ORD 19-010ORDINANCE NO. 19-010
AN ORDINANCE OF THE CITY OF CAMAS, WASHINGTON, GRANTING
NEW CINGULAR WIRELESS PCS, LLC, A NON-EXCLUSIVE FRANCHISE
FOR TEN YEARS, TO CONSTRUCT, MAINTAIN, OPERATE, REPLACE AND
REPAIR WIRELESS COMMUNICATIONS FACILITIES IN, ALONG, UNDER,
THROUGH AND BELOW PUBLIC RIGHTS-OF-WAY OF THE CITY OF
CAMAS, WASHINGTON
WHEREAS, New Cingular Wireless PCS, LLC (''New Cingular") has requested a non-
exclusive franchise with the City of Camas ("City") for a period often years for the operation of
wireless communications facilities within the City Right-of-Way; and
WHEREAS, RCW 35A.ll.020 grants the City broad authority to regulate the use of the
public Right-of-Way; and
WHEREAS, RCW 35A.4 7.040 grants the City broad authority to grant non-exclusive
franchises; and
WHEREAS, New Cingular wishes to construct, operate and maintain wireless
communications facilities within the City Right-of-Way; and
WHEREAS, the City Council finds that it is in the best interests of the health, safety and
welfare of residents of the Camas community to enter into a non-exclusive franchise to New
Cingular for the operation of wireless communications facilities within the City Right-of-Way.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CAMAS, WASHINGTON, DO
ORDAIN AS FOLLOWS:
Section I
Grant of Franchise
The Franchise as set forth in the Franchise Agreement attached hereto as Exhibit "A" is hereby
granted according to its terms.
Section II
This ordinance shall take effect five (5) days after its publication according to law.
~ .
PASSED by the Council and APPROVED by the Mayor this al:_ day of f::;Ltlbe,r , 2019.
AP~toform:
C1Af1!1 ;----
City Attorney
SIGNE12.:~kf\-."-Oh-~ ~
Mayor
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Cler
EXHIBIT "A"
FRANCIDSE AGREEMENT FOR THE INSTALLATION AND MAINTENANCE OF
WIRELESS COMMUNICATIONS FACILITIES IN THE CITY OF CAMAS,
WASIDNGTON
Parties:
City of Camas, a Washington Municipal Corporation ("City") And
New Cingular Wireless PCS, LLC, a Delaware limited liability company ("New Cingular").
In consideration of the mutual promises set forth herein, the parties agree as follows:
Section 1. Definitions
The following terms contained herein, unless otherwise indicated, shall be defined as follows:
1.1 New Cingular: New Cingular Wireless PCS, LLC, and its respective successors and
assigns.
1.2 City: The City of Camas, a municipal corporation of the State of Washington, specifically
including all areas incorporated therein as of the effective date of this ordinance and any other areas
later added thereto by annexation or other means.
1.3 Days: Calendar days.
1.4 Facilities: All of the plant, equipment, fixtures, appurtenances, and other facilities necessary
to furnish and deliver wireless services, including but not limited to optical converters, remote
radios, multiplexers, antennas, transmitters, receivers, equipment boxes, backup power supplies,
power transfer switches, cut-off switches, electric meters, wires, lines, conduits, cables,
communication and signal lines and equipment, fiber optic cable, anchors, vaults, and all
attachments, appurtenances, and appliances necessary or incidental to distribution and use of
wireless services and all other facilities associated with the wireless communications facilities
located in the Right-of-Way, utilized by New Cingular in the operation of activities authorized by
this Ordinance. The abandonment by New Cingular of any Facilities as defined herein shall not act
to remove the same from this definition.
1.5 Franchise: This document and any amendments or modifications hereto.
1.6 Permitting Authority: The head of the City department authorized to process and grant
permits required to perform work in the City's Right-of-Way, or the head of any agency authorized
to perform this function on the City's behalf. Unless otherwise indicated, all references to
Permitting Authority shall include the designee of the department or agency head.
1. 7 Person: An entity or natural person.
1.8 Public Works Director or Director: The head of the Public Works department of the City, or
in the absence thereof, the acting director, or the designee of either of these individuals.
1.9 Right-of-Way: As used herein shall refer to the surface of and the space along and below
any street, road, highway, freeway, bridge, lane, sidewalk, alley, court, boulevard, sidewalk,
parkway, drive, utility easement, and/or road Right-of-Way now or hereafter held or administered
by the City of Camas.
1.10 Wireless Services: Wireless communications services that New Cingular may lawfully
provide in the City.
Section 2. Franchise Granted.
2.1 Pursuant to RCW 35A.47.040, the City hereby grants to New Cingular, its heirs, successors,
and assigns, subject to the terms and conditions hereinafter set forth, a Franchise for a period often
(10) years (the "Initial Term"), beginning on the effective date of this Ordinance. Following the
Initial Term, this Franchise shall automatically be renewed for three (3) additional periods of five
(5) years (each a "Renewal Term"), unless: (i) New Cingular provides the City notice of its intent
not to renew at least ninety (90) days before the expiration of the Initial Term or then current
Renewal Term, as applicable, or (ii) with respect to the second Renewal Term or third Renewal
Term, the City provides New Cingular notice of its intent not to renew at least three hundred sixty
five (365) days before the expiration of the first Renewal Term or second Renewal Term, as
applicable.
