HomeMy WebLinkAboutORD 5862 CITY OF RENTON, WASHINGTON
ORDINANCE NO. 5862
AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON, GRANTING UNTO XO
COMMUNICATIONS SERVICES, LLC, A LIMITED LIABILITY COMPANY REGISTERED
IN THE STATE OF DELAWARE, AUTHORIZED TO DO BUSINESS WITHIN THE STATE
OF WASHINGTON, ITS AFFILIATES, SUCCESSORS AND ASSIGNS, THE RIGHT,
PRIVILEGE, AND AUTHORITY TO INSTALL COMMUNICATIONS FACILITIES,
SPECIFICALLY FIBER OPTIC CABLE AND RELATED APPURTENANCES, UNDER,
ALONG, OVER, BELOW, THROUGH AND ACROSS THE STREETS, AVENUES AND
ALLEYS OF THE CITY OF RENTON WITHIN THE PUBLIC RIGHT-OF-WAY OF
RENTON.
THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO ORDAIN AS FOLLOWS:
SECTION I: Definitions
For the purposes of this Franchise and Attachment 1, which is fully incorporated by
reference, the following defined terms, phrases, words and their derivations shall have the
meaning provided below. When not inconsistent with the context in which the word is used,
words used in the present tense include the future,words in the plural include the singular,words
in lower case shall have their defined meaning even if the words are not capitalized, and words
in the singular include the plural. Undefined words shall be given their common and ordinary
meaning.
1.1 Administrator: Means the Administrator of Renton's Public Works Department or
designee, or any successor office responsible for management of Renton's public properties.
1.2 Construct or Construction: Means to construct, remove, replace, repair, and/or
restore any Facility, and may include, but are not limited to, digging and/or excavating to
construct, remove, replace, repair, and restore pipeline(s) and/or Facilities.
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1.3 Cost: Means any costs, fees, or expenses, including but not limited to attorneys'
fees.
1.4 Day: Means calendar day(s) unless otherwise specified.
1.5 Facility or Facilities: Means, collectively or individually, any and all
telecommunication transmission and distribution systems, including but not limited to, poles,
wires, lines, conduits, ducts, cables, braces, guys, anchors and vaults, switches, fixtures, and
communication systems; and any and all other equipment, appliances, attachments,
appurtenances and other items necessary, convenient, or in any way appertaining to any and all
of the foregoing, whether the same be located across, above, along, below, in, over, through, or
underground. Facilities do not include any noise-creating equipment within the range of human
hearing.
1.6 Franchise: Means this ordinance and any related amendments, attachments,
exhibits, or appendices.
1.7 Franchise Area: Means all present and future Renton Rights-of-Way for public
roads, alleys, avenues, highways, streets, and throughways (including the area across, above,
along, below, in, over, through, or under such area), laid out, platted, dedicated, acquired or
improved, and; all city-owned utility easements dedicated for the placement and location of
various utilities provided such easement would permit Franchisee to fully exercise the privilege
granted under this Franchise within the area covered by the easement, without interfering with
any governmental functions or other franchises or easements.
1.8 Franchisee: Means XO Communications Services, LLC, a limited liability company
registered in the state of Delaware, authorized to do business within the State of Washington,
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and its respective successors and assigns, and when appropriate, agents, contractors(of any tier),
employees, officers and representatives.
1.9 Hazardous Substance: Means any and all hazardous, toxic, or dangerous
substance, material,waste, pollutant, or contaminant, including all substances designated under
the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; the Comprehensive
Environmental Response, Compensation and Usability Act, 42 U.S.C. § 9601 et seq.; the
Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq.; the Federal Water Pollution
Control Act, 33 U.S.C. § 1257 et seq.; the Clean Air Act, 42 U.S.C. § 7401 et seq.; the Toxic
Substances Control Act, 15 U.S.C. § 2601 et seq.; the Federal Insecticide, Fungicide, Rodenticide
Act, 7 U.S.C. § 136 et seq.; the Washington Hazardous Waste Management Act, RCW Chapter
70.105, and the Washington Model Toxics Control Act, RCW Chapter 70.1050, as they exist or
may be amended; or any other Laws. The term "Hazardous Substance" shall also be interpreted
to include any substance which, after release into the environment, will or may reasonably be
anticipated to cause death, disease, injury, illness, abnormalities, behavioral abnormalities,
stunted or abnormal growth or development, or genetic abnormalities.
1.10 Laws: Means any federal, state, or municipal code, statute, ordinance, decree,
executive order, governmental approval, permit, regulation, regulatory program, order, rule,
published specification, public standard, Environmental Law, or governmental authority, that
relate to telecommunications services, including but not limited to 47 U.S.C. § 101, et. seq.
(Telecommunications Act of 1996), RCW 19.122 (Underground Utilities), WAC 480-80 (Utilities
General—Tariffs and Contracts), RCW 35.99 (Telecommunications, Cable Television Service—Use
of Right-of Way), WAC Chapter 296-32 (Safety Standards for Telecommunications), RCW Chapter
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80.36 (Telecommunications), WAC Chapter 480-120, et. seq., (Telephone.Companies), RCW
Chapter 35.96 (Electric and Communication Facilities – Conversion to Underground), and any
related Laws. All references to Laws shall mean as they exist, may be amended or created.
1.11 Parties: Means the City of Renton and XO Communications Services, LLC
1.12 Public Properties: Means present and/or future property owned or leased by
Renton within Renton's present and/or future control and/or jurisdictional boundaries.
1.13 Public Ways: Means any highway, street, alley, sidewalk, utility easement (unless
their use is otherwise restricted for other users), or other public Rights-of-Way for motor vehicles
or any other uses under Renton's control and/or in its jurisdictional boundaries, consistent with
RCW 47.24.020 (Jurisdiction, control) and 47.52.090 (Cooperative agreements — Urban public
transportation systems — Title to highway — Traffic regulations — Underground utilities and
overcrossings — Passenger transportation — Storm sewers — City street crossings).
1.14 Rights-of-Way: Means the surface and space across, above, along, below, in, over,
through or under any street, alley, avenue, highway, lane, roadway, sidewalk, thoroughfare,
court, easement and similar Public Property, Public Ways, and area within the Franchise Area.
1.15 Tariff: Has the meaning provided in WAC 480-80-030 (Definitions), or such similar
definition describing rate schedules, rules and regulations relating to charges and service as may
be adopted by the regulatory authority with jurisdiction, under the laws of the State of
Washington, over public service companies and/or competitive telecommunication service
companies, and such competitive companies must file tariffs in accordance with WAC Chapter
480-80. (WAC 480-120-026 (Tariffs)).
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1.16 WUTC: Means the Washington Utilities and Transportation Commission or such
successor regulatory agency having jurisdiction over public service and/or telecommunication
service companies.
1.17 Work: Means to construct, excavate, install, maintain, remove and/or repair by,
for, or at Franchisee's request.
SECTION II: Purpose
2.1 Authority: Under RCW 35A.47.040, Renton's City Council may grant or not grant
a franchise.
2.2 Conditions:The purpose of this Franchise is to delineate the conditions relating to
Franchisee's use of the Franchise Area and to create a foundation for the Parties to work
cooperatively in the public's best interests after this ordinance becomes effective. This Franchise
is granted subject to Renton's land use authority, public highway authority, police powers,
franchise authority, and any other case law, statutory or inherent authority, and is conditioned
upon the terms and conditions provided in this Franchise, and Franchisee's compliance with all
Laws.
2.3 Risk and Liability: By accepting this Franchise, Franchisee assumes all risks or
liabilities related to the Franchise, with no risk or liability conferred upon Renton. This Franchise
is granted upon the express condition that Renton retains the absolute authority to grant other
or further franchises in any Rights-of-Way and any Franchise Area. This and other franchises
shall, in no way, prevent or prohibit Renton from using any of its Franchise Area, or affect its
jurisdiction over them or any part of them, and Renton retains absolute authority to make all
changes, relocations, repairs, maintenance, establishments, improvements, dedications or
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vacations of same as Renton may see fit, including the dedication, establishment, maintenance
and improvement of all new or existing Rights-of-Way, Public Property or Public Ways.
SECTION III: Privileges Conveyed
3.1 Franchise Granted: Pursuant to the Telecommunication Act of 1996 § 253(c), RMC
Chapter 5-19 and the laws of the State of Washington including, but not limited to, RCW
47.24.020 (Jurisdiction, control), RCW 47.52.090 (Cooperative agreements — Urban public
transportation systems — Title to highway — Traffic regulations — Underground utilities and
overcrossings — Passenger transportation — Storm sewers — City street crossings), RCW
35A.47.040 (Franchises and permits — Streets and public ways), RCW 35.22.280 (Specific powers
enumerated), RCW 35.99.020 (Permits for use of right-of way), and 80.36.040 (Use of road,
street, and railroad right-of way—When consent of city necessary), and any related laws, Renton
grants to Franchisee, and its successors and assigns (subject to and as provided for in Section VI,
Assignment and Transfer of Franchise), under this Franchise's terms and conditions,the privilege
to install, construct, operate, maintain and improve its Facilities, together with all necessary
equipment and appurtenances, for the provision of telecommunications, telecommunications
distribution services, private line, and internet access services,within the existing Franchise Area,
such lands being more particularly described in Attachment 1 which is attached and fully
incorporated by reference into the Franchise. Without a separate franchise agreement,
Franchisee shall not have the privilege to provide cable services in the City of Renton.
