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HomeMy WebLinkAboutOrd 1967 - Telecommunications Transmission Line Franchise with XO Communications ��IILA, .vq� f Q k r r :2 1. I J: :Qlh 4p 1908 City o u lkwila Washington Ordinance No. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, GRANTING A TEMPORARY NON EXCLUSIVE RIGHT -OF -WAY FRANCHISE TO XO COMMUNICATIONS, INCORPORATED, LEGALLY AUTHORIZED TO CONDUCT BUSINESS IN THE STATE OF WASHINGTON, FOR THE PURPOSE OF CONSTRUCTING, OPERATING, AND MAINTAINING A TELECOMMU- NICATIONS TRANSMISSION LINE IN CERTAIN PUBLIC RIGHTS -OF -WAY IN THE CITY; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, XO Communications, Incorporated, hereinafter referred to as "XO" is a telecommunications company that among other things, provides high capacity interexchange transport to telecommunications common including, data transmission, linkage to long distance carriers, video and voice transmission, and other telecommunications services to customers, including those in the Puget Sound Region; and WHEREAS, XO's desired route through the City of Tukwila requires the use of certain portions of City rights -of -way for the installation, operation, and maintenance of a telecommunication system which will include a fiber -optic cables; and WHEREAS, the City Council has determined that the use of portions of the City's rights -of- way for installation of telecommunication transmission lines is appropriate from the standpoint of the benefits to be derived by local business and the region as a result of such services; and WHEREAS, the City Council also recognizes that the use of public rights -of -way must be restricted to allow for the construction of amenities necessary to serve the future needs of the citizens of Tukwila and that the coordination, planning, and management of the City's rights -of- way is necessary to ensure that the burden of costs for the operations of non municipal interests are not borne by the citizenry; and WHEREAS, the City Council has determined that the development of a comprehensive plan for rights -of -way use and management is the most effective means for managing the current use of rights -of -way and ensuring prudent and appropriate decisions concerning the use of rights of -way in the future; and WHEREAS, XO has determined that it is in their best interests to move forward with the installation of facilities within the public rights -of -way prior to the completion of the comprehensive rights -of -way use and management plan and has agreed to abide by the terms and conditions of such a plan once it has been completed; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, DO ORDAIN AS FOLLOWS: XO franchise 8- 01.doc 1 Section 1. Non exclusive Temporary Franchise Granted. A. The City of Tukwila hereby grants to XO, subject to the conditions prescribed in this ordinance "Franchise Agreement the franchise rights and authority to construct, replace, repair, monitor, maintain, use and operate the equipment and facilities necessary for an underground telecommunication transmission system, which includes fiber -optic cable, for within the City -owned rights -of -way generally described below, and shown in Exhibit A, and hereinafter referred to as the "franchise area": 1. From northern City limits at Airport Way South continuing west on Boeing Access Road; continuing south on Interurban Avenue South, then to East Marginal Way to South 130 Street; then west on South 130 Street to Pacific Highway South. 2. That portion of Pacific Highway South from South 130 Street continuing north for approximately 2,100 feet. 3. On Grady Way route continues westerly to Interurban Avenue South, then north to approximately 150 feet south of 56 Avenue South. B. Such franchise shall not be deemed to be exclusive to XO and shall in no way prohibit or limit the City' s ability to grant other franchises, permits, or rights along, over, or under the areas to which this franchise has been granted to XO; provided that such other franchises do not unreasonably interfere with XO's exercise of franchise rights granted herein as determined by the City. This franchise shall in no way interfere with existing utilities or in any way limit, prohibit, or prevent, the City from using the franchise area or affect the City's jurisdiction over such area in any way. Section 2. Authority. The Director of Public Works or his or her designee is hereby granted the authority to administer and enforce the terms and provisions of this Franchise Agreement and may develop such rules, policies, and procedures as he or she deems necessary to carry out the provisions contained herein; including, but not limited to approving additional routes and projects. Section 3. Construction Provisions and Standards. The following provisions shall be considered mandatory and failure to abide by any conditions described herein shall be deemed as non compliance with the terms of this Franchise Agreement and may result in some or all of the penalties specified in Section 4. 1. Permit Required. No construction, maintenance, or repairs (except for emergency repairs) shall be undertaken in the franchise area without first obtaining a Franchise Utility Permit from the City of Tukwila, Department of Public Works. In case of an emergency, XO shall, within 24 hours of the emergency, obtain a Franchise Utility Permit from the City of Tukwila Department of Public Works. 2. Coordination. All capital construction projects performed by XO within the franchise area shall be inspected by a contract inspector. All work and inspection shall be coordinated with the Engineering Division of the Public Works Department to ensure consistency with City infrastructure, future Capital Improvement Projects, all developer improvements, and pertinent codes and ordinances. 