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HomeMy WebLinkAboutOrd 1943 - Telecommunications Transmission Line Franchise with Touch America s r� J��ILA:.GV� rsj+ A O 9 08 C ity o Washington Ordinance No. f f i�5 AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, GRANTING A TEMPORARY NON- EXCLUSIVE FRANCHISE TO TOUCH AMERICA, INC. A MONTANA CORPORATION LEGALLY AUTHORIZED TO CONDUCT BUSINESS IN THE STATE OF WASHINGTON, FOR THE PURPOSE OF CONSTRUCTING, OPERATING, AND MAINTAINING A TELECOMMUNICATIONS TRANSMISSION LINE IN CERTAIN PUBLIC RIGHTS -OF -WAY IN THE CITY; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, TOUCH AMERICA, INC, hereinafter referred to as "TA," is a competitive telecommunications company providing resold inter -LATA and intra -LATA presubscribed direct dialed (1 long distance telecommunications service, Calling Card service, 800 service, dedicated outbound service and dedicated inbound 800 service to customers, including those in the Puget Sound region; and WHEREAS, TA desires to extend its services to certain businesses and residences located within the corporate limits of the City of Tukwila; and WHEREAS, TA's desired route through the City of Tukwila, hereinafter referred to as "City," requires the use of certain portions of City rights -of -way for the installation, operation, and maintenance of a telecommunication system which will include 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 stand- point of the benefits to be derived by local businesses, residences, 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, TA 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 compre- hensive 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: Touch America franchise 12 -00 1 Section 1. Non exclusive Temporary Franchise Granted. A. The City of Tukwila hereby grants to TA, 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, within the City -owned rights -of -way generally described below, and shown in Exhibit A, and hereinafter referred to as the "Franchise Area Route description for conduit and cable placement in the City Of Tukwila: Approximately 6,864 feet (1.3 miles) consisting of a route beginning in the vicinity of 62nd Avenue South and Southcenter Boulevard. The system continues in a westerly direction along Southcenter Boulevard where it turns to South 154th Street and exits the western city limits in the vicinity of Tukwila International Boulevard (Pacific Highway). B. Such franchise shall not be deemed to be exclusive to TA 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 agreement has been granted to TA, provided that such other franchises do not unreasonably interfere with TA'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. 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, TA 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 TA 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 TA 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. 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. 5. Relocation. When the City determines that it is necessary for any of TA's facilities or other system components to be moved or relocated to accommodate the maint- enance, construction, or enhancement of any City -owned public amenity in the franchise area, the City shall notify TA in writing of such determination, and TA shall promptly submit plans for such relocation. Within 120 days of the approval by the City of the plans for relocation, TA shall relocate those facilities or structures designated by the City. All costs of moving or Touch America franchise 12 -00 2 relocating such facilities or structures, including but not limited to costs for design, engineering and construction, shall be the sole responsibility of TA except where TA 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, TA 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 TA 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 and liability. TA 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 system components or for interruptions in service to TA customers which are a direct result of work performed for any City project for which TA 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 TA system components or for interruptions in service to TA customers resulting from work performed under any franchise utility permit issued by the City. 9. City provided conduit. In those areas where the City has installed its own conduit, TA shall utilize 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. TA 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 AutoCAD 14, or a more recent release, prior to close -out of any franchise utility permit issued by the City and any work undertaken by TA 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 TA to fully comply with any of the provisions of this franchise agreement may result in a written notice from the City which describes the violations of the franchise agreement and requests remedial action within thirty (30) days of receipt of such notice. If TA 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 TA may be grounds for the grant of an extension in the period during which compliance is to be attained, provided that TA continues to pursue correction of any violations of the franchise agreement noted by the City. B. Emergency actions. 1. If any of TA's actions, or any failure by TA to act to correct a situation caused by TA, is deemed by the City to create a threat to life or property, the City may order TA 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 TA of said threat and give TA an opportunity to correct said threat before undertaking such measures itself. TA 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 TA 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 TA to take appropriate action to correct Touch America franchise 12 -00 3 a situation caused by TA and identified by the City as a threat to public or private safety or property shall be considered a violation of the franchise agreement terms and each day that such a situation continues to exist and TA fails to take appropriate action to abate said situation shall be regarded as a separate violation. 