Ordinance 18-010 Mobilitie Franchise CITY OF SPOKANE VALLEY
SPOKANE COUNTY,WASHINGTON
ORDINANCE NO. Milo
AN ORDINANCE OF THE CI'T'Y OF SPOKANE VALLEY, SPOKANE COUNTY,
WASHINGTON, GRANTING A NON-EXCLUSIVE FRANCIIISE TO NIOBIUM, LLC, A
NEVADA METED LIABILITY COMPANY TO CONSTRUCT, MAINTAIN AND OPERATE
TELECOMMUNICATIONS FACILITIES WITHIN TIIF PUBLIC RIGHTS-OF-WAY Ole THE
CITY OF SPOKANE V. I LEY,ANIS OTHER MATTERS RELATING THERETO,
1IFREAS, RCW 35261.47.040 authorizes the City to grant, permit, and regulate "nonexclusive
franchises for the use of public streets, bridges or other public ways, structures or places above or below
the surface of the ground for railroads and other mutes and facilities for public conveyances, for poles,
conduits, tunnels, towers and structures, pipes and wires and appurtenances thereof for transmission and
distribution of electrical energy, signals and other methods of communication, for gas, steam and liquid
fuels,for water,sewer and other private and publicly owned and operated facilities for public service;"and
WIIEREAS, RCC 35A.47.040 further requires that "no ordinance or resolution granting any
franchise in a code city for any purpose shall be adopted or passed by the city's legislative body on the day
of its introduction nor for five days thereafter, nor at any other than a rcgu kir meeting nor without first being
submitted to the city attorney,nor without having been granted by the approving vote of at least a majority
of the entire legislative body,nor without being published at least once in a newspaper of general circulation
in the city before becoming effective;" and
WHEREAS,this Ordinance has been submitted to the City Attorney prior to its passage; and
WIEREA , the Council finds that the grant of the franchise contained in this Ordinance, subject
to its terms and conditions, is in the best interests of the public, and protects the health, safety, and welfare
of the citizens of this City.
NOW, THEREFORE, the City Council of the City of Spokane Valley, Spokane County,
Washington,ordains as follows:
Section 1. Definitions. For the purpose of this Ordinance, the following words and terms shall have the
meaning set forth be[ow:
"City Manager"means the City Manager or designee_
"construction"or"construct"shall mean constructing, digging,excavating, laying,testing,
operating, extending, upgrading, renewing, removing, replacing, and repairing a facility
the telecommunications facilities.
"day" shall mean a 24-hour period beginning at 12:0.1 Alit, if a thing or act is to be done
in less than seven days, intermediate Saturdays, Sundays and legal holidays shall be
excluded in the computation of time.
"franchise area" shall mean the entire geographic area within the City as it. is now
constituted or may in the future be constituted.
"hazardous substances"shall have the same meaning as RCW 70.1.05D.020(10).
Ordinance 18-010 Granting Utility Franchise-Win biEllie Page 1 of 15
"maintenance, maintaining or maintain" shall mean the work involved in the replacement
andlor repair of facilities with new facilities that are substantially identical to those being
replaced or repaired, including constructing, relaying, repairing, replacing, examining,
testing, inspecting, removing, digging and excavating, and restoring operations incidental
thereto.
"overbuilding" shall mean adding additional fiber capacity to an existing conduit housing
fiber optic cable..
"overlashing" shall mean the act of lashing new fiber optic cable to an existing aerial fiber
optic cable.
"permittee"shall mean a person or entity who has been granted a permit by the permitting
authority.
"permitting authority"shall mean the City Manager or designee authorized to process and
grant permits required to perform work in the rights-of-way.
"product"shall refer to the item, thing,or use provided by the Grantee_
"relocation" shall mean any required move or relocation of an existing installation or
equipment owned by Grantee whereby such move or relocation is necessitated by
installation, improvement, renovation, or repair of another entity's facilities in the rights-
of-way, including Grantor's facilities.
"right-of-way'shall refer to the surface of and the space along,above,and below any street,
road, highway, freeway, lane, sidewalk, alley, court, boulevard, parkway, drive, Grantee
easement, and/or public way now or hereafter held or administered by the City.
"streets"shall mean the surface of, and the space above and below,any public street, road,
alley, or highway, within the City used or intended to be used by the general public, to the
extent the City has the right to allow the Grantee to use them.
"telecommunicalions facilities" shall mean any of the plant, equipment, fixtures,
appurtenances, antennas, radios, transmitters, and other facilities necessary to Burnish and
deliver telecommunications services, including but not limited to poles with crossarins,
poleswithout crossarms,wires, lines,conduits,cables,communication and signal lines and
equipment, braces, guys, anchors, vaults, control boxes, power sources, meters, and all
attachments, appurtenances, and appliances necessary or incidental to the distribution and
use of telecommunications services_ The abandonment by (irantee of any
telecommunications facilities as defined herein shall not act to remove the same from this
definition.
Section 2. Grant of Franchise. The City of Spokane Valley, a Washington municipal corporation
(hercinafter as `'City" or lithe City"), hereby grants unto Mobilitie, LLC, a Nevada Limited Liability
Company (hereinafter "Grantee"), a franchise for a period of 10 years beginning on the effective date of
this Ordinance,to install,construct, operate,maintain,replace and use all necessary equipment and facilities
to place telecommunications facilities in, under,on,across,over,through,along,or below the public rights-
of-way located in the City of Spokane Valley, as approved under City permits issued pursuant to this
franchise (hereinafter the "franchise).
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Ordinance 15-010 Gr anLing MMMility Franchise-N1c hllirie Page 2 of 15
This franchise does not permit Grantee to use such facilities to provide cable services as defined by 47
C'.F.R. § 76,50. This franchise does not include the right to install or maintain telecommunications
facilities on, over, or above that portion of the rights-of-way utilized for vehicular travel and parking. This
franchise does not convey any right to Grantee to install its telecommunications facilities on, under, over,
or across any facility or structure owned by a third-party without such written approval of the third-party.