2.2 This Franchise shall grant New Cingular the right, privilege and authority to locate,
construct, operate, maintain, replace, acquire, sell, lease, and use its Facilities in the Right-of-Way
as approved under City permits issued by the Permitting Authority pursuant to this Franchise and
City ordinances.
Section 3. Nonexclusive Franchise Grant.
This Franchise is granted upon the express condition that it shall not in any manner prevent the
City from granting other or further franchises in any Right-of-Way. This Franchise shall in no way
prevent or prohibit the City from using any Right-of-Way or other public property or affect its
jurisdiction over them or any part of them, and the City shall retain the authority to make all
necessary changes, relocations, repairs, maintenance, establishment, improvement or dedication of
the same as the City may deem appropriate.
Section 4. Franchise Subject to Federal, State and Local Law.
Notwithstanding any provision contrary herein, this Franchise is subject to and shall be governed
by all applicable provisions now existing or hereafter amended of federal, State and local laws and
regulations.
Section 5. No Rights by Implication.
5.1 No rights shall pass to New Cingular by implication. Without limiting the foregoing, by way
of example and not limitation, this Franchise shall not include or be a substitute for:
5 .1.1 Any other permit or authorization required for the privilege of transacting and
carrying on a business within the City that may be required by the ordinances and laws of
the City;
5 .1.2 Any permit, agreement or authorization required by the City for Rights-of-Way
users in connection with operations on or in Rights-of-Way or public property; or
5 .1.3 Any permits or agreements for occupying any other property of the City or private
entities to which access is not specifically granted by this Franchise.
Section 6. Conveyance of Rights.
This Franchise is intended to convey limited rights and interests only as to those Rights-of-Way in
which the City has an actual interest. It is not a warranty of title or interest in any Rights-of-Way;
it does not provide New Cingular with any interest in any particular location within the Rights-of-Way;
and it does not confer rights other than as expressly provided in the grant hereof.
Section 7. No Waiver.
The failure of City on one or more occasions to exercise a right or to require compliance or
performance under this Franchise or any other applicable State or federal law shall not be deemed to
constitute a waiver of such right or a waiver of compliance or performance by the City nor to excuse
New Cingular from complying or performing, unless such right or such compliance or performance
has been specifically waived in writing.
Section 8. Other Ordinances.
New Cingular agrees to comply with the terms of any lawful, generally applicable local ordinance,
in effect upon adoption of this Franchise or as enacted or modified thereafter. In the event of a conflict
between any ordinance and a specific provision of this Franchise, the Franchise shall control,
provided however that New Cingular agrees that it is subject to the lawful exercise of the police
power of the City.
Section 9. Right-of-Way Vacation.
If any Right-of-Way or portion thereof used by New Cingular is vacated by the City during the
term of this Franchise, the City shall endeavor to specifically reserve the continued use of the
Right-of-Way by New Cingular. Unless the City specifically reserves to New Cingular the right to
continue the use of vacated Rights-of-Way, New Cingular shall, without delay or expense to the
City but upon as much advance notice as feasible under the circumstances (and in no event less
than sixty ( 60) days), remove its facilities from such Right-of-Way and restore, repair or
reconstruct the Right-of-Way where such removal has occurred. In the event of failure, neglect or
refusal of New Cingular to restore, repair or reconstruct such Right-of-Way after thirty (30) days
written notice from the City, the City may do such work or cause it to be done, and the reasonable
cost thereof shall be paid by New Cingular within thirty (30) days of receipt of an invoice and
documentation.
Section 10. Relocation of Facilities.
10.1 New Cingular agrees and covenants at no cost to the City, to relocate its Facilities when
requested to do so by the City for a public project, provided that, New Cingular shall in all such
cases have the privilege, upon approval by the City, to temporarily bypass, in the authorized
portion of the same Right-of-Way any Facilities required to be relocated.
10.2 If the City determines that a public project necessitates the relocation of New Cingular's
existing Facilities, the City shall:
10.2.1 At least seventy-five (75) days prior to the commencement of such project,
provide New Cingular with written notice of known Facilities requiring such
relocation; and
1 0.2.2 Provide New Cingular with copies of any plans and specifications pertinent to
the requested relocation and a proposed temporary or permanent relocation for New
Cingular's Facilities.
10.2.3 Meet with New Cingular, if requested, within five (5) business days to discuss the
scope, requirements and challenges of the relocation work.
10.3 After receipt of such notice and such plans and specifications and meeting, New Cingular
shall complete relocation of its Facilities at no charge or expense to the City at least ten (10) days
prior to commencement of the project.
10.4 New Cingular may, after receipt of written notice requesting a relocation of its Facilities,
submit to the City written alternatives to such relocation. The City shall evaluate such alternatives
and advise New Cingular in writing as soon as practicable if any of the alternatives is suitable to
accommodate the work that otherwise necessitates the relocation of the Facilities. If so requested
by the City, New Cingular shall submit additional information to assist the City in making such
evaluation. The City shall give each alternative proposed by New Cingular as full and fair a
consideration as the project schedule will allow. In the event the City ultimately determines that
there is no other reasonable alternative, New Cingular shall relocate its Facilities as directed by
the City and in accordance with this Section 10.