2. If during construction or maintenance of TA'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, TA 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 TA'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, TA shall at its sole expense, promptly remove all transmission system components and facilities, provided that, the City, at its sole option, may allow TA to abandon its facilities in place. Section 5. Insurance. A. TA 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 name the City of Tukwila as additionally insured and shall contain coverage in the following minimum amounts per separate occurrence: 1. Personal Injury $5,000,000 per person and $10,000,000 per occurrence. 2. Property Damage $5,000,000 per claimant and $10,000,000 per occurrence. B. $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. C. Such insurance policy shall also contain a policy provision that it cannot be revoked, canceled, or reduced without thirty (30) days advance written notice to the City, and TA shall, upon request by the City, annually provide proof of such insurance to the City Clerk's Office. Section 6. Other Permits and Approvals. Nothing in this agreement shall relieve TA 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 Ownership. A. The rights, privileges, benefits, title, or interest provided by this 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 of any rights, title, or interest in TA's telecommunication 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, or if such transfer is from TA to another person or entity controlling, controlled by, or under common control with TA. TA may license fibers to other users without the consent of the City provided TA remains solely responsible for the terms and conditions outlined in this franchise agreement. B. In any transfer of this franchise agreement which requires the approval of the City, TA shall show that the recipient of such transfer has the technical ability, financial capability, and any other legal or general qualifications as reasonably determined by the City to be necessary to ensure that the obligations and terms required under this franchise agreement can Touch America franchise 12 -00 4 be met to the full satisfaction of the City. The qualifications of any transferee shall be determined by hearing before the City Council and the approval to such transfer shall be granted by resolution of the City Council. Any administrative costs associated with a transfer of this franchise that 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 management plan prescribing new terms and conditions under which TA may occupy City rights -of -way, whichever shall occur first, provided that TA files with the City Clerk a document acknowledging consent to the terms and conditions herein in the form attached hereto as Exhibit C, and that such plan is applied in a non discriminatory and competitively neutral manner. Failure on the part of TA 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. TA 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. TA shall be subject to a $3,000 administrative fee for reimbursement of all 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 thirty (30) days after franchise approval. C. In the event TA submits a request for work beyond the scope of this franchise agreement, or submits a complex project that requires significant comprehensive plan review, or inspection, TA shall reimburse City for franchise agreement amendment and expenses associated with the project. TA shall pay such costs within thirty (30) days of receipt of bill from the City. D. Failure by TA 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 4A of this ordinance. Section 10. Capacity for City Use. The City anticipates the future need for data transmission and communications connections that will require telecommunications capacity in TA 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 TA. The provision of such capacity by TA for City needs shall not be unreasonably withheld. Section 11. Notices. Any notices to be served upon the City or TA shall be delivered to the following addresses respectively: City of Tukwila Office of the City Clerk 6200 Southcenter Boulevard Tukwila, WA 98188 Mr. Price Williams, Project Manager Touch America, Incorporated 1315 North Main Street Butte, Montana 59601 Touch America franchise 12 -00 5 Section 12. Claims for Damages. A. In the construction, installation, repair, operation, and maintenance of its structures and facilities, TA shall use reasonable and appropriate precautions to avoid damage to persons or property. TA 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 TA, its officers, agents, servants or employees, carried on in the furtherance of the rights, benefits, and privileges granted to TA by this franchise agreement. In the event any claim or demand is presented to or filed with the City which gives rise to TA obligation pursuant to this section, the City shall, within a reasonable time, notify TA thereof and TA 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 TA obligation pursuant to this section, the City shall promptly notify TA thereof, and TA 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, TA may, at its election and at its sole cost and expense, settle or compromise such suit or action. This section shall not be construed to require TA to: 1. protect and save the City harmless from any claims, 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 of the City. B. To the extent of any concurrent negligence between TA and the City, TA 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 agreement 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. 