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Home My WebLink AboutFinal Agenda Packet CITY OF RENTON AGENDA – REGULAR 7:00 PM - MONDAY, FEBRUARY 2, 2026 Council Chambers, 7th Floor, City Hall – 1055 S. Grady Way Please note that this regular meeting of the Renton City Council is being offered as a hybrid meeting and can be attended in person at the Council Chambers, 7th floor of City Hall, 1055 S Grady Way, Renton, 98057 or remotely through Zoom. For those wishing to attend by Zoom: Please (1) click this link https://us02web.zoom.us/j/84938072917?pwd=TUNCcnppbjNjbjNRMWpZaXk2bjJnZz09 (or copy/paste the URL into a web browser) or (2) call-in to the Zoom meeting by dialing 253-215-8782 and entering 849 3807 2917 Passcode 156708, or (3) call 425-430-6501 by 5 p.m. on the day of the meeting to request an invite with a link to the meeting. Registration for Audience Comment: Registration will be open at all times, but speakers must register by 5 p.m. on the day of a Council meeting in order to be called upon. Anyone who registers after 5 p.m. on the day of the Council meeting will not be called upon to speak and will be required to re-register for the next Council meeting if they wish to speak at that next meeting. • Request to Speak Registration Form: o Click the link or copy/paste the following URL into your browser: https://forms.office.com/g/bTJUj6NrEE • You may also call 425-430-6501 or email jsubia@rentonwa.gov or cityclerk@rentonwa.gov to register. Please provide your full name, city of residence, email address and/or phone number, and topic in your message. • A sign-in sheet is also available for those who attend in person. Video on Demand: Please click the following link to stream Council meetings live as they occur, or to select previously recorded meetings: Renton Channel 21 Video on Demand OneMeeting Project Confirmation of Work 1. CALL TO ORDER AND PLEDGE OF ALLEGIANCE 2. ROLL CALL 3. PROCLAMATION a) Black History Month – February 2026 4. ADMINISTRATIVE REPORT Administrative Report 5. AUDIENCE COMMENTS- All remarks must be addressed to the Council as a whole, if a response is requested please provide your name and address, including email address, to the City Clerk to allow for follow‐up. - Speakers must sign-up prior to the Council meeting. - Each speaker is allowed three minutes. - When recognized, please state your name & city of residence for the record.NOTICE to all participants: Pursuant to state law, RCW 29B.45.010, campaigning for or against any ballot measure or candidate in City Hall and/or during any portion of the council meeting, including the audience comment portion of the meeting, is PROHIBITED. 6. CONSENT AGENDA The following items are distributed to Councilmembers in advance for study and review, and the recommended actions will be accepted in a single motion. Any item may be removed for further discussion if requested by a Councilmember. a) Approval of Council Minutes of January 26, 2026. b) Municipal Court recommends approval of Amendment #1 to GRA-25-039, with Washington Administrative Office of Courts (AOC) in the amount of $10,000.00, for the renewal of the grant funding to be applied towards the reimbursement of court costs associated with cases impacted by the Blake decision. Refer to Finance Committee c) Community and Economic Development Department recommends execution of contract CAG-26-020, contractor Northwest Playground Equipment Inc., in the amount of $275,407.76, for fabrication and construction of the Legacy Square Phase 3 Playground Equipment project; and requests additional appropriations in the amount of $150,000 to cover the budget gap. Refer to Finance Committee 7. UNFINISHED BUSINESS a) Transportation Committee: 1) Appointments to the Renton Airport Advisory Committee; 2) Amendment #1 to CAG-24-100 with Fehr and Peers, Inc. for the Comprehensive Plan Transportation Element Update; 3) Change Order No. 56 to CAG-22-163 with Pivetta Brother’s Construction, Inc. for the Rainier Ave S Corridor Improvements - Phase 4 Project b) Utilities Committee: 1) NFC Northwest, LLC Franchise Agreement*; 2) Ziply Fiber Pacific, LLC Franchise Agreement*; 3) Agreement with Stantec Consulting Services Inc. for the Copper Ridge Storm System Improvement Project 8. LEGISLATION Ordinances for first reading: a) Ordinance No. 6181: NFC Northwest LLC Franchise (See Item 7.b) b) Ordinance No. 6182: Ziply Pacific LLC Franchise (See Item 7.b) 9. NEW BUSINESS (Includes Council Committee agenda topics; visit rentonwa.gov/cityclerk for more information.) 10. EXECUTIVE SESSION & ADJOURNMENT To discuss litigation per RCW 42.30.110.1.(i) for approximately 30 minutes. Armondo Pavone Mayor PROCLAMATION WHEREAS, 2026 marks the 1OOth anniversary of the first Negro HistoryWeek, founded by Dr. Carter Godwin Woodson in 1926; and WHEREAS, the 2026 Btack History Month theme "A Century of Btack History Commemorations" marks the century of recognized efforts to study, preserve, and cetebrate Btack history in the United States and beyond; and WHEREAS, BLack History Month urges aLL of us to examine the impact and meaning of Btack history, cutture, and the stories that are ingrained within the United States history and that continue to inftuence the future; and WHEREAS, Renton is the home to community organizations, [earning institutions, professional networks, and individuats that are dedicated to the education and ampl.ification of the rich history and impact of African Americans to the Renton community; and WHEREAS, the African American community continues to ptay remarkabte rotes in the success, teadership, and spirit of the City of Renton; and NOW THEREFORE, l, Armondo Pavone, Mayor of the City of Renton, do hereby proctaim February 2026 to be Black History Month in the City of Renton, and I encourage atl residents to join me in learning more about the rich history of African Americans during this speciaI observance. lN WITNESS THEREOF, I have hereunto set my hand and caused the seal of the City of Renton to be affixed this 2nd day of February 2026 Mayor Pavone City of Renton, Washington Renton City Hall, Tth Floor 1055 South Grady Way, Renton, WA 98057 . rentonwa.gov 4 of 179 DATE: January 28, 2025 TO: Ruth Pérez, Council President Members of the Renton City Council FROM: Armondo Pavone, Mayor Ed VanValey, Chief Administrative Officer SUBJECT: Administrative Report • It’s officially playtime at Maplewood Park. Join us Saturday, February 7 at 10 a.m. for the official ribbon cutting ceremony at Maplewood Park (3400 SE 6th Street) to celebrate a job well done for a space built for fun, fitness, and community. • Our Communications and Economic Development staff met with the business owner who provided comment last week and have been able to resolve the matter. • Our Police chief was familiar with the individual who provided comment about accessibility for the visually impaired and was able to reach out to her directly. The individual agreed to meet with staff to discuss specific concerns and observations. • Information about preventative street maintenance, traffic impact projects, and road closures happening this week can be found at http://rentonwa.gov/traffic. All projects are weather permitting and unless otherwise noted, streets will always remain open.  Monday, February 2 through Friday, February 6, 8:00am-4:00pm. Road closure on 122nd Ave SE between SE 172nd St and SE 168th St for construction work. Approved traffic control plans were issued for all work and will be followed, including detour and spotters and flaggers to assist with local traffic and pedestrians. Questions may be directed to Rob Blackburn, 206-379-1489.  Monday, February 2 through Friday, February 6, 8:00am-4:00pm. Intermittent lane closure on SE 172nd St between 122nd Ave SE and 127th Ave SE for construction work. Approved traffic control plans were issued for all work and will be followed. Questions may be directed to Rob Blackburn, 206-379-1489.  Monday, February 2 through Friday, February 6, 8:00am-4:00pm. Intermittent lane closure on Park Ave N and N 31st for construction work. Approved traffic control plans were issued for all work and will be followed. Questions may be directed to Pat DeCaro, 425-207- 6013.  Monday, February 2 through Friday, February 6. Intermittent lane closure on Rainier Ave N between 2nd St and Airport Way for construction work. Approved traffic control plans 5 of 179 Ruth Pérez, Council President Members of the Renton City Council Page 2 of 2 January 22, 2026 were issued for all work and will be followed. Questions may be directed to Joe Nerlfi, 425- 757-9657.  On-going Street Closure through May 15, 2026 (City of Renton Resolution No. 4571) FULL STREET CLOSURE on Houser Way N between Lake Washington Blvd N and Lowe’s business access road in support of the I-405, Renton to Bellevue Widening and Express Toll Lanes (ETL) project. 6 of 179 CITY OF RENTON MINUTES - City Council Regular Meeting JANUARY 26, 2026 – 7:00 PM Council Chambers, 7th Floor, City Hall – 1055 S. Grady Way 1. CALL TO ORDER AND PLEDGE OF ALLEGIANCE 2. ROLL CALL Councilmembers Present Ruth Pérez, Council President James Alberson, Jr., Council Position No. 1 Carmen Rivera, Council Position No. 2 Valerie O'Halloran, Council Position No. 3 Ryan McIrvin, Council Position No. 4 Ed Prince, Council Position No. 5 Kim-Khánh Vǎn, Council Position No. 7 Armondo Pavone, Mayor Administrative Staff Present Armondo Pavone, Mayor Ed VanValey, CAO Cheryl Byer, Senior Assistant City Attorney Jason Seth, City Clerk Martin Pastucha, Public Works Administrator Gina Estep, Community & Economic Development Administrator Maryjane Van Cleave, Parks & Recreation Administrator Kari Roller, Finance Administrator Young Yoon, IT Director Jennifer Spencer, Recreation Director John Rupp, Parks & Trails Director Deb Needham, Emergency Management Director Jim Seitz, Public Works Transportation Systems Director Eric Perry, Government Affairs Manager Commander Dan Figaro, Police Department Attended Remotely Georgia Ward-Collings, Administrative Secretary 1 Kristi Rowland, Deputy CAO Melissa McCain, Deputy City Clerk Ron Straka, Public Works Utility Systems Director 7 of 179 3. ADMINISTRATIVE REPORT CAO Ed VanValey reviewed a written administrative report summarizing the City’s recent progress towards goals and work programs adopted as part of its business plan for 2026 and beyond. Noted items were: • Spend a winter evening at Dreamland Disco, a family-friendly pajama dance scheduled for Friday, January 30 at the Renton Community Center (1715 Maple Valley Hwy.). Event costs are $15 for residents and $18 for non- residents. Registration is open to all ages 3 and over and may be done by visiting rentonwa.gov/register. • Information about preventative street maintenance, traffic impact projects, and road closures happening this week can be found at http://rentonwa.gov/traffic. All projects are weather permitting and unless otherwise noted, streets will always remain open. 4. AUDIENCE COMMENTS • Shala Marlatt, Kent, stated she owns Black Bear Coffee located on the corner of SE 192nd St and 108th Ave SE, and asked for assistance related to traffic impact fees. She stated that the fees are more than $40,000. • Anthony Brocato, Seattle, stated he is the General Manager for Recology King County, and thanked Council for considering contracting with the organization as a new solid waste hauler. • Kevin Bumgarner, Seattle, stated he is the Assistant General Manager for Recology King County, and thanked Council for considering contracting with the organization as a new solid waste hauler. • Olivia Kirby, Seattle, stated that she too works for Recology King County and thanked Council for considering contracting with the organization as a new solid waste hauler. • Liz Callahan, Renton, spoke in opposition to switching to a new solid waste hauler, explaining that the current contract with Republic Services allows for one or two two- year extensions that can be executed. She noted extending the current contract will save residents money. • John Olivares, Bellevue, stated that he works for Republic Services and urged Council to execute the extension to the current solid waste hauler contract to save residents money. • James Borsum, Auburn, noted that he is a union representative for Teamster Local 117, serving the Republic Services drivers, and urged Council to execute the extension to the current solid waste hauler contract to save residents money. 8 of 179 • Mark Williams, Puyallup, stated that he is a driver for Republic Services and member of Teamsters Local 117. He urged Council to execute the extension to the current solid waste hauler contract to save residents money. • Diane Dobson, Renton, speaking on behalf of the Renton Chamber of Commerce, stated that many residents and business owners are struggling with costs right now. She urged Council to execute the extension to the current solid waste hauler contract to save residents money. • Alice Lockridge, Renton, stated that she had previously asked Renton officials to state their political opinions publicly. She thanked the officials that have stated their opinions. • Shannon Bernier, Renton, stated that she has been visually impaired since 2021 and asked Council to do more to include all members of the community. She remarked that city staff have not been helpful when she is requesting assistance with city services. • Nora Meneses, Renton, asked city officials for assistance regarding rent increases occurring at The Reserve Apartments. She noted that she was initially told her rent would not increase, but now management is asking for additional rent and charging her fees for missed payments. 5. CONSENT AGENDA The following items are distributed to Councilmembers in advance for study and review, and the recommended actions will be accepted in a single motion. Any item may be removed for further discussion if requested by a Councilmember. a) Approval of Council Minutes of January 12, 2026. Council Concur b) Mayor Pavone recommended confirmation of his appointments of Jordan Ming to the Airport-at-Large Primary Position and Kevin Iden to the Kennydale Neighborhood Alternate Position on the Renton Airport Advisory Committee, with terms expiring February 28, 2029. Refer to Transportation Committee c) City Clerk submitted the quarterly list of fully executed contracts & leases between 10/1/2025 - 12/31/2025, and a report of agreements expiring between 1/1/2026– 6/30/2026. None; Information Only d) Community and Economic Development Department recommended adoption of an ordinance authorizing execution of a franchise agreement with NFC Northwest, LLC to construct, install, and operate fiber optic cables and appurtenances within and through city rights-of-way. Refer to Utilities Committee e) Community and Economic Development Department recommended adoption of an ordinance authorizing the execution of a franchise agreement with Ziply Fiber Pacific, LLC, to construct, install, and operate fiber optic cables and appurtenances within and through city rights-of-way. Refer to Utilities Committee 9 of 179 f) Public Works Transportation Division recommended execution of Amendment No. 1 to CAG-24-100, consultant Fehr and Peers, Inc., in the amount of $148,275, for work related to the completion of the update to the city’s Comprehensive Plan Transportation Element. Refer to Transportation (Aviation) Committee. g) Public Works Transportation Division recommended execution of Change Order No. 56 to CAG-22-163, contractor Pivetta Brother’s Construction, Inc., for additional work required for the Rainier Ave S Corridor Improvements - Phase 4 project. Refer to Transportation Committee h) Public Works Utility Division recommended execution of an agreement with Stantec Consulting Services Inc., in the amount of $296,218.80 for engineering design services for the Copper Ridge Storm System Improvement project. Refer to Utilities Committee MOVED BY PÉREZ, SECONDED BY MCIRVIN, COUNCIL ADOPT THE CONSENT AGENDA AS PUBLISHED. CARRIED. 6. UNFINISHED BUSINESS Topics listed below were discussed in Council committees during the past week. Those topics marked with an asterisk (*) may include legislation. Committee reports on any topic may be held by the Chair if further review is necessary. a) Planning & Development Committee: Chair Prince presented a report recommending concurrence with the staff, Parks Commission, and Planning Commission recommendation to adopt an update to the Parks, Recreation, and Open Space Plan, formerly referred to as the Parks, Recreation, and Natural Areas Plan. The Committee further recommended that the resolution adopting the update be presented for reading. MOVED BY PRINCE, SECONDED BY VǍN, COUNCIL CONCUR IN THE COMMITTEE RECOMMENDATION. CARRIED. b) Finance Committee: Chair O’Halloran presented a report recommending approval of the following payments: 1. Accounts Payable – total payment of $10,104,200.73 for vouchers 102260, 105260, 106260, 109260, 122625, 1022600, 1092600, 12312025, 430388- 430670; payroll benefit withholding vouchers 7848-7857, 430679-430685; and 2 wire transfers. 2. Payroll – total payment of $2,304,220.54 for payroll vouchers that include 685 direct deposits and 1 check. (12/16/25 – 12/31/25 pay period) 3. Kidder Matthews vouchers 2074-2092 totaling $35,207.27. MOVED BY O’HALLORAN, SECONDED BY MCIRVIN, COUNCIL CONCUR IN THE COMMITTEE RECOMMENDATION. CARRIED. 10 of 179 c) Finance Committee: Chair O’Halloran presented a report recommending concurrence in the staff recommendation to authorize the Mayor and City Clerk to sign a Purchase and Sale Agreement for King County Parcel 1823059262 with authorization to sign all documents to effectuate the sale for the purchase price of $1,000,000 plus $40,000 in estimated closing costs for a total of $1,040,000 and authorize additional budget appropriations in the general governmental capital fund in the amount of $1,040,000. The additional budget will be included in the Q1 2026 carry-forward budget. MOVED BY O’HALLORAN, SECONDED BY MCIRVIN, COUNCIL CONCUR IN THE COMMITTEE RECOMMENDATION. CARRIED. d) Finance Committee: Chair O’Halloran presented a report recommending concurrence in the staff recommendation to approve the agreement with PFM Asset Management, in an amount not to exceed $600,000 over the life of the contract, to serve as the city’s investment advisor, providing full-time investment consulting and portfolio management support. MOVED BY O’HALLORAN, SECONDED BY MCIRVIN, COUNCIL CONCUR IN THE COMMITTEE RECOMMENDATION. CARRIED. e) Finance Committee: Chair O’Halloran presented a report recommending concurrence in the staff recommendation to approve the interagency agreement with the Washington Traffic Safety Commission for Law Enforcement Liaison to accept $4,000 in grant funds to increase law enforcement participation in traffic safety enforcement and to serve as a resource for the region’s Target Zero Manager. MOVED BY O’HALLORAN, SECONDED BY MCIRVIN, COUNCIL CONCUR IN THE COMMITTEE RECOMMENDATION. CARRIED. 7. LEGISLATION RESOLUTION: a) Resolution No. 4572: A resolution of the City of Renton adopting the 2026 Parks, Recreation and Open Space Plan. MOVED BY PRINCE, SECONDED BY VǍN, COUNCIL ADOPT THE RESOLUTION AS READ. CARRIED. 8. NEW BUSINESS (Includes Council Committee agenda topics; visit rentonwa.gov/cityclerk for more information.) 11 of 179 9. EXECUTIVE SESSION & ADJOURNMENT MOVED BY PÉREZ, SECONDED BY MCIRVIN, COUNCIL RECESS INTO EXECUTIVE SESSION TO DISCUSS POTENTIAL LITIGATION PURSUANT TO RCW 42.30.110.1.