City of Seattle Ordinance No. 118737
Not an official copy.
Seattle, WA
Ordinance No. 118737
AN ORDINANCE authorizing agreements for the use of City real and personal property for siting
facilities and other equipment for wireless communication transmission facilities by commercial
communication services providers and stating that the limitations of Seattle Municipal Code Section
3.18.160 are not applicable to such agreements.
Date introduced/referred: Sep 8, 1997
Date passed: Sep 29, 1997
Vote: 9-0
Date of Mayor's signature: Oct 6, 1997
Committee: Technology and Telecommunications
Sponsor: PODLODOWSKI
Index Terms: LEASES, COMMUNICATION-FACILITIES
Text
Note to users: {- indicates start of text that has been amended out
-} indicates end of text that has been amended out
{+ indicates start of text that has been amended in
+} indicates end of text that has been amended in
AN ORDINANCE authorizing agreements for the use of City real and
personal property for siting facilities and other equipment for
wireless communication transmission facilities by commercial
communication services providers and stating that the limitations of
Seattle Municipal Code Section 3.18.160 are not applicable to such
agreements.
WHEREAS , the City Council, upon recommendation of the Mayor, adopted
Resolution 29344, encouraging the use of City real property and/or
facilities in siting wireless facilities when appropriate and when
disruptive impacts on neighborhoods will be minimal; and establishing
guidelines for the siting of wireless facilities on City property, a
process for approval or disapproval of siting proposals and a status
reporting process.
BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS:
Section 1. City departments with real property jurisdiction,
control or leasing authority, (hereafter each referred to as the
"Department") are authorized, through their respective directors or
superintendents appointed by the Mayor and confirmed by the City
Council or interim directors who have been appointed but not yet
confirmed, to negotiate and execute Wireless Communications Site
Agreement(s) ("Site Agreement") for the use of real or personal
property owned, leased, or controlled by the City in siting facilities
and other equipment for wireless communication transmission by
licensed commercial mobile service providers, wireless data services
exempt from FCC license requirements, and licensed commercial common
carrier wireless exchange access services. The limitations of Seattle
Municipal Code Section 3.18.160 (Authority to negotiate and execute
leases) shall not apply to Site Agreements authorized by this section.
This ordinance does not apply to the use by a city department or
agency of City real or personal property.
Section 2. All such agreements shall be in accordance with
established Guidelines for the Siting of Wireless Facilities on City
Property (Resolution 29344) and other adopted City policies affecting
real property management, reuse and disposition. Where the property
or facility is located within the City of Seattle limits, such
agreements shall require compliance with the City's Land Use and
Zoning Code (SMC Chapter 23), SEPA Policies and Procedures (SMC
25.05), Radio Frequency Radiation Ordinance (SMC 25.10). Where the
City property is located outside the City's limits, such agreements
shall comply with applicable requirements of the local jurisdiction
where the property is located. All such agreements shall be
substantially in the form of the Site Agreement, attached hereto as
Exhibit "A"; except, the Department is authorized to modify the
Special Terms and Conditions within the Site Agreement as negotiated
by the Department.
Section 3. Agreement terms may be established by the Department for
an initial term of up to five (5) years with a maximum of three (3)
five (5)-year renewal options. The term of any such agreement shall
not exceed twenty years.
Section 4. Rental rates for wireless communications site agreements
shall be established at fair market value, to be determined by the
Department. Any applicable local and state taxes shall be charged in
addition to the rental rate.
Section 5. Additional fees and/or charges may be established by the
Department to recover actual costs of processing the application,
including engineering review, inspection and appraisal cost,
administration of the agreement, providing on-site services, and/or
other direct or indirect costs. Section 6. The Department is
authorized to accept telecommunications services, as set forth in the
Site Agreement, in lieu of cash rental payment; however, such services
must constitute substantial benefit to the City over retail purchases
of said telecommunications services under any applicable government
rates offered by the wireless services provider.
Section 7. All revenues from rent, fees and charges shall be
deposited in the fund appropriate to the Department.
Section 8. Any act consistent with the authority and prior to the
effective date of this ordinance is hereby ratified and confirmed.
Section 9. This ordinance shall take effect and be in force thirty
(30) days from and after its approval by the Mayor, but if not
approved and returned by the Mayor within ten (10) days after
presentation, it shall take effect as provided by Municipal Code
Section 1.04.020.
Passed by the City Council the ______ day of ______________, 19 ___,
and signed by me in open session in authentication of its passage this
_______ day of _______________, 19 ___.
____________________________________
President of the City Council
Approved by me this _____ day of ________________, 19 ___.
____________________________________
Mayor
Filed by me this _____ day of ________________, 19 ___.
____________________________________
City Clerk
(Seal)