10.5 The City will notify New Cingular as soon as practical of any facilities that are not
identified during the design of the public project, but are discovered during the course of
construction and need to be relocated. New Cingu1ar will work with the City to design and
complete a relocation to facilitate the completion of the public project with minimum delay.
10.6 Failure to complete a relocation requested by the City in accordance with this Section 10 by
the date included in the notice provided for thereby may subject New Cingular to liquidated
damages as provided in Section 29 of this Franchise, except in the event New Cingular suffers a
force majeure or other event beyond its reasonable control. Alternatively, should the City's Project
be delayed as a result of New Cingular's failure to complete a relocation requested in accordance
with this Section 10 and provided New Cingular has not suffered a force majeure or other event
beyond its reasonable control, then City may, at New Cingular's sole expense, have the Facilities
relocated by City's contractor. In such event, New Cingular shall pay the cost of relocation within
30 days of submission of an invoice by City. This Section shall only apply if applied in a non-
discriminatory manner and it is necessary for all Facilities and appurtenances to be moved in the
same location.
10.7 The provisions of this Section of this Franchise shall in no manner preclude or restrict New
Cingular from making any arrangements it may deem appropriate when responding to a request
for relocation of its Facilities by any person other than the City, where the improvements to be
constructed by said person are not or will not become City-owned, operated or maintained,
provided that such arrangements do not unduly delay a City construction project. The provisions
of this Franchise are subject to RCW 35.99.060. In the event of a conflict between the provisions
of this Franchise and the RCW, the RCW shall control.
10.8 New Cingular recognizes the need for the City to maintain adequate width for installation
and maintenance of sanitary sewer, water and storm drainage utilities owned by the City and
other public utility providers. Thus, the City reserves the right to maintain clear zones within the
public right-of-way for installation and maintenance of said utilities. The clear zones for each
Right-of-Way segment shall be noted and conditioned with the issuance of each Right-of-Way
permit. If adequate clear zones are unable to be achieved on a particular Right-of-Way, New
Cingular shall locate in an alternate Right-of-Way, obtain easements from private property
owners, or propose alternate construction methods which maintain and/or enhance the existing
clear zones.
Section 11. New Cingular's Maps and Records.
As a condition of this Franchise, and at its sole expense, New Cingular shall provide the City with
typicals and as-built plans, maps, and records that show the vertical and horizontal location of its
Facilities within the Right-of-Way using a minimum scale of one inch equals one hundred feet
(1 "=100'), measured from the center line of the Right-of-Way, which maps shall be in hard copy
format acceptable to the City and in Geographical Information System (GIS) or other digital
electronic format acceptable to the City.
Section 12. Undergrounding.
12.1 This Franchise is subject to the undergrounding requirements as may be required or later
adopted by the Camas Municipal Code and consistent with applicable federal and Washington
State law. New Cingular shall install all of its Facilities (excluding antennas, equipment cabinets,
cabling and other equipment that must be above-ground in order to be functional) underground
where all adjacent existing telecommunications and cable facilities are located underground. Any
new Facilities to be located above-ground shall be placed on existing utility support structures;
provided, however, that upon demonstrating that the installation of New Cingular's Facilities on a
proposed New Cingular-owned pole is in compliance with the City's Public Works Small
Wireless Facility ("SWF") Design Standards, New Cingular may construct such pole in the
Right-of-Way; and further provided, however, New Cingular acknowledges and agrees that no
New Cingular-owned pole may be placed in the Right-of-Way without the City's prior approval
of its location and design.
12.2 New Cingular will also share information necessary to facilitate joint-trenching and other
undergrounding projects, and will otherwise cooperate with the City and other utility providers to
serve the objective to maximize utility undergrounding where possible or as required.
Section 13. Service to Public Buildings (intentionally blank)
Section 14. Excavation and Notice of Entry.
14. 1 During any period of relocation or maintenance, all surface structures, if any, shall be
erected and used in such places and positions within the Right-of-Way so as to minimize
interference with the passage of traffic and the use of adjoining property. New Cingular shall at all
times post and maintain proper barricades and comply with all applicable safety regulations during
such period of construction as required by the ordinances of the City or State law, including RCW
39.04.180, for the construction oftrench safety systems.
14.2 Whenever New Cingular excavates in any Right-of-Way for the purpose of installation,
construction, repair, maintenance or relocation of its Facilities, it shall apply to the City for a
permit to do so in accordance with the ordinances and regulations of the City requiring permits to
operate in the Right-of-Way. In no case shall any work commence within any Right-of-Way
without a permit. During the progress of the work, New Cingular shall not unnecessarily obstruct
the passage or use of the Right-of-Way, and shall provide the City with plans, maps, and
information showing the proposed and final location of any Facilities in accordance with Section
11 ofthis Franchise.
14.3 At least five (5) days prior to construction of Facilities consisting of digging, trenching,
cutting, or other activities that may impact the utilization of the Right-of-Way for more than a four
(4) hour period, New Cingular shall take reasonable steps to inform all apparent owners or
occupiers of property within fifty (50) feet of said activities that a construction project will
commence. The notice shall include, at a minimum, the dates and nature of the project and a toll-
free or local telephone number that the resident may call for further information. A pre-printed
door hanger may be used to satisfy New Cingular's obligations under this Section of this
Franchise.
