HomeMy WebLinkAboutOrd 1732 - Telecommunications Transmission Line Franchise with MCI MetroCity of Tukwila
Washington
Ordinance No. / 7302-
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, GRANTING A NON - EXCLUSIVE FRANCHISE TO MCI METRO
ACCESS TRANSMISSION SERVICES, INC., A DELAWARE CORPORATION LEGALLY
AUTHORIZED TO CONDUCT BUSINESS IN THE STATE OF WASHINGTON, FOR THE
PURPOSE OF CONSTRUCTING, OPERATING, AND MAINTAINING A
TELECOMMUNICATIONS TRANSMISSION LINE IN CERTAIN PUBLIC RIGHTS -OF-
WAY IN THE CITY.
WHEREAS, MCI METRO Access Transmission Services, Inc., hereinafter referred to as "MCIM" is a telecom-
munications company providing data transmission, linkage to long distance carriers, video transmission, and other
telecommunication services to customers in the Puget Sound Region; and
WHEREAS, MCIM desires to extend its services to certain businesses located within the corporate limits of
the City of Tukwila; and
WHEREAS, MCIM' 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 a telecommunication system which will include a
fiber -optic cable; and
WHEREAS, the City Council has determined that the use of portions of the City's rights -of -way for installa-
tion of telecommunication transmission lines 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,
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, DO
HEREBY ORDAIN AS FOLLOWS:
Section 1. Non - exclusive Franchise Granted. The City of Tukwila hereby grants to MCIM, subject to the
conditions prescribed in this Ordinance, the franchise rights and authority to construct, replace, repair, monitor,
maintain, use and operate the equipment and facilities necessary for an underground telecommunication transmis-
sion system, which includes fiber -optic cable, for the City -owned rights -of -way currently occupied through franchise
with MCI as provided in City of Tukwila Ordinance No.1496 and generally described below and hereinafter referred
to as the "franchise area"
A. South Grady Way where the same is crossed by Union Pacific Railroad right -of -way;
B. Strander Boulevard (Southwest 27th Street), where the same is crossed by the Union Pacific Railroad right -of-
way; and,
C. Southwest 43rd Street (South 180th Street), where the same is crossed by the Union Pacific Railroad right -of-
way.
Such franchise shall not be deemed to be exclusive to MCIM 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 MCIM; provided, that such other franchises do not unreasonably interfere with MCIM's exercise of fran-
chise 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 proce-
dures 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 manda-
tory and failure to abide by any conditions described herein shall be deemed as non - compliance with the terms of this
franchise and may result in some or all of the penalties specified in Section 4
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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 MCIM within the franchise area shall be coordi-
nated 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 MCIM within the franchise area shall be conducted and located so as to produce the least amount of in-
terference with the free passage of pedestrian and vehicular traffic. All construction, installation, mainte-
nance, and restoration activities shall be conducted such that they conform to the most current City of Tuk-
wila standards in effect at the time that such activities take place..
D. Underground Installation Required - All telecommunications cables and junction boxes or other vaulted sys-
tem 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 MCIM'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 MCIM in writing of such determination, and MCIM
shall promptly submit plans for such relocation. Within ninety (90) days of the approval by the City of the
plans for relocation, MCIM shall relocate those facilities or structures designated by the City. All costs of mov-
ing or relocating such facilities or structures, including but not limited to costs for design, engineering, and con-
struction, shall be the sole responsibility of MCIM.
F. Removal or Abandonment - Upon the removal from service of any transmission lines or other associated struc-
tures, facilities and amenities, MCIM 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 MCIM 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 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 - MCIM 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 MCIM system components or for interruptions in service to MCIM customers which are a di-
rect result of work performed for any City project for which MCIM has failed to properly locate its lines and fa-
cilities within the prescribed time limits and guidelines established by One Call. The City shall also not be li-
able for any damages to MCIM system components or for interruptions in service to MCIM 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, MCIM shall
utilize such conduit under separate lease agreement with the City. Such agreement shall be negotiated as to
the specific terms and the lease shall be provided at a reasonable rate.
Section 4. Franchise Compliance.
A. Franchise Violations - The failure by MCIM 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 re-
quests remedial action within thirty (30) days of receipt of such notice. If MCIM has not attained full compli-
ance at the end of the thirty (30) day period following receipt of the violation notification, the City may declare
an immediate termination of all franchise rights and privileges. The demonstration of due diligence on the part
of MCIM may be grounds for the grant of an extension in the period during which compliance is to be attained;
provided that, MCIM continues to pursue correction of any violations of the Franchise Agreement noted by
the City.
B. Emergency Actions - If any of MCIM' s actions or any failure by MCIM to act to correct a situation is deemed by
the City to create a threat to life or property, the City may order MCIM to immediately correct said situation or,
at the City' s discretion, undertake measures to correct said situation itself. MCIM shall be liable for all costs,
expenses, and damages attributable to the correction of such an emergency situation as undertaken by the City
and shall further be liable for all costs, expenses, and damages resulting from such situation. The failure by
MCIM to correct a situation identified by the City as a threat to public or private safety or property shall be
considered a violation of franchise terms and each day that such a situation continues to exist shall be regarded
as a separate violation.
C. Other Remedies - Nothing contained in this Franchise Agreement shall limit the City' s available remedies in
the event of MCIM' 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 as a result of violations of the
terms of this Agreement, MCIM shall at its sole expense, promptly remove all transmission system compo-
nents and facilities; provided that, the City, at its sole option, may allow MCIM to abandon its facilities in
place.