No substantive expansions, additions to or modifications or relocation of any of the telecommunications
facilities shall be allowed without first having received prior authorization from the City through an
amendment to this franchise or an applicable permit,
Placement of all telecommunications facilities in the rights-of-way shall comply with the Spokane Valley
Municipal Code, including applicable zoning requirements.
Section 3. Fee. No right-of-way use fee is imposed for the term of this franchise_ Any such right-of-way
use or franchise fee that may be imposed by subsequent ordinance would apply to any subsequent franchise,
if any, between the parties,
Section 4. City Use. To the extent applicable to this franchise, and only as it relates to fiber facilities
owned by Grantee,the following provisions shall apply regarding City use.
A) Grantee agrees to reserve to the City the right to access four dark fiber strands(two pair)along
the route as mutually approved by both parties at a later date,within the boundaries of the City,for
sole and exclusive municipal, non-commercial use or designation (the "City Reserved Fibers").
City agrees that it shall not use the City Reserved Fibers as a public utility provider of
telecommunications business service to the public.
B)The City has the right to access by connection to the City Reserved Fibers at existing Grantee
splice points or reasonably established access points within the City limits;provided that all splicing
shall he the sole responsibility ofCrantee, except cost,pursuant to Section 4(D), below. The City
shall provide at least 30 days' written notice of intent to access the City Reserved Fibers. Upon
any access or use of the City Reserved Fibers, City shall pay Grantee a recurring monthly charge
of $20,00 per fiber pair per mile in use by the City (the "City Fiber Rate) unless otherwise
specifically agreed by both the parties in writing and shall negotiate and enter into a"Fiber License
Agreement"which shall govern the terms and conditions for use of the City Reserved Fibers,except
cost,which is set forth herein. Said recurring monthly charge shall not be imposed until such time
as the fiber is put into use by the City,
C)In the event the City Reserved Fibers are the last fibers remaining in Grantee's fiber bundle,then
the following shall apply:
I) If the City is using the fibers,then the rate the City shall pay Grantee will change from
the City Fiber Rate to Grantee's standard commercial rate.
2) If the City is not using the fibers, the City shall have the option of abandoning the City
Reserved Fibers in lieu of paying Grantee's standard commercial rate.
If Grantee installs additional fiber capacity,the City's right to use four dark fiber strands as set forth
in subsections 1 and 2, immediately above, shall again be in effect.
D) All access, interconnection and maintenance to and on the City Reserved Fibers shall be
performed by Grantee. The City shall pay all costs associated with such work to the City Reserved
Fibers, The City Reserved Fibers shall have a term that matches the duration of this franchise
Ordinance.
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Ordinance 18-010 Granting Utility Franchise-Mobilitie Page 3 (3 15
E) Pursuant to RCW 35.99.070, at such time when Grantee is constructing, relocating, or placing
ducts or conduits in public rights-of-way,the City Manager may require Grantee to provide the City
with additional duct or conduit and related structures, at incremental cost, necessary to access the
conduit at mutually convenient locations. Any ducts or conduits provided by Grantee under this
section shall only be used for City municipal,non-commercial purposes.
1)The City shall not require that the additional duct or conduit space be connected to the
access structures kind vaults of the Grantee.
2)This section shall not affect the provision of an institutional network by a cable television
provider under federal law.
3) Grantee shall notify the City Manager at least ]4 days' prior to opening a trench at any
location to allow the City to exercise its options as provided herein.
Section 5. Recovery of Costs, Grantee shall reimburse the City for all costs of one publication of a summary
of this franchise in a local newspaper, and required legal notices prior to any public hearing regarding this
franchise, contemporaneous with its acceptance of this franchise. Grantee shall be subject to all permit and
inspection fees associated with activities undertaken through the authority granted in this franchise or under
City Code_
Section 6. Non-Exclusivity. This franchise is granted upon the express condition that it shall not in any
manner prevent the City from granting other or further franchises or permits in any rights-of-way. "ads and
other franchises shall, in no way, prevent or prohibit the City from using any of its rights-of-way or affect
its jurisdiction over them or any part of them,
Section 7. Non-Interference with /Existing Facilities. The City shall have prior and superior right to the
use of its rights-of-way and public properties for installation and maintenance of its facilities and other
governmental purposes. The City hereby retains full power to make all changes, relocations, repairs,
maintenance, establishments, improvements, dedications or vacation of same as the City may deem fit,
including the dedication, establishment, maintenance, and improvement of all new rights-of-way, streets,
avenues,thoroughfares and other public properties of every type and description. Any and all such removal
or replacement shall he at the sole expense of Grantee,unless RCW 35.99.060 provides otherwise. Should
Grantee fail to remove, adjust or relocate its telecommunications facilities by the date established by the
City Manager's written notice to Grantee and in accordance with RCW 35.99.060, the City may cause
and/or effect such removal, adjustment or relocation,and the expense thereof shall be paid by Grantee_
The owners of all utilities,public or private, installed in or on such public properties prior to the installation
of the telecommunications facilities of Grantee, shall have preference as to the positioning and location of
such utilities so installed with respect to Grantee_ Such preference shall continue in the event of the
necessity of relocating or changing the grade of any such public properties.
Grantee's telecommunications facilities shall be constructed and maintained in such manner as not to
interfere with any public use, or with any other pipes,wires,conduits or other facilities that may have been
laid in the rights-of-way by or under the City's authority. If the work done under this franchise damages
or interferes in any way with the public use or other facilities, Grantee shall wholly and at its ownexpense
make such provisions necessary to eliminate the interference or damage to the reasonable satisfaction of
the City Manager.
