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HomeMy WebLinkAboutOrd 1496 - Fiber Optic Cable Franchise with MCI Telecommunications1506 �,�WILA 1906 CITY OF TUKWILA WASHINGTON ORDINANCE NO. AN ORDINANCE OF THE CITY OF TUKWILA, WASHINGTON, GRANTING MCI TELECOMMUNICATIONS CORPORATION, A DELAWARE CORPORATION, THE RIGHT, PRIVILEGE, AUTHORITY AND FRANCHISE TO CONSTRUCT, OPERATE, MAINTAIN, REPLACE AND REMOVE CERTAIN COMMUNICA- TIONS EQUIPMENT UNDER, ALONG, ACROSS AND THROUGH CERTAIN CITY STREETS FOR THE PURPOSE OF OPERATING AS A CARRIER OF LONG DISTANCE TELECOMMUNICATIONS TRAFFIC. WHEREAS, MCI Telecommunications Corporation (hereafter "MCI is a telecommunications company currently involved in the construction of an all digital telecommunications network utilizing fiber optic technology, and WHEREAS, as part of such network, MCI has designed a system of fiber optic cable, a portion of which will pass through the City of Tukwila, and MCI has applied to the City for a franchise to install fiber optic cable in certain City streets and public rights -of -way, and WHEREAS, the City Council has determined to grant the franchise to MCI upon certain terms and conditions which the Council deems necessary due to the unique nature of fiber optic cable, now, therefore, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, DOES ORDAIN AS FOLLOWS: Section 1. Franchise Granted. The City of Tukwila hereby grants to MCI, a Delaware corporation, the right, authority, privilege and franchise to construct, replace, maintain, use and operate equipment and facilities for an underground fiber optic telecommunications system within the following streets and property: A. South Grady Way where the same is crossed by Union Pacific Right of Way; B. Southwest 43rd Street (South 180th Street) where the same is crossed by the Union Pacific right of way. C. Strander Boulevard (S.W. 27th Street), where the same is crossed by the Union Pacific right of way. Section 2. Installation Standards. A. Pursuant to undergrounding requirements of the Tukwila Municipal Code, all facilities and equipment comprising MCI's fiber optic system in the areas to which this franchise applies shall be installed underground at a minimum depth of 42 inches. B. All facilities shall be installed and maintained at such places and positions as shall least interfere with the free passage of traffic and in accordance with the laws of the State of Washington and the ordinances of the City of Tukwila regulating such construction. C. The following specific construction standards shall apply to construction, maintenance and repair of all facilities constructed pursuant to this franchise: 1. All construction standards and plans specified in the Tukwila Municipal Code as it exists at the time of construction, maintenance or repair. 2. All excavation standards set forth in the Tukwila Municipal Code as it exists at the time of construction, maintenance or repair. 3. The typical roadway bore plans, sheets 1, 2 and 3 of 3 as modified and as attached to this ordinance as Exhibit A and incorporated herein by this reference as if fully set forth. D. Whenever it shall be necessary for MCI to excavate in any area, MCI shall without delay restore the surface of said area as nearly as practical to the same condition it was in before the excavation and in accordance with City standards currently in effect at the time of the restoration. Section 3. Relocation. A. Whenever the City determines, in its discretion, that a public purpose requires the facilities of MCI to be moved or relocated in order to accommodate the improvement of any area, including but not limited to, the grading or widening of any existing or future street, alley, avenue, highway or other public right -of -way or property, MCI shall promptly submit plans for such move or relocation to the City. Within 90 days from approval of the plans by the City, MCI shall move or relocate such facilities within the area for which this franchise is granted. All costs of moving or relocating such facilities, including but not limited to, all costs of design, engineering and construction, shall be the sole responsibility of MCI. B. Whenever any person or entity, other than the City or any person acting under the direction or control of the City, requests MCI to relocate its facilities in order to accommodate the work or facilities of such person or entity within the area for which this franchise is granted, then MCI shall have the right to impose such terms and conditions for such relocation as MCI deems appropriate, including reimbursement for the actual costs of such relocation. Section 4. Indemnification and Release. A. In the construction, installation, repair, operation and maintenance of all conductors, wires, conduits, substations, apparatus, appliances and other facilities, MCI shall use reasonable and proper precautions to avoid damage to persons or property. B. MCI hereby agrees to protect and save harmless the City, its officers, agents and employees, from all claims, actions or damages of every kind or description which may accrue to or be suffered by any person or persons, corporation or property by reason of or occasioned in whole or in part by any act or activity carried on by MCI, its officers, agents, servants, or employees in the exercise or in furtherance of the privileges and authority granted herein, whether or not it is alleged that the City is responsible to any