-Waiver. The failure of either Party to insist upon strict
performance of any of the covenants and agreements of this License 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 19. — Police Powers and City Regulations. Nothing within this
License may 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 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
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 Licensee, and Licensee shall
promptly conform with all such regulations, unless compliance would cause
Licensee 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 License and any other
ordinance(s) enacted under the City's police power authority, the other
ordinances(s) shall take precedence over this License.
SECTION 20. — Survival. All of the provisions, conditions, and requirements in
Sections 3, 4, 5, and 13 of this License shall be in addition to any and all other
obligations and liabilities Licensee may have to the City at common law, by statute,
or by contract, and shall survive this License, and any renewals or extensions, to
the extent provided. All of the provisions, conditions, regulations, and requirements
contained in this License shall further be binding upon the successors, executors,
administrators, legal representatives, and assigns of Licensee and all privileges, as
well as all obligations and liabilities of Licensee shall inure to its successors and
assigns equally as if they were specifically mentioned where Licensee is named.
SECTION 21. — Assignment. Neither Party may assign or transfer its rights or
obligations under this License, in whole or part.
SECTION 22. — Eminent Domain. The existence of this License shall not
preclude the City from acquiring by condemnation in accordance with Applicable
Laws, all or a portion of Licensee's Facilities for the fair market value. In
determining the value of Facilities, no value shall be attributed to the right to
occupy the area conferred by this License.
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SECTION 23. — 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 License,
the City shall not be liable for any damages or loss to the Licensee by reason of the
vacation. The City shall notify Licensee in writing not less than 60 days before
vacating all or any portion of any such area. The City will, if practicable, reserve an
easement for Licensee's Facilities under the same terms and conditions as this
License at the location vacated by City, and if not practicable, the City may, after
60 days' written notice to Licensee, terminate this License with respect to such
vacated area.
SECTION 24. — Notice. Any notice or information required or permitted to be
given to the Parties under this License 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:
EZEE FIBER TEXAS, LLC
14850 Woodham Dr., Ste. B-105
Houston, TX 77073
Attn: legal@ezeefiber.com (for notices)
SECTION 25. — Compliance with all Applicable Laws. Each Party agrees to
comply with all Applicable Laws. This License is subject to ordinances of general
applicability enacted pursuant to the City's police powers. Licensee acknowledges
that it shall be solely responsible for compliance with any applicable law or
regulation of the Federal Communications Commission ("FCC") to engage in
business associated with use of the Rights-of-Way.
SECTION 26. — Attorneys Fees. If a suit or other action is instituted in
connection with any controversy arising out of this License, 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 13 of this License.
LIMITED LICENSE--Page 23 of 27
(between City of Kent and Ezee Fiber Texas, LLC)
SECTION 27. — Licenses, Fees and Taxes. Before constructing any Facilities or
providing Services within the City, Licensee shall obtain a business or utility license
from the City, if so required. Licensee shall pay all applicable taxes on personal
property and Facilities owned or placed by Licensee 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 License. However, nothing in
this License is intended to alter, amend, modify or expand the taxes and fees that
may lawfully be assessed on Licensee's business activities under Applicable Laws.
SECTION 28. — Miscellaneous.
28.1 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, will be binding upon the
Parties upon execution of this License.
28.2 Severability. If any section, sentence, clause, or phrase of this License is
held to be invalid or unconstitutional by a court of competent jurisdiction, such
invalidity or unconstitutionality will not affect the validity or constitutionality of any
other section, sentence, clause, or phrase of this License 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
License materially affected by the court's ruling.
28.3 Authorized Signatories. The City and Licensee respectively represent that
their respective signatories are duly authorized and have full right, power, and
authority to execute this License on such Party's behalf.
28.4 Venue. This License is governed by 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 License.
28.5 Section Headings. Section headings are intended solely to facilitate the
reading of this License and may not affect the meaning or interpretation of the text
within this License.
28.6 No Third-Party Beneficiaries. There are no third-party beneficiaries to this
License.
28.7 Enforcement. This License may be enforced at both law and in equity.
28.8 Amendment. Any modification, change, amendment, or alteration to this
License must be in writing and signed by both Parties to be effective.
LIMITED LICENSE--Page 24 of 27
(between City of Kent and Ezee Fiber Texas, LLQ
This License is executed and shall become effective as of the last date signed
below.
CITY OF KENT LICENSEE
BY By
Print Name: Dana Ralph Print Name:
Its: Mayor Its: V
Date: Date: /
P:\CivilU'on s\Deeds,Easements,QuitClaimDeed,Lemes\Limited License Agreementdoex
LIMITED LICENSE--Page 25 of 27
(between City of Kent and Ezee Fiber Texas, LLC)
This License is executed and shall become effective as of the last date signed
below.
CITY OF KENT LICENSEE
By:L�
By: -
Print Name: Dana Valph Print Name: E warms ,�
Its: Mayor Its: 'V1a✓
Date: �`,3 Date: 5`
P:\Civil\Fomvs\Deeds,F. ements,QuitCla mDccd,Leases\Limited License Agm=mt.docz
LIMITED LICENSE--Page 25 of 27
(between City of Kent and Ezee Fiber Texas, LLQ
STATE OF WASHINGTON )
. ss.
COUNTY OF KING )
I hereby certify that I know or have satisfactory evidence that Dana Ralph is
the person who appeared before me, and said person acknowledged that she signed
this instrument, on oath stated that she is authorized to execute the instrument on
behalf of the City of Kent as its Mayor, and such execution to be the free and
voluntary act of such party for the uses and purposes mentioned in the foregoing
instrument.
-Notary Seal Must Appear Within This Box-
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal the day and year first above written.
►i, i i
`►i` '� �► i
..�= O
�Z0737 W NOTARY PUBL C, in and for the Sate
;of Washington, residing at
,Ao �osZ6O` My appointment expiresIII I, 1IW\S`
LIMITED LICENSE--Page 26 of 27
(between City of Kent and Ezee Fiber Texas, LLC)
STATE OF WASHINGTON )
: ss.
COUNTY OF KING )
I hereby certify that I know or have satisfactory evidence that 1diuezrcj Abreu,
is the person who appeared before me, and said person acknowledged
that he/she signed this instrument, on oath stated that he/she is authorized to
execute the instrument on behalf of EZee, r7 '� L as its e' m
, and such execution to be the free and voluntary act of such party for the
uses and purposes mentioned in the foregoing instrument.
-Notary Seal Must Appear Within This Box-
IN WITNESS WHEREOF, I have hereunto set my hand and official
seal the day and year first above written.
fill,\\\\1111
ZF �r .t��alf
v? 0TA4` , Che u I PX)1 Ci — CA, I CC),X
s, t9s978 s NOTARY PUBLIC, in and for the State
qr, _= of 14"CIShf I o residing at 6-ett0V._e_
,o, . 1 G~0 My appointment expires 1 1- 'y -,2 a
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LIMITED LICENSE--Page 27 of 27
(between City of Kent and Ezee Fiber Texas, LLQ