(I) FOR APPROXIMATELY 45 MINUTES WHERE NO ACTION WILL BE TAKEN AND THE COUNCIL MEETING BE ADJOURNED WHEN THE EXECUTIVE SESSION IS ADJOURNED. CARRIED. TIME: 7:47 p.m. Executive Session was conducted, and no action was taken. The council meeting adjourned when the executive session adjourned. TIME: 8:18 p.m. Jason A. Seth, MMC, City Clerk Jason Seth, Recorder Monday, January 26, 2026 12 of 179 Council Committee Meeting Calendar January 26, 2026 February 2, 2026 Monday 2:00 p.m. Utilities Committee, Chair Văn Location: Council Conference Room/Videoconference 1. NFC Northwest, LLC Franchise Agreement 2. Ziply Fiber Pacific, LLC Franchise Agreement 3. Agreement with Stantec Consulting Services Inc. for the Copper Ridge Storm System Improvement Project 4. Emerging Issues in Utilities 2:45 p.m. Public Safety Committee, Chair Alberson Location: Council Conference Room/Videoconference 1. Immigration Policy Review 2. Emerging Issues in Public Safety 3:45 p.m. Transportation Committee, Chair Rivera Location: Council Conference Room/Videoconference 1. Appointments to the Renton Airport Advisory Committee 2. Amendment #1 to CAG-24-100 with Fehr and Peers, Inc. for the Comprehensive Plan Transportation Element Update 3. Change Order No. 56 to CAG-22-163 with Pivetta Brother’s Construction, Inc. for the Rainier Ave S Corridor Improvements - Phase 4 Project 4. Emerging Issues in Transportation 5:00 p.m. Committee of the Whole, Chair Pérez Location: Council Chambers/Videoconference 1. Axon Contract 6:00 p.m. Black History Month Reception Location: Conferencing Center 7:00 p.m. Council Meeting Location: Council Chambers/Videoconference 13 of 179 1 SUBJECT/TITLE:Interagency Agreement AOC2540 - Washington Administrative Office of Courts/Municipal Court - Blake Funding Amendment RECOMMENDED ACTION: Refer to Finance Committee DEPARTMENT: Municipal Court STAFF CONTACT: Yanna Filippidis, Judicial Administrative Officer EXT.: 6531 $10,000 grant funding awarded to Renton Municipal Court from The Administrative Office of Courts. The Washington Administrative Office of Courts (AOC) has amended the amount of supplemental Blake funding to Renton Municipal Court by an additional $10,000. This is grant funding to be applied towards the reimbursement of court costs associated by processing cases impacted by the State v. Blake decision. Approve the acceptance of Blake funding from AOC in the amount of $10,000 to support the Renton Municipal Court’s processing of Blake cases. City Council Regular Meeting FISCAL IMPACT SUMMARY: SUMMARY OF ACTION STAFF RECOMMENDATION 14 of 179 AOC2540, Amendment 1 Page 1 of 2 AMENDMENT 1 INTERAGENCY AGREEMENT AGREEMENT NUMBER AOC2540 BETWEEN WASHINGTON STATE ADMINISTRATIVE OFFICE OF THE COURTS AND RENTON MUNICIPAL COURT This first Amendment to the Agreement is made and entered into by and between the State of Washington acting by and through the Washington State Administrative Office of the Courts (AOC), and Renton Municipal Court, referred to as “Court” known collectively as the “Parties”. RECITALS: A.AOC and Court (collectively the “Parties”) entered into the Agreement (“Agreement”) which will be performed from July 1, 2025 to June 30, 2026. B.The Parties now desire to amend the Agreement to update section 6. Compensation to increase funds to the agreement by $10,000 thereby resulting in a total compensation of $15,000. C.The amendment set forth herein is within the scope of the Agreement. AGREEMENT The parties now wish to amend the agreement as follows: 1.Section 6. Compensation The first paragraph of this section will be deleted in its entirety and replaced by the following: “AOC will reimburse the Court a total compensation not to exceed $15,000 for payments made during the period from July 1, 2025, through June 30, 2026, related to the purpose of this agreement.” 2.No change other than amendment. Except as amended herein, the Agreement is unaffected and remains in full force and effect. 3.Integrated Agreement, Modification. This amendment constitutes the entire agreement and understanding of the Parties with respect to the subject matter and supersedes all prior negotiations and representations. In the event of any conflict between this Amendment and the Agreement or any earlier amendment, this Amendment shall control and govern. This Amendment may not be modified except in writing signed by the Parties. Docusign Envelope ID: F4EA8523-E0F7-46E3-AD25-646E1E0A2485 15 of 179 AOC2540, Amendment 1 Page 2 of 2 AGREED: WASHIN GTON STATE ADMINISTRATIVE OFFICE OF THE COURTS RENTON MUNICIPAL COURT Signature Date Signature Date Christopher Stanley, CGFM Kara M. Murphy Richards Name Name Chief Financial and Management Officer Presiding Judge Title Docusign Envelope ID: F4EA8523-E0F7-46E3-AD25-646E1E0A2485 Title &,7<2)5(1721 BBBBBBBBBBBBBBBBBBBBBBBBBBBB $UPRQGR3DYRQH0D\RU'DWH $WWHVW BBBBBBBBBBBBBBBBBBBBBBBBBBBBB -DVRQ$6HWK &LW\&OHUN $SSURYHGDVWR/HJDO)RUP &KHU\O/%H\HU 6HQLRU$VVLVWDQWCity Attorney 16 of 179 1 SUBJECT/TITLE:Award of Contract CAG-26-020 for the Legacy Square Phase 3 Playground Equipment RECOMMENDED ACTION: Refer to Finance Committee DEPARTMENT: Community & Economic Development STAFF CONTACT: Emma Conley EXT.: 425-757-6807 The Earthscape playground design submitted by Northwest Playground Equipment Inc., in the amount of $275,407.76. The project is funded through the Municipal Facilities Capital Improvement Fund (316 Fund). An additional budget of $150K is requested to cover Phase 3 playground fabrication and construction costs; of which $120K will come from the general fund and $30K will come from the municipal arts capital fund. The budget adjustment will be included in the Q1 2026 Carryforward budget. For Legacy Square Phase 3, the City of Renton Community and Economic Development department (CED) want to procure an Earthscape inspired playground for the Legacy Square site at 310 S 3rd St, near the intersection of S 3rd St and Logan Ave S. CED staff reached out to Earthscape representatives which directed city staff to their sole vendor in Washington state, Northwest Playground Equipment, Inc. CED staff solicited playground designs utilizing only Earthscape custom and collection features and cost proposals from Northwest Playground Equipment, Inc. at no cost. Northwest Playground Equipment, Inc. has successfully provided a design and purchase order agreement that meets the project criteria. The project will include playground fabrication, playground installation, playground signage, and pour in place playground surfacing. The project aims to provide a new playground within a public space to support the remaining area of the Legacy Square site which includes a venue for viewing future sporting events (more specifically the 2026 FIFA World Cup), as well as other various community events throughout the year. The contract for the project, including the design and purchase order agreement by Northwest Playground Equipment, Inc., meets all criteria in policy 250-02. CED staff have reviewed the submitted design and purchase order agreement and determined that Northwest Playground Equipment Inc. is the sole designer as defined in RCW 39.04.350, in Renton City policy 250-02. Enclosed is the signed contract, vendor’s final purchase order agreement and design proposal. City Council Regular Meeting FISCAL IMPACT SUMMARY: SUMMARY OF ACTION 17 of 179 2 Award contract CAG-26-020 for the fabrication and construction of the World Cup Legacy Square Phase 3 playground to Northwest Playground Equipment Inc., authorize the mayor and city clerk to execute this contract in the amount of $275,407.76 and authorize an additional budget appropriation of $150,000. STAFF RECOMMENDATION 18 of 179 SMALL WORKS CONTRACT AGREEMENT Using State Master Contract #15122 CAG-26-020 THIS AGREEMENT (“Agreement”) is made as of the 10th day of February, 2026, (the “Effective Date”) by and between the City of Renton, a Washington State municipal corporation (“City”), through its Community and Economic Development Department and Northwest Playground Equipment, Inc., (“Contractor”), who are collectively referred to as the “Parties”, to supply playground equipment, design, layout, delivery, installation, playground drainage, safety surfacing, cleanup, debris removal, and all other work associated with the playground installation at Legacy Square, located at 528 S 3rd St., Renton, WA 98056. WHEREAS, the City has entered into a Master Contract Usage Agreement with the Washington Department of Enterprise Services (“DES”), DES Agreement Number K2127 and City of Renton Contract Number CAG-13-230, which authorizes the City to purchase or acquire goods and services for its direct use under contracts entered into by DES; and WHEREAS, DES awarded Contract #15122, a Participating Addendum to a NASPO ValuePoint cooperative contract, to certain contractors who provide Parks and Recreation Equipment and Related Services including removal and installation services; and WHEREAS, the Lead State (Oregon) for the NASPO ValuePoint cooperative contract undertook a competitive bid process and identified Contractor as a successful bidder and awarded a Master Agreement to Contractor; and WHEREAS, the City desires to purchase the goods and services described herein for its direct use from Contractor under DES Contract #15122; The City and Contractor agree as set forth below: 1. Scope of Work: Contractor will provide all material and labor necessary to perform all work described in the Scope of Work which is attached and fully incorporated into this Agreement by reference as Attachment “A.” 2. Changes in Scope of Work: The City, without invalidating this Agreement, may order changes to the Scope of Work consisting of additions, deletions or modifications, the Agreement Sum being adjusted accordingly by Parties mutual agreement. Such changes 19 of 179 PAGE 2 OF 12 in the work shall be authorized by written Change Order or Amendment signed by the Parties. 3. Time of Performance: Contractor shall commence performance of the Agreement no later than 30 calendar days after the Agreement’s Effective Date. 4. Term of Agreement: The Term of this Agreement shall end at completion of the Scope of Work, no later than May 31, 2026. This Agreement may be extended to accomplish change orders, if required, upon mutual written agreement of The City and Contractor. 5. Agreement Sum: The total amount of this Agreement is the sum of $275,407.76 which includes Washington State Sales Tax. This amount may be adjusted to a mutually agreed amount based on changes to the Scope of Work. 6. Consideration: In exchange for Contractor’s performance of the items and responsibilities identified in the Scope of Work, the City agrees to make payment of the amount identified as the Agreement Sum. 7. Method of Payment/ Retainage/ Bonding: Payment by the City for the Work will only be made after the Work has been performed and a voucher or invoice is submitted in a form acceptable to the City. A. Prevailing Wage Rates: Contractor must comply with the State of Washington prevailing wage requirements. Contractor must file an Intent To Pay Prevailing Wage at the beginning of the project and an Affidavit of Wages Paid at the end of the project with the Washington State Department of Labor and Industries. The State of Washington prevailing wage rates applicable for this project, which is located in King County, may be found at the following website address of the Department of Labor and Industries: http://www.lni.wa.gov/TradesLicensing/PrevWage/default.asp http://www.lni.wa.gov/TradesLicensing/PrevWage/WageRates/default.asp Pursuant to WAC 296-127-011, the applicable effective date for prevailing wage rates paid for the duration of this contract shall be the date the contract is executed as reflected in the “Effective Date” identified at the top of the first page of this Agreement. Upon request, the City will provide a copy of the applicable prevailing wages for this project. Alternatively, the rates may be viewed at the City of Renton City Hall by making an appointment with the contact person identified herein or prior to 20 of 179 PAGE 3 OF 12 contract award with the contact person identified as the City of Renton contact in Paragraph 15 A Notices of this agreement. B. For Agreements over $150,000: Pursuant to RCW 60.28 and 39.08 the City requires a 5 % Retainage be withheld and that the Contractor will provide a Performance and Payment (Contract) Bond on the City approved form upon execution of the Agreement. Payment of the initial 95% will be made in the next pay cycle of the City Finance Department after receipt of such voucher or invoice (pay cycles are bi-weekly). The remaining 5% will be retained for the purpose of completion of the project and fulfillment of claims and liens. C. For Agreements under $150,000 Pursuant to RCW 60.28 and 39.08 the City requires a 5 % Retainage be withheld and that the Contractor will provide a either a Performance and Payment (Contract) Bond on the City approved form upon execution of the Agreement or waive the payment and performance bond and instead the City will retain 10%. Payment of the initial 95% will be made in the next pay cycle of the City Finance Department after receipt of such voucher or invoice (pay cycles are bi-weekly). The remaining 5% will be retained for the purpose of completion of the project and fulfillment of claims and liens. (Unless the contractor waives the payment and performance bond below and opts for a 10% retainage below.) Contractor must pick one – if contractor does not pick one then 5% with contract bond is required: _______ To provide a payment and performance bond (contract bond) in the amount of 100% of the estimate including taxes with a 5% retainage, or _______ To waive a payment and performance bond (contract bond) and instead the city will retain the remaining 10% will be retained for the purpose of completion of the project and fulfillment of claims and liens. D. The City shall have the right to withhold payment to Contractor for any work not completed in a satisfactory manner until such time as Contractor modifies such work so that the same is satisfactory. E. Final Acceptance. Final Acceptance of the Project occurs when the Public Works Director has determined that the Project is one hundred percent (100%) complete and has been constructed in accordance with the Plans and Specifications. 21 of 179 PAGE 4 OF 12 F. Payment in the Event of Termination. In the event this Contract is terminated by the either party, the Contractor shall not be entitled to receive any further amounts due under this Contract until the work specified in the Scope of Work is satisfactorily completed, as scheduled, up to the date of termination. At such time, if the unpaid balance of the amount to be paid under the Contract exceeds the expense incurred by the City in finishing the work, and all damages sustained by the City or which may be sustained by the City or which may be sustained by the reason of such refusal, neglect, failure or discontinuance of Contractor performing the work, such excess shall be paid by the City to the Contractor. If the City’s expense and damages exceed the unpaid balance, Contractor and his surety shall be jointly and severally liable therefore to the City and shall pay such difference to the City. Such expense and damages shall include all reasonable legal expenses and costs incurred by the City to protect the rights and interests of the City under the Contract. 8. Hold Harmless: Contractor shall indemnify, defend and hold harmless the City, its elected officials, officers, agents, employees and volunteers, from and against any and all claims, losses or liability, or any portion of the same, including but not limited to reasonable attorneys’ fees, legal expenses and litigation costs, arising from injury or death to persons, including injuries, sickness, disease or death of Contractor’s own employees, agents and volunteers, or damage to property caused by Contractor’s negligent act or omission, except for those acts caused by or resulting from a negligent act or omission by the City and its officers, agents, employees and volunteers. Should a court of competent jurisdiction determine that this agreement is subject to RCW 4.24.115, (Validity of agreement to indemnify against liability for negligence relative to construction, alteration, improvement, etc., of structure or improvement attached to real estate…) then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of the contractor and the City, its officers, officials, employees and volunteers, Contractor’s liability shall be only to the extent of Contractor’s negligence. It is further specifically and expressly understood that the indemnification provided in this Agreement constitute Contractor’s waiver of immunity under the Industrial Insurance Act, RCW Title 51, solely for the purposes of this indemnification. The Parties have mutually negotiated and agreed to this waiver. The provisions of this section shall survive the expiration or termination of this Agreement. 9. Insurance: Contractor shall secure and maintain: A. Commercial general liability insurance, including Contractors Pollution Liability insurance covering losses caused by pollution conditions that arise from the 22 of 179 PAGE 5 OF 12 operations of the Contractor, in the minimum amounts of $1,000,000 for each occurrence/$2,000,000 aggregate for the Term of this Agreement. B. Professional liability insurance, in the minimum amount of $1,000,000 for each occurrence, shall also be secured for any professional services being provided to the City that are excluded in the commercial general liability insurance. C. Workers’ compensation coverage, as required by the Industrial Insurance laws of the State of Washington, shall also be secured. D. Commercial Automobile Liability for owned, leased, hired or non-owned, leased, hired or non-owned, with minimum limits of $1,000,000 per occurrence combined single limit, if there will be any use of Consultant’s vehicles on the City’s Premises by or on behalf of the City, beyond normal commutes E. It is agreed that on Contractor’s commercial general liability policy, the City of Renton will be named as an Additional Insured on a non-contributory primary basis. The City’s insurance policies shall not be a source for payment of any Contractor liability. F. Subject to the City’s review and acceptance, a certificate of insurance showing the proper endorsements, shall be delivered to the City before executing the work of this Agreement. G. Contractor shall provide the City with written notice of any policy cancellation, within two (2) business days of their receipt of such notice. H. Contractor shall include all subcontractors as insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverage for subcontractors shall be subject to the same insurance requirements as stated herein for Contractor. I. Additional Insurance if marked as “Required” by City: 1. ☐ Required. Builders Risk insurance covering interests of the City, the Contractor, Subcontractors, and Sub-contractors in the work. Builders Risk insurance shall be on a special perils policy form and shall insure against the perils of fire and extended coverage and physical loss or damage including flood, earthquake, theft, vandalism, malicious mischief, and collapse. The Builders Risk insurance shall include coverage for temporary buildings, debris removal and damage to materials in transit or stored off-site. This Builders Risk insurance covering the work will have a deductible of $5,000 for each occurrence, which will be the responsibility of the Contractor. Higher deductibles for flood and earthquake perils may be accepted by the 23 of 179 PAGE 6 OF 12 City upon written request by the Contractor and written acceptance by the City. Any increased deductibles accepted by the City will remain the responsibility of the Contractor. The Builders Risk insurance shall be maintained until final acceptance of the work by the City. 2. ☐ Required. Contractors Pollution Liability insurance covering losses caused by pollution conditions that arise from the operations of the Contractor. Contractors Pollution Liability insurance shall be written in an amount of at least $1,000,000 per loss, with an annual aggregate of at least $1,000,000. Contractors Pollution Liability shall cover bodily injury, property damage, cleanup costs and defense including costs and expenses incurred in the investigation, defense, or settlement of claims. If the Contractors Pollution Liability insurance is written on a claims-made basis, the Contractor warrants that any retroactive date applicable to coverage under the policy precedes the effective date of this Agreement; and that continuous coverage will be maintained or an extended discovery period will be exercised for a period of three (3) years beginning from the time that work under this Agreement is completed. The City shall be named by endorsement as an additional insured on the Contractors Pollution Liability insurance policy. If the scope of services as defined in this Agreement includes the disposal of any hazardous materials from the job site, the Contractor must furnish to the City evidence of Pollution Liability insurance maintained by the disposal site operator for losses arising from the insured facility accepting waste under this contract Agreement. Coverage certified to the Public Entity under this paragraph must be maintained in minimum amounts of $1,000,000 per loss, with an annual aggregate of at least $1,000,000. Pollution Liability coverage at least as broad as that provided under ISO Pollution Liability-Broadened Coverage for Covered Autos Endorsement CA 99 48 shall be provided and the Motor Carrier Act Endorsement (MCS 90) shall be attached. 10. Discrimination Prohibited: Except to the extent permitted by a bona fide occupational qualification, the Contractor agrees as follows: A. Contractor, and Contractor’s agents, employees, representatives, and volunteers with regard to the Work performed or to be performed under this Agreement, shall not discriminate on the basis of race, color, sex, religion, nationality, creed, 24 of 179 PAGE 7 OF 12 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, the administration of the delivery of Work or any other benefits under this Agreement, or procurement of materials or supplies. B. The Contractor will take affirmative action to insure that applicants are employed and that employees are treated during employment without regard to their race, creed, color, national origin, sex, age, sexual orientation, physical, sensory or mental handicaps, or marital status. Such action shall include, but not be limited to the following employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rates of pay or other forms of compensation and selection for training. C. If Contractor fails to comply with any of this Agreement’s non-discrimination provisions, the City shall have the right, at its option, to cancel the Agreement in whole or in part. D. Contractor is responsible to be aware of and in compliance with all federal, state and local laws and regulations that may affect the satisfactory completion of the project, which includes but is not limited to fair labor laws and worker's compensation. 