Section S. Construction Standards_ All work authorized and required hereunder shall comply with all
generally applicable City Codes and regulations. Grantee shall also comply with all applicable fulcra' and
Ordinance 18-010 Granting Utility Franchise-Mobilitie Page 4 of 15
state regulations, laws, and practices, Grantee is responsible for the supervision, condition, and quality of
the work done, whether it is by itself or by contractors, assigns, or agencies. Application of said federal,
state, and City Codes and regulations shall be for the purposes of fulfilling the City's public trustee role in
administering the primary use and purpose of public properties, and not for relieving the Grantee of any
duty, obligation,or responsibility for the competent design, construction, maintenance, and operation of its
telecommunications facilities. Grantee is responsible for the supervision,condition, and quality of the work
done,whether it is by itself or by contractors,assigns, or agencies.
If Grantee shall at any time be required,or plan, to excavate trenches in any area covered by this franchise,
the Grantee shall afford the City an opportunity to permit other franchisees and utilities to share such
excavated trenches, provided that: (1) such joint use shall not unreasonably delay the work of the Grantee;
and (2) such joint use shall not adversely affect Grantee's telecommunications facilities or safely thereof.
Joint users will be required to contribute to the costs of excavation and filling on a pro-rata basis.
Section 9. Protection of Monuments. Grantee shall comply with applicable state laws relating to protection
of monuments.
Section 10. Tree Trimming. Grantee shall have the authority to conduct priming and trimming for access to
Grantee's telecommunications facilities in the rights-of-way subject to compliance with the City Code. All
such trimming shall be done at Grantee's sole cost and expense.
Section 11. Emergency Response.
A. Level One Contact: In the event of an emergency or disconnect notice, the City may contact
Grantee's Network Operations Center,as follows:
Network Operations Center
Phone: (877) 244-7889
Email: mnoc@mobilitie.com
B. Level Two Contact: In the event Grantee's network operations center cannot be reached, or the
network operations center staff cannot address the emergency situation,the City may contact:
Gail Allen, Manager, Network Operations
Phone: (702) 777-4508
Email: GAllen@mobilitic.eom
Or
Nam Kang, Sr. Director,Network Operations
Phone: (312) 638-5409
Email: nam mobilitie.com
C.Level Three Contact: In the event the emergency situation calls for a coordinated effort between
the City's and Grantee's management team,the City may contact:
Scott Holt,VP,Network Operations
Phone: (206) 510-465f
Email: scott.holt(cmobilitie.com
After being notified of an emergency as provided above,Grantee shall cooperate with the City to promptly
respond with action to aid in the protection of the health and safety of the public.
Ordinance 18-01O Granting Utility Franchise-Mobilitie Page 5 of 15
In the event Grantee 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 imminent injury or damages to
persons or properly, the City may take such actions as it believes are necessary to protect persons or
property, and Grantee shall be responsible to reimburse the City for its actual, out-of-pocket costs and
expenses for such actions.
Section 12. One-Call System, Pursuant to RCS' 19.122, Grantee shall comply with Washington's One-
Call statutes.
Section 13. Safety. All of Grantee's telecommunications facilities in the rights-of-way shall be constructed
and maintained in a safe and operational condition_ Grantee shall follow all safety codes and other
applicable regulations in the installation, operation, and maintenance of the telecommunications facilities.
Section 14. Movement of Grantee's Telecommunications Facilities for Others. Whenever any third party
shall have obtained permission from the City to use any right—of-way for the purpose of moving any
building or other oversized structure,Grantee shall move, at the expense of the third party desiring to move
the building or structure, any of Grantee's telecommunications facilities that may obstruct the movement
thereof;provided that the City shall give notice to Grantee of the need to move any such facility immediately
following the City's decision to grant permission to such third party to use such right-of-way, but not less
than 14 days prior to the date that the City requires Grantee to move its telecommunication facilities; and
provided further that the path for moving such building or structure is the path of least i.nterte.renee to
Grantee's telecommunications facilities,as determined by the City in its reasonable discretion. Upon good
cause shown by Grantee, the City may require more than 14 days' notice to Grantee to move its
telecommunications facilities.
Section 15. Acquiring New Telecommunications Facilities. Upon Grantee's acquisition of any new
telecommunications facilities in the rights-of-way, or upon any addition or annexation to the City of any
area iii which Grantee retains any such telecommunications facilities in the rights-of-way, Grantee shall
submit to the City a written statement describing all telecommunications facilities involved, whether
authorized by franchise or any other fbrm of prior right, and specifying the location of all such facilities.
Such telecom muni cat ions facilities shall immediately he subject to the terms of this franchise_
Section 16. Dangerous Conditions - Authority of City to Abate. Whenever excavation, installation,
construction, repair, maintenance, or relocation of telecommunications facilities authorized by this
franchise has caused or contributed to a condition that substantially impairs the lateral support of the
adjoining right-of-way, road, street or other public place, or endangers the public, adjoining public or
private property or street utilities, the City may direct Grantee, at Grantee's sole expense, to take all
necessary actions to protect the public and property. The City may require that such action he completed
within a prescribed time, provided such time is reasonable to complete such action.
In the event that Grantee fails or refuses to promptly take the actions directed by tine City, or fails to fully
comply with such directions, or if emergency conditions exist which require immediate action, the City
may enter upon the property and take such actions as are necessary to protect the public,adjacent public or
private property, or street utilities, or to maintain the lateral support thereof, and all other actions deemed
by the City to he necessary to preserve the public safety and welfare;and Grantee shall be liable to the City
for all actual, out-of-pocket costs and expenses thereof to the extent caused by Grantee.
Section 17. Hazardous Substances. Grantee shall comply with all applicable federal, state and local laws,
statutes, regulations and orders concerning hazardous substances relating to Grantee's telecommunications
facilities in the rights .of way. Grantee agrees to indemnify the City against any claims,costs,and expenses,
of any kind, whether direct or indirect, incurred by the City arising out of the release or threat of release of
Ordinance 18-0lO Granting Utility Franchise- Mob ilitie Page 6 of 15
hazardous substances caused by Grantee's ownership or operation of its telecommunications facilities
within the City's rights-of-way.
