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HomeMy WebLinkAboutOrd 1764 - Telecommunications Transmission Line Franchise with Electric Lightwave (Repealed by Ord 1968)City of Tukwila Washington Ordinance No. / 7 Co AN ORDINANCE OF THE CITY OF TUKWILA, WASHINGTON, GRANTING A NON-EXCLUSIVE FRANCHISE TO ELECTRIC LIGHTWAVE, INCORPORATED, A DELAWARE STATE CORPORATION WHICH IS A SUBSIDIARY OF CITIZEN UTILITIES AND LICENSED TO PROVIDE SERVICES IN THE STATE OF WASHINGTON, FOR THE PURPOSES OF CONSTRUCTING, OPERATING, AND MAINTAINING A FIBER-OPTIC TELE- COMMUNICATIONS TRANSMISSION LINE IN CERTAIN PUBLIC RIGHTS -OF -WAY IN THE CITY. WHEREAS, Electric Lightwave, Incorporated, hereinafter referred to as ELI, is a telecommunications company providing data transmission, linkage to long distance carriers, video transmission, and related services to customers in the Puget Sound Region, and WHEREAS, ELI's desired route through the City of Tukwila requires the use of certain portions of City rights -of -way for the installation, operation, and maintenance of the fiber-optic cable system, and WHEREAS, ELI was granted a non-exclusive franchise to operate in the jurisdictional limits of the City of Tukwila in 1992 through Tukwila Ordinance No. 1641, and WHEREAS, the franchise term granted by the City of Tukwila has expired as of December 22, 1995 and the City has granted administrative extension of such rights pending formal franchise extension by the City Council, and WHEREAS, the City Council has determined that the continued use of portions of the City's rights -of -way for installation, maintenance, and operation of fiber-optic transmission lines is appropriate from the standpoint of the benefits 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, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: Section 1. Non-exclusive Franchise Granted. The City of Tukwila hereby grants to ELI, the franchise rights and authority to construct, replace, repair, monitor, maintain, use and operate the equipment and facilities for an underground fiber-optic telecommunications transmission system, subject to the conditions prescribed in this Ordinance, for the City -owned properties or rights -of -way listed below and as generally depicted in Exhibits A, B and C attached hereto: A. East Marginal Way South from North City Limits to South Norfolk Street; B. Norfolk Street from East Marginal Way South easterly to the intersection with Tukwila City Limits; C. East Marginal Way South from South Norfolk Street southerly to South 120th Street; D. South 120th Street from East Marginal Way South, easterly to its terminus; E. East Marginal Way South from South 120th Street to South 128th; F. South 128th Street from East Marginal Way South easterly to 42nd Avenue South; J. G. Forty-second Avenue South from South 128th northerly to its intersection with Interurban Avenue South; H. Interurban Avenue South from 42nd Avenue South Southerly to the intersection with Gateway Drive; I. Gateway Drive from its intersection with Interurban Avenue South east of South 133rd Street to where it again intersects with Interurban Avenue South further to the north. Interurban South from the northern most intersection with Gateway Drive southerly to the intersection with the Interstate 405 right-of-way. Such franchise shall not be deemed to be exclusive to ELI and shall in no way prohibit or limit the City's ability to grant other franchises, permits, or rights along, over, or under the areas to which this franchise has been granted to ELI; provided, that such other franchises do not unreasonably interfere with ELI's exercise of franchise rights granted herein as determined by the City. This franchise shall in no way interfere with existing utilities or in any way limit, prohibit, or prevent, the City from using the franchise area or affect the City's jurisdiction over such area in any way. Section 2. Authority. The Director of Public Works or his or her designee is hereby granted the authority to administer and enforce the terms and provisions of this Ordinance and may develop such rules, policies, and procedures as he or she deems necessary to carry out the provisions contained herein. Section 3. 