BBrannanet
FacSvcs Ord/Agrmt No.7 WIRELESS.DOC
September 3, 1997
version 3
WIRELESS COMMUNICATIONS SITE AGREEMENT
CITY OF SEATTLE,________________DEPARTMENT
NO.-----------------------
TABLE OF CONTENTS
S P E C I A L T E R M S and C O N D I T I O N S
I. PREMISES . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.1
II. USE/PURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . .
. 1
III. SITE AGREEMENT CONTENTS . . . . . . . . . . . . . . . . . . . .
. 1
IV. TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. 2
V. RENT/CONSIDERATION . . . . . . . . . . . . . . . . . . . . . . .
.2
VI. LEASEHOLD EXCISE TAX . . . . . . . . . . . . . . . . . . . . . .
.2
VII. TERMINATION . . . . . . . . . . . . . . . . . . . . . . . . . .
.3
VIII. OTHER SPECIAL CONDITIONS . . . . . . . . . . . . . . . . . . . .
.3
IX. EFFECTUATION OF AGREEMENT. . . . . . . . . . . . . . . . . . . .
.3
X. SIGNATURES, NOTARIZATION & ADDRESSES. . . . . . . . . . . . . .
. 4
G E N E R A L T E R M S and C O N D I T I O N S
I. DEFINITIONS 7
II. SPECIFIC AGREEMENTS
A. RELATIONSHIP TO SITE AGREEMENT
B. GENERAL PLANNING, ENGINEERING AND DESIGN CONSIDERATIONS
C. ACKNOWLEDGMENT AND ACCEPTANCE OF RISKS
D. PAYMENT TO FACILITY OWNERS
E. TERM & TERMINATION
F. MODIFICATIONS TO FACILITIES
G. REQUIREMENTS FOR INSTALLATION
H. MODIFICATIONS OF EQUIPMENT
I. PERFORMANCE OF WORK
J. ACCESS AND MAINTENANCE
K. RIGHTS OF PROPERTY and EASEMENTS
III. COMPANY AND CONTRACTORS REQUIREMENTS
A. CONTRACTS
B. APPROVALS
C. RELEASE, INDEMNITY AND HOLD HARMLESS
D. WORKER'S COMPENSATION, INSURANCE AND BOND
E. PERMITS
F. COMPLIANCE WITH LAWS AND REQUIREMENTS
G. NONDISCRIMINATION AND AFFIRMATIVE ACTION
H. WOMEN'S AND MINORITY BUSINESS UTILIZATION
IV. ADDITIONAL CONDITIONS AND PROVISIONS
A. NON WAIVER
B. ASSIGNMENT; SUCCESSORS AND ASSIGNS
C. SURVIVAL
D. ENTIRE AGREEMENT
E. APPLICABLE LAW
F. SEVERABILITY
G. RIGHTS CUMULATIVE
H. CONTRACTUAL RELATIONSHIP
I. HEADINGS
J. NOTICES
K. NON-EXCLUSIVITY
L. MODIFICATION OR AMENDMENT
M. ATTORNEY FEES AND COSTS
SPECIAL TERMS AND CONDITIONS
THIS AGREEMENT is entered into by and between THE CITY OF SEATTLE, a
municipal corporation of the State of Washington (hereinafter referred
to as the "City"), and the _____________, a ______ (hereinafter
referred to as "Company").
WHEREAS, the City, under the jurisdiction of the
________________Department, owns or controls land, buildings and other
structures (individually and collectively the "Premises"); and
WHEREAS, the Company desires to obtain permission to use certain
portions of the Premises described below for the installation and
operation thereon of wireless communications Equipment;
NOW THEREFORE, it is mutually agreed as follows .
I. PREMISES: Subject to the terms and conditions set forth herein,
the City hereby grants to the Company the right to attach Equipment to
a structure commonly known as ________ ("Facility"), and locate
Equipment on the property at _____________, Seattle Washington, which
shall together be depicted upon the map attached hereto as Exhibit A,
and described with appropriate Technical Data Sheets attached hereto
as Exhibit B and with drawings showing specific details of attachment
to the Facility attached hereto as Exhibit C; the said Equipment to be
located upon that property legally described as follows:
(Legal Description)
(Such property and Facilities shall be referred to in this Agreement
as the "Premises").
III. USE/PURPOSE: The Premises may be used only for the following
use and purpose: Wireless Communication Transmission and Receiving
equipment under FCC License for _______ services.
IV. SITE AGREEMENT CONTENTS: This Site Agreement (Agreement) consists
of these Special Terms and Conditions as well as the General Terms and
Conditions and all Exhibits and Addenda hereto attached. In the event
of a conflict between the terms of the Special Terms and Conditions
with the General Terms and Conditions, the Special Terms and
Conditions shall prevail. This Agreement is intended to be the
legally operative document between the City and the Company for the
use of the Premises for the purpose stated herein and may not be
modified except by written agreement of the parties. This Agreement
supersedes all other understandings or agreements, written or oral,
between the parties relating to the subject matter of this Agreement.
IV. TERM: The term of this Agreement begins _______ and terminates
on _______ unless it is terminated earlier pursuant to the provisions
hereof. At its option, the Company may renew the Agreement for 3
five (5) year periods provided all terms of this Agreement are met.
The Company shall notify the City of its desire to renew the Agreement
1 year prior to the expiration date of the Agreement. The Rental rate
shall be subject to renegotiation for the option period as described
below. The option must be exercised by written notice to the City one
hundred and twenty (120) days before the expiration date of the
Agreement.
In the event of the inability of the City to deliver possession of the
Premises, or any portion thereof, at the time of the commencement of
the term of this Agreement, neither the City nor any of its officers,
employees or agents shall be liable for any damage caused thereby, nor
shall this Agreement thereby become void or voidable nor shall the
term herein specified be in any way extended, but in such event, the
Company shall not be liable for any rent until such time as the City
can deliver possession.
V. RENT/CONSIDERATION:
A. Initial Period. In consideration of this Agreement, the Company
shall pay to the City as Base Rent the following annual sum: ____
dollar per year ($____.00) for the first year(s) of the Agreement.
[OPTIONAL]The annual sum shall increase each year of the Agreement by
adding an inflationary adjustment which shall be equal to the greater
of 4% or the inflation increase as defined by the Consumers Price
Index for All Urban Consumers for the Seattle Everett Statistical
Metropolitan Area, as published by the U.S. Department of Labor,
Bureau of Labor Statistics or its successor.
B. Option Periods. Negotiations shall commence regarding the rental
rate within ______ days of the Company's notification to the City of
its intent to exercise the option. The City shall propose a final and
best rental rate offer 6 months prior to the expiration date of the
Agreement, as extended by any prior option periods. In no event,
however, shall the annual base rental rate be less than the annual
rent of the previous calendar year.
C. Form and Timing of Payment. Base Rent shall be paid in advance,
on or before the ______ day of ________ of each ________. The City
may agree to accept telecommunications services in lieu of cash
payment; however such agreement must be individually negotiated and
include substantial benefit to the City over retail purchase of said
telecommunications services under any applicable government rates
offered by the Company.
VI. LEASEHOLD EXCISE TAX: In addition to the Base Rent, the Company
shall pay to the City the applicable Leasehold Excise Tax which, as of
the commencement date, is ____ dollars ($_), but is subject to change.
VII. INSURANCE AND LIABILITIES: The Company, at no expense to the
City, shall secure and maintain during the full term of this
Agreement, one or more policies of general comprehensive liability
insurance that fully protect the City from any and all claims and
risks in connection with the Company's occupation of, or activities
upon, the Premises, under which policies the aggregate amounts of
coverage shall be provided per the attached General Terms and
Conditions.
Evidence, to the reasonable satisfaction of the City, of the Company's
maintenance of insurance as required by this Agreement shall be
submitted to the Director prior to the initial occupancy of any
portion of the Premises, and thereafter, within a reasonable time
after the Company's receipt of a request for such evidence, which
time, in no event, shall exceed four (4) City business days.
Notwithstanding any provision herein to the contrary, the failure of
the Company to comply with the requirements of this Agreement
regarding insurance shall subject this Agreement to termination
consistent with the notice provisions of the General Terms and
Conditions of this Agreement.
VIII. TERMINATION
This Agreement may be terminated by either party subject to the notice
and process provisions specified in the General Terms and
Conditions.(Note: There are no provisions in the GT&C's for the
Company to terminate the agreement, so this statement doesn't make
sense, unless Western Wireless' suggestions for its ability to
terminate if the Facility is not restored within 30 days after damage
/destruction, or some other way for it to terminate, is included.)