3. Construction Standards. Any construction, installation, maintenance, and restoration activities performed by or for XO within the franchise area shall be conducted and located so as to produce the least amount of interference with the free passage of pedestrian and vehicular traffic. All construction, installation, maintenance, and restoration activities shall be conducted such that they conform to City of Tukwila standards in effect at the time that such activities take place, and as detailed in Exhibit B. XO franchise 8- 01.doc 2 4. Underground Installation Required. All telecommunications cables and junction boxes or other vaulted system components shall be installed underground unless otherwise exempted from this requirement, in writing, by the Director of Public Works. S. Relocation. When the City determines that it is necessary for any of XO's facilities or other system components to be moved or relocated to accommodate the maintenance, construction, or enhancement of any City -owned public amenity in the franchise area, the City shall notify XO in writing of such determination, and XO shall promptly submit plans for such relocation. Within 120 days of the approval by the City of the plans for relocation, XO shall relocate those facilities or structures designated by the City. All costs for design, engineering and construction of relocating XO's facilities or structures, shall be the sole responsibility of XO except where XO had paid for the relocation cost at request of the City within the past five years. Relocation must be done in a non discriminatory manner. 6. Removal or Abandonment. Upon the removal from service of any transmission lines or other associated structures, facilities and amenities, XO shall comply with all applicable standards and requirements prescribed by the City of Tukwila Public Works Department for the removal or abandonment of said structures and transmission facilities. 7. Performance Bond. The Public Works Director for the City of Tukwila reserves the right to require XO to obtain a performance bond for any work which the Director deems to pose a threat to any property or public safety. Such bond shall be issued by a company licensed by proper authority of the State of Washington and shall be filed with the City Clerk' s Office until release is authorized by the Public Works Director. 8. "One- Call" Location Liability. XO shall subscribe to and maintain member- ship in the regional "One- Call" utility location service and shall promptly locate all of its lines upon request. The City shall not be liable for any damages to XO's system components or for interruptions in service to XO customers which are a direct result of work performed for any City project for which XO has failed to properly locate its lines and facilities within the prescribed time limits and guidelines established by One -Call. The City shall also not be liable for any damages to the XO system components or for interruptions in service to XO customers resulting from work performed under a franchise utility permit issued by the City. 9. City provided Conduit. In those areas where the City has installed its own conduit, XO may utilize where reasonably, economically, and technically feasible such conduit under separate lease agreement with the City. Such agreement shall be negotiated as to the specific terms and the lease shall be provided at a reasonable rate. 10. As -Built Plans Required. XO shall maintain accurate engineering plans and details of all installations within the City limits and shall provide such information in both paper form and electronic form using the most current AutoCAD version prior to close -out of any Franchise Utility Permit issued by the City and any work undertaken by XO pursuant to this Franchise Agreement. The City shall determine the acceptability of any as -built submittals provided under this section. Section 4. Franchise Compliance. A. Franchise Violations. The failure by XO to fully comply with any of the provisions of this Franchise Agreement may result in a written notice from the City that describes the violations of the franchise and requests remedial action within thirty (30) days of receipt of such notice. If XO has not attained full compliance at the end of the thirty (30) day period following receipt of the violation notification, the City may declare an immediate termination of all franchise rights and privileges; provided that full compliance was reasonably possible within that thirty (30) day period. The demonstration of due diligence on the part of XO may be grounds for an extension in the period during which compliance is to be attained; provided that XO continues to pursue correction of any violations of the Franchise Agreement noted by the City. XO franchise 8- 01.doc 3 B. Emergency Actions. 1. If any of XO's actions, or any failure by XO to act to correct a situation caused by XO is deemed by the City to create a threat to life or property, the City may order XO to immediately correct said situation threat or, at the City's discretion, the City may undertake measures to correct said situation threat itself; provided that, when possible, the City shall notify XO of said threat and give XO an opportunity to correct said threat before undertaking such measures itself. XO shall be liable for all costs, expenses, and damages attributable to the correction of such an emergency situation as undertaken by the City to the extent that such situation was caused by XO and shall further be liable for all costs, expenses, and damages resulting to the City from such situation and any reimbursement of such costs to the City shall be made within thirty (30) days of written notice of the completion of such action or determination of damages by the City. The failure by XO to take appropriate action to correct a situation caused by XO and identified by the City as a threat to public or private safety or property shall be considered a violation of franchise terms and each day that such a situation continues to exist and XO fails to take appropriate action to abate said situation shall be regarded as a separate violation. 