HomeMy WebLinkAboutFEDRAC PKT 01-09-2001 City of Federal Way
City Council
Finance/Economic Development/Regional Affairs Committee
Tuesday, January 9, 2001
2:00 p.m.
City Hall
Mt. Baker Conference Room
(formerly Administration Conference Room)
AGENDA
1. CALL TO ORDER
2. PUBLIC COMMENT
3. COMMITTEE BUSINESS
A. Approval of December 11, 2000 Meeting Minutes
B. Metromedia ROW Franchise Agreement (Roe)
Action
Action
4. FUTURE AGENDA ITEMS
5. NEXT MEETING: January 23, 2001 at 2:00 p.m.
('ommiltee ~l/embers:
Mary Gates, Chair
Michael Itellick.von
City Stall:'
hven IFang, Management Services Director
Jeri-L.vnn Clark, Temporao, Assistant
(253) 661-4061
CITY OF FEDERAL WAY
MEMORANDUM
Date: January 5, 2001
To: Finance, Econo~opment and Regional Affairs Committee
Via: David H. M/o.seqe~ }C~¢lVI~nager
From: ~l~'~ob C. Sterbank,'~ty Xttomey
Subject: Proposed Metromedia Fiber Network Fiber Optic Franchise -1st Avenue S. (from
356tn to 312th), 312tt' (from Is' to SR99) and SR99 (from 312t~' to 273'a).
Background:
Metromedia Fiber Network has requested a franchise to locate a fiber optic communications
system within City right-of-way along 1st Avenue S. (from 356th to 3 12th), 312th (from 1st to
SR99) and SR99 (from 312th to 273ra). The fiber optic cable will be part of the Metromedia's
larger network.
The basic terms of the proposed franchise are as follows:
1. Equipment
The franchise would permit Metromedia to install eight, 1.5-inch diameter underground
conduits for fiber optic lines, and appurtenant vaults and "pull boxes" necessary to allow
installation of fiber within the conduits. These facilities would be installed in the Franchise Area
as shown on drawings that will be provided at the Committee meeting. Metromedia will also
provide three, 1.25 inch-diameter conduits to the City at no cost.
2. Consideration
Metromedia will pay the City's administrative costs and expenses in preparing and
approving the franchise. Metromedia will also relocate its facilities at the City's request, at
Metromedia's cost, and repair any damages it causes to the ROW, also at Metromedia's cost. In
addition, Metromedia is also providing conduit to the City.
3. Insurance
Metromedia will maintain insurance of $2 Million combined single limit for both
commercial general liability and automobile insurance.
4. Term
The term of the proposed franchise is 10 years, consistent with franchises the City has
granted to TCI (now AT&T, for cable); Puget Sound Energy, Tacoma Public Utilities (for
Lakehaven's second supply pipeline); Weyerhaeuser, Sprint and Williams (fiber optic cable).
5. Bond
The proposed franchise requires Metromedia to post a bond in the amount of 120% of the
amount of the facilities prior to commencing any work under the Franchise.
6. Issues of Note.
a. Conduit Location. Metromedia will not be installing new conduit along the entire
route. Instead, for portions of the route, it will utilize existing US West or Qwest conduit, under
the terms of a lease. In those locations, Metromedia has indicated that it does not want to install
conduit for the City, since it will not be boring or trenching in those areas.
Assignment. Previous City franchises and right-of-way use agreements, particularly
telecommunications franchises and right-of-way use agreements, contain provisions prohibiting
the telecom company from assigning or transferring its interest in the franchise without first
obtaining the City's consent. In recent instances, these provisions have been the subject of
substantial negotiation and disagreement with the providers.
Metromedia's primary interest in this regard has been to preserve some ability to lease or
allow exclusive use of particular fiber optic lines, without having to obtain City consent.
Because City interest in approving assignments has largely been based on concerns for public
safety, right-of-way integrity, and liability, staff and Metromedia drafted an innovative provision
which allows Metromedia in limited circumstances to grant exclusive use of portions of their
facility to others without City approval, provided that the user of the fiber did not obtain any
right to physical move, repair, relocate, or otherwise touch the fiber, conduit, or City right-of-
way. Where lease or other transfer of such physical control is contemplated, Metromedia is
required to obtain prior City approval.