3.2 Limited Franchise: This Franchise conveys a limited privilege as to the Franchise
Area in which Renton has an actual interest. It is not a warranty of title or interest in the Franchise
Area. This privilege shall not limit Renton's police powers, any statutory or inherent authority,
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jurisdiction over its property, Franchise Area, Rights-of-Way, or its zoning or land use authority.
The terms and conditions of this Franchise shall not be construed to apply to Facilities located
outside of the Franchise Area. This Franchise does not confer upon Franchisee any privilege to
install or use any Facilities outside the Franchise Area, including city-owned or leased properties
or easements.
3.3 Principal Use Limitation: This Franchise shall not authorize a principal use of the
Franchise Area for purposes other than for telecommunications, telecommunications
distribution services, private line, and internet access services. The Franchisee may use its
Facilities' excess capacity, however, Franchisee may not use, convey, lease or share excess space
within the Franchise Area,
3.4 Franchise is Non-Exclusive: As detailed in Section VIII, below, Renton grants this
non-exclusive Franchise to Franchisee to operate, maintain and improve its existing Facilities as
a telephone business and service provider (as those terms are used in RCW 35.21.860).
3.5 Acknowledgement: Franchisee acknowledges and warrants by its acceptance of
the granted privileges,that it has carefully read and fully comprehends the terms and conditions
of this Franchise. Franchisee accepts all reasonable risks of the meaning of the provisions, terms
and conditions of the Franchise. Franchisee further acknowledges and states that it has fully
studied and considered the requirements and provisions of this Franchise, and believes that the
same are consistent with all Laws. If in the future Franchisee becomes aware that a provision of
this Franchise may be unlawful or invalid, it will not use such potential invalidity to unilaterally
ignore or avoid such provision. Instead, Franchisee will promptly advise Renton of the potential
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invalidity or illegality, and the Parties will meet within thirty (30) days and endeavor jointly to
amend this Franchise to cure the invalidity or illegality.
3.6 Enforceable Contract: Franchisee specifically agrees to comply with the provisions
of any applicable Laws, as they exist or may be amended. The express terms and conditions of
the Franchise constitute a valid and enforceable contract between the Parties, subject to any
Laws.
3.7 Existing Facilities Outside Franchise Area: Existing Facilities installed or
maintained by Franchisee in accordance with prior franchise agreements on public grounds and
places within Renton (but which are not a part of the Franchise Area as defined by this Franchise)
may be maintained, repaired and operated by Franchisee at the location where such Facilities
exist as of the effective date of this Franchise for the term of this Franchise; provided, however,
that no such Facilities may be enlarged, improved or expanded without Renton's prior review,
written consent, and approval pursuant to the provisions of any applicable Laws.
SECTION IV: Term
4.1 Length of Term: Each of the provisions of this Franchise shall become effective
upon Franchisee's acceptance of the terms and conditions of this Franchise and the City Council's
passage of this ordinance, and shall remain in effect for ten (10) years, unless it is terminated
pursuant to Section XVII, Termination, Violations, and Remedies. At any time not more than two
(2) years nor less than one hundred and eighty (180) days before the expiration of the Franchise
Term, Franchisee may make a written request and Renton may consider, at its sole discretion,
renewing this Franchise for an additional five (5) year renewal period, unless either party
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expresses its intention in writing to terminate this Franchise at the conclusion of the ten (10)year
term.
4.2 Extension upon Expiration: If the Parties fail to formally renew or terminate the
Franchise prior to the expiration of its term or any extension,the Franchise shall be extended on
a year-to-year basis until the Franchise is renewed, terminated or extended.
SECTION V: Recovery of Costs
5.1. Administrative Fee: Pursuant to RCW 35.21.860(1)(b), Renton may charge
Franchisee an administrative fee to recover all actual administrative expenses incurred by Renton
that are directly related to receiving and approving a permit, license and this Franchise,to inspect
plans and construction, or for the preparation of a detailed statement pursuant to SEPA (RCW
Chapter 43.21C). Where Renton incurs actual administrative expenses, including but not limited
to fees, expenses, and/ or costs for attorneys, consultants, staff and the City Attorney
Department, for review or inspection of activities undertaken through the authority granted in
this franchise, Franchisee shall pay such expenses directly to Renton. Renton shall provide
Franchisee with an itemized invoice identifying the administrative expenses incurred. Renton
employee time shall be calculated based on their rate of salary, including applicable overtime,
benefits and reasonable overhead, and all other costs will be billed based on an actual cost basis.
5.2. Utility Tax: Pursuant to RCW 35.21.870 (Electricity, telephone, natural gas, or
steam energy business — Tax limited to six percent — Exception) and RCW 35.21.860(1)(a),
Renton may impose a utility tax on Franchisee consistent with the utility tax imposed on other
similarly situated telephone businesses or service providers.
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5.3. Franchise Fee: Pursuant to RCW 35.21.860 (Electricity, telephone, or natural gas
business, service provider — Franchise fees prohibited — Exceptions), Renton may only impose
a franchise fee or any other Cost of whatever nature or description upon Franchisee as is
consistent with federal law.
5.4. Cost of Publication: Franchisee shall bear the entire Cost of publication of this
ordinance.
5.5. Permit Fee: Franchisee shall be subject to all permit fees associated with activities
undertaken through the authority granted in this Franchise or under Laws.
5.6. Emergency Fee: Franchisee shall promptly reimburse Renton for any and all Costs
incurred by Renton while responding to any emergency involving public safety.
5.7. Reimbursement period: Franchisee shall reimburse Renton within forty-five (45)
days of Renton's submittal of an itemized billing for reasonably incurred Costs, itemized by
project,for Franchisee's proportionate share of all actual, identified expenses incurred by Renton
in planning, constructing, installing, repairing, altering, or maintaining any city facility due to the
presence in the Public Way of Franchisee's Facilities.
SECTION VI: Assignment and Transfer of Franchise
6.1 Assignment: Franchisee may not assign, dispose of, lease, sell, transfer, or permit
to be forfeited this Franchise, either in whole or in part, without the written consent of the City
Council of Renton by passage of an ordinance or resolution. Such consent shall not be deemed
to waive any of Renton's rights to subsequently enforce Franchise related non-compliance issues
that existed at or before Renton's consent. Any telecommunications assignee or transferee shall,
at least thirty (30) days prior to the date of any assignment or transfer, file written notice of the
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assignment or transfer with Renton, together with its written acceptance of all of the Franchise
terms and conditions. The Franchise terms and conditions shall be binding upon the Parties'
respective assigns and successors. Notwithstanding the foregoing, Franchisee may pledge the
Franchise for security purposes only with the City Council's consent, and consent shall be
required for Franchisee to transfer the Franchise or Facilities to a creditor. The rights of any
transferee are subject at all times to the terms and conditions of this Franchise, and no transferee
will have any greater rights under this Franchise than the rights of Franchisee.
6.2 Acceptance: If Renton consents,within thirty(30)days of that consent, Franchisee
shall file with Renton a written instrument evidencing such sale, assignment or transfer of
ownership, with the assignee(s) or transferee(s) acceptance of the Franchise and all of its terms
and conditions.
SECTION VII: Compliance with Laws- Reservation of Powers and Authority
7.1. Compliance: In every aspect related to this Franchise, including but not limited to
all Work, Franchisee shall comply with all applicable Laws, whether specifically mentioned in this
Franchise or not.
7.2. Incorporation of RMC 5-19, Telecommunications Licenses and Franchises: The
conditions, provisions, requirements and terms and of RMC Chapter 5-19 are fully incorporated
by reference into this franchise agreement, unless this agreement requires something different.
7.3. Legitimate Municipal Interest: As to matters subject to the terms and conditions
of this Franchise, if Renton determines during the Franchise term that the assertion of a
legitimate municipal interest is prohibited by application of federal or state law, then as to such
matter and such municipal interest and consistent with its legal obligations, Franchisee shall
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cooperate with Renton in a good faith effort to address such municipal interest. In this context,
neither Party shall invoke this Franchise as a basis to assert that its consideration of a given issue
is excused by operation of the doctrines of estoppel or waiver.
7.4. Reference to Specific Law or Order: Upon a reasonably justified written inquiry by
Renton, Franchisee shall provide a specific reference to the federal, state, or local law or the
WUTC order or action establishing a basis for Franchisee's actions related to a specific Franchise
issue.
SECTION VIII: Non-exclusive Franchise
8.1 Non-exclusive: As provided in subsection 3.4, this Franchise is non-exclusive, and
as a result, Renton expressly reserves the right to grant other or further franchises or to use the
Franchise Area itself; provided that such uses do not unreasonably interfere with Franchisee's
use and placement of its Facilities in any Rights-of-Way and/or any Franchise Area.
8.2 Renton's Use of Franchise Area: This Franchise shall not prevent, prohibit, limit or
affect Renton's use of the Franchise Area, consistent with this Franchise; or Renton's jurisdiction
over the Franchise Area. The Parties agree that Renton reserves and retains all of its statutory,
inherent and other powers and franchise authority, as they exist or shall exist.