14.4 At least twenty-four (24) hours prior to entering Right-of-Way within ten (10) feet of private
property to construct Facilities consisting of digging, trenching, cutting, or other activities that may
impact the utilization of the Right-of-Way, New Cingular shall post a written notice describing the
nature and location of the work to be performed adjacent to the affected private property. New
Cingular shall make a good faith effort to comply with the property owner/resident's preferences, if
any, regarding the location or placement of Facilities that protrude above the prior ground surface
level, if any, consistent with sound engineering practices.
Section 15. Stop Work.
On notice from the City that any work is being conducted contrary to the provisions of this Franchise,
or in an unsafe or dangerous manner as determined by the City, consistent with applicable law, or in
violation of the terms of any applicable permit, laws, regulations, ordinances or standards, the work
may immediately be stopped by the City. The stop work order shall:
15.1 Be in writing;
15.2 Be given to the Person doing the work and be posted on the work site;
15.3 Be sent to New Cingular by email at the address given herein, provided the recipient of such
email confirms receipt by reply email, which confirmation shall not include an automatic delivery or
read receipt;
15.4 Indicate the nature of the alleged violation or unsafe condition; and
15.5 Establish conditions under which work may be resumed.
Section 16. Emergency Work, Permit Waiver.
In the event of any emergency where any Facilities located in the Right-of-Way are broken or
damaged, or if New Cingular's construction area for their Facilities is in such a condition as to
place the health or safety of any person or property in imminent danger, New Cingular shall
immediately take any necessary emergency measures to repair or remove its Facilities without
first applying for and obtaining a permit as required by this Franchise. However, this emergency
provision shall not relieve New Cingular from later obtaining any necessary permits for the
emergency work. New Cingular shall apply for the required permits not later than the next
business day following the emergency work.
Section 17. Recovery of Costs.
New Cingular shall be subject to all permit fees associated with activities undertaken pursuant to
this Franchise or other ordinances of the City. If the City incurs any costs and/or expenses for
review, inspection or supervision of activities undertaken pursuant to this Franchise or any
ordinances relating to a subject for which a permit fee is not established, New Cingular shall pay
the City's reasonable costs and reasonable expenses. In addition, New Cingular shall promptly
reimburse the City for any costs the City reasonably incurs in responding to any emergency
involving New Cingular's Facilities. If the emergency involves the facilities of other utilities
operating in the Right-of-Way, then the City will allocate costs among parties involved in good
faith. Said costs and expenses shall be paid by New Cingular after submittal by the City of an
itemized billing by project of such costs.
Section 18. Dangerous Conditions, Authority for City to Abate.
18.1 Whenever installation, maintenance or excavation of Facilities authorized by this Franchise
causes or contributes to a condition that appears to substantially impair the lateral support of the
adjoining Right-of-Way, public or private property, or endangers any person, the City may direct
New Cingular, at New Cingular's expense, to take actions to resolve the condition or remove the
endangerment. Such directive may include compliance within a prescribed time period.
18.2 In the event New Cingular fails or refuses to promptly take the directed action, or fails to
fully comply with such direction, or if emergency conditions exist which require immediate action
to prevent injury or damages to persons or property, the City may take such actions as it believes
are necessary to protect persons or property and New Cingular shall reimburse the City for all costs
incurred.
Section 19. Safety.
19.1 New Cingular, in accordance with applicable federal, State, and local safety rules and
regulations shall, at all times, employ ordinary care in the installation, maintenance, and repair of
its Facilities utilizing methods and devices commonly accepted in their industry of operation to
prevent failures and accidents that are likely to cause damage, injury, or nuisance to persons or
property.
19.2 All of New Cingular's Facilities in the Right-of-Way shall be constructed and maintained in
a safe and operational condition, in accordance with applicable federal, State, and local safety
rules and regulations.
19.3 The City reserves the right to ensure that New Cingular's Facilities are constructed and
maintained in a safe condition. If a violation of any applicable safety regulation is found to exist,
the City will notify New Cingular in writing of said violation and establish a reasonable time for
New Cingular to take the necessary action to correct the violation. If the correction is not made
within the established time frame, the City, or its authorized agent, may make the correction. New
Cingular shall reimburse the City for all reasonable costs incurred by the City in correcting the
violation.
Section 20. Authorized Activities.
This Franchise is solely for the location, construction, installation, ownership, operation,
replacement, repair, maintenance, acquisition, sale, lease, and use of the Facilities for providing
Wireless Services. New Cingular shall obtain a separate franchise for any operations or services
other than these authorized activities.
Section 21. Administrative Fee and Utility Tax.
21.1 Pursuant to RCW 35.21.860, the City is precluded from imposing franchise fees upon a
telephone business, as defined in RCW 82.16.01 0, or a Service Provider for use of the Right-of-
Way, as defined in RCW 35.99.010, except a utility tax or actual administrative expenses related to
the franchise incurred by the City. New Cingular does hereby warrant that its operations, as
authorized under this Franchise, are those of a Service Provider as defined in RCW 35.99.010.
