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HomeMy WebLinkAboutCOW 2013-10-14 Item 4D - Ordinance - Non-Exclusive Franchise to Electric Lightwave LLCCOUNCIL AGENDA SYNOPSIS Initials Meetin Date Pr oared b Ma o '.r re ie . Council review 10/14/13 BG ' mji n ��� ■ 10/21/13 BG ❑ Bid Award Mtg Date ❑ Public Hearing IlItg Date ❑ Other Mtg Date CATEGORY /1 Discussion ■ Ordinance Mtg Date Mg Date 10/21/13 SPONSOR ❑ Council ❑ Mayor ❑ HR ❑ DCD ❑ Finance ❑ Fire ❑ IT ❑ P &R ❑ Police ■ PTV ITEM INFORMATION ITEM No. 35 STAFF SPONSOR: BOB GIBERSON ORIGINAL AGENDA DA IL, : 10/14/13 AGENDA ITEM TITLE Ordinance Granting a Non - Exclusive Electric Lightwave, LLC Franchise Agreement with 10/14/13 ❑ Motion Mtg Date ❑ Resolution Mtg Date ❑ Bid Award Mtg Date ❑ Public Hearing IlItg Date ❑ Other Mtg Date CATEGORY /1 Discussion ■ Ordinance Mtg Date Mg Date 10/21/13 SPONSOR ❑ Council ❑ Mayor ❑ HR ❑ DCD ❑ Finance ❑ Fire ❑ IT ❑ P &R ❑ Police ■ PTV SPONSOR'S Electric Lightwave, LLC (ELI) Franchise Agreement Ordinance No. 1968 has expired. ELI is SUMMARY a telecommunications company that provides communication network services for telecom carriers and provides both long haul and metro private fiber optic line services. Council is being asked to approve the new ordinance for the renewal of the Electric Lightwave's franchise agreement for five years with an expiration date in October, 2018. REVIEWED BY ❑ COW Mtg. ❑ CA &P Cmte ❑ F &S Cmte Cmte ❑ Arts Comm. ❑ Parks Comm. COMMITTEE CHAIR: JOE ❑ Transportation Cmte ❑ Planning Comm ' Utilities DA 1E: 10/07/13 DUFFIE RECOMMENDATIONS: SPONSOR COMMII /ADMIN. Public Works Department Approval; Forward to Committee of the Whole ILE Unanimous COST IMPACT / FUND SOURCE EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED $0.00 $0.00 $0.00 Fund Source: Comments: MTG. DATE RECORD OF COUNCIL ACTION 10/14/13 10/21/13 MTG. DATE ATTACHMENTS 10/14/13 Informational Memorandum dated 10/04/13 Draft Ordinance with Exhibits Minutes from the Utilities Committee meeting of 10/07/13 10/21/13 35 36 of 04 ILA ~ x�\ of Tukwila TO: Jim Haggerton, Mayor INFORMATIONAL MEMORANDUM nn�n *.���n�nm~�n nw~�n�u�«�~ n�n�~n�nn�'n�x~�n�����n�n Mayor Haggerton Utilities Committee FROM: Bob Giberson, PW Director��� BY: Fmank|hmrte, Deputy PW Director DATE: October 4,2O13 SUBJECT: Electric Li0hbwave,LLC Franchise Agreement ISSUE Approval of Electric Lightwave, LLC, (ELI) Franchise Agreement. BACKGROUND On August 20, 2001, the Tukwila City Council granted Electric Lightwave LLC. (ELI) a non-exclusive franchise through Ordinance No. 1068 (Franchise Agreement) to conotnunt, maintain and operate a fiber optic cable system in the City rights-of-way. Ordinance 1968 has expired and must be renewed. ELI is a telecommunications company that provides communication network services for telecom carriers. It offers both long haul and metro private fiber optic line services which handles data transmission, wide area network connectivity and video transmission. In addition, ELI provides voice services and internet access. DISCUSSION ELI's fiber optic system in Tukwila was constructed in the late 1990's and early 2000. As depicted in Exhibit A of the Franchise Ordinance, ELI has an extensive fiber optic infrastructure system in Tukwila. ELI has expressed an interest to partner with the City and the Community Connectivity Consortium to connect to critical nodes and expand broadband capacity. The attached Franchise Agreement would allow E L I to continue operating in the City rights-of-way and facilitate construction of future fiber optic projects. FINANCIAL IMPACT Under the terms of the Franchise, ELI will be required to pay the City a $5,000 administrative fee within 30 days of franchise approval. RECOMMENDATION Council is being asked to approve the ordinance for the Electric Lightwave, LLC franchise agreement and consider this item at the October 14, 2013 Committee of the Whole and subsequent October 21, 2013 Regular Meetings. Attachment: Draft Franchise Ordinance with Exhibits A & B W:\PW nfo Memo Electric Lightwave Franchise FT AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, GRANTING A NON - EXCLUSIVE FRANCHISE TO ELECTRIC LIGHTWAVE, LLC, A DELAWARE STATE LIMITED LIABILITY COMPANY LEGALLY AUTHORIZED TO CONDUCT BUSINESS IN THE STATE OF WASHINGTON, FOR THE PURPOSES OF CONSTRUCTING, OPERATING, AND MAINTAINING A TELECOMMUNICATIONS SYSTEM IN CERTAIN PUBLIC RIGHTS -OF -WAY IN THE CITY; REPEALING ORDINANCE NO. 1968; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, Ordinance No. 1968, dated August 20, 2001, granted Electric Lightwave, LLC, hereinafter referred to as "ELI ", a three -year, non - exclusive franchise, which expired August 20, 2004; and WHEREAS, ELI is a telecommunications company that, among other things, provides voice, data and video services to customers, including those in the Puget Sound region; and WHEREAS, ELI's 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 