extent, and including specifically suits by employees of MCI against the City. To this extent, MCI waives whatever rights against such suit it may have by virtue of the State Workers' Compensation laws. In the event any claim or demand is presented to or filed with the City which may give rise to MCI's duty to hold the City harmless, the City shall, within a reasonable time, notify MCI of such claim and demand, and MCI shall have the right, at its election, to settle or compromise such claims or demand. In the event any suit or action is commenced in which the City is named as a party, and which suit or demand alleges facts which might give rise to MCI's obligation to hold the City harmless, MCI shall be timely notified thereof, and MCI shall have the right, at its sole cost and expense, to defend, settle or compromise such suit or action by attorneys of its own election. Should MCI decline to defend such suit or action and it is determined by a court of law that MCI has a duty under this franchise to hold the City harmless in connection with the cause of action alleged in such suit or action, MCI hereby agrees to reimburse the City for the City's costs and expenses, including reasonable attorneys' fees incurred in defending such suit or action, and in prosecuting the City's right to be held harmless. C. The provisions of this section shall not be construed to require MCI to hold harmless, appear and defend, pay any judgment or reimburse the City.s costs as to any claim, demand, suit or action which arises out of the sole negligence of the City. In the event of concurrent negligence between MCI and the City, the provisions of this section shall only apply to the extent of MCI's negligence. D. 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 where the City determines that such participation is required to protect the interests of the City or the public. E. MCI hereby releases and agrees to save the City, its officers, agents and employees, harmless from any and all losses, expenses, lost revenues and any other damage to persons or property, including, but not limited to damage to or destruction of MCI facilities, or any other liability of whatsoever nature or kind, other than the reasonable cost of repairing damage to MCI facilities caused by or occurring as the result of a negligent act of the City, its officers, agents or employees. Section 5. Insurance. MCI shall obtain and shall continuously maintain during the term of this permit public liability insurance written on an occurrence basis in an amount not less than $5,000,000 per person and $10,000,000 per occurrence for personal injuries and property damage arising out of the exercise of the franchise herein granted. The policy of insurance shall name the City as an additional insured and shall contain a provision that it will not be cancelled or reduced without sixty (60) days advance written notice to the City. A certificate of insurance shall be provided before construction commences. Section 6. Non exclusive Franchise. This franchise is not and shall not be deemed to be an exclusive franchise. This franchise shall not in any manner prohibit the City from granting other and further franchises, permits or rights over, upon, under, in and along the areas to which this franchise applies which do not unreasonably interfere with MCI's rights under this franchise. This franchise shall not prohibit nor prevent the City from using the franchise area or affect the jurisdiction of the City over the same or any part thereof. Section 7. Compliance. A. If MCI shall fail to comply with any material provision of this franchise, the City may compel compliance by serving upon MCI a written notice of the violation and the direction to comply within thirty (30) days from the date the order is received by MCI. If MCI is not in compliance with this franchise after expiration of said thirty (30) day period, the City may declare an immediate forfeiture and termination of this franchise, provided, however, that if any failure to comply with this franchise by MCI cannot be corrected with due diligence within said thirty (30) day period, then the City shall extend the time for compliance for such time as may be reasonably necessary for MCI to comply, so long as MCI commences promptly and diligently to affect such compliance. B. The notice requirements of paragraph (A) of this section shall not apply if the noncompliance of MCI results, in the opinion of the City, in any emergency or life threatening condition. In such case, the City may set a period of less than thirty (30) days for MCI to comply and may set such conditions and specifications for compliance as the City may deem reasonable under the circumstances. In the event that MCI fails to comply with any time set for compliance or with any condition set for compliance under this paragraph, the City may declare an immediate forfeiture and termination of this franchise and may take whatever steps the City deems necessary to correct the emergency condition or restore safety. In such event, MCI shall be liable to the City for all costs and expenses incurred in taking such corrective action. C. Nothing herein shall limit the remedies available to the City in the event of noncompliance by MCI. The City may sue for specific performance and /or damages in addition to the remedies provided herein. D. In the event this franchise is forfeited or terminated for any reason stated herein, MCI