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HomeMy WebLinkAboutORD 5845 CITY OF RENTON, WASHINGTON ORDINANCE N0. 5845 AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON, GRANTING UNTO MCIMETRO ACCESS TRANSMISSION SERVICES CORP. D/B/A VERIZON ACCE55 TRANSMISSION SERVICES, A DELAWARE CORPORATION, AUTHORIZED TO DO BUSINESS WITHIN THE STATE OF WASHINGTON, ITS AFFILIATES, SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE, AND AUTHORITY TO iNSTALL COMMUNICATIONS FACILITIES, SPECIFICALLY FIBER OPTIC CABLE AND RELATED APPURTENANCES, UNDER, ALONG, OVER, BELOW, THROUGH AND ACROSS THE STREETS, AVENUES AND ALLEYS OF THE CITY OF RENTON WITHIN THE PUBLIC RIGHT-OF-WAY OF RENTON. THE CfTY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION I: Definitions For the purposes of this Franchise and Attachment 1, which is fully incorporated by reference, the following defined terms, phrases, words and their derivations shall have the meaning provided below. When not inconsistent with the context in which the word is used, words used in the present tense include the future,words in the plural include the singular,words in lower case shall have their defined meaning even if the words are not capitalized, and words in the singular include the plural. Undefined words shall be given their common and ordinary meaning. 1.1 Administrator: Means the Administrator of Renton's Public Works Department or designee, or any successor office responsible for management of Renton's public properties. 1.2 Construct or Construction: Means to construct, remove, replace, repair, and/or restore any Facility, and may include, but are not limited to, digging and/or excavating to construct, remove, replace, repair, and restore pipeline(s) and/or Facilities. 1 ORDINANCE N0. 5845 1.3 Cost: Means any costs, fees, or expenses, including but not limited to attorneys' fees. 1.4 �: Means calendar day(s) unless otherwise specified. 1.5 Facilitv 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 vau�ts, switches, fixtures, and communication systems; and any and all other equipment, appliances, attachments, appurtenances and other items necessary, convenient, or in any way appertaining to any and all of the foregoing, whether the same be located across, above, along, below, in, over, through, or underground. Facilities do not include any noise-creating equipment within the range of human hearing. 1.6 Franchise: Means this ordinance and any related amendments, attachments, exhibits, or appendices. 1.7 Franchise Area: Means all present and future Renton Rights-of-Way for public roads, alleys, avenues, highways, streets, and throughways (including the area across, above, along, below, in, over, through, or under such area), laid out, platted, dedicated, acquired or improved, and; all city-owned utility easements dedicated for the placement and location of various utilities provided such easement would permit Franchisee to fully exercise the privilege granted under this Franchise within the area covered by the easement, without interfering with any governmental functions or other franchises or easements. 1.8 Franchisee: Means MClmetro Access Transmission Services Corp., doing business as Verizon Access Transmission Services, a Delaware corporation, authorized to do business 2 ORDINANCE N0. 5845 within the State of Washington, and its respective successors and assigns, and when appropriate, agents, contractors (of any tier), employees, officers and representatives. 1.9 Hazardous Substance: Means any and all hazardous, toxic, or dangerous substance, material, waste, pollutant, or contaminant, including all substances designated under the Resource Conservation and Recovery Act, 42 U.S.C. § 6901 et seq.; the Comprehensive Environmental Response, Compensation and Usability Act, 42 U.S.C. § 9601 et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. § 1801 et seq.; the Federal Water Pollution Control Act, 33 U.S.C. § 1257 et seq.; the Clean Air Act, 42 U.S.C. § 7401 et seq.; the Toxic Substances Control Act, 15 U.S.C. § 2601 et seq.; the Federal Insecticide, Fungicide, Rodenticide Act, 7 U.S.C. § 136 et seq.; the Washington Hazardous Waste Management Act, RCW Chapter 70.105, and the Washington Model Toxics Control Act, RCW Chapter 70.1050, as they exist or may be amended; or any other Laws. The term "Hazardous Substance" shall also be interpreted to include any substance which, after release into the environment, will or may reasonably be anticipated to cause death, disease, injury, illness, abnormalities, behavioral abnormalities, stunted or abnormal growth or development, or genetic abnormalities. 1.10 Laws: Means any federal, state, or municipal code, statute, ordinance, decree, executive order, governmental approval, permit, regulation, regulatory program, order, rule, published specification, public standard, Environmental Law, or governmental authority, that relate to telecommunications services, including but not limited to 47 U.S.C. § 101, et. seq. (Telecommunications Act of 1996), RCW 19.122 (Underground Utilities), WAC 480-80 (Utilities General—Tariffs and Contracts), RCW 35.99 (Telecommunications, Cable Television Service—Use of Right-of Way), WAC Chapter 296-32 (Safety Standards for Telecommunications), RCW Chapter 3 ORDINANCE N0. 5845 80.36 (Telecommunications), WAC Chapter 480-120, et. seq., (Telephone Companies), RCW Chapter 35.96 (Electric and Communication Facilities – Conversion to Underground), and any related Laws. All references to laws shall mean as they exist, may be amended or created. 1.11 Parties: Means the City of Renton and MClmetro Access Transmission Services, Corp., doing business as Verizon Access Transmission Services 1.12 Public Properties: Means present and/or future property owned or leased by Renton within Renton's present and/or future control and/or jurisdictional boundaries. 1.13 Public Wavs: Means any highway, street, alley, sidewalk, utility easement (unless their use is otherwise restricted for other users), or other public Rights-of-Way for motor vehicles or any other uses under Renton's control and/or in its jurisdictional boundaries, consistent with RCW 47.24.020 (Jurisdiction, control) and 47.52.090 (Cooperative agreements — Urban public transportation systems — Title to highway — Traffic regulations — Underground utilities and overcrossings — Passenger transportation — Storm sewers — City street crossings). 1.14 Ri�hts-of-Wav: Means the surface and space across, above, along, below, in, over, through or under any street, alley, avenue, highway, lane, roadway, sidewalk, thoroughfare, court, easement and similar Public Property, Public Ways, and area within the Franchise Area. 1.15 Tariff: Has the meaning provided in WAC 480-80-030 (Definitions), or such similar definition describing rate schedules, rules and regulations relating to charges and service as may be adopted by the regulatory authority with jurisdiction, under the laws of the State of Washington, over public service companies and/or competitive telecommunication service companies, and such competitive companies must file tariffs in accordance with WAC Chapter 480-80. (WAC 480-120-026 (Tariffs)). 4 ORDINANCE N0. 5845 1.16 WUTC: Means the Washington Utilities and Transportation Commission or such successor regulatory agency having jurisdiction over public service and/or telecommunication service companies. 1.17 Work: Means to construct, excavate, install, maintain, remove and/or repair by, for, or at Franchisee's request. SECTION II: Purpose 2.1 Authority: Under RCW 35A.47.040, Renton's City Council may grant or not grant a franchise. 2.2 Conditions:The purpose of this Franchise is to delineate the conditions relating to Franchisee's use of the Franchise Area and to create a foundation for the Parties to work cooperatively in the public's best interests after this ordinance becomes effective. This Franchise is granted subject to Renton's land use authority, public highway authority, police powers, franchise authority, and any other case law, statutory or inherent authority, and is conditioned upon the terms and conditions provided in this Franchise, and Franchisee's compliance with all Laws. 2.3 Risk and Liability: By accepting this Franchise, Franchisee assumes all risks or liabilities related to the Franchise, with no risk or liability conferred upon Renton. This Franchise is granted upon the express condition that Renton retains the absolute authority to grant other or further franchises in any Rights-of-Way and any Franchise Area. This and other franchises shall, in no way, prevent or prohibit Renton from using any of its Franchise Area, or affect its jurisdiction over them or any part of them, and Renton retains absolute authority to make all changes, relocations, repairs, maintenance, establishments, improvements, dedications or 5 ORDINANCE NO. 5845 vacations of same as Renton may see fit, inctuding the dedication, establishment, maintenance and improvement of all new or existing Rights-of-Way, Public Property or Public Ways. SECTION tll: Privileges Conveyed 3.1 Franchise Granted: Pursuant to the Telecommunication Act of 1996 § 253(c), RMC Chapter 5-19 and the laws of the State of Washington including, but not limited to, RCW 47.24.020 (Jurisdiction, control), RCW 47.52.090 (Cooperative agreements — Urban public transportation systems — Title to highway — Traffic regulations — Underground utilities and overcrossings — Passenger transportation — Storm sewers — City street crossings), RCW 35A.47.040(Franchises and permits — Streets and public ways), RCW 35.22.280 (Specific powers enumerated), RCW 35.99.020 (Permits for use of right-of way), and 80.36.040 (Use of road, street, and railroad right-of way—When consent of city necessary), and any related laws, Renton grants to Franchisee, and its successors and assigns (subject to and as provided for in Section VI, Assignment and Transfer of Franchise), under this Franchise's terms and conditions, the privilege to install, construct, operate, maintain and improve its Facilities, together with all necessary equipment and appurtenances, for the provision of telecommunications, telecommunications distribution services, private line, and internet access services,within the existing Franchise Area, such lands being more particularly described in Attachment 1 which is attached and fully incorporated by reference into the Franchise. Without a separate franchise agreement, Franchisee shall not have the privilege to provide cable services in the City of Renton. 