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HomeMy WebLinkAboutReg 2014-12-01 Item 5C - Ordinance - McLeodUSA Telecommunications Services FranchiseCOUNCIL AGENDA SYNOPSIS Initials Meeturg Date Prepared MM. ear's rep iew Ca:mil review' 12/01/14 BG 's�`. f,/‘ 1I Ordinance • Bid Award • Public Hearing ❑ O/bet. Mtg Date Aftg Date 12/01/14 Mig Date Mtg Date SPONSOR ❑ Council ❑ Mayor • HR ❑ DCD ❑ Finance ] Fire IN IT ❑ P&R ❑ Pofic'e 0 PIP' SPONSOR'S McLeodUSA Telecommunications, SUMMARY integrated communication internet access. McLeodUSA is being asked to approve McLeodUSA to continue future fiber optic projects. a subsidiary services including purchased the new ordinance operating in CA&P Crate Arts Comm. of local the fiber optic for the the City's right ❑ F &S Cmte ❑ Parks Windstream Communications, provides and long distance communications and system from 360 Networks. Council franchise agreement that will allow -of -way and facilitate construction of ❑ Transportation Cmte Comm. ❑ Planning Comm. CHAIR: KATE KRULLER ITEM INFORMATION ITEM No. 5 STAIT SPONSOR: BOB GIBERSON ORIGINAL AGi:N1).1 DAM: 12/01/14 AGENDA I T I N1 TI I 1 •. Ordinance Granting a Non- Exclusive Franchise Agreement with McLeodUSA Telecomunications Services, LLC CATEGORY ❑ Discussion AIig Date ❑ Motion Mfg Date ❑ Resolution .kitg Dale 1I Ordinance • Bid Award • Public Hearing ❑ O/bet. Mtg Date Aftg Date 12/01/14 Mig Date Mtg Date SPONSOR ❑ Council ❑ Mayor • HR ❑ DCD ❑ Finance ] Fire IN IT ❑ P&R ❑ Pofic'e 0 PIP' SPONSOR'S McLeodUSA Telecommunications, SUMMARY integrated communication internet access. McLeodUSA is being asked to approve McLeodUSA to continue future fiber optic projects. a subsidiary services including purchased the new ordinance operating in CA&P Crate Arts Comm. of local the fiber optic for the the City's right ❑ F &S Cmte ❑ Parks Windstream Communications, provides and long distance communications and system from 360 Networks. Council franchise agreement that will allow -of -way and facilitate construction of ❑ Transportation Cmte Comm. ❑ Planning Comm. CHAIR: KATE KRULLER R1•_i'IEWED BY ❑ COW Mtg. ❑ Cmte ❑ Utilities DATE: 11/17/14 COMMIT I LE RECOMMENDATIONS: SPONSOR/ADMIN. COMMITTEE Public Works Department Unanimous Approval; Forward to Regular Consent Agenda COST IMPACT / FUND SOURCE ExPENDI'ruTRI, REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED $0.00 $0.00 $0.00 Fund Source: Comments: MTG. DATE RECORD OF COUNCIL ACTION 12/01/14 MTG. DATE ATTACHMENTS 12/ 01/14 Informational Memorandum dated 11/14/14 Draft Ordinance with Exhibits Minutes from the Utilities Committee meeting of 11/17/14 5 City of Tukwila Jim Haggerton, Mayor INFORMATIONAL MEMORANDUM TO: Mayor Haggerton Utilities Committee FROM: Bob Giberson, PW Director 'Ph BY: Frank Iriarte, Deputy PW Director DATE: November 14, 2014 SUBJECT: McLeodUSA Telecommunications Services, LLC Franchise Agreement ISSUE Approve McLeodUSA Telecommunications Services LLC Franchise Agreement. BACKGROUND McLeodUSA was one of the largest independent competitive local exchange carriers during the years preceding its acquisition in 2008. McLeodUSA provided integrated communications services including local and long distance communications and internet access. McLeodUSA went through Chapter 11 bankruptcy and is currently a subsidiary of Windstream Communications. DISCUSSION' McLeodUSA purchased a fiber optic system from 360 Networks. The fiber backbone enters the northern City limits on Airport Way to the intersection of Boeing Access Road and travels south on Interurban Ave 5 to Grady Way. in late 2000, McLeod USA constructed a lateral fiber system at approximately 300 feet north of the intersection of Interurban Ave S and East Marginal Way S to S 133rd St and Interurban Ave South. The attached Franchise Agreement would allow McLeodUSA to continue operating and maintaining its fiber optic system in the City's right -of -way and facilitate future expansion projects. FINANCIAL IMPACT Under the terms of the Franchise, McLeodUSA will pay a $5,000 administrative fee within 30 days of franchise approval. RECOMMENDATION Council is being asked to approve the Ordinance that will grant a franchise agreement to McLeodUSA Telecommunications Services, LLC and consider this item on the Consent Agenda at the December 1, 2014 Regular Council Meeting. Attachment: Draft Franchise Ordinance with Exhibits A & 8. W.1PW Eng\ProjectslFranchiseVnlo Memo Franchise AgreerneM- McLeodUSA 7 FT AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, GRANTING A NON - EXCLUSIVE FRANCHISE TO MCLEODUSA TELECOMMUNICATIONS SERVICES, LLC, LEGALLY AUTHORIZED TO CONDUCT BUSINESS IN THE STATE OF WASHINGTON, FOR THE PURPOSE OF CONSTRUCTING, OPERATING, AND MAINTAINING A TELECOMMUNICATIONS SYSTEM IN CERTAIN PUBLIC RIGHTS -OF -WAY IN THE CITY; REPEALING ORDINANCE NO. 1925; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, Ordinance No. 1925 granted McLeodUSA Telecommunications Services, LLC, hereinafter referred to as " McLeodUSA," a three -year, non - exclusive franchise that expired September 5, 2003; and WHEREAS, McLeodUSA