21.2 New Cingular shall be subject to a $5,000 administrative fee for reimbursement of costs
associated with the preparation, processing and approval of this Franchise Agreement, including
wages, benefits, overhead expenses, meetings, negotiations and other functions related to the
approval. The administrative fee excludes normal permit fees required for work in the Right-of-
Way. Payment of the one-time administrative fee is due 30 days after Franchise approval.
21.3 IfRCW 35.21.860 is amended to allow collection of a franchise fee, this Franchise
Agreement shall be amended to require franchise fee payments.
Section 22. [Intentionally omitted.]
Section 23. Indemnification.
23.1 New Cingular agrees to indemnify, save and hold harmless, and defend the City, its elected
officials, officers, authorized agents, boards and employees, acting in official capacity, from and
against any liability, damages or claims, costs, expenses, settlements or judgments arising out of,
or resulting from the granting of this Franchise or New Cingular's activities, or any casualty or
accident to Person or property that occurs as a result of any construction, excavation, operation,
maintenance, reconstruction or any other act done pursuant to the terms of this Franchise, provided
that the City shall give New Cingular timely written notice of its obligation to indemnify the City.
New Cingular shall not indemnify the City to the extent any damages, liability or claims result
from the City's negligence, willful misconduct, or breach of obligation of the City, its officers,
authorized agents, employees, attorneys, consultants, or independent contractors for which the City
is legally responsible, or for any activity or function conducted by any Person other than New
Cingular.
23.2 In the event New Cingular refuses to undertake the defense of any suit or any claim, after
the City's request for defense and indemnification has been made pursuant to the indemnification
clauses contained herein, and New Cingular's refusal is subsequently determined by a court
having jurisdiction (or such other tribunal that the parties shall agree to decide the matter), to
have been a wrongful refusal on the part of New Cingular, then New Cingular shall pay all of the
City's reasonable costs and reasonable expenses for defense of the action, including reasonable
attorneys' fees of recovering under this indemnification clause, as well as any judgment against
the City.
Should a court of competent jurisdiction or such other tribunal as the parties agree shall decide the
matter, determine that this Franchise is subject to RCW 4.24.115, 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 New Cingular and the City, its officers, employees and agents, New
Cingular's liability hereunder shall be only to the extent of New Cingular's negligence. It is further
specifically and expressly understood that the indemnification provided in Section 23 of this
Franchise constitutes New Cingular's waiver of immunity under Title 51 RCW, solely for the
purposes of this indemnification. This waiver has been mutually negotiated by the parties.
Section 24. Insurance.
24.1 Insurance Term. New Cingular shall procure and maintain for the duration of this
Franchise, insurance against claims for injuries to persons or damage to property which may be
caused, in whole or in part, by operations or activities performed by or on New Cingular's behalf
with the issuance of this franchise.
24.2 No Limitation. New Cingular's maintenance of insurance as required by the agreement
shall not be construed to limit the liability of New Cingular to the coverage provided by such
insurance, or otherwise limit the City's recourse to any remedy available at law or in equity.
24.3 Scope of Insurance. New Cingular shall obtain insurance of the types and coverage
described below:
24.3.1 Commercial General Liability insurance shall be at least as broad as Insurance
Services Office (ISO) occurrence form CG 00 01 or its equivalent and shall cover liability
caused, in whole or in part, by operations, products-completed operations, and contractual
liability. There shall be no specific exclusion for liability arising from explosion, collapse
or underground property damage. The City shall be included as an additional insured
under New Cingular's Commercial General Liability insurance policy using ISO
Additional Insured-State or Political Subdivisions-Permits CG 20 12 or a substitute
endorsement providing at least as broad coverage.
24.3 .2 Automobile Liability insurance if vehicles will be used in the performance of this
contract, covering all owned, non-owned, hired and leased vehicles. Coverage shall be at
least as broad as Insurance Services Office (ISO) form CA 00 01.
24.4 Amounts of Insurance. New Cingular shall maintain the following insurance limits:
24.4.1 Commercial General Liability insurance shall be written with limits of
$1,000,000 each occurrence, $2,000,000 general aggregate and a $2,000,000 products-
completed operations aggregate limit.
24.4.2 Automobile Liability insurance with a combined single limit for bodily injury
and property damage of $1,000,000 per accident.
24.5 Other Insurance Provision. New Cingular's Commercial General Liability insurance policy
or policies are to contain, or be endorsed to contain that they shall be primary insurance as respect
the City. Any Insurance, self-insurance, or self-insured pool coverage maintained by the City
shall be excess of the Applicant's insurance and shall not contribute with it.
24.6 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best
rating of not less than A-:VII.
24.7 Verification of Coverage. New Cingular shall furnish the City with original certificates
and a copy of the amendatory endorsements, including the additional insured endorsement,
evidencing the insurance requirements of New Cingular before issuance of the Permit.
24.8 Notice of Cancellation. New Cingular shall provide the City with written notice of any
required policy cancellation or nonrenewal that is not replaced, within two business days of their
receipt of such notice.