3.2 Limited Franchise: This Franchise conveys a limited privilege as to the Franchise Area in which Renton has an actual interest. It is not a warranty of title or interest in the Franchise Area. This privilege shall not timit Renton's police powers, any statutory or inherent authority, 6 ORDINANCE N0. 5845 jurisdiction over its property, Franchise Area, Rights-of-Way, or its zoning or land use authority. The terms and conditions of this Franchise shall not be construed to apply to Facilities located outside of the Franchise Area. This Franchise does not confer upon Franchisee any privilege to install or use any Facilities outside the Franchise Area, including city-owned or leased properties or easements. 3.3 Principal Use Limitation: This Franchise shall not authorize a principal use of the Franchise Area for purposes other than for telecommunications, telecommunications distribution services, private line, and internet access services. The Franchisee may use its Facilities' excess capacity, however, Franchisee may not use, convey, lease or share excess space within the Franchise Area, 3.4 Franchise is Non-Exclusive: As detailed in Section VIII, below, Renton grants this non-exclusive Franchise to Franchisee to operate, maintain and improve its existing Facilities as a telephone business and service provider (as those terms are used in RCW 35.21.860). 3.5 Acknowled�ement: Franchisee acknowledges and warrants by its acceptance of the granted privileges, that it has carefully read and fully comprehends the terms and conditions of this Franchise. Franchisee accepts all reasonable risks of the meaning of the provisions, terms and conditions of the Franchise. Franchisee further acknowledges and states that it has futly 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 7 ORDINANCE N0. 5845 invalidity or illegality, and the Parties will meet within thirty (30) days and endeavor jointly to amend this Franchise to cure the invalidity or illegality. 3.6 Enforceable Contract: Franchisee specifically agrees to comply with the provisions of any applicable Laws, as they exist or may be amended. The express terms and conditions of the Franchise constitute a valid and enforceable contract between the Parties, subject to any Laws. 3.7 Existin� Facilities Outside Franchise Area: Existing Facilities installed or maintained by Franchisee in accordance with prior franchise agreements on public grounds and places within Renton (but which are not a part of the Franchise Area as defined by this Franchise) may be maintained, repaired and operated by Franchisee at the location where such Facilities exist as of the effective date of this Franchise for the term of this Franchise; provided, however, that no such Facilities may be enlarged, improved or expanded without Renton's prior review, written consent, and approval pursuant to the provisions of any applicable Laws. SECTION IV: Term 4.1 Len�th of Term: Each of the provisions of this Franchise shall become effective upon Franchisee's acceptance of the terms and conditions of this Franchise and the City Council's passage of this ordinance, and shall remain in effect for ten (10) years, unless it is terminated pursuant to Section XVII, Termination, Violations, and Remedies. At any time not more than two (2) years nor less than one hundred and eighty (180) days before the expiration of the Franchise Term, Franchisee may make a written request and Renton may consider, at its sole discretion, renewing this Franchise for an additional five (5) year renewal period, unless either party 8 ORDINANCE N0. 5845 expresses its intention in writing to terminate this Franchise at the conclusion of the ten (10)year term. 4.2 Extension upon Expiration: If the Parties fail to formally renew or terminate the Franchise prior to the expiration of its term or any extension,the Franchise shall be extended on a year-to-year basis until the Franchise is renewed, terminated or extended. SECTION V: Recovery of Costs 5.1. Administrative Fee: Pursuant to RCW 35.21.860(1)(b), Renton may charge Franchisee an administrative fee to recover all actual administrative expenses incurred by Renton that are directly related to receiving and approving a permit, license and this Franchise,to inspect plans and construction, or for the preparation of a detailed statement pursuant to SEPA (RCW Chapter 43.21C). Where Renton incurs actual administrative expenses, including but not limited to fees, expenses, and/ or costs for attorneys, consultants, staff and the City Attorney Department, for review or inspection of activities undertaken through the authority granted in this franchise, Franchisee shall pay such expenses directly to Renton. Renton shall provide Franchisee with an itemized invoice identifying the administrative expenses incurred. Renton employee time shall be calculated based on their rate of salary, including applicable overtime, benefits and reasonable overhead, and all other costs will be billed based on an actual cost basis. 5.2. Utilitv 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. 9 ORDINANCE N0. 5845 5.3. Franchise Fee: Pursuant to RCW 35.21.860 (Electricity, telephone, or natural gas business, service provider — Franchise fees prohibited — Exceptions), Renton may only impose a franchise fee or any other Cost of whatever nature or description upon Franchisee as is consistent with federal law. 5.4. Cost of Publication: Franchisee shall bear the entire Cost of publication of this ordinance. 5.5. Permit Fee: Franchisee shall be subject to all permit fees associated with activities undertaken through the authority granted in this Franchise or under Laws. 5.6. Emer�encv Fee: Franchisee shall promptly reimburse Renton for any and all Costs incurred by Renton while responding to any emergency involving public safety. 5.7. Reimbursement period: Franchisee shall reimburse Renton within forty-five (45) days of Renton's submittal of an itemized billing for reasonably incurred Costs, itemized by project,for Franchisee's proportionate share of all actual, identified expenses incurred by Renton in planning, constructing, installing, repairing, altering, or maintaining any city facility due to the presence in the Public Way of Franchisee's Facilities. SECTION VI: Assignment and Transfer of Franchise 6.1 Assi�nment: Franchisee may not assign, dispose of, lease, sell, transfer, or permit to be forfeited this Franchise, either in whole or in part, without the written consent of the City Council of Renton by passage of an ordinance or resolution. Such consent shall not be deemed to waive any of Renton's rights to subsequently enforce Franchise related non-compliance issues that existed at or before Renton's consent. Any telecommunications assignee or transferee shall, at least thirty (30) days prior to the date of any assignment or transfer, file written notice of the 10 ORDINANCE N0. 5845 assignment or transfer with Renton, together with its written acceptance of all of the Franchise terms and conditions. The Franchise terms and conditions shall be binding upon the Parties' respective assigns and successors. Notwithstanding the foregoing, Franchisee may pledge the Franchise for security purposes only with the City Council's consent, and consent shall be required for Franchisee to transfer the Franchise or Facilities to a creditor. The rights of any transferee are subject at all times to the terms and conditions of this Franchise, and no transferee will have any greater rights under this Franchise than the rights of Franchisee. 6.2 Acceptance: If Renton consents,within thirty(30)days of that consent, Franchisee shall file with Renton a written instrument evidencing such sale, assignment or transfer of ownership, with the assignee(s) or transferee(s) acceptance of the Franchise and all of its terms and conditions. SECTION VII: Compliance with Laws- Reservation of Powers and Authority 7.1. Compliance: In every aspect related to this Franchise, including but not limited to all Work, Franchisee shall comply with all applicable Laws, whether specifically mentioned in this Franchise or not. 7.2. Incorporation of RMC 5-19, Telecommunications Licenses and Franchises: The conditions, provisions, requirements and terms and of RMC Chapter 5-19 are fully incorporated by reference into this franchise agreement, unless this agreement requires something different. 7.3. Le�itimate 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 11 ORDINANCE N0. 