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HomeMy WebLinkAboutOrd 2145 - Telecommunications System Franchise with Abovenet CommunicationsCity of Tukwila Washington Ordinance No. 1 L\ AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, GRANTING A NON EXCLUSIVE FRANCHISE TO ABOVENET COMMUNICATIONS, A DELAWARE CORPORATION, LEGALLY AUTHORIZED TO CONDUCT BUSINESS IN THE STATE OF WASHINGTON, FOR THE PURPOSE OF INSTALLING, OPERATING AND MAINTAINING A TELECOMMUNICATIONS SYSTEM IN CERTAIN PUBLIC RIGHTS -OF -WAY IN THE CITY; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, AboveNet Communications Inc., herinafter referred to as "AboveNet," is a telecommunications company that, among other things, provides communications services to customers, including those in the Puget Sound region; and WHEREAS, AboveNet's desired route through the City of Tukwila, hereinafter referred to as "the 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 installa- tion and maintenance 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 WHEREAS, the Revised Code of Washington (RCW) authorizes the City to grant and regulate nonexclusive 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 AboveNet, 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 AboveNet 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 AboveNet; provided, that such other franchises do not unreasonably interfere with AboveNet's exercise of franchise rights granted herein as determined by the City. This Franchise Agreement shall in no way interfere with existing utilities or in any way limit, prohibit or prevent the City from using the franchise area, or affect the City's jurisdiction over such area in any way. Section 2. Authority. The Director of Public Works or his or her designee is hereby granted the authority to administer and enforce the terms and provisions of this Franchise Agreement, and may develop such lawful and reasonable rules, policies and procedures as he or she deems necessary to carry out the provisions contained herein. Section 3. Franchise Term. The franchise rights granted herein shall remain in full force and effect for a period of three years from the effective date of this ordinance. This Franchise Agreement shall not take effect and AboveNet shall have no rights under this Franchise Agreement unless a written acceptance with the City is received pursuant to Section 4 of this Franchise Agreement. If AboveNet requests a Franchise Agreement 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 AboveNet prior to the Franchise Agreement 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 B. Failure on the part of AboveNet 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. AboveNet franchise agreement.doc Page 1 of 5 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's Department of Public Works. In case of an emergency, AboveNet 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 AboveNet 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 AboveNet 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. Within 90 days following written notice from the City, AboveNet shall, at its own expense, 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, underground ing, change or alteration is reasonably necessary for the construction, repair, maintenance, installation, public safety, or operation of any City or other public improvement in or upon the rights -of -way. 2. AboveNet may, after receipt of written notice requesting a relocation of its facilities, submit to the City written alternatives to such relocation. Such alternatives shall include the use and operation of temporary transmitting facilities in adjacent rights -of -way. The City shall evaluate such alternatives and advise AboveNet 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, AboveNet shall submit additional information to assist the City in making such evaluation. The City shall give each alternative proposed by AboveNet full and fair consideration. In the event the City ultimately determines that there is no other reasonable alternative, AboveNet shall relocate its facilities as otherwise provided in this section. F. REMOVAL OR ABANDONMENT Upon the removal from service of any service antennas or other associated structures, facilities and amenities, AboveNet 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 AboveNet 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, AboveNet shall upon the request of the City, furnish a bond executed by AboveNet 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 AboveNet's obligations under this Franchise Agreement. At AboveNet's sole option, AboveNet 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 AboveNet shall observe all the covenants, terms and conditions, and shall faithfully perform all of the obligations of this Franchise Agreement, and repair or replace any defective work or materials discovered in the City's roads, streets, or property. H. "ONE CALL" LOCATION LIABILITY. AboveNet 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 AboveNet's system components or for interruptions in service to AboveNet customers that are a direct result of work performed for any City project for which AboveNet 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 AboveNet system components or for interruptions in service to AboveNet customers resulting from work performed under a permit issued by the City. I. AS BUILT PLANS REQUIRED. AboveNet 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 AboveNet pursuant to this Franchise Agreement. The City shall determine the acceptability of any as -built submittals provided under this section. J. RECOVERY OF COSTS. AboveNet shall be subject to all permit fees associated with activities under- taken 