Committee Recommendation:
Staff requests that the committee forward the proposed franchise to the full City Council,
for placement on the January 16, 2001 City Council agenda, with a "do pass" recommendation;
provided that the following changes are made to the draft franchise ordinance:
a. None
APPROVAL BY COMMITTEE:
Committee Chair
COmmittee Member
Committee Member
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ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE cITy OF FEDERAL WAY,
WASHINGTON, GRANTING METROMEDIA FIBER NETWORK SERVICES,
INC., A DELAWARE CORPORATION, A NONEXCLUSIVE FRANCHISE TO
OCCUPY RIGHTS-OF-WAY OF THE CITY OF FEDERAL WAY,
WASHINGTON, WITHIN A SPECIFIED FRANCHISE AREA FOR THE
PURPOSES OF INSTALLING, CONSTRUCTING, MAINTAINING,
REPAIRING, AND RESTORING A FIBER OPTIC COMMUNICATIONS
SYSTEM WITHIN AND THROUGH THE CITY OF FEDERAL WAY.
WHEREAS, Metromedia Fiber Network Services, Inc. a Delaware corporation
("Metromedia") has requested a franchise from the City of Federal Way, in order to locate a fiber
optic communications system within the right-of-way, as shown on Exhibit A hereto; and
WHEREAS, the City Council of Federal Way finds that it is in the public interest to grant
such a franchise, which will specify the rights and duties of Metromedia; and
WHEREAS, RCW 35A.47.040 permits the City of Federal Way to grant nonexclusive
franchises for the use of public streets, bridges or other public ways for, inter alia, conduits,
wires and appurtenances for transmission of signals and other methods of communications; and
WHEREAS, in granting such a nonexclusive franchise, the City of Federal Way reserves
such other powers and authorities granted to Washington code cities by general law;
NOW THEREFORE, THE CITY COUNCIL OF THE CITY OF FEDERAL WAY,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
Section 1. Definitions
Where used in this Franchise the following terms shall be defined as follows:
1.1 "City" means the City of Federal Way, Washington, a municipal
corporation of the State of Washington, and its respective successors and assigns.
1.2
"Council" means the City of Federal Way Council acting in its official
capacity.
1.3 "Director" means the Public Works Director, or designee, of the City of
Federal Way Public Works Department.
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1.4 "Facilities" means an underground fiber optic telecommunications system
including, but not limited to, eight 1.5 inch conduits and fiber optic cable, as specifically
depicted in Exhibit A hereto and in City approved plans on file with the City of Federal Way in
File No. __ "Facilities" also means any other equipment approved by the Federal Way City
Council by ordinance and incorporated herein by amendment.
1.5 "FWCC" means the Federal Way City Code.
1.6 "Franchise Area" means only that portion of the rights-of-way located in
the City of Federal Way and shown in Exhibit A attached hereto, and/or any other areas
approved by the Federal Way City Council and incorporated into this Ordinance via amendment.
1.7 "Franchisee" means Metromedia, and its successors and assigns if
approved and/or permitted as provided in Section 24.3 herein.
1.8 "City Facilities" means an underground system of conduit, junction boxes,
pull boxes system, access vaults and structures, including but not limited to three (3) one and
one-quarter inch (1 ¼-inch) conduits, suitable for use as part of an underground fiber optic or
other telecommunications system, as further described in Section 20.2 below.
Section 2. Grant/Acceptance
2.1 Grant of Franchise. The City hereby grants to Franchisee the
nonexclusive right to enter upon the Franchise Area for the limited purpose of constructing,
excavating, installing, maintaining, restoring, and repairing Facilities within the Franchise Area.
This franchise is specifically limited to the right for Metromedia to install Facilities owned and
operated by Metromedia. Franchisee may not provide cable television or open video system
services, unless it first obtains a cable television franchise or open video system franchise or
agreement from the City.
2.2 Acceptance by Franchisee. Franchisee shall have no rights under this
Franchise, nor shall Franchisee be bound by the terms and conditions of this Franchise, unless
Franchisee shall, within sixty (60) days after the effective date of this Franchise, file with the
City its written acceptance of this Franchise and all of its terms and conditions.
Section 3. Non-Franchise Area City Property
This Franchise does not and shall not convey any right to Franchisee to install its
Facilities on, under, over, across, or to otherwise use City-owned or leased properties of any kind
outside the Franchise Area, or to install Facilities on, under, over, across or otherwise use any
City owned or leased property within the Franchise Area other than the right-of-way depicted in
Exhibit A and as described in Section 1.6 herein.