5845 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 faw or the WUTC order or action establishing a basis for Franchisee's actions related to a specific Franchise issue. SECTION VIII: Non-exclusive Franchise 8.1 Non-exclusive: As provided in subsection 3.4, this Franchise is non-exclusive, and as a result, Renton expressly reserves the right to grant other or further franchises or to use the Franchise Area itself; provided that such uses do not unreasonably interfere with Franchisee's use and placement of its Facilities in any Rights-of-Way and/or any Franchise Area. 8.2 Renton's Use of Franchise Area: This Franchise shall not prevent, prohibit, limit or affect Renton's use of the Franchise Area, consistent with this Franchise; or Renton's jurisdiction over the Franchise Area. The Parties agree that Renton reserves and retains all of its statutory, inherent and other powers and franchise authority, as they exist or shall exist. SECTION IX: Permits, Construction and Restoration 9.1 Free Passa�e of Traffic: Franchisee shall at all times maintain its Facilities within the Franchise Area so as not to unreasonably interfere with the free passage of traffic, pedestrians or the use and enjoyment of adjoining property. Franchisee shall at all times post and maintain proper barricades and comply with all applicable Laws, safety regulations and standards during such period of construction. 12 ORDINANCE N0. 5845 9.2 Permit Application Required: Except in the event of an emergency, Franchisee shall first obtain all required documentation and approvals, including permits from Renton to perform Work on Franchisee's Facilities within the Franchise Area. The permit application shall contain detailed plans, maps and specifications showing the position, depth and location of all such Facilities in relation to existing Franchise Area, collectively referred to as the "Plans." The Plans shall specify the class and type of material and equipment to be used, manner of excavation, construction, installation, backfill, erection of temporary structures and facilities, erection of permanent structures and facilities, traffic control, traffic turnouts and road obstructions, and all other necessary information. Franchisee shall submit to Renton as-built plans and, when available, digital facility location data in a format compatible with Renton's geographic Information system. Such Work shalt only commence upon the issuance of required permits, and payment of the associated fees, which permits shall not be unreasonably withheld or delayed after submission of a complete application. Franchisee shall further inform Renton of any time or date that Franchisee is performing Work within the Franchise Area to allow Renton to inspect such work. 9.3 Borin� Required: Work involving undergrounding of Franchisee's facilities within city streets shall be accomplished through boring rather than open trenching whenever reasonably feasible. Franchisee will CCTV all Renton owned sewer and storm drain lines on the boring route following completion of the boring work and prior to activating the facility being constructed to verify that these Renton owned lines were not damaged by the boring work. Upon request from Franchisee, Renton may allow for other methods to meet the requirement as may be approved by Renton as part of permitting. 13 ORDINANCE N0. 5845 9.4 Facilitv Placement: The Parties intend that the specific location of Facilities within the Franchise Area (and similar facility-related matters of a specific nature requiring detailed case-by-case analysis) is to be determined in accordance with applicable Laws(including, without limitation, rights of appeal). 9.5 Latera) Support: Whenever Work on Facilities have caused or contributes to a condition that in the City of Renton's sole determination would substantially impair or substantially impairs the lateral support of the Franchise Area, Renton may direct Franchisee, at Franchisee's sole expense, to take such actions as are reasonably necessary within the Franchise Area to repair and/or not impair the lateral support. If Franchisee fails or refuses to take prompt action, or if an emergency situation requires immediate action, Renton may enter the Franchise Area and take any action necessary to protect the public, any Public Way, Public Property, and Rights-of-Way, and Franchisee shall be liable to Renton for all costs, fees, and expenses resulting from that necessary action. This provision shall survive the expiration, revocation or termination of this Franchise for a period of five (5) years. 9.6 Limits on Construction: No park, public square, golf course, street Rights-of-Way or public place of like nature shall be bored, trenched, excavated or damaged by Franchisee if there is a substantially equivalent alternative. The determination of there being a substantially equivalent alternative shall be at the sole determination of Renton. 9.7 Bond Requirement: Before undertaking any of the Work authorized by this Franchise, as a condition precedent to the Renton's issuance of any permits, Franchisee shall, upon the Renton's request, furnish a bond executed by Franchisee and a corporate surety authorized to operate a surety business in the State of Washington, in such sum as may be set 14 ORDINANCE N0. 5845 and approved by Renton as sufficient to ensure performance of Franchisee's obligations under this Franchise. Franchisee shall post a Performance Bond in the amount of twenty-five thousand dollars ($25,000) that shall remain in effect for the term of this Franchise. The bond shall be conditioned so that Franchisee shall observe all the covenants, terms and conditions and shall faithfully perform all of the obligations of this Franchise, and to repair or replace any defective work or materials discovered in the Franchise Area. The bond shall ensure the faithful performance of Franchisee's obligations under the Franchise, including, but not limited to, Franchisee's payment of any penalties, claims, liens, or fees due Renton that arise by reason of the operation, construction, or maintenance of the Facilities within the Franchise Area. Franchisee shall pay all premiums or other costs associated with maintaining the bond. Additionally, if Renton determines that the Performance Bond is inadequate to ensure Franchisee's performance of a project, Franchisee shall post any additional bonds required to guarantee performance by Franchisee in accordance with the conditions of any permits and/or the requirements of this Franchise. In lieu of a separate bond for routine individual projects involving work in the Franchise Area, Franchisee may satisfy Renton's bond requirements by posting a single on-going performance bond in an amount approved by Renton. 9.8 Workmanship: All Work done by Franchisee or at Franchisee's direction or on its behalf, including all Work performed by contractors or subcontractors, shall be considered Franchisee's Work and shall be undertaken and completed in a workmanlike manner and in accordance with the descriptions, plans and specifications Franchisee provided to Renton, and be warranted for at least two (2) years. Franchisee's activities (including work done at Franchisee's direction or on its behalf) shall not damage or interference with other franchises, 15 ORDINANCE N0. 5845 licenses, utilities, drains or other structures, or the Franchise Area, and shall not unreasonably interfere with public travel, park uses, other municipal uses, adjoining property, and shall not endanger the safety of or injure persons and property. Franchisee's Work shall comply with all applicable Laws. 9.9 Material and Installation Methods: As a condition of receiving the privilege to Work within the Franchise Area, Franchisee shall assume full responsibility for using materials and installation methods that are in full compliance with city standards and shall verify this by the submittal of documentation of materials and testing reports when requested by Renton. All costs for performing on-site testing, such as compaction tests, shall be borne by Franchisee. 9.10 Dama�e Durin� Work: In case of any damage caused by Franchisee, or by Franchisee's Facilities to Franchise Area, Franchisee agrees to repair the damage to conditions that meet or exceed requirements established by the Department of Transportation, at its own cost and expense. Franchisee shall, upon discovery of any such damage, immediately notify Renton. Renton will inspect the damage, and set a time limit for completion of the repair. If Renton discovers damage caused by Franchisee to the Franchise Area, Renton will give Franchisee notice of the damage and set a reasonable time limit in which Franchisee must repair the damage. In the event Franchisee does not make the repair as required in this section, Renton may repair the damage, to its satisfaction, at Franchisee's sole expense. 9.11 Member of Locator Service: Franchisee shall continuously be a member of the State of Washington one number locator service under RCW 19.122 (Underground Utilities) or an approved equivalent, and shall comply with all applicable Laws. 16 ORDINANCE N0. 5845 9.12 Restoration Requirements: Franchisee shall after Work on any of Franchisee's Facilities within the Franchise Area, restore the surface of the Franchise Area and any other property within the Franchise Area which may have been disturbed or damaged by such Work. All restoration of Rights-of-Way, sidewalks and other improvements or amenities shall conform to the City of Renton Standard Specifications for Road, Bridge and Municipal Construction and the City of Renton's Trench Restoration Standards in effect at that time, and must be warranted for at least two (2) years. Restoration shall include all landscaping, irrigation systems and trees. Renton shall have final approval of the condition of the Franchise Area after restoration pursuant to applicable Laws, as they exist or may be amended or superseded, provided that such provisions are not in conflict or inconsistent with the express terms and conditions of this Franchise. 