11. Independent Contractor: Contractor’s employees, while engaged in the performance of any of Contractor’s Work under this Agreement, shall be considered employees of the Contractor and not employees, agents, representatives of the City and as a result, shall not be entitled to any coverage or benefits from the City of Renton. Contractor’s relation to the City shall be at all times as an independent contractor. Any and all Workman’s Compensation Act claims on behalf of Contractor employees, and any and all claims made by a third-party as a consequence of any negligent act or omission on the part of Contractor’s employees, while engaged in Work provided to be rendered under this Agreement, shall be the solely Contractor’s obligation and responsibility. 12. City of Renton Business License: The Contractor shall obtain a City of Renton Business License prior to performing any Work and maintain the business license in good standing throughout the term of this agreement with the City. Information regarding acquiring a city business license can be found at: https://www.rentonwa.gov/City-Services/Business-Resources/Business-Licenses 25 of 179 PAGE 8 OF 12 Information regarding State business licensing requirements can be found at: http://dor.wa.gov/doing-business/register-my-business 13. Record Keeping and Reporting: Contractor shall maintain accounts and records, which properly reflect all direct and indirect costs expended and Work provided in the performance of this Agreement. The Contractor agrees to provide access to and copies of any records related to this Agreement as required by the City to audit expenditures and charges and/or to comply with the Washington State Public Records Act (Chapter 42.56 RCW). 14. Public Records Compliance. To the full extent the City determines necessary to comply with the Washington State Public Records Act, Contractor shall make a due diligent search of all records in its possession, including, but not limited to, e-mail, correspondence, notes, saved telephone messages, recordings, photos, or drawings and provide them to the City for production. In the event Contractor believes said records need to be protected from disclosure, it shall, at Contractor’s own expense, seek judicial protection. Contractor shall indemnify, defend, and hold harmless the City for all costs, including attorneys’ fees, attendant to any claim or litigation related to a Public Records Act request for which Contractor has responsive records and for which Contractor has withheld records or information contained therein, or not provided them to the City in a timely manner. Contractor shall produce for distribution any and all records responsive to the Public Records Act request in a timely manner, unless those records are protected by court order. 15. Other Provisions: A. Administration and Notices. Each individual executing this Agreement on behalf of the City and Contractor represents and warrants that such individuals are duly authorized to execute and deliver this Agreement on behalf of the City or Contractor. Notice: Except for Service of Process in a legal proceeding, any notices required to be given by the Parties shall be delivered at the addresses set forth below. Any notices may be delivered personally to the addressee of the notice or may be deposited in the United States mail, postage prepaid, to the address set forth below. Any notice so posted in the United States mail shall be deemed received three (3) calendar days after the date of mailing. Email notice will be deemed received the date of the email so long as sent before 12:00 noon on a business day, if after 12:00 Noon it will be deemed received the next business day – a copy of email notice must be mailed as set forth above. This Agreement shall be administered by and any notices should be sent to the undersigned individuals or their designees. 26 of 179 PAGE 9 OF 12 CITY OF RENTON Emma Conley, PE 1055 South Grady Way Renton, WA 98057 Phone: (425) 757-6807 econley@rentonwa.gov CONTRACTOR Doug Nelson Parks Consultant – Southwest Washington P.O Box 2410 Issaquah, WA 98027 Phone: (425) 313-9161 doug@nwplayground.com And to: City Clerk cityclerk@rentonwa.gov B. Amendment and Modification. This Agreement may be amended only by an instrument in writing, duly executed by both Parties. C. Assignment and Subcontract. Contractor shall not assign or subcontract any portion of this Agreement without the City of Renton’s prior express written consent. D. Compliance with Laws. Contractor and all of the Contractor’s employees shall perform the Work in accordance with all applicable federal, state, county and city laws, codes and ordinances. A copy of this language must be made a part of any contractor or subcontractor agreement. E. Conflicts. In the event of any inconsistencies between contractor proposals and this contract, the terms of this contract shall prevail. F Governing Law. This Agreement shall be made in and shall be governed by and interpreted in accordance with the laws of the State of Washington. G. Joint Drafting Effort. This Agreement shall be considered for all purposes as prepared by the joint efforts of the Parties and shall not be construed against one party or the other as a result of the preparation, substitution, submission or other event of negotiation, drafting or execution. H. Jurisdiction and Venue. Any lawsuit or legal action brought by any party to enforce or interpret this Agreement or any of its terms or covenants shall be brought in the King County Superior Court for the State of Washington at the Maleng Regional Justice Center in Kent, King County, Washington, or its replacement or successor. 27 of 179 PAGE 10 OF 12 Contractor hereby expressly consents to the personal and exclusive jurisdiction and venue of such court even if Contractor is a foreign corporation not registered with the State of Washington. I. Severability. A court of competent jurisdiction’s determination that any provision or part of this Agreement is illegal or unenforceable shall not cancel or invalidate the remainder of this Agreement, which shall remain in full force and effect. J Sole and Entire Agreement. This Agreement contains the entire agreement of the Parties and any representations or understandings, whether oral or written, not incorporated are excluded. K. Third-Party Beneficiaries. Nothing in this Agreement is intended to, nor shall be construed to give any rights or benefits in the Agreement to anyone other than the Parties, and all duties and responsibilities undertaken pursuant to this Agreement will be for the sole and exclusive benefit of the Parties and no one else. L. Waivers. All waivers shall be in writing and signed by the waiving party. Either party’s failure to enforce any provision of this Agreement shall not be a waiver and shall not prevent either The City or Contractor from enforcing that provision or any other provision of this Agreement in the future. Waiver of breach of any provision of this Agreement shall not be deemed to be a waiver of any prior or subsequent breach unless it is expressly waived in writing. IN WITNESS WHEREOF, the Parties have voluntarily entered into this Agreement as of Effective Date above. CITY OF RENTON By:_____________________________ Armondo Pavone Mayor, City of Renton _____________________________ Date CONTRACTOR By: ________________________ Chris McGarvey, President P.O Box 2410 Issaquah, WA 98027 Date January 26th, 2026 28 of 179 PAGE 11 OF 12 Attest _____________________________ Jason A. Seth City Clerk Approved as to Legal Form __Cheryl L. Beyer 1-26-26 Cheryl L. Beyer Senior Assistant City Attorney NS clb 1-26-26 3628) 29 of 179 PAGE 12 OF 12 Exhibit A 30 of 179 Northwest Playground Equipment, Inc. PO Box 2410, Issaquah, WA 98027-0109 Phone (425) 313-9161 FAX (425) 642-8117 Email: sales@nwplayground.com Thank you for considering Northwest Playground Equipment, Inc for your Park, Playground, Shelter and Sports Equipment requirements Page 1 of 5 QUOTE Quote # AM-172026-00013369 Quote Name: Legacy Square - IHD_444_25BR1 R1 Date: 01-07-2026 Bill To: Renton, City of Attn: Accounts Payable 1055 S. Grady Way Renton, WA 98057 Ship To: Renton, City of Attn: Accounts Payable 1055 S. Grady Way Renton, WA 98057 Site Address: 528 S 3rd St Renton, WA 98057 Name: Email: Emma Conley econley@rentonwa.gov Phone: Cell: 425-430-6850 425-757-6807 Item # Qty Description Price Total Price EQUIPMENT Earthscape Play F00602 1 Slide Platform 900 (Plastic Slide) $30,600.00 $30,600.00 IHD - Earthscape - Custom 1 Swell - Small $29,000.00 $29,000.00 F00208 1 Log Pile 6.1 $18,075.00 $18,075.00 Earthscape - Custom 1 Staining for all Earthscape Structures COLOR TO BE FINALIZED $11,840.00 $11,840.00 Earthscape - Custom 1 Custom Surfboard $16,330.00 $16,330.00 F00396/F0039 7/F00398 2 Bog Stilt $3,475.00 $6,950.00 F00401 3 Log Stepper 450 $475.00 $1,425.00 F00400 2 Log Stepper 300 $425.00 $850.00 No Fault NoFault Pour In Place 1 Poured-In-Place Rubber Surfacing. Provide & install 2,248 Square Feet of Pour In Place safety surfacing. Wear Layer to be a Terracotta Red, Orange, Yellow, Mix with Aromatic Resin 2.5" Uniform thickness (6' CFH max.) Wear course is to be 3/8 to 5/8" thick, created by a mixture of Standard colored particles and/or black rubber particles and polyurethane binder. Price includes Offloading and Disposal of packaging. $70,430.00 $70,430.00 Equipment Subtotal (less tax): $185,500.00 CONTRACT DISCOUNT Earthscape Play NASPO - NASPO Value Point Cooperative Purchasing Discount:#10700-00015852 10% ($11,507.00) No Fault NASPO - NASPO Value Point Cooperative Purchasing Discount:#10700-00015852 6% ($4,225.80) EXHIBIT A 31 of 179 Northwest Playground Equipment, Inc. PO Box 2410, Issaquah, WA 98027-0109 Phone (425) 313-9161 FAX (425) 642-8117 Email: sales@nwplayground.com Thank you for considering Northwest Playground Equipment, Inc for your Park, Playground, Shelter and Sports Equipment requirements Page 2 of 5 FREIGHT Earthscape Play FREIGHT $11,650.00 No Fault FREIGHT $4,000.00 Equipment Total (less tax): $185,417.20 CERTIFIED INSTALLATION Deluxe Install 1 Deluxe Install of Playworld structure (IHD_444_25BR1, Freestanding Earthscape Equipment). Price Includes Receiving Equipment and Offloading Onsite, Installation Through (Dirt), Disposal of Dirt from Holes and Debris Offsite. Playground Surfacing To Be Poured In Place, (2.5" Thick, Good for a 6' CFH over Crushed Rock), Customer is Responsible for all Permits or Fees. Quote doesn't include Site Prep or Inspections. Temporary Fencing not Included in this Quote, Available Upon Request $57,000.00 $57,000.00 Prevailing Wage Installation Total: $57,000.00 Performance Bond (If Required): 3.0% $7,272.52 Credit Card Fee (If Required): 3.5% Location Code: 1725 Resale Certificate Required for Tax Exemption: Tax: 10.30% $25,718.04 ORDER TOTAL: $275,407.76 Acceptance of Proposal: (Please be sure you have read, signed, initialed and understand the Terms and Conditions on the next page of this Quote) The items, prices and conditions listed herein are satisfactory and are hereby accepted. Doug Nelson Sales Rep Customer Signature Date EXHIBIT A 32 of 179 Northwest Playground Equipment, Inc. PO Box 2410, Issaquah, WA 98027-0109 Phone (425) 313-9161 FAX (425) 642-8117 Email: sales@nwplayground.com Thank you for considering Northwest Playground Equipment, Inc for your Park, Playground, Shelter and Sports Equipment requirements Page 3 of 5 Project Name: Legacy Square Playground Quote # AM-172026-00013369 TERMS AND CONDITIONS SCOPE: These General Terms and Conditions of Sale apply to all sales of goods and services by Northwest Playground Equipment, Inc. (“Seller”, “we”, “us”, “our”) notwithstanding any conflicting, contrary or additional terms and conditions from the buyer named in this order (“Buyer”). No such conflicting, contrary or additional terms and conditions shall be deemed accepted by us until we expressly confirm our acceptance in writing. QUOTE CONDITIONS AND ACCEPTANCE: This quote is only valid for 30 days. ***________(Initial) It is the Buyer's responsibility to verify quantities and description of items quoted. Once an order has been placed, any changes including additions, deletions, or color changes, could result in price increases, additional fees, and impact order lead time. EXCLUSIONS: Unless specified, this quote EXCLUDES all the following but is not limited to: - Permits/inspections - Removal of existing equipment. - Unloading; receiving of inventory or equipment; storage of equipment. - Site work, saw cutting/core drilling, and landscaping. - Equipment assembly and/or installation. - Safety surfacing; borders or drainage requirements. - Site restoration/landscaping repairs DUE to poor access or inclement weather. - Background checks - Wage Requirements: Davis Bacon, prevailing wage or certified payroll. - Insurance limits beyond our standard coverages and endorsements. - Performance/payment bonds. FREIGHT AND DELIVERY (if applicable): Delivery is subject to equipment availability and varies by manufacturer and product, with custom equipment requiring an extended lead time. Please confirm an approximate delivery for your order with your local sales team. Estimated ship dates are subject to change. Handling Disputes Over Lead Time Changes: In the event of significant lead time changes, we will notify the Buyer promptly and work to mitigate delays. Northwest Playground Equipment will not be held liable for consequential damages arising from such delays. Adjustments to project timelines due to lead time changes will be mutually agreed upon in writing. Shipping is FOB Origin (Buyer accepts the title of the goods at the shipment point and assumes all risk once the Seller ships the product). All equipment will arrive unassembled. If Buyer is responsible for receiving delivery, please review and initial below: ***________(Initial) Buyer is responsible to meet and provide adequate personnel/equipment to unload truck. A Check List, detailing all items shipped, will be included with the shipment unless taking delivery is specifically included in quote. Buyer is responsible for ensuring the Sales Order Breakdown and Item Numbers on all boxes and pieces match the Check List. ***________(Initial) Shortages or damages must be noted on the driver's delivery receipt. Shortages or damages not noted become the Buyer’s financial responsibility. Please notify us immediately of any damage. Shortages and concealed damage must be reported to us within 48 hours of delivery. A reconsignment fee will be charged for any changes made to delivery address after order has been placed. Items canceled, returned or refused will be subject to a minimum 25% restocking fee. All return freight charges are the responsibility of the Buyer. If the Buyer cannot accept the delivery on the agreed-upon date, Seller may accept the delivery and provide short term storage at an additional scope and cost which must be paid in full prior to release of equipment. PRICES, TAXES, AND TERMS OF PAYMENT: The prices for goods and services shall be those set forth in the order. All prices are exclusive of taxes, including, but not limited to, sales, use, excise, value added, and similar taxes or charges imposed by any government authority, all of which must be paid by Buyer. The tax EXHIBIT A 33 of 179 Northwest Playground Equipment, Inc. PO Box 2410, Issaquah, WA 98027-0109 Phone (425) 313-9161 FAX (425) 642-8117 Email: sales@nwplayground.com Thank you for considering Northwest Playground Equipment, Inc for your Park, Playground, Shelter and Sports Equipment requirements Page 4 of 5 amounts listed on this quote are estimates only and are subject to change based on applicable tax rates at the time of invoice. If Buyer claims any exemption, a valid, signed reseller certificate or letter of exemption for each respective jurisdiction must be provided. An approved Credit Application is required for new customers or customers that haven’t been active in the last 24 months. Unless expressly stated otherwise, our standard payment terms are as follows: - 50% deposit due on full contract amount. Orders will be placed once the deposit is received. - Progress invoices for equipment, freight, and installation will be invoiced upon project milestones completed with Net 30 terms. - 100 % prepayment is required on replacement parts. - A 3.5% charge will be added to all credit card orders. - For all non-taxpayer-funded entities, a 1.5% monthly service charge will be assessed on all balances over 30 days. INSTALLATION: (if applicable) If installation services are included as part of this quote, the following stipulations apply: Buyer is responsible for obtaining all necessary permits, approvals, and inspections required for installation and use of the equipment. Northwest Playground Equipment assumes no responsibility for delays or additional costs arising from the Buyer’s failure to secure required permits. Permits/inspections and associated costs are the owner’s responsibility. Additional charges may apply if inspections are required. A public locate for underground utilities is included in this scope. Buyer will identify any known utilities in work area prior to executing agreement. If utilities exist directly under work area a third-party private utility service is recommended and can be provided at an additional cost if necessary. Northwest Playground Equipment is not responsible for incorrectly marked utilities. Irrigation is not typically identified during locate service and any damage or repair to irrigation lines in work area is the Buyer’s responsibility. Site Readiness: - Site must be level and free of loose debris with a minimum 10-foot opening for access. - Additional charges may apply if underground obstructions impact installation (such as large rocks, concrete, stumps, etc.). - Additional charges may apply due to poor soil. - Spoils are to remain onsite unless removal of debris is specifically outlined in scope. - Arrangements must be made in advance for removal/disposal of equipment packaging. - Access to power and water must be available to work area. - Buyer is responsible for ensuring that the site is accessible and safe for the Company's personnel and equipment. - Delays caused by restricted site access, unsafe conditions, or lack of readiness may result in additional charges. - Buyer assumes all liability for injuries or damages caused by unsafe site conditions not disclosed prior to the start of work. - Northwest Playground Equipment is not liable for delays caused by unforeseen site conditions, weather, or third-party contractors. - Any changes to the agreed-upon scope of work (e.g., modifications to design, installation location, or product specifications) must be documented in writing and may result in additional fees. OCIP/CCIP Clause: If the Buyer requires that we and/or our subcontractors/suppliers participate in an Owner Controlled Insurance Program (OCIP) or Contractor Controlled Insurance Program (CCIP) on this project, we reserve the right to refuse participation or to adjust our pricing to account for any additional costs or administrative burdens associated with participating in the OCIP/CCIP. This includes, but is not limited to, the following: - Insurance Coverage: The costs of any additional insurance coverage required by the OCIP/CCIP that exceeds our standard coverage will be passed on to the Buyer. - Administrative Fees: Any administrative fees or costs associated with enrollment and participation in the OCIP/CCIP will be passed on to the Buyer. - Reporting Requirements: The costs of complying with any additional reporting requirements imposed by the OCIP/CCIP will be passed on to the Buyer. - Compliance Costs: Any other costs associated with ensuring compliance with the OCIP/CCIP will be passed on to the Buyer. MAINTENANCE/WARRANTY: Manufacturer's standard product warranties apply and cover equipment replacement and freight costs only. For projects including installation, a 1-year installation warranty is extended. Seller offers no additional warranties. EXHIBIT A 34 of 179 Northwest Playground Equipment, Inc. PO Box 2410, Issaquah, WA 98027-0109 Phone (425) 313-9161 FAX (425) 642-8117 Email: sales@nwplayground.com Thank you for considering Northwest Playground Equipment, Inc for your Park, Playground, Shelter and Sports Equipment requirements Page 5 of 5 Maintenance of all equipment and safety surfacing is the responsibility of the Buyer. Failure to follow manufacturer directed maintenance schedules may void warranties and could result in safety and/or compliance issues. Any unauthorized alterations or modifications to the equipment (including layout) will void your warranty. TERMINATION: Either party may terminate this agreement upon written notice if the other party breaches a material term and fails to remedy such breach within 30 days of receiving notice. Upon termination by the Buyer, the Northwest Playground Equipment is entitled to recover all costs incurred up to the date of termination, including but not limited to deposits, equipment costs, and labor fees. FORCE MAJEURE: Northwest Playground Equipment shall not be liable for any failure or delay in performance