shall remove promptly all of its equipment and facilities from the areas for which this franchise is granted at MCI's sole cost and expense, provided that as an alternative to removal, the City may, at the City.s sole option, allow MCI to abandon its equipment and facilities in place. Section 8. Other Permits Required. Nothing in this franchise shall relieve MCI of the obligations to obtain any and all necessary federal, state and City permits for the construction of its facilities within the City of Tukwila, including, but not limited to, an excavation permit as required by the Tukwila Municipal Code and street use permits as required by the Tukwila Municipal Code. MCI shall be required to obtain all necessary permits prior to the commencement of any work in the franchise areas. Section 9. Assienments. The rights granted by this ordinance inure to the benefit of MCI, and any parent, subsidiary, affiliate or any successor entity now or hereafter existing. The rights shall not be assignable, voluntarily or involuntarily, without the express written consent of the governing body of the City, except MCI has the right, at any time, to assign, sublease, license, or relinquish possession or control of or otherwise transfer or apportion, in whole or in part, its rights under this ordinance to a parent, subsidiary, affiliate, or successor entity without consent so long as such parent, subsidiary, affiliate or successor assumes in writing all obligations of MCI hereunder. Any required consent is to be evidenced by an ordinance of the governing body of the city that recites the terms and conditions, if any, upon which consent is given. Secton 10. Franchise Term. The franchise granted by this ordinance shall be for a period of 40 years, commencing on the date this ordinance becomes effective, provided, that MCI shall have no rights under this franchise unless and until MCI files with the City a written consent to all terms and conditions of this franchise ordinance, and the franchise granted by this ordinance shall be null and void if such written consent is not filed within thirty (30) days after the effective date of this ordinance. Section 11. Amendment of Franchise. The franchise set forth in this ordinance may be amended at any time with the consent of both parties. Section 12. Police Powers Not Affected. Nothing herein shall be deemed to affect the City's ability to exercise its police powers. Section 13. Administrative Fee. Pursuant to RCW 35.21.860, an administrative fee is hereby imposed for the grant of this franchise in the amount of $3,000.00, which the City Council determines to be the actual costs of the City.s receiving and approving this franchise and inspecting plans and construction. MCI shall pay this administrative fee at the time of its consent to the terms of this franchise and MCI shall have no rights under this franchise unless and until MCI pays such administrative fee. The City expressly reserves the right to charge additional administrative fees if this franchise is amended. Such fees shall be determined at the time of amendment. Section 14. Notices. Any notices required to be given by this franchise shall be served upon the parties at the following addresses: City of Tukwila Public Works Director 6200 Southcenter Blvd. Tukwila, WA 98188 Senior Vice President and General Counsel MCI Telecommunications Corporation 1133 19th Street N.W. Washington, DC 20036 with a copy to: MCI Telecommunications Corporate Real Estate 400 International Parkway Richardson, TX 75081 Notices deposited in the United States Mails, postage prepaid, and addressed as set forth above, shall be deemed received and served upon the party to whom the notice is addressed three (3) days after deposited in the mails. Section 15. Severabilitv. 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 16. Effective Date. This ordinance shall take effect and be in full force five (5) days after publication of the attached summary which is hereby approved. PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASH- INGTON, at a regular meeting thereof this /7 e day of C.. 19'?. APP OVED AS TO FORM: fice of the ¢ity FILED WITH THE CITY CLERK: a -19 PASSED BY THE CITY COUNCIL: /2 PUBLISHED: /2 a 7 EFFECTIVE DATE: i Z- 3 i 8 ORDINANCE NO.: 4 74. APPROVED: Ga` L. Van Dusen, Mayor ATTEST /AUTHENTICATED: Maxine Anderson, City Clerk SUMMARY OF ORDINANCE N0. /4/9 AN ORDINANCE OF THE CITY OF TUKWILA, WASHINGTON, GRANTING MCI TELECOMMUNICATIONS CORPORATION, A DELAWARE CORPORATION, THE RIGHT, PRIVILEGE, AUTHORITY AND FRANCHISE TO CONSTRUCT, OPERATE, MAINTAIN, REPLACE AND REMOVE CERTAIN COMMUNICATIONS EQUIPMENT UNDER, ALONG, ACROSS, AND THROUGH CERTAIN CITY STREETS FOR THE PURPOSE OF OPERATING AS A CARRIER OF LONG DISTANCE TELECOMMUNICATIONS TRAFFIC. On '"�x/ i9t'0 the City Council of the City of Tukwila, passed Ordinance No. /4/ granting MCI Telecommunications Corporation a franchise to install fiber optic cable in certain City streets and public rights -of -way and outlining conditions for the following: Franchise Granted, Installation Standards, Relocation, Indemnification and Release, Insurance, Nonexclusive Franchise, Compliance, Other Permits Required, Assignments, Franchise Term, Amendment of Franchise, Police Powers Not Affected, Administrative Fee, Notices, Severability, and 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 /9 ,1988. Maxine Anderson, City Clerk Pa b I i 5 Va.lIe Jkt )views