SECTION IX: Permits, Construction and Restoration
9.1 Free Passage of Traffic: Franchisee shall at all times maintain its Facilities within
the Franchise Area so as not to unreasonably interfere with the free passage of traffic,
pedestrians or the use and enjoyment of adjoining property. Franchisee shall at all times post
and maintain proper barricades and comply with all applicable Laws, safety regulations and
standards during such period of construction.
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9.2 Permit Application Required: Except in the event of an emergency, Franchisee
shall first obtain all required documentation and approvals, including permits from Renton to
perform Work on Franchisee's Facilities within the Franchise Area. The permit application shall
contain detailed plans, maps and specifications showing the position, depth and location of all
such Facilities in relation to existing Franchise Area, collectively referred to as the "Plans." The
Plans shall specify the class and type of material and equipment to be used, manner of
excavation, construction, installation, backfill, erection of temporary structures and facilities,
erection of permanent structures and facilities, traffic control, traffic turnouts and road
obstructions, and all other necessary information. Franchisee shall submit to Renton as-built
plans and, when available, digital facility location data in a format compatible with Renton's
geographic Information system. Such Work shall only commence upon the issuance of required
permits, and payment of the associated fees, which permits shall not be unreasonably withheld
or delayed after submission of a complete application. Franchisee shall further inform Renton of
any time or date that Franchisee is performing Work within the Franchise Area to allow Renton
to inspect such work.
9.3 Boring Required: Work involving undergrounding of Franchisee's facilities within
city streets shall be accomplished through boring rather than open trenching whenever
reasonably feasible. Franchisee will CCTV all Renton owned sewer and storm drain lines on the
boring route following completion of the boring work and prior to activating the facility being
constructed to verify that these Renton owned lines were not damaged by the boring
work. Upon request from Franchisee, Renton may allow for other methods to meet the
requirement as may be approved by Renton as part of permitting.
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9.4 Facility Placement: The Parties intend that the specific location of Facilities within
the Franchise Area (and similar facility-related matters of a specific nature requiring detailed
case-by-case analysis) is to be determined in accordance with applicable Laws (including,without
limitation, rights of appeal).
9.5 Lateral Support: Whenever Work on Facilities have caused or contributes to a
condition that in the City of Renton's sole determination would substantially impair or
substantially impairs the lateral support of the Franchise Area, Renton may direct Franchisee, at
Franchisee's sole expense, to take such actions as are reasonably necessary within the Franchise
Area to repair and/or not impair the lateral support. If Franchisee fails or refuses to take prompt
action, or if an emergency situation requires immediate action, Renton may enter the Franchise
Area and take any action necessary to protect the public, any Public Way, Public Property, and
Rights-of-Way, and Franchisee shall be liable to Renton for all costs, fees, and expenses resulting
from that necessary action. This provision shall survive the expiration, revocation or termination
of this Franchise for a period of five (5) years.
9.6 Limits on Construction: No park, public square, golf course, street Rights-of-Way
or public place of like nature shall be bored, trenched, excavated or damaged by Franchisee if
there is a substantially equivalent alternative. The determination of there being a substantially
equivalent alternative shall be at the sole determination of Renton.
9.7 Bond Requirement: Before undertaking any of the Work authorized by this
Franchise, as a condition precedent to the Renton's issuance of any permits, Franchisee shall,
upon the Renton's request, furnish a bond executed by Franchisee and a corporate surety
authorized to operate a surety business in the State of Washington, in such sum as may be set
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and approved by Renton as sufficient to ensure performance of Franchisee's obligations under
this Franchise. Franchisee shall post a Performance Bond in the amount of twenty-five thousand
dollars ($25,000) that shall remain in effect for the term of this Franchise. The bond shall be
conditioned so that Franchisee shall observe all the covenants, terms and conditions and shall
faithfully perform all of the obligations of this Franchise, and to repair or replace any defective
work or materials discovered in the Franchise Area. The bond shall ensure the faithful
performance of Franchisee's obligations under the Franchise, including, but not limited to,
Franchisee's payment of any penalties, claims, liens, or fees due Renton that arise by reason of
the operation, construction, or maintenance of the Facilities within the Franchise Area.
Franchisee shall pay all premiums or other costs associated with maintaining the bond.
Additionally, if Renton determines that the Performance Bond is inadequate to ensure
Franchisee's performance of a project, Franchisee shall post any additional bonds required to
guarantee performance by Franchisee in accordance with the conditions of any permits and/or
the requirements of this Franchise. In lieu of a separate bond for routine individual projects
involving work in the Franchise Area, Franchisee may satisfy Renton's bond requirements by
posting a single on-going performance bond in an amount approved by Renton.
9.8 Workmanship: All Work done by Franchisee or at Franchisee's direction or on its
behalf, including all Work performed by contractors or subcontractors, shall be considered
Franchisee's Work and shall be undertaken and completed in a workmanlike manner and in
accordance with the descriptions, plans and specifications Franchisee provided to Renton, and
be warranted for at least two (2) years. Franchisee's activities (including work done at
Franchisee's direction or on its behalf) shall not damage or interference with other franchises,
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licenses, utilities, drains or other structures, or the Franchise Area, and shall not unreasonably
interfere with public travel, park uses, other municipal uses, adjoining property, and shall not
endanger the safety of or injure persons and property. Franchisee's Work shall comply with all
applicable Laws.
9.9 Material and Installation Methods: As a condition of receiving the privilege to
Work within the Franchise Area, Franchisee shall assume full responsibility for using materials
and installation methods that are in full compliance with city standards and shall verify this by
the submittal of documentation of materials and testing reports when requested by Renton. All
costs for performing on-site testing, such as compaction tests, shall be borne by Franchisee.
9.10 Damage During Work: In case of any damage caused by Franchisee, or by
Franchisee's Facilities to Franchise Area, Franchisee agrees to repair the damage to conditions
that meet or exceed requirements established by the Department of Transportation, at its own
cost and expense. Franchisee shall, upon discovery of any such damage, immediately notify
Renton. Renton will inspect the damage, and set a time limit for completion of the repair. If
Renton discovers damage caused by Franchisee to the Franchise Area, Renton will give
Franchisee notice of the damage and set a reasonable time limit in which Franchisee must repair
the damage. In the event Franchisee does not make the repair as required in this section, Renton
may repair the damage, to its satisfaction, at Franchisee's sole expense.
9.11 Member of Locator Service: Franchisee shall continuously be a member of the
State of Washington one number locator service under RCW 19.122 (Underground Utilities) or
an approved equivalent, and shall comply with all applicable Laws.
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9.12 Restoration Requirements: Franchisee shall after Work on any of Franchisee's
Facilities within the Franchise Area, restore the surface of the Franchise Area and any other
property within the Franchise Area which may have been disturbed or damaged by such Work.
All restoration of Rights-of-Way, sidewalks and other improvements or amenities shall conform
to the City of Renton Standard Specifications for Road, Bridge and Municipal Construction and
the City of Renton's Trench Restoration Standards in effect at that time, and must be warranted
for at least two (2) years. Restoration shall include all landscaping, irrigation systems and trees.
Renton shall have final approval of the condition of the Franchise Area after restoration pursuant
to applicable Laws, as they exist or may be amended or superseded, provided that such
provisions are not in conflict or inconsistent with the express terms and conditions of this
Franchise.
9.13 Survey Monuments: All survey monuments which are disturbed or displaced by
Franchisee in its performance of any work under this Franchise shall be referenced and restored
by Franchisee, in accordance with WAC 332-120 (Survey Monuments—Removal or Destruction),
and other applicable Laws.
9.14 Failure to Restore: If it is determined that Franchisee has failed to restore the
Franchise Area in accord with this section, Renton shall provide Franchisee with written notice
including a description of actions Renton believes necessary to restore the Franchise Area. If
Franchisee fails to restore the Franchise Area in accord with Renton's notice within thirty (30)
days of that notice, Renton, or its authorized agent, may restore the Franchise Area at
Franchisee's sole and complete expense. The privilege granted under this section shall be in
addition to others provided by this Franchise.
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9.15 Separate Permit Approval Needed For New Telecommunications Lines: The
limited privileges granted under this Franchise shall not convey any privilege to Franchisee to
install any new telecommunications lines or Facilities without Renton's express prior written
consent, including for example, permits as provided for in this Section IX.
SECTION X: Coordination and Shared Excavations
10.1 Coordination: The Parties shall make reasonable efforts to coordinate any Work
that either Party may undertake within the Franchise Area to promote the orderly and
expeditious performance and completion of such Work, and to minimize any delay or hindrance
to any construction work undertaken by themselves or utilities within the Franchise Area. At a
minimum, such efforts shall include reasonable and diligent efforts to keep the other Party and
other utilities within the Franchise Areas informed of its intent to undertake Work. Franchisee
and Renton shall further each exercise its best efforts to minimize any delay or hindrance to any
construction work either may undertake within the Franchise Area. Any associated costs caused
by any construction delays to Renton or to any contractor working for Renton due to Franchisee's
failure to submit and adhere to Franchisee's plans and schedule in relocating or installing
Franchisee facilities shall be the sole responsibility of Franchisee. Franchisee shall, at Renton's
request, also attend construction meetings pertaining to performance of Work within the
Franchise Area and shall designate a contact person to attend such meetings.
