HomeMy WebLinkAboutTIC 2017-04-25 Item 2D - Ordinance - Fiber Optic System Franchise Agreement with MCImetro Access Transmission Services Corporation City of Tukwila Allan Ekberg,Mayor
Public Works Department-Bob Giberson,Director
INFORMATIONAL MEMORANDUM
TO: Transportation Committee
FROM: Bob Giberson, Public Works Director 4Al
CC: Mayor Ekberg
DATE: April 21, 2017
SUBJECT: MCImetro Franchise Ordinance
ISSUE
Approval of MCImetro Franchise Ordinance,
BACKGROUND
Headquartered in Ashburn Virginia, MCImetro Access Transmission Services Corporation is a
wholly owned subsidiary of Verizon Communications focused on cable transport. Verizon is the
second largest U.S. telecommunications service provider and has its roots in the breakup of the
Bell System. Verizon was formed in 2000 from a merger between Bell Atlantic and GTE.
MCImetro Access was a subsidiary of MCI Communications formed in 1963. MCI was purchased
by WorldCom in 1997. The new company, MCI WorldCom, was purchased by Verizon in 2005.
MCImetro provides bandwidth infrastructure solutions for the communications industry in the US
and Europe. Specifically, MCImetro provides long haul fiber networks for carriers, financial
service companies, healthcare, government, educational institutions, and other enterprises.
ANALYSIS
The attached Franchise Agreement would allow MCImetro 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, MCImetro 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
MCImetro Access Transmission Services Corporation and consider this item on the Consent
Agenda at the May 1, 2017 Regular Meeting.
Attachment: Draft Franchise Ordinance
WAPW Eng\PROJECTS\Franchise\Telecom\MCI METRO-VERIZON conduWlmfo Memo MCImetro 042117 gl.docx 31
DRAFT
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TUKWILA, WASHINGTON, GRANTING A NON-EXCLUSIVE
FRANCHISE TO MCIMETRO ACCESS TRANSMISSION
SERVICES CORP., A DELAWARE CORPORATION, d/b/a
VERIZON ACCESS TRANSMISSION SERVICES, 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;
PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN
EFFECTIVE DATE.
WHEREAS, MClmetro Access Transmission Services Corporation, d/b/a Verizon
Access Transmission Services, hereinafter referred to as "MClmetro" or "Franchisee," is
a telecommunications company that, among other things, provides high capacity
interexchange transport to telecommunications common carriers, including data
transmission, linkage to long distance carriers and other telecommunications services to
customers in the Puget Sound region; and
WHEREAS, MClmetro'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 business and the region as a result of
such services; and
WHEREAS, the City Council also recognizes that the use of public rights-of-way must
be restricted to allow for the construction of amenities necessary to serve the future needs
of the citizens of Tukwila and that the coordination, planning and management of the City's
rights-of-way is necessary to ensure that the burden of costs for the operations of non-
municipal interests are not borne by the citizenry; and
WHEREAS, the Revised Code of Washington (RCW) authorizes the City to grant and
regulate non-exclusive franchises for the use of public streets, right-of-ways and other
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public property for installation, operation and maintenance of a fiber optic system and
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 MClmetro, 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 as that area within the present and future boundaries of the City,
and hereinafter referred to as the "Franchise Area."
B. The foregoing franchise rights and authority ("Franchise") shall not be deemed
to be exclusive to MClmetro 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 MClmetro; provided, that such other franchises do not
unreasonably interfere with MClmetro's exercise of franchise rights granted herein.
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 MClmetro 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 MClmetro.
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 ten (10) years from the effective date of this
ordinance. However, this Franchise Agreement shall not take effect and MClmetro 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 MClmetro 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, written notice of the extension shall be provided to MClmetro prior to the
Franchise expiration date.
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 A. Failure on the part of MClmetro to file said consent within 30 days of the
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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, MClmetro shall, within 24 hours of the emergency, obtain a permit from the
City of Tukwila's Public Works Department.
2. Coordination. All capital construction projects performed by MClmetro
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 MClmetro 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 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 Public Works
Director consistent with the requirements of TMC § 11.32.090(B).
5. Relocation.
a. The City shall have the right to require MClmetro to alter, adjust,
relocate, or protect in place its facilities within the public right-of-way when reasonably
necessary for construction, alteration, repair, or improvement of any portion of the public
rights-of-way for purposes of public welfare, health, or safety ("Public Improvements").