2. If during construction or maintenance of XO's facilities any damage occurs to an underground facility and the damage results in the release of natural gas or other hazardous substance or potentially endangers life, health, or property, XO or its contractor shall immediately call 911 or other local emergency response number. C. Other Remedies. Nothing contained in this Franchise Agreement shall limit the City's available remedies in the event of XO's failure to comply with the provisions of this Franchise Agreement, to include but not limited to, the City's right to sue for specific performance and /or damages. D. Removal of System. In the event that this Franchise Agreement is terminated as a result of violations of the terms of this Franchise Agreement, XO shall, at its sole expense, promptly remove all transmission system components and facilities, provided that the City, at its sole option, may allow XO to abandon its facilities in place. Section 5. Insurance. A. XO shall maintain liability insurance written on a per occurrence basis during the full term of this franchise for personal injuries and property damages. The policy shall contain coverage in the following minimum amounts per separate occurrence: 1. $1,000,000 for personal injury or death to any one person and $2,000,000 aggregate for personal injury or death per single accident or occurrence. 2. $1,000,000 for property damage to any one person and $2,000,000 aggregate for property damage per single accident or occurrence. 3. $1,000,000 for all other types liability including claims for damages for invasion of the right of privacy; for defamation of any person, firm, or corporation; for the violation or infringement of any copyright, trademark, trade name, service mark or patent; or, for damage to any other person, firm, or corporation arising out of or alleged to arise out of failure to comply with the provisions of any statute, regulation or resolution of the United States, State of Washington, or any local agency with jurisdiction. B. Such insurance shall specifically name as additional insured, the City of Tukwila, its officers, and employees, and shall further provide that the policy shall not be modified or canceled during the life of the permit or Franchise Agreement without giving thirty (30) days written notice to the City. XO franchise 8- 01.doc 4 C. If the City determines that circumstances warrant an increase in insurance coverage and liability limits to adequately cover the risks of the City, the City may require additional insurance to be acquired. The City shall provide written notice should the City exercise its right to require additional insurance. Section 6. Other Permits and Approvals. Nothing in this agreement shall relieve XO from any obligation to obtain approvals or necessary permits from applicable federal, state, and City authorities for all activities in the franchise area. Section 7. Transfer of Right -of -Way Franchise. A. The rights, privileges, benefits, title, or interest provided by this right -of -way franchise shall not be sold, transferred, assigned, or otherwise encumbered, without the prior written consent of the City, with such consent not being unreasonably withheld or delayed. No such consent shall be required, however, for a transfer in trust, by other hypothecation, or by assignment or any rights, title, or interest in XO telecommunication cable system in order to secure indebtedness. Approval shall not be required for mortgaging purposes provided that the collateral pledged for any mortgage shall not include the assets of this franchise. Approval shall not be required for a transfer if such transfer is from XO to another person or entity controlling, controlled by, or under common control with XO. B. Any administrative costs associated with a transfer of this franchise which requires the approval of the City, shall be reimbursed to the City within thirty (30) days of such transfer. Section 8. Franchise Term. The franchise rights granted herein shall remain in full force and effect for a period of three (3) years from the effective date of this ordinance, or one hundred eighty (180) days from the adoption by the City Council of a rights -of -way use and management plan prescribing new terms and conditions under which XO may occupy City rights -of -way, whichever shall occur first; provided that XO files with the City Clerk, a document acknowledging consent to the terms and conditions herein in the form attached hereto as Exhibit C. Failure on the part of XO to file said consent within thirty (30) days of the effective date of this ordinance shall void and nullify any and all rights granted under this Franchise Agreement. Section 9. Administrative Fees. A. Pursuant to 35.21.860 of the Revised Code of Washington (RCW), the City is precluded from imposing franchise fees for "telephone businesses" defined in RCW 82.04.065, except that fees may be collected for administrative expenses related to such franchise. XO does hereby warrant that its operations as authorized under this franchise are those of a telephone business as defined in RCW 82.04.065. B. XO shall be subject to a $5,000 administrative fee for reimbursement of costs associated with the preparation, processing, and approval of this Franchise