VIII. OTHER SPECIAL CONDITIONS:
1. {+ SECURED FACILITIES. +} [OPTIONAL] The following Facilities
subject to this agreement are deemed to be Secured Facilities and
shall be subject to the special limitations and conditions described
in Section II.I of the General Terms and Conditions:
2. {+ WORK BY FACILITY OWNER ONLY. +} [OPTIONAL] The following
Facilities require that all work be carried out by the Facility owner
(City) due to the specific nature of the facilities as described in
Section III.B.2:
[Other Optional Conditions -- e.g. Conditions to meet the DCLU permit
requirements, adoption of Appendix A to General Terms and Conditions
for Preferred Service Rate, etc.]
X. EFFECTUATION OF AGREEMENT: In order to be effective, this
Agreement must be (1) signed by an authorized representative of the
Company and returned to the Director at the address set forth below,
accompanied by any required policy of insurance, and (2) signed by the
Director pursuant to Ordinance authority.
IN WITNESS WHEREOF, the parties hereto have affixed their signatures
below:
CITY OF SEATTLE
By_____________________________________
Title ___________________________________
Department______________________________
Authorizing Ordinance ____________________
NOTARIZATION OF SIGNATURE:
Subscribed and sworn to before me this _____ day of _______________
19___.
_____________________________________
Printed Name: ________________________
Notary Public in for the State of ___________
Residing at: ___________________________
My Commission Expires: ________________
City's address for all communications:
_______________________________________
_______________________________________
_______________________________________
_______________________________________
__________________________________
Company
By_____________________________________
(Signature)
_______________________________________
(Print or Type Name)
_______________________________________
(Print or Type Title)
NOTARIZATION OF SIGNATURE
Subscribed and sworn to before me this _____ day of _______________
19___.
_____________________________________
Printed Name: ________________________
Notary Public in for the State of ___________
Residing at: ___________________________
My Commission Expires: ________________
Company's address for all communications:
______________________________________
_______________________________________
_______________________________________
_______________________________________
EXHIBITS
WIRELESS COMMUNICATIONS SITE AGREEMENT
NO.--------------------
G E N E R A L T E R M S and C O N D I T I O N S
I. DEFINITIONS
Whenever used in this Agreement with initial letters capitalized, the
following terms shall have the following specified meanings, unless
the context clearly requires a different meaning:
A. Company
A business licensed in the State of Washington, providing commercial
mobile services, unlicensed wireless services, or common carrier
wireless exchange access services, or other wireless
telecommunications services for the purposes of connecting to the
public switch telephone network or to the Internet authorized by the
Federal Communications Commission.
B. Equipment
Antenna(s), cables, wires, and all communication attachments,
appliances, and other structures owned and operated by the Company or
for the benefit of the Company, including utility facilities that
serve the Company's Equipment.
C. Facility or Facilities
A structure including but not limited to: buildings, utility
poles, and transmission, communication and water towers.
D. Facility Manager
The person designated by the Facility Owner to manage the
Facility, including granting access, determining and approving its use
and terms and conditions for such use.
E. Facility Owner
The City department which operates and/or manages a Facility or
Facilities and holds the legal right to grant permission to occupy,
use or modify Facilities or Premises.
F. Hazardous Substance
Any hazardous, toxic, or dangerous waste, substance or material,
including petroleum products, or any contaminant, pollutant or
chemical defined or identified in any environmental regulation as
posing a potential risk to human health or the environment.
G. Indirect Costs
Overhead associated with the services provided by the City on behalf
of the Company, included in the billing rate, which covers
supervision, administration, accounting services, etc.
H. Premises
The real property, described with a legal description in the Site
Agreement, and/or any Facilities contained therein.
I. Secured Facility
A Facility designated in the Site Agreement, or subsequently
designated by written notice from the City during the term of this
Agreement, where access is limited as a matter of public safety or
legal restriction, which requires that special access conditions be
established and enforced.
J. Senior Priority Rights
Rights bestowed based on date authorized to attach Equipment to a
Facility, such that parties without such senior priority shall have
the burden to correct any interference caused by their installation to
those with senior priority rights, provided the Equipment of the
holder of the senior priority right is operating within the governing
technical specifications.
K. Work
Collectively, the installation, construction, maintenance, repair,
relocation and/or removal of Equipment and other work performed in
connection with this Agreement on, in, to, across or from a Facility
or Premises.
II. SPECIFIC AGREEMENTS
A. RELATIONSHIP TO SITE AGREEMENT
These General Terms and Conditions, with amendments as agreed to
by the parties, are an attachment to and a part of Site Agreement
No.____________.
The Special Terms and Conditions contain requirements and
agreements particular to the use of the Premises and shall specify at
minimum the following, including contact names and addresses where
appropriate:
- Company and Project Manager
- Site map and drawings specifying Equipment locations &
installation details, including Technical Data Sheets
- Facilities to be Used; Facility Owners; and the Facility
Manager(s)
- Project Schedule for Installations
- Changes or Addenda to General Terms and Conditions
- Bond Requirements for Installation Instructions
- Identification of other telecommunication services with Senior
Priority Rights or approved for coincident installation.
B. GENERAL PLANNING, ENGINEERING AND DESIGN CONSIDERATIONS
1. Co-location With Other Telecommunications Service Providers
The Company acknowledges that the use of City properties and
Facilities is explicitly authorized under a policy to encourage co-
location of equipment of multiple providers. The Company agrees to
coordinate the installation of its Equipment with other
telecommunications providers seeking installation. The Company shall
not be granted Senior Priority Rights with respect to other
telecommunication providers identified in the Site Agreement as
previous or concurrent attachers. The Company shall be granted Senior
Priority Rights with respect to other telecommunications providers who
are approved for installation after the execution of the Site
Agreement. The Company shall operate its wireless communications
facilities and services in a manner that will not cause substantial
interference to the Facility Owner or to any other third party with
Senior Priority Rights to the Company.
2. Preparation of Detailed Engineering Design
The Company shall prepare engineering plans and specifications
in consultation with and for the approval of the Facility Owner(s) to
complete design engineering for use of Facilities. The Facility Owner
will make a good faith effort to review and approve, deny, or request
revisions to the plans and specifications in a timely manner.
3. Installation of Equipment
The Company shall be responsible to ensure compliance with all
requirements of the Facility Owner(s) regarding installation of
Equipment.