9.13 Survev Monuments: All survey monuments which are disturbed or displaced by Franchisee in its performance of any work under this Franchise shall be referenced and restored by Franchisee, in accordance with WAC 332-120 (Survey Monuments—Removal or Destruction), and other applicable laws. 9.14 Failure to Restore: If it is determined that Franchisee has failed to restore the Franchise Area in accord with this section, Renton shall provide Franchisee with written notice including a description of actions Renton believes necessary to restore the Franchise Area. If Franchisee fails to restore the Franchise Area in accord with Renton's notice within thirty (30) days of that notice, Renton, or its authorized agent, may restore the Franchise Area at Franchisee's sole and complete expense. The privilege granted under this section shall be in addition to others provided by this Franchise. 17 ORDINANCE N0. 5845 9.15 Separate Permit Approval Needed For New Telecommunications Lines: The limited privileges granted under this Franchise shall not convey any privilege to Franchisee to install any new telecommunications lines or Facilities without Renton's express prior written consent, inctuding for example, permits as provided for in this Section IX. SECTION X: Coordination and Shared Excavations 10.1 Coordination: The Parties shall make reasonable efforts to coordinate any Work that either Party may undertake within the Franchise Area to promote the orderly and expeditious performance and completion of such Work, and to minimize any delay or hindrance to any construction work undertaken by themselves or utilities within the Franchise Area. At a minimum, such efforts shall include reasonable and diligent efforts to keep the other Party and other utilities within the Franchise Areas informed of its intent to undertake Work. Franchisee and Renton shall further each exercise its best efforts to minimize any delay or hindrance to any construction work either may undertake within the Franchise Area. Any associated costs caused by any construction delays to Renton or to any contractor working for Renton due to Franchisee's failure to submit and adhere to Franchisee's plans and schedule in relocating or installing Franchisee facilities shall be the sole responsibility of Franchisee. Franchisee shall, at Renton's request, also attend construction meetings pertaining to performance of Work within the Franchise Area and shall designate a contact person to attend such meetings. 10.2 Joint Use Trenches: If Franchisee or Renton shall cause excavations to be made within the Franchise Area, the Party causing such excavation to be made shall afford the other, upon receipt of a written request to do so, an opportunity to use such excavation, provided that: (a) such joint use shall not unreasonably delay the work of the Party causing the excavation to be 18 ORDINANCE N0. 5845 made; and (b) such joint use shall be arranged and accomplished on terms and conditions satisfactory to both Parties. 10.3 Joint Use Policies: Concerning the Franchise Area, during the Franchise Term, Renton may adopt policies which encourage joint use of utility facilities within the Franchise Area. Franchisee shall cooperate with Renton and explore opportunities for joint use of the Franchise Area utility facilities that are consistent with applicable Laws and prudent utility practices. SECTION XI: Hazardous Materials 11.1 Written Approval Required: In maintaining its Facilities (including, without limitation, vegetation management activities), Franchisee shall not apply any Hazardous Substance, pesticide, herbicide, or other hazardous material within the Franchise Area without prior written approval of Renton. Renton will not unreasonably withhold approval, but such application must be in conformance to the aquifer protection regulations of Renton. If Franchisee shall first obtain Renton's approval to apply a specific product in accordance with a defined procedure on an ongoing basis throughout the Franchise Area, it shall not thereafter be necessary for Franchisee to obtain Renton's approval on each occasion such product is applied in accordance with such procedure. Franchisee shall notify Renton of any accident by Franchisee involving Franchisee's use of Hazardous Substances within the Franchise Area. 11.2 Release of Hazardous Substance: Upon notice or discovery of a significant release of any Hazardous Substance caused by Franchisee or expressly authorized by Franchisee to occur upon the Franchise Area and Facilities covered by this Franchise, Franchisee shall notify Renton within twenty-four (24) hours of discovery. If the encountered or suspected Hazardous Substances are not the result of the acts or omissions of Franchisee, Renton shall, at its own 19 ORDINANCE N0. 5845 expense, determine if the material is hazardous, in accordance with applicable Laws. If the material is found to be hazardous, Renton shall, at its own expense, if possible remove, dispose, or otherwise handle such Hazardous Substances, as necessary, in accordance with applicable Laws. If Hazardous Substances are removed, Renton also shall provide substitute nonhazardous substance(s) to replace the removed substance for Franchisee to use in its operation, if necessary. Upon approval by Renton to proceed, Franchisee shall proceed with the operations at its own cost, with no recourse against Renton for the cost of schedule delays incurred due to the delay in operation. If the encountered or suspected Hazardous Substances within the Franchise Area are the result of Franchisee's acts or omissions, Renton's characterization of the substances involved and any removal, disposal, or other handling costs incurred in connection with the removal, disposal, or handling of the hazardous substances will be at Franchisee's sole expense. Franchisee shall be solely responsible for any expense or cost related to environmental mitigation requirements imposed, by operation of applicable Laws or otherwise. SECTION XII: Emergency Work- Permit Waiver 12.1 Prompt Response Required: In the event of any emergency involving damaged Franchisee Facilities located in or under the Franchise Area, or if Franchisee's Facilities within the Franchise Area pose an immediate danger to the property, life, health or safety of any individual, Franchisee shall, upon receipt of notification from Renton of the existence of such condition, immediately take those actions as are necessary to correct the dangerous condition. 12.2 Permit Deferred: If an emergency occurs that requires Franchisee's immediate action for the protection of Facilities, Renton's property or any individual's property, life, health or safety, Franchisee may act immediately to correct the dangerous condition without first 20 ORDINANCE NO. 5845 obtaining any required permit so long as: (1) Franchisee notifies the Renton Regionat Fire Authority through the dispatch system of the emergency; and (2) Franchisee informs Renton's permitting authority of the nature, location, and extent of the emergency, and the work to be performed, prior to commencing the work if such notification is practical, or where such prior notification is not practical, Franchisee shall notify Renton's permitting authority on the next business day; and (3) such permit is obtained by Franchisee as soon as practicable following cessation of the emergency. 12.3 Public Service Obli�ations: Nothing in this section is intended, nor shall it be construed, as a hindrance to Franchisee's ability to take such actions as it deems necessary to discharge its public service obligations in accordance with the laws of the State of Washington. Nothing in this section is intended, nor shall it be construed, as preventing Renton from recovering from Franchisee, if otherwise so entitled in accordance with applicable Laws, any extraordinary costs in responding to an emergency situation involving Franchisee's Facilities. SECTION XIII: Records of Installation 13.1 Future Construction Plans: Upon Renton's written request, Franchisee shall provide to Renton copies of any plans prepared by Franchisee for potential improvements, relocations and conversions to its Facilities within the Franchise Area; provided, however, any such plans so submitted shall be for informational purposes only and shall not obligate Franchisee to undertake any specific improvements within the Franchise Area, nor shall such plan be construed as a proposal to undertake any specific improvements within the Franchise Area. 13.2 As-Built Drawin�s: Upon Renton's written request, and at no cost to Renton, Franchisee shall provide to Renton copies of drawings, maps, and records in use by Franchisee 21 ORDINANCE N0. 5845 showing the location of its Facilities at specific locations within the Franchise Area. As to any such drawings so provided, Franchisee does not warrant the accuracy of the drawings as such Facilities are shown in their approximate location. 13.3 Desi�n Locates: Upon Renton's written request, in connection with the design of any Public Works Project, Franchisee shall verify the location of its underground Facilities within the Franchise Area. 13.4 Disclosure to Third-Parties: Any drawings and/or information concerning the location of Franchisee's Facilities provided by Franchisee shall be used by Renton solely for management of the Franchise Area. Renton shall take all prudent steps reasonably necessary to prevent unnecessary disclosure or dissemination of such drawings, maps, records and/or information to any Third-Party without the prior notice to Franchisee, unless the Third-Party is an authorized governmental entity of any tier or a public records requestor. Renton will provide Franchisee with notice of any public records request for Franchisee paperwork as soon as reasonably practicable. 