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HomeMy WebLinkAboutOrd 1791 - Telecommunications Transmission Line Franchise with WorldCom Network Services (Repealed by Ord 1969) `J•N� IL A, .qs sst r Of iii 7908 ii�c�u a Tukwila City O f Washington Ordinance No. /7'7 f AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHING- TON, GRANTING A TEMPORARY NON EXCLUSIVE FRANCHISE TO WORLDCOM NETWORK 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; PROVID- ING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, WorldCom Network Services Inc., hereinafter referred to as "WorldCom" is a telecommunications company providing data transmission, linkage to long distance carriers, video transmission, and other telecommuni- cation services to customers, including those in the Puget Sound Region; and WHEREAS, WorldCom desires to extend its services to certain businesses located within the corporate limits of the City of Tukwila; and WHEREAS, WorldCom'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 and that the coordina- tion, planning, and management of the City's rights -of -way is necessary to ensure that the burden of costs for the op- erations of non municipal interests are not borne by the citizenry; and WHEREAS, the City Council has determined that the development of a comprehensive plan for rights -of -way use and management is the most effective means for managing the current use of rights -of -way and ensuring prudent and appropriate decisions concerning the use of rights -of -way in the future; and WHEREAS, WorldCom has determined that it is in their best interests to move forward with the installation of facilities within the public rights -of -way prior to the completion of the comprehensive rights -of -way use and man- agement plan and has agreed to abide by the terms and conditions of such a plan once it has been completed; NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, DO HEREBY ORDAIN AS FOLLOWS: Section 1. Non exclusive Temporary Franchise Granted. The City of Tukwila hereby grants to WorldCom, 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 tele- communication transmission system, which includes fiber -optic cable, for the City -owned rights -of -way generally described below and hereinafter referred to as the "franchise area A. That portion of South Grady Way within the limits where the same is crossed by Union Pacific Railroad right of -way; B. That portion of Strander Boulevard (Southwest 27th Street), where the same is crossed by the Union Pacific Railroad right -of -way; and, C. That portion of Southwest 43rd Street (South 180th Street), where the same is crossed by the Union Pacific Rail- road right -of -way. Such franchise shall not be deemed to be exclusive to WorldCom 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 WorldCom; provided, that such other franchises do not unreasonably interfere with WorldCom's exercise of franchise rights granted herein as determined by the City. This franchise shall in no way interfere with WRLDCOM.DOC 2112197 1 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. 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 WorldCom within the franchise area shall be co- ordinated 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 WorldCom 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, 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 WorldCom' 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 WorldCom in writing of such determination, and WorldCom shall promptly submit plans for such relocation. Within ninety (90) days of the approval by the City of the plans for relocation, WorldCom 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, engi- neering, and construction, shall be the sole responsibility of WorldCom. F. Removal or Abandonment Upon the removal from service of any transmission lines or other associated struc- tures, facilities and amenities, WorldCom shall comply with all applicable standards and requirements pre- scribed 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 WorldCom to obtain a performance bond for any work which the Director deems to pose a threat to any property or to pub- lic 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 WorldCom 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 WorldCom system components or for interruptions in service to WorldCom customers which are a direct result of work performed for any City project for which WorldCom has failed to properly lo- cate 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 WorldCom system components or for interruptions in service to WorldCom 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, WorldCom 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 WorldCom 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 WorldCom has not attained full com- pliance at the end of the thirty (30) day period following receipt of the violation notification, the City may de- clare an immediate termination of all franchise rights and privileges. The demonstration of due diligence on the part of WorldCom may be grounds for the grant of an extension in the period during which compliance is to be attained; provided that, WorldCom continues to pursue correction of any violations of the Franchise Agreement noted by the City. B. Emergency Actions If any of WorldCom's actions or any failure by WorldCom to act to correct a situation is deemed by the City to create a threat to life or property, the City may order WorldCom to immediately correct said situation or, at the City's discretion, the City may undertake measures to correct said situation itself. WorldCom shall be liable for all costs, expenses, and damages attributable to the correction of such an emer- gency situation as undertaken by the City and shall further be liable for all costs, expenses, and damages result- ing from such situation and any reimbursement of such costs to the City shall be made within thirty (30) days WRLDCOM.DOC 2/12/97 2 of the completion of such action or determination of damages by the City. The failure by WorldCom to correct a situation identified by the City as a threat