4. Complete Acceptance
The City shall accept installation of the Company Equipment by
issuing a letter to the Company stating that the Work has been
completed in accordance with approved specifications and that all
punch-list items have been resolved to the satisfaction of the Company
and Facility Owner. Such acceptance shall authorize initiation of
services from the Premises.
5. Establish Maintenance Plan
The Company shall develop a maintenance plan agreement for the
Equipment, documenting procedures necessary to meet the requirements
of this Agreement, for review and approval by the City within 60 days
of execution of the Agreement.
C. ACKNOWLEDGMENT AND ACCEPTANCE OF RISKS
1. Location on City Premises
In choosing to locate Equipment on City Premises, the Company
acknowledges and accepts all risks, including but not limited to:
- Possibility of fires that may damage the Equipment
- Risks associated with having Equipment co-located with such
Facilities and the Equipment of other telecommunications providers
- Ground movement
- Loss of line of sight path, including where caused by City action
- City change in the use of the Premises
The Company explicitly acknowledges that these risks include
bearing all costs associated with such risks, except such costs caused
by the gross negligence or willful misconduct of the City, including
but not limited to provision of alternate communication paths, loss of
Company business and restoration of its Equipment and/or systems if
they are damaged.
The Company may terminate the Agreement pursuant to Section E.6.
if any of the risks listed in this clause occur, cause material
interference to the Company's operations on the Premises and the
Company's operations cannot be restored to their prior condition
within sixty (60) days of the occurrence. The Company will not be
liable for any rent during the time the Facility is rendered unusable,
except when caused by action of the Company or failure of the Company
to perform its obligations under this Agreement.
2. Damage Or Destruction.
In the event that the Premises and/or Facilities (a) are
damaged by fire, earthquake, act of war, or other extraordinary
casualty to such an extent as to render them unusable in whole or in
substantial part; or (b) are destroyed, the City shall not be
obligated to rebuild the Premises and/or Facilities or to compensate
the Company for any loss of income under this Agreement. The City
shall not be obligated to restore the functionality of the Premises
and/or Facilities in the event of loss, damage, or destruction. The
decision of the City to restore the Facility shall be based on City
need for the Facility. The Company will not be liable for any loss,
damage, or destruction of the Premises and/or Facilities, except loss,
damage, or destruction caused by action of the Company, or failure of
the Company to perform its obligations under this Agreement. The
Company will not be liable for any rent during the time the Facility
is rendered unusable, except when caused by action of the Company or
failure of the Company to perform its obligations under this
Agreement.
The Company may terminate the Agreement pursuant to Section E.
6. If the Company's operations are materially interfered with due to
the occurrence of (a) or (b) and the Company's operations cannot be
restored to their prior condition within sixty (60) days of the
occurrence.
3. Acceptance of Premises and Facilities
The Premises and Facilities have been inspected by both parties
and are accepted by Company in their existing condition as of the
commencement date of this Agreement without reservation except for
latent defects or faulty construction of the Premises and Facilities
not discoverable by inspection at the time of taking possession.
D. PAYMENT TO FACILITY OWNERS
1. Facility Use Payment
Rental fees and the commencement date for the fees are stated in
the Special Terms and Conditions of the Site Agreement.
2. Business Utility Tax
Company is subject to City of Seattle Business Utility Tax based on
Gross Sales to Customers inside the City per Seattle City Ordinance
No. 117408 or as the same may be superseded or amended.
3. State Leasehold Excise Tax
Company is subject to the State Leasehold Excise Tax for the
commercial use of tax exempt property per RCW Chapter 82.29A.
4. Other Taxes
Company agrees to pay all current and future taxes which are
applicable to Company's uses under this Agreement.
5. Reimbursement
Company shall reimburse Facility Owner within thirty (30) days
after receipt of invoice for all amounts paid and costs incurred by
Facility Owner at Company's expense:
a. For Performance of Work
The Company shall reimburse Facility Owner(s) for all costs
incurred by the Facility Owner(s) in the performance of Work necessary
for the installation and operation of the Equipment. In addition to
reimbursement for direct costs of labor and materials incurred in the
performance of Work necessary for the installation and operation of
the Equipment, the Facility Owner(s) shall be eligible to be
reimbursed by the Company for Indirect Costs that may be included in
the billing rate. Examples of Work for which the Facility Owner will
be reimbursed by the Company include the relocation of City equipment
or work in a high-security or high-risk area, such as on electrical
transmission towers.
b. For Relocation
The Company shall reimburse Facility Owner(s) for all direct
and verifiable costs associated with any relocation of Facility
Owner's Facilities to accommodate the Company's use of the Facility
unless the costs of relocation of any equipment located within or on
Facilities are borne by a third party. In addition to reimbursement
for direct costs of labor and materials incurred for such relocation,
Facility Owner(s) shall be reimbursed by the Company for Indirect
Costs.
c. On-Call Staff
The Company shall reimburse Facility Owner for all on-call
staff required for access to Secured Facilities.
d. Utilities and Other Services Unless otherwise provided in
the Special Terms and Conditions of this Agreement, the Company shall
provide, or shall otherwise pay, before delinquency, its pro-rata
share of costs for providing services on or to the Premises including,
where applicable, but not limited to elevator service, electricity,
gas, water, telephone, sewer, garbage, solid waste, heating,
janitorial, security, tree trimming, and grounds maintenance, and
shall also pay all charges for utilities provided exclusively for the
Company's requirements and for utility installations and modifications
thereto occasioned by the Company's requirements. The Company shall
not be entitled to an offset, reduction or return of rental as the
result of any interruption or failure of said services.
6. Payment
All amounts due to the Facility Owner under this Agreement shall
be paid by the Company within thirty (30) days of the date of the
invoice from the Facility Owner. The Facility Owner may elect to
assess an interest fee of 0.033% for each day payment is late, and may
consider the Company in default if any amount is not paid to the
Facility Owner by the due date.
7. Rental Income
The Company and the Facility Owner shall equally divide any
rental income from the rental of facilities constructed by the Company
on the Premises to any other entity.
E. TERM & TERMINATION
1. Expiration of the Agreement
This Agreement shall expire in accordance with the term,
including any option periods, established in the Special Terms and
Conditions of this Agreement.
2. Default
With notice as set forth below, and without recourse by the
Company, the City may terminate this Agreement if any of the following
occurs:
a. The Company, after notification that its operations are
interfering with the operations of the City at the Facility, fails to
cure the operational interference within 30 days.
b. The Company enters restricted areas of the Premises without
proper notification to the City and/or without the required City
observer present.
c. The Company fails to pay rent or reimburse the City for expenses
as required by the General Terms and Conditions.
d. The Company fails to maintain the required insurance coverages.
e. The Company fails to perform required Work within the time
specified, or any authorized extension thereof.
f. The Company fails to satisfactorily perform Work in conformance
with the Agreement and/or to the satisfaction of the Facility Owner.