Agreement. These costs shall include but not limited to wages, benefits, overhead expenses, equipment, and supplies associated with such tasks as plan review, site visits, meetings, negotiations, and other functions critical to proper management and oversight of City's right -of -way. Administrative fees exclude normal permit processing fees. Payment of the one -time administrative fee is due 30 days after franchise approval. C. In the event XO submits a request for work beyond scope of original franchise, or submits a complex project that requires significant comprehensive plan review or inspection, XO shall reimburse City for reasonable costs associated with the project including any franchise amendment. XO shall pay such costs within thirty (30) days of receipt of bill from the City. D. Failure by XO to make full payment of bills within the time specified shall be considered sufficient grounds for the termination of all rights and privileges existing under this ordinance utilizing the procedures specified in Section 4.A of this ordinance. XO franchise 8- 01.doc 5 Section 10. Capacity for City Use. The City anticipates the future need for data transmission and communications connections that will require telecommunications capacity in XO's fiber -optic system in the City. The terms and conditions for the use of such capacity by the City shall be negotiated under separate agreement between the City and XO. The provision of such capacity by XO for City needs shall not be unreasonably withheld. Section 11. Notices. Any notice to be served upon the City or XO shall be delivered to the following addresses respectively: City of Tukwila Office of the City Clerk 6200 Southcenter Boulevard Tukwila, WA 98188 XO Communications 1000 Denny Way Suite 200 Seattle, WA 98109 Section 12. Claims for Damages. A. In the construction, installation, repair, operation, and maintenance of its structures and facilities, XO shall use reasonable and appropriate precautions to avoid damage to persons or property. XO shall indemnify and save harmless the City from all claims, actions or damages of every kind or description, including reasonable attorney' s and expert witness fees, which may accrue to or be suffered by any person or persons, corporation or property to the extent caused in part or in whole by any negligent act or omission of XO, its officers, agents, servants or employees, carried on in the furtherance of the rights, benefits, and privileges granted to XO by this Franchise. In the event any claim or demand is presented to or filed with the City which gives rise to XO's obligation pursuant to this section, the City shall, within a reasonable time, notify XO thereof and XO shall have a right, at its election, to settle or compromise such claim or demand. In the event any claim or action is commenced in which the City is named a party, and which suit or action is based on a claim or demand which gives rise to XO's obligation pursuant to this section, the City shall promptly notify XO thereof, and XO shall, at its sole cost and expense, defend such suit or action by attorneys of its own election. In defense of such suit or action, XO may, at its election and at its sole cost and expense, settle or compromise such suit or action. Nothing herein shall be construed to require XO to: 1. protect indemnify and /or save the City harmless from any claims, liability, loss, cost, actions, or damages; 2. settle or compromise any claim, demand, suit, or action; 3. appear in or defend any suit or action; or, 4. pay any judgment or reimburse the City' s costs and expenses (including reasonable attorney' s fees), to the extent such claim arises out of the sole negligence or willful misconduct of the City, its officers, agents, servants, or employees. B. To the extent of any concurrent negligence between XO and the City, XO's obligations under this paragraph shall only extend to its share of negligence or fault. The City shall have the right at all times to participate through its own attorney in any suit or action which arises out of any right, privilege, and authority granted by or exercised pursuant to this franchise when the City determines that such participation is required to protect the interests of the City or the public. Such participation by the City shall be at the City's sole cost and expense. XO franchise 8- 01.doc 6 Section 13. Severability. If any section, sentence, clause or phrase of this ordinance is held to be invalid or unconstitutional by a court of competent jurisdiction, the City may, at its sole option, deem the entire franchise to be affected and thereby nullified. However, in the event that a determination is made that a section, sentence, clause, or phrase in this ordinance is invalid or unconstitutional, the City may elect to treat the portion declared invalid or unconstitutional as severable and enforce the remaining provisions of this ordinance; provided that, if the City elects to enforce the remaining provisions of the ordinance, XO shall have the option to terminate the franchise. Section 14. Indemnification. Except as otherwise set forth herein, XO assigns, agrees and covenants to indemnify and hold harmless the City of Tukwila from and against any and all liability, loss, cost, damages, whether to persons or property, or expense of any type or nature, including reasonable attorney's fees and expert witness fees, to the extent it arises from any negligent act or omission or willful misconduct of XO, its successors and assigns arising from or connected to XO work under this franchise, provided, however, that in case any suit or action is instituted against the City by reason of any such damage or injury, City shall: 1. cause written notice thereof to be given unto