due to causes beyond its reasonable control, including but not limited to acts of God, natural disasters, pandemics, government actions, labor strikes, supply chain disruptions, or transportation delays. Delivery timelines may be extended for the duration of the delay caused by such events. LIMITATION OF LIABILITY: The Company’s total liability for any claim arising out of or relating to the goods or services provided under this agreement shall not exceed the total amount paid by the Buyer for the specific goods or services at issue. Under no circumstances shall Northwest Playground Equipment be liable for any indirect, incidental, consequential, special, or punitive damages, including but not limited to loss of profits, even if advised of the possibility of such damage. INDEMNIFICATION: TO THE FULLEST EXTENT PERMITTED BY LAW BUYER HEREBY AGREES TO HOLD HARMLESS, INDEMNIFY, PROTECT AND DEFEND NW PLAYGROUND AND ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND INSURERS, FROM AND AGAINST ANY/ALL RISKS, DEMANDS, CLAIMS, CAUSES OF ACTION, LAWSUITS, SETTLEMENTS, JUDGMENTS, DAMAGES, FINES, PENALTIES, LOSSES OR EXPENSES, ATTORNEY’S FEES AND COSTS, INCLUDING, BUT NOT LIMITED TO, FOR DAMAGES RELATING TO BODILY OR PERSONAL INJURY, DEATH, DESTRUCTION OR LOSS OF PROPERTY, AND ANY OTHER KIND OF DAMAGE OR HARM (COLLECTIVELY “CLAIMS’), MADE BY BUYER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, CUSTOMERS, INVITEES, THIRD PARTIES, THEIR INSURERS AND/OR ANYONE CLAIMING BY OR THROUGH THEM (COLLECTIVELY “BUYER PARTIES”), ARISING OUT OF, RESULTING FROM AND/OR RELATED TO BUYER PARTIES’ USE, MAINTENANCE, MODIFICATION OF MATERIALS, WORK AND/OR SERVICES PROVIDED BY NW PLAYGROUND AND ANY/ALL OTHER ACTS/OMISSIONS OF BUYER PARTIES. ACCEPTANCE OF TERMS AND CONDITIONS Acceptance of this proposal, made by an authorized agent of your company, indicates agreement to the above terms and conditions. ______________________________________________ Customer Signature ______________________________________________ Printed Name and Title ______________________________________________ Date EXHIBIT A 35 of 179 LEGACY SQUARE PLAYGROUND PIP SURFACING Color Option : AIHD_444_25BR1 2-COLOR SHEET PLASTICDECK SPACER_FOR_CATEGORIES OPT B - REV 1 - ColorRev2 SHEET PLASTICPOST & COMPONENTS ROTO DESIGN SHOWN IS CONCEPTUAL ONLY. FINAL PRODUCTS MAY DIFFER .COBALT ROTOWOOD STAIN PRIMARY YELLOW INDIGO BLUE OCEAN BAY BLUECO L O R K E Y EXHIBIT A 36 of 179 LEGACY SQUARE PLAYGROUND PIP SURFACING Color Option : AIHD_444_25BR1 2-COLOR SHEET PLASTICDECK SPACER_FOR_CATEGORIES OPT B - REV 1 - ColorRev2 SHEET PLASTICPOST & COMPONENTS ROTO DESIGN SHOWN IS CONCEPTUAL ONLY. FINAL PRODUCTS MAY DIFFER .COBALT ROTOWOOD STAIN PRIMARY YELLOW INDIGO BLUE OCEAN BAY BLUECO L O R K E Y EXHIBIT A 37 of 179 LEGACY SQUARE PLAYGROUND PIP SURFACING Color Option : AIHD_444_25BR1 2-COLOR SHEET PLASTICDECK SPACER_FOR_CATEGORIES OPT B - REV 1 - ColorRev2 SHEET PLASTICPOST & COMPONENTS ROTO DESIGN SHOWN IS CONCEPTUAL ONLY. FINAL PRODUCTS MAY DIFFER .COBALT ROTOWOOD STAIN PRIMARY YELLOW INDIGO BLUE OCEAN BAY BLUECO L O R K E Y EXHIBIT A 38 of 179 LEGACY SQUARE PLAYGROUND PIP SURFACING Color Option : AIHD_444_25BR1 2-COLOR SHEET PLASTICDECK SPACER_FOR_CATEGORIES OPT B - REV 1 - ColorRev2 SHEET PLASTICPOST & COMPONENTS ROTO DESIGN SHOWN IS CONCEPTUAL ONLY. FINAL PRODUCTS MAY DIFFER .COBALT ROTOWOOD STAIN PRIMARY YELLOW INDIGO BLUE OCEAN BAY BLUECO L O R K E Y EXHIBIT A 39 of 179 LEGACY SQUARE PLAYGROUND PIP SURFACING Color Option : AIHD_444_25BR1 2-COLOR SHEET PLASTICDECK SPACER_FOR_CATEGORIES OPT B - REV 1 - ColorRev2 SHEET PLASTICPOST & COMPONENTS ROTO DESIGN SHOWN IS CONCEPTUAL ONLY. FINAL PRODUCTS MAY DIFFER .COBALT ROTOWOOD STAIN PRIMARY YELLOW INDIGO BLUE OCEAN BAY BLUECO L O R K E Y EXHIBIT A 40 of 179 0 .5 1.0 0 5' Meters2.0 3.0 10' N LS 300 LS 450 LS 450 BS 4 5 0 EARTHSCAPE SWELL SMALL EARTHSCAPE LOG STEPPERS LS 300 QTY: 1 LS 450 QTY: 2 EARTHSCAPE SLIDE PLATFORM 900 W/ PLASTIC SLIDE EARTHSCAPE BOG STILTS BS 450 QTY: 1 LS 450 BS 4 5 0 LS 300 EARTHSCAPE BOG STILTS BS 450 QTY: 1 EARTHSCAPE LOG STEPPERS LS 300 QTY: 1 LS 450 QTY: 1 EARTHSCAPE LOG PILE 6.1 BLUE PIP AREA: 968 SQ FT TAN PIP AREA: 620 SQ FT EARTHSCAPE CUSTOM SURFBOARD GREEN PIP AREA: 660 SQ FT Total Elevated Play Activities: Total Ground-Level Play Activities: Accessible Elevated Activities Accessible Ground-Level Activities Accessible Ground-Level Play Types Required Provided AD A S C H E D U L E 3 1 3 4 1 4 1 3 B Paper Size USER CAPACITY:AGE GROUP: AREA:PERIMETER: EQUIPMENT SIZE: USE ZONE: DATE: SCALE:PROJECT NO: FALL HEIGHT: *PLAYGROUND SUPERVISION REQUIRED DRAWN BY: ASTM F1487- CPSC #325 IHD_444_25BR1 LE G A C Y S Q U A R E P L A Y G R O U N D SI T E P L A N - O P T B - R E V 1 1/8" = 1'-0" BPL 2248 SQ FT 168'-7" 6 Ft. 50 21 20-Jan-26 DESIGN FILE PATH: I:\LEGACY SQUARE PLAYGROUND\IHD_444_25BR1\DESIGN 2-5 EXHIBIT A 41 of 179 0 .5 1.0 0 5' Meters2.0 3.0 10' N BLUE PIP AREA: 968 SQ FT TAN PIP AREA: 620 SQ FT GREEN PIP AREA: 660 SQ FT B Paper Size FOOTING LEGEND DATE: SCALE:PROJECT NO: *PLAYGROUND SUPERVISION REQUIRED DRAWN BY: 112" 1850 ZZCH 144" GZ SPIRAL SLIDE CENTER POST FOOTING (DETAIL1) SUPPORT POST FOOTING (DETAIL 1 or 4) INDICATES POST LENGTH) CANTILEVER, "T" POST, AND COMPONENT POST FOOTING (DETAIL 2) (ZZCH1850 INDICATES PART NUMBER) GROUND ZERO POST FOOTING (DETAIL 2) INDICATES POST LENGTH) COMPONENT FOOTING (DETAIL 3) (112" (144" LE G A C Y S Q U A R E P L A Y G R O U N D FO O T I N G P L A N - O P T B - R E V 1 IHD_444_25BR1 1/8" = 1'-0" BPL 20-Jan-26 DESIGN FILE PATH: I:\LEGACY SQUARE PLAYGROUND\IHD_444_25BR1\DESIGN EXHIBIT A 42 of 179 NORTHWEST PLAYGROUND EQUIPMENT BOM ID MANUFACTURE PARTNO DESCRIPTION QTY 1 EARTHSCAPE #SWELL - SMALL 1 2 EARTHSCAPE F00401 LOG STEPPER 450 3 3 EARTHSCAPE F00396 BOG STILT 450 2 4 EARTHSCAPE F00400 LOG STEPPER 300 2 5 EARTHSCAPE F00208 LOG PILE 6.1 1 6 EARTHSCAPE F00602 SLIDE PLATFORM 900 - PLASTIC SLIDE 1 7 EARTHSCAPE #CUSTOM SURFBOARD 1 B Paper Size USER CAPACITY:AGE GROUP: AREA:PERIMETER: EQUIPMENT SIZE: USE ZONE: DATE: SCALE:PROJECT NO: FALL HEIGHT: *PLAYGROUND SUPERVISION REQUIRED DRAWN BY: ASTM F1487- CPSC #325 IHD_444_25BR1 LE G A C Y S Q U A R E P L A Y G R O U N D EQ U I P M E N T S C H E D U L E - O P T B - R E V 1 3/16" = 1'-0" BPL SEE PLAN SEE SITE PLAN SEE SITE PLAN 21 20-Jan-26 DESIGN FILE PATH: I:\LEGACY SQUARE PLAYGROUND\IHD_444_25BR1\DESIGN EXHIBIT A 43 of 179 1 CITY OF RENTON, WASHINGTON ORDINANCE NO. ________ AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON, GRANTING NFC Northwest, LLC 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. WHEREAS, RCW 35A.11.020 grants the City broad authority to regulate the use of the public Right of Way; and WHEREAS, RCW 35A.47.040 grants the City broad authority to permit and regulate non-exclusive franchises; and WHEREAS, RMC 5-19 describes the City’s regulatory regime for franchises; and WHEREAS, the City Council finds that it is in the best interests of the health, safety and welfare of residents of the Renton community to grant a non-exclusive franchise to NFC Northwest, LLC for the operation of an underground fiber optic telecommunications system with the City Rights-of Way; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO ORDAIN AS FOLLOWS: 44 of 179 ORDINANCE NO. ________ 2 Table of Contents SECTION I. Definitions ................................................................................................. 3 SECTION II. Purpose .................................................................................................... 7 SECTION III. Privileges Conveyed ................................................................................ 8 SECTION IV.Term ....................................................................................................... 11 SECTION V. Recovery of Costs ................................................................................... 11 SECTION VI. Assignment and Transfer of Franchise ................................................... 14 SECTION VII. Compliance with Laws - Reservation of Powers and Authority .............. 15 SECTION VIII. Non-exclusive Franchise ..................................................................... 16 SECTION IX. Permits, Construction and Restoration .................................................. 17 SECTION X. Coordination and Shared Excavations .................................................... 25 SECTION XI. Hazardous Materials .............................................................................. 26 SECTION XII. Emergency Work – Extension of Time to Obtain Permit(s) ...................... 28 SECTION XIII. Records of Installation ........................................................................ 31 SECTION XIV. Undergrounding of Facilities ................................................................ 34 SECTION XV. Relocation of Franchisee Facilities ....................................................... 34 SECTION XVI. Abandonment and Discontinuance of Franchisee’s Facilities .............. 40 SECTION XVII. Termination, Violations, and Remedies .............................................. 42 SECTION XVIII. Dispute Resolution ............................................................................ 45 SECTION XIX. Arbitration ........................................................................................... 48 SECTION XX. Alternative Remedies ........................................................................... 50 SECTION XXI. Amendments to Franchise ................................................................... 50 SECTION XXII. Indemnification .................................................................................. 51 SECTION XXIII. Insurance .......................................................................................... 55 SECTION XXIV. Discrimination Prohibited .................................................................. 58 SECTION XXV. Notice ................................................................................................ 58 SECTION XXVI. Miscellaneous ................................................................................... 60 SECTION XXVII. Effective Date ................................................................................... 65 45 of 179 ORDINANCE NO. ________ 3 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 The City of Renton’s Community and Economic Development 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, boring, and/or excavating to construct, remove, replace, repair, and restore pipeline(s) and/or Facilities. 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 46 of 179 ORDINANCE NO. ________ 4 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 City of 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 NFC Northwest, LLC authorized to do business within the State of Washington, and its respective successors and assigns, and 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 but not limited to all substances designated under: the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; 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 Clean Water Act, 33 U.S.C. § 1251 et seq.; the Clean Air Act, 42 U.S.C. § 7401 et 47 of 179 ORDINANCE NO. ________ 5 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 70A.300, and the Washington Hazardous Waste Cleanup - Model Toxics Control Act, RCW Chapter 70A.305, 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 as they exist, may be amended, or created, that relate to telecommunications services or terms of this Agreement, 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 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. 1.11 Parties: Means the City of Renton and NFC Northwest, LLC. 1.12 Public Property(ies): Means present and/or future property owned or leased by Renton within Renton’s present and/or future control and/or jurisdictional boundaries. 48 of 179 ORDINANCE NO. ________ 6 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 (City Streets as Part of State Highways: Jurisdiction, control - Exception) and 47.52.090 (Limited Access Facilities: 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 (Utilities General – Tariffs and Contracts: 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 480-120-026 (Telephone Companies: Tariffs), WAC Chapter 480-80 (Utilities General – Tariffs and Contracts). 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. 49 of 179 ORDINANCE NO. ________ 7 1.17 Work: Means to construct, excavate, install, maintain, remove and/or repair by, for, or at Franchisee’s request. 1.18 City of Renton: The City of Renton is a noncharter code city under the laws and statutes of the State of Washington. Throughout the Franchise the term City, Renton and City of Renton are used interchangeably all meaning the same. SECTION II. Purpose 2.1 Authority: Under RCW 35A.47.040, Renton’s City Council has authority to permit and regulate nonexclusive franchises such as that contemplated under this Ordinance. This Franchise is granted subject to Renton’s land use authority, public highway authority, police powers, franchise authority, and any case law, statutory or inherent authority. 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 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 50 of 179 ORDINANCE NO. ________ 8 authority to make all changes, relocations, repairs, maintenance, establishments, improvements, dedications or 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 authority under the Telecommunication Act of 1996, § 253(c), RMC Chapter 5-19 (Telecommunication Licenses and Franchises) and the laws of the State of Washington including, but not limited to, RCW 47.24.020 (City Streets as Part of State Highways: Jurisdiction, control - Exception), RCW 47.52.090 (Limited Access Facilities: 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 (Highways and Streets: Franchises and permits — Streets and public ways), RCW 35.22.280 (First Class Cities: Specific powers enumerated), RCW 35.99.020 (Telecommunication, Cable Television Service – Use of Right of Way: Permits for use of right-of way), and RCW 80.36.040 (Telecommunications: 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 51 of 179 ORDINANCE NO. ________ 9 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, 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 as those services are defined in Washington state law. The Franchisee may use its Facilities’ excess capacity, however, Franchisee may not use, convey, lease or share excess space within the Franchise Area without prior written authorization from the City of Renton. In order for the City to determine whether, and under what conditions, excess capacity may be authorized, Franchisee shall timely notify the City’s representative identified at subsection 25.1 of this Agreement in writing. 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 52 of 179 ORDINANCE NO. ________ 10 Facilities as a telephone business and/or 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 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 invalidity or illegality, and the Parties will meet within thirty (30) days and endeavor jointly to amend this Franchise to cure the alleged 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: Franchisee Facilities as they may exist at the Effective Date of this Franchise and were installed and/or maintained on public grounds or places in Renton under other Agreement(s) with the City may continue to be maintained, repaired, and operated through the term of this Franchise subject to the terms of this agreement; provided, however, that no such Facilities may be enlarged, improved or 53 of 179 ORDINANCE NO. ________ 11 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: a. Effective Date: Each of the provisions of this Franchise shall become effective upon the later of Franchisee’s acceptance of the terms and conditions of this Franchise and the City Council’s passage of this ordinance, and b. Length of Term: Shall remain in effect for ten (10) years, unless it is terminated pursuant to Section XVII, Termination, Violations, and Remedies. c. Option for Renewal: 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. 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 the Washington State Environmental Policy Act (“SEPA”) (RCW Chapter 54 of 179 ORDINANCE NO. ________ 12 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. Payment shall be due within forty-five (45) days of receipt of the invoice. 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. 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, as defined in the City Fee Schedule or in this Franchise, associated with activities undertaken through the authority granted in this Franchise or under Laws. 55 of 179 ORDINANCE NO. ________ 13 5.6 Emergency Fee: Franchisee shall promptly reimburse Renton for any and all costs the City reasonably incurs in response to any emergency situation involving Franchisee’s Facilities, to the extent said emergency is not the fault of the City. The City agrees to simultaneously seek reimbursement from any Franchisee or permit holder who caused or contributed to the emergency situation. Renton’s “response to emergency” for the purposes of this Franchise is defined in subsections 9.5 and 12.1 through 12.3. 5.7 City Costs to be Reimbursed: City will provide documentation of 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 as the result of the presence of Franchisee’s Facilities in the Right-of-Way. Such costs and expenses shall include but not be limited to: a. Franchisee’s proportionate cost of City personnel assigned to oversee or engage in any work in the Rights-of-Way as the result of the presence of Franchisee’s Facilities in the Rights-of-Way. b. Franchisee’s proportionate share of any City of Renton time spent reviewing construction plans in order to either accomplish the relocation of Franchisee’s Facilities or the routing or rerouting of any utilities so as not to interfere with Franchisee’s Facilities. c. 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. 56 of 179 ORDINANCE NO. ________ 14 5.8 Reimbursement period: Franchisee shall reimburse Renton within forty-five (45) days of Renton’s submittal of an itemized billing. 5.9 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 said billing. At the City’s option, the billing may be on an annual basis, but the City shall provide the Franchisee with the City’s itemization of costs, in writing, at the conclusion of each project for informational purposes. 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 advance written consent of the City Council of Renton by passage of an ordinance or resolution; such consent shall not be unreasonably withheld. 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. a. 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 assignment or transfer with Renton, together with its written acceptance of all of the Franchise terms and conditions. b. The Franchise terms and conditions shall be binding upon the Parties’ respective assigns and successors. 57 of 179 ORDINANCE NO. ________ 15 c. 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. d. 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. If a discrepancy arises between this Franchise and RMC Chapter 5-19 or any other law, then the most restrictive measure shall apply. 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 58 of 179 ORDINANCE NO. ________ 16 obligations, Franchisee shall 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. 59 of 179 ORDINANCE NO. ________ 17 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. 9.2 Permit Application Required: Exception to timing in the event of an emergency defined in Section XII Permits shall vest in accordance with RMC 4-1-045. a. Franchisee shall first obtain (be issued) all required documentation and approvals, including permits from Renton to perform Work on Franchisee’s Facilities within the Franchise Area. i. The permit application shall contain detailed plans, maps and specifications showing the position, depth and location of the Franchisee’s proposed new and/or existing Facilities in relation to existing public and private utilities within a minimum horizontal distance of ten (10) feet from the proposed new Facilities, collectively referred to as the “Plans.” ii. The permit application shall include payment of the associated fees. iii. 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, horizontal and vertical separation from public utilities, applicable easements, site specific traffic control signed by a traffic control specialist, traffic turnouts and road obstructions, and all other necessary information. 60 of 179 ORDINANCE NO. ________ 18 iv. Permits shall not be unreasonably withheld or delayed after submission of a complete application. v. Franchisee may engage subcontractors or other entities submit a permit application on behalf of the Franchisee. For each subcontractor or other entity Franchisee elects to submit on their behalf, the Franchisee must submit to the City a Letter of Authorization in a format that is acceptable to the City. b. Work shall only commence upon the issuance of required permits. Franchisee shall schedule an inspection any time that Franchisee is performing Work within the Franchise Area to allow Renton to inspect such work. Inspections shall be scheduled as identified on the issued permit. c. Nothing in this Agreement is intended, nor should be construed, to guarantee any permit is issued. d. Franchisee shall submit to Renton as-built plans and, digital facility location data in a format compatible with Renton’s geographic information system. 