13.5 Utilitv Locates: Notwithstanding the foregoing, nothing in this section is intended (nor shall be construed) to relieve either Party of their respective obligations arising under applicable Laws with respect to determining the location of utility facilities. SECTION XIV: Undergrounding of Facilities Under�roundin� Required for New Facilities: Consistent with RMC 4-6-090.0 (Applicability), all new Facilities installed within the Franchise Area during the term of this Franchise shall be located underground, consistent with the RMC, unless it is unfeasible in Renton's reasonable estimation for it to be done; provided that installation of wires, cables, 22 ORDINANCE N0. 5845 conduits and similar equipment will be permitted and installed pursuant to the provisions of any applicable Laws, and subject to and accordance with any applicable Tariffs on file with the WUTC. In areas where all existing telecommunications and cable facilities are located aboveground, Franchisee may install its Facilities above ground. Any new Facilities to be located above ground shall be placed on existing utility poles. No new utility poles shall be installed in connection with placement of new aboveground Facilities. SECTION XV: Relocation of Franchisee Facilities 15.1 Relocation Required: Renton shall have prior and superior right to the use of the Franchise Area for the construction, installation, maintenance and repair of its utilities, improvements and infrastructure, and capital improvement projects, and should any conflict arise with Renton facilities, Franchisee shall, at its own cost and expense, conform to Renton's utilities, improvements and infrastructure and capital improvement projects, provided that, whenever Renton undertakes (or causes to be undertaken)any public works improvement within the Franchise Area, and such public works improvement necessitates the relocation of Franchisee's then existing Facilities within the Franchise Area, Renton shall: a. Provide Franchisee with reasonable prior notice of Renton's intent to initiate a public works improvement, and if applicable, written notice requesting such relocation; and b. Provide Franchisee with copies of pertinent portions of Renton's plans and specifications for such public works improvement. 15.2 Franchisee Relocation Plans: After receipt of such notice and such plans and specifications, Franchisee shall submit the Franchisee plan drawings for the relocation of the 23 ORDINANCE N0. 5845 Franchisee Facilities to Renton within a reasonable and agreed upon time in advance of the preparation of Renton's final plans and specifications for incorporation into Renton's construction plans. Franchisee shall complete the relocation work in a reasonable and agreed upon time period to prevent delay to Renton's project. Franchisee shall relocate such Facilities within the Franchise Area at no charge to Renton, except that if Renton pays for or reimburses the relocation costs of another telecommunications utility, under materially identical circumstances, it sha�l pay for or reimburse a proportionate share of Franchisee's relocation costs. The relocation completion date will be included in Renton's written request for said relocation to Franchisee. Franchisee shall be solely responsible for any associated cost caused by any construction delays to Renton's project due to Franchisee's failure to comply with Franchisee's plans and schedule in relocating or installing Franchisee's Facilities. 15.3 Emer�encY Relocation of Facilities: In the event an emergency posing a threat to public safety or welfare requires the relocation of Franchisee's Facilities within the Franchise Area, Renton shall give Franchisee notice of the emergency as soon as reasonably practicable. Upon receipt of notice, Franchisee shall respond as soon as reasonably practicable to relocate the affected Facilities, at Franchisee's sole expense. 15.4 Third-Partv Construction: Whenever any person or entity, other than Renton, requires the relocation of Franchisee's Facilities to accommodate the work of such person or entity within the Franchise Area; or, Renton requires any Third-Party to undertake work (other than work undertaken at Renton's cost and expense) within the Franchise Area and such work requires the relocation of Franchisee's Facilities within the Franchise Area, Franchisee may condition such relocation to require such person or entity to make payment to Franchisee, at a 24 ORDINANCE N0. 5845 time and upon terms acceptable to Franchisee for any and all costs and expenses incurred by Franchisee in the relocation of Franchisee's Facilities. 15.5 Third-Partv Construction of Citv Identified Proiect: Any condition or requirement imposed by Renton upon any Third-Party (including, without limitation, any condition or requirement imposed pursuant to any contract or in conjunction with approvals or permits obtained pursuant to any zoning, land use, construction or other development regulation)which requires the relocation of Franchisee's Facilities within the Franchise Area, then Franchisee shall relocate its Facilities; provided, however, in the event Renton reasonably determines and notifies Franchisee that the primary purpose of imposing such condition or requirement upon such Third- Party is to cause or facilitate the construction of a Public Works Project to be undertaken within a segment of the Franchise Area on Renton's behalf and consistent with Renton's Capital Investment Plan; Transportation Improvement Program; or the Transportation Facilities Program, then only those costs and expenses incurred by Franchisee in reconnecting such relocated Facilities with Franchisee's other Facilities shall be paid to Franchisee by such Third- Party, and Franchisee shall otherwise relocate its Facilities within such segment of the Franchise Area in accordance with subsection 15.1. 15.6 Alternatives: As to any relocation of Franchisee's Facilities whereby the cost and expense is to be borne by Franchisee, Franchisee may, after receipt of written notice requesting such relocation, submit in writing to Renton alternatives to relocation of its Facilities. Upon Renton's receipt from Franchisee of such written alternatives, Renton shall evaluate such alternatives and shall advise Franchisee in writing if one or more of such alternatives are suitable to accommodate the work which would otherwise necessitate relocation of Franchisee's 25 ORDINANCE N0. 5845 Facilities. In evaluating such alternatives, Renton shall give each alternative proposed by Franchisee fair consideration with due regard to all facts and circumstances which bear upon the practicality of relocation and alternatives to relocation. If Renton determines that such alternatives are not appropriate, Franchisee shall relocate its Facilities as provided in subsection 15.1. 15.7 Non-Franchise Area: Nothing shall require Franchisee to bear any cost or expense in connection with the location or relocation of any Facilities existing under benefit of easement or other rights not arising under this Franchise. 15.8 Indemnitv for Delav: 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 d,elays on Renton's construction projects arising from or caused by Franchisee's failure to remove or relocate it Facilities in a timely manner, though Franchisee shall not be liable for damages due to delays that were out of Franchisee's reasonable or expected control. SECTION XVI: Abandonment and Discontinuance of Franchisee's Facilities 16.1 Notification: Franchisee shall notify Renton of any abandonment or cessation of use of any of its Facilities within sixty (60) days after such abandonment or cessation of use. Any plan for abandonment or removal of Franchisee's Facilities within the Franchise Area must be first approved by the Administrator, and all necessary permits must be obtained prior to such Work. 16.2 Removal: In the event of Franchisee's abandonment or permanent cessation of use of any portion of its Facilities, or any portion of the Franchised Area, Franchisee shall, within one hundred and twenty (120) days after the abandonment or permanent cessation of use, 26 ORDINANCE N0. 5845 remove the Facilities at Franchisee's sole expense. However, with Renton's express written consent, Franchisee may, at Franchisee's sole cost and expense, secure the Facilities in such a manner as to cause it to be as safe as is reasonably possible, by removing all lines, conduits and appurtenances, in compliance with all Laws, and abandon them in place, provided that any aboveground Facilities shall be removed at Franchisee's sole expense. 16.3 Restoration: In the event of the removal of all or any portion of the Facilities, to the extent reasonably possible, Franchisee shall restore the Franchise Area to it pre-installation or better condition. Such restoration work shall be done at Franchisee's sole cost and expense and to Renton's reasonable satisfaction. If Franchisee fails to remove or secure the Facilities and/or fails to restore the premises or take such other mutually agreed upon action, Renton may, after reasonable notice to Franchisee, remove the Facilities, restore the premises or take such other action as is reasonably necessary at Franchisee's sole expense and Renton shall not be liable for any damages, losses or injuries. This remedy shall not be deemed to be exclusive and shall not prevent Renton from seeking a judicial order directing Franchisee to remove its Facilities. 16.4 Administrative or Abandonment Fees: Renton's consent to Franchisee's abandonment of Facilities in place shall not relieve Franchisee of the obligation and/or costs to remove, alter or re-secure such Facilities in the future in the event it is reasonably determined, as adjudged in Renton's sole discretion, that removal, alteration or re-securing the Facilities is necessary or advisable for the health,safety, necessity and/or convenience of the public, in which case Franchisee shall perform such work its sole expense. 