to public or private safety or property shall be considered a viola- tion of franchise terms and each day that such a situation continues to exist shall be regarded as a separate vio- lation. C. Other Remedies Nothing contained in this Franchise Agreement shall limit the City's available remedies in the event of WorldCom'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, WorldCom shall at its sole expense, promptly remove all transmission system com- ponents and facilities; provided that, the City, at its sole option, may allow WorldCom to abandon its facilities in place. Section 5. Insurance. WorldCom 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 WorldCom shall annually provide proof of such in- surance to the City Clerk's Office. Section 6. Other Permits Approvals. Nothing in this agreement shall relieve WorldCom from any obli- gation 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 WorldCom's telecommunication cable system in order to secure indebtedness. Approval shall not be required for mortgaging purposes provided that the collateral pledged for any mortgage shall not include the assets of this franchise, or if such transfer is from World Com to another person or entity controlling, controlled by, or under common control with WorldCom. In any transfer of this franchise which requires the approval of the City, WorldCom shall show that the recipi- ent of such transfer has the technical ability, financial capability, and any other legal or general qualifications as de- termined 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 administra- tive 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 three (3) years from the effective date of this Ordinance; OR, 180 days from the adoption by the City Council of a rights -of -way use and management plan prescribing new terms and conditions under which WorldCom may oc- cupy City rights -of -way, whichever shall occur first; provided that WorldCom files with the City Clerk, a document acknowledging consent to the terms and conditions herein. Failure on the part of WorldCom 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 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 WorldCom 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 rec- ognition of WorldCom' s status, the City shall only be entitled to reimbursement of all costs, including reasonable overhead costs, associated with the administration of this franchise or costs incurred by the City for actions under- taken in accordance with Section 4.B. herein. 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 WorldCom on a quarterly basis and WorldCom shall pay such costs within thirty (30) days of receipt of such bills. Each bill shall in- clude verifiable detail as to the nature of the costs incurred. Failure by WorldCom to make full payment of bills within the time specified shall be considered sufficient grounds for the termination of all rights and privileges exist- ing under this Ordinance. 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 WorldCom' 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 WorldCom. The provision of such capacity by WorldCom for City needs shall not be unrea- sonably withheld. WRLDCOM.DOC 2/12/97 3 Section 11. Notices. Any notices to be served upon the City or WorldCom shall be delivered to the following addresses respectively: "CITY City of Tukwila Office of the City Clerk 6200 Southcenter Boulevard Tukwila, WA 98188 Section 12. Claims for Damages. In the construction, installation, repair, operation, and maintenance of its structures and facilities, WorldCom shall use reasonable and appropriate precautions to avoid damage to persons or property. WorldCom shall indemnify and save harmless the City from all claims, actions or damages of every kind or description, including reasonable attorney's and expert witness fees, which may accrue to or be suffered by any per- son or persons, corporation or property to the extent caused in part or in whole by any negligent act or omission of WorldCom, its officers, agents, servants or employees, carried on in the furtherance of the rights, benefits, and privi- leges granted to WorldCom by this Franchise. In the event any claim or demand is presented to or filed with the City which gives rise to WorldCom's obligation pursuant to this section, the City shall within a reasonable time notify WorldCom thereof and WorldCom 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 WorldCom's obligation pursuant to this section, the City shall promptly notify WorldCom thereof, and WorldCom 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, WorldCom 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 WorldCom 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 WorldCom and the City, WorldCom'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 at- torney 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. 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. PASSEEY THE CITY COUI�ICIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this ig day of ,1997. ATTEST /AUTHENTICATED: J By "WorldCom WorldCom Network Services, Inc. Cherokee Industrial Park 6929 North Lakewood Avenue, Suite 1 Tulsa, Oklahoma 74117 Attn: Mail Drop 2.2 -409A ne E. Cantu, City Clerk APPROVE WRLDCOM.DOC 2/12/97 fice of the City Att ey FILED WITH THE CITY CLERK:c PASSED BY THE C TY COUNCIL: 7 PUBLISHED: a.? /y 7 EFFECTIVE DA E;j/�<v /9 7 ORDINANCE NO.: 7 9/ John'N). Rants, Mayor 4 CITY OF TUKWILA SUMMARY OF ORDINANCE NO. 7 9 AN ORDINANCE OF THE CITY OF TUKWILA, WASHING- TON, GRANTING A TEMPORARY NON EXCLUSIVE FRAN- CHISE TO WORLDCOM NETWORK 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; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. On g 9 7 the City Council of the City of Tukwila passed Ordinance No. 7 9/ 1 granting a temporary non exclusive franchise to WorldCom Network Serv- ices, Inc., to use certain portions of City rights -of -way for the installation, operation, and maintenance of a telecommunication system; 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 s L L /r, /f7 Published Seattle Times: */1/4 7 Jape Cantu, City Clerk