9.3 Work Performed – Safety: During any period of relocation, construction or maintenance, all work performed by Franchisee or its contractors of any tier shall be accomplished in a safe and workmanlike manner, so to minimize interference with the free passage of traffic and the free use of adjoining property, whether public or private. Franchisee shall at all times post and maintain proper barricades, flags, flaggers, lights, flares and other traffic control measures as required for the safety of all members of the general public and comply with all applicable safety regulations during such period of construction as required by the ordinances of the City or the laws of the State of Washington, 61 of 179 ORDINANCE NO. ________ 19 including RCW 39.04.180 for the construction of trench safety systems. The provision of this section 9.3 shall survive the expiration or termination of this Franchise to the extent that Franchisee continues to have Facilities in the Rights-of-Way. 9.4 Work Performed – Licensing and Compliance with Franchise Agreement: Franchisee’s contractors of any tier shall be licensed and bonded in accordance with State law and the City’s ordinances, regulations, and requirements. Work by contractors of any tier are subject to the same restrictions, limitations, and conditions as if the work were performed by Franchisee. Franchisee shall be responsible for all work performed by its contractors of any tier and others performing work on its behalf as if the work were performed by Franchisee and shall ensure that all such work is performed in compliance with the Franchise and applicable law. 9.5 Underground Installation: Boring Preferred. Work involving underground installation of Franchisee’s facilities within City streets shall be accomplished through boring rather than open trenching whenever reasonably feasible. Prior to boring, Franchisee shall “pothole” all existing City utilities, private utilities and other pressurized systems to ensure vertical separation requirements are met. When directed by the City, Franchisee shall CCTV Renton-owned sewer and storm drain lines and privately owned sewer and storm drain lines connected to the City system within the Right-of-Way or utility easement, 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. 62 of 179 ORDINANCE NO. ________ 20 9.6 Work Performed – Repair of Damage. Any utility, public or private, that is damaged by the Franchisee shall be repaired by the Franchisee at no cost to Renton or the private utility owner. 9.7 Facility Placement: The City reserves the right to limit or exclude Franchisee’s access to a specific route, Right-of-Way or other location when, in the judgment of the Administrator or designee, there is inadequate space (including but not limited to compliance with ADA clearance requirements and maintaining a clear and safe passage through the Rights-of-Way), a pavement cutting moratorium, unnecessary damage to public property, public expense, inconvenience, interference with City utilities, inability to achieve utility separation (unless otherwise approved on a case-by-case basis), or as otherwise reasonably determined by the Administrator or designee. The decision of the Administrator for Facility Placement is final and not subject to administrative appeal. 9.8 Lateral Support – Duty to Not Impair: Whenever Work on Facilities have caused or contributed to a condition that in the City of Renton’s sole determination will or has substantially impair 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 in accordance 63 of 179 ORDINANCE NO. ________ 21 with sections 5.7, 5.8, and 5.9. This provision shall survive the expiration, revocation or termination of this Franchise for a period of five (5) years. 9.9 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. 9.10 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 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 one hundred thousand dollars ($100,000) 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, 64 of 179 ORDINANCE NO. ________ 22 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. 9.11 Workmanship: All Work done by Franchisee or at Franchisee’s direction or on its behalf, including all Work performed by contractors of any tier, 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 interfere with other franchises, licenses, public or private utilities, 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. 9.12 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. 65 of 179 ORDINANCE NO. ________ 23 9.13 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 City standards, at its own cost and expense. Franchisee shall, upon discovery of any such damage, immediately notify Renton per Section XXV. 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 at any point in time, 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, billed in accordance with sections 5.7, 5.8, and 5.9. 9.14 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. Prior to doing any work in the Rights-of-Way, the Franchisee shall follow established procedures, including contacting the Utility Notification Center in Washington and comply with all applicable State statutes regarding the One Call Locator Service pursuant to Chapter 19.122 RCW. Further, upon request, by the City or a third party, Franchisee shall locate its Facilities consistent with the requirements of Chapter 19.122 RCW. The City shall not be liable for any damages to Franchisee’s Facilities or for interruptions in service to Franchisee’s customers that are a direct result of Franchisee’s failure to locate its Facilities within the prescribed time limits and guidelines established by the One Call Locator Service regardless of whether the City issued a permit. 66 of 179 ORDINANCE NO. ________ 24 9.15 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 RMC 9-7 (Road, Bridge And Municipal Construction Standards), RMC 9-10-11 (Trench Restoration And Street Overlay Requirements) and City of Renton Standard Details 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. 9.16 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. 9.17 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, or such other period of time that is mutually agreed consistent with Section XVII, Renton, or its authorized agent, may restore the Franchise Area at 67 of 179 ORDINANCE NO. ________ 25 Franchisee’s sole and complete expense in accordance with sections 5.7, 5.8, and 5.9.The failure by Franchisee to complete such repairs shall be considered a breach of this Franchise and is subject to remedies by the City pursuant to Section XVII of this Agreement. The privilege granted under this section shall be in addition to others provided by this Franchise. 9.18 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 in the form of a permit(s) 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 through regularly scheduled meetings. 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 68 of 179 ORDINANCE NO. ________ 26 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 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 then in place. 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 69 of 179 ORDINANCE NO. ________ 27 occasion such product is applied in accordance with such procedure unless such specified product becomes subject to increased regulatory requirements or prohibitions. 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: a. 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, that does not constitute an “emergency” subject to Section XII of this Agreement, Franchisee shall notify Renton within twenty-four (24) hours of discovery. b. If the encountered or suspected Hazardous Substances are not the result of the acts or omissions of Franchisee, Renton shall, at its own expense, determine if the material is hazardous, in accordance with applicable Laws. i. 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. ii. 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. iii. 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. 70 of 179 ORDINANCE NO. ________ 28 c. 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 – Extension of Time to Obtain Permit(s) 12.1 In the event of any emergency in which any of Franchisee’s Facilities located in the Rights-of-Way breaks, fall, becomes damaged, or if Franchisee’s Facilities are otherwise in such a condition as to immediately endanger the property, life, health or safety of any person, entity or the City, Franchisee shall immediately take the proper emergency measures to repair its Facilities, to cure or remedy the dangerous conditions for the protection of property, life, health or safety of any person, entity or the City without first applying for and obtaining a permit as required by this Franchise. (see also section 15.3 of this Agreement related to Emergency Relocation of Facilities in the event of an emergency not related to Franchisee) a. This clause 12.1 is not intended, and should not be construed, to relieve Franchisee from the requirement of obtaining any permits necessary for this purpose, and Franchisee shall apply for all such permits not later than the next succeeding day during which the Renton City Hall is open for business. 71 of 179 ORDINANCE NO. ________ 29 b. The City retains the right and privilege to cut, move, or remove any Facilities located within the Rights-of-Way of the City, as the City may determine to be necessary, appropriate, or useful in response to any public health or safety emergency. c. Franchisee shall provide all necessary equipment and personnel to safely and expeditiously repair its facilities and provide all necessary traffic control pursuant to the most recent edition of the Manual on Uniform Traffic Control Devices (MUTCD) in effect at the time of the emergency giving rise to the need. 12.2 Franchisee shall immediately and at the first possible time notify the City according to Section XXV of this Agreement of any emergency or outage that affects, or is expected to affect, any City customer or City access in any amount. 12.3 The City shall not be liable for any damage to or loss of Facilities within the Rights-of-Way as a result of or in connection with any public works, public improvements, construction, grading, excavation, filling, or work of any kind in the Rights-of-Way by or on behalf of the City, except to the extent caused by the sole negligence or willful misconduct of the City, its employees, contractors, or agents. The City shall further not be liable to Franchisee for any direct, indirect, or any other such damages suffered by any person or entity of any type as a direct or indirect result of the City’s actions under this section 12 except to the extent caused by the sole negligence or willful misconduct of the City, its employees, contractors, or agents. 12.4 Whenever the construction, installation or excavation of Facilities authorized by this Franchise has caused or contributed to a condition that appears to substantially 72 of 179 ORDINANCE NO. ________ 30 impair the lateral support of the adjoining street or public place, or endangers the public, an adjoining public place, street, electrical or telecommunications utilities, City utilities, or City property, the Community and Economic Development Administrator or designee, may direct Franchisee, at Franchisee’s own expense, to take reasonable action to protect the public, adjacent public places, City property or street utilities, and such action may include compliance within a prescribed time. In the event that Franchisee fails or refuses to promptly take the actions directed by the City, or fails to fully comply with such directions, or if emergency conditions exist which require immediate action, before the City can timely contact Franchisee to request Franchisee effect the immediate repair, the City may access the Facilities and take such reasonable actions as are necessary to protect the public, the adjacent streets, City utilities, or street, electrical or telecommunications utilities, or to maintain the lateral support thereof, or reasonable actions regarded as necessary safety precautions, and Franchisee shall be liable to the City for the costs thereof. 12.5 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. 12.6 Extraordinary Costs: 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. 73 of 179 ORDINANCE NO. ________ 31 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: Following the initial construction and installation of Facilities, Franchisee shall provide the City with accurate copies of as-built plans and maps prepared by Franchisee’s design and installation contractors. These plans and maps shall be provided at no cost to the City, and shall include digital files in AutoCAD, or other industry standard readable formats that are acceptable to the City and delivered electronically. Further, Franchisee shall provide such maps within thirty (30) days following a request from the City. Franchisee shall warrant the accuracy of all plans, maps and as-builds provided to the City. 13.3 Within thirty (30) days of a written request from the Administrator or designee, Franchisee shall furnish the City with information sufficient to demonstrate: 1) that the Franchisee has complied with all applicable requirements of this Franchise; and 2) that any and all utility taxes due to the City in connection with the Franchisee have been paid. 13.4 All books, records, maps and other documents maintained by Franchisee with respect to its Facilities within the Rights-of-Way shall be made available for inspection 74 of 179 ORDINANCE NO. ________ 32 by the City at reasonable times and intervals; provided, however, that nothing in this section 13.4 shall be construed to require Franchisee to violate state or federal law regarding customer privacy, nor shall this section 13.4 be construed to require Franchisee to disclose proprietary or confidential information without adequate safeguards for its confidential or proprietary nature. 13.5 Franchisee shall not be required to disclose information that it reasonably deems to be proprietary or confidential in nature; provided, however, Franchisee shall disclose such information that is required under applicable law to comply with a utility tax audit. Franchisee shall be responsible for clearly and conspicuously identifying the work as confidential or proprietary and shall provide a brief written explanation as to why such information is confidential and how it may be treated as such under State or Federal law. In the event that the City receives a public records request under Chapter 42.56 RCW or similar law for the disclosure of information Franchisee has designated as confidential, trade secret, or proprietary, the City shall promptly provide written notice of such disclosure so that Franchisee can take appropriate steps to protect its interests. 13.6 Disclosure to Third-Parties: a. Nothing in section 13.4 or 13.5 prohibits the City from complying with Chapter 42.56 RCW or any other applicable law or court order requiring the release of public records, and the City shall not be liable to Franchisee for compliance with any law or court order requiring the release of public records. The City shall comply with any injunction or court order obtained by Franchisee that prohibits the disclosure of any such confidential records; however, in the event a higher court overturns such 75 of 179 ORDINANCE NO. ________ 33 inunction or court order and such higher court action is or has become final and non- appealable, Franchisee shall reimburse the City for any fines or penalties imposed for failure to disclose such records as required hereunder within sixty (60) days of a request from the City. b. 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. 13.7 Design Locates: Upon Renton’s written request, or in connection with the design of any public works project, including any public utility whether provided by Renton or another utility district, Franchisee shall field verify and mark the location of its underground Facilities within the Franchise Area 13.8 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. 76 of 179 ORDINANCE NO. ________ 34 SECTION XIV. Undergrounding of Facilities 14.1 Undergrounding Required for New Facilities: Pursuant to regulation under RMC 4-6-090.C (Applicability), as those regulations may be amended or revised, 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, 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 above ground within a one (1) mile horizontal distance from all elements of the proposed project, 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 above ground 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 replacement, expansion and repair of its roadways, 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 or a partner agency undertakes any public works improvement within the Franchise Area, and such public works 77 of 179 ORDINANCE NO. ________ 35 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; and c. Provide Franchisee with contact information for the designated City project manager responsible for the public works improvement project for which all communication pertaining to the project scope shall be coordinated with unless directed otherwise by designee or otherwise required by this Franchise. 15.2 Franchisee Relocation Plans: Unless a longer period is specified by the City project manager, within 60 days of receipt of such notice and such plans and specifications, as identified in section 15.1, Franchisee shall: a. Provide the City with a designated Franchisee project manager to be the sole contact point for all communication pertaining to the project scope unless directed otherwise by designee or required by this Franchise. b. Submit to the City’s project manager the Franchisee plan drawings for the relocation of the Franchisee Facilities in advance of the preparation of the City’s final plans and specifications for incorporation into the City’s construction plans. 78 of 179 ORDINANCE NO. ________ 36 c. Submit to the City’s project manager a proposed construction schedule for review and approval. The City’s project manager and Franchisee’s project manager shall coordinate the schedule in reasonable and good faith. 15.3 Franchisee Relocation Work: a. City project manager shall provide Franchisee project manager a written notice to proceed. The relocation completion date will be included in the City’s written request for said relocation to Franchisee. b. To prevent delay to the City’s project, upon receipt of notice per 15.3.a, Franchisee shall complete the relocation work as per the schedule in 15.2.c, unless otherwise agreed upon by the City’s project manager. c. Franchisee shall relocate such Facilities within the Franchise Area at no charge to the City, except that if the City 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. Franchisee shall be solely responsible for any associated cost caused by any construction delays to the City’s project due to Franchisee’s failure to comply with Franchisee’s plans and schedule in relocating or installing Franchisee’s Facilities in accordance with sections 15.8 through 15.11. 15.4 Emergency Relocation of Facilities: In the event an emergency posing a threat to public safety or welfare that is not related to a release of hazardous materials or substances requires the relocation of Franchisee’s Facilities within the Franchise Area, Renton shall give Franchisee notice of the emergency as soon as reasonably practicable. 79 of 179 ORDINANCE NO. ________ 37 Upon receipt of notice, Franchisee shall respond as soon as reasonably practicable to relocate the affected Facilities, at Franchisee’s sole expense. See also section 12.1 of this Agreement. 15.5 Third-Party Construction: Whenever any person or entity, other than Renton or its partner agency(ies) 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 time and upon terms acceptable to Franchisee for any and all costs and expenses incurred by Franchisee in the relocation of Franchisee’s Facilities. 15.6 Third-Party Construction of Public Utility Improvement Project: 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 Program or its Transportation 80 of 179 ORDINANCE NO. ________ 38 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. 15.7 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. a. 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 Facilities. b. 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. c. The City may seek reimbursement from Franchisee for all costs associated with evaluation and implementation of proposed alternatives. Costs shall be related to implementation, but is not limited to, redesign, construction cost increases and 81 of 179 ORDINANCE NO. ________ 39 any contractor(s) change orders or claims for delays or damages. All costs shall be reimbursed in accordance with sections 5.7 through 5.9. 15.8 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. 15.9 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. 