27 ORDINANCE N0. 5845 16.5 Survival of Provisions: The Parties expressly agree that the provisions of this section shall survive the termination, expiration, or revocation of this Franchise. SECTION XVII: Termination, Violations, and Remedies 17.1 Termination: If the Franchise Term expires and if either Party states that it does not wish to renew, extend and/or continue the Franchise, this Franchise shall be terminated as of the expiration date. 17.2 Termination bv Breach: If Franchisee materially breaches or otherwise fails to perform, comply with any of the terms and conditions of this Franchise, or fails to maintain any required license, permit or approval, and fails to cure such breach or failure within thirty (30) days of Renton providing Franchisee with written notice specifying with reasonable particularity the nature of any such alleged breach or failure, or, if not reasonably capable of being cured within thirty (30) days, within such other reasonable period of time as the Parties may agree upon, Renton may terminate this Franchise, without any penalty, liability, cost or damages. 17.3 City Council Termination: This Franchise shall not be terminated except upon a majority vote of the City Council, after reasonable notice to Franchisee (which notice shall be given at least thirty (30) days before the hearing) and an opportunity to be heard, provided that if exigent circumstances necessitate immediate termination, the hearing may be held as soon as possible after the termination. 17.4 Discontinue Operations: If the Franchise is terminated, Franchisee shall immediately discontinue operation of Facilities through the Franchise Area. In such circumstances, either Party may invoke the dispute resolution provisions in Section XVIII. Alternatively, either Party may elect to seek relief directly in Superior Court, in which case the 28 ORDINANCE NO. 5845 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 Ri�ht 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 Liabilitv and Obli�ation: Termination shall not release Franchisee from any liability or obligation with respect to any matter occurring prior to such termination, and shall not release Franchisee from any obligation to remove and secure its Facilities and to restore the Franchise Area. 17.7 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, in addition to any other rights they may have,the Parties shall have the right to obtain in any court of competent jurisdiction injunctive relief to restrain any breach or threatened breach, or to specifically enforce any of the Franchise covenants should the other Party fail to perform them. 17.8 Renton's Remedies: In addition to the terms of this Franchise, or rights that Renton possesses at law or equity, Renton reserves the right to apply any remedy, including but not limited to those detailed in Sections XVIII —XX below, alone or in combination, in the event Franchisee violates any material provision of this Franchise. The remedies provided for in this 29 ORDINANCE N0. 5845 Franchise are cumulative and not exclusive; the exercise of one remedy shall not prevent the exercise of another or any rights of Renton at law, in equity, or by statutes, unless specifically waived in this Agreement or in a document signed by both parties. SECTION XVIII: Dispute Resolution 18.1 Notice of Default: If there is any alleged default as to performance under this Franchise, Renton shall notify Franchisee in writing, 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 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 promptty 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 Meetin�: 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 30 ORDINANCE N0. 5845 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 ofthe meeting shall be referred bythe Parties' representatives in writing to the Parties' senior management for resolution. If senior management is unable to resolve the dispute within twenty (20) days of referral (or such other period as the Parties may agree upon), each Party may pursue resolution of the dispute through Section XIX, Arbitration, of this Franchise. All negotiations pursuant to these procedures for the resolution of disputes shall be confidential and shall be treated as compromise and settlement negotiations for purposes of the state and federal rules of evidence. 18.3 Additional Resolution Options: If, at the conclusion of the steps provided for in subsections 18.1 and 18.2 above, Renton and Franchisee are unable to settle the dispute or agree upon the existence of a default or the corrective action to be taken to cure any alleged default, Renton or Franchisee (as Franchisee may have authority to do so) may: a. Take any enforcement or corrective action provided for by Law, including the city code; provided such action does not conflict with this Franchise's provisions, and/or; b. Demand arbitration, pursuant to Section XIX below, for disputes arising out of or related to Sections III, Grant of Franchise (or such other sections with respect to the existence of conflicts or inconsistencies with the express terms and conditions of this Franchise and any applicable Laws); XIII, Records of Installation; XIV, Undergrounding of Facilities (except as preempted by WUTC authority); and XV, Relocation of Franchisee 31 ORDINANCE N0. 5845 Facilities (excluding project delay claims exceeding thirty thousand dollars ($30,000)) of this Franchise (the "Arbitration Claims"), and/or; c. By ordinance, declare an immediate forfeiture of this Franchise for a breach or default of any material, non-Arbitration Claims, obligations under this Franchise and/or; d. Take any action to which it is entitled under this Franchise or any applicable Laws. 18.4 Continuation of Obli�ations: 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 Discoverv: 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 Compensatorv Dama�es: The arbitrators may award compensatory damages, including consequential damages. Such damages may include, but shall not be limited to: all costs and expenses of materials, equipment, supplies, utilities, consumables, goods and other items; all costs and expenses of any staff; all costs and expenses of any labor (including, but not 32 ORDINANCE N0. 5845 limited to, labor of any contractors and/or subcontractors); all pre-arbitration costs and expenses of consultants, attorneys, accountants, professional and other services; and all taxes, insurance, interest expenses, overhead and general administrative costs and expenses, and other costs and expenses of any kind incurred in connection with the dispute. The arbitrator may award equitable relief in those circumstances where monetary damages would be inadequate. 19.4 Award: Any award by the arbitrators shall be accompanied by a written opinion setting forth the findings of fact and conclusions of law relied upon in reaching the decision. The award rendered by the arbitrators shall be final, binding and non-appealable, and judgment upon such award may be entered by any court of competent jurisdiction. 19.5 Each Partv's Costs: Except as provided in subsection 19.7 below, each Party shall pay the fees of its own attorneys, expenses of witnesses, and all other expenses and costs in connection with the presentation of such Party's case including, without limitation, the cost of any records, transcripts or other things used by the Parties for the arbitration, copies of any documents used in evidence, certified copies of any court, property or city documents or records that are placed into evidence by a Party. 19.6 Arbitration Costs: Except as provided in subsection 19.7 below, the remaining costs of the arbitration, including without limitation, fees of the arbitrators, costs of records or transcripts prepared for the arbitrator's use in the arbitration, costs of producing the arbitrator's decision and administrative fees shall be borne equally by the Parties. 19.7 Costs for Multiple Arbitrations: Notwithstanding the foregoing subsections 19.5 and 19.6, in the event either Party is found during the term of this Franchise to be the prevailing party in any two (2) arbitration proceedings brought by such party pursuant to this Section X�X, 33 ORDINANCE N0. 5845 then such party shall be entitled to recover all reasonably incurred Costs, including attorneys' fees,for any subsequent arbitration brought by them in which they are found to be the prevailing p a rty. 19.8 Transcript Costs: In the event a Party makes a copy of an arbitration proceeding transcript for its use in writing a post-hearing brief, or an arbitration decision copy to append to a lawsuit to reduce the award to judgment, etc.,then that Party shall bear the cost, except to the extent such cost might be allowed by a court as court costs. SECTION XX: Alternative Remedies No provision of this Franchise shall be deemed to bar the right of Renton or Franchisee to seek or obtain judicial relief from a violation of any Franchise provision or any rule, regulation, requirement or directive promulgated for non-Arbitration Claims. Neither the existence of other Franchise remedies nor the use of such remedies shall bar or limit the right of Renton or Franchisee to recover monetary damages for violations by the other Party, or to seek and obtain judicial enforcement ofthe other Party's obligations by means of specific performance, injunctive relief or mandate, or any other remedy at law or in equity. SECTION XXI: Amendments to Franchise This Franchise may only be amended by written instrument, signed by the Parties, specifically stating that it is an amendment to this Franchise and is approved and executed in accordance with State of Washington laws. Without limitation, and unless required by any Laws, this Franchise shall govern and supersede and shall not be altered, limited, supplemented or otherwise amended by any permit, approval, license, agreement or other document required by or obtained from Renton in conjunction with Franchisee's exercise or failure to exercise any and 34 ORDINANCE N0. 