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HomeMy WebLinkAboutOrd 1439 - Fiber Optic Cable Franchise with US Sprint Communications (Repealed by Ord 2546) Cover page to Ordinance 1439 The full text of the ordinance follows this cover page. Ordinance 1439 was amended or repealed by the following ordinances. AMENDED REPEALED Section(s) Amended Amended by Ord # Section(s) Repealed Repealed by Ord # 1 2546 2102 41214" iN 411 1908 CITY OF TUMILA 0042.08003 JEH /naa WASHINGTON 04/14/87 R: 07/16/87 ORDINANCE NO. AN ORDINANCE OF THE CITY OF TUKWILA, WASHINGTON, GRANTING US SPRINT COMMUNICATIONS COMPANY, A NEW YORK GENERAL PARTNERSHIP, 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 TELE- COMMUNICATIONS TRAFFIC. WHEREAS, US Sprint Communications Company (hereinafter "US Sprint is a telecommunications company currently involved in the construction of an all digital communications network utilizing predominantly fiber optic technology, and WHEREAS, as part of such network, US Sprint has designed a system of fiber optic cable which will connect Oroville, California and Seattle, Washington, and WHEREAS, a portion of this route will pass through the City of Tukwila, and US Sprint has applied to the City for a franchise to install fiber optic cable in certain City streets and public right -of -way, and WHEREAS, the City Council has determined to grant the franchise to US Sprint 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, DO ORDAIN AS FOLLOWS: Section 1. Franchise Granted. The City of Tukwila hereby grants to US Sprint, a New York general partnership, 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 (S. 180th Street) where the same is crossed by the Union Pacific right of way. 1 p 1 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 US Sprint'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 US Sprint to excavate in any area, US Sprint 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 it is necessary for any facilities of US Sprint 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, US Sprint shall promptly submit plans for such move or relocation to the City. Within 90 days from approval of the plans by the City, US Sprint 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 US Sprint. B. Whenever any person or entity, other than the City or any person acting under the direction or control of the City, requests US Sprint 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 US Sprint shall have the right to impose such terms and conditions for such relocation as US Sprint deems appropriate. Section 4. Indemnification and Release. A. In the construction, installation, repair, operation and maintenance of all conductors, wires, conduits, substations, apparatus, appliances and other 2 facilities, US Sprint shall use reasonable and proper precautions to avoid damage to persons or property. B. US Sprint 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 occasion in whole or in part by any act or activity carried on by US Sprint, 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 US Sprint against the City. To this extent, US Sprint 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 US Sprint's duty to hold the City harmless, the City shall, within a reasonable time, notify US Sprint of such claim and demand, and US Sprint shall have the right, at its election, to settle or compromise such claim 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 US Sprint's obligation to hold the City harmless, US Sprint shall be timely notified thereof, and US Sprint 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 US Sprint decline to defend such suit or action and it is determined by a court of law that US Sprint has a duty under this franchise to hold the City harmless in connection with the cause of action alleged in such suit or action, US Sprint hereby agrees to reimburse the City for the City's costs and expenses, including reasonable attorney's 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 US Sprint 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. 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. US Sprint 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 US Sprint facilities, or any other liability of whatsoever nature or kind, other than the reasonable cost of repairing damage to US Sprint facilities caused by or occuring as the result of a negligent act of the City, its officers, agents or employees. Section 5. Insurance. US Sprint shall obtain and shall continuously maintain during the term of this permit public liability insurance written on an occurrence basis in an amount 3 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 canceled or reduced without sixty (60) days advance written notice to the City. The form of the policy shall be approved by the City. Section 6. Nonexclusive 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 US Sprint'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 US Sprint shall fail to comply with any provision of this franchise, the City may compel compliance by serving upon US Sprint a written notice of the violation and the direction to comply within thirty (30) days from the date the order is received by US Sprint. If US Sprint 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 US Sprint 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 US Sprint to comply, so long as US Sprint 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 US Sprint 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 US Sprint to comply and may set such conditions and specifications for compliance as the City may deem reasonable under the circumstances. In the event that US Sprint 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, US Sprint 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 US Sprint. The City may sue for specific performance and /or damages in addition to the remedies provided herein. 