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Section 5. Insurance. MCIM 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 MCIM shall annually provide proof of such insurance
to the City Clerk's Office.
Section 6. Other Permits Approvals. Nothing in this agreement shall relieve MCIM from any obliga-
tion to obtain approvals or necessary permits from applicable federal, state, and City authorities for all activities in
the franchise area.
Section 7. Transfer of Ownership. The rights, privileges, benefits, title, or interest provided by this fran-
chise shall not be sold, transferred, assigned, or otherwise encumbered, without the prior written consent of the City,
with such consent not being unreasonably withheld. 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 MCIM' s telecommunication cable
system in order to secure indebtedness. Approval shall not be required for mortgaging purposes provided that the col-
lateral pledged for any mortgage shall not include the assets of this franchise, or if such transfer is from MCIM to an-
other person or entity controlling, controlled by, or under common control with MCIM.
In any transfer of this franchise which requires the approval of the City, MCIM shall show that the recipient of
such transfer has the technical ability, financial capability, and any other legal or general qualifications as deter-
mined by the City to be necessary to ensure that the obligations and terms required under this 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 thirty (30) days of such transfer.
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 MCIM files with the City Clerk, a
document acknowledging consent to the terms and conditions herein. Failure on the part of MCIM to file said con-
sent 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 Fees. 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 MCIM 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
MCIM's status, the City shall only be entitled to reimbursement of all costs, including reasonable overhead costs, as-
sociated 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 MCIM on a
quarterly basis and MCIM 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 MCIM 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 Or-
dinance.
Section 10. Capacity for City Use. The City anticipates the future need for data transmission and commu-
nications connections which will require telecommunications capacity in MCIM' 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 be-
tween the City and MCIM. The provision of such capacity by MCIM for City needs shall not be unreasonably with-
held.
Section 11. Notices. Any notices to be served upon the City or MCIM shall be delivered to the following ad-
dresses respectively:
"CITY
City of Tukwila
Office of the City Clerk
6200 Southcenter Boulevard
Tukwila, WA 98188
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"MCIM
President
MCI Metro Access Transmission Services, Inc.
2250 Lakeside Boulevard
Richardson, Texas 75082
cc: MCI Metro Access Transmission Services, Inc.
Office of the General Counsel
2400 N. Glenville Drive
Richardson, Texas 75082
Section 12. Claims for Damages. In the construction, installation, repair, operation, and maintenance of its
structures and facilities, MCIM shall use reasonable and appropriate precautions to avoid damage to persons or prop-
erty. MCIM shall indemnify and save harmless the City from all claims, actions or damages of every kind or descrip-
tion, 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 MCIM,
its officers, agents, servants or employees, carried on in the furtherance of the rights, benefits, and privileges granted
to MCIM by this Franchise. In the event any claim or demand is presented to or filed with the City which gives rise
to MCIM' s obligation pursuant to this section, the City shall within a reasonable time notify MCIM thereof and
MCIM shall have a right, at its election, to settle or compromise such claim or demand. In the event any claim or ac-
tion 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 MCIM's obligation pursuant to this section, the City shall promptly notify MCIM thereof, and MCIM
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, MCIM may, at its election and at its sole cost and expense, settle or compromise such suit or action. This sec-
tion shall not be construed to require MCIM 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 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 MCIM and
the City, MCIM' 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 par-
ticipation 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. Severability. If any section, sentence, clause or phrase of this Ordinance is held to be invalid or
unconstitutional by a court of competent jurisdiction, the City may, at its sole option, deem the entire franchise 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 City may elect to treat the portion declared invalid or un-
constitutional as severable and enforce the remaining provisions of this Ordinance.
Section 14. 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_ 1 THE CITY COUNCIL O� THE QTY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof
this 7 day of ,1995.
ATTEST /AUTHENTICATED:
E. Cantu, City Clerk
APPROVED AS TO FORM:
O e of the City Attorney
FILED WITH THE CITY CLERK: d 95;
PASSED BY THE CITY COUNCIL: 41.. 7 ys
PUBLISHED: 421-- `1„5"
EFFECTIVE DATE: 24 -9S
ORDINANCE NO.: 7 3 a,
JohiyW. Rants, Mayor
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AN ORDINANCE OF THE CITY OF TUKWILA, WASHINGTON,
GRANTING A NON EXCLUSIVE FRANCHISE TO MCI METRO ACCESS
TRANSMISSION SERVICES, INC., A DELAWARE CORPORATION
LEGALLY AUTHORIZED TO CONDUCT BUSINESS IN THE STATE OF
WASHINGTON, FOR THE PURPOSE OF CONSTRUCTING, OPERATING,
AND MAINTAINING TELECOMMUNICATION TRANSMISSION LINES
IN CERTAIN PUBLIC RIGHTS -OF -WAY IN THE CITY.
On 1— 7 the City Council of the City of Tukwila passed Ordinance
No. 730Z granting a non exclusive franchise to MCI Metro Access Transmission
Services, Inc. for the purposes of constructing, operating and maintaining telecommunications
transmission 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 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
Published Seattle Times: y
CITY OF TUKWILA
SUMMARY OF ORDINANCE NO. /73.4
E. Cantu, City Clerk