15.10 Contractor Delay Claims: If Franchisee breaches its obligations under Chapter 19.122 RCW to properly locate its Facilities or breaches its obligations under this section with respect to relocating its Facilities, and to the extent such breach causes a delay in the work being undertaken by the City of Renton s third party contractor(s) that result in a claim by the third party contractor(s) for costs, expenses and/or damages that are directly caused by such delay and are legally required to be paid by the City (each, a “Contractor Delay Claim”), the City may at its sole option: a. Tender the Contractor Delay Claim to Franchisee for defense and indemnification in accordance with section 15.10; or b. Require that Franchisee reimburse the City for any such costs, expenses, and/or damages that are legally required to be paid by the City to its third party 82 of 179 ORDINANCE NO. ________ 40 contractor(s) as a direct result of the Contractor Delay Claim; provided that, if the City requires reimbursement by Franchisee under this section 15.8.b, the City shall first give Franchisee written notice of the Contractor Delay Claim. 15.11 Failure to Remove or Relocate Facilities: If Franchisee fails, neglects, or refuses to remove or relocate its Facilities as directed by the City following the procedures outline in this section XV, then after fifteen (15) days’ notice to Franchisee, the City may perform such work or cause it to be done, and the City’s costs shall be paid by Franchisee pursuant to sections 5.7, 5.8, and 5.9. 15.12 Survival: The provisions of this Section XV shall survive the expiration or termination of this Franchise during such time as Franchisee continues to have Facilities in the Rights-of-Way. 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. Franchisee shall notify the City in writing for such planned abandonment or cessation and include a site plan showing all Facilities, including respective size and material type, planned for abandonment or cessation. Any plan for abandonment or removal of Franchisee’s Facilities within the Franchise Area must be first approved in writing by the Administrator, or designee. Unless otherwise determined acceptable, for any Facility Franchisee is authorized to abandon, the Franchisee shall remove all wire and associated appurtenances. Franchisee covenants and agrees that for any request for abandonment or cessation, the City may elect to take ownership of the Facilities. In such case the City elects 83 of 179 ORDINANCE NO. ________ 41 to take ownership of the Facilities, the City shall prepare a Bill of Sale (BOS) for Franchisee to review and sign within thirty (30) days. 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, 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 above ground 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 in accordance with the Trench Restoration and Street Overlay requirements as it exists or may be amended. 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. 84 of 179 ORDINANCE NO. ________ 42 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. 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 either Party provides notice in accordance with Section XXV of this Agreement that it does not wish to renew, extend and/or continue the Franchise, this Franchise shall be terminated as of the expiration date described in Section IV. 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 prior to the expiration date of this Franchise except upon a majority vote of the City Council, after 85 of 179 ORDINANCE NO. ________ 43 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: a. If the Franchise is terminated, Franchisee shall immediately discontinue operation of Facilities through the Franchise Area. b. In such circumstances, either Party may invoke the dispute resolution provisions in Section XVIII. Alternatively, either Party may elect to seek relief directly 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, in which case the 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. 86 of 179 ORDINANCE NO. ________ 44 17.7 Injunctive 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, 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 Except as limited by Section XIX “Arbitration,” The City may elect, without any prejudice to any of its other legal rights and remedies, to obtain an order from the superior court having jurisdiction compelling Franchisee to comply with the provisions of the Franchise and to recover damages and costs incurred by the City by reason of Franchisee’s failure to comply. In addition to any other remedy provided herein, the City reserves the right to pursue any remedy to compel or force Franchisee and/or its successors and assigns to comply with the terms hereof, and the pursuit of any right or remedy by the City shall not prevent the City from thereafter declaring a forfeiture or revocation for breach of the conditions herein. Provided, further, that by entering into this Franchise, it is not the intention of the City or Franchisee to waive any other rights, remedies, or obligations as otherwise provided by law equity, or otherwise, and nothing contained here shall be deemed or construed to effect any such waiver. 17.9 If Franchisee shall violate, or fail to comply with any of the provisions of this Franchise, or should it fail to heed or comply with any notice given to Franchisee under the 87 of 179 ORDINANCE NO. ________ 45 provisions of this Franchise, the City shall provide Franchisee with written notice specifying with reasonable particularity the nature of any such breach and Franchisee shall undertake all commercially reasonable efforts to cure such breach within thirty (30) days of receipt of notification. If the parties reasonably determine the breach cannot be cured within (30) thirty days, the City may specify a longer cure period, and condition the extension of time on Franchisee’s submittal of a plan to cure the breach within the specified period, commencement of work within the original thirty (30) day cure period, and diligent prosecution of the work to completion. If the breach is not cured within the specified time, or Franchisee does not comply with the specified conditions, the City may, at its discretion, (1) revoke this Franchise with no further notification, or (2) claim compensatory damages of two hundred fifty dollars ($250) per day or (3) pursue other remedies as described in section 17.9 above. Liquidated damages described in this section 17.10 shall not be offset against any sums due to the City as a tax or reimbursement pursuant to code or this Franchise. 17.10 Non-Waiver: The Failure of the City to insist upon strict performance of any of the covenants and agreements of this Franchise or to exercise any option herein conferred in any one or more instances, shall not be construed to be a waiver or relinquishment of any such covenants, agreements or option or any other covenants, agreements or option. SECTION 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, stating with reasonable specificity the 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 88 of 179 ORDINANCE NO. ________ 46 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 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 89 of 179 ORDINANCE NO. ________ 47 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 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 90 of 179 ORDINANCE NO. ________ 48 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 directly related costs and expenses of any staff; all costs and direct expenses of any labor (including, but not limited to, labor of contractors of any tier); all pre-arbitration costs and expenses of consultants, attorneys, accountants, professional and other services, as outlined in section 19.5 below; and all taxes, insurance, interest 91 of 179 ORDINANCE NO. ________ 49 expenses, directly related 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, see 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, then such party shall be entitled to recover all reasonably incurred Costs, 92 of 179 ORDINANCE NO. ________ 50 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 20.1 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 21.1 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 all benefits, privileges, obligations or duties in and 93 of 179 ORDINANCE NO. ________ 51 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 by 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 94 of 179 ORDINANCE NO. ________ 52 any liability for costs of investigation, abatement, correction, cleanup, fines, penalties, or other damages arising under 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 95 of 179 ORDINANCE NO. ________ 53 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 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 Franchise. The obligations of Franchisee under this section have been mutually negotiated by the Parties, and Franchisee acknowledges that Renton would not enter into this Franchise 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 96 of 179 ORDINANCE NO. ________ 54 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 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 a contractor of any tier, 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 that 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 97 of 179 ORDINANCE NO. ________ 55 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 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 a blanket additional insured endorsement on the general and automotive liability policies, including Renton as an additional insured as their interest may appear under this Franchise 98 of 179 ORDINANCE NO. ________ 56 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 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 Franchise 99 of 179 ORDINANCE NO. ________ 57 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 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. 100 of 179 ORDINANCE NO. ________ 58 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. SECTION XXIV. Discrimination Prohibited 24.1 In connection with this Franchise, including and not limited to all Work, hiring and employment, neither Franchisee nor its employees, agents, contractor of any tier, 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 Franchise. Franchisee shall comply fully with all applicable Laws that prohibit such discrimination. A copy of this language must be made a part of an agreement with a contractor of any tier. 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. 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: 101 of 179 ORDINANCE NO. ________ 59 City Address: City of Renton ATTN: CED, Development Engineering, Franchise Permits 1055 S Grady Way Renton, WA 98057 City Contact: franchisepermits@rentonwa.gov 425.430.7240 City Public Works Improvement Project Contact: As specified in section 15.1.c Franchisee Address: 135 Lake Street South, Suite 155 Kirkland, WA 98033 legal@ziply.com Franchisee Permitting Contact: Raquel Butler, raquel.butler@ziply.com Franchisee Emergency Contact: Ziply Fiber Network Operations Center, 509-823-1886 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. 102 of 179 ORDINANCE NO. ________ 60 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. 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. 103 of 179 ORDINANCE NO. ________ 61 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. Franchisee and Franchisee’s contractors shall acquire and maintain a City of Renton business license in accordance with RMC 5-5 as it exists or may be amended; Franchisee shall acquire and maintain a business license during the duration of the Franchise while contractors shall acquire and maintain a business license prior and during that time that any permit is active. 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 Majeure: 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 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, 104 of 179 ORDINANCE NO. ________ 62 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. 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 105 of 179 ORDINANCE NO. ________ 63 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 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. 26.15 Public Document/Public Disclosure: This Franchise will be considered a public document and will be available for reasonable inspection and copying by the public 106 of 179 ORDINANCE NO. ________ 64 during regular business hours. This document may be disclosed pursuant to RCW 42.56 (Public Records Act). 26.16 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. 26.17 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 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 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. 26.18 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 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. 107 of 179 ORDINANCE NO. ________ 65 26.19 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. 26.20 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 _______ day of ___________________, 2026. Jason A. Seth, City Clerk APPROVED BY THE MAYOR this _______ day of _____________________, 2026. Armondo Pavone, Mayor 108 of 179 ORDINANCE NO. ________ 66 Approved as to form: Shane Moloney, City Attorney Date of Publication: ORD-CED:25ORD028:01.15.2026 [MPK Template Approval 10.18.2025] 109 of 179 ORDINANCE NO. ________ 67 UNCONDITIONAL ACCEPTANCE The undersigned, Franchisee, accepts all the privileges of the above-granted franchise, subject to all the terms, conditions, and obligations of this Franchise. DATED: _________________, 20__. FRANCHISEE ________________________________ (NAME) ________________________________ (TITLE) 110 of 179 ORDINANCE NO. ________ 68 Attachment 1 111 of 179 1 CITY OF RENTON, WASHINGTON ORDINANCE NO. ________ AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON, GRANTING ZIPLY FIBER PACIFIC, LLC DBA ZIPLY FIBER AND AFFILIATES 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. WHEREAS, RCW 35A.11.020 grants the City broad authority to regulate the use of the public Right of Way; and WHEREAS, RCW 35A.47.040 grants the City broad authority to permit and regulate non-exclusive franchises; and WHEREAS, RMC 5-19 describes the City’s regulatory regime for franchises; and WHEREAS, the City Council finds that it is in the best interests of the health, safety and welfare of residents of the Renton community to grant a non-exclusive franchise to Ziply Fiber Pacific, LLC dba Ziply Fiber and affiliates for the operation of an underground fiber optic telecommunications system with the City Rights-of Way; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO ORDAIN AS FOLLOWS: 112 of 179 ORDINANCE NO. ________ 2 Table of Contents SECTION I. Definitions .............................................................................................. 3 SECTION II. Purpose ................................................................................................. 7 SECTION III. Privileges Conveyed .............................................................................. 8 SECTION IV. Term ................................................................................................... 11 SECTION V. Recovery of Costs ................................................................................ 12 SECTION VI. Assignment and Transfer of Franchise ................................................. 14 SECTION VII. Compliance with Laws - Reservation of Powers and Authority .............. 15 SECTION VIII. Non-exclusive Franchise ................................................................... 16 SECTION IX. Permits, Construction and Restoration ................................................ 17 SECTION X. Coordination and Shared Excavations................................................... 25 SECTION XI. Hazardous Materials ........................................................................... 26 SECTION XII. Emergency Work – Extension of Time to Obtain Permit(s) ..................... 28 SECTION XIII. Records of Installation ...................................................................... 31 SECTION XIV. Undergrounding of Facilities .............................................................. 34 SECTION XV. Relocation of Franchisee Facilities ..................................................... 34 SECTION XVI. Abandonment and Discontinuance of Franchisee’s Facilities ............. 40 SECTION XVII. Termination, Violations, and Remedies ............................................. 42 SECTION XVIII. Dispute Resolution ......................................................................... 45 SECTION XIX. Arbitration ........................................................................................ 48 SECTION XX. Alternative Remedies ......................................................................... 50 SECTION XXI. Amendments to Franchise ................................................................ 50 SECTION XXII. Indemnification ............................................................................... 51 SECTION XXIII. Insurance ....................................................................................... 55 SECTION XXIV. Discrimination Prohibited ............................................................... 58 SECTION XXV. Notice ............................................................................................. 58 SECTION XXVI. Miscellaneous ................................................................................ 60 SECTION XXVII. Effective Date ................................................................................ 65 113 of 179 ORDINANCE NO. ________ 3 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 The City of Renton’s Community and Economic Development 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, boring, and/or excavating to construct, remove, replace, repair, and restore pipeline(s) and/or Facilities. 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 114 of 179 ORDINANCE NO. ________ 4 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 City of 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 Ziply Fiber Pacific, LLC dba Ziply Fiber and affiliates authorized to do business within the State of Washington, and its respective successors and assigns, and 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 but not limited to all substances designated under: the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; 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 Clean Water Act, 33 U.S.C. § 1251 et seq.; the Clean Air Act, 42 U.S.C. § 7401 et 115 of 179 ORDINANCE NO. ________ 5 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 70A.300, and the Washington Hazardous Waste Cleanup - Model Toxics Control Act, RCW Chapter 70A.305, 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 as they exist, may be amended, or created, that relate to telecommunications services or terms of this Agreement, 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 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. 1.11 Parties: Means the City of Renton and Ziply Fiber Pacific, LLC dba Ziply Fiber and affiliates. 116 of 179 ORDINANCE NO. ________ 6 1.12 Public Property(ies): 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 (City Streets as Part of State Highways: Jurisdiction, control - Exception) and 47.52.090 (Limited Access Facilities: 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 (Utilities General – Tariffs and Contracts: 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 480-120-026 (Telephone Companies: Tariffs), WAC Chapter 480-80 (Utilities General – Tariffs and Contracts). 117 of 179 ORDINANCE NO. ________ 7 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. 1.18 City of Renton: The City of Renton is a noncharter code city under the laws and statutes of the State of Washington. Throughout the Franchise the term City, Renton and City of Renton are used interchangeably all meaning the same. SECTION II. Purpose 2.1 Authority: Under RCW 35A.47.040, Renton’s City Council has authority to permit and regulate nonexclusive franchises such as that contemplated under this Ordinance. This Franchise is granted subject to Renton’s land use authority, public highway authority, police powers, franchise authority, and any case law, statutory or inherent authority. 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 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 118 of 179 ORDINANCE NO. ________ 8 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 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 authority under the Telecommunication Act of 1996, § 253(c), RMC Chapter 5-19 (Telecommunication Licenses and Franchises) and the laws of the State of Washington including, but not limited to, RCW 47.24.020 (City Streets as Part of State Highways: Jurisdiction, control - Exception), RCW 47.52.090 (Limited Access Facilities: 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 (Highways and Streets: Franchises and permits — Streets and public ways), RCW 35.22.280 (First Class Cities: Specific powers enumerated), RCW 35.99.020 (Telecommunication, Cable Television Service – Use of Right of Way: Permits for use of right-of way), and RCW 80.36.040 (Telecommunications: 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, 119 of 179 ORDINANCE NO. ________ 9 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, 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 as those services are defined in Washington state law. The Franchisee may use its Facilities’ excess capacity, however, Franchisee may not use, convey, lease or share excess space within the Franchise Area without prior written authorization from the City of Renton. In order for the City to determine whether, and under what conditions, excess capacity may be authorized, Franchisee shall 120 of 179 ORDINANCE NO. ________ 10 timely notify the City’s representative identified at subsection 25.1 of this Agreement in writing. 