Such Public Improvements include, by way of example but not limitation, public rights-
of-way construction; public rights-of-way repair (including resurfacing or widening);
change of public rights-of-way grade; construction, installation or repair of sewers,
drains, water pipes, power lines, signal lines, communication lines, or any other type of
government-owned communications, utility or public transportation systems, public
work, public facility, or improvement of any government-owned utility; public rights-of-
way vacation, and the construction of any public improvement or structure by any
governmental agency acting in a governmental capacity. In the event the City requires
MClmetro to relocate its facilities, the City shall provide MClmetro with written notice
requesting such relocation, along with plans for the public improvement that are
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sufficiently complete to allow for the initial evaluation, coordination and the development
of a relocation plan. The City and MClmetro 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. The City shall notify MClmetro as soon as practicable
of the need for relocation and shall specify the date by which relocation shall be
completed. Except in case of emergency such notice shall be no less than 90 days.
b. To ensure timely execution of relocation requirements, MClmetro shall,
upon written request from the City, provide at MClmetro'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
timeframe specified by the City.
c. MClmetro 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
MClmetro 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, MClmetro shall submit additional information to assist the City in making such
evaluation. The City shall give each alternative proposed by MClmetro full and fair
consideration. In the event the City, in its sole discretion, decides not to accept the
alternatives suggested by MClmetro, MClmetro shall relocate its facilities as otherwise
specified in Section 5, subparagraph 5.
d. Upon final approval of the relocation plan by the City, MClmetro shall,
consistent with the requirements of TMC § 11.32.090(E) and RCW § 35.99.060, 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. In the event relocation is required by reason of construction
by a third party, non-governmental entity, for the sole benefit of the third party, non-
governmental entity then MClmetro's relocation costs shall be borne by the third party.
e. If during the construction, repair, or maintenance of the City's public
improvement project an unexpected conflict occurs from MClmetro's facilities, MClmetro
shall, upon notification from the City, respond within 24 hours to resolve the conflict.
f. MClmetro acknowledges and understands that any delay by MClmetro
in performing the work to alter, adjust, relocate, or protect in place its facilities within the
public rights-of-way may delay, hinder, or interfere with the work performed by the City
and its contractors and subcontractors in furtherance of construction, alteration, repair,
or improvement of the public rights-of-way, and result in damage to the City, including
but not limited to, delay claims. MClmetro shall cooperate with the City and its
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contractors and subcontractors to coordinate such relocation work to accommodate the
public improvement project and project schedules to avoid delay, hindrance of, or
interference with such project.
g. Should MClmetro fail to alter, adjust, protect in place or relocate any
facilities ordered by the City to be altered, adjusted, protected in place, or relocated,
within the time prescribed by the City, given the nature and extent of the work, or if it is
not done to the City's reasonable satisfaction, the City may, to the extent the City may
lawfully do so, cause such work to be done and bill the reasonable cost of the work to
MClmetro, including all reasonable costs and expenses incurred by the City due to
MClmetro's delay. In such event, the City shall not be liable for any damage to any
portion of MClmetro's system. In addition to any other indemnity set forth in this
Franchise Agreement, MClmetro will indemnify, hold harmless, and pay the costs of
defending the City from and against any and all claims, suits, actions, damages, or
liabilities for delays on public improvement construction projects caused by or arising
out of the failure of MClmetro to adjust, modify, protect in place, or relocate its facilities
in a timely manner; provided that, MClmetro shall not be responsible for damages due
to delays caused by the City.
6. Removal or Abandonment. Upon the removal from service of any service
antennas or other associated structures, facilities and amenities, MClmetro shall comply
with all applicable standards and requirements prescribed by the City of Tukwila's
Public Works Department for the removal or abandonment of said structures and
facilities. No facility constructed or owned by MClmetro shall 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, MClmetro shall, upon the request of the City, furnish a bond executed by
MClmetro 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 MClmetro'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 MClmetro in the City rights-of-way. At
MClmetro's sole option, MClmetro 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 MClmetro 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 MClmetro work or materials discovered in the City's roads, streets
or property.
8. "One-Call" Location and Liability. MClmetro 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 MClmetro's system components or for interruptions in service to MClmetro
customers which are a direct result of work performed for any City project for which
MClmetro has failed to properly locate its lines and facilities within the prescribed time
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limits and guidelines established by One-Call. The City shall also not be liable for any
damages to the MClmetro system components or for interruptions in service to
MClmetro customers resulting from work performed under a permit issued by the City.
9. As-Built Plans Required. MClmetro 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 Auto CAD
version prior to close-out of any permits issued by the City and any work undertaken by
MClmetro pursuant to this Franchise Agreement. The City shall determine the
acceptability of any as-built submittals provided under this section.
10. Recovery of Costs. MClmetro 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, MClmetro 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 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 will, if practicable, reserve an
easement for Franchisee to construct, replace, repair, monitor, maintain, use and
operate its equipment and facilities at the location vacated by the City, and if not
practicable, the City may, at its option and by giving 60 days written notice to MClmetro,
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 MClmetro by reason of such termination other than those provided for in RCW 35.99.
Section 6. Franchise Compliance.