is a telecommunications company that, among other things, provides voice and data services to customers, including those in the Puget Sound Region; and WHEREAS, McLeodUSA'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 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 businesses 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 W: Word Processing \OrdinancesW icLeodUSA franchise agreement 11 -7 -14 Fl:bjs Page 1 of 11 9 WHEREAS, the Revised Code of Washington (RCVV) authorizes the City to grant and regulate non - exclusive franchises for the use of public streets, rights -of -way, 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 McLeodUSA, 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. The foregoing franchise rights and authority ( "Franchise ") shall not be deemed to be exclusive to McLeodUSA 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 McLeodUSA; provided, that such other franchises do not unreasonably interfere with McLeodUSA'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. C. This Franchise Agreement merely authorizes McLeodUSA to occupy and use the Franchise Area. Nothing contained herein shall be construed to grant or convey any right, title, or interest in the Franchise Area to McLeodUSA. 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, uniform, non - discriminatory, 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. However, this Franchise Agreement shall not take effect and McLeodUSA shall have no rights under this Franchise Agreement unless a written acceptance with the City is received pursuant to Section 4 of this agreement. If McLeodUSA requests a Franchise renewal prior to the expiration date, the City may, at the City's sole discretion, extend the term of this Franchise Agreement 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 Agreement, written notice of the extension shall be provided to McLeodUSA prior to the Franchise expiration date. W: Word Processing\Ordinances\McLeodUSA franchise agreement 11 -7 -14 Fl:bjs 10 Page 2 of 11 Section 4. Acceptance of Terms and Conditions. The full acceptance of this Franchise Agreement 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 McLeodUSA 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. 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, McLeodUSA shall, within 24 hours of the emergency, obtain a permit from the City of Tukwila's Department of Public Works. 2. Coordination. All capital construction projects performed by McLeodUSA within the Franchise Area shall be inspected by a City inspector. All work and inspection shall be coordinated with the Public Works Engineering Division 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 McLeodUSA 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. 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 McLeodUSA's facilities, the City shall provide McLeodUSA 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 McLeodUSA shall meet at a time and location determined by the City to discuss the project requirements including critical timelines, W: Word Processing \OrdinancesWIcLeodUSA franchise agreement 11 -7 -14 FI:bjs Page 3 of 11 11 schedules, construction standards, utility conflicts, as -built requirements, and other pertinent relocation plan details. b. To ensure timely execution of relocation requirements, McLeodUSA shall, upon written request from the City, provide at McLeodUSA's expense, base maps, current as -built information, 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. McLeodUSA may, after receipt of written notice requesting a relocation of its facilities, submit to the City written alternatives to such relocation within a reasonable 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 McLeodUSA 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, McLeodUSA shall submit additional information to assist the City in making such evaluation. The City shall give each alternative proposed by McLeodUSA full and fair consideration. In the event the City ultimately determines that there is no other reasonable alternative, McLeodUSA shall relocate its facilities as otherwise specified in Section 5, subparagraph 5. d. Upon final approval of the relocation plan by the City, McLeodUSA shall, at its own expense, unless otherwise prohibited by statute, and at 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 McLeodUSA's facilities, McLeodUSA shall, upon notification from the City, respond within 24 hours to resolve the conflict. 6. Removal or Abandonment. Upon removal from service of McLeodUSA's facilities or equipment that are located within the Franchise Area, McLeodUSA 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 McLeodUSA may be abandoned without the express written consent of the City. W: Word Processing \Ordinances\McLeodUSA franchise agreement 11 -7 -14 F1:bjs 12 Page 4of11 7. Bond. Before undertaking any of the work, installation, improvements, construction, repair, relocation, or maintenance authorized by this Franchise Agreement, McLeodUSA shall, upon the request of the City, furnish a bond executed by McLeodUSA 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 McLeodUSA'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 McLeodUSA in the City rights-of-way. At McLeodUSA's sole option, McLeodUSA may provide 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 McLeodUSA 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 McLeodUSA work or materials discovered in the City's roads, streets, or property. 