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/or 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 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 invalidity or illegality, and the Parties will meet within thirty (30) days and endeavor jointly to amend this Franchise to cure the alleged 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. 121 of 179 ORDINANCE NO. ________ 11 3.7 Existing Facilities Outside Franchise Area: Franchisee Facilities as they may exist at the Effective Date of this Franchise and were installed and/or maintained on public grounds or places in Renton under other Agreement(s) with the City may continue to be maintained, repaired, and operated through the term of this Franchise subject to the terms of this agreement; 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: a. Effective Date: Each of the provisions of this Franchise shall become effective upon the later of Franchisee’s acceptance of the terms and conditions of this Franchise and the City Council’s passage of this ordinance, and b. Length of Term: Shall remain in effect for ten (10) years, unless it is terminated pursuant to Section XVII, Termination, Violations, and Remedies. c. Option for Renewal: 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. 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. 122 of 179 ORDINANCE NO. ________ 12 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 the Washington State Environmental Policy Act (“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. Payment shall be due within forty-five (45) days of receipt of the invoice. 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. 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 123 of 179 ORDINANCE NO. ________ 13 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, as defined in the City Fee Schedule or in this Franchise, 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 the City reasonably incurs in response to any emergency situation involving Franchisee’s Facilities, to the extent said emergency is not the fault of the City. The City agrees to simultaneously seek reimbursement from any Franchisee or permit holder who caused or contributed to the emergency situation. Renton’s “response to emergency” for the purposes of this Franchise is defined in subsections 9.5 and 12.1 through 12.3. 5.7 City Costs to be Reimbursed: City will provide documentation of 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 as the result of the presence of Franchisee’s Facilities in the Right-of-Way. Such costs and expenses shall include but not be limited to: a. Franchisee’s proportionate cost of City personnel assigned to oversee or engage in any work in the Rights-of-Way as the result of the presence of Franchisee’s Facilities in the Rights-of-Way. 124 of 179 ORDINANCE NO. ________ 14 b. Franchisee’s proportionate share of any City of Renton time spent reviewing construction plans in order to either accomplish the relocation of Franchisee’s Facilities or the routing or rerouting of any utilities so as not to interfere with Franchisee’s Facilities. c. 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. 5.8 Reimbursement period: Franchisee shall reimburse Renton within forty-five (45) days of Renton’s submittal of an itemized billing. 5.9 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 said billing. At the City’s option, the billing may be on an annual basis, but the City shall provide the Franchisee with the City’s itemization of costs, in writing, at the conclusion of each project for informational purposes. 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 advance written consent of the City Council of Renton by passage of an ordinance or resolution; such consent shall not be unreasonably withheld. 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. 125 of 179 ORDINANCE NO. ________ 15 a. 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 assignment or transfer with Renton, together with its written acceptance of all of the Franchise terms and conditions. b. The Franchise terms and conditions shall be binding upon the Parties’ respective assigns and successors. c. 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. d. 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 126 of 179 ORDINANCE NO. ________ 16 incorporated by reference into this Franchise. If a discrepancy arises between this Franchise and RMC Chapter 5-19 or any other law, then the most restrictive measure shall apply. 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 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 127 of 179 ORDINANCE NO. ________ 17 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. 9.2 Permit Application Required: Exception to timing in the event of an emergency defined in Section XII Permits shall vest in accordance with RMC 4-1-045. a. Franchisee shall first obtain (be issued) all required documentation and approvals, including permits from Renton to perform Work on Franchisee’s Facilities within the Franchise Area. i. The permit application shall contain detailed plans, maps and specifications showing the position, depth and location of the Franchisee’s proposed new and/or existing Facilities in relation to existing public and private utilities within a minimum horizontal distance of ten (10) feet from the proposed new Facilities, collectively referred to as the “Plans.” ii. The permit application shall include payment of the associated fees. iii. 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, horizontal and vertical separation from public utilities, applicable 128 of 179 ORDINANCE NO. ________ 18 easements, site specific traffic control signed by a traffic control specialist, traffic turnouts and road obstructions, and all other necessary information. iv. Permits shall not be unreasonably withheld or delayed after submission of a complete application. v. Franchisee may engage subcontractors or other entities submit a permit application on behalf of the Franchisee. For each subcontractor or other entity Franchisee elects to submit on their behalf, the Franchisee must submit to the City a Letter of Authorization in a format that is acceptable to the City. b. Work shall only commence upon the issuance of required permits. Franchisee shall schedule an inspection any time that Franchisee is performing Work within the Franchise Area to allow Renton to inspect such work. Inspections shall be scheduled as identified on the issued permit. c. Nothing in this Agreement is intended, nor should be construed, to guarantee any permit is issued. d. Franchisee shall submit to Renton as-built plans and, digital facility location data in a format compatible with Renton’s geographic information system. 9.3 Work Performed – Safety: During any period of relocation, construction or maintenance, all work performed by Franchisee or its contractors of any tier shall be accomplished in a safe and workmanlike manner, so to minimize interference with the free passage of traffic and the free use of adjoining property, whether public or private. Franchisee shall at all times post and maintain proper barricades, flags, flaggers, lights, flares and other traffic control measures as required for the safety of all members of the 129 of 179 ORDINANCE NO. ________ 19 general public and comply with all applicable safety regulations during such period of construction as required by the ordinances of the City or the laws of the State of Washington, including RCW 39.04.180 for the construction of trench safety systems. The provision of this section 9.3 shall survive the expiration or termination of this Franchise to the extent that Franchisee continues to have Facilities in the Rights-of-Way. 9.4 Work Performed – Licensing and Compliance with Franchise Agreement: Franchisee’s contractors of any tier shall be licensed and bonded in accordance with State law and the City’s ordinances, regulations, and requirements. Work by contractors of any tier are subject to the same restrictions, limitations, and conditions as if the work were performed by Franchisee. Franchisee shall be responsible for all work performed by its contractors of any tier and others performing work on its behalf as if the work were performed by Franchisee and shall ensure that all such work is performed in compliance with the Franchise and applicable law. 9.5 Underground Installation: Boring Preferred. Work involving underground installation of Franchisee’s facilities within City streets shall be accomplished through boring rather than open trenching whenever reasonably feasible. Prior to boring, Franchisee shall “pothole” all existing City utilities, private utilities and other pressurized systems to ensure vertical separation requirements are met. When directed by the City, Franchisee shall CCTV Renton-owned sewer and storm drain lines and privately owned sewer and storm drain lines connected to the City system within the Right-of-Way or utility easement, 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. 130 of 179 ORDINANCE NO. ________ 20 Upon request from Franchisee, Renton may allow for other methods to meet the requirement as may be approved by Renton as part of permitting. 9.6 Work Performed – Repair of Damage. Any utility, public or private, that is damaged by the Franchisee shall be repaired by the Franchisee at no cost to Renton or the private utility owner. 9.7 Facility Placement: The City reserves the right to limit or exclude Franchisee’s access to a specific route, Right-of-Way or other location when, in the judgment of the Administrator or designee, there is inadequate space (including but not limited to compliance with ADA clearance requirements and maintaining a clear and safe passage through the Rights-of-Way), a pavement cutting moratorium, unnecessary damage to public property, public expense, inconvenience, interference with City utilities, inability to achieve utility separation (unless otherwise approved on a case-by-case basis), or as otherwise reasonably determined by the Administrator or designee. The decision of the Administrator for Facility Placement is final and not subject to administrative appeal. 9.8 Lateral Support – Duty to Not Impair: Whenever Work on Facilities have caused or contributed to a condition that in the City of Renton’s sole determination will or has substantially impair 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 131 of 179 ORDINANCE NO. ________ 21 Renton for all costs, fees, and expenses resulting from that necessary action in accordance with sections 5.7, 5.8, and 5.9. This provision shall survive the expiration, revocation or termination of this Franchise for a period of five (5) years. 9.9 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. 9.10 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 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 one hundred thousand dollars ($100,000) 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 132 of 179 ORDINANCE NO. ________ 22 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. 9.11 Workmanship: All Work done by Franchisee or at Franchisee’s direction or on its behalf, including all Work performed by contractors of any tier, 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 interfere with other franchises, licenses, public or private utilities, 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. 9.12 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. 133 of 179 ORDINANCE NO. ________ 23 9.13 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 City standards, at its own cost and expense. Franchisee shall, upon discovery of any such damage, immediately notify Renton per Section XXV. 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 at any point in time, 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, billed in accordance with sections 5.7, 5.8, and 5.9. 9.14 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. Prior to doing any work in the Rights-of-Way, the Franchisee shall follow established procedures, including contacting the Utility Notification Center in Washington and comply with all applicable State statutes regarding the One Call Locator Service pursuant to Chapter 19.122 RCW. Further, upon request, by the City or a third party, Franchisee shall locate its Facilities consistent with the requirements of Chapter 19.122 RCW. The City shall not be liable for any damages to Franchisee’s Facilities or for interruptions in service to Franchisee’s customers that are a direct result of Franchisee’s failure to locate its Facilities within the prescribed time limits and guidelines established by the One Call Locator Service regardless of whether the City issued a permit. 134 of 179 ORDINANCE NO. ________ 24 9.15 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 RMC 9-7 (Road, Bridge And Municipal Construction Standards), RMC 9-10-11 (Trench Restoration And Street Overlay Requirements) and City of Renton Standard Details 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. 9.16 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. 9.17 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, or such other period of time as is mutually agreed consistent with requirements of Section XVII, Renton, or its authorized agent, may restore the Franchise 135 of 179 ORDINANCE NO. ________ 25 Area at Franchisee’s sole and complete expense in accordance with sections 5.7, 5.8, and 5.9.The failure by Franchisee to complete such repairs shall be considered a breach of this Franchise and is subject to remedies by the City pursuant to Section XVII of this Agreement. The privilege granted under this section shall be in addition to others provided by this Franchise. 9.18 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 in the form of a permit(s) 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 through regularly scheduled meetings. 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 136 of 179 ORDINANCE NO. ________ 26 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 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 then in place. 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 137 of 179 ORDINANCE NO. ________ 27 occasion such product is applied in accordance with such procedure unless such specified product becomes subject to increased regulatory requirements or prohibitions. 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: a. 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, that does not constitute an “emergency” subject to Section XII of this Agreement, Franchisee shall notify Renton within twenty-four (24) hours of discovery. b. If the encountered or suspected Hazardous Substances are not the result of the acts or omissions of Franchisee, Renton shall, at its own expense, determine if the material is hazardous, in accordance with applicable Laws. i. 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. ii. 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. iii. 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. 138 of 179 ORDINANCE NO. ________ 28 c. 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 – Extension of Time to Obtain Permit(s) 12.1 In the event of any emergency in which any of Franchisee’s Facilities located in the Rights-of-Way breaks, fall, becomes damaged, or if Franchisee’s Facilities are otherwise in such a condition as to immediately endanger the property, life, health or safety of any person, entity or the City, Franchisee shall immediately take the proper emergency measures to repair its Facilities, to cure or remedy the dangerous conditions for the protection of property, life, health or safety of any person, entity or the City without first applying for and obtaining a permit as required by this Franchise. (see also section 15.3 of this Agreement related to Emergency Relocation of Facilities in the event of an emergency not related to Franchisee) a. This clause 12.1 is not intended, and should not be construed, to relieve Franchisee from the requirement of obtaining any permits necessary for this purpose, and Franchisee shall apply for all such permits not later than the next succeeding day during which the Renton City Hall is open for business. 139 of 179 ORDINANCE NO. ________ 29 b. The City retains the right and privilege to cut, move, or remove any Facilities located within the Rights-of-Way of the City, as the City may determine to be necessary, appropriate, or useful in response to any public health or safety emergency. c. Franchisee shall provide all necessary equipment and personnel to safely and expeditiously repair its facilities and provide all necessary traffic control pursuant to the most recent edition of the Manual on Uniform Traffic Control Devices (MUTCD) in effect at the time of the emergency giving rise to the need. 12.2 Franchisee shall immediately and at the first possible time notify the City according to Section XXV of this Agreement of any emergency or outage that affects, or is expected to affect, any City customer or City access in any amount. 12.3 The City shall not be liable for any damage to or loss of Facilities within the Rights-of-Way as a result of or in connection with any public works, public improvements, construction, grading, excavation, filling, or work of any kind in the Rights-of-Way by or on behalf of the City, except to the extent caused by the sole negligence or willful misconduct of the City, its employees, contractors, or agents. The City shall further not be liable to Franchisee for any direct, indirect, or any other such damages suffered by any person or entity of any type as a direct or indirect result of the City’s actions under this section 12 except to the extent caused by the sole negligence or willful misconduct of the City, its employees, contractors, or agents. 12.4 Whenever the construction, installation or excavation of Facilities authorized by this Franchise has caused or contributed to a condition that appears to substantially 140 of 179 ORDINANCE NO. ________ 30 impair the lateral support of the adjoining street or public place, or endangers the public, an adjoining public place, street, electrical or telecommunications utilities, City utilities, or City property, the Community and Economic Development Administrator or designee, may direct Franchisee, at Franchisee’s own expense, to take reasonable action to protect the public, adjacent public places, City property or street utilities, and such action may include compliance within a prescribed time. In the event that Franchisee fails or refuses to promptly take the actions directed by the City, or fails to fully comply with such directions, or if emergency conditions exist which require immediate action, before the City can timely contact Franchisee to request Franchisee effect the immediate repair, the City may access the Facilities and take such reasonable actions as are necessary to protect the public, the adjacent streets, City utilities, or street, electrical or telecommunications utilities, or to maintain the lateral support thereof, or reasonable actions regarded as necessary safety precautions, and Franchisee shall be liable to the City for the costs thereof. 12.5 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. 12.6 Extraordinary Costs: 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. 141 of 179 ORDINANCE NO. ________ 31 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: Following the initial construction and installation of Facilities, Franchisee shall provide the City with accurate copies of as-built plans and maps prepared by Franchisee’s design and installation contractors. These plans and maps shall be provided at no cost to the City, and shall include digital files in AutoCAD, or other industry standard readable formats that are acceptable to the City and delivered electronically. Further, Franchisee shall provide such maps within thirty (30) days following a request from the City. Franchisee shall warrant the accuracy of all plans, maps and as-builds provided to the City. 13.3 Within thirty (30) days of a written request from the Administrator or designee, Franchisee shall furnish the City with information sufficient to demonstrate: 1) that the Franchisee has complied with all applicable requirements of this Franchise; and 2) that any and all utility taxes due to the City in connection with the Franchisee have been paid. 13.4 All books, records, maps and other documents maintained by Franchisee with respect to its Facilities within the Rights-of-Way shall be made available for inspection 142 of 179 ORDINANCE NO. ________ 32 by the City at reasonable times and intervals; provided, however, that nothing in this section 13.4 shall be construed to require Franchisee to violate state or federal law regarding customer privacy, nor shall this section 13.4 be construed to require Franchisee to disclose proprietary or confidential information without adequate safeguards for its confidential or proprietary nature. 