4 D. In the event this franchise is forfeited or terminated for any reason stated herein, US Sprint shall promptly remove all of its equipment and facilities from the areas for which this franchise is granted at US Sprint's sole cost and expense, provided, that as an alternative to removal, the City may, at the City's sole option, allow US Sprint to abandon its equipment and facilities in place. Section 8. Other Permits Required. Nothing in this franchise shall relieve US Sprint of the obligation 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. US Sprint shall be required to obtain all necessary permits prior to the commencement of any work in the franchise areas. Section 9. Assignments. The rights granted by this ordinance inure to the benefit of US Sprint, and any parent, subsidiary, affiliate or any successor entity now or hereafter existing. The rights shall not be assignable, by sale, merger, lease or otherwise, whether voluntary or involuntary, without the express written consent of the governing body of the City, except US Sprint may assign its rights under this ordinance to a parent, subsidiary, affiliate or successor entity without consent so long as (1) such parent, subsidiary, affiliate or successor assumes all obligations of US Sprint hereunder, and (2) is bound to the same extent as US Sprint hereunder. Any required consent is to be evidenced by an ordinance of the governing body of the City that fully recites the terms and conditions, if any, upon which consent is given. Section 10. Franchise Term. The franchise granted by this ordinance shall be for a period of 30 years, commencing on the date this ordinance becomes effective, provided, that US Sprint shall have no rights under this franchise unless and until US Sprint 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. 5 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. US Sprint shall pay this administrative fee at the time of its consent to the terms of this franchise and US Sprint shall have no rights under this franchise unless and until US Sprint 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 US Sprint Communications Company Director, Network Route Department P.O. Box 11315 Kansas City, MO 64112 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. 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, 6 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, WASHINGTON, at a regular meeting thereof this 0 day of ,y 1987. APP' O ,,E'_ MO OAR L. VAN DUSEN ATTEST /AUTHENTICATED: 'CITY' CLERK, MAXINE ANDERSON APPROVED AS TO FORM: OFFICE OF THE CITY TORN FILED WITH THE 4 LERK: 7--a -S:27 PASSED BY THE CUNCIL: 7- 0- S7 PUBLISHED: 7 -30- 8T EFFECTIVE DATE: 8- g7 ORDINANCE NO. /4/39 7 0042.08003 JEH /naa 04/14/87 SUMMARY OF ORDINANCE NO. /4439 AN ORDINANCE OF THE CITY OF TUKWILA, WASHINGTON, GRANTING US SPRINT COMMUNICATIONS COMPANY, A NEW YORK GENERAL PARTNERSHIP, 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 TELE- COMMUNICATIONS TRAFFIC. On j.th ,20 1987, the City Council of the City of TukwiLl'a pissed Ordinance No. /43? which provides as follows: Section 1. Grants a franchise to US Sprint to construct telecommunication facilities in certain City streets. Section 2. Provides installation standards for the construction of US Sprint's facilities. Section 3. Concerns relocation of US Sprint's facilities and provides for the payment of cost of such relocation. Section 4. Provides for the indemnification and release of the City by US Sprint. Section 5. Requires US Sprint to furnish insurance. Section 6. Declares the franchise to be nonexclusive. Section 7. Provides for termination of the franchise. Section 8. Requires US Sprint to obtain other permits. Section 9. Prohibits assignment of the franchise without the City's consent. Section 10. Provides that the franchise is for a period of 30 years. Section 11. Provides that amendments to the franchise must be consented to by both parties. Section 12. States that the City's police powers are not affected by the ordinance. Section 13. Provides for an administrative fee for the franchise. Section 14. Provides for notices to the parties. Section 15. Provides for severability. Section 16. Establishes 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. PPROVED by the City Council at their meeting of LA 02 1987. CT'TY CLERK, I AXINE ANDERSON PUBLISH: Valley Daily News July 30, 1987