Section 18. Environmental. Grantee shall comply with all environmental protection laws, rules,
recommendations, and regulations of the United States and the State of Washington, and their various
subdivisions and agencies as they presently exist or may hereafter be enacted, promulgated, or amended,
and shall indemnify and hold the City harmless from any and all damages arising, or which may arise, or
be caused by, or result from the failure of Grantee fully to comply with any such laws, rules,
recommendations, or regulations, whether or not Grantee's acts or activities were intentional or
unintentional, but only to the extent of such failure by Grantee. Grantee shall further indemnify the City
against all Losses,costs, and expenses(including legal expenses)which the City may incur as a result of the
requirement of any government or governmental subdivision or agency to clean and/or remove any
pollution caused by Grantee, whether said requirement is during the term of the franchise or subsequent to
its termination.
Section 19. Relocation of Telecommunications Facilities. Grantee agrees and covenants, at its sole cost
and expense, to protect, support, temporarily disconnect, relocate, or remove from any street any of its
telecommunications facilities when so required by the City in accordance with the provisions of RCW
35.99-060, provided that Grantee shall in all such cases have the privilege to temporarily bypass, in the
authorized portion of the same street upon approval by the City, any section of its telecommunications
facilities required to be temporarily disconnected or removed.
If the City determines that the project necessitates the relocation of Grantee's then-existing
teIecommunicat.ions facilities, the City shall:
A)At least 60 days'prior to the commencement of such improvement project, provide Grantee with
written notice requiring such relocation;
B) Provide Grantee with copies of pertinent portions of the plans and specifications for such
improvement project and a proposed location for Grantee's telecommunications facilities so that
Grantee may relocate its telecommunications facilities in other City rights-of-way in order to
accommodate such improvement project; and
C)After receipt of such notice and such plans and specifications,Grantee shall complete relocation
of its telecommunications facilities at no charge or expense to the City so as to accommodate the
improvement project in accordance with RCW 35.99.060(2).
Grantee may, after receipt of written notice requesting a relocation of its telecommunications facilities,
submit to the City written alternatives to such relocation- The City shall evaluate such alternatives and
advise Grantee in writing if one or more of the alternatives are suitable to accommodate the work which
would otherwise necessitate relocation of the telecommunications facilities. If so requested by the City,
Grantee shall submit additional information to assist. the City in making such evaluation. The City shall
give each alternative proposed by Grantee full and fair consideration- In the event the City ultimately
determines in its reasonable discretion that there is no other reasonable alternative, Grantee shall relocate
its telecommunications facilities as otherwise provided in this section.
The provisions of th is section shall in no mariner preclude or restrict Grantee from making any arrangements
it may deem appropriate when responding to a request for relocation of its telecommunications facilities by
any person or entity other than the City,where the telecommunications facilities to be constructed by said
person or entity are not or will not become City owned, operated or maintained facilities, provided that such
arrangements do not unduly delay a City construction project.
Ordinance S R-0]0 Granting tiLilily Franchise Mobilitic Page 7 of 15
if the City or a contractor for the City is delayed at any time in the progress of the work by an act or neglect
of the Grantee or those acting for or on behalf of Grantee, then Grantee shall indemnify, defend and hold
the City, its officers, officials, employees and volunteers harmless from any and all claims, injuries,
damages, losses or suits including attorney fees to the extent arising out of or in connection with such
delays,except for delays and damages caused by the City. This provision may not he waived by the parties
except in writing.
Section 20. Abandonment of Grantee's Telecommunications Facilities.
A.Underground facilities: Grantee shall remove any telecommunications facilities which have not
been used to provide telecommunications services for a period of at least 90 days when: (a) a City
project involves digging that wiEl encounter the abandoned facility; (b)the abandoned facility poses
a hazard to the health, safety, or welfare of the public; (c) the abandoned facility is 24 inches or
less below the surface of the rights-of-way and the City is reconstructing or resurfacing a street
over the rights-of-way; or(d)the abandoned facility has collapsed, broke, or otherwise failed 180
days.
Grantee may,upon written approval by the City, delay removal of the abandoned facility until such
time as the City commences a construction project in the rights-of-way unless (b) or (d) above
applies. When (b) or (d)applies, Grantee shall remove the abandoned facility from the rights-of-
way as soon as weather conditions allow, unless the City expressly allows otherwise in writing.
B.Aboveground facilities:Grantee shall remove any facilities which have not been used to provide
telecommunications services for a period of at least 180 days,
C. The expense of the removal and restoration of improvements in the rights-of-way that were
damaged by the telecommunications facilities or by the removal process shall be the sole
responsibility of the Grantee, If Grantee fails to remove the abandoned telecommunications
facilities in accordance with the above, then the City may incur costs to remove the abandoned
telecommunications facilities and restore the rights-of-way, and is entitled to reimbursement from
Grantee for the actual, out-of-pocket costs of such removal and restoration, including reasonable
attorneys fees and costs.
Section 21. Maps and Records Required. Grantee shall provide the City,at no cost to the City;
A)A route map that depicts the general location of the Grantee's telecommunications facilities placed
in the rights-of-way. The route map shall identify telecommunications facilities as aerial or
underground and is not required to depict cable types, number of fibers, cables, or control boxes,
electronic equipment, meters,power sources,and service lines to individual subscribers. Grantee shall
also provide an electronic map of the aerial/underground telecommunications facilities in relation to
the right-of-wity centerline reference to allow the City to add this information to the City's Geographic
Information System("GIS' program,The information in this subsection shall be delivered to the City
by December 1,annually.