10.2 Joint Use Trenches: If Franchisee or Renton shall cause excavations to be made
within the Franchise Area, the Party causing such excavation to be made shall afford the other,
upon receipt of a written request to do so, an opportunity to use such excavation, provided that:
(a) such joint use shall not unreasonably delay the work of the Party causing the excavation to be
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made; and (b) such joint use shall be arranged and accomplished on terms and conditions
satisfactory to both Parties.
10.3 Joint Use Policies: Concerning the Franchise Area, during the Franchise Term,
Renton may adopt policies which encourage joint use of utility facilities within the Franchise Area.
Franchisee shall cooperate with Renton and explore opportunities for joint use of the Franchise
Area utility facilities that are consistent with applicable Laws and prudent utility practices.
SECTION XI: Hazardous Materials
11.1 Written Approval Required: In maintaining its Facilities (including, without
limitation, vegetation management activities), Franchisee shall not apply any Hazardous
Substance, pesticide, herbicide, or other hazardous material within the Franchise Area without
prior written approval of Renton. Renton will not unreasonably withhold approval, but such
application must be in conformance to the aquifer protection regulations of Renton. If
Franchisee shall first obtain Renton's approval to apply a specific product in accordance with a
defined procedure on an ongoing basis throughout the Franchise Area, it shall not thereafter be
necessary for Franchisee to obtain Renton's approval on each occasion such product is applied in
accordance with such procedure. Franchisee shall notify Renton of any accident by Franchisee
involving Franchisee's use of Hazardous Substances within the Franchise Area.
11.2 Release of Hazardous Substance: Upon notice or discovery of a significant release
of any Hazardous Substance caused by Franchisee or expressly authorized by Franchisee to occur
upon the Franchise Area and Facilities covered by this Franchise, Franchisee shall notify Renton
within twenty-four (24) hours of discovery. If the encountered or suspected Hazardous
Substances are not the result of the acts or omissions of Franchisee, Renton shall, at its own
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expense, determine if the material is hazardous, in accordance with applicable Laws. If the
material is found to be hazardous, Renton shall, at its own expense, if possible remove, dispose,
or otherwise handle such Hazardous Substances, as necessary, in accordance with applicable
Laws. If Hazardous Substances are removed, Renton also shall provide substitute nonhazardous
substance(s) to replace the removed substance for Franchisee to use in its operation, if
necessary. Upon approval by Renton to proceed, Franchisee shall proceed with the operations
at its own cost, with no recourse against Renton for the cost of schedule delays incurred due to
the delay in operation. If the encountered or suspected Hazardous Substances within the
Franchise Area are the result of Franchisee's acts or omissions, Renton's characterization of the
substances involved and any removal, disposal, or other handling costs incurred in connection
with the removal, disposal, or handling of the hazardous substances will be at Franchisee's sole
expense. Franchisee shall be solely responsible for any expense or cost related to environmental
mitigation requirements imposed, by operation of applicable Laws or otherwise.
SECTION XII: Emergency Work- Permit Waiver
12.1 Prompt Response Required: In the event of any emergency involving damaged
Franchisee Facilities located in or under the Franchise Area, or if Franchisee's Facilities within the
Franchise Area pose an immediate danger to the property, life, health or safety of any individual,
Franchisee shall, upon receipt of notification from Renton of the existence of such condition,
immediately take those actions as are necessary to correct the dangerous condition.
12.2 Permit Deferred: If an emergency occurs that requires Franchisee's immediate
action for the protection of Facilities, Renton's property or any individual's property, life, health
or safety, Franchisee may act immediately to correct the dangerous condition without first
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obtaining any required permit so long as: (1) Franchisee notifies the Renton Regional Fire
Authority through the dispatch system of the emergency; and (2) Franchisee informs Renton's
permitting authority of the nature, location, and extent of the emergency, and the work to be
performed, prior to commencing the work if such notification is practical, or where such prior
notification is not practical, Franchisee shall notify Renton's permitting authority on the next
business day; and (3) such permit is obtained by Franchisee as soon as practicable following
cessation of the emergency.
12.3 Public Service Obligations: Nothing in this section is intended, nor shall it be
construed, as a hindrance to Franchisee's ability to take such actions as it deems necessary to
discharge its public service obligations in accordance with the laws of the State of Washington.
Nothing in this section is intended, nor shall it be construed, as preventing Renton from
recovering from Franchisee, if otherwise so entitled in accordance with applicable Laws, any
extraordinary costs in responding to an emergency situation involving Franchisee's Facilities.
SECTION XIII: Records of Installation
13.1 Future Construction Plans: Upon Renton's written request, Franchisee shall
provide to Renton copies of any plans prepared by Franchisee for potential improvements,
relocations and conversions to its Facilities within the Franchise Area; provided, however, any
such plans so submitted shall be for informational purposes only and shall not obligate Franchisee
to undertake any specific improvements within the Franchise Area, nor shall such plan be
construed as a proposal to undertake any specific improvements within the Franchise Area.
13.2 As-Built Drawings: Upon Renton's written request, and at no cost to Renton,
Franchisee shall provide to Renton copies of drawings, maps, and records in use by Franchisee
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showing the location of its Facilities at specific locations within the Franchise Area. As to any
such drawings so provided, Franchisee does not warrant the accuracy of the drawings as such
Facilities are shown in their approximate location.
13.3 Design Locates: Upon Renton's written request, in connection with the design of
any Public Works Project, Franchisee shall verify the location of its underground Facilities within
the Franchise Area.
13.4 Disclosure to Third-Parties: Any drawings and/or information concerning the
location of Franchisee's Facilities provided by Franchisee shall be used by Renton solely for
management of the Franchise Area. Renton shall take all prudent steps reasonably necessary to
prevent unnecessary disclosure or dissemination of such drawings, maps, records and/or
information to any Third-Party without the prior notice to Franchisee, unless the Third-Party is
an authorized governmental entity of any tier or a public records requestor. Renton will provide
Franchisee with notice of any public records request for Franchisee paperwork as soon as
reasonably practicable.
13.5 Utility Locates: Notwithstanding the foregoing, nothing in this section is intended
(nor shall be construed) to relieve either Party of their respective obligations arising under
applicable Laws with respect to determining the location of utility facilities.
SECTION XIV: Undergrounding of Facilities
Undergrounding Required for New Facilities: Consistent with RMC 4-6-090.0
(Applicability), all new Facilities installed within the Franchise Area during the term of this
Franchise shall be located underground, consistent with the RMC, unless it is unfeasible in
Renton's reasonable estimation for it to be done; provided that installation of wires, cables,
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conduits and similar equipment will be permitted and installed pursuant to the provisions of any
applicable Laws, and subject to and accordance with any applicable Tariffs on file with the WUTC.
In areas where all existing telecommunications and cable facilities are located aboveground,
Franchisee may install its Facilities above ground. Any new Facilities to be located above ground
shall be placed on existing utility poles. No new utility poles shall be installed in connection with
placement of new aboveground Facilities.
SECTION XV: Relocation of Franchisee Facilities
15.1 Relocation Required: Renton shall have prior and superior right to the use of the
Franchise Area for the construction, installation, maintenance and repair of its utilities,
improvements and infrastructure, and capital improvement projects, and should any conflict
arise with Renton facilities, Franchisee shall, at its own cost and expense, conform to Renton's
utilities, improvements and infrastructure and capital improvement projects, provided that,
whenever Renton undertakes(or causes to be undertaken)any public works improvement within
the Franchise Area, and such public works improvement necessitates the relocation of
Franchisee's then existing Facilities within the Franchise Area, Renton shall:
a. Provide Franchisee with reasonable prior notice of Renton's intent to initiate a
public works improvement, and if applicable, written notice requesting such relocation;
and
b. Provide Franchisee with copies of pertinent portions of Renton's plans and
specifications for such public works improvement.
15.2 Franchisee Relocation Plans: After receipt of such notice and such plans and
specifications, Franchisee shall submit the Franchisee plan drawings for the relocation of the
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Franchisee Facilities to Renton within a reasonable and agreed upon time in advance of the
preparation of Renton's final plans and specifications for incorporation into Renton's
construction plans. Franchisee shall complete the relocation work in a reasonable and agreed
upon time period to prevent delay to Renton's project. Franchisee shall relocate such Facilities
within the Franchise Area at no charge to Renton, except that if Renton pays for or reimburses
the relocation costs of another telecommunications utility, under materially identical
circumstances, it shall pay for or reimburse a proportionate share of Franchisee's relocation
costs. The relocation completion date will be included in Renton's written request for said
relocation to Franchisee. Franchisee shall be solely responsible for any associated cost caused by
any construction delays to Renton's project due to Franchisee's failure to comply with
Franchisee's plans and schedule in relocating or installing Franchisee's Facilities.
15.3 Emergency Relocation of Facilities: In the event an emergency posing a threat to
public safety or welfare requires the relocation of Franchisee's Facilities within the Franchise
Area, Renton shall give Franchisee notice of the emergency as soon as reasonably practicable.
Upon receipt of notice, Franchisee shall respond as soon as reasonably practicable to relocate
the affected Facilities, at Franchisee's sole expense.