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, TA shall have the option to terminate the franchise agreement. Section 14. Indemnification. TA 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 TA, its successors and assigns arising from or connected to TA 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 TA; and 2. provide all reasonably requested assistance in defense or settlement of such claim at TA's expense; and 3. retain the right to control the defense of settlement or such claims. Touch America franchise 12 -00 6 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. TA 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. 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. TA 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 TA, shall thereafter govern TA activities hereunder; provided, however, that in 110 event shall regulations: 1. materially interfere with or adversely affect TA rights pursuant to and in accordance with this franchise agreement; or 2. be applied in a discriminatory manner as it pertains to TA 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. PASSED BY THE CITY COU Regular Meeting thereof this ATTEST/AUTHENTICATED: e E. Cantu, CMC, City Clerk APPROVED AS TO FORM: By Office of the C(y Attorney FILED WITH THE CITY CLERK: 7— 0 PASSED BY THE CITY COUNCIL: r 9- Z` PUBLISHED: 12 5 EFFECTIVE DATE: r p p ORDINANCE NO.: 9 4 /3 L OF THE o OF TUKWILA, WASHINGTON, at a day of ,&i_.-6,-4-14,46-Ac, 2000. Steven M. Mullet, Mayor Touch America franchise 12 -00 7 1- 405 SeaTac m )3v S150TH ST S152.140 ST U L SiOTH ST 1 Proposed Route Corp. America, Inc.�AT &T Touch A Fiber Optic Build 1 S158THST T S1 54ThST S1BO THST I 025 0.5 N Mil 1 connect tu.ncLanes Proiect November 6, 2000 pas °d °ad ovio legis4 (soileo4 SOO OAS (-7 I stit jS! S 4s EXHIBIT B TOUCH AMERICA TELECOMMUNICATIONS FRANCHISE TERMS AND CONDITIONS The intent of this exhibit is to set forth the standards and requirements to be met by Touch America, during their construction activity proposed for the route as defined below: D efinitions Route description for conduit and cable placement in the City Of Tukwila: Approximately 6,864 feet consisting of a route beginning in the vicinity of 62nd Avenue South and Southcenter Boulevard. The system continues in a westerly direction along Southcenter where it turns to South 154th Street and exits the western City limits at Tukwila International Boulevard (Pacific Highway). 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. Handhole: 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. Cable: For the purposes of this document, a cable will be defined as a fiber optic cable. Telecommunications Franchise Exhibit B Page 1 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. TOUCH AMERICA, plans identify placement primarily on the (TBD) edge of the roadway. Reauired Method of Construction While the City of Tukwila requests directional bore be used wherever possible, we recognize that the use to which the City may place the conduit being installed for Tukwila as a condition of this agreement may make boring impossible due to separation requirements associated with placement of fiber optic cables near electric lines. Because of this fact, trenching will be allowed along the entire route, with the exception of those streets that have recently been re- paved, and in areas where conduit will be placed under rivers, streams, etc. There will be a 5 -year open cut moratorium on streets that have been recently re- paved. Those areas where directional bores will be used shall be shown on the Touch America construction plans unless identified otherwise. Permits The City of Tukwila will issue only those permits for streets, sidewalks and right -of -way controlled by the City. Touch America is responsible for identifying and obtaining all other required permits from State, private and federal agencies The Franchisee shall sign an "Authorization for Special Billing" for contract inspection to monitor compliance with approved plans, traffic control operations, infrastructure impacts. Contract Inspector will be chosen by City and will bill directly to Franchisee. Traffic Control Touch America will 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 prior to commence- ment of work. 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 Work may take place during the following hours only: MON FRI: 9 AM 3PM 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: See Plans. 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" HDPE conduits for future City use shall include six (6) manholes/ handholes at major intersections for City use only. The City manhole /handhole covers shall have distinct identification permanently marked on the covers by welding or other approved means. 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. Potholing SAT SUN: 7 Am- 7 PM 7 PM 6 AM except in the area immediately south of I -405 where there are hotels. Day work only will be allowed in this area. HOLIDAYS: No work allowed on holidays During construction activity, Touch America will pothole all located utilities within 5 feet of the proposed running line. In areas where the running line is relocated in the field due to sub surface structures not known, the pot- holing distance will be 5 feet from the new running line. Touch America will document potholing results on as -built plans to be submitted to City for official record drawing purposes. Professional survey standards will be required. Telecommunications Franchise Exhibit B Page 3 All potholing will be by the air /vacuum method, with holes no greater than 12" diameter. Holes will be backfilled with CDF and topped with hot mix asphalt patches. Contact Bill Massengill /APS, at 425 313 -1034 as a suggested contact for this service. 