B)In connection ction with the construction of any City project, Grantee shall provide to the City,upon
the City's reasonable request,copies of available drawings in use by Grantee showing the location
of such telecommunications facilities. Grantee shall field locate its telecommunications facilities
in order to facilitate design and planning of City improvement projects,
C) Upon written request of the City, Grantee shall provide the City with the most recent update
available of any plan of potential improvements to its telecommunications facilities within the
franchise area; provided,however,any such plan so submitted shall be deemed confidential and for
Ordinance 18-010 Granting Utility Franchise-Mob ilitie Page 8 of 15
informational purposes only,and shall not obligate Grantee to undertake any specific improvements
within the franchise area.
I)) In addition to the requirements of subsection (A) of Section 21,the parties agree to periodically
share GIS files upon written request,provided Grantee's GIS files are to be used solely by the City
for governmental purposes. Any files provided to Grantee shall he restricted to information
required for Grantee's engineering needs for construction or maintenance of telecommunications
facilities that are the subject of this franchise. Grantee is pruhibitcd from selling any GIS
information obtained from City to any third parties.
E)Public Record Act. Grantee acknowledges that infomiation submitted to the City may be subject
to inspection and copying under the Washington Public Record Act codified in chapter 42.56 RCW.
Grantee shall mark as "PROPRIETARY/CONFIDENTIAL" each page or portion thereof of any
documentation/information which it submits to the City and which it believes is exempt from public
inspection or copying. The City agrees to timely provide Grantee with a copy of any public
disclosure request to inspect or copy doeumentationiintbrmation which the Grantee has provided
to the City and marked as "PROPRIETARY/CONFIDENTIAL" prior to allowing any inspection
and/or copying as well as provide the Grantee with a time frame, consistent with RCW 42.56,520,
to provide the City with its written basis far non-disclosure of the requested
documentation/information_ In the event the City disagrees with the Grantee's basis for non-
disclosure, the City agrees to withhold release of the requested documentation/ information in
dispute for a reasonable amount of time to allow Grantee an opportunity to file a legal action under
RCW 42,56.540.
Section 22. Limitation on Future Work, To the extent applicable to this franchise, in the event that the
City constructs a now street or reconstructs an existing ,street, Grantee shall not be permitted to excavate
such street except as set forth in the City's then-adopted regulations relating to street cuts and excavations.
Section 23. Reservation of Rights by City. The City reserves the right to refuse any request for a permit
to extend telecommunications facilities, Any such refusal shall be supported by a written statement from
the City that extending the telecommunications facilities, as proposed, would interfere with the public
health, safety, or welfare.
Section 24. Remedies to Enforce Compliance. In addition to any other remedy provided herein, th.e City
reserves [he right to pursue any remedy to compel or force Grantee and/or its successors and assigns to
comply with the terms hereof;and the pursuit of any right or remedy by the City shall not prevent the City
from thereafter declaring a forfeiture or revocation for breach of the conditions herein.
Section 25. 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 ordinances regulating the performance of
the conditions of this franchise, including any reasonable ordinances 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 regulations the location, elevation, and manner of construction and
maintenance of any telecommunications facilities by Grantee, and Grantee shall promptly conform with all
such regulations, unless compliance would cause Grantee to violate other requirements of law.
In the event of a conflict between the Spokane Valley Municipal Code and this fralichise;the Spokane Valley
Municipal Code shall control.
Section 26. Vacation, The City may vacate any City road, right-of-way or other City property which is
subject to rights granted by this franchise in accordance with state and local law. In the event of a street
Ordinance 18-010 Granting Utility Franchise-Mobilitie Page 9 of 15
vacation,the City shall include in the vacation ordinance a reserved casement for the contimied location of
Grantee's facilities_
Section 27. Indemnification,
A) Grantee hereby covenants not to bring suit and agrees to indemnity, defend and hold harmless
the City, its officers, employees, agents and representatives from any and all claims, costs,
judgments,awards or liability to any person arising from injury,sickness or death of any person or
damage to property of any nature whatsoever to the extent relating to or arising out of Grantee's
acts or omissions under this franchise agreement; except for injuries and damages to the extent
caused.solely by the negligence or misconduct ofthe City. This includes but is not limited to injury:
1) For which the negligent acts or omissions of Grantee, its agents, servants, officers or
employees in performing the activities authorized by a franchise are a proximate cause;
2)By virtue of Grantee's exercise of the rights granted herein;
3) By virtue of the City permitting Grantee's use of the City's rights-of-ways or other
public property;
4) Based upon the City's inspection or lack of inspection of work performed by Grantee,
its agents and servants, officers or employees in connection with work authorized on the
facility or property over which the City has control, pursuant to a franchise or pursuant to
any other permit or approval issued in connection with a franchise;
5) Arising as a result of the negligent acts or omissions of Grantee, its agents, servants,
officers or employees in barricading, instituting trench safety systems or providing other
adequate warnings of any excavation, construction or work upon the facility, in any right-
of-way, or other public place. in performance of work or services permitted under a
franchise; or
6) Based upon radio frequency emissions or radiation emitted from Grantee's equipment
located upon the facility, regardless er whether Grantee's equipment complies with
applicable federal statutes and/or FCC regulations related thereto.
B) Grantee's indemnification obligations pursuant to subsection I of this section shall include
assuming liability for actions brought by Grantee's own employees and the employees of Grantee's
agents, representatives, contractors and subcontractors even though Grantee might be immune
under RCW Title 51 from direct suit brought by such an employee. It. is expressly agreed and
understood that this assumption of potential liability fbr actions brought by the aforementioned
employees is limited solely to claims against the City arising by virtue of Grantee's exercise of the
rights set forth in this franchise. The obligations of Grantee under this subsection have been
mutually negotiated by the parties, and Grantee acknowledges that the City would not enter into a
franchise without Grantee's waiver. To the extent required to provide this indemnification and this
indemnification only,Grantee waives its immunity under RCW Title 51.