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Section 4. Term
Subject to Franchisee filing its acceptance pursuant to Subsection 2.2, the term of this
Franchise shall be for a period of ten (10) years commencing on the effective date of this
Franchise, unless terminated earlier pursuant to this Franchise or other applicable law.
Section 5. Location of Facilities
5.1 Location. The Facilities shall be installed underground. The location of
the underground Facilities and appurtenances, their depths below the surface of the ground or
grade of a right-of-way, and any related existing equipment to which the Facilities are connected
shall be depicted on "as-built" plans submitted to the City within ninety (90) days of the
installation of the Facilities. The "as-built" plans shall be stamped by a Professional Engineer
licensed by the State of Washington. Upon written request of the City, Franchisee shall update
such "as-built" plans to reflect actual or anticipated improvements to the system. Any plans of
anticipated improvements to the system so submitted shall be for informational purposes only
and shall not obligate Franchisee to undertake any specific improvements, nor shall such plans
be construed as a proposal to undertake any specific improvements.
5.2 GIS Data. At such time as Franchisee develops or employs Geographic
Information .System ("GIS") technology, Franchisee shall submit the information required in
Subsection 5.1 above in digital GIS format, showing the location of its Facilities within the
Franchise Area.
5.3 Design Markings. In the event the City desires to design new streets or
intersections, renovate existing streets, or make any other public improvements, Franchisee shall
at the City of Federal Way's reasonable request, provide the location of Franchisee's
underground Facilities within the Franchise Area by either field markings or by locating the
Facilities on the City's design drawings, and shall provide all other reasonable cooperation and
assistance requested by the City.
Section 6. Noninterference of Facilities
Franchisee agrees to maintain its Facilities and perform any and all activities authorized
by this Franchise: (1) so as not to unreasonably interfere with the free passage of traffic; (2) in
accordance with the applicable laws of the State of Washington and City Code requirements,
franchise provisions, regulations, resolutions and rules, as now existing or as hereafter amended;
and (3)as required by the Director. This requirement applies whether or not the work is
performed by the Franchisee, its agents, employees, subcontractors, or other third parties at
Franchisee's direction.
Section 7. Requirement to Obtain Permits
7.1 Permits and Permit Applications. Franchisee shall, at its expense,
obtain all permits, (including rights-of-way permits), and pay all permit fees required by
applicable City ordinances, regulations, resolutions and rules prior to commencing any work
within the Franchise Area. Franchisee's permit applications shall be accompanied by plans
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stamped by a Professional Engineer licensed by the State of Washington, which plans shall show
the position and location of the proposed facilities to be constructed, laid, installed, or erected at
that time, show their relative position to existing rights-of-way or property lines upon prints
drawn to scale, designate fights-of-way by their names and improvements, such as, but not
limited to, sidewalks, curbs, gutters, shoulders of roadway, ditches, paved roadways, roadways to
property lines, turnouts, parking strips, telephone or electric distribution poles, and water pipes
existing on or under the ground to be occupied, or as required by the Director. The Franchisee
shall specify the class and type of materials to be used, equipment to be used, and mode of
safeguarding and facilitating the public traffic during construction. Materials and equipment
shall be in new or like-new condition for its type and kind. The manner of excavation,
construction, installation, backfill, and temporary structures such as, but not limited to, traffic
tumouts and road obstructions shall meet the standards of the FWCC and be satisfactory to the
Director. All traffic control shall be in accordance with the right-of-way permit, and shall be in
accordance with the Manual on Uniform Traffic Control Devices (MUTCD). The Franchisee
shall indicate on any permit application the time needed to complete the work. The time needed
to complete the work is subject to approval by the City as a condition of the issuance of the
permit or approval.
7.2 Emergency Exception to Permit Requirement. In the event of an
emergency in which Franchisee's Facilities within the Franchise Area are in a condition as to
immediately endanger the property, life, health or safety of any individual, Franchisee may take
action immediately to correct the dangerous condition without first obtaining any required permit
so long as: (1) Franchisee informs the City of the nature and extent of the emergency, and the
work to be performed, prior to commencing the work; and (2) such permit is obtained by
Franchisee as soon as practicable following cessation of the emergency.