13.5 Franchisee shall not be required to disclose information that it reasonably deems to be proprietary or confidential in nature; provided, however, Franchisee shall disclose such information that is required under applicable law to comply with a utility tax audit. Franchisee shall be responsible for clearly and conspicuously identifying the work as confidential or proprietary and shall provide a brief written explanation as to why such information is confidential and how it may be treated as such under State or Federal law. In the event that the City receives a public records request under Chapter 42.56 RCW or similar law for the disclosure of information Franchisee has designated as confidential, trade secret, or proprietary, the City shall promptly provide written notice of such disclosure so that Franchisee can take appropriate steps to protect its interests. 13.6 Disclosure to Third-Parties: a. Nothing in section 13.4 or 13.5 prohibits the City from complying with Chapter 42.56 RCW or any other applicable law or court order requiring the release of public records, and the City shall not be liable to Franchisee for compliance with any law or court order requiring the release of public records. The City shall comply with any injunction or court order obtained by Franchisee that prohibits the disclosure of any such confidential records; however, in the event a higher court 143 of 179 ORDINANCE NO. ________ 33 overturns such inunction or court order and such higher court action is or has become final and non-appealable, Franchisee shall reimburse the City for any fines or penalties imposed for failure to disclose such records as required hereunder within sixty (60) days of a request from the City. b. 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. 13.7 Design Locates: Upon Renton’s written request, or in connection with the design of any public works project, including any public utility whether provided by Renton or another utility district, Franchisee shall field verify and mark the location of its underground Facilities within the Franchise Area 13.8 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. 144 of 179 ORDINANCE NO. ________ 34 SECTION XIV. Undergrounding of Facilities 14.1 Undergrounding Required for New Facilities: Pursuant to regulation under RMC 4-6-090.C (Applicability), as those regulations may be amended or revised, 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, 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 above ground within a one (1) mile horizontal distance from all elements of the proposed project, 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 above ground 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 replacement, expansion and repair of its roadways, 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 or a partner agency undertakes any public works improvement within the Franchise Area, and such public works 145 of 179 ORDINANCE NO. ________ 35 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; and c. Provide Franchisee with contact information for the designated City project manager responsible for the public works improvement project for which all communication pertaining to the project scope shall be coordinated with unless directed otherwise by designee or otherwise required by this Franchise. 15.2 Franchisee Relocation Plans: Unless a longer period is specified by the City project manager, within 60 days of receipt of such notice and such plans and specifications, as identified in section 15.1, Franchisee shall: a. Provide the City with a designated Franchisee project manager to be the sole contact point for all communication pertaining to the project scope unless directed otherwise by designee or required by this Franchise. b. Submit to the City’s project manager the Franchisee plan drawings for the relocation of the Franchisee Facilities in advance of the preparation of the City’s final plans and specifications for incorporation into the City’s construction plans. 146 of 179 ORDINANCE NO. ________ 36 c. Submit to the City’s project manager a proposed construction schedule for review and approval. The City’s project manager and Franchisee’s project manager shall coordinate the schedule in reasonable and good faith. 15.3 Franchisee Relocation Work: a. City project manager shall provide Franchisee project manager a written notice to proceed. The relocation completion date will be included in the City’s written request for said relocation to Franchisee. b. To prevent delay to the City’s project, upon receipt of notice per 15.3.a, Franchisee shall complete the relocation work as per the schedule in 15.2.c, unless otherwise agreed upon by the City’s project manager. c. Franchisee shall relocate such Facilities within the Franchise Area at no charge to the City, except that if the City 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. Franchisee shall be solely responsible for any associated cost caused by any construction delays to the City’s project due to Franchisee’s failure to comply with Franchisee’s plans and schedule in relocating or installing Franchisee’s Facilities in accordance with sections 15.8 through 15.11. 15.4 Emergency Relocation of Facilities: In the event an emergency posing a threat to public safety or welfare that is not related to a release of hazardous materials or substances requires the relocation of Franchisee’s Facilities within the Franchise Area, Renton shall give Franchisee notice of the emergency as soon as reasonably practicable. 147 of 179 ORDINANCE NO. ________ 37 Upon receipt of notice, Franchisee shall respond as soon as reasonably practicable to relocate the affected Facilities, at Franchisee’s sole expense. See also section 12.1 of this Agreement. 15.5 Third-Party Construction: Whenever any person or entity, other than Renton or its partner agency(ies) 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 time and upon terms acceptable to Franchisee for any and all costs and expenses incurred by Franchisee in the relocation of Franchisee’s Facilities. 15.6 Third-Party Construction of Public Utility Improvement Project: 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 Program or its Transportation 148 of 179 ORDINANCE NO. ________ 38 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. 15.7 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. a. 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 Facilities. b. 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. c. The City may seek reimbursement from Franchisee for all costs associated with evaluation and implementation of proposed alternatives. Costs shall be related to implementation, but is not limited to, redesign, construction cost increases and 149 of 179 ORDINANCE NO. ________ 39 any contractor(s) change orders or claims for delays or damages. All costs shall be reimbursed in accordance with sections 5.7 through 5.9. 15.8 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. 15.9 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. 15.10 Contractor Delay Claims: If Franchisee breaches its obligations under Chapter 19.122 RCW to properly locate its Facilities or breaches its obligations under this section with respect to relocating its Facilities, and to the extent such breach causes a delay in the work being undertaken by the City of Renton s third party contractor(s) that result in a claim by the third party contractor(s) for costs, expenses and/or damages that are directly caused by such delay and are legally required to be paid by the City (each, a “Contractor Delay Claim”), the City may at its sole option: a. Tender the Contractor Delay Claim to Franchisee for defense and indemnification in accordance with section 15.10; or b. Require that Franchisee reimburse the City for any such costs, expenses, and/or damages that are legally required to be paid by the City to its third party 150 of 179 ORDINANCE NO. ________ 40 contractor(s) as a direct result of the Contractor Delay Claim; provided that, if the City requires reimbursement by Franchisee under this section 15.8.b, the City shall first give Franchisee written notice of the Contractor Delay Claim. 15.11 Failure to Remove or Relocate Facilities: If Franchisee fails, neglects, or refuses to remove or relocate its Facilities as directed by the City following the procedures outline in this Section XV, then after fifteen (15) days’ notice to Franchisee, the City may perform such work or cause it to be done, and the City’s costs shall be paid by Franchisee pursuant to sections 5.7, 5.8, and 5.9. 15.12 Survival: The provisions of this Section XV shall survive the expiration or termination of this Franchise during such time as Franchisee continues to have Facilities in the Rights-of-Way. 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. Franchisee shall notify the City in writing for such planned abandonment or cessation and include a site plan showing all Facilities, including respective size and material type, planned for abandonment or cessation. Any plan for abandonment or removal of Franchisee’s Facilities within the Franchise Area must be first approved in writing by the Administrator, or designee. Unless otherwise determined acceptable, for any Facility Franchisee is authorized to abandon, the Franchisee shall remove all wire and associated appurtenances. Franchisee covenants and agrees that for any request for abandonment or cessation, the City may elect to take ownership of the Facilities. In such case the City elects 151 of 179 ORDINANCE NO. ________ 41 to take ownership of the Facilities, the City shall prepare a Bill of Sale (BOS) for Franchisee to review and sign within thirty (30) days. 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, 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 above ground 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 in accordance with the Trench Restoration and Street Overlay requirements as it exists or may be amended. 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. 152 of 179 ORDINANCE NO. ________ 42 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. 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 either Party provides notice in accordance with Section XXV of this Agreement that it does not wish to renew, extend and/or continue the Franchise, this Franchise shall be terminated as of the expiration date described in Section IV. 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 prior to the expiration date of this Franchise except upon a majority vote of the City Council, after 153 of 179 ORDINANCE NO. ________ 43 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: a. If the Franchise is terminated, Franchisee shall immediately discontinue operation of Facilities through the Franchise Area. b. In such circumstances, either Party may invoke the dispute resolution provisions in Section XVIII. Alternatively, either Party may elect to seek relief directly 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, in which case the 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. 154 of 179 ORDINANCE NO. ________ 44 17.7 Injunctive 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, 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 Except as limited by Section XIX “Arbitration”, The City may elect, without any prejudice to any of its other legal rights and remedies, to obtain an order from the superior court having jurisdiction compelling Franchisee to comply with the provisions of the Franchise and to recover damages and costs incurred by the City by reason of Franchisee’s failure to comply. In addition to any other remedy provided herein, the City reserves the right to pursue any remedy to compel or force Franchisee and/or its successors and assigns to comply with the terms hereof, and the pursuit of any right or remedy by the City shall not prevent the City from thereafter declaring a forfeiture or revocation for breach of the conditions herein. Provided, further, that by entering into this Franchise, it is not the intention of the City or Franchisee to waive any other rights, remedies, or obligations as otherwise provided by law equity, or otherwise, and nothing contained here shall be deemed or construed to effect any such waiver. 17.9 If Franchisee shall violate, or fail to comply with any of the provisions of this Franchise, or should it fail to heed or comply with any notice given to Franchisee under the 155 of 179 ORDINANCE NO. ________ 45 provisions of this Franchise, the City shall provide Franchisee with written notice specifying with reasonable particularity the nature of any such breach and Franchisee shall undertake all commercially reasonable efforts to cure such breach within thirty (30) days of receipt of notification. If the parties reasonably determine the breach cannot be cured within (30) thirty days, the City may specify a longer cure period, and condition the extension of time on Franchisee’s submittal of a plan to cure the breach within the specified period, commencement of work within the original thirty (30) day cure period, and diligent prosecution of the work to completion. If the breach is not cured within the specified time, or Franchisee does not comply with the specified conditions, the City may, at its discretion, (1) revoke this Franchise with no further notification, or (2) claim compensatory damages of two hundred fifty dollars ($250) per day or (3) pursue other remedies as described in section 17.9 above. Liquidated damages described in this section 17.10 shall not be offset against any sums due to the City as a tax or reimbursement pursuant to code or this Franchise. 17.10 Non-Waiver: The Failure of the City to insist upon strict performance of any of the covenants and agreements of this Franchise or to exercise any option herein conferred in any one or more instances, shall not be construed to be a waiver or relinquishment of any such covenants, agreements or option or any other covenants, agreements or option. SECTION 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, stating with reasonable specificity the 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 156 of 179 ORDINANCE NO. ________ 46 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 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 157 of 179 ORDINANCE NO. ________ 47 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 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 158 of 179 ORDINANCE NO. ________ 48 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 directly related costs and expenses of any staff; all costs and direct expenses of any labor (including, but not limited to, labor of contractors of any tier); all pre-arbitration costs and expenses of consultants, attorneys, accountants, professional and other services, as outlined in section 19.5 below; and all taxes, insurance, interest 159 of 179 ORDINANCE NO. ________ 49 expenses, directly related 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, see 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, then such party shall be entitled to recover all reasonably incurred Costs, 160 of 179 ORDINANCE NO. ________ 50 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 20.1 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 21.1 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 all benefits, privileges, obligations or duties in and 161 of 179 ORDINANCE NO. ________ 51 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 by 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 162 of 179 ORDINANCE NO. ________ 52 any liability for costs of investigation, abatement, correction, cleanup, fines, penalties, or other damages arising under 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 163 of 179 ORDINANCE NO. ________ 53 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 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 Franchise. The obligations of Franchisee under this section have been mutually negotiated by the Parties, and Franchisee acknowledges that Renton would not enter into this Franchise without Franchisee’s waiver of immunity. To the extent required to provide this indemnification and this indemnification only, Franchisee waives its immunity under Title 51 164 of 179 ORDINANCE NO. ________ 54 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 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 a contractor of any tier, 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 that 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 165 of 179 ORDINANCE NO. ________ 55 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 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 a blanket additional insured endorsement on the general and automotive liability policies, including Renton as an additional insured as their interest may appear under this Franchise 166 of 179 ORDINANCE NO. ________ 56 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 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 Franchise 167 of 179 ORDINANCE NO. ________ 57 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 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. 168 of 179 ORDINANCE NO. ________ 58 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. SECTION XXIV. Discrimination Prohibited 24.1 In connection with this Franchise, including and not limited to all Work, hiring and employment, neither Franchisee nor its employees, agents, contractor of any tier, 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 Franchise. Franchisee shall comply fully with all applicable Laws that prohibit such discrimination. A copy of this language must be made a part of an agreement with a contractor of any tier. 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. 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: 169 of 179 ORDINANCE NO. ________ 59 City Address: City of Renton ATTN: CED, Development Engineering, Franchise Permits 1055 S Grady Way Renton, WA 98057 City Contact: franchisepermits@rentonwa.gov 425.430.7240 City Public Works Improvement Project Contact: As specified in section 15.1.c Franchisee Address: 135 Lake Street South, Suite 155 Kirkland, WA 98033 legal@ziply.com Franchisee Permitting Contact: Raquel Butler, raquel.butler@ziply.com Franchisee Emergency Contact: Ziply Fiber Network Operations Center, 509-823-1886 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. 170 of 179 ORDINANCE NO. ________ 60 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. 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. 171 of 179 ORDINANCE NO. ________ 61 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. Franchisee and Franchisee’s contractors shall acquire and maintain a City of Renton business license in accordance with RMC 5-5 as it exists or may be amended; Franchisee shall acquire and maintain a business license during the duration of the Franchise while contractors shall acquire and maintain a business license prior and during that time that any permit is active. 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 Majeure: 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 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, 172 of 179 ORDINANCE NO. ________ 62 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. 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 173 of 179 ORDINANCE NO. ________ 63 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 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. 26.15 Public Document/Public Disclosure: This Franchise will be considered a public document and will be available for reasonable inspection and copying by the public 174 of 179 ORDINANCE NO. ________ 64 during regular business hours. This document may be disclosed pursuant to RCW 42.56 (Public Records Act). 26.16 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. 26.17 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 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 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. 26.18 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 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. 175 of 179 ORDINANCE NO. ________ 65 26.19 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. 26.20 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 _______ day of ___________________, 2026. Jason A. Seth, City Clerk APPROVED BY THE MAYOR this _______ day of _____________________, 2026. Armondo Pavone, Mayor 176 of 179 ORDINANCE NO. ________ 66 Approved as to form: Shane Moloney, City Attorney Date of Publication: ORD-CED:25ORD029:01.15.2026 [MPK Template Approval 10.18.2025] 177 of 179 ORDINANCE NO. ________ 67 UNCONDITIONAL ACCEPTANCE The undersigned, Franchisee, accepts all the privileges of the above-granted franchise, subject to all the terms, conditions, and obligations of this Franchise. DATED: _________________, 20__. FRANCHISEE ________________________________ (NAME) ________________________________ (TITLE) 178 of 179 ORDINANCE NO. ________ 68 Attachment 1 179 of 179