XO; and 2. provide all reasonably requested assistance in defense or settlement of such claim at XO's expense; and 3. retain the right to control the defense of settlement or such claims. Section 15. Reservation of Rights. The parties agree that this Agreement is intended to satisfy the requirements of all applicable laws, administrative guidelines, rules, orders, and ordinances. Accordingly, any provision of this Agreement or any local ordinance which may conflict with or violate the law shall be invalid and unenforceable, whether occurring before or after the execution of this Agreement, it being the intention of the parties to preserve their respective rights and remedies under the law, and that the execution of this Agreement does not constitute a waiver of any rights or obligations by either party under the law. Section 16. Police Powers. Nothing contained herein shall be deemed to affect the City's authority to exercise its police powers. XO shall not by this Franchise Agreement obtain any vested rights to use any portion of the City right of way except for the locations approved by the City and then only subject to the terms and conditions of this Franchise Agreement. This Franchise Agreement and the permits issued thereunder shall be governed by applicable City ordinances in effect at the time of application for such permits. Section 17. Future Rules, Regulations, and Specifications. XO acknowledges that the City may develop rules, regulations, and specifications, including a general ordinance or other regulations governing telecommunications operations in the City. Such regulations, upon written notice to XO, shall thereafter govern XO's activities hereunder; provided, however, that in no event shall regulations: 1. materially interfere with or adversely affect XO's rights pursuant to and in accordance with this Franchise Agreement; or 2. be applied in a discriminatory manner as it pertains to XO and other similar user of such facilities. Section 18. Effective Date. This ordinance or a summary thereof shall be published in the official newspaper of the City, and shall take effect and be in full force and effect five (5) days after passage and publication as provided by law. XO franchise 8- 01.doc 7 PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this d I)' day of ate Q 2001. ATTEST /AUTHENTICATED: e E. Cantu, CMC, City Clerk APPROVED AS TO FORM: By Office of the tit ttorney FILED WITH THE CITY CLERK: 6"- 6 PASSED BY THE CITY COUNCIL: q- G PUBLISHED: 8' 0 EFFECTIVE DATE: g Z6 d I ORDINANCE NO.: 96 7 L MYVIti Steven M. Mullet, Mayor XO franchise 8- 01.doc 8 LEGEND XO Communications (Completed) XO Communications (Proposed) Tukwila City Limits Date: August 8, 2001 Scale: Not to Scale DISCLAIMER The location of any features and boundaries am approximate and are Intended for reference only. s loom sr XO Communications, Inc. Exhibit A 5 100TH ST a ll I NORTH The intent of this exhibit is to set forth standards and requirements to be met by XO during their construction activity proposed for the route as defined below: This document takes into consideration the 2010 and 2020 City of Tukwila Comprehensive Plans, and the planned designation of utility corridors within the City of Tukwila. These standards will be applied and strictly followed until such time as the City's long -term Right of -Way Management Plan is complete. Definitions: EXHIBIT B XO COMMUNICATIONS, INC. TELECOMMUNICATIONS FRANCHISE TERMS AND CONDITIONS On Grady Way, route continues westerly to Interurban Avenue South, then North to approximately 150 feet south of 56th Avenue South. Utility Corridor: A specifically designated corridor where future utility infrastructure is planned in order to meet planned utility needs. Directional Bore: A minimally- invasive construction technique in which conduit is placed by boring pipe under the surface, and then the conduit pulled back to the start point. This method of construction minimizes damage to the right -of -way, as well as the potential for failing trenches. Holidays: New Years Day, Martin Luther King Jr. Day, Presidents Day, Memorial Day, Independence Day, Labor Day, Veteran's Day, Thanksgiving, and Christmas. Trench and Place: This is a method of construction in which the surface material (pavement, sidewalk, landscaping) is removed, and a trench is dug in order to place conduit. Manhole: An underground structure placed along the conduit path to allow access to the conduit and cable. Handhold: An underground structure not intended for placement in areas with vehicular traffic. Can be placed under surface (requires digging to expose) or flush with sidewalk panels (normally in a sidewalk panel). Pot holing: A method of physically exposing existing utilities in the area of proposed construction. Restoration: The process of restoring the right -of -way after construction activity is complete. Telecommunications Franchise Exhibit B Page 1 Cable: For the purposes of this document, a cable will be defined as a fiber optic cable. Traffic Control: All traffic lane closures and pedestrian re- routing will require Traffic Control Plans to be submitted 48 hours in advance. No daytime closures will be allowed in areas of extreme congestion. General Route Placement Identification: Conduit along the above identified route will be placed, wherever possible, off the main roadway. XO plans identify placement primarily by directional boring, except where an open cut is specifically approved by the City Engineer. Reauired Method of Construction: While the City of Tukwila requests directional bore be used wherever possible, we recognize that the amount of conduit to be placed makes this technique costly and time consuming. Because of this fact, trenching will only