In the event the City intends to terminate this Agreement for any of
reasons (a) - (f) above, the City shall provide a written notice to
cure, identifying the nature of the alleged basis for termination with
reasonable specificity, and advising the Company of the City's intent
to terminate the Agreement.
All further actions shall conform to the following procedures:
The Company shall, within three (3) business days after receipt
of such notice if the breach is a failure to pay rent, entrance into
restricted areas without authorization, or failure to maintain
required insurance, otherwise, within thirty (30) days after receipt
of such notice or such longer period of time as the City may specify
in such notice, either cure such alleged failure or, in a written
response to the City, present facts and arguments in refutation or
excuse of such alleged failure or state that such alleged failure will
be cured and set forth the method and time schedule for accomplishing
such cure.
The City shall determine (a) whether a failure to comply with a
material provision has occurred; (b) whether such failure is
excusable; (c) whether such failure has been cured or will be cured by
the Company; and (d) whether any proposed cure is reasonable. The
Company shall make available to the City, if requested, any records,
documents or other information the City deems necessary to make the
determination.
If the City determines that a failure to comply with a material
provision has occurred and that such failure is not excusable and has
not been or will not be cured by the Company in a manner and in
accordance with a schedule reasonably satisfactory to the City, the
City may terminate the Agreement.
3. Removal of Equipment.
Upon termination of the Agreement due to expiration or default,
the Company shall promptly remove all Equipment from the Facilities
and surrender the Premises. If the Company shall fail to promptly
remove the Equipment upon expiration of the term of the Agreement,
City may, after sixty (60) days' advance notice to Company of its
intent to do so, remove and dispose of the Equipment at Company's
expense. Company shall receive credit for unused portions of the
Facility rent, less any City cost to remove and dispose of Equipment,
if the termination is effective before the end of the billing period.
4. Termination Due to City Re-Use of Premises
The City may terminate the Agreement to accommodate the City's
need to utilize the Premises in a manner inconsistent with the
continued use of the Facility by the Company, or to relocate, replace
or remove the existing Equipment, consistent with a capital project
approved by the Seattle City Council. The City shall review proposals
from the Company for a mutually acceptable location on the Premises or
a nearby site under control of the City , to which the Company may
relocate its Equipment at its own expense. The City shall give notice
to the Company under this provision with a 180-day period to remove
the Equipment from the Premises from the date that notice of the
intent to terminate was given, unless due to a public safety
emergency, wherein the Company shall comply within such shorter time
as specified by the City.
5. Restoration of Sites
Where this Agreement is for the use of unimproved Premises, the
Company shall restore, at its own expense, the Premises to its
previous state when directed to do so by the City, including the
removal of any structures and Equipment and the restoration of
comparable landscape features. At its option, the Company may offer
to sell part or all of its structures or Equipment to the City. At
its sole discretion, the City may choose to accept or reject the
offer.
Termination Due to Damage, Destruction or Material Interference
The Company may terminate the agreement upon the occurrence of the
conditions detailed in Section II. C.1. o r Section II. C.2., by
giving sixty (60)
days notice to the City as required under Section IV. J. Notices.
F. MODIFICATIONS TO FACILITIES
At the Company's request, the Facility Owner may make
modifications to Facilities to facilitate building access for the
installation of Equipment. Any requests by the Company for such
modifications shall be made to the Facility Manager. All costs for
such modifications shall be paid by the Company.
All modifications to Facilities shall be subject to the review and
approval by the Facility Owner during design and construction. If the
Company is responsible for the construction of the installation
subject to this Agreement, any unauthorized modifications must be
corrected at the expense of the Company. The Company may be required
to remove such modification and restore the Facility to its previous
condition or as approved by Facility Owner. In the event the City
performs the restoration work, the Company shall reimburse the City
for the actual costs associated with the restoration.
G. REQUIREMENTS FOR INSTALLATION
1. Installations are to be made only as approved by City.
Attachments and Equipment shall conform to Technical Data Sheets
attached to the Site Agreement.
2. Installation of Equipment shall be in accordance with
requirements of the State of Washington Electrical Construction Code,
State of Washington Administrative Code (Chapter 296-44), Seattle
Electrical Code, and all other applicable codes as now in force and as
revised or changed in the future.
3. Installation of Equipment made by Company to City Facilities
under this Agreement shall not disturb or conflict with the equipment
of the City. Moving, rearranging, or adjustment of City Facilities to
provide space to accommodate the Equipment shall be done at the
expense of Company, and, at the City's option, by the City.
4. In the event radio interference occurs, all users of the site
are required to participate in solving the problem by providing
technical personnel and equipment to locate the source of the specific
problem.
5. The City hereby reserves a right of access to inspect the
areas occupied by the Company.
H. MODIFICATIONS OF EQUIPMENT
Equipment shall not be changed or added without submitting new
Technical Data Sheets and without the written approval of the City.
Replacement of like parts during maintenance and repair is acceptable
without specific approval, provided that the replacement does not
change the visual appearance, increase consumption, or increase or
change the pattern, frequency, and/or power of the radio frequency
emissions from the Equipment.
All provisions in this Section are subject to any and all conditions
as required under the Special Terms and Conditions of this Agreement,
including but not limited to Section _______, Other Special
Conditions.
I. PERFORMANCE OF WORK
1. Company shall perform the Work in a workmanlike and skillful
manner and comply in full with applicable Codes. Company shall ensure
that the Work and the Equipment are in all respects (a) safe, (b) free
from all faults and defects in workmanship, material, and design, and
(c) in conformance with the requirements of this Agreement.
2. Company shall promptly and satisfactorily correct or replace
any work or Equipment found to be defective or not in conformity with
the requirements of this Agreement. If Company fails or refuses to
perform any Work required by this Agreement or to make any such
corrections or replacements, City may perform such Work and make such
corrections and replacements at Company's expense.
3. Company shall, at all times, keep its work areas cleared of
rubbish, refuse and other debris and in a neat, clean and safe
condition. Upon completion of any portion of any of the Work, Company
shall promptly remove all rubbish, refuse and other debris and all of
its equipment and surplus materials. If Company fails to do so, City
may perform such work at Company's expense.
J. ACCESS AND MAINTENANCE
1. Maintenance
Company shall maintain all Equipment in good and safe condition and
state of repair.
