HomeMy WebLinkAboutOrd 2283 - Telecommunications System Franchise with PAETEC Holding CorporationCity of Tukwila
Washington
Ordinance No. 2283
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, GRANTING A NON EXCLUSIVE FRANCHISE TO
PAETEC HOLDING CORPORATION, AN IOWA CORPORATION
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, PAETEC Holding Corporation, hereinafter referred to as "PAETEC," is
a telecommunications company that, among other things, provides voice and data
services to customers, including those in the Puget Sound region; and
WHEREAS, PAETEC'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 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 PAETEC, 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, and hereinafter referred to as the "franchise area."
B. Such franchise shall not be deemed to be exclusive to PAETEC 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 PAETEC; provided,
that such other franchises do not unreasonably interfere with PAETEC'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
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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 three years from the effective date of this ordinance.
This franchise shall not take effect and PAETEC shall have no rights under this
franchise unless a written acceptance with the City is received pursuant to Section 4 of
this agreement. If PAETEC 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
PAETEC 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 PAETEC 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.
A. 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, PAETEC shall, within 24 hours of the emergency, obtain a permit from the
City of Tukwila Department of Public Works.
B. Coordination. All capital construction projects performed by PAETEC 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.
C. Construction Standards. Any construction, installation, maintenance and
restoration activities performed by or for PAETEC 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.
D. 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.
E. Relocation.
1. Whenever the City causes a public improvement to be constructed within the
franchise area, and such public improvement requires the relocation of PAETEC's
facilities, the City shall provide PAETEC 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 PAETEC 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.
2. To ensure timely execution of relocation requirements, PAETEC shall, upon
written request from the City, provide at PAETEC'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
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procedures), and other design, technical or operational requirements within the
timeframe specified by the City.
3. PAETEC 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
PAETEC 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, PAETEC shall submit additional information to assist the City in making such
evaluation. The City shall give each alternative proposed by PAETEC full and fair
consideration. In the event the City ultimately determines there is no other reasonable
alternative, PAETEC shall relocate its facilities as otherwise specified in Section 5.E.
4. Upon final approval of the relocation plan by the City, PAETEC shall, at its
own expense, unless otherwise prohibited by statute, and at the timeframe 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.
5. If during the construction, repair, or maintenance of City's public
improvement project an unexpected conflict occurs from PAETEC's facilities, PAETEC
shall upon notification from the City, respond within 24 hours to resolve the conflict.
F. Removal or Abandonment. Upon the removal from service of any service
antennas or other associated structures, facilities and amenities, PAETEC 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 PAETEC may be abandoned without the express
written consent of the City.
G. Bond. Before undertaking any of the work, installation, improvements,
construction, repair, relocation, or maintenance authorized by this Franchise
Agreement, PAETEC shall, upon the request of the City, furnish a bond executed by
PAETEC 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 PAETEC'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 PAETEC in the City rights -of -way. At PAETEC's sole option,
PAETEC 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 PAETEC
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
PAETEC work or materials discovered in the City's roads, streets or property.
H. "One Call" Location Liability. PAETEC 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 PAETEC's
system components or for interruptions in service to PAETEC customers which are a
direct result of work performed for any City project for which PAETEC 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
PAETEC system components or for interruptions in service to PAETEC customers
resulting from work performed under a permit issued by the City.
I. As Built Plans Required. PAETEC 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 PAETEC
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pursuant to this Franchise Agreement. The City shall determine the acceptability of any
as -built submittals provided under this section.
J. Recovery of Costs. PAETEC 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, PAETEC shall pay such reasonable costs and expenses directly to the
City.
K. 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 may, at its option and by giving 30-
days written notice to PAETEC, 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 PAETEC by reason of such termination other than
those provided for in RCW 35.99.
Section 6. Franchise Compliance.
A. Franchise Violations. The failure by PAETEC to fully comply with any of the
provisions of this Franchise Agreement may result in a written notice from the City that
describes the violations of the franchise and requests remedial action within 30 days of
receipt of such notice. If PAETEC 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 PAETEC's actions, or any failure by PAETEC to act to correct a
situation caused by PAETEC, 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 PAETEC 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 PAETEC and give PAETEC an opportunity to correct within a specified time said
threat, financial harm or delay before undertaking such corrective measures. PAETEC
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 PAETEC 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 PAETEC to take appropriate
action to correct a situation caused by PAETEC 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 PAETEC'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, PAETEC 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 PAETEC'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, PAETEC shall, at its sole
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expense, promptly remove all system components and facilities, provided that the City,
at its sole option, may allow PAETEC to abandon its facilities in place.
Section 7. Insurance.
A. PAETEC 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; 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 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 Approvals. Nothing in this Agreement shall relieve
PAETEC 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 or any rights, title or interest in PAETEC'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 PAETEC to
another person or entity controlling, controlled by, or under common control with
PAETEC.
B. In any transfer of this franchise which requires the approval of the City, PAETEC
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
costs associated with a transfer of this franchise which 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 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. PAETEC 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. PAETEC 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 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.