Section 8. Standard of Performance
Franchisee shall not utilize open cut or open trench construction methods for installing
Facilities, unless: (1) required by an emergency; or (2) unless boring is not technically feasible
and permission is first obtained from the Director of Public Works. In the event that Franchisee
utilizes open cut or open trench construction methods, Franchisee shall not excavate for a
distance of more than one hundred feet (100') without immediately backfilling and compacting
to surface grade and city standards. Backfilled trench areas within a driving lane must be
patched, either temporarily or permanently, before the end of the work day in which they have
been opened. Trench areas within the right-of-way, but not within a driving lane, must also be
patched within the time limits specified by the City on the right-of-way use permit. Final surface
restoration shall be completed within thirty (30) days and shall be equal to or better than the
surface condition prior to permit issuance. As part of final surface restoration, Franchisee shall
install new asphalt overlay for a minimum distance of 300 feet from the cut or trench on both
sides of the cut or trench (i.e., a total distance of 600 feet), unless a shorter distance is approved
by the Director. In the event that the City adopts a street or pavement degradation fee by
ordinance, at the option of the City, Franchisee shall pay such fee in lieu of installing the new
asphalt overlay required by this Section.
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Section 9. Survey Markers and Monuments
Franchisee shall, using a licensed surveyor, immediately replace all markers or
monuments disturbed during any work by Franchisee within the Franchise Area. Franchisee
shall pay all costs associated with such lost, destroyed or disturbed monuments or markers, and
all costs associated with the expense of replacement of such lost, destroyed or disturbed
monuments or markers.
Section 10. Surface Markings/Stakes
Prior to Franchisee commencing any excavation work within the Franchise Area,
Franchisee shall reference all monuments and markers relating to subdivisions, plats, highways,
and other surveys. The reference points shall be located so that they shall not be disturbed
during the Franchisee's operations under this Franchise. The method of referencing these
monuments or other points shall be approved by the City before placement. The construction
shall be made as expeditiously as conditions permit, and as directed by the City. A complete set
of reference notes for monuments and other ties shall be filed with the City.
Section 11. Right of City to Complete Work
In the event Franchisee fails to comply with any applicable federal, state or City laws,
ordinances, rules, regulations or standards or with any of the terms of this Franchise, and such
noncompliance continues for a period of ten (10) days after Franchisee receives written notice
from the City regarding the noncompliance, the City may, but in no event is the City obligated
to, order any work completed, including without limitation Franchisee's obligation to repair and
Franchisee's obligation to remove or relocate facilities. If the City causes such work to be done
by its own employees or by any person or entity other than Franchisee, Franchisee shall, upon
the City's written request, immediately reimburse the City for all reasonable costs and expenses
incurred by the City in having such work performed, which costs may include the City's
reasonable overhead expenses and attorneys' fees. However, the City shall not have any
electrical work accomplished by any person or entity other than Franchisee or a qualified and
licensed electrical contractor.
Section 12. Work by City
12.1 City Reservation of Rights. The City reserves the right to use, occupy
and enjoy all or any part of the Franchise Area, either above, below, or adjacent to the Facilities,
for any purpose that is not inconsistent with the terms and conditions of this Franchise. The
rights reserved herein include, without limitation, the construction, installation, and/or
maintenance of any electrical, water, utility, telecommunications, sewer or storm drainage line,
traffic signals, street lights, trees, landscaping, bicycle paths and lanes, equestrian trails,
sidewalks, other pedestrian amenities, and other public street improvement projects.
This Franchise is not an exclusive Franchise and shall not be construed to in any manner
prohibit the City from granting other and further franchises in, under, over, upon, and along the
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Franchise Area, nor from exercising such other powers and authorities granted to the City by the
Washington State Constitution and general law.
12.2 Relocation of Franchisee's Facilities.
In the event that exercise of any of the rights reserved under Section 12.1 above
reasonably requires the City .to construct, alter, repair, or improve the right-of-way ("City
work"), and the City work necessitates the relocation of the Facilities then existing in the
Franchise Area, the City may require Franchisee to relocate the Facilities, as provided herein.
12.2.1 City's Duties. The City shall:
(a) Provide written notice as soon as practicable of the
requirement for relocation and the date by which relocation shall be completed. The City shall
calculate the date for completion of the relocation in accordance with RCW 35.99.060; and
(b) Provide Franchisee with copies of pertinent portions of the
City's plans and specifications so that Franchisee may relocate its Facilities to accommodate the
City work.