C)Inspection or acceptance by the City of any work performed by Grantee at the time ofcomp letion
of construction shall not be grounds for avoidance of any of these covenants of
indemnification. Provided,that Grantee has been given prompt written notice by the City of any
such claim, said indemnification obligations shall extend to claims which are not reduced to a suit
and any claims which may be compromised prior to the culmination of any litigation or the
Ordinance 18-010 Granting Utility Franchise-Mobilitie Page 10 of 15
institution of any litigation_ The City has the right to defend or participate in the defense of any
such claim, and has the right to approve any settlement or other compromise of any such claim,
D) In the event that Grantee refuses the tender of defense in any suit or any claim, said tender
having been made pursuant to this section, and said 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 Grantee,then Grantee shall pay all of the City's actual, out-
of-pocket costs for defense of the action, including all reasonable expert witness fees, reasonable
attorney fees,the reasonable costs of the City of recovering under this subsection.
E)Grantee's duty to defend, indemnify and hold harmless City against liability for damages caused
by the concurrent negligence of(a)City or City's agents,employees,or contractors,and(b)Grantee
or Grantee's agents, employees, or contractors, shall apply only to the extent of the negligence of
Grantee or Grantee's agents, employees, or contractors. In the event that a court of competent
jurisdiction determines that this franchise is subject to the provisions of R.CW 4,24,115,the parties
agree that the indemnity provisions hereunder shall be deemed amended to conform to said statute
and liability shall be allocated as provided herein.
F)Notwithstanding any other provisions off this section, Grantee assumes the risk of damage to its
telecommunication facilities located in the rights-of-way and upon City-owned property from
activities conducted by the City,its officers,agents,employees and contractors,except to the extent
any such damage or destruction is caused by or arises from any willful or malicious action or gross
negligence on the part of the City, its officers, agents, employees or contractors. Grantee releases
and waives any and all such claims against. the City, its officers,. agents, employees or
contractors. Grantee further agrees to indemnify, hold harmless and defend the City against any
claims for damages, including, but not limited to, business interruption damages and lost profits,
brought by or under users of Grantee's facilities as the result of any interruption of service due to
damage or destruction of Grantee's facilities caused by or arising out of activities conducted by the
City, its officers, agents, employees or contractors, except to the extent any such damage or
destruction is caused by or arises from the negligence or any willful or malicious actions on the
part of the City, its officers,agents, employees or contractors.
G) The provisions of this section shall survive the expiration, revocation or termination of this
franchise.
Section 28. Insurance. Grantee shall procure and maintain for the duration of the franchise, insurance
against claims for injuries to persons or damages to property which may arise from or in connection with
the exercise of the rights,privileges and authority granted hereunder to Grantee, its agents,representatives
or employees.
Grantee's maintenance of insurance as required by this franchise shall not be construed to limit the liability
of the Grantee to the coverage provided by such insurance, or otherwise limit the City's recourse to any
remedy available at Iaw or in equity,
A)Automobile Liability insurance with limits no less than $1,000,000 Combined Single Limit per
accident for bodily injury and property damage. This insurance shall cover all owned, non-owned,
hired or leased vehicles used ill relation to this franchise. Coverage shall be written on Insurance
Services Office(ISO) form CA 00 01 or a substitute form providing equivalent liability coverage.
If necessary, the policy shall be endorsed to provide contractual liability coverage; and
B) Commercial General Liability insurance shall be written on Insurance Services Office (ISO)
occurrence form CG 00 01, or a substitute form providing equivalent liability coverage acceptable
Ordinance 1!i-010 Granting Utility Franchise;- Mobil itic k*age 11 of 15
to the City,and shall coverproducts liability_ The City shall he named as an insured under Grantee's
Commercial General Liability insurance policy using ISO Additional insured-State or Political
Subdivisions-Permits CG 20 12 or a substitute endorsement acceptable to the City providing
equivalent coverage. Coverage shall be written on an occurrence basis with limits no less than
1,000,000 Combined Single Limit per occun-ence and $2,000,000 general agegate for personal
injury, bodily injury and property damage, provided that Grantee may satisfy the coverage limits
required under this Section 28(B)through a combination of primary and umbrella or excess liability
coverage. Coverage shall include but not be limited to: blanket contractual; products/completed
operations; broad form property; explosion, collapse and underground (XCI)); and Employer's
Liability.
The insurance policies are to contain, or be endorsed to contain,the following provisions for Commercial
General Liability insurance:
A) Grantee's insurance coverage shall be primary insurance with respect to the City as outlined in
the Indemnification section of this fi.anchise, Any insurance, self-insurance, or insurance pool
coverage maintained by the City shall be in excess of Grantee's insurance and shall not contribute
with it.
B) Grantee's insurance shall he endorsed to state that coverage shall not be cancelled,except after
30 days' prior written notice has been given to the City.
Insurance is to he placed with insurers with a current A.M. Best rating of not less than A:VII.
Grantee shall famish the City with original certificates and a copy of any amendatory endorsements,
including the a.dditienal insured endorsement, evidencing the insurance requirements of the Grantee prior
to the adoption of this Ordinance.
Any failure to comply with the reporting provisions of the policies required herein shall not affect coverage
provided to the City, its officers, officials, employees or volunteers.
Section 29, Perfbrmancc Bond Relating to Construction Activity. Before undertaking any of the work,
installation, improvements, construction, repair, relocation or maintenance authorized by this franchise,
Grantee, or any parties Grantee contracts with to perform labor in the performance of this franchise, shall,
upon the request of the City, furnish a bond executed by Grantee or Grantee's contractors and a corporate
surety authorized to operate a surety husiness in the State of Washington, in such sum as may he set and
approved by the City, not to exceed $25,000, as sufficient to ensure performance of Grantee's obligations
under this franchise. The bond shall be conditioned so that Grantee shall observe all the covenants, ten-ns
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 City's road, streets, or property. Said bond shall remain
in effect for the life of this franchise. In the event Grantee proposes to construct a project for which the
above-mentioned bond would not ensure performance of Grantee's obligations under this franchise, the
City is entitled to require such larger bond as may be appropriate under the circumstances_ In the event the
City draws on the surety for purposes set forth in this franchise such that the remaining value of the surety
falls below $10,000, the City may request that the surety be renewed to the full value of $25,000 as a
condition of doing any additional work in the rights-of-way.