be allowed in extreme cases of hardship. XO must demonstrate this hardship by utilizing Quality level A Subsurface Utility Engineering (SUE). SUE is an engineering process for accurately mapping underground utilities. XO must use APS for this SUE work, or Tukwila approved equivalent SUE provider. Contact APS at (425) 313 -1034. Directional bores are shown on XO's construction plans. Permits: The City of Tukwila will issue only those permits for streets, sidewalks and right -of -way controlled by the City. XO is responsible for identifying and obtaining all other required permits from State, Private and Federal agencies. Traffic Control: XO will be required to maintain a minimum of one lane of traffic in each direction during construction activity. Flagmen and positive traffic control signage will be required. A detailed plan for traffic control should be submitted to the City 48 hours in advance of the work beginning. The primary purpose of traffic control is to maintain the safety of vehicular and pedestrian traffic during construction activity. Any deviations that cause a potentially hazardous situation during this activity will require immediate correction. Telecommunications Franchise Exhibit B Page 2 Work -Hour Restrictions: When working in the City Right -of -Way, XO shall comply with Chapter 8 of the Tukwila Municipal Code. Upon completion of plan review, and prior to permit approval, City and XO Representatives will meet and work out specific work hour schedules that minimizes right of -way impact. Manhole, Stub Conduit, and Citu Conduit Placement: Manholes (or handholes) will be required at or near (within 75 feet) the following north- south; east -west corridors: TBD. NOTE: Stub Conduit will only be required at points where the conduit is placed in the roadway at these intersections. Manholes or handholes will be placed where the conduit is in the sidewalk or on the shoulder of the roadway. Placement of two (2) 2" PVC Schedule 80 (Schedule 40 is acceptable in areas outside the roadway and in bore casings) conduits for future City use shall include Utility Vault manholes, model No. 444 with lids labeled 'City of Tukwila', at all major intersections for City use only. Utility Locates: Construction locates will be called out prior to all construction activity in accordance with the State of Washington One -Call system requirements. The Utility Locate Center telephone number is 1- 800 424 -5555. Restoration Reauirements: Restore all disturbed areas of the right -of -way to conform to the specific restoration require- ments identified in the City of Tukwila Infrastructure Design and Construction Standards, and the WSDOT /APWA Standard Specifications. In general, the right -of -way will be restored to equal or better condition immediately following conduit placement. Photographs and videos showing the before condition must be submitted, with labels of locations prior to work commencing in that vicinity. When weather conditions prevent immediate restoration, the City Inspector will be notified, and a schedule for restoration will be determined. Where sidewalk panels are damaged in any way, they will be replaced, unless the City Inspector gives written permission otherwise. Telecommunications Franchise Exhibit B Page 3 Where roadway surface is damaged in any way, the contractor will restore trench following the City standard patch detail. The materials removed from the trench will not, under any circumstance, be used to backfill after placement of the conduit. The following trench standards will be followed: 0 All trench edges will be saw -cut on both sides of the trench prior to replacement of surface material. See Tukwila standard RS -3. LI Minimum cover from top of conduit to road surface will be 42 o Backfill will be 5/8" Minus Compacted Crushed Rock outside roadway areas and will be controlled density fill in all roadway areas. 0 Concrete sub -base will be placed at a depth equal to 150% of the existing sub -base that was removed. Where no sub -base existed, concrete sub -base will be a minimum of 6" depth. 0 Asphalt concrete or bituminous plant mix replacement will be placed at a minimum depth of 4" above the concrete sub -base. The asphalt patch will be placed in a "T" -cut manner to a distance of 8" on both sides of the trench. 0 Compaction of the backfill will be at 95% of maximum density, in 6" lifts. Determination of adequacy will be by Nuclear gauge. 0 Where the conduit is placed under the sidewalk the backfill material identified above will be used, but will be placed to the point where the sidewalk panel will be poured. Trench Cut Mitigation Fee: The City of Tukwila Right of Way Management Plan provides documentation that trench cuts cause damage to adjacent pavements, that the damage is significant, and that a substantial asphalt concrete overlay is required to replace the loss of structural strength to the street. The damaged is considered to impact the entire roadway lane width. For portland cement concrete roadways, the entire slab is considered damaged and will require entire replacement. The City has studied these cost impacts and has formulated the following fee schedule, as a pavement trench cut mitigation fee, that is based on the square foot (SF) measurement of the impacted roadway lane width: Telecommunications Franchise Exhibit B Page 4 120 -15 (100 1 15 -10 (75 1 10 -7 (50 7 -5 (33 5 -2 (25 2 -1 (10 0 to 1 Cleanup: Warrantu: Dated: July 12, 2001 th) $10.00 $7.50 $5.00 $3.30 $2.50 $1.00 $0.00 Cleanup will take place on a daily basis. No spoils will be left in the right -of -way, and spoils will not be allowed to invade any area outside the designated work area during construction activity. All work performed will be warranted for a minimum