A. Franchise Violations. The failure by MClmetro to fully comply with any of the
provisions of this Franchise Agreement may result in a written notice from the City that
describes the violations of the Franchise Agreement and requests remedial action within
60 days of receipt of such notice. If MClmetro 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 MClmetro's actions under this Franchise Agreement, or any failure
by MClmetro to act to correct a situation caused by MClmetro, 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 MClmetro 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;
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provided that, when possible, the City shall notify MClmetro and give MClmetro an
opportunity to correct within a specified time said threat, financial harm or delay before
undertaking such corrective measures. MClmetro 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
MClmetro 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 MClmetro to take appropriate
action to correct a situation caused by MClmetro 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 MClmetro'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, MClmetro
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 MClmetro'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 this Franchise Agreement is terminated as a
result of violations of the terms of this Franchise Agreement, MClmetro shall, at its sole
expense, promptly remove all system components and facilities, provided that the City,
at its sole option, may allow MClmetro to abandon its facilities in place.
Section 7. Insurance.
A. MClmetro 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 loss 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 mail to the City.
Section 8. Other Permits and Approvals. Nothing in this Agreement shall relieve
MClmetro 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.
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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 or any rights, title or interest in MClmetro'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 MClmetro
to another person or entity controlling, controlled by, or under common control with
MClmetro. MClmetro may license fibers to other users without the consent of the City
provided that MClmetro 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,
MClmetro 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 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 Fees.
A. Pursuant to the Revised Code of Washington (RCW), the City is precluded from
imposing franchise fees for "telephone businesses" 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. MClmetro 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. MClmetro shall be subject to a one-time $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 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 notice of 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 MClmetro 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, MClmetro shall reimburse the City for
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franchise amendments and expenses associated with the project. MClmetro shall pay
such costs within 60 days of receipt of a bill from the City.
E. Failure by MClmetro 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 MClmetro 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
MClmetro Access Transmission Services Corporation, d/b/a Verizon
Access Transmission Services
ATTN: Franchise Manager
600 Hidden Ridge
Mailcode: HQE02G295
Irving, TX 75038
with copies to (except for invoices):
Verizon Business Services, Inc.
Attn: Vice President and Deputy General Counsel, Network
1320 N. Courthouse Road, Suite 900
Arlington, VA 22201
Section 12. Indemnification.
A. MClmetro 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. MClmetro 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 MClmetro, its officers, agents, servants or
employees, carried on in the furtherance of the rights, benefits, and privileges granted to
MClmetro by this Franchise. In the event any claim or demand is presented to or filed
with the City that gives rise to MClmetro's obligation pursuant to this section, the City
shall within a reasonable time notify MClmetro thereof and MClmetro 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 MClmetro's obligation pursuant to this
section, the City shall promptly notify MClmetro thereof, and MClmetro shall, at its sole
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cost and expense, defend such suit or action by attorneys of its own election. In
defense of such suit or action, MClmetro 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 MClmetro to:
1. protect and save the City harmless from any claims, actions or damages;
2. settle or compromise any claim, demand, suitor 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 MClmetro and the City,
MClmetro'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 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.
C. With respect to the performance of this Franchise and as to claims against the
City, its officers, agents and employees, MClmetro expressly waives its immunity under
Title 51 of the Revised Code 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 MClmetro'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.
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. MClmetro 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.
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Section 16. Future Rules, Regulations and Specifications. MClmetro
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 MClmetro, shall thereafter govern
MClmetro's activities hereunder; provided, however, that in no event shall regulations:
1. materially interfere with or adversely affect MClmetro's rights pursuant to
and in accordance with this Franchise Agreement; or
2. be applied in a discriminatory manner as it pertains to MClmetro and other
similar user of such facilities.
Section 17. 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.
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 2017.
ATTEST/AUTHENTICATED:
Christy O'Flaherty, MMC, City Clerk Alan Ekberg, Mayor
APPROVED AS TO FORM BY: Filed with the City Clerk:
Passed by the City Council:
Published:
Effective Date:
Rachel B. Turpin, City Attorney Ordinance Number:
Attachments: Exhibit A - Description of MClmetro Facilities
Exhibit B — Franchise Agreement Acceptance Form
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Exhibit A
Description of MClmetro Facilities
MClmetro Facilities include, collectively or individually, any and all communications
transmission and distribution systems, including but not limited to, wires, lines, conduits,
ducts, cables, braces, guys, anchors, vaults, switches, fixtures, and any and all other
equipment, appliances, attachments, appurtenances and other items necessary,
convenient, or in any way appertaining to any and all of the foregoing, whether the
same be located across, above, along, below, in, over, through, or underground the
public rights of way located within the present and future jurisdictional boundaries of the
City of Tukwila.
MClmetro Facilities shall not include any wireless telecommunications transmission
facilities such as antennas, DAS, Small Cell facilities or other wireless transmission
devices that are mounted on poles or other structures in the right-of-way.
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EXHIBIT B
MCImetro Access Transmission Services Corporation, d/b/a Verizon Access Transmission
Services 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"), MCImetro Access Transmission Services Corporation, d/b/a Verizon Access
Transmission Services Communications Company L.P. hereby accepts the terms, conditions and
obligations to be complied with or performed by it under the Ordinance.
Sincerely,
Signature
Robert F. McGee—Director Network Engineering & Operations
Printed Name and Title
cc: Bob Giberson, Public Works Director
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