Section 30. Modification. The City and Grantee hereby reserve the right to alter, amend or modify the
terms and conditions of this franchise upon written agreement of both parties to such alteration,amendment
or modification_
Ordinance 1 8-010 Granting tltiliCy Franchi:cc- Mobilitie Pagc 12 srl 15
Section 31. Forfeiture and Revocation. If Grantee willfully violates or fails to comply with any of the
provisions of this franchise, or through willful or unreasonable negligence fails to heed or comply with at
least 15 days' notice given Grantee by the City under the provisions of this franchise, and an adequate
opportunity of at least ]5 days to°lire the violation or non-compliance has been given in writing to Grantee,
then Grantee shall, at the election of the City, forfeit all rights conferred hereunder and this franchise may
be revoked or annulled by the City after a hearing held upon reasonable notice to Grantee_ The City may
elect, in lieu of the above and without any prejudice to any of its other legal rights and remedies, to obtain
an order from the Spokane County Superior Court compelling Grantee to comply with the provisions of
this franchise and to recover damages and costs incurred by the City by reason of Grantee's failure to
comply with the provisions of this franchise.
Grantee may terminate this Agreement by giving at least 30 days' written notice. Company shall not he
subject to any penalty or fee for terminating this Agreement prior to the end of the term of the Agreement.
Section 32. Assignment. This franchise may not he assigned or transferred without the written approval
of the City, except that Grantee can assign this franchise without approval of, but upon notice to the City
from any parent,affiliate or subsidiary of Grantee, or any person, firm, or corporation that shall control, be
under the control of, or be under common control with Grantee, or to any entity that acquires all or
substantially all the assets or equity of Grantee, by merger, sale, consolidation or otherwise_
Section 33. Acceptance_ Not later than 60 days after passage of this Ordinance, Grantee shall accept the
franchise herein by filing with the City Clerk an unconditional written acceptance thereof. Failure of
Grantee to so accept this franchise within said period of time shall be deemed a rejection thereof by Grantee,
and the rights and privileges herein granted shall,after the expiration of the 60-day period,absolutely cease,
unless the time period is extended by a subsequent ordinance passed expressly for that purpose.
Section 34. SurOfal. All of the provisions, conditions and requirements of sections: 5, 6, 7, 13, 16, 17,
18, 19, 20, 27, 28, 29, 37, 38 and 39 of this franchise shall he in addition to any and all other obligations
and liabilities Grantee may have to the City at common law, by statute, by ordinance, or by contract, and
shall survive termination of this franchise, and any renewals or extensions hereof. All of the provisions,
conditions,regulations and requirements contained in this franchise shall further he binding upon the heirs,
successors, executors, administrators, Iegal representatives and assigns of Grantee and City and all
privileges,as well as all obligations and liabilities of Grantee shall inure to their respective heirs,successors
and assigns equally as if they were specifically mentioned herein.
Section 35. Severability. If any section, sentence,clause or phrase of this Ordinance should be held to he
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 Ordinance.
In the event that any of the provisions of the franchise are held to be invalid by a court of competent
jurisdiction,the City reserves the right to reconsider the grant of the franchise and may amend, repeal,add,
replace or modify any other provision of the franchise,or may terminate the franchise.
Section 36. Renewal. Application for extension or renewal of the term of this franchise shall he made no
later than 180 days of the expiration thereof. In the event the time period granted by this franchise expires
without being further renewed by the City,the terms and conditions hereof shall continue in effect until this
franchise is either renewed or terminated.
Section 37. Notice_ Any notice or information required or permitted to be given by or to the parties under
this franchise (except with respect to notices given to Grantee in the event of emergency, in which ease the
notice information and procedure provided in Section 11 shall apply)may be sent to the following addresses
unless otherwise specified, in writing:
Ordinance l8-010 Granting Utility Franchise-Mobilitie Page 13 0115
The City: City of Spokane Valle+
Attn: City Clerk
10210 East Sprague Avenue
Spokane Valley, WA 99206
Grantee: MOOBILITIB,LLC
Attn: Legal. Department
660 Newport Center Drive, Suite 200
Newport Beach,CA 92660
legal(amobilitic.com
(877) 999-7070
With a copy to:
MOBILFI1E, LLC
Attn:Asset Management
660 Newport Center Drive,Suite 200
Newport Beach,CA 92660
WestAssetMgmt@mobilitie.com
(877) 999-7070
Section 38. Choice of Law. Any litigation between the City and Grantee arising under or regarding this
franchise shall occur, if in the state courts, in the Spokane County Superior Court, and if in the federal
courts, in the United States District Court for the Eastern District of Washington.
Section.39. Non-Waiver. The City shall be vested with the power and authority to reasonably regulate the
exercise of the privileges permitted by this franchise in the public interest Grantee shall not he relieved of
its obligations to comply with any of the provisions of this franchise by reason of any failure of the City to
enforce prompt compliance,nor does the City waive or limit any of its rights under this franchise by reason
of such failure or neglect.
Section 40. 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,
sha[I he binding upon the parties upon execution and acceptance hereof. This franchise shall also supersede
and cancel any previous right or claim of Grantee to occupy the City roads as herein described.
Section 41. Effective]date, This Ordinance shall be in full force and effect five days after publication of
the Ordinance or a summary thereof occurs in the official newspaper of the City of Spokane Valley as
provided by law.
PASSED by the City Council this 10"' day of A ril,2018.
AT .F l,. R.. Higgins,
dim
r
hristire Bainbridge, City Clerk
Approved as I P ni:
� r
Date of Publication: --112-9—a710/8
f .{ . . Effective Date: - - di
Offie the Cit Oromey
Ordinance 18-010 Granting Utility Franchise-Mobilitie Page 14 of 15
Accepted by .ob.il.itie, LLC:
By: ��_--------."