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 and can result in some or all of the penalties specified in Section 4. A. Permit Required - No construction, maintenance, or repairs shall be undertaken in the franchise area without first obtaining a Franchise Utility Permit from the City of Tukwila Department of Public Works. B. Coordination - All capital construction projects performed by ELI within the franchise area shall be coordinated with the Engineering Division of the Public Works Department to ensure consistency with future City of Tukwila Capital Improvement Projects. C. Construction Standards - Any construction, installation, maintenance, and restoration activities performed by or for ELI within the franchise area shall be conducted and located so as to produce the least amount of interference with the free passage of pedestrian and vehicular traffic. All construction, installation, maintenance, and restoration activities shall be conducted such that they conform to the most current City of Tukwila standards in effect at the time that such activities take place and conform to the Standard Plan Typical Details provided as Exhibit D. D. Underground Installation Required - All installation of fiber-optic 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 for the City. E. Relocation - Whenever the City determines that it is necessary for any of ELI's facilities or other system components to be moved or relocated to accommodate the maintenance, construction, or enhancement of any public amenity in the franchise area, the City shall notify ELI in writing to request such relocation and ELI shall promptly submit plans for such relocation. Within ninety (90) days of the approval by the City of the plans for relocation, ELI shall relocate those facilities or structures designated by the City. All costs of moving or relocating such facilities or structures, including but not limited to costs for design, engineering, and construction, shall be the sole responsibility of ELI. F. Removal or Abandonment - Upon the removal from service of any transmission lines or other associated structures, facilities and amenities, ELI shall comply with all applicable standards and requirements prescribed by the City of Tukwila Public Works Department for the removal or abandonment of said structures and transmission facilities. G. Performance Bond - The Public Works Director for the City of Tukwila reserves the right to require ELI to obtain a performance bond for any work which the Director deems to pose a threat to any property or to public safety. Such bond shall be issued by 2 a company licensed by proper authority of the State of Washington and shall be filed with the City Clerk's Office until release is authorized by the Public Works Director. H. "One -Call" Location & Liability - ELI shall subscribe to and maintain membership in the regional "One Call" utility location service and shall promptly locate all of its lines upon request. The City shall not be liable for any damages to ELI system components or for interruptions in service to ELI customers which are a direct result of work performed for any City project for which ELI has failed to properly locate its lines and facilities within the prescribed time limits and guidelines established by One Call. The City shall also not be liable for any damages to ELI system components or for interruptions in service to ELI customers resulting from work performed under any franchise utility permit issued by the City. I. City -Provided Conduit - In those areas of the City where the City has installed its own conduit, ELI shall utilize such conduit under separate lease agreement with the City. The terms and conditions governing the lease of such conduit shall be nogotiated and such lease shall be provided at a reasonable rate. Section 4. Franchise Compliance. A. Franchise Violations - The failure by ELI to comply fully 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 thirty (30) days of receipt of such notice. If ELI has not attained full compliance at the end of the thirty (30) day period following receipt of the violation notification, the City may declare an immediate forfeiture and termination of all franchise rights and privileges. The demonstration of due diligence on the part of ELI may be grounds for the grant of an extension in the period during which compliance is to be attained; provided that, ELI continues to pursue correction of any violations of the Franchise Agreement noted by the City. B. Emergency Actions - If any actions by ELI result in a situation deemed by the City to create a threat to life or property, the City may declare an immediate termination and forfeiture of all Franchise Agreement terms and privileges. Such termination and forfeiture shall be effective upon delivery of written notification to ELI. In the event that this franchise is terminated under emergency threat to life or property, ELI shall be liable for all costs and expenses necessary to restore safety or correct the sources of any emergency threats. C. Other Remedies - Nothing contained in this Franchise Agreement shall limit the City's available remedies in the event of ELI's failure to comply with the provisions of this Agreement, to include but not limited to, the City's right to sue for specific performance and/or damages. D. Removal of System - In the event that this Franchise Agreement is terminated