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, AboveNet shall pay such reasonable costs and expenses directly to the City. AboveNet franchise agreement.doc Page 2 of 5 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 acquir- ing 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 AboveNet, 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 AboveNet by reason of such termination other than those provided for in RCW 35.99. Section 6. Franchise Compliance. A. FRANCHISE VIOLATIONS. The failure by AboveNet to fully comply with any of the provisions of this Franchise Agreement may result in a written notice from the City, which describes the violations of the franchise and requests remedial action within 30 days of receipt of such notice. If AboveNet 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 AboveNet's actions, or any failure by AboveNet to act to correct a situation caused by AboveNet, is deemed by the City to create a threat to life or property, the City may order AboveNet to immediately correct said threat or, at the City's discretion, the City may undertake measures to correct said threat itself; provided that, when possible, the City shall notify AboveNet and give AboveNet an opportunity to correct said threat before undertaking such corrective measures. AboveNet 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 AboveNet, and shall further be liable for all costs, expenses and damages resulting to the City from such situation; 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 AboveNet to take appropriate action to correct a situation caused by AboveNet and identified by the City as a threat to public or private safety or property shall be considered a violation of franchise terms. 2. If during construction or maintenance of AboveNet's facilities any damage occurs to an under- ground facility and the damage results in the release of natural gas or other hazardous substance or potentially endangers life, health, or property, AboveNet or its contractor shall immediately call 911 and any other local emer- gency response number. C. OTHER REMEDIES. Nothing contained in this Franchise Agreement shall limit the City's available remedies in the event of AboveNet's failure to comply with the provisions of this Franchise Agreement, including 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 viola- tions of the terms of this Franchise Agreement, AboveNet shall, at its sole expense, promptly remove all system components and facilities, provided that the City, at its sole option, may allow AboveNet to abandon its facilities in place. Section 7. Insurance. A. AboveNet 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 condi- tions 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 Franchise Agreement shall relieve AboveNet from any obligation to obtain approvals or neces- sary 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 AboveNet'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, or if such transfer is from AboveNet to another person or entity controlling, controlled by, or under common control with AboveNet. B. In any transfer of this franchise which requires the approval of the City, AboveNet 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. AboveNet franchise agreement.doc Page 3 of 5 Section 10. Administrative Fees. A. Pursuant to the Revised Code of Washington (RCW), the City is precluded from imposing franchise fees for "telephone businesses" defined in RCW 82.04.065, except that fees may be collected for administrative expenses related to such franchise. AboveNet 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. AboveNet shall be subject to and pay the City a one -time -only $5,000.00 administrative fee for reim- bursement of City's 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 asso- ciated 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. C. In the event AboveNet submits a request for work beyond scope of original franchise, or submits a complex project that requires significant comprehensive plan review or inspection, AboveNet shall reimburse the City for a franchise amendment and expenses associated with the project. AboveNet shall pay such costs within 30 days of receipt of bill from the City. D. Failure by AboveNet 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 6A of this ordinance. Section 11. Notices. Any notice to be served upon the City or AboveNet shall be delivered to the following addresses respectively: City of Tukwila Office of the City Clerk 6200 Southcenter Boulevard Tukwila, WA 98188 AboveNet Communications, Inc. 360 Hamilton Avenue 7 Floor White Plains, NY 10601 Section 12. Indemnification. A. AboveNet 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. AboveNet 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 AboveNet, its officers, agents, servants or employees, carried on in the furtherance of the rights, benefits and privileges granted to AboveNet by this Franchise Agreement. In the event any claim or demand is presented to or filed with the City which gives rise to AboveNet's obligation pursuant to this section, the City shall, within a reasonable time, notify AboveNet thereof, and AboveNet 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 AboveNet's obligation pursuant to this section, the City shall promptly notify AboveNet thereof, and AboveNet 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, AboveNet 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 AboveNet to: 1. protect and hold 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 AboveNet and the City, AboveNet'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 Agreement and as to claims against the City, its officers, agents and employees, AboveNet 