5845 all benefits, privileges, obligations or duties in and under this Franchise, unless such permit, approval, �icense, agreement or other document specifically: a. References this Franchise; and b. States that it supersedes this Franchise to the extent it contains terms and conditions which alter, limit, supplement or otherwise amend the terms and conditions of this Franchise. In the event of any conflict or inconsistency between the provisions of this Franchise and the provisions of any such permit, approval, license, agreement or other document,except as expressly required by Laws and/or superseded by such permit, approval, license, agreement or other document, the Franchise provisions shall control. SECTION XXII: Indemnification 22.1 Renton: In Sections XXII and XXIII, "Renton" means the City of Renton, and its elected officials, agents, employees, officers, representatives, consultants (of any level), and volunteers. 22.2 Indemnification bv Franchisee: Franchisee shall indemnify, defend, and hold harmless Renton, from and against any and every Third-Party action, claim, cost, damage, death, expense, harm, injury, liability, or loss of any kind, in law or in equity, to persons or property, including reasonable attorneys' and experts' fees and/or costs incurred by Renton in its defense, arising out of or related to, directly or indirectly, to Franchisee's Work or abandonment of Facilities, or from the existence of Franchisee's Facilities, and the products contained in, transferred through, any signals or emissions from the Facilities, released or escaped from the Facilities, including the reasonable costs of assessing such damages and any liability for costs of investigation, abatement, correction, cleanup, fines, penalties, or other damages arising under 35 ORDINANCE NO. 5845 any Laws, including, but not limited to, Environmental Laws, and any action, claim, cost, damage, death, expense, harm, injury, liability, or loss,to persons or property which is caused by, in whole or in part, and only to the extent of, the willfully tortious or negligent acts or omissions of Franchisee or its agents, contractors (of any tier), employees, representatives or trainees related to Franchisee's granted Franchise privileges. If any action or proceeding is brought against Renton by reason of Franchisee's Facilities, Franchisee shall defend Renton at Franchisee's sole expense, provided that, for uninsured actions or proceedings, defense attorneys shall be approved by Renton, which approval shall not be unreasonably withheld. The terms of this section shall not require Franchisee to indemnify Renton against and hold harmless Renton from claims, demands or suits based upon Renton's negligent or willful conduct, and provided further that if the claims or suits are caused by or result from the concurrent negligence of (a) the Franchisee's agents, officers, or employees and (b) Renton, this provision with respect to claims or suits based upon such concurrent negligence shall be valid and enforceable only to the extent of Franchisee's negligence or the negligence of Franchisee's agents or employees except as limited in this Franchise. 22.3 Environmental Indemnification: Franchisee shall indemnify, defend, and save Renton harmless from and against any and every Third-Party action, claim, cost, damage, death, expense,harm, injury, liability,or loss,either at law or in equity,to persons or property, including, but not limited to, costs and reasonable attorneys' and experts' fees incurred by Renton, arising directly or indirectly from: (a) Franchisee's breach of any environmental Laws or Laws applicable to the Facilities, or (b) from any release of a hazardous substance on or from the Facilities, or (c) other activity related to this Franchise by Franchisee. This indemnity includes, but is not limited 36 ORDINANCE NO. 5845 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 6rought by Franchisee's own employees and the employees of Franchisee's agents, representatives, contractors (of any tier) even though Franchisee might be immune under RCW Title 51 from direct suit brought by such employees. It is expressly agreed and understood that this assumption of potential liability for actions brought by the aforementioned persons is limited solely to claims against Renton arising by virtue of Franchisee's exercise of the privileges set forth in this agreement. The obligations of Franchisee under this section have been mutually negotiated by the Parties, and Franchisee acknowledges that Renton would not enter into this agreement without Franchisee's waiver of immunity. To the extent required to provide this indemnification and this indemnification only, Franchisee waives its immunity under Title 51 RCW as provided in RCW 4.24.115 (Validity of agreement to indemnify against liability for negligence relative to construction, alteration, improvement, etc.,. .). 22.5 Real Estate Indemnitv: 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 37 ORDINANCE N0. 5845 negligence relative to construction, alteration, improvement, etc.,...), as it exists or may be amended, then, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of Franchisee, its officers, officials, employees, and volunteers and/or the contractor, or Renton, its elected officials, officers, officials, employees, and volunteers, and or the contractor, the party's liability shall be only to the extent of the party's negligence. 22.6 Notice: In the event any matter for which Renton intends to assert its rights under this section is presented to or filed with Renton, Renton shall promptly attempt to notify Franchisee in accordance with Section XXV of this Franchise, and Franchisee shall have the privilege, at its election and at its sole costs and expense, to settle and compromise such matter as it pertains to Franchisee's responsibility to indemnify, defend and hold harmless Renton. In the event any suit or action is started against Renton based upon any such matter, Renton shall likewise promptly attempt to notify Franchisee, and Franchisee shall have the privilege, at its election and at its sole cost and expense,to settle and compromise such suit or action, or defend the same at its sole cost and expense, by attorneys of its own election, as it pertains to Franchisee's responsibility to indemnify, defend and hold harmless Renton. Franchisee's indemnification obligations do not apply to the extent that Renton fails to provide attempt to notice in accordance with Section XXV of this Franchise, and such failure materially prejudices Franchisee or the defense of an action, claim, cost, damage, death, expense, harm, injury, liability, or loss of any kind. 22.7 Recovery of Citv 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 38 ORDINANCE NO. 5845 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 Ne�otiated: THE PARTIES HAVE SPECIFICALLY NEGOTIATED SECTION XXII, INDEMNIFICATION. SECTION XXIII: Insurance 23.1 Insurance Required: Franchisee shall procure and maintain for the duration of the Franchise, insurance, or provide evidence of self-insurance, against all claims for injuries to persons or damages to property which may arise from or in connection with the exercise of the privileges granted by Franchise to Franchisee. Franchisee shall provide to Renton an insurance certificate, and/or a certificate of self-insurance, together with an blanket additional insured endorsement on the general and automotive liability policies, including Renton as an additional insured as their interest may appear under this Agreement upon Franchisee's acceptance of this Franchise, and such insurance certificate shall evidence the following coverages: a. Commercial �eneral liabilitv insurance including but not limited to, blanket contractual, property damage, premises-operations, explosion, collapse and hazard, underground hazard (XCU) and products completed hazard, with limits of five million 39 ORDINANCE N0. 5845 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 liabilitv 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 timits consistent with the Industrial Insurance laws of the State of Washington; and d. Pollution liabilitv with a limit not less than one million dollars($1,000,000)for each occurrence, and two million dollars ($2,000,000) in the aggregate, for pollution condition arising out of or resulting from the use and occupancy of the premises and the operations conducted thereon. 23.2 Deductibles: All deductibles shall be the sole responsibility of Franchisee. The insurance certificate required by this section shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the aggregate limits of the insurer's liability. 23.3 Additional Insured: Renton, its officers, officials, employees, and volunteers shall be included as an additional insured as their interest may appear under this Agreement on the commercial general liability and commercial automobile liability insurance, as respects work performed by Franchisee and the blanket additional insured endorsement shall be included with on the certificate of insurance or certification of self-insurance. 23.4 Primarv 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 40 ORDINANCE NO. 5845 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 Covera�e: Franchisee's insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. 