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. 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: All trench edges will be saw -cut on both sides of the trench prior to replacement of surface material. See Tukwila standard RS -3. Minimum cover from top of conduit to road surface will be 42 Backfill will be 5/8" Minus Compacted Crushed Rock outside roadway areas and will be controlled density fill in all roadway areas 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. 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. Compaction of the backfill will be at 95% of maximum density, in 6" lifts. Determination of adequacy will be by Nuclear gauge. 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. Telecommunications Franchise Exhibit B Page 4 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 damage 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 1 20 -15 (100 15 -10 (75 10 -7 (50 7 -5 (33 5 -2 (25 2 -1 (10 0 to 1 Cleanun $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. Warranty 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: City of Tukwila Attn: City Clerk's Office 6200 Southcenter Blvd. Tukwila, WA 98188 Re: Ordinance Dear Ms. Cantu: In accordance with and as required by Section of City of Tukwila Ordinance passed by the City Council and approved by the Mayor on (the "Ordinance Touch America, Inc. hereby accepts the terms, conditions and obligations to be complied with or performed by it under the ordinance. Sincerely, Signature Adopted Printed name /title EXHIBIT C Franchise Acceptance Form RIGHT -OF -WAY USE AGREEMENT Between City of Tukwila AND Touch America This AGREEMENT is made and entered into on the day of 2000, by and between the City of Tukwila (CITY) and Touch America. This AGREEMENT is made pursuant to Section 10 of Franchise Agreement between Touch America and CITY. AGREEMENT shall become effective on WHEREAS Touch America is a telecommunications company that, among other things, provides inter- and intra -local area telephone access (inter -LATA, intra -LATA) direct dialed long distance service, calling card service, and inbound and outbound 800 service to customers in the Puget Sound area; and WHEREAS Touch America's desired route through the CITY requires the use of certain portions of CITY rights -of -way for the installation, operation, and maintenance of a telecommunications infrastructure that will include a fiber optic system; and WHEREAS City Council has determined that the use of portions of the CITY's rights of -way for installation of telecommunications transmission lines is appropriate; and WHEREAS CITY has determined a need for a conduit system along same route as Touch America; now, therefore, The CITY and Touch America enter into an agreement as follows: 1. Touch America shall provide and install two (2) each, two inch (2 conduits with pullboxes for and on behalf of the CITY. Conduits and pullboxes shall be provided at no cost to the CITY. 2. CITY facilities shall be installed alongside and concurrently with the Fiber Optic System within the borders of the CITY. 3. The CITY facilities will not be connected to Touch America's access structures and vaults. 4. CITY pullboxes shall have distinct identification permanently marked on the covers by welding or other means approved by CITY. 5. The CITY facilities shall be owned by the CITY and once installed shall assume total responsibility. In consideration for the services provided, CITY shall pay Touch America ten dollars ($10.00) due immediately after both parties have signed AGREEMENT. IN WITNESS WHEREOF, each party has executed this AGREEMENT on the date set forth below: CITY OF TUKWILA TOUCH AMERICA. Steve Mullet Mayor Date: 10 -e /off 249 0 Date: City At December 18, 2000 City of Tukwila 6200 Southcenter Boulevard Tukwila, Washington 98188 Steven M Mullet, Mayor Touch America, Inc. 1315 North Main Street Butte, Montana 59601 Attn: Mr. Price Williams, Project Manager Re: City of Tukwila Franchise Ordinance No. 1943 Dear Mr. Williams: At a Special Meeting on Monday, December 11, 2000, the Tukwila City Council adopted Ordinance No. 1943 granting a temporary non exclusive franchise to Touch America, Inc., for the purpose of constructing, operating, and maintaining a telecommunications transmission line in certain public rights -of -way in the City. The effective date of the ordinance is Wednesday, December 20, 2000. A copy of the ordinance, along with Exhibits A, B, and C, is provided for your records. Please sign Exhibit C, Franchise Acceptance Form, and return it to this office no later than January 19, 2001. Also enclosed is an original and one copy of a Right -of -Way Use Agreement between the City of Tukwila and Touch America, Inc. Please sign both the original and the copy of this document and return the original document to me. If you have questions, I may be reached at 206 433 -1800. Sincerely, ne E. Cantu, City Clerk Enc: Copy of Ord. 1943 with exhibits; Right -of -Way Use Agreement C: Frank Iriarte, Public Works Coordinator Phone: (206) 433 -1800 City Hall Fax (206) 433 -1833 DOPY CITY OF TUKWILA SUMMARY OF ORDINANCE NO. 9 V3 AN ORDINANCE OF THE CITY OF TUKWILA, WASHINGTON, GRANTING A TEMPORARY NON EXCLUSIVE FRANCHISE TO TOUCH AMERICA, INC., A MONTANA CORPORATION LEGALLY AUTHORIZED TO CONDUCT BUSINESS IN THE STATE OF WASHINGTON, FOR THE PURPOSE OF CONSTRUCTING, OPERATING, AND MAINTAINING A TELECOMMUNICATIONS TRANSMISSION LINE IN CERTAIN PUBLIC RIGHTS -OF -WAY IN THE CITY; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. On /07 /1/ GLO the City Council of the City of Tukwila passed Ordinance No. 9 V3 granting Touch America, Inc., 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; 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. .1/// APPROVED by the City Council at its meeting of Published Seattle Times: AO to -a imfa L /a1/1 `I-6 Jan -Cantu, CMC, City Clerk