telecommunications system; and WHEREAS, the City Council has determined that the use of portions of the City's rights -of -way for installation of a telecommunications system 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 are necessary to ensure that the burden of costs for the operations of non - municipal interests are not borne by the citizenry; and W: Word Processing\Ordinances\Electric Lightwave Franchise Agreement 9 -30 -13 Fl:bjs Page 1 of 11 39 WHEREAS, the Revised Code of Washington (RCW) authorizes the City to grant, and regulate nonexclusive franchises for the use of public streets, right -of -ways, and other public property for transmission of communications; NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: Section 1. Non - exclusive Franchise Granted. A. The City hereby grants to ELI, 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 a telecommunications facility within the City -owned rights -of -way generally described in Exhibit A attached hereto, and hereinafter referred to as the "Franchise Area ". B. Such Franchise shall not be deemed to be exclusive to ELI 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 ELI; provided, that such other franchises do not unreasonably interfere with ELI'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 lawful and reasonable rules, policies, and procedures as he or she deems necessary to carry out the provisions contained herein. Section 3. Franchise Term. The franchise rights granted herein shall remain in full force and effect for a period of five years from the effective date of this ordinance. This Franchise shall not take effect and ELI shall have no rights under this Franchise unless a written acceptance with the City is received pursuant to Section 4 of this agreement. If ELI requests a Franchise renewal prior to the expiration date, the City may, at the City's sole discretion, extend the term of this Franchise for up to one year beyond the expiration date to allow processing of renewal. If the City elects to extend the term of this Franchise, written notice of the extension shall be provided to ELI prior to the Franchise expiration date. Section 4. Acceptance of Terms and Conditions. The full acceptance of this Franchise and all the terms and conditions shall be filed with the City Clerk within 30 days of the effective date of this ordinance in the form attached hereto as Exhibit B. Failure on the part of ELI to file said consent within 30 days of the effective date of this ordinance shall void and nullify any and all rights granted under this Franchise Agreement. W: Word Processing \Ordinances\Electric Lightwave Franchise Agreement 9 -3043 FI:bjs 40 Page 2of11 Section 5. 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 6. 1. Permit Required. No construction, maintenance, or repairs (except for emergency repairs) shall be undertaken in the franchise area without first obtaining appropriate permits from the City of Tukwila, Department of Public Works. In case of an emergency, ELI shall, within 24 hours of the emergency, obtain a permit from the City of Tukwila Department of Public Works. 2. Coordination. All capital construction projects performed by ELI within the franchise area shall be inspected by a City 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 ELI within the franchise area shall be constructed 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 the City's development guidelines and standards and comply with Title 11 of the Tukwila Municipal Code. 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. Nothing in this section shall prevent the City from requiring ELI to underground cables, junction boxes, or other vaulted system components in the event of any relocation as deemed necessary by the City pursuant to subparagraph 5.d. or as otherwise permitted under this Franchise. 5. Relocation. a. Whenever the City causes a public improvement to be constructed within the Franchise Area, and such public improvement requires the relocation of ELI's facilities, the City shall provide ELI with written notice requesting such relocation along with plans for the public improvement that are sufficiently complete to allow for the initial evaluation, coordination and the development of a relocation plan. The City and ELI shall meet at a time and location determined by the City to discuss the project requirements including critical timelines, schedules, construction standards, utility conflicts, as -built requirements, and other pertinent relocation plan details. W: Word Processing \Ordinances \Electric Lightwave Franchise Agreement 9 -30 -13 Fl:bjs Page 3 of 11 41 b. To ensure timely execution of relocation requirements, ELI shall, upon written request from the City, provide at ELI's expense, base maps, current as -built information, a detailed relocation plan (including detailed schedule of relocation activities, identification of critical path, identification