8. "One -Call" Location and Liability. McLeodUSA 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 McLeodUSA's system components or for interruptions in service to McLeodUSA customers which are a direct result of work performed for any City project for which McLeodUSA has failed to properly locate its lines and facilities within the prescribed time limits and guidelines established by One -Cal(. The City shall also not be liable for any damages to the McLeodUSA system components or for interruptions in service to McLeodUSA customers resulting from work performed under a permit issued by the City. 9. As -Built Plans Required. McLeodUSA 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 permit issued by the City and any work undertaken by McLeodUSA pursuant to this Franchise Agreement. The City shall determine the acceptability of any as -built submittals provided under this section. 10. Recovery of Costs. McLeodUSA 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 reasonable 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, McLeodUSA shall pay such reasonable costs and expenses directly to the City. 11. Vacation. If, at any time, the City shall vacate any City road, right -of -way or other City property that 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 W: Word Processing \OrdinancesWicLeodUSA franchise agreement 11 -7 -14 Fl:bjs Page 5 of 11 13 proprietary or governmental capacity, then the City may, at its option and by giving 30 days written notice to McLeodUSA, 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 Toss to McLeodUSA by reason of such termination other than those provided for in RCW 35.99. Section 6. Franchise Compliance. A. Franchise Violations. The failure by McLeodUSA 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 30 days of receipt of such notice. If McLeodUSA has not attained full compliance at the end of the 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 30 -day period. B. Emergency Actions. 1. If any of McLeodUSA's actions under this Franchise Agreement, or any failure by McLeodUSA to act to correct a situation caused by McLeodUSA, 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 McLeodUSA 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 McLeodUSA and give McLeodUSA an opportunity to correct within a reasonable specified time, said threat, financial harm or delay before undertaking such corrective measures. McLeodUSA shall be liable for all reasonable 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 McLeodUSA and shall further be liable for all reasonable 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 McLeodUSA to take appropriate action to correct a situation caused by McLeodUSA 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 the terms of this Franchise Agreement. 2. If, during construction or maintenance of McLeodUSA'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, McLeodUSA or its contractor shall immediately call 911 or other local emergency response number. W: Word Processing \Ordinances1McLeodUSA franchise agreement 11 -7 -14 FI:bjs 14 Page 6of11 C. Other Remedies. Nothing contained in this Franchise Agreement shall limit the City's available remedies in the event of McLeodUSA'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, McLeodUSA shall, at its sole expense, promptly remove all system components and facilities, provided that the City, at its sole option, may allow McLeodUSA to abandon its facilities in place. Section 7. Insurance. A. McLeodUSA shall maintain liability insurance written on a per occurrence basis during the full .term of this Franchise Agreement 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, shall stipulate that no insurance affected by the City will be called on to contribute to a Toss covered thereunder, and shall further provide that the policy shall not be modified or canceled during the life of the permit or Franchise Agreement without Grantee giving 30 days written notice to the City. Notice shall be by certified mail, return receipt requested to the City. 