HomeMy WebLinkAboutOrd 1641 - Fiber Optic Telecommunications Transmission Line Franchise with Electric Lightwave x J�
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T ukwila
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Washington
Ordinance No. 1
AN ORDINANCE OF THE CITY OF TUKWILA, WASHINGTON,
GRANTING A NON EXCLUSIVE FRANCHISE TO ELECTRIC
LIGHTWAVE, INCORPORATED, A WASHINGTON STATE
CORPORATION AND A SUBSIDIARY OF CITIZEN UTILITIES
CAPTTALCORP, 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 desires to extend its services to certain businesses located within the
corporate limits of the City of Tukwila and provide a continuous loop around Lake Washington,
the path of which relies on cable construction within the City of Tukwila, 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, the City Council has determined that the use of portions of the City's
rights -of -way for installation 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;
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.
J. 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. 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 3.
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 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.
Section 3. 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 4. 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:
Property Damage:
$5,000,000. per person $10,000,000. per occurrence.
$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 5. 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 6. 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
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 7. Franchise Term. The franchise rights granted herein shall remain in full
force and effect for a period of three (3) 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.
Section 8. 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 9. 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 10. 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,
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
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 11. 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, 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 12. 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 13. 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 COITNF OF THE �OF TUKWILA, ASHINGTON,
at a Regular Meeting thereof this 7 day of 1992.
ATTEST /AUTHENTICATED:
lane E. Cantu, City Clerk
APPROVED AS TO FORM:
OFFICE OF THE CITY ATTORNEY:
By
FILED WITH THE ITY CLERK: /.2-
PASSED BY THE CITY COUNCIL: /,a 7
PUBLISHED• /7- 9Z
EFFECTIVE DATE: /a l 2
ORDINANCE NO.: /6 y/
John Rants, Mayor
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ELECTRIC
LISHTWAVE
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SUMMARY OF ORDINANCE NO. A
AN ORDINANCE OF THE CITY OF TUKWILA,
WASHINGTON, GRANTING A NON EXCLUSIVE
FRANCHISE TO ELECTRIC LIGHTWAVE, INCORPORATED,
A WASHINGTON STATE CORPORATION AND A
SUBSIDIARY OF CITIZEN UTILITIES CAPITALCORP, FOR
THE PURPOSES OF CONSTRUCTING, OPERATING, AND
MAINTAINING A FIBER -OPTIC TELE- COMMUNICATIONS
TRANSMISSION LINE IN CERTAIN PUBLIC RIGHTS -OF-
WAY IN THE CITY.
On 7' the City Council of the City of Tukwila passed Ordinance
No. granting a non exclusive franchise to Electric Lightwave, Inc. for the purposes
of construcing, 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
PUBLISH: SEATTLE TIMES DECEMBER 17, 1992
(JE:cantu City Clerk
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