of facilities, and relocation procedures), and other design, technical or operational requirements within the time frame specified by the City. c. ELI may, after receipt of written • notice requesting a relocation of its facilities, submit to the City written alternatives to such relocation within the time specified by the City. Such alternatives shall include the use and operation of temporary facilities in adjacent rights -of -way. The City shall evaluate such alternatives and advise ELI in writing if one or more of the alternatives are suitable to accommodate the work, which would otherwise necessitate relocation of the facilities. If requested by the City, ELI shall submit additional information to assist the City in making such evaluation. The City shall give each alternative proposed by ELI full and fair consideration. In the event the City ultimately determines that there is no other reasonable alternative, ELI shall, at its sole expense, relocate its facilities as otherwise specified in Section 5, subparagraph 5. d. Upon final approval of the relocation plan by the City, ELI shall, at its own expense, unless otherwise prohibited by statute, and in the time frame specified by the City, temporarily or permanently remove, relocate, place underground, change or alter the position of any facilities or structures within the right -of -way whenever the City has determined that such removal, relocation, undergrounding, change or alteration is reasonably necessary for the construction, repair, maintenance, installation, public safety, or operation of any public improvement in or upon the rights -of -way. e. If during the construction, repair, or maintenance of the City's public improvement project an unexpected conflict occurs from ELT's facilities, ELI shall, upon notification from the City, respond within 24 hours to resolve the conflict. 6. Removal or Abandonment. Upon the removal from service of any service antennas or other associated structures, facilities and amenities, ELI 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 facilities. No facility constructed or owned by ELI may be abandoned without the express written consent of the City. 7. Bond. Before undertaking any of the work, installation, improvements, construction, repair, relocation, or maintenance authorized by this Franchise Agreement, ELI shall, upon the request of the City, furnish a bond executed by ELI and a corporate surety authorized to operate a surety business in the State of Washington, in such sum as may be set and approved by the City as sufficient to ensure performance of ELI's obligations under this Franchise Agreement, provided, however, that such sum shall not exceed 150% of the cost of the telecommunications system to be installed by ELI in the City rights -of -way. At ELT's sole option, ELI may provide W: Word Processing \Ordinances\Electric Lightwave Franchise Agreement 9 -30 -13 Fl:bjs 42 Page 4 of 11 alternate security in the form of an assignment of funds or a letter of credit, in the same amount as the bond. All forms of security shall be in the form reasonably acceptable to the City. The bond shall be conditioned so that ELI shall observe all the covenants, terms, and conditions and shall faithfully perform all of the obligations of this Franchise Agreement, and to repair or replace any defective ELI work or materials discovered in the City's roads, streets, or property. 8. "One -Call" Location & Liability. ELI shall subscribe to and maintain membership 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 ELT's system components or for interruptions in service to ELI customers which are a direct result of work performed for any City project for which ELI 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 ELI system components or for interruptions in service to ELI customers resulting from work performed under a permit issued by the City. 9. As -Built Plans Required. ELI 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 permits issued by the City and any work undertaken by ELI pursuant to this Franchise Agreement. The City shall determine the acceptability of any as -built submittals provided under this section. 10. Recovery of Costs. ELI shall be subject to all permit fees associated with activities undertaken through the authority granted in this Franchise Agreement or under ordinances of the City. Where the City incurs costs and expenses for review or inspection of activities undertaken through the authority granted in this Franchise Agreement or any ordinances relating to the subject for which permit fees have not been established, ELI shall pay such reasonable costs and expenses directly to the City. 11. Vacation. lf, at any time, the City shall vacate any City road, right -of -way or other City property which is subject to rights granted by this Franchise Agreement and said vacation shall be for the purpose of acquiring the fee or other property