15.4 Third-Party Construction: Whenever any person or entity, other than Renton,
requires the relocation of Franchisee's Facilities to accommodate the work of such person or
entity within the Franchise Area; or, Renton requires any Third-Party to undertake work (other
than work undertaken at Renton's cost and expense) within the Franchise Area and such work
requires the relocation of Franchisee's Facilities within the Franchise Area, Franchisee may
condition such relocation to require such person or entity to make payment to Franchisee, at a
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time and upon terms acceptable to Franchisee for any and all costs and expenses incurred by
Franchisee in the relocation of Franchisee's Facilities.
15.5 Third-Party Construction of City Identified Prosect: Any condition or requirement
imposed by Renton upon any Third-Party (including, without limitation, any condition or
requirement imposed pursuant to any contract or in conjunction with approvals or permits
obtained pursuant to any zoning, land use, construction or other development regulation)which
requires the relocation of Franchisee's Facilities within the Franchise Area, then Franchisee shall
relocate its Facilities; provided, however, in the event Renton reasonably determines and notifies
Franchisee that the primary purpose of imposing such condition or requirement upon such Third-
Party is to cause or facilitate the construction of a Public Works Project to be undertaken within
a segment of the Franchise Area on Renton's behalf and consistent with Renton's Capital
Investment Plan; Transportation Improvement Program; or the Transportation Facilities
Program, then only those costs and expenses incurred by Franchisee in reconnecting such
relocated Facilities with Franchisee's other Facilities shall be paid to Franchisee by such Third-
Party, and Franchisee shall otherwise relocate its Facilities within such segment of the Franchise
Area in accordance with subsection 15.1.
15.6 Alternatives: As to any relocation of Franchisee's Facilities whereby the cost and
expense is to be borne by Franchisee, Franchisee may, after receipt of written notice requesting
such relocation, submit in writing to Renton alternatives to relocation of its Facilities. Upon
Renton's receipt from Franchisee of such written alternatives, Renton shall evaluate such
alternatives and shall advise Franchisee in writing if one or more of such alternatives are suitable
to accommodate the work which would otherwise necessitate relocation of Franchisee's
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Facilities. In evaluating such alternatives, Renton shall give each alternative proposed by
Franchisee fair consideration with due regard to all facts and circumstances which bear upon the
practicality of relocation and alternatives to relocation. If Renton determines that such
alternatives are not appropriate, Franchisee shall relocate its Facilities as provided in subsection
15.1.
15.7 Non-Franchise Area: Nothing shall require Franchisee to bear any cost or expense
in connection with the location or relocation of any Facilities existing under benefit of easement
or other rights not arising under this Franchise.
15.8 Indemnity for Delay: Franchisee shall indemnify, hold harmless, and pay the costs
of defending Renton against any and all Third-Party actions, claims, damages, liabilities, or suits
for delays on Renton's construction projects arising from or caused by Franchisee's failure to
remove or relocate it Facilities in a timely manner, though Franchisee shall not be liable for
damages due to delays that were out of Franchisee's reasonable or expected control.
SECTION XVI: Abandonment and Discontinuance of Franchisee's Facilities
16.1 Notification: Franchisee shall notify Renton of any abandonment or cessation of
use of any of its Facilities within sixty (60) days after such abandonment or cessation of use. Any
plan for abandonment or removal of Franchisee's Facilities within the Franchise Area must be
first approved by the Administrator, and all necessary permits must be obtained prior to such
Work.
16.2 Removal: In the event of Franchisee's abandonment or permanent cessation of
use of any portion of its Facilities, or any portion of the Franchised Area, Franchisee shall, within
one hundred and twenty (120) days after the abandonment or permanent cessation of use,
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remove the Facilities at Franchisee's sole expense. However, with Renton's express written
consent, Franchisee may, at Franchisee's sole cost and expense, secure the Facilities in such a
manner as to cause it to be as safe as is reasonably possible, by removing all lines, conduits and
appurtenances, in compliance with all Laws, and abandon them in place, provided that any
aboveground Facilities shall be removed at Franchisee's sole expense.
16.3 Restoration: In the event of the removal of all or any portion of the Facilities, to
the extent reasonably possible, Franchisee shall restore the Franchise Area to it pre-installation
or better condition. Such restoration work shall be done at Franchisee's sole cost and expense
and to Renton's reasonable satisfaction. If Franchisee fails to remove or secure the Facilities
and/or fails to restore the premises or take such other mutually agreed upon action, Renton may,
after reasonable notice to Franchisee, remove the Facilities, restore the premises or take such
other action as is reasonably necessary at Franchisee's sole expense and Renton shall not be
liable for any damages, losses or injuries. This remedy shall not be deemed to be exclusive and
shall not prevent Renton from seeking a judicial order directing Franchisee to remove its
Facilities.
16.4 Administrative or Abandonment Fees: Renton's consent to Franchisee's
abandonment of Facilities in place shall not relieve Franchisee of the obligation and/or costs to
remove, alter or re-secure such Facilities in the future in the event it is reasonably determined,
as adjudged in Renton's sole discretion, that removal, alteration or re-securing the Facilities is
necessary or advisable for the health, safety, necessity and/or convenience of the public, in which
case Franchisee shall perform such work its sole expense.
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16.5 Survival of Provisions: The Parties expressly agree that the provisions of this
section shall survive the termination, expiration, or revocation of this Franchise.
SECTION XVII: Termination, Violations, and Remedies
17.1 Termination: If the Franchise Term expires and if either Party states that it does
not wish to renew, extend and/or continue the Franchise, this Franchise shall be terminated as
of the expiration date.
17.2 Termination by Breach: If Franchisee materially breaches or otherwise fails to
perform, comply with any of the terms and conditions of this Franchise, or fails to maintain any
required license, permit or approval, and fails to cure such breach or failure within thirty (30)
days of Renton providing Franchisee with written notice specifying with reasonable particularity
the nature of any such alleged breach or failure, or, if not reasonably capable of being cured
within thirty (30) days, within such other reasonable period of time as the Parties may agree
upon, Renton may terminate this Franchise, without any penalty, liability, cost or damages.
17.3 City Council Termination: This Franchise shall not be terminated except upon a
majority vote of the City Council, after reasonable notice to Franchisee (which notice shall be
given at least thirty (30) days before the hearing) and an opportunity to be heard, provided that
if exigent circumstances necessitate immediate termination, the hearing may be held as soon as
possible after the termination.
17.4 Discontinue Operations: If the Franchise is terminated, Franchisee shall
immediately discontinue operation of Facilities through the Franchise Area. In such
circumstances, either Party may invoke the dispute resolution provisions in Section XVIII.
Alternatively, either Party may elect to seek relief directly in Superior Court, in which case the
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dispute resolution requirements shall not be applicable. Once Franchisee's privilege has
terminated, Franchisee shall comply with Franchise provision regarding removal and/or
abandonment of Facilities.
17.5 Renton Retains Right for Action: Renton's failure to exercise a particular remedy
at any time shall not waive Renton's right to terminate, assess penalties, or assert any equitable
or legal remedy for any future breach or default by Franchisee.
17.6 Franchisee Liability and Obligation: Termination shall not release Franchisee from
any liability or obligation with respect to any matter occurring prior to such termination, and shall
not release Franchisee from any obligation to remove and secure its Facilities and to restore the
Franchise Area.
17.7 Iniunctive Relief: The Parties acknowledge that the covenants set forth in this
Franchise are essential to this Franchise, and, but for the mutual agreements of the Parties to
comply with such covenants, the Parties would not have entered into this Franchise. The Parties
further acknowledge that they may not have an adequate remedy at law if the other Party
violates such covenant. Therefore, in addition to any other rights they may have,the Parties shall
have the right to obtain in any court of competent jurisdiction injunctive relief to restrain any
breach or threatened breach, or to specifically enforce any of the Franchise covenants should the
other Party fail to perform them.
17.8 Renton's Remedies: In addition to the terms of this Franchise, or rights that
Renton possesses at law or equity, Renton reserves the right to apply any remedy, including but
not limited to those detailed in Sections XVIII —XX below, alone or in combination, in the event
Franchisee violates any material provision of this Franchise. The remedies provided for in this
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Franchise are cumulative and not exclusive; the exercise of one remedy shall not prevent the
exercise of another or any rights of Renton at law, in equity, or by statutes, unless specifically
waived in this Agreement or in a document signed by both parties.
SECTION XVIII: Dispute Resolution
18.1 Notice of Default: If there is any alleged default as to performance under this
Franchise, Renton shall notify Franchisee in writing,statingwith reasonable specificitythe nature
of the alleged default. Within ten (10) days of its receipt of such notice, Franchisee shall provide
a written response to Renton acknowledging receipt of notice and stating Franchisee's response.
Franchisee has thirty (30) days ("cure period") from the date of the notice's mailing to:
a. Respond to Renton, contesting Renton's assertion(s) as to the dispute or any
alleged default and requesting a meeting in accordance with subsection 18.2, or;
b. Cure the alleged default, or;
c. Notify Renton if Franchisee cannot cure the alleged default within thirty(30) days,
due to the nature of the default. Notwithstanding such notice, Franchisee shall promptly
take all reasonable steps to begin to cure the alleged default and notify Renton in writing
and in detail as to the actions that Franchisee will take and the projected completion date.