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 8. Other Permits and Approvals. Nothing in this Agreement shall relieve McLeodUSA 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 Agreement shall not be sold, transferred, assigned, or otherwise encumbered, without the prior written consent of the City, with such consent not to be 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 McLeodUSA'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 McLeodUSA to another person or entity controlling, controlled by, or under common control with McLeodUSA. McLeodUSA may license fibers to other users W: Word Processing \Ordinances\ cLeodUSA franchise agreement 11 -7 -14 Fi:bjs Page 7of11 15 without the consent of the City provided that McLeodUSA remains solely responsible for the terms and conditions outlined in this Franchise Agreement. B. In any transfer of this Franchise which requires the approval of the City, McLeodUSA 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 actual and reasonable administrative 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 /Franchise Fees. A. Pursuant to the Revised Code of Washington (RCW), the City is precluded from imposing franchise fees for any "telephone business" as defined in RCW 82.16.010 or "service provider" as defined in RCW 35.99.010, except that fees may be collected for administrative expenses related to such franchise. McLeodUSA does hereby warrant that its operations as authorized under this Franchise Agreement are those of a telephone business as defined in RCW 82.16.010 or a service provider as defined in 35.99.010. B. McLeodUSA 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. The City reserves the right to exercise authority it has or may acquire in the future to charge a franchise fee as authorized by law. D. In the event McLeodUSA 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, McLeodUSA shall reimburse the City for amendments and expenses associated with the project. McLeodUSA shall pay such costs within 30 days of receipt of a bill from the City. E. Failure by McLeodUSA 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. W: Word Processing \OrdinancesNAcLeodUSA franchise agreement 11 -7 -14 FI:bjs 16 Page 8 of 11 Section 11. Notices. Any notice to be served upon the City or McLeodUSA shall be delivered to the following addresses respectively: City of Tukwila Office of the City Clerk 6200 Southcenter Boulevard Tukwila, WA 98188 Email: christy.oflaherty @tukwilawa.gov Phone: 206 - 433 -1855 McLeodUSA Telecommunications Services, LLC Attn: Franchises & Easements 11101 Anderson Drive Little Rock, AR 72212 Email: corp. franchise .agreements @windstream.com Phone: 501- 748 -5234 Section 12. Indemnification. A. McLeodUSA 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 within the Franchise Area. McLeodUSA shall indemnify and hold the City harmless from all third party 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 McLeodUSA, its officers, agents, servants or employees, carried on in the furtherance of the rights, benefits, and privileges granted to McLeodUSA by this Franchise. In the event any claim or demand is presented to or filed with the City that gives rise to McLeodUSA's obligation pursuant to this section, the City shall within a reasonable time notify McLeodUSA thereof and McLeodUSA 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 McLeodUSA's obligation pursuant to this section, the City shall promptly notify McLeodUSA thereof, and McLeodUSA 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, McLeodUSA 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 McLeodUSA 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, W: Word Processing\OrdinancesWlcLeodUSA franchise agreement 11 -7 -14 FI:bjs Page 9 of 11 17 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 McLeodUSA and the City, McLeodUSA'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. C. With respect to the performance of this Franchise and as to claims against the City, its officers, agents and employees, McLeodUSA 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 McLeodUSA's officers, agents or employees. This waiver is mutually negotiated by the parties. 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 McLeodUSA, to enforce the remaining provisions of the ordinance, McLeodUSA 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. McLeodUSA 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 W: Word Processing \Ordinances\MCLeodUSA franchise agreement 11 -7 -14 Fl:bjs 18 Page 10 of 11 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. McLeodUSA 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 McLeodUSA, shall thereafter govern McLeodUSA's activities hereunder; provided, however, that in no event shall regulations: 1. materially interfere with or adversely affect McLeodUSA's rights pursuant to and in accordance with this Franchise Agreement; or 2. be applied in a discriminatory manner as it pertains to McLeodUSA and other similar users of such facilities. Section 17. Repealer. Ordinance No. 1925 is hereby repealed. 