23.8 Survival: The indemnity and insurance provisions under Sections XXII and XXIII shall survive the termination of this Franchise and shall continue for as long as Franchisee's Facilities remain in or on the Franchise Area or until the Parties execute a new Franchise that modifies or terminates these indemnity or insurance provisions. 41 ORDINANCE N0. 5845 SECTION XXIV: Discrimination Prohibited In connection with this Franchise, including and not limited to all Work, hiring and employment, neither Franchisee nor its employees, agents, subcontractors, volunteers or representatives shall discriminate on the basis of race, color, sex, religion, nationality, creed, marital status, sexual orientation or preference, age (except minimum age and retirement provisions), honorably discharged veteran or military status, or the presence of any sensory, mental or physical handicap, unless based upon a bona fide occupational qualification in relationship to hiring and employment, in employment or application for employment or in the administration of the de�ivery of services or any other benefits under this agreement. Franchisee shall comply fully with all applicable Laws that prohibit such discrimination. A copy of this language must be made a part of any contractor or subcontractor agreement. SECTION XXV: Notice 25.1 Whenever notice to or notification by any Party is required,that notice shall be in writing and directed to the recipient at the address set forth below, unless written notice of change of address is provided to the other Party. Any notice or information required or permitted to be given to the Parties under this Franchise may be sent to following Addresses unless otherwise specified: City Address: City of Renton Administrator, Public Works Department 1055 South Grady Way Renton, WA 98057 Phone: (425) 430-7311 Company Address: MCIMETRO ACCESS TRANSMISSION SERVICES, CORP. D/B/A VERIZON ACCESS TRANSMISSION SERVICES 42 ORDINANCE N0. 5845 ATTN: Franchise manager 600 Hidden Ridge Mailcode: HQE02G295 Irving, TX 75038 With Copies to: Verizon 1320 N. Courthouse Road, Suite 900 Arlington, VA, USA 22201 Attn: Vice President and Deputy General Counsel, Network Operations 25.2 If the date for making any payment or performing any act is a legal holiday, payment may be made or the act performed on the next succeeding business day which is not a legal holiday. 25.3 The Parties may change the address and representative by providing written notice of such change by accepted e-mail or certified-mail. All notices shall be deemed complete upon actual receipt or refusal to accept delivery. Facsimile or a .pdf e-mailed transmission of any signed original document and retransmission of any signed facsimile transmission shall be the same as delivery of an original document. SECTION XXVI: Miscellaneous 26.1 As Is: Franchisee agrees and accepts the Franchise Area in an "as is" condition. Franchisee agrees that Renton has never made any representations, implied or express warranties, or guarantees as to the suitability, security or safety of the location of Franchisee's Facilities or the Franchise Area, or possible hazards or dangers arising from other uses or users of the Franchise Area, Rights-of Way, Public Property, and Public Ways including any use by Renton, the general public, or by other utilities. As to Renton and Franchisee, Franchisee shall 43 ORDINANCE N0. 5845 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 Assi�nees 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 Attornevs' Fees: Except as provided in Section XIX, if a suit or other action is instituted in connection with any controversy arising out of this Franchise, the prevailing party shall be entitled to recover all of its Costs, including such sum as the court may judge as reasonable for attorneys' fees, costs, expenses and attorneys' fees upon appeal of any judgment or ruling. 26.4 Conflicts: If there is a conflict between this and any previous Franchise between the Parties, the terms of this Franchise shall supersede the terms of the previous Franchise. 26.5 Contractors (of anv tier): Franchisee's contractors may act on Franchisee's behalf to the extent that Franchisee permits its contractors to do so. Franchisee is responsible for ensuring that Franchisee's contractors have every obligation, duty and responsibility that Franchisee has in discharging its duties related to this Franchise agreement. 26.6 Eminent Domain: This Franchise shall not preclude a governmental body from acquiring the Franchise Area by lawful condemnation, or Renton from acquiring any portion of the Facilities by lawful condemnation. In determining the Facilities' value, no value shall be attributed to the right to occupy the Franchise Area. 26.7 Force Maieure: In the event that Franchisee is prevented or delayed in the performance of any of its obligations under this Franchise by reason(s) beyond the reasonable control of Franchisee, then Franchisee's performance shall be excused during the Force Majeure 44 ORDINANCE N0. 5845 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, 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. 45 ORDINANCE N0. 5845 26.10 Governin� 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 Superior Court for the State of Washington at the Maleng Regional Justice Center, Kent, Washington. 26.12 No Dutv bv 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 Chan�es: Franchisee shall, when making application for any changes in Tariffs affecting the provisions of the Franchise, notify Renton in writing of the application and provide Renton with a copy of the submitted application within five (5) calendar days of filing with the WUTC. Franchisee shall further provide Renton with a copy of any actual approved Tariff(s) affecting the provision of this Franchise. 26.14 Other Obli�ations: This Franchise shall not alter, change or limit Franchisee's obligations under any other agreement or its obligations as it relates to any other property or endeavor. 46 ORDINANCE NO. 5845 26.15 Renton's Police Powers: Nothing in this Franchise shall diminish, or eliminate, or be deemed to diminish or etiminate that governmental or police powers of Renton, including the right to create new Laws or modify existing Laws. 26.16 Public Document/Public Disclosure: This Franchise will be considered a public document and will be available for reasonabte inspection and copying by the public during regular business hours. This document may be disclosed pursuant to RCW 42.56 (Public Records Act). 26.17 Section Headin�s:The Section headings in this Franchise are for convenience only, and do not purport to and shall not be deemed to define, limit, or extend the scope or intent of the section to which they pertain. 26.18 Severabilitv: In the event that a court or agency of competent jurisdiction declares a material provision of this Franchise to be invalid, illegal or unenforceable, the Parties shall negotiate in good faith and agree, to the maximum extent practicable in light of such determination, to such amendments or modifications as are appropriate so as to give effect to the intentions of the Parties. If severance from this Franchise of the particular provision(s) determined to be invalid, illegal or unenforceable will fundamentally impair the value of this Franchise, either Party may apply to a court of competent jurisdiction to reform or reconstitute the Franchise so as to recapture the original intent of said particular provision(s). All other provisions of the Franchise shall remain in effect at all times during which negotiations or a judicial action remains pending. 26.19 Survival: With respect only to matters arising during the period of time this Franchise shall be in full force and effect,the Parties intend that any term or condition applicable to such matters shall survive the expiration or termination of this Franchise to the extent such 47 ORDINANCE N0. 5845 survival can be reasonabiy inferred under the circumstances presented and to the extent such an inference is necessary to prevent substantial injustice to an injured party. 26.20 Third-Parties: The Parties do not create any obligation or tiability, or promise any performance to, any Third-Party, nor have the Parties created any Third-Party right to enforce this Franchise beyond what is provided for by Laws. "Third-Parties" are any party other than Renton and Franchisee. This Franchise shall not release or discharge any obligation or liability of any Third-Party to either Party. 26.21 Time of the Essence: Whenever this Franchise sets forth a time for any act to be performed, such time shall be deemed to be of the essence, and any failure to perform within the allotted time may be considered a material violation of this Franchise. SECTION XXVI1: 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 COUNCII this 12th day of June, 2017. . Jason A. eth, City erk APPROVED BY THE MAYOR this 12th day of June, 201 . Denis Law, Mayor 48 ORDINANCE N0. 5845 Approved as to form: ���� ' Shane Moloney, City orney ��r""'""`"'�����, `���.�G�.��{ O F�► ''��.�. `,,, ``�,�,,,,,,����,,,,���,F',`�,�,� Date of Publication: 6/16/2017 (summarv) : ' - ,�_ S�� ''=Z; ORD:1969:5/3/17:scr ; � " �`91. ; * _ �i O�'0 ����4 O�� � ��ii �,Q �����iuut������� O^ ��� /����r��F�SEPZ`6;�````. 49 ORDINANCE N0. 5845 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: � ` , 2017. MCIMETRO ACCESS TRANSMISSION SERVICES, LLC CORP. D/B/A VERIZON ACCE55 ANSMISSION SERVICES Ro ert e Director Network Engineering & Operations 50 ORDINANCE N0. 5845 Attachment 1 �� r , __ �:����,. _ , � -� -- Pr EE�;1= ± f City of Renton � htERc;ER � N , r' _ . � is�nN� r� �� � W�� f� :,vE axai .. ( �) • NE4Gi;A5TLE . .1rHie . r f ..... .. .. � '�� . .� �'� � . �: fL 7 . 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