2. Permission to Enter
Access to Facilities shall be allowed only after the Facility
Owner has been notified per item 3., below, and permission has been
granted by the Facility Owner.
3. Requests for Access
All requests for access to Facilities must be made through the
appropriate City Facility Manager or designee in writing (facsimile
acceptable), and shall be subject to the restrictions and conditions
in this Agreement.
The Company shall notify the Facility Manager at least three (3)
working days before access to any City Facility is desired. The
affected City Department will respond to requests for access from the
Company at least twenty-four (24) hours prior to the requested start
time and no later than 48 hours from the receipt of the request,
indicating whether access has been granted as requested, access has
been delayed or access has been denied.
In the event of an emergency, requests for access may be made in
person or by telephone. The City shall provide a mechanism to request
emergency access on a 24-hour, 7 day a week basis. In such cases, the
Company will follow up with prompt written documentation of the
request.
The City shall make every effort to provide access to
Facilities during the times requested by the Company. However, the
City may not be able to accommodate all requests, and will not be
liable for any damages or loss the Company may sustain due to the
Company's inability to access the Facilities. The Company is
responsible to plan accordingly.
All access to City Facilities by the Company or its contractors
must be coordinated with the appropriate authority staff designated by
the City's Facility Manager(s). The Company and its contractors must
comply with whatever conditions for access to City Facilities that are
specified by designated Facility Managers.
4. Secured Facilities
Where Equipment is located on or in Facilities identified as
Secured Facilities in the Site Agreement, Company shall be accompanied
by City staff, at Company expense, pursuant to the reimbursement
provisions of Section II.D.5. City shall maintain a call-out system
to facilitate Company access on a continuous basis for emergency
maintenance and repairs.
5. Project Control
City staff shall be authorized to stop Work that is being
conducted by the Company and its contractors if, after discussions
with the Company if reasonably feasible, City staff determine that the
Work in question would or could potentially cause hazards to workers
or interference with the City Facilities, or facilities of other users
on-site.
6. Priority Restoration
Restoration of City services shall be given the highest priority
in the event that any of these services and the Company's
telecommunication services are interrupted at the same time, unless
otherwise agreed to by the City and the Company at the time of
restoration.
7. Hazardous Substances
The Company understands and agrees that flammable or Hazardous
Substances, including but not limited to explosives, petroleum
products, paint, solvents, and resins, are not allowed on the Premises
without the express written permission of the City. In the event
written permission to store the preceding substances is granted by the
City, the Company agrees to dispose such substances in a legal manner.
Prior approval may be obtained for Hazardous Substances used
during construction through the construction approval process. Prior
approval may also be obtained for the use of petroleum products for
emergency generation of electrical power during periods of outage.
Prior to initiating any other process requiring the use or storage of,
or generating, on or adjacent to the Premises, Hazardous Substances,
the Company covenants and agrees to obtain the City's prior approval.
The City may consider approving the specific use, but only after the
Company demonstrates to the satisfaction of the City that Company has
all necessary permits, if any, for operation and a Hazardous
Substances emergency response plan.
Company agrees to cooperate in any environmental audits
conducted by the City's staff or independent third parties
specifically related to the Company's use or storage of Hazardous
Substances. Company agrees to reimburse the City for the cost of such
audits. Company agrees to provide the City with notice of every
governmental inspection of the Premises, notice of violation, and
order to clean up contamination, within five (5) days after receipt
thereof by the Company. Company agrees to permit the City to
participate in all settlement or abatement discussions. In the event
Company fails to take remedial measures, as required by any final
administrative or judicial order. to decrees signed by a state,
federal, or local regulatory agency within 90 days of such order or
decree, the City may elect to perform such work, and Company covenants
and agrees to reimburse the City for all direct costs and Indirect
Costs associated with the City's work.
Company hereby agrees to release, defend and indemnify the City and
hold the City harmless for any suits, claims, damages, strict
liabilities, and costs or liabilities associated with the removal or
remediation of any Hazardous Substance (including petroleum and
gasoline products) that are released onto or from the Premises, or
otherwise come to be located on the Premises during the term of the
Agreement, including but not limited to those that may have migrated
to or from the Premises, due to the actions of the Company. "Cost"
shall include, but not be limited to, all response or remediation
costs, disposal fees, investigation costs, monitoring costs, civil or
criminal penalties, attorney fees, and other litigation costs incurred
in connection with such removal or remediation.
K. RIGHTS OF PROPERTY and EASEMENTS
Nothing in the Site Agreement, including the Special and General Terms
and Conditions, Exhibits and/or Addenda shall be construed to convey
to the Company any property rights in Facilities or Premises. Nothing
in the Site Agreement, including the Special and General Terms and
Conditions, Exhibits and/or Addenda shall be construed to compel a
Facility Owner to maintain any of its Facilities for a period longer
than is necessary for its own service requirements. This Agreement
shall not be construed as requiring the City to obtain any easement
for the benefit of the Company. The Company may request and obtain,
at the discretion of the City, easements for access and utilities to,
from, and across the Premises. All Equipment purchased and installed
by the Company shall remain the property of the Company, unless
otherwise agreed to by the Parties in an amendment hereto.
III. COMPANY AND CONTRACTORS REQUIREMENTS
A. CONTRACTS
The Company is responsible for ensuring that the applicable terms and
conditions of the Site Agreement, General Terms and Conditions,
Exhibits and Addenda are included in agreements with contractors. The
Company shall be held liable for any negligence caused by its
contractors' performance or failure to perform the work under the Site
Agreement or any contracts with the Company.
B. APPROVALS
1. All contractors hired by the Company to work within or on
the Premises shall be subject to approval by Facility Owner(s) which
approval shall not be unreasonably withheld or delayed. In all
agreements with contractors, the Company may require such contractors
to attend a pre-construction meeting with the appropriate authority to
review installation requirements and Work restrictions prior to any
Work being performed in or on the Premises. The contractor's
agreement shall state that the Facility Owner has authority to stop
Work as specified in Section II.J and may require that inadequate Work
be corrected after discussion with Company representatives.
2. Where identified in the Site Agreement, certain Facilities
require, due to the nature of the facility, that all Work be completed
by the Facility Owner at Company expense pursuant to the reimbursement
provisions of Section II.D.5.
C. RELEASE, INDEMNITY AND HOLD HARMLESS
1. Company releases and shall defend, indemnify and hold harmless
City, its successors and assigns, and the respective directors,
officers, employees and agents of City and its successors and assigns
(collectively referred to as the "Indemnitees") from any and all
claims, losses, costs, liabilities, damages and expenses (including,
but not limited to, reasonable attorneys' fees) arising out of or in
connection with the Equipment or installation of any Equipment to any
structure, the performance of any Work, the operation of any
Equipment, or the Company's system, or the acts or omissions of
Company or any of its suppliers or contractors of any tier, the
respective successors and assigns of Company, or anyone acting on
Company's behalf in connection with said installation of Equipment,
performance of Work, or operation of Equipment or Company's system.