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 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 , 2014. ATTEST /AUTHENTICATED: Christy O'Flaherty, MMC, City Clerk APPROVED AS TO FORM BY: Rachel Turpin, City Attorney Jim Haggerton, Mayor Filed with the City Clerk: Passed by the City Council: Published: Effective Date: Ordinance Number: Attachments: Exhibit A — McLeodUSA Telecommunications Services, LLC, Fiber Optic System Description and Route Map Exhibit B — McLeodUSA Telecommunications Services, LLC, Franchise Agreement Acceptance Form W: Word Processing \Ordinances\BMCLeodUSA franchise agreement 11 -7 -14 FI:bjs Page 11 of 11 19 EXHIBIT A Page 1 McLeodUSA Telecommunications Services, LLC Fiber Optic System Description McLeod's primary Fiber Optic System in Tukwila begins at the northern City limit on Airport Way and continues south to Boeing Access Road. On Boeing Access Road, the System heads west to East Marginal Way then south on East Marginal Way to Interurban Avenue, 300 feet north of the intersection of Interurban Avenue and East Marginal Way. At the intersection of Interurban Avenue and East Marginal Way, the Fiber System continues south on East Marginal Way with fiber service cables going west along S. 120th. Place. Approximately 300 feet south of S. 120th Place, the fiber cable run travels west onto private property. The System then continues along East Marginal Way to South 133rd Street to the intersection of South 133rd Street and Interurban Avenue. On Interurban Avenue, the fiber cable run continues south until it reaches the intersection of Interurban Avenue and SW Grady Way. The fiber system then continues east on SW Grady Way to the eastern limit of the City. McLeod has a vacant conduit that runs south along Interurban Avenue starting where the fiber optic cable leaves 300 feet north of the intersection of Interurban Avenue and East Marginal Way and runs along Interurban Avenue to the intersection of South 133rd Street and Interurban Avenue. 20 m CP �r I � anzms t, I S 113th St S 115th St S 174 h S[ t� S12( UR CIE •�` A Tv -`111111 "\31) 1 iiIl'I• Q l M NNW � S135 5= to •146thSt,Rn. iI 4 ,• 148th St 1 I 1 I -1 VS152n4 St SNP � ty i r 9 C,rporate Dr S Minkler BI d Min Upland Dr ostco Dr O 1 1 1 1 1 1 1 1 1 1 C 1 RENTO r o. r4_.._rNIIS._. 5' y I 1 11 �" I _ r S 200th St W: \PW Eng \GIS \Projects\Frank\Fiber Optics \ McLeodUSA \ExistingFiberMcLeodUSA.mxd Date: 11/6/ 4 By: R. Linsao City of Tukwila McLeod USA Project Map S Not to Scale McLeod USA Vicinity Map Disclaimer: The location of features and boundaries are approximate and are intended for reference only. Data is based on best information available. 1 EXHIBIT B McLeodUSA Telecommunications Services, LLC Franchise Agreement Acceptance Form Date: City of Tukwila City Clerk's Office 6200 Southcenter Boulevard Tukwila, WA 98188 Re: Ordinance No. , adopted on Dear City Clerk: 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 "), McLeodUSA Telecommunications Services, LLC, hereby accepts the terms, conditions and obligations to be complied with or performed by it under the Ordinance. Sincerely, Signature Printed Name and Title cc: Frank Iriarte, Public Works Department, City of Tukwila 23 UTILITIES COMMITTEE Meeting Minutes Monday, November 17, 2014 — 5:15 p.m. — Foster Conference Room City of Tukwila Utilities Committee PRESENT Councilmembers: Kate Kruller, Chair (by phone); Allan Ekberg, Kathy Hougardy Staff: Bob Giberson, Frank Iriarte, Robin Tischmak, Gail Labanara, Pat Brodin, Mike Cusick and Laurel Humphrey CALL TO ORDER: Committee Chair Kruller called the meeting to order at 5:18 p.m. PRESENTATIONS No presentations. II. BUSINESS AGENDA A. Ordinance: McLeodUSA Franchise Agreement Staff is seeking Council approval of an ordinance to grant a franchise to McLeodUSA Telecommunications Services, LLC for the operation and maintenance of a fiber optic system in the City right -of -way. Currently a subsidiary of Windstrearn Communications, McLeodUSA purchased a lateral fiber system at approximately 300 feet north of the intersection of Interurban Avenue South and East Marginal Way South to South 133`d Street and Interurban Avenue South, Under the terms of the franchise agreement, McLeodUSA will pay a $5,000 administrative fee within 30 days of approval. UNANIMOUS APPROVAL. FORWARD TO DECEMBER 1, 2014 REGULAR CONSENT AGENDA. 6. King County Regional Sewer Treatment Agreement Negotiations Staff provided an update on negotiations for a new sewage disposal contract between King County and 35 member agencies. A sub -group of the Metropolitan Water Pollution Abatement Advisory Committee has been meeting to discuss regional issues for the next contract update including: Governance, Our Waters, Reclaimed Water, Innovation, Rate Setting, and Capital Planning & Projects. This negotiating team intends to develop a new long -term agreement that all member agencies can use toward the development of agency - specific contracts, with completion expected in 2015. INFORMATION ONLY. C. Project Completion: Andover Park West/Andover Park East Sewer Repair Staff is requesting Council approval of project completion and release of retainage to Omega Contractors, Inc. in the amount of $123,322.07 for emergency repairs to the sewer line between Andover Park West and Andover Park East. In March 2013, failure of this sewer line led to the Council declaring an emergency, and Omega Contractors was contracted to install and maintain temporary pumping equipment. In March 2014 the City assumed operation of the temporary pumping system until the contractor was selected for full repair. Staff displayed photos of the project. UNANIMOUS APPROVAL. FORWARD TO DECEMBER 1, 2014 REGULAR CONSENT AGENDA. 25