of one -year from the date of formal acceptance by the City of Tukwila. Telecommunications Franchise Exhibit B Page 5 Date: 9/2 S'/o Ms. Jane Cantu Office of the City Clerk City of Tukwila 6200 Southcenter Boulevard Tukwila, WA 98188 Re: Ordinance No. 1967 Dear Ms. Cantu: In accordance with and as required by Section 8 of City of Tukwila Ordinance No. 1967 passed by the City Council and approved by the Mayor on August 20, 2001 (the "Ordinance XO Communications, Inc., hereby accepts the terms, conditions and obligations to be complied with or performed by it under the Ordinance to the extent that the Ordinance conforms to Section 253 of the Telecommunications Act of 1996 (codified under 47 USC 253). Sincerely, Signature C C t Printed Name I;,,z A o�vy (1 k-i A p o iZ i L t Title Franchise Acceptance Form SEP -21 -2001 FRI 10:46 AM HOBBS COLUMBIA FAX NO. 151045493 SEP.20'2001 17:47 7035472420 XO Cv1MNNICATION5 DATE: 9/20/2001 REQUEST FOR CERTIFICATE OF INSURANCE TO: Janie R. Fugal FAX; 703 -647 -2420 Risk Manager VOICE: 703- 547 -2471 Affiliate: XO Washington, Inc. Attention: Norman Rehrmann. Phone: 205/315- 6347. Address; 1633 Westlake Avenue North, Suite 200 Fax; 206/315 -6362 Seattle, WA 98109 Regular Mail; OR RUSH? Air Express Cert:iEicato Holder City of Tukwila Attention; Office of the City Clerk Address: 6200 Souehcenter Boulevard Tukwila, WA 987.88 Regular Mail OR RUSH? Air Express Fax L.-` ADDITIONAL INSURED REQUIRED EX LEASE /CONTRACT: Yoe No If yes, specify all parties to be named as an additional insured: WAIVER OF BUSRoOATION REQUIRED DI LEASE /CONTRACT: TEIrCO SERVICES AT Cite Franchise LEASED PREMISES: ItlssUrance Coverages General Liability az, DX, Death Property Damage Automobile Work Comp /Employer's Liability Property (direct physical loss) Other Umbrella Insurance Limits Required ,61,000,000/$2,000,000 $1,000,000 *7302 P.002 /002 Fax Phone: 206/433 -0179 Fax: 206/431 -3665 Yes 1 WC coverage for OH, WC and WV Is purchased from the respective state fund. As such e separate certificate will have to be requested from the Mete if WC coverage needs to be evidenced, ft oennot be shown as part of the master program, P. 02 SEP -21 -2001 FRI 10:47 AM HOBB•ROUP COLUMBIA FAX NO. 151 95493 P. 03 ACORD,. CERTIFICATE OF INSURANCE 09/21/01 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND Hobbs Group, LLC CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE 10420 Little Patuxent Parkway DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE Y POLICIES BELOW. Suite 550 Columbia, MD 21044 -3559 COMPANIES AFFORDING COVERAGE INSURED XO WASHINGTON, INC. 1633 WESTLAKE AVENUE NORTH SUITE 200 SEATTLE, WA 98109 CO LTR A GENERAL LIABILITY X COMMERCIAL GENERAL LIABILITY 1CLATMS M/IDF. [LIOCCUR. !OWNER'S CONTRACTOR'S PROT A AUTOMOBILE LIABILITY X .1 ANY AUTO TYPE OF INSURANCE POLICY NUMBER ALL OWNED AUTOS SCHEDULED AUTOS HIRED AUTOS GARAGE LinnilJTY OTHER NON OWNCD AUTOS B EXCESS UABILITY X UMBRELLA FORM OTHER THAN UMBRELLA FORM WORKER'S COMPENSATION AND EMPLOYERS' LIABILITY CERTIFICATE HOLDER CITY OF TUKWILA OFFICE OF THE CITY CLERK 6200 SOUTHCENTER BOULEVARD SEATTLE, WA 98188 TE064012221 ALL OTHER STATES MA06400005 TF06401222 TE0640122101 $1,000 DED $1,000 DED BE7393535 MASS VA TX DESCRIPTION OF OPIeRATONSlLOCA11ONSNEHICLES )SPECIAL ITEMS RE: TELCO SERVICES AT: CITY FRANCHISE ACORD25- S(7/90) 1 of 1 ##S152310/M13'7367 COMPANY A St Paul Fire Marine Insurance Co. LETTER COMPANY B American International. Cos. LETTER COMPANY C LETTER COMPANY D LETTER coMPANY E LETTER ATTN: NORMAN REHRMANN COVERAGES THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTI-IWITHSTANDING ANY REQUIREMENT. TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICI I THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN. THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS THE SUBJECT TO ALL THE TERMS EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. 1 POLICY EFFECTIVE POLICY EXPIRATION PATE (MM/DD/YY) DATE (MM/DDIYY) TE06401221 10/01/00 10/01/01 10/01/00 1 10/01/00 1 0/ 0 1/ 0 0 COMP COLL 10/01/0010/01/01 CANCELLATION 10/01/01 10/01/01 10/01/01 10/01/01 GENERAL AGGREGATE $2 0 0 0 0 0 0 PRODUCTSCOMP/oP AN.,G 32 0 0 0 0 0 PERSONAL ADV. IN.IURY £l 0 0 0 0 0_ EACH OCCURRENCE. $1 0 0 0, 0 0 I FIRE DAMAGE (Any one Pre) $1 000 000 MED EXPENSE (Anyone petsonji S1 0 0 0 0 COMBINED SINGLE LIMIT BODILY INJURY (Por por;or) BODILY INJURY (Per aci id6nt) LIMITS PROPERTY DAMAGE S ISSUE DATE (MMIDD/YY) STATUT LIMITS $1,000,000 3 EACH OCCURRENCE I $5 000 000 AGGREGATE $I5, 000 000 EACH ACCIDENT 5 DISEASE POLICY LIMIT DISEASE -EACH EMPLOYEE SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT. BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON TIJE COMPANY, ITS AGENTS OR REPRESENTATIVES. AUTHORIZEn REPRESENTATIVE P a ti JJO 0 ACORD CORPORATION 1990 FIR AN'S FUND INSURANCE COMPANY NATIONAL SURETY CORPORATION ASSOCIATL NDEMNITY CORPORATION THE AMERICAN INSURANCE COMPANY AMERICAN AUTOMOBILE INSURANCE COMPANY KNOW ALL MEN BY T'cHESF PRESENTS: That FIREMAN'S FUND INSURANCE COMPANY, a California corporation. NATIONAL SURETY CORPORATION. an Illinois corporation. THE AMERICAN INSURANCE COMPANY. a New Jersey corporation redomesticated in Nebraska. ASSOCIATED INDEMNITY CORPORATION. a California corporation. and AMERICAN AUTOMOBILE INSURANCE COMPANY, a Missouri corporation. (herein collectively_ "the Companies does each hereby appoint JOSEPH G G. D ELANEY B B. PATRICIA BLAIR, DIANE S S. LOUGHRY COLU IA MD their true and lawful Anomey(s) -in -Fact. with full power of authority hereby conferred in their name. place and stead. to execute. seal. acknowledge and deliver any and all bonds. undertakings. recognirancec or other written obligations in the nature thereof and to bind the Companies thereby