interest in said road, right -of -way or other City property for the use of the City, in either its proprietary or governmental capacity, then the City may, at its option and by giving 30 days written notice to ELI, terminate this Franchise Agreement with reference to such City road, right -of -way or other City property so vacated, and the City shall not be liable for any damages or loss to ELI by reason of such termination other than those provided for in RCW 35.99. W: Word Processing \Ordinances \Electric Lightwave Franchise Agreement 9 -30 -13 FI :bjs Page 5 of 11 43 Section 6. Franchise Compliance. A. Franchise Violations. The failure by ELI 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 and requests remedial action within 60 days of receipt of such notice. If ELI has not attained full compliance at the end of the 60 -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 60 -day period. B. Emergency Actions. 1. If any of ELI's actions, or any failure by ELI to act to correct a situation caused by ELI, is deemed by the City to create a threat to life or property, financial harm, or cause a delay of the construction, repair or maintenance of the public improvement, the City may order ELI to immediately correct said threat, financial harm, or delay or, at the City's discretion, the City may undertake measures to correct said threat, financial harm or delay itself; provided that, when possible, the City shall notify ELI and give ELI an opportunity to correct within a specified time said threat, financial harm or delay before undertaking such corrective measures. ELI shall be liable for all costs, expenses, and damages attributed to the correction of such an emergency situation as undertaken by the City to the extent that such situation was caused by ELI, 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 30 days of written notice of the completion of such action or determination of damages by the City. The failure by ELI to take appropriate action to correct a situation caused by ELI and identified by the City as a threat to public or private safety or property, financial harm, or delay of the construction, repair or maintenance of the public improvement shall be considered a violation of Franchise terms. 2. If, during construction or maintenance of ELI'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, ELI 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 ELT's failure to comply with the provisions of this Franchise Agreement, to include but not limited to, the City's right to a lawsuit 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, ELI shall, at its sole expense, promptly remove all system components and facilities, provided that the City, at its sole option, may allow ELI to abandon its facilities in place. W: Word Processing\Ordinances\Eiectric Lightwave Franchise Agreement 9 -30 -13 FI:bjs 44 Page 6 of 11 Section 7. Insurance. A. ELI 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 amounts and conditions stipulated in Title 11 of the Tukwila Municipal Code. B. Such insurance shall specifically name as additional insured the City, its officers, and employees; shall apply as primary insurance with respect to claims arising from work performed by or on behalf of ELI under this Franchise Agreement; and shall further provide that the policy shall not be modified or canceled during the life of the permit or Franchise. Agreement without giving 30 days written notice to ELI. Upon receipt of such notice ELI will immediately notify the City. Notice shall be by certified mail, return receipt requested to the City. C. ELI, or ELI's contractor, shall maintain pollution liability insurance during any period of construction, including installation, removal and maintenance. D. 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 8. Other Permits and Approvals. Nothing in this Franchise Agreement shall relieve ELI from any obligation to obtain approvals or necessary permits from applicable federal, state, and City authorities for all activities in the franchise area. Section 9. 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 ELT's telecommunications 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 any transfer from ELI to another person or entity controlling, controlled by, or under common control with ELI. B. In any transfer of this Franchise which requires the approval of the City, ELI 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 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 W: Word Processing\Ordinances\Electric Lightwave Franchise Agreement 9 -3O -13 FI:bjs Page 7 of 11 45 costs associated with a transfer of this Franchise that requires the approval of the City shall be reimbursed to the City within 30 days of such transfer. Section 10. Administrative Fees. A. Pursuant to 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. ELI 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. ELI 