24.9 Failure to Maintain Insurance. Failure on the part of New Cingular to maintain the insurance
as required shall constitute a material breach of the Franchise Agreement entitling the City to
Liquidated Damages under Section 29, below, or such other and further relief provided for herein
or by law. Alternatively, the City may, after giving thirty (30) days' notice to New Cingular to
correct the breach, immediately terminate the Franchise.
24.10 Notwithstanding the foregoing, New Cingular shall have the right to self-insure the
coverages required in subsection (a). In the event New Cingular elects to self-insure its obligation
to include City as an additional insured, the following provisions shall apply (in addition to those
set forth in subsection (a)): (i) New Cingular or its parent company shall have and continuously
maintain a tangible net worth of at least two hundred million dollars ($200,000,000.00); (ii) New
Cingular continuously maintains appropriate loss reserves for the amount of its self-insurance
obligations under this Section 24, which reserves are annually approved by Ernst & Young, or any
successor auditing company; (iii) New Cingular shall undertake the defense of any self-insured
claim for which a defense and/or coverage would have been available from the insurance
company, including a defense of City, at New Cingular's sole cost and expense, with counsel
selected by New Cingular and reasonably acceptable to City; (iv) New Cingular shall use its own
funds to pay any claim or replace property or otherwise provide the funding which would have
been available from insurance proceeds but for New Cingular's election to self-insure; (v) New
Cingular shall pay any and all amounts due in lieu of insurance proceeds which would have been
payable if New Cingular had carried the insurance policies, which amounts shall be treated as
insurance proceeds for all purposes under this Franchise; and (vi) All amounts which New
Cingular pays or is required to pay and all loss or damages resulting from risks for which New
Cingular has elected to self-insure shall not limit New Cingular's indemnification obligations set
forth in this Franchise.
Section 25. Abandonment of New Cingular's Facilities.
No portion of the Facilities laid, installed, or constructed in the Right-of-Way by New Cingular
may be abandoned by New Cingular without the express written consent of the City. Any plan for
abandonment or removal ofNew Cingular's Facilities must be first approved by the Public Works
Director, which shall not be unreasonably withheld or delayed, and all necessary permits must be
obtained prior to such work.
Section 26. Restoration After Construction.
New Cingular shall, after any abandonment approved under Section 25 of this Franchise, or any
installation, construction, relocation, maintenance, or repair of Facilities within the Franchise area,
promptly complete all restoration work and promptly repair any damage caused by such work at
its sole cost and expense. New Cingular agrees to complete all restoration in accordance with the
approved permit issued by the City, consistent with the City's Engineering Design Standards, for
the work in question.
26.1 If New Cingular should fail to leave any portion of the excavation in a condition that meets
the City's specifications per the CMC, the City may, on five (5) days' notice to New Cingular,
which notice shall not be required in case of an Emergency Situation, cause all work necessary to
restore the excavation to a safe condition. New Cingular shall pay to the City the reasonable cost
of such work; which shall include, among other things, the City's overhead in obtaining
completion of said work (provided that in no event shall such overhead exceed 5% of the total
costs, fees and expenses of third parties).
26.2 Any surface or subsurface failure occurring during the term of this Agreement caused by
any excavation by New Cingular, normal wear and tear excepted, shall be repaired to the City's
specifications, within thirty (30) days, or, upon five (5) days written notice to New Cingular, the
City may order all work necessary to restore the damaged area to a safe and acceptable condition
and New Cingular shall pay the reasonable costs of such work to the City, including City overhead
(provided that in no event shall such overhead exceed 5% of the total costs, fees and expenses of
third parties).
26.3 In the event the work includes cutting and patching existing road surfaces resulting in the
degradation of the projected lifespan of the roadway, New Cingular shall compensate the City for
the reasonable projected costs resulting from the work, as estimated by the City Engineer or
designee.
26.4 New Cingular agrees that if any of its actions under the Franchise materially impair or
damage any City property, survey monument, or property owned by a third-party, New Cingular
will restore, at its own cost and expense, the impaired or damaged property to the same condition
as existed prior to such action. Such repair work shall be performed and completed to the
reasonable satisfaction of the Public Works Director.
Section 27. Bond or Letter of Credit.
Before undertaking any of the work, installation, improvements, construction, repair, relocation or
maintenance authorized by this Franchise, New Cingular shall cause to be furnished a bond or
Letter of Credit executed by a corporate surety or financial institution authorized to do business in
the State of Washington, in a sum to be set and approved by the Director of Public Works,
consistent with the provisions of the CMC, as sufficient to ensure performance ofNew Cingular's
obligations under this Franchise. The bond shall be conditioned so that New Cingular shall
observe all the covenants, terms and conditions and faithfully perform all of the obligations of this
Franchise, and to erect or replace any defective work or materials discovered in the replacement of
the City's streets or property within a period of two years from the date of the replacement and
acceptance of such repaired streets by the City.
New Cingular may meet the obligations of this Section of this Franchise with one or more bonds
acceptable to the City. In the event that a bond issued pursuant to this Section of this Franchise is
canceled by the surety, after proper notice and pursuant to the terms of said bond, New Cingular
shall, prior to the expiration of said bond, procure a replacement bond which complies with the
terms of this Section of this Franchise.
Section 28. Recourse Against Bonds and Other Security.