or forfeited as a result of violations of the terms of this Agreement, ELI shall promptly remove all transmission system components and facilities; provided that, the City, at its sole option, may allow ELI to abandon its facilities in place. Section 5. Insurance. ELI shall maintain liability insurance written on a per occurrence basis during the full term of this franchise for personal injuries and property damages. The policy shall name the City of Tukwila as additionally insured and shall contain coverage in the following minimum amounts per separate occurrence: Personal Injury: $5,000,000. per person & $10,000,000. per occurrence. Property Damage: $5,000,000. per claimant & $10,000,000. per occurrence. Such insurance policy shall also contain a policy provision that it cannot be revoked, canceled, or reduced without sixty (60) days advance written notice to the City and ELI shall annually provide proof of such insurance to the City Clerk's Office. Section 6. Other Permits & Approvals. Nothing in this agreement shall relieve ELI from any obligation to obtain approvals or necessary permits from applicable federal, state, and City authorities for all activities in the franchise area. Section 7. Assignments. The rights, privileges, and benefits provided by this franchise shall not be assignable by sale, merger, lease, or otherwise, whether voluntary or involuntary, without the express written consent of the City. ELI may assign its rights under this franchise in 3 whole or in part to a parent company, subsidiary, or lender as part of a corporate reorganization, financing, or refinancing activity, provided that any successors or assigns shall agree to assume all obligations of ELI and provided further that they shall bind themselves to the conditions and terms of this franchise to the same extent as ELI, by means of a fully executed legal instrument indicating such commitments. Section 8. Franchise Term. The franchise rights granted herein shall remain in full force and effect for a period of five (5) years from the effective date of this Ordinance, provided that ELI files with the City Clerk, a document acknowledging consent to the terms and conditions herein. Failure on the part of ELI to file said consent within thirty (30) days of the effective date of this Ordinance shall void and nullify any and all rights granted under this franchise. At the end of the initial term, this franchise shall automatically renew for an additional five (5) year term, and every five (5) years thereafter, unless either party provides the other party with written notification opposing further renewal. Such notification shall be provided at least three (3) months prior to the end of any five (5) year period then in effect. Section 9. Administrative Fee. Pursuant to 35.21.860 of the Revised Code of Washington (RCW), the City is precluded from imposing franchise fees for "telephone business" as defined in RCW 82.04.065, except that fees may be collected for administrative expenses related to such franchise and ELI does hereby warrant that its operations as authorized under this franchise are those of a telephone business as defined in RCW 82.04.065. In recognition of ELI's status, the City shall only be entitled to reimbursement of all costs, including reasonable overhead costs, associated with the administration of this franchise. These costs shall include wages, benefits, equipment, and supplies for activities such as plan review, permit processing, and permit inspections. Such costs shall be billed to ELI on a quarterly basis and ELI shall pay such costs within thirty (30) days of receipt of such bills. Each bill shall include verifiable detail as to the nature of the costs incurred. Failure by ELI to make full payment of bills within the time specified shall be considered sufficient grounds for the termination of all rights and privileges existing under this Ordinance. Section 10. Capacity for City Use. The City anticipates the future need for data transmission and communications connections which may require telecommunications capacity in ELI's fiber-optic system in the City. The terms and conditions for the use of such capacity by the City shall be negotiated under separate agreement between the City and ELI and such capacity shall not be unreasonably withheld. Section 11. Notices. Any notices to be served upon the City or ELI shall be delivered to the following addresses respectively: City of Tukwila Office of the City Clerk 6200 Southcenter Boulevard Tukwila, WA 98188 Electric Lightwave, Incorporated 204 Southeast Stonemill Drive, Suite 280 Vancouver, WA 98684 Section 12. Claims for Damages. In the construction, installation, repair, operation, and maintenance of its structures and facilities, ELI shall use reasonable and proper precautions to avoid