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 be 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 the City's right -of -way. Administrative fees exclude normal permit fees as stipulated in Title 11 of the Tukwila Municipal Code. Payment of the one -time administrative fee is due 30 days after franchise approval. C. In the event ELI submits a request for work beyond the scope of the original franchise, or submits a complex project that requires significant comprehensive plan review or inspection, ELI shall reimburse the City for the franchise amendment and expenses associated with the project. ELI shall pay such costs within 30 days of receipt of a bill from the City. D. Failure by ELI 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 6 of this ordinance. Section 11. Notices. Any notice to be served upon the City or ELI shall be delivered to the following addresses respectively: City of Tukwila Office of the City Clerk 6200 Southcenter Boulevard Tukwila, WA 98188 ELI (USA), Inc. Contract Administration 1201 NE Lloyd Blvd, Suite 500 Portland, OR 97232 with a copy to: ELI (USA), Inc. Law and Policy Department 1201 NE Lloyd Blvd, Suite 500 Portland, OR 97232 W: Word Processing\0rdinances\Electric Lightwave Franchise Agreement 9 -30 -13 FI:bjs 46 Page 8 of 11 Section 12. Indemnification. A. ELI shall use reasonable and appropriate precautions to avoid damage to persons or property in the construction, installation, repair, operation, and maintenance of its structures and facilities. ELI shall indemnify and hold the City harmless from all claims, actions or damages, 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 ELI, its officers, agents, servants or employees, carried on in the furtherance of the rights, benefits, and privileges granted to ELI by this Franchise. In the event any claim or demand is presented to or filed with the City that gives rise to ELI's obligation pursuant to this section, the City shall within a reasonable time notify ELI thereof and ELI 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 that gives rise to ELI's obligation pursuant to this section, the City shall promptly notify ELI thereof, and ELI 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, ELI 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 ELI 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 negligence or intentional acts of the City, its employees, agents or independent contractors. B. To the extent of any concurrent negligence between ELI and the City, ELI'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 that 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. C. With respect to the performance of this Franchise and as to claims against the City, its officers, agents and employees, ELI expressly waives its immunity under Title 51 of the Revised Code of Washington, the Industrial Insurance Act, for injuries to its officers, agents and employees and agrees that the obligation to indemnify, defend and hold harmless provided for in this paragraph extends to any claim brought by or on behalf of ELI's officers, agents or employees. This waiver is mutually negotiated by the parties. W: Word Processing \Ordinances\Electric Lightwave Franchise Agreement 9 -30 -13 Fl:bjs Page 9 of 11 47 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, either party may deem the entire ordinance 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 parties may agree to treat the portion declared invalid or unconstitutional as severable and maintain in force the remaining provisions of this ordinance; provided that, if the City elects, without agreement by ELI, to enforce the remaining provisions of the ordinance, ELI shall have the option to terminate the Franchise Agreement. Section 14. 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 that 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 15. Police Powers. Nothing contained herein shall be deemed to affect the City's authority to exercise its police powers. ELI 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 16. Future Rules, Regulations, and Specifications. ELI 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 ELI, shall thereafter govern ELI's activities hereunder; provided, however, that in no event shall regulations: 1. materially interfere with or adversely affect ELI's rights pursuant to and in accordance with this Franchise Agreement; or 2. be applied in a discriminatory manner as it pertains to ELI and other similar user of such facilities. Section 17. Repealer. Ordinance No. 1968 is hereby repealed. Section 18. Corrections by City Clerk or Code Reviser. Upon approval of the City Attorney, the City Clerk and the code reviser are authorized to make necessary corrections to this ordinance, including the correction of clerical errors; references to other local, state or federal laws, codes, rules, or regulations; or ordinance numbering and section /subsection numbering. W: Word Processing\Ordinances\Electric Lightwave Franchise Agreement 9 -30 -13 Fl :bjs 48 Page 10 of 11 Section 19. 