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C. In the event PAETEC submits a request for work beyond scope of original
franchise, or submits a complex project that requires significant comprehensive plan
review or inspection, PAETEC shall reimburse City for franchise amendment and
expenses associated with the project. PAETEC shall pay such costs within 30 days of
receipt of bill from the City.
D. Failure by PAETEC 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 PAETEC shall be
delivered to the following addresses respectively:
City of Tukwila
Office of the City Clerk
6200 Southcenter Boulevard
Tukwila WA 98188
PAETEC
Attn: ROW Department
One Martha's Way
Hiawatha IA 52233
Section 12. Indemnification.
A. PAETEC 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. PAETEC 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 PAETEC, its
officers, agents, servants or employees, carried on in the furtherance of the rights,
benefits, and privileges granted to PAETEC by this franchise. In the event any claim or
demand is presented to or filed with the City which gives rise to PAETEC's obligation
pursuant to this section, the City shall within a reasonable time notify PAETEC thereof
and PAETEC 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
PAETEC's obligation pursuant to this section, the City shall promptly notify PAETEC
thereof, and PAETEC 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, PAETEC 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 PAETEC 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 PAETEC and the City,
PAETEC'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, PAETEC expressly waives its immunity under
Title 51 of the RCW, the Industrial Insurance Act, for injuries to its officers, agents and
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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
PAETEC'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
PAETEC, to enforce the remaining provisions of the ordinance, PAETEC 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 which may conflict with or violate the law shall be invalid and
unenforceable, whether occurring before or after the execution of this agreement, it
being the intention of the parties to preserve their respective rights and remedies under
the law, and that the execution of this agreement does not constitute a waiver of any
rights or obligations by either party under the law.
Section 15. Police Powers. Nothing contained herein shall be deemed to affect the
City's authority to exercise its police powers. PAETEC 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. PAETEC 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 PAETEC, shall thereafter govern PAETEC's
activities hereunder; provided, however, that in no event shall regulations:
1. materially interfere with or adversely affect PAETEC's rights pursuant to and
in accordance with this Franchise Agreement; or
2. be applied in a discriminatory manner as it pertains to PAETEC and other
similar user of such facilities.
Section 17. 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 Pi day of 2010.
ATTEST/ AUTHENTICATED:
Christy O'Flah'erty✓CMC, City -l'erk
APPROVED AS TO O c Y:
Offi e of the
T
Attachments: Exhibit A Description
Exhbit A-1 Map
Exhibit B Acceptance Form
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c},„
ggerton,
Filed with the City Clerk: U I 0
Passed by the City Council: C O
Published: LI -3 -1 /7
Effective Date: Li -.fl -i 0
Ordinance Number: .g
Page 10
EXHIBIT A
PAETEC HOLDING CORPORATION
Fiber Optic System
PAETEC'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 South then south on East Marginal Way to
Interurban Avenue South where it continues south on West Valley Highway to the
southernmost limit of the City.
PAETEC also has a Fiber Optic System that begins 300 feet north of the intersection of
Interurban Avenue South and East Marginal Way South. On Interurban Avenue South,
the System travels south on Interurban Avenue South to the intersection of Interurban and
East Marginal Way then continues south on East Marginal Way to South 133 Street to
the intersection of South 133 Street and Interurban Avenue South tying into the primary
Fiber Optic System described above.
PAETEC FIBER OPTIC SYSTEM
EXHIBIT A-1
VICINITY MAP
Date:
Sincerely,
v�r
Sture
EXHIBIT B
FRANCHISE AGREEMENT ACCEPTANCE FORM
PAETEC HOLDING CORPORATION
City of Tukwila
City Clerk's Office
6200 Southcenter Blvd
Tukwila WA 98188
Re: Ordinance 2-2-S 3 Adopted I ci au o
Dear Ms. O'Flaherty,
In accordance with and as required by Section 4 of City of Tukwila Ordinance No.
223 5 (the "Ordinance passed by the City Council and approved by the
Mayor on L4 9 (7 l O PAETEC Holding Corporation. hereby accepts the
terms, conditions and obligations to be complied with or performed by it under the
ordinance.
rte.
Printed Name
Title
APPROVED
George Spengler Vice President Outside Plant
$5,000.00 payment received
check # 1220061 from PAETEC
SUMMARY OF
Ordinance No. 2283
City of Tukwila, Washington
On April 19, 2010 the City Council of the City of Tukwila, Washington, adopted
Ordinance No. 2283, the main points of which are summarized by its title as follows:
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, GRANTING A NON EXCLUSIVE FRANCHISE TO
PAETEC HOLDING CORPORATION, AN IOWA CORPORATION
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.
The full text of this ordinance will be mailed upon request.
Approved by the City Council at a Regular Meeting thereof on April 19, 2010.
Published Seattle Times: April 22, 2010.
F/
Christy O'Flaher`fy, CMC, City Clerk