In such case, Renton may set a meeting in accordance with subsection 18.2.
18.2 Meeting: If any alleged default is not cured or if a subsection 18.1 meeting is
requested, Renton shall promptly schedule a meeting between the Parties to discuss the alleged
default. Renton shall notify Franchisee of the meeting in writing and the meeting shall take place
not less than ten (10) days after Franchisee's receipt of notice of the meeting. Each Party shall
appoint a representative who shall attend the meeting, represent their party's interests, and who
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shall exercise good faith to reach an agreement on any alleged default and/or any corrective
action to be taken. Any dispute (including any dispute concerning the existence of or any
corrective action to be taken to cure any alleged default)that is not resolved within ten (10) days
following the conclusion of the meeting shall be referred by the Parties' representatives in writing
to the Parties' senior management for resolution. If senior management is unable to resolve the
dispute within twenty (20) days of referral (or such other period as the Parties may agree upon),
each Party may pursue resolution of the dispute through Section XIX, Arbitration, of this
Franchise. All negotiations pursuant to these procedures for the resolution of disputes shall be
confidential and shall be treated as compromise and settlement negotiations for purposes of the
state and federal rules of evidence.
18.3 Additional Resolution Options: If, at the conclusion of the steps provided for in
subsections 18.1 and 18.2 above, Renton and Franchisee are unable to settle the dispute or agree
upon the existence of a default or the corrective action to be taken to cure any alleged default,
Renton or Franchisee (as Franchisee may have authority to do so) may:
a. Take any enforcement or corrective action provided for by Law, including the city
code; provided such action does not conflict with this Franchise's provisions, and/or;
b. Demand arbitration, pursuant to Section XIX below, for disputes arising out of or
related to Sections III, Grant of Franchise (or such other sections with respect to the
existence of conflicts or inconsistencies with the express terms and conditions of this
Franchise and any applicable Laws); XIII, Records of Installation; XIV, Undergrounding of
Facilities (except as preempted by WUTC authority); and XV, Relocation of Franchisee
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Facilities (excluding project delay claims exceeding thirty thousand dollars ($30,000)) of
this Franchise (the "Arbitration Claims"), and/or;
c. By ordinance, declare an immediate forfeiture of this Franchise for a breach or
default of any material, non-Arbitration Claims, obligations under this Franchise and/or;
d. Take any action to which it is entitled under this Franchise or any applicable Laws.
18.4 Continuation of Obligations: Unless otherwise agreed by Renton and Franchisee
in writing, Renton and Franchisee shall, continue to perform their respective obligations under
this Franchise during the pendency of any dispute.
SECTION XIX: Arbitration
19.1 Rules and Procedures: The Parties agree that any dispute, controversy, or claim
arising out of or relating to Arbitration Claims, shall be referred for resolution to the American
Arbitration Association in accordance with the rules and procedures in force at the time of the
submission of a request for arbitration.
19.2 Discovery: The arbitrators shall allow appropriate discovery to facilitate a fair,
speedy and cost-effective resolution of the dispute(s). The arbitrators shall reference the
Washington State Rules of Civil Procedure then in effect in setting the scope and timing of
discovery. The Washington State Rules of Evidence shall apply. The arbitrators may enter a
default decision against any Party who fails to participate in the arbitration proceedings.
19.3 Compensatory Damages: The arbitrators may award compensatory damages,
including consequential damages. Such damages may include, but shall not be limited to: all
costs and expenses of materials, equipment, supplies, utilities, consumables, goods and other
items; all costs and expenses of any staff; all costs and expenses of any labor (including, but not
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limited to, labor of any contractors and/or subcontractors); all pre-arbitration costs and expenses
of consultants, attorneys, accountants, professional and other services; and all taxes, insurance,
interest expenses, overhead and general administrative costs and expenses, and other costs and
expenses of any kind incurred in connection with the dispute. The arbitrator may award
equitable relief in those circumstances where monetary damages would be inadequate.
19.4 Award: Any award by the arbitrators shall be accompanied by a written opinion
setting forth the findings of fact and conclusions of law relied upon in reaching the decision. The
award rendered by the arbitrators shall be final, binding and non-appealable, and judgment upon
such award may be entered by any court of competent jurisdiction.
19.5 Each Party's Costs: Except as provided in subsection 19.7 below, each Party shall
pay the fees of its own attorneys, expenses of witnesses, and all other expenses and costs in
connection with the presentation of such Party's case including, without limitation, the cost of
any records, transcripts or other things used by the Parties for the arbitration, copies of any
documents used in evidence, certified copies of any court, property or city documents or records
that are placed into evidence by a Party.
19.6 Arbitration Costs: Except as provided in subsection 19.7 below, the remaining
costs of the arbitration, including without limitation, fees of the arbitrators, costs of records or
transcripts prepared for the arbitrator's use in the arbitration, costs of producing the arbitrator's
decision and administrative fees shall be borne equally by the Parties.
19.7 Costs for Multiple Arbitrations: Notwithstanding the foregoing subsections 19.5
and 19.6, in the event either Party is found during the term of this Franchise to be the prevailing
party in any two (2) arbitration proceedings brought by such party pursuant to this Section XIX,
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then such party shall be entitled to recover all reasonably incurred Costs, including attorneys'
fees,for any subsequent arbitration brought by them in which they are found to be the prevailing
party.
19.8 Transcript Costs: In the event a Party makes a copy of an arbitration proceeding
transcript for its use in writing a post-hearing brief, or an arbitration decision copy to append to
a lawsuit to reduce the award to judgment, etc.,then that Party shall bear the cost, except to the
extent such cost might be allowed by a court as court costs.
SECTION XX: Alternative Remedies
No provision of this Franchise shall be deemed to bar the right of Renton or Franchisee to
seek or obtain judicial relief from a violation of any Franchise provision or any rule, regulation,
requirement or directive promulgated for non-Arbitration Claims. Neither the existence of other
Franchise remedies nor the use of such remedies shall bar or limit the right of Renton or
Franchisee to recover monetary damages for violations by the other Party, or to seek and obtain
judicial enforcement of the other Party's obligations by means of specific performance, injunctive
relief or mandate, or any other remedy at law or in equity.
SECTION XXI: Amendments to Franchise
This Franchise may only be amended by written instrument, signed by the Parties,
specifically stating that it is an amendment to this Franchise and is approved and executed in
accordance with State of Washington laws. Without limitation, and unless required by any Laws,
this Franchise shall govern and supersede and shall not be altered, limited, supplemented or
otherwise amended by any permit, approval, license, agreement or other document required by
or obtained from Renton in conjunction with Franchisee's exercise or failure to exercise any and
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all benefits, privileges, obligations or duties in and under this Franchise, unless such permit,
approval, license, agreement or other document specifically:
a. References this Franchise; and
b. States that it supersedes this Franchise to the extent it contains terms and
conditions which alter, limit, supplement or otherwise amend the terms and conditions
of this Franchise. In the event of any conflict or inconsistency between the provisions of
this Franchise and the provisions of any such permit, approval, license, agreement or
other document,except as expressly required by Laws and/or superseded by such permit,
approval, license, agreement or other document, the Franchise provisions shall control.
SECTION XXII: Indemnification
22.1 Renton: In Sections XXII and XXIII, "Renton" means the City of Renton, and its
elected officials, agents, employees, officers, representatives, consultants (of any level), and
volunteers.
22.2 Indemnification bV Franchisee: Franchisee shall indemnify, defend, and hold
harmless Renton, from and against any and every Third-Party action, claim, cost, damage, death,
expense, harm, injury, liability, or loss of any kind, in law or in equity, to persons or property,
including reasonable attorneys' and experts' fees and/or costs incurred by Renton in its defense,
arising out of or related to, directly or indirectly, to Franchisee's Work or abandonment of
Facilities, or from the existence of Franchisee's Facilities, and the products contained in,
transferred through, any signals or emissions from the Facilities, released or escaped from the
Facilities, including the reasonable costs of assessing such damages and any liability for costs of
investigation, abatement, correction, cleanup, fines, penalties, or other damages arising under
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any Laws, including, but not limited to, Environmental Laws, and any action, claim, cost, damage,
death, expense, harm, injury, liability, or loss,to persons or property which is caused by, in whole
or in part, and only to the extent of, the willfully tortious or negligent acts or omissions of
Franchisee or its agents, contractors (of any tier), employees, representatives or trainees related
to Franchisee's granted Franchise privileges. If any action or proceeding is brought against
Renton by reason of Franchisee's Facilities, Franchisee shall defend Renton at Franchisee's sole
expense, provided that, for uninsured actions or proceedings, defense attorneys shall be
approved by Renton, which approval shall not be unreasonably withheld. The terms of this
section shall not require Franchisee to indemnify Renton against and hold harmless Renton from
claims, demands or suits based upon Renton's negligent or willful conduct, and provided further
that if the claims or suits are caused by or result from the concurrent negligence of (a) the
Franchisee's agents, officers, or employees and (b) Renton, this provision with respect to claims
or suits based upon such concurrent negligence shall be valid and enforceable only to the extent
of Franchisee's negligence or the negligence of Franchisee's agents or employees except as
limited in this Franchise.