damage to persons or property. ELI shall protect and save harmless the City from all claims, actions or damages of every kind or description, including reasonable attorney's fees 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 negligent activity of Grantee, its officers, agents, servants or employees, carried on in the furtherance of the rights, benefits, and privileges granted to ELI by this Franchise. In the event any claim or demand is presented to or filed with the City which gives rise to ELI's obligation pursuant to this section, the City shall within a reasonable time notify ELI thereof and ELI shall have a right, at its election, to settle or compromise such claim or demand. In the event any claim or action is commenced in which the City is named a party, and which suit or action is based on a claim or demand which gives rise to ELI's obligation pursuant to this section, the City shall promptly notify ELI thereof, and ELI shall, at its sole cost and expense, defend such suit or action by attorneys of its own election. In defense of such suit or action, ELI may, at its election and at its sole cost and expense, settle or compromise such suit or action. This section shall not be construed to require ELI to: (i) protect and save the City harmless from any claims, actions, or damages; (ii) settle or compromise any claim, demand, suit, or action; (iii) appear in or defend any suit or action; or, (iv) pay any 4 judgment or reimburse the City's costs and expenses (including reasonable attorney's fees), to the extent such claim arises out of the sole negligence of the City. To the extent of any concurrent negligence between ELI and the City, ELI's obligations under this paragraph shall only extend to its share of negligence or fault. The City shall have the right at all times to participate through its own attorney in any suit or action 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. Section 13. Indemnification. ELI, its successors and assigns, agrees and covenants to indemnify and hold harmless the City of Tukwila from and against any and all liability, loss cost, damages, whether to persons or property, or expense of any type or nature, including reasonable attorney's fees and expert witness fees, to the extent it arises from any negligent act or omission or willful misconduct of ELI, its successors and assigns arising from or connected to ELI's work under this franchise, provided however, that in case any suit or action is instituted against the City by reason of any such damage or injury, City shall: (i) cause written notice thereof to be given unto ELI; and, (ii) provide all reasonably requested assistance in defense or settlement of such claim at ELI's expense; and, (iii) retain the right to control the defense or settlement or such claims. Section 14. Severability. If any term, provision, condition, or portion of this Ordinance shall be held to be invalid, the City may, at its option, deem the entire franchise to be affected and thereby nullified. However, in the event of such a determination of invalidity as to any part of this Ordinance, the City may elect to treat the portion declared invalid as severable and enforce the remaining provisions of this Ordinance. Section 15. Effective Date. This Ordinance shall take effect and be in full force and effect five (5) days after publication of the attached summary which is hereby approved. PASSED BY THE CITY COUP I IL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this .ZD Tom' day of ��_ ,1996. W. Rants, Mayor ATTEST /AUTHENTICATED: jte E. Cantu, City Clerk APPROVED AS TO FORM: OFFICE OF THE CITY ATTORNEY: By FILED WITH THE CITY CLERK: 02 - / 5- 94. PASSED BY THE CITY COUNCIL: PUBLISHED: J - 4 3 - 9 G, EFFECTIVE DATE: .2 -,2 V60 ORDINANCE NO.: 17 5 SUMMARY OF ORDINANCE NO. /769 AN ORDINANCE OF THE CITY OF TUKWILA, WASHING - TON, GRANTING A NON-EXCLUSIVE FRANCHISE TO ELECTRIC LIGHTWAVE, INCORPORATED, A DELAWARE STATE CORPORATION WHICH IS A SUBSIDIARY OF CITI- ZEN UTILITIES AND LICENSED TO PROVIDE SERVICES IN THE STATE OF WASHINGTON, FOR THE PURPOSES OF CONSTRUCTING, OPERATING, AND MAINTAINING A FI- BER-OPTIC TELE-COMMUNICATIONS TRANSMISSION LINE IN CERTAIN PUBLIC RIGHTS -OF -WAY IN THE CITY. On /PO i C.. , the City Council of the City of Tukwila passed Ordinance No. /740, , gran ng a non-exclusive franchise to Electric Lightwave, Inc. for the purpose of constructing, operating and maintaining a fiber-optic telecommunications transmission line in certain public rights -of -way in the City. The full text of this ordinance will be mailed without charge to anyone who submits a written request to the City Clerk of the City of Tukwila for a copy of the text. APPROVED by the City Council at its meeting of .,ef-2,e_t� )/ e- 0.„,,,, E. Cantu, City Clerk 2/..z._;/ 6. ) ,Zezz-d-e—