2. Such indemnity, protection and hold harmless shall include any
demand, claim, suit or judgment for damages to property or injury to
or death of persons, including officers, agents, and employees of
either party hereto including payment made under or in connection with
any Worker's Compensation Law or under any plan for employees'
disability and death benefits, which may arise out of or be caused or
contributed to by the erection, maintenance, presence, use or removal
of Company's Equipment or installations of Equipment including any
claims or demands of customers of the Company with respect thereto.
3. City shall not be liable to the Company or to the Company's
customers, and the Company hereby indemnifies, protects and saves
harmless City against any and all such claims or demands, suit or
judgment for loss, liability, damages and expense by the Company's
customers, or for any interruption to the service of the Company, or
for interference with the operation of the Equipment.
4. To the fullest extent permitted by applicable law, the
foregoing release, indemnity and hold harmless provisions shall apply
to and for the benefit of the Indemnitees.
City is willing to permit installations of the Equipment to the
Facilities for the fees described in II.E only in consideration of and
in reliance upon such release, indemnity and hold harmless.
D. WORKER'S COMPENSATION, INSURANCE AND BOND
1. Company shall ensure that, with respect to all persons
performing the Work, Company or its suppliers or contractors maintain
in effect at all times during the term of this Agreement coverage or
insurance in accordance with the applicable laws relating to worker's
compensation and employer's liability (including, but not limited to,
the Washington Industrial Insurance Act and the laws of the state in
which any such person was hired), regardless of whether such coverage
or insurance is mandatory or merely elective under the law. Company
shall furnish to the City such assurance and evidence of such coverage
or insurance (such as copies of insurance policies and Certificates of
Compliance issued by the Washington State Department of Labor and
Industries) as the City may request.
2. Company shall obtain, and maintain continuously for the term
of this Agreement, at its own expense, occurrence form Commercial
General Liability insurance with endorsements and/or other insurance
to indemnify for the activities and services of this Agreement.
Minimum limit of coverage shall be $1,000,000 each occurrence and
$2,000,000 in the aggregate. Company shall also obtain, and maintain
continuously for the term of this Agreement, at its own expense,
business automobile liability coverage for owned, non-owned and hired
vehicles. Minimum limit coverage for bodily injury and property damage
shall be $1,000,000 per person and $1,000,000 per occurrence. The
insurance carrier issuing the policy must have an A.M. Best rating of
at least A-:VII and be legally admitted and licensed to do business in
the State of Washington.
3. Such insurance shall be endorsed to include the City of
Seattle, its directors, officers, employees, agents and joint users as
additional insured, and shall not be reduced or canceled without
forty-five (45) days prior written notice to the City.
4. Such insurance shall include a "cross liability",
"severability of interests", or "separation of insureds" clause
indicating essentially that "except with respect to the limits of
insurance, and any rights or duties specifically assigned in this
coverage part to the first named insured, this insurance applies as if
each named insured were the only named insured, and separately to each
insured against whom the claim is made or suit is brought".
5. Prior to commencement of performance of any of the Work,
Company shall provide the City a duplicate (photocopy or facsimile
acceptable) of the required insurance policy(ies) with its
endorsements as evidence of coverage. The company or companies
issuing such insurance and the policies issued shall be subject to
approval by the City.
6. Company shall promptly advise the City of all claims relating
to damage to property or injury to or death of persons arising or
alleged to have arisen in any manner by, or directly or indirectly
associated with, the erection, maintenance, presence, use or removal
of Company's Equipment. Copies of all accident or other reports made
to any insurer by Company shall be furnished to the City.
7. Company shall also furnish the City with such additional
assurance and evidence of such insurance (such as copies of all
insurance policies) as the City may from time to time request. Within
thirty (30) days after any notice of termination, cancellation,
expiration or alteration in any policy of insurance required under
this Agreement, Company shall deliver to the City a duplicate of the
replacement policy with its endorsements naming the City as an
additional insured..
8. Company shall ensure that any policies of insurance that
Company or any of its suppliers or contractors of any tier carry as
insurance against property damage or against liability for personal
injury (including death) shall include a provision therein providing a
waiver of the insurer's right to subrogation against the Indemnitees.
To the extent permitted by its insurance policies, the City hereby
waives all rights of subrogation against Company, its successors and
assigns, and the respective directors, officers, employees and agents
of Company and its successors and assigns.
9. The requirements of this Agreement as to insurance and
acceptability to the City of insurers and insurance to be maintained
by Company are not intended to and shall not in any manner limit or
qualify the liabilities and obligations of or assumed by Company under
this Agreement.
10. In addition, Company shall furnish to the City, at such times
and in such forms as the City may in writing request, surety bonds
with performance, payment and maintenance clauses payable to the City.
E. PERMITS
Company shall obtain and comply (and shall ensure that the Equipment,
the Work, and all of Company's suppliers and contractors of any tier
comply) with all applicable permits including authorizations as
required under the City's Land Use Code (SMC Chapter 23), if
applicable, licenses, franchises, rights-of-way, easements, and other
rights required to perform the Work and operate the Equipment and the
Company's system in accordance with this Agreement. Company shall
furnish to City such evidence thereof (such as certified copies of
permits, licenses, franchises, rights-of-way, and easements) as City
may request.
F. COMPLIANCE WITH LAWS AND REQUIREMENTS
In the performance of the Work under this Agreement, and the continued
use of the Company's Equipment on City Premises, the Company shall
comply (and shall ensure that the Equipment, the Work, and all of
Company's suppliers and contractors of any tier comply) with all
applicable:
1. laws, ordinances, rules, regulations, orders, licenses,
permits, and other requirements, now or hereafter in effect, of any
governmental authority;
2. industry standards and codes; and
3. City construction guidelines, specifications, rules, and
regulations which apply to Company's Work and will be provided by City
to Company on request.
4. Federal requirements regarding radio-frequency emissions and
interference with other electronic or telecommunications equipment and
the City's Radio-Frequency Radiation regulations (SMC 25.10) as
administered by the Health Department.
5. Senior priority rights held by other telecommunications
entities to be protected from interference.
Company shall furnish such documents as may be required to effect or
evidence compliance. All laws, regulations, and orders required to be
incorporated in agreements of this character are incorporated herein
by this reference.