22.3 Environmental Indemnification: Franchisee shall indemnify, defend, and save
Renton harmless from and against any and every Third-Party action, claim, cost, damage, death,
expense, harm, injury, liability,or loss,either at law or in equity,to persons or property, including,
but not limited to, costs and reasonable attorneys' and experts' fees incurred by Renton, arising
directly or indirectly from: (a) Franchisee's breach of any environmental Laws or Laws applicable
to the Facilities, or (b) from any release of a hazardous substance on or from the Facilities, or (c)
other activity related to this Franchise by Franchisee. This indemnity includes, but is not limited
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ORDINANCE NO. 5862
to, (a) liability for a governmental agency's costs of removal or remedial action for Hazardous
Substances; (b) damages to natural resources caused by Hazardous Substances, including the
reasonable costs of assessing such damages; (c) liability for any other person's costs of
responding to Hazardous Substances; (d) liability for any investigation, abatement, correction,
cleanup, costs, fines, penalties, or other damages arising under any Laws; and (e) liability for
personal injury, property damage, or economic loss arising under any statutory or common-law
theory or Laws.
22.4 Title 51 Waiver: Franchisee's indemnification obligations pursuant to this section
shall include assuming potential liability for actions brought by Franchisee's own employees and
the employees of Franchisee's agents, representatives, contractors (of any tier) even though
Franchisee might be immune under RCW Title 51 from direct suit brought by such employees. It
is expressly agreed and understood that this assumption of potential liability for actions brought
by the aforementioned persons is limited solely to claims against Renton arising by virtue of
Franchisee's exercise of the privileges set forth in this agreement. The obligations of Franchisee
under this section have been mutually negotiated by the Parties, and Franchisee acknowledges
that Renton would not enter into this agreement without Franchisee's waiver of immunity. To
the extent required to provide this indemnification and this indemnification only, Franchisee
waives its immunity under Title 51 RCW as provided in RCW 4.24.115 (Validity of agreement to
indemnify against liability for negligence relative to construction, alteration, improvement,
etc.,...).
22.5 Real Estate Indemnity: Should a court of competent jurisdiction determine that
this Franchise is subject to RCW 4.24.115, (Validity of agreement to indemnify against liability for
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ORDINANCE NO. 5862
negligence relative to construction, alteration, improvement, etc.,...), as it. exists or may be
amended, then, in the event of liability for damages arising out of bodily injury to persons or
damages to property caused by or resulting from the concurrent negligence of Franchisee, its
officers, officials, employees, and volunteers and/or the contractor, or Renton, its elected
officials, officers, officials, employees, and volunteers, and or the contractor, the party's liability
shall be only to the extent of the party's negligence.
22.6 Notice: In the event any matter for which Renton intends to assert its rights under
this section is presented to or filed with Renton, Renton shall promptly attempt to notify
Franchisee in accordance with Section XXV of this Franchise, and Franchisee shall have the
privilege, at its election and at its sole costs and expense, to settle and compromise such matter
as it pertains to Franchisee's responsibility to indemnify, defend and hold harmless Renton. In
the event any suit or action is started against Renton based upon any such matter, Renton shall
likewise promptly attempt to notify Franchisee, and Franchisee shall have the privilege, at its
election and at its sole cost and expense,to settle and compromise such suit or action, or defend
the same at its sole cost and expense, by attorneys of its own election, as it pertains to
Franchisee's responsibility to indemnify, defend and hold harmless Renton. Franchisee's
indemnification obligations do not apply to the extent that Renton fails to provide attempt to
notice in accordance with Section XXV of this Franchise, and such failure materially prejudices
Franchisee or the defense of an action, claim, cost, damage, death, expense, harm, injury,
liability, or loss of any kind.
22.7 Recovery of City Costs: In the event that Renton is required to defend a "suit or
action" and Franchisee refuses to defend and indemnify Renton, as referenced in subsection 22.2
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ORDINANCE NO. 5862
and Renton is determined to be without fault for the claim or demand giving rise to such "suit or
action," Franchisee shall reimburse Renton for a percentage of Renton's total defense costs. The
percentage of Renton's total defense costs to be reimbursed shall be a percentage equal to the
percentage (if any) of fault attributable to Franchisee for the claim or demand giving rise to such
"suit or action."
22.8 Survival: The provisions of this section shall survive the expiration or termination
of this Franchise if the basis for any such claim, demand,suit or action as referenced in subsection
22.2 occurred during the Franchise term.
22.9 Negotiated: THE PARTIES HAVE SPECIFICALLY NEGOTIATED SECTION XXII,
INDEMNIFICATION.
SECTION XXIII: Insurance
23.1 Insurance Required: Franchisee shall procure and maintain for the duration of the
Franchise, insurance, or provide evidence of self-insurance, against all claims for injuries to
persons or damages to property which may arise from or in connection with the exercise of the
privileges granted by Franchise to Franchisee. Franchisee shall provide to Renton an insurance
certificate, and/or a certificate of self-insurance, together with an blanket additional insured
endorsement on the general and automotive liability policies, including Renton as an additional
insured as their interest may appear under this Agreement upon Franchisee's acceptance of this
Franchise, and such insurance certificate shall evidence the following coverages:
a. Commercial general liability insurance, including but not limited to, blanket
contractual, property damage, premises-operations, explosion, collapse and hazard,
underground hazard (XCU) and products completed hazard, with limits of five million
39
ORDINANCE NO. 5862
dollars ($5,000,000) for each occurrence for bodily injury and property damage and five
million dollars ($5,000,000) general aggregate;
b. Commercial automobile liability for owned, non-owned and hired vehicles with a
combined single limit of three million dollars ($3,000,000) each accident for bodily injury
and property damage;
c. Worker's Compensation within statutory limits consistent with the Industrial
Insurance laws of the State of Washington; and
d. Pollution liability with a limit not less than one million dollars ($1,000,000)for each
occurrence, and two million dollars ($2,000,000) in the aggregate, for pollution condition
arising out of or resulting from the use and occupancy of the premises and the operations
conducted thereon.
23.2 Deductibles: All deductibles shall be the sole responsibility of Franchisee. The
insurance certificate required by this section shall contain a clause stating that coverage shall
apply separately to each insured against whom claim is made or suit is brought, except with
respect to the aggregate limits of the insurer's liability.
23.3 Additional Insured: Renton, its officers, officials, employees, and volunteers shall
be included as an additional insured as their interest may appear under this Agreement on the
commercial general liability and commercial automobile liability insurance, as respects work
performed by Franchisee and the blanket additional insured endorsement shall be included with
on the certificate of insurance or certification of self-insurance.
23.4 Primary Insurance: Franchisee's insurance shall be primary insurance with respect
to Renton. Any insurance maintained by Renton shall be in excess of Franchisee's insurance and
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ORDINANCE NO. 5862
shall not contribute with it. Franchisee shall give Renton thirty (30) days prior written notice by
certified mail, return-receipt requested, of suspension, cancellation, or material change in
coverage.
23.5 Cancellation: Upon receipt of notice from its insurer(s) Franchisee shall provide
the City of Renton with thirty (30) days prior written notice of cancellation In the event of
cancellation or a decision not to renew, Franchisee shall obtain and furnish to Renton evidence
of replacement insurance policies meeting the requirements of this section before the
cancellation date.
23.6 Certificates and Endorsements: Franchisee shall furnish Renton with certificates
of insurance evidencing the coverage or self-insurance required by this section upon acceptance
of this Franchise. The certificates and blanket additional insured endorsement shall be signed by
a person authorized by the insurer to bind coverage on its behalf and must be received and
approved by Renton prior to the commencement of any Work.
23.7 Separate Coverage: Franchisee's insurance shall contain a clause stating that
coverage shall apply separately to each insured against whom claim is made or suit is brought,
except with respects to the limits of the insurer's liability.
23.8 Survival: The indemnity and insurance provisions under Sections XXII and XXIII
shall survive the termination of this Franchise and shall continue for as long as Franchisee's
Facilities remain in or on the Franchise Area or until the Parties execute a new Franchise that
modifies or terminates these indemnity or insurance provisions.
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SECTION XXIV: Discrimination Prohibited
In connection with this Franchise, including and not limited to all Work, hiring and
employment, neither Franchisee nor its employees, agents, subcontractors, volunteers or
representatives shall discriminate on the basis of race, color, sex, religion, nationality, creed,
marital status, sexual orientation or preference, age (except minimum age and retirement
provisions), honorably discharged veteran or military status, or the presence of any sensory,
mental or physical handicap, unless based upon a bona fide occupational qualification in
relationship to hiring and employment, in employment or application for employment or in the
administration of the delivery of services or any other benefits under this agreement. Franchisee
shall comply fully with all applicable Laws that prohibit such discrimination. A copy of this
language must be made a part of any contractor or subcontractor agreement.
SECTION XXV: Notice
25.1 Whenever notice to or notification by any Party is required, that notice shall be in
writing and directed to the recipient at the address set forth below, unless written notice of
change of address is provided to the other Party. Any notice or information required or permitted
to be given to the Parties under this Franchise may be sent to following Addresses unless
otherwise specified:
City Address:
City of Renton
Administrator, Public Works Department
1055 South Grady Way
Renton, WA 98057
Phone: (425) 430-7311
Company Address:
XO Communications Services, LLC
ATTN: Franchise manager
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ORDINANCE NO. 5862
600 Hidden Ridge
Mailcode: HQE02G295
Irving, TX 75038
With Copies to:
XO Communications Services, LLC
1320 N. Courthouse Road, Suite 900
Arlington, VA, USA 22201
Attn: Vice President and Deputy General Counsel, Network Operations
25.2 If the date for making any payment or performing any act is a legal holiday,
payment may be made or the act performed on the next succeeding business day which is not a
legal holiday.