as fully and to the same extent as if such bonds were signed by the President. sealed with the corporate seals of the Companies and duly attested by the Companies' Secretary. hereby ratifying and confirming all that the said Attorney(s)-in-Fact may do in the premises. This power of attorney is granted under and by the authority of Article VII of the By -laws of FIREMAN'S FUND INSURANCE COMPANY. NATIONAL SURETY CORPORATION, THE AMERICAN INSURANCE COMPANY. ASSOCIATED INDEMNITY CORPORATION and AMERICAN AUTOMOBILE INSURANCE COMPANY which provisions are now in full force and effect. This power of attorney is signed and sealed under the authority of the following Resolution adopted by the Board of Directors of FIREMAN'S FUND INSURANCE COMPANY. NATIONAL SURETY CORPORATION, THE AMERICAN INSURANCE COMPANY. ASSOCIATED INDEMNITY CORPORATION and AMERICAN AUTOMOBILE INSURANCE COMPANY at a meeting duly called and held. or by written consent. on the 19th day of March. 1995, and said Resolution has not been amended or repealed: "RESOLVED, that the signature of any Vice President. Assistant Secretary, and Resident Assistant Secretary of the Companies. and the seal of the Companies may be affixed or printed on any power of attorney, on any revocation of any power of attorney, or on any certificate relating thereto. by facsimile. and any power of attorney. any revocation of any power of attorney. or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Companies." IN WITNESS WHEREOF, the Companies have caused these, to be signed by their Vice- President, and their corporate seals to be unto affixed t this 1 day of Mar cCt 11 STATE OF CALIFORNIA 360791 -11 -98 SS. COUNTY OF MARIN On this _16 day of March et SS. Signed and sealed at the County of Marin. Dated the A /a— ui rr c4 STA e Judy K. Bechtold Vi z: GENERAL POWER OF ATTORNEY 19 9 9_ before me personally came /4-Alto L J7 to me known. who. being by me duly sworn. did depose and say: that he is a Vice- President of each company, described in and which executed the above instrument: that he knows the seals of the said Companies; that the seals affixed to the said instrument are such company seals; that they were so affixed by order of the Board of Directors of said companies and that he signed his name thereto by like order. IN WITNESS WHEREOF. I har semstuebaesmetahand.eaddaseCLEMStragaleff. the day and year herein first above written. Comm. #1009437 NOTARY PUSUC CALIFORNIA,,, SONOMA COUNTY Comm. Exp. June 2. 2000 LE GATE STATE OF CALIFORNIA COUNTY OF MARIN I. the undersigned, Resident Assistant Secretary of each company. DO HEREBY CERTIFY that the foregoing and attached POWER OF ATTORNEY remains in full force and has not been revoked: and furthermore that Article VII of the By -laws of each company. and the Resolution of the Board of Directors: set forth in the Power of Attorney. are now in force. 10th day of Septeirber FIREMAN'S FUND INSUR NATIONAL SUR THE AMERICAN INSU A$$OCIATED INDEMN AMERICAI`1AUTOMOBILE INS B �v C.L Vt- U^.�, 2001 E COMPANY RPORATION COMPANY CORPORATION NCE COMPANY LICENSE OR PERMIT BOND KNOW ALL BY THESE PRESENTS, That we, XO Washinaton. Inc. as Principal and Fireman's Fund Insurance Company a California corporation, as Surety, are held and firmly bound unto City of Tukwila. 6200 Southcenter Blvd.. Tukwila. WA 98188 as Obligee, in the sum of Ten Thousand and no /100 Dollars ($10,000.00) for which sum, well and truly to be paid, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents. Sealed with our seals, and dated this 10` day of September 2001 THE CONDITION OF THIS OBLIGATION IS SUCH, That WHEREAS, the Principal has been or is about to be granted a license or permit for riaht- of -wav construction by the Obligee. NOW, THEREFORE, If the Principal well and truly comply with applicable local ordinances, and conduct business in conformity therewith, then this obligation to be void; otherwise to remain in full force and effect. PROVIDED HOWEVER: 1. This bond shall continue in force: Until the Surety. OR X Until cancelled as herein provided. 2. This bond may be cancelled by the Surety by the sending of notice in writing to the Obligee, stating when, not Tess than thirty days thereafter, liability hereunder shall terminate as to subsequent acts or omissions of the Principal. Witness or until the date of expiration of any Continuation Certificate executed by XO Washington, Inc. By: Supercedes Replaces Safeco Bond #6061910 (_v •Pik v�4 /7/1-"v1 Title Fireman's Fund Insurance Company By: .La-11.x= 'CFU Diane S. Loughry, Attorney -in -act J- Bond No. 11127496112 CITY OF TUKWILA SUMMARY OF ORDINANCE NO. 1967 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, GRANTING A TEMPORARY NON EXCLUSIVE RIGHT -OF -WAY FRANCHISE TO XO COMMUNICATIONS, INCORPORATED, LEGALLY AUTHORIZED TO CONDUCT BUSINESS IN THE STATE OF WASHINGTON, FOR THE PURPOSE OF CONSTRUCTING, OPERATING, AND MAINTAINING A TELECOMMU- NICATIONS TRANSMISSION LINE IN CERTAIN PUBLIC RIGHTS -OF -WAY IN THE CITY; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. On August 20, 2001, the City Council of the City of Tukwila passed Ordinance No.1967, granting XO Communications, Incorporated, the franchise rights and authority to construct, replace, repair, monitor, maintain, use and operate the equipment and facilities necessary for an underground telecommunication transmission system, which includes fiber optic cable; providing for severability; and establishing an effective date. The full text of this ordinance will be mailed without charge to anyone who submits a written request to the City Clerk of the City of Tukwila for a copy of the text. APPROVED by the City Council at its meeting of 8/20/01. Published Seattle Times: 8/24/0 Jane Cantu, CMC, City Clerk