G. NONDISCRIMINATION AND AFFIRMATIVE ACTION
During the performance of Work, the Company, for itself, its assignees
and successors in interest, agrees as follows:
1. The Company will not discriminate against any employee or
applicant for employment because of race, religion, creed, color, sex,
marital status, sexual orientation, political ideology, ancestry,
national origin, or the presence of any sensory, mental, or physical
handicap, unless based upon a bona fide occupational qualification.
The Company will take affirmative action to ensure that applicants are
employed, and that employees are treated during employment without
regard to their creed, religion, race, color, sex, national origin, or
the presence of any sensory, mental, or physical handicap. Such
action shall include, but not be limited to, the following:
employment, upgrading, demotion, or transfer, recruitment, or
recruitment advertising, layoff or termination, rates or pay or other
forms of compensation, and selection for training, including
apprenticeship.
2. Failure to comply with any of the terms of these provisions
shall be a material breach of this contract.
3. The Company will insert in all contracts for Work covered by
these Agreements, a copy of Seattle City Code Section 20.44.040 and
will require compliance with same by its contractors.
H. WOMEN'S AND MINORITY BUSINESS UTILIZATION
The Company will make reasonable efforts to utilize women's business
enterprises and minority business enterprises in any contracting. The
Company will require that its contractors and subcontractors will make
reasonable efforts to utilize women's business enterprises and
minority business enterprises. The Company will maintain records
reasonably necessary for monitoring its compliance with the provisions
of this section.
IV. ADDITIONAL CONDITIONS AND PROVISIONS
A. NON WAIVER
The failure of either party to insist upon or enforce strict
performance of any of the provisions of this Agreement or to exercise
any rights under this Agreement shall not be construed as a waiver or
relinquishment to any extent of its right to assert or rely upon any
such provisions or rights in that or any other instance; rather, the
same shall be and remain in full force and effect.
B. ASSIGNMENT; SUCCESSORS AND ASSIGNS
Company may assign, transfer, sub-lease or otherwise dispose of any of
the privileges granted under this Agreement to a business entity which
meets the following criteria: (i) licensed by the Federal
Communications Commission to operate a wireless communications
business; and (ii) (1) is a parent, subsidiary, affiliate or successor
of the Company; or (2) controls or is controlled by or under common
control with the Company; or (3) is merged or consolidated with the
Company; or (4) purchases a majority or controlling interest in the
ownership or assets of the Company; (5) purchases substantially all of
the assets of the Company; or (6) purchases substantially all of the
assets of the Company in the Metropolitan Trading Area in which the
Premises are located. Upon notification to the City by the Company of
such action, together with a statement by the receiver of the
privileges that it will comply with the conditions of the Site
Agreement, the Company shall be relieved of all future performance,
liabilities and obligations under the Agreement. The Company may not
otherwise assign transfer, sub-lease or otherwise dispose of any of
the privileges granted under this Agreement without the written
consent of City.
C. SURVIVAL
The obligations imposed on Company and all provisions of this
Agreement which may reasonably be interpreted or construed as
surviving the completion, termination or cancellation of this
Agreement, shall survive the completion, termination or cancellation
of this Agreement.
D. ENTIRE AGREEMENT
The entire Site Agreement between the City and the Company
shall consist of the Special Terms and Conditions, the General Terms
and Conditions contained herein which shall be affixed to each Site
Agreement, and all Exhibits and/or Addenda issued concurrent with or
subsequent to the execution of this Agreement, and any amendments to
same.
E. APPLICABLE LAW
This Agreement shall in all respects be interpreted, construed and
enforced in accordance with the laws of the State of Washington.
F. SEVERABILITY
In the event any section, sentence, clause, or phrase of the Site
Agreement is adjudicated to be invalid or illegal by a court of last
resort and of competent jurisdiction, the remainder of the Site
Agreement shall be unaffected by such adjudication and all other
provisions shall remain in full force and effect as though the
section, clause, or phrase so adjudicated to be invalid had not been
included herein. The Parties hereto agree to then negotiate in good
faith the replacement section, sentence, clause, or phrase which is
legal and most closely represents the original intent of the Parties.
G. RIGHTS CUMULATIVE
The rights and remedies of the parties provided for under this
Agreement are in addition to any other rights and remedies provided by
law. The failure to exercise on any occasion any right shall not
operate to forfeit such right on another occasion. The use of one
remedy shall not exclude or waive the right to use another.
H. CONTRACTUAL RELATIONSHIP
This Agreement does not constitute the Company as the agent or legal
representative of a Facility Owner for any purpose whatsoever. The
Company is not granted any express or implied right or authority to
assume or create any obligation or responsibility on behalf of or in
the name of the Facility Owner or to bind the Facility Owner in any
manner or thing whatsoever. In no event shall the City be construed
or held to have become in any way or for any purpose a partner,
associate, or joint venture of the Company or any party associated
with the Company in the conduct of the Company's business or
otherwise.
I. HEADINGS
The titles of sections are for convenience only and do not define or
limit the contents.
J. NOTICES
All notices and other materials to be delivered hereunder, shall be in
writing and shall be delivered or mailed to addresses as identified in
the Special Terms and Conditions of this Agreement.
K. NON-EXCLUSIVITY
This is a non-exclusive arrangement.
L. MODIFICATION OR AMENDMENT
No modification to or amendment of the provisions of this Agreement
shall be effective unless in writing and signed by authorized
representatives of the City and the Company. The City and the Company
expressly reserve the right to modify any Agreement, from time to
time, by mutual agreement.
M. ATTORNEY FEES AND COSTS
In the event legal action is taken or commenced among the parties
hereto, declaratory or otherwise, for the enforcement of any of the
covenants, terms, or conditions of this Agreement, the prevailing
party shall be entitled to its costs and reasonable attorney fees as
determined by the trial and appellate courts.
Costs and reasonable attorney fees shall include, but not be limited
to, reasonable attorney fees, paralegal and legal support staff
expenses, costs of arbitration, mediation, expert witnesses, exhibits,
reasonable investigations, and reimbursement for all time, expense,
and overhead of all prevailing party personnel or consultants
assisting in the legal action or responding to or investigating a
claim or demand.
APPENDIX A
PREFERRED SERVICE RATE
To the extent the Company provides a preferred service rate to other
government users of its network, Company agrees to offer the City of
Seattle the lowest rate then charged by Company for similar services,
provided to like entities within the United States. Nothing contained
herein shall require Company to provide particular services not
otherwise provided to its customers or to install additional
facilities or expand, modify or upgrade its existing network solely to
accommodate any request made by the City.