25.3 The Parties may change the address and representative by providing written
notice of such change by accepted e-mail or certified-mail. All notices shall be deemed complete
upon actual receipt or refusal to accept delivery. Facsimile or a .pdf e-mailed transmission of any
signed original document and retransmission of any signed facsimile transmission shall be the
same as delivery of an original document.
SECTION XXVI: Miscellaneous
26.1 As Is: Franchisee agrees and accepts the Franchise Area in an "as is" condition.
Franchisee agrees that Renton has never made any representations, implied or express
warranties, or guarantees as to the suitability, security or safety of the location of Franchisee's
Facilities or the Franchise Area, or possible hazards or dangers arising from other uses or users
of the Franchise Area, Rights-of Way, Public Property, and Public Ways including any use by
Renton, the general public, or by other utilities. As to Renton and Franchisee, Franchisee shall
remain solely and separately liable for the Work, function, testing, maintenance, replacement
and/or repair of the Facilities or other activities permitted by this Franchise.
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ORDINANCE NO. 5862
26.2 Assignees and Successors: This Franchise and all of the terms and provisions shall
be binding upon and inure to the benefit of the Parties' respective successors and assignees.
26.3 Attorneys' Fees: Except as provided in Section XIX, if a suit or other action is
instituted in connection with any controversy arising out of this Franchise, the prevailing party
shall be entitled to recover all of its Costs, including such sum as the court may judge as
reasonable for attorneys' fees, costs, expenses and attorneys' fees upon appeal of any judgment
or ruling.
26.4 Conflicts: If there is a conflict between this and any previous Franchise between
the Parties, the terms of this Franchise shall supersede the terms of the previous Franchise.
26.5 Contractors (of any tier): Franchisee's contractors may act on Franchisee's behalf
to the extent that Franchisee permits its contractors to do so. Franchisee is responsible for
ensuring that Franchisee's contractors have every obligation, duty and responsibility that
Franchisee has in discharging its duties related to this Franchise agreement.
26.6 Eminent Domain: This Franchise shall not preclude a governmental body from
acquiring the Franchise Area by lawful condemnation, or Renton from acquiring any portion of
the Facilities by lawful condemnation. In determining the Facilities' value, no value shall be
attributed to the right to occupy the Franchise Area.
26.7 Force Maieure: In the event that Franchisee is prevented or delayed in the
performance of any of its obligations under this Franchise by reason(s) beyond the reasonable
control of Franchisee, then Franchisee's performance shall be excused during the Force Majeure
occurrence. Upon removal or termination of the Force Majeure occurrence Franchisee shall
promptly perform the affected obligations in an orderly and expedited manner under this
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ORDINANCE NO. 5862
Franchise or procure a substitute for such obligation or performance that is satisfactory to
Renton. Franchisee shall not be excused by mere economic hardship or by misfeasance or
malfeasance of its directors, officers or employees. Events beyond Franchisee's reasonable
control include, but are not limited to, Acts of God, war, acts of domestic terrorism or violence,
civil commotion, labor disputes, strikes, earthquakes, fire, flood or other casualty, shortages of
labor or materials, government regulations or restrictions and extreme weather conditions.
Franchisee shall use all commercially reasonable efforts to eliminate or minimize any delay
caused by a Force Majeure event.
26.8 Forfeiture and Other Remedies: If Franchisee willfully violates or fails to comply
with any of the Franchise provisions, or through willful or unreasonable negligence fails to heed
or comply with any notice that Renton may give to Franchisee under the Franchise provisions, at
the election of the Renton City Council,this Franchise may be revoked or annulled after a hearing
held upon reasonable notice to Franchisee (which notice shall be given at least thirty (30) days
before the hearing), and upon such revocation, all privileges conferred under this Franchise shall
be forfeited.
26.9 Franchisee's Acceptance: Renton may void this Franchise ordinance if Franchisee
fails to file its unconditional acceptance of this Franchise within thirty (30) days from the final
passage of same by the Renton City Council. Franchisee shall file this acceptance with the City
Clerk of the City of Renton.
26.10 Governing Law: This Franchise shall be made in and shall be governed by and
interpreted in accordance with the laws of the State of Washington.
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ORDINANCE NO. 5862
26.11 Jurisdiction and Venue:Any lawsuit or legal action brought by any party to enforce
or interpret this Franchise or any of its terms or shall be in the United States District Court for the
Western District of Washington, in Seattle, Washington, or in the King County Superior Court for
the State of Washington at the Maleng Regional Justice Center, Kent, Washington.
26.12 No Duty by Renton: This Franchise neither creates any duty by Renton nor any of
its elected officials, agents, employees or representatives, and no liability arises from any action
or inaction by Renton or any of its elected officials, agents, employees or representatives in the
exercise of their powers or authority. Renton is not required to inspect or guarantee Franchisee's
Work.This Franchise is not intended to acknowledge, create, imply or expand any duty or liability
of Renton with respect to any function in the exercise of its police power or for any other purpose.
Any duty that may be deemed to be created in Renton by this Franchise shall be deemed a duty
to the general public and not to any specific party, group or entity.
26.13 Notice of Tariff Changes: Franchisee shall, when making application for any
changes in Tariffs affecting the provisions of the Franchise, notify Renton in writing of the
application and provide Renton with a copy of the submitted application within five (5) calendar
days of filing with the WUTC. Franchisee shall further provide Renton with a copy of any actual
approved Tariff(s) affecting the provision of this Franchise.
26.14 Other Obligations: This Franchise shall not alter, change or limit Franchisee's
obligations under any other agreement or its obligations as it relates to any other property or
endeavor.
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ORDINANCE NO. 5862
26.15 Renton's Police Powers: Nothing in this Franchise shall diminish, or eliminate, or
be deemed to diminish or eliminate that governmental or police powers of Renton, including the
right to create new Laws or modify existing Laws.
26.16 Public Document/Public Disclosure: This Franchise will be considered a public
document and will be available for reasonable inspection and copying bythe public during regular
business hours. This document may be disclosed pursuant to RCW 42.56 (Public Records Act).
26.17 Section Headings:The Section headings in this Franchise are for convenience only,
and do not purport to and shall not be deemed to define, limit, or extend the scope or intent of
the section to which they pertain.
26.18 Severability: In the event that a court or agency of competent jurisdiction declares
a material provision of this Franchise to be invalid, illegal or unenforceable, the Parties shall
negotiate in good faith and agree, to the maximum extent practicable in light of such
determination, to such amendments or modifications as are appropriate so as to give effect to
the intentions of the Parties. If severance from this Franchise of the particular provision(s)
determined to be invalid, illegal or unenforceable will fundamentally impair the value of this
Franchise, either Party may apply to a court of competent jurisdiction to reform or reconstitute
the Franchise so as to recapture the original intent of said particular provision(s). All other
provisions of the Franchise shall remain in effect at all times during which negotiations or a
judicial action remains pending.
26.19 Survival: With respect only to matters arising during the period of time this
Franchise shall be in full force and effect,the Parties intend that any term or condition applicable
to such matters shall survive the expiration or termination of this Franchise to the extent such
47
ORDINANCE NO. 5862
survival can be reasonably inferred under the circumstances presented and to the extent such an
inference is necessary to prevent substantial injustice to an injured party.
26.20 Third-Parties: The Parties do not create any obligation or liability, or promise any
performance to, any Third-Party, nor have the Parties created any Third-Party right to enforce
this Franchise beyond what is provided for by Laws. "Third-Parties" are any party other than
Renton and Franchisee. This Franchise shall not release or discharge any obligation or liability of
any Third-Party to either Party.
26.21 Time of the Essence: Whenever this Franchise sets forth a time for any act to be
performed, such time shall be deemed to be of the essence, and any failure to perform within
the allotted time may be considered a material violation of this Franchise.
SECTION XXVII: Effective Date
This ordinance shall be in full force and effect five (5) days after publication of a summary
of this ordinance in the City's official newspaper, and provided it has been duly accepted by
Franchisee. The summary shall consist of this ordinance's title.
PASSED BY THE CITY COUNCIL this 13th day of November, 2017.
4 ?✓
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Jason . Seth, C lerk
APPROVED BY THE MAYOR this 13th day of November, 2017.
Denis Law, Mayor
48
ORDINANCE NO. 5862
Approved as to form:
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Shane Moloney, City Attorney =
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Date of Publication: 11/17/2017 (Summary) = o
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49
ORDINANCE NO. 5862
UNCONDITIONAL ACCEPTANCE
The undersigned, Franchisee, accepts ail the privileges of the above-granted franchise, subject to
all the terms, conditions, and obligations of this Franchise.
DATED: �%� � , 2017.
XI� MUNICATIONS SERVICES, LLC
Robert F. ee
Director Network Engineering & Operations
50
ORDINANCE NO. 5862
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