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 five days after passage and publication as provided by law. PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of , 2013. ATTEST /AUTHENTICATED: Christy O'Flaherty, MMC, City Clerk APPROVED AS TO FORM BY: Shelley M. Kerslake, City Attorney Jim Haggerton, Mayor Filed with the City Clerk: Passed by the City Council: Published: Effective Date: Ordinance Number: Attachments: Exhibit A — Description of Franchise Area and Map Exhibit B — Franchise Agreement Acceptance Form W: Word Processing\Ordinances\Electric Lightwave Franchise Agreement 9 -30 -13 Fl:bjs Page 11 of 11 49 Exhibit A Electric Lightwave's Franchise Area — Tukwila, WA Electric Lightwave's current franchise area is described as follows: 1. East Marginal Way South from north City limits to South Norfolk Street. 2. Norfolk Street from East Marginal Way South easterly to the intersection within the City limits. 3. East Marginal Way South from South Norfolk Street southerly to South 120th Street. 4. South 120th Street from East Marginal Way South, easterly to its terminus. 5. East Marginal Way South from South 120th Street to South 128th Street. 6. South 128th Street from East Marginal Way South easterly to 42nd Avenue South. 7. 42nd Avenue South from South 128th Street northerly to the intersection with Interurban Avenue South. 8. Interurban Avenue South from 42nd Avenue South southerly to the intersection with Gateway Drive. 9. Gateway Drive from its intersection with Interurban Avenue South east of South 133rd Street to where it again intersects with Interurban Avenue South further to the north. 10. Interurban Avenue South from the northern most intersection with Gateway Drive southerly to the intersection with Interstate 405 right -of -way. 11. Fun Center Way from its intersection with Interurban Avenue South to where it intersects with Grady Way. 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Data is based on best information available. Date: September 27, 2013 53 Exhibit B FRANCHISE AGREEMENT ACCEPTANCE FORM ELECTRIC LIGHTWAVE, LLC. Date: City Of Tukwila Office of the City Clerk 6200 Southcenter Boulevard Tukwila, WA 98188 Re: Ordinance No. Adopted: Dear Ms. O'Flaherty: In accordance with and as required by Section 4 of City of Tukwila Ordinance No. , passed by the City Council and approved by the Mayor on (the "Ordinance "), Electric Lightwave, LLC hereby accepts the terms, conditions and obligations to be complied with or performed by it under the ordinance. Sincerely, Signature Printed Name Title 55 UTILITIES COMMITTEE Meeting Minutes October 7, 2013 5:00 p.m. — Conference Room 1 PRESENT Councilmembers: Staff: Guests: City of Tukwila Utilities Committee Joe Duffie, Chair; Dennis Robertson, Kathy Hougardy (Absent: Allan Ekberg, Verna Seal) David Cline, Bob Giberson, Frank Iriarte, Gail Labanara, Robin Tischmak, Peter Lau, Michael Ronda, Mary Miotke and Laurel Humphrey Richard Adair, Electric Lightwave, LLC CALL TO ORDER: Committee Chair Duffie called the meeting to order at 5:00 p.m. I. PRESENTATIONS No presentations. II. BUSINESS AGENDA A. Ordinance: Approving Franchise Agreement with Electric Lightwave, LLC. Staff is seeking Council approval of an ordinance that would renew a non - exclusive franchise to Electric Lightwave, LLC (ELI) for the continued operation of fiber optic cable system in the City rights -of -way for a five year term, with an option for one additional year. ELI has an extensive fiber optic infrastructure system in Tukwila which was constructed in the late 1990s and early 2000, and has expressed an interest in partnering with the Community Connectivity Consortium in the future. Items of note in the franchise renewal are a relocation plan requiring City approval and a $5,000 administrative fee to the City. UNANIMOUS APPROVAL. FORWARD TO OCTOBER 14 COMMITTEE OF THE WHOLE. B. Howard Hanson Dam Flood Response — Tukwila Hesco Removal Project Completion and Acceptance Staff is seeking Council approval of project completion and release of retainage to Goodfellow Brothers, Inc., in the amount of $1,255,044.42 for the Tukwila Levee Repair and Maintenance Project. This project removed roughly 38,000 linear feet of flood protection measures on both sides of the Green River through Tukwila's Central Business District and restored the levee to pre -flood protection condition. The project received 75% funding from King County Flood Control District and was completed under budget. Staff displayed and narrated several pictures depicting the project's progress and results over many areas along the river. UNANIMOUS APPROVAL. FORWARD TO OCTOBER 21 CONSENT AGENDA. III. MISCELLANEOUS Meeting adjourned at 5:32 p.m. Next meeting: Monday, October 21, 2013 — 5:00 p.m. — Conf. Room No. 1. Orr Committee Chair Approval Min tes by LH. Reviewed by GL. 57