So long as the bond is in place, it may be utilized by the City as provided herein for reimbursement
of the City by reason of New Cingular's failure to pay the City for actual costs and expenses
incurred by the City to make emergency corrections under Section 18 of this Franchise, to correct
Franchise violations not corrected by New Cingular after notice, and to compensate the City for
monetary remedies or damages reasonably assessed against New Cingular due to material default
or violations of the requirements of City ordinances.
28.1 In the event New Cingular has been declared to be in default of a material provision of this
Franchise by the City and ifNew Cingular fails, within thirty (30) days of mailing of the City's
default notice, to pay the City any penalties, or monetary amounts, or fails to perform any of the
conditions of this Franchise, or fails to begin to perform any condition that may take more than 30
days to complete, the City may thereafter obtain from the bond, after a proper claim is made to the
surety, an amount sufficient to compensate the City for its damages. Upon such withdrawal from
the bond, the City shall notify New Cingular in writing, by First Class Mail, postage prepaid, of
the amount withdrawn and date thereof.
28.2 Thirty (30) days after the City's mailing of notice of the bond forfeiture or withdrawal
authorized herein, New Cingular shall deposit such further bond, or other security, as the City
may require, which is sufficient to meet the requirements of this franchise.
28.3 The rights reserved to the City with respect to any bond are in addition to all other rights of
the City whether reserved by this Ordinance or authorized by law, and no action, proceeding, or
exercise of a right with respect to any bond shall constitute an election or waiver of any rights or
other remedies the City may have.
Section 29. Liquidated Damages.
29.1 The City and New Cingular recognize the delays, expense and unique difficulties involved in
proving in a legal preceding the actual loss suffered by the City as a result ofNew Cingular's
breach of certain provisions of this Franchise. Accordingly, instead of requiring such proof, the
City and New Cingular agree that New Cingular shall pay to the City, the sum set forth below for
each day or part thereof that New Cingular shall be in breach of specific provisions of this
Franchise. Such amount is agreed to by both parties as a reasonable estimate of the actual
damages the City would suffer in the event of New Cingular's breach of such provisions of this
Franchise.
29.1.1 Subject to the provision of written notice to New Cingular and a thirty (30) day right
to cure period, the City may assess against New Cingular liquidated damages as follows: two
hundred dollars ($200.00) per day for any material breach of the Franchise.
29 .1.2 The City shall provide New Cingular a reasonable extension of the thirty (30) day right
to cure period described in Section 29.1.1 of this Franchise if New Cingular has commenced
work to cure the violation, is diligently and continuously pursuing the cure to completion
and requested such an extension, provided that any such cure is completed within one hundred
and twenty (120) days from the written notice of default.
29.1.3 If liquidated damages are assessed by the City, New Cingular shall pay any liquidated
damages within forty-five (45) days after they are assessed and billed.
29.1.4 In the event New Cingular fails to cure within the specified cure period, or any
agreed upon extensions thereof, liquidated damages accrue from the date the City notifies
New Cingular that there has been a violation.
29.2 The recovery of amounts under Section 29 .1.1 of this Franchise shall not be construed to
limit the liability of New Cingular under the Franchise or an excuse for unfaithful performance of
any obligation ofNew Cingular. Similarly, the parties agree imposition of1iquidated damages are
not intended to be punitive, but rather, for City cost recovery purposes.
Section 30. Remedies to Enforce Compliance.
In addition to any other remedy provided herein, the City and New Cingu1ar each reserve the right
to pursue any remedy to compel the other to comply with the terms of this Franchise, and the
pursuit of any right or remedy by a party shall not prevent such party from thereafter declaring a
breach or revocation of the Franchise.
Section 31. Modification.
The City and New Cingular hereby reserve the right to alter, amend or modify the terms and
conditions of this Franchise upon written agreement of both parties to such amendment. City
agreement shall be binding only upon City Council approval of any substantive alteration,
amendment or modification of this Agreement.
Section 32. Force Majeure.
This Franchise shall not be revoked, nor shall New Cingular be liable for damages, due to any act
or omission that would otherwise constitute a violation or breach that occurs without fault of New
Cingular or occurs as a result of circumstances beyond New Cingular's reasonable control.
Provided, however, New Cingular acts diligently to correct any such act or omission.
Section 33. City Ordinances and Regulations.
Nothing herein shall be deemed to direct or restrict the City's ability to adopt and enforce all
necessary and appropriate lawful ordinances regulating the performance of the conditions of this
Franchise, including any reasonable lawful ordinance made in the exercise of its police powers in
the interest of public safety and for the welfare of the public. The City shall have the authority at all
times to control, by appropriate lawful regulations, the location, elevation, and manner of
construction and maintenance of any Facilities by New Cingular.
New Cingular shall promptly conform to all such regulations, unless compliance would cause
New Cingular to violate other requirements of law.
Section 34. Acceptance/Liaison.
New Cingular's written acceptance shall include the identification of an official liaison who will act
as the City's contact for all issues regarding this Franchise. New Cingular shall notify the City of
any change in the identity of its liaison.
Section 35. Survival.