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 AboveNet's officers, agents or employees. This waiver is mutually negotiated by the parties. Above Net franchise agreement.doc Page 4 of 5 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 AboveNet, to enforce the remaining provisions of the ordinance, AboveNet shall have the option to terminate the Franchise Agreement. Section 14. Reservation of Rights. The parties agree that this Franchise Agreement is intended to satisfy the requirements of all applicable laws, administrative guidelines, rules, orders, and ordinances. Accordingly, any provision of this Franchise 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 Franchise Agreement, it being the intention of the parties to preserve their respective rights and remedies under the law, and that the execution of this Franchise 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. AboveNet 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. AboveNet 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 AboveNet, shall thereafter govern AboveNet's activities hereunder; provided, however, that in no event shall regulations: (a) materially interfere with or adversely affect AboveNet's rights pursuant to and in accordance with this Franchise Agreement; or (b) be applied in a discriminatory manner as it pertains to AboveNet 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 and effect five days after passage and publication, as provided by law. PASSED 1}Y THE CITY C• bNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this 4TH DAY OF DECEMBER, 2006. ATTEST /AUTHENTICATED: JANE E. Cantu, CMS City Clerk APPROVED AS TO FORM: By 2 Office of the City Attorney FILED WITH THE CITY CLERK: PASSED BY THE CITY f /e9 6 PUBLISHED: 7 /t> EFFECTIVE DATE: 1 a fi a/44° ORDINANCE NO.: v /44 Steven M. Mullet, Mayor Attachments: Exhibit A: AboveNet Route Descriptions within the City of Tukwila Exhibit Al: Map, AboveNet Fiber Optic System Exhibit B: Franchise Agreement Acceptance Form AboveNet franchise agreement.doc Page 5 of 5 EXHIBIT A AboveNet route descriptions within the City of Tukwila (2) 1 1 /4" conduits within the 360 Networks joint build beginning at the south City limits on West Valley highway northerly approximately 2.22 miles to the intersection of West Valley Highway, Grady Way and Interurban Ave. Populated with (1) 432ct fiber optic cable. (2) 1 1/4" conduits within the 360 Networks joint build continuing westerly along SW Grady Way approximately .2 miles to the eastern City limits. Populated with (1) 432ct fiber optic cable (2) 1 1/4" conduits within the 360 Networks joint build from the intersection of SW Grady Way, West Valley Highway and Interurban Ave northerly approximately 3.16 miles to the intersection of Interurban Ave and E Marginal Way S. Populated with (1) 864ct fiber optic cable. Note: There is no cable placed between S 133 St and E Marginal Way S along Interurban Ave. (2) 1 1/4" conduits within the 360 Networks joint build from the intersection of Interurban Ave and E Marginal Way S northerly approximately .63 miles to the intersection of E Marginal Way S and S Boeing Access Rd. Populated with (1) 432ct fiber optic cable. (2) 1 1/4" conduits within the 360 Networks joint build from the intersection of S Boeing Access Rd easterly approximately .23 miles to the intersection of S Boeing Access Rd and Airport Way S at the northern City limits. Populated with (1) 432ct fiber optic cable. (8) 1 %2" conduits within the McLeod joint build from the intersection of Interurban Ave and S 133 St westerly approximately .36 miles, then continuing northerly along E Marginal Way S approximately 1 mile to the intersection of E Marginal Way S and Interurban Ave. Populated with (1) 864 ct fiber optic cable. Note: There is no cable placed between S 124 St and S 120 St along E Marginal Way S. (8) 1 %2' conduits from the intersection of E Marginal Way S and S 124 St westerly approximately .13 miles. Populated with (1) 864 Ct fiber optic cable. (4) 1 /2" conduits within the Williams joint build from the intersection of S 130 St and Pacific Highway S northerly approximately 1.41 miles to the intersection of Pacific Highway S and E Marginal Way S, then continuing northerly on E Marginal Way S approximately 1.9 miles to the north City limits. Propose build: Install one (1) 4" PVC conduit from existing manhole on the west side of Tukwila International Boulevard. Construction will connect an existing manhole in the roadway shoulder to the property line at 12301 TIB. ABOVENET COMMUNICATIONS FIBER OPTIC SYSTEM FRANCHISE VICINITY MAP EXHIBIT A-1 Date: 12 /3/0 Ms. Jane Cantu Office of the City Clerk City of Tukwila 6200 Southcenter Boulevard Tukwila, WA 98188 Dear Ms. Cantu: EXHIBIT B FRANCHISE AGREEMENT ACCEPTANCE FORM ABOVENET COMMUNICATIONS, INC. Re: Ordinance No. 2145 Adopted 12/04/2006 In accordance with and as required by Section 4 of City of Tukwila Ordinance No. 2145 passed by the City Council and approved by the Mayor on 12/04/2006 (the "Ordinance AboveNet Communications, Inc., hereby accepts the terms, conditions and obligations to be complied with or performed by it under the Ordinance. Sincerely, r ri Signature D 'u /uS Printed N ame 1)/ 1 e4/C-d';bO/t LS Title SUMMARY OF ORDINANCE No. 2145 City of Tukwila, Washington On December 4, 2006, the City Council of the City of Tukwila, Washington, adopted Ordinance No. 2145, 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 AboveNet Communications, a Delaware Corporation, legally authorized to conduct business in the State of Washington, for the purpose of installing, 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 their Regular Meeting of December 4, 2006. Jar E. Cantu, CMC, City Clerk Published Seattle Times: December 7, 2006)9.-