Name and official capacity
The Grantee, Mobilitie,LLC, for itself, and for its successors and assigns, does accept all of the terms and
conditions of the foregoing franchise.
TN iESS WHEREOF, C. hill shvitof G.(123 has signed I 's iota lay if_
2018. Subscribed and sworn'before e this L day of 1 , 2018.
-,,634.7,--,,,-__. ,:,TKENZIt GEE efrw l
QST M. 02151196 z Notary Public in and for the S ate of C
E- as *kin Public . Caillnrnia 3 residing in .r • _ 1 #
Z Vel __
i,_4.si.: , Q.1 a.4.5-610,4 .29,2020i' My commission expo L I / •
Ordinance 18-010 Granting Utility Franchise-Mobilitie Page 15 of 15
MOINV-3 OP ID: NM
CERTIFICATE OF LIABILITY INSURANCE DRTEp54UGWYYY*yJ
0411312Q16
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS
I CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES
BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING 1NSURER(S}, AUTHORIZED
REPRESENTATIVE OR PRODUCER,AND TI4E CERTIFICATE HOLDER.
IMPORTANT: If the 4efliGcate holder Is an ADDITIONAL INSURED, the poticylies) must be satdorsed, If SUBROGATION IS WAIVED, subject to
the terms and Gondlllons of the policy, certain pollees may require an endorsement, A stalenient on this certificate does not confer rights to the
certificate holder in lieu of such endorsement s}.
PRODUCER comrAmum_ r Brent Jetton, AAI,CIC.
Silverstone Insurance Services MibN! I '' N -980 765
Jetton &Asso0 Ins Sys Inc ; Ic Ertl; FImo, N
P.O. Box 1200 (LIc 40004821J) AO®FiEK
Rancho Cucamonga,. CA 01729-1200
Erect Salton,AAI,CIC INSLl ER{SJ AFFORMI COVERAGE IanIC/
LNalJRE2A-Federal Insurance Company 2.0261
INSURED MobIllde, LLC R./SURER El,Great American ESS Ins Co 87532
660 Newport Center Or MOO INSURERC.Lin derwrIters Lloyds London IL 16792
Newport Beach, CA 92660
_ INSURERF_
COVERAGES CERTIFICATE NUMBER.. REVISION NUMBER:
THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED. NOTWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO 1 JHICH THIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS-
INSR ADUL SLII3R policy EFF POLICY OM UNITS
LTR TYPE OFIPISURANCE (NSR min ro CYNUI IPAUDc'rC lMIAMID. N) _
GENERAL LIABILITY1,000,0 D 1:
F1WCH�C�I1r�hICE 6
A X CO}AriugaLc3EFtr+out+AiLITY X 36036868 1i11112t117 11111120167Ea irru.c } $ 500,001
Q AJMS-IPEIE X OCCUR MED EXP lAny ogle p csoi] i 5,001
PERSCIAL&ADV MARY i 1,000,001
,CONTRACTUAL LIAB GEFE7ALAGGREGATE t MOD,DOI
GENtAGGREGATE LIMff.APPLIES I El?. PRODUCTS-ODMPA:PAGG i 2,DD0,00.1PK .
POLICY L0 . 1t
AUTO+AOeILE(marl RY ■*Lc;•, •SINGLE LIMIT 'f ADD'OO'.
;Ea etGidonll a r
A X t,Nr.Atrro 73501570 1111102117 1111112013 BOAC(INJURY{Par per e) 4
JLMEOO - SO—t U_ED BOORT INJURY[Per ocockirg1 i
ATOS .AeJIOv.
N4F�C'1`e'ht PROPCRTI' AGE #
X HIRED AUTOS AEIros PER ACCIBUNT
S X UMBRELLA.Ulla X OCCLAR EACHOCCLPRENCE 1 5,006,001
A , EXCESSLIAeCLAW-WOE 79807229 1111112017 14111/2018 AGGREGATE $ 5,000,001,
DEO . HEI.ENT/CN _ 4 FaIlow Fa
WORI{ERSCOMPENBATIQN WC STAR- 110a-
MEI MEI ESIPLOYERLIAS' LrIV 1C 1Y LIMITS I I ER
A ANYF ONHIET0R1PARTNERSL=%EC�uflYE Yw
I I I NIA 71749062 11/11112017 11,11.112019 E.L.ENCI-lA&CIC�ENr $ 1,000,001.
OFFICER Eh1E9EREA:unF.n?
(M•ndatorylnNH) PI.D& AL .EA EMPLOYEE 4 1,000,00«
II yes,dei 1Ge unddf
CESCRIPTICFF 01-OI-bRAT1L71`LS bakw E .DISEASE-POLICY LIMIT $ I,D00,00!
B Pollution LIab FRE315985702 1111112017 111111201€ .Dia mniAgg 5,001001.
C Professional Liab
I .1 MO131000917
1111112[117 1911712018 ,EpCIm+Ag j 5,000,001
DESCRIPTION 4F OPERATIONS rLOCATIONS fVEHICLES (Attach ACORD 1 '1,Addlrlom)Romprlc.SchedUle,Ifmare tra II reeuIr4Qrj
City of spakaree Valley is named as additional insured with regards to
general 13abi]ity where required by written aentraot, agreement or permit.
CERTIFICATE HOLDER CANCELLATION
WACITSP
SHoLILI]ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE
THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN
ACCORDANCE WITH THE POLICY PROVISIONS,
City of Spokane Valley
10210 E.spragu0 Ave -
Spokane Valley,WA 9920G A47THORIIEGI REPRE9ENT4TVE
, illit rr..'hili
I
ID 19€ -2010 ACORD CORPORATION- Alt rights reserved.
ACORD 25(2010105) The ACORD name and logo are registered marks of ACORD