All of the provisions, conditions and requirements of Sections 10, Relocation of Facilities; 14,
Excavation And Notice Of Entry; 18, Dangerous Conditions; 23, Indemnification; 25,
Abandonment of New Cingular's Facilities; and 26, Restoration After Construction, of this
Franchise shall be in addition to any and all other obligations and liabilities New Cingular may
have to the City at common law, by statute, or by contract, and shall survive the City's Franchise
to New Cingular and any renewals or extensions thereof. All of the provisions, conditions,
regulations and requirements contained in this Franchise Ordinance shall further be binding upon
the heirs, successors, executors, administrators, legal representatives and assigns of the parties and
all privileges, as well as all obligations and liabilities of each party shall inure to its heirs,
successors and assigns equally as if they were specifically mentioned wherever such party is
named herein.
Section 36. Severability.
If any section, sentence, clause or phrase of this Franchise Ordinance should be held to be invalid
or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall
not affect the validity or constitutionality of any other section, sentence, clause or phrase of this
Franchise Ordinance. In the event that any of the provisions of this Franchise Ordinance or of this
Franchise are held to be invalid by a court of competent jurisdiction, the City reserves the right to
reconsider the grant of this Franchise and may amend, repeal, add, replace or modify any other
provision of this Franchise Ordinance or of the Franchise granted herein, or may terminate this
Franchise.
Section 37. WUTC Tariff Filings, Notice Thereof.
If New Cingular intends to file, pursuant to RCW Chapter 80.28, with the Washington Utilities and
Transportation Commission (WUTC), or its successor, any tariff affecting the City's rights arising
under this Franchise, New Cingular shall provide the City with fourteen (14) days prior written
notice.
Section 38. Binding Acceptance.
This Franchise shall bind and benefit the parties hereto and their respective successors and assigns.
Section 39. Assignment.
39.1 This Franchise shall not be sold, transferred, assigned, or disposed of in whole or in part
either by sale or otherwise, without the written approval of the City. The City's approval shall not
be unreasonably withheld or delayed. Any reasonable costs associated with the City's review of
any transfer proposed by New Cingular shall be reimbursed to the City by the new prospective
Franchisee, if the City approves the transfer, or by New Cingular if said transfer is not approved
by the City.
39.2 Notwithstanding the foregoing, upon thirty (30) days' written notice, New Cingular may
assign this Franchise or its rights or obligations to any person or entity controlling, controlled by,
or under common control with New Cingular as of the date of such assignment.
Section 40. Alternate Dispute Resolution.
If the City and New Cingular are unable to resolve disputes arising from the terms of the Franchise
granted herein, prior to resorting to a court of competent jurisdiction, the parties shall submit the
dispute to an alternate dispute resolution process in Clark County agreed to by the parties. Unless
otherwise agreed between the parties or determined herein, the cost of that process shall be shared
equally.
Section 41. Venue.
If alternate dispute resolution is not successful, the venue for any dispute related to this Franchise
shall be the United States District Court for the Western District of Washington, or Clark County
Superior Court.
Section 42. Entire Agreement.
This Franchise constitutes the entire understanding and agreement between the parties as to the
subject matter herein and no other agreements or understandings, written or otherwise, shall be
binding upon the parties upon execution and acceptance hereof.
Section 43. Notice.
Any notice or information required or permitted to be given to the City or to New Cingular under
this Franchise may be sent to the following addresses unless otherwise specified:
If to the City, the notice shall be sent to:
CITY OF CAMAS
City Administrator
616 NE 4th Avenue
Camas, WA 98607
If to New Cingular, the notice shall be sent to:
New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Site No. City of Camas Wireless Franchise Agreement (W A)
1025 Lenox Park Blvd NE, 3m Floor
Atlanta, GA 30319
With a copy to:
New Cingular Wireless PCS, LLC
Attn: AT&T Legal Dept-Network Operations
Site No. City of Camas Wireless Franchise Agreement (W A)
208 S. Akard Street
Dallas, TX 75202-4206
Either party can alter their official address for notifications provided in this Section of this
Franchise by providing the other party written notice thereof.
Section 44. Directions to City Clerk.
The City Clerk is hereby directed to publish this Ordinance in full and fmward certified copies of
this ordinance to New Cingular. New Cingular shall have thirty (30) days from receipt of the
certified copy of this ordinance to execute this Franchise Agreement. IfNew Cingular fails to
execute this Franchise in accordance with the above provisions, this Franchise shall be null and
void.
Section 45. Publication Costs.
New Cingular shall reimburse the City for the cost of publishing this Franchise ordinance within
thirty(30) Days of receipt ofthe City's invoice.
Section 46. Effective Date.
This ordinance shall take effect and be in full force five (5) Days after the date of publication.
Signed by the duly authorized representative of the parties as set forth below:
New Cingular City
New Cingular Wireless PCS, LLC City of Camas
a Delaware limited liability company a Washington Municipal Corporation
By: AT&T Mobility Corporation
Its: M~-(;:)_t_
By:~'-(~£. \J::s:Xi~
Name: ::>::>\.e.~ ""\""o a..._
by Shannon Turk, Mayor
Title: (. c;:::> ,. l "-.p -,q
pAs sED BY THE crTY coUNciL oN D c.._-±ok:t<" ~ 1 '2019.
ATTEST:
APPROVED AS TO FORM:
City Attorney