12.2.2 Franchisee's Duties. Franchisee shall:
(a) No later than the date set by the City for completion of the
relocation (unless adjusted by the City or a reviewing court pursuant to RCW 35.99.060) raise,
lower, or move the Facilities to the location or position directed by the City, to cause the least
interference with the City work and to conform to such new grades as may be established. If the
City improves the right-of-way and, if directed by the City, Franchisee shall replace the Facilities
with substitute Facilities conforming to the specifications for the improvement of the right-of-
way;
(b) bear all costs and expenses of the relocation and provision
of substitute Facilities, except as provided in RCW 35.99.060.
Section 13. Damage Repair
In case of damage by the Franchisee, its agents or employees or by the Facilities of the
Franchisee to rights-of-way, or to public and private improvements to rights-of-way, the
Franchisee agrees to repair the damage at its own cost and expense. The Franchisee shall, upon
discovery of any such damage, immediately notify the City. The City will inspect the damage,
and set a time limit for completion of the repair. If the City discovers damage caused by the
Franchisee to rights-of-way, or to public and private improvements to rights-of-way, the City
shall give the Franchisee notice of the damage and set a time limit in which the Franchisee must
repair the damage. In the event the Franchisee does not repair a right-of-way or an improvement
to a right-of-way as required in this section, the City may repair the damage and recover the costs
and expenses of such repair from Franchisee in accordance with the provisions of Section 11 of
this Agreement.
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Section 14. Default
14.1 Notice of Default. In addition to other remedies set forth herein, if
Franchisee shall fail to comply with any of the provisions of this Franchise, the City may serve a
written notice to Franchisee ordering such compliance and Franchisee shall have sixty (60) days
from the receipt of such notice in which to comply.
14.2 Revocation of Franchise. If Franchisee is not in compliance with this
Franchise after the expiration of the sixty (60) day period, the City may, by resolution, declare
the Franchise immediately revoked.
Section 15. Limited Rights
This Franchise is intended to convey only a limited right and interest to Franchisee in the
Franchise Area. This Franchise is not a warranty of title or conveyance of any ownership
interest in or to the Franchise Area to Franchisee.
Section 16. Eminent Domain
The existence of this Franchise shall not preclude the City from acquiring by
condemnation, in accordance with applicable law, all or a portion of Franchisee's Facilities
within the Franchise Area for the fair market value thereof. In determining the value of such
Facilities, no value shall be attributed to the right to occupy the Franchise Area conferred by this
Franchise.
Section 17. Vacation
If at any time the City, by ordinance, vacates all or any portion of the Franchise Area, the
City will not be liable for any damages or loss to the Franchisee by reason of such vacation:.
The City shall notify Franchisee in writing not less than 20 days prior to public hearing under
FWCC § 13-102 on any petition for vacation of Franchise Area occupied by Franchisee. The
City may, after thirty (30) days prior written notice to Franchisee, terminate this Franchise with
respect to any vacated area for which Franchisee had notice as provided herein. This section
shall not be construed as authorization by the City to occupy any land rendered privately owned
as a result of a street vacation, nor shall this section be construed as obligating the City to reserve
any easement for the Franchisee in a vacated area.
Section 18. Compliance with Laws
18.1 General. Franchisee shall comply with all applicable federal, state and
City laws, franchises, resolutions, regulations, standards and procedures, as now existing or
hereafter amended or adopted, including without limitation the State Environmental Policy Act;
provided, however, that if any term or condition of this Franchise and any term or condition of
any City law, code, franchise, resolution, regulation, standard, procedure, permit or approval are
in conflict, the term or condition of this Franchise shall control. City and Franchisee
acknowledge and agree that the terms, conditions and provisions of this Franchise are consistent
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with applicable law, including but not limited to the Telecommunications Act of 1996, existing
Washington State statutes and the FWCC, as currently enacted and interpreted.
18.2 Future City Regulation. Subject to Section 18.1 above, Franchisee
acknowledges that the City may develop rules, regulations, ordinances and specifications of
general applicability for the use of the right-of-way which shall govern Franchisee's Facilities
and activities hereunder as if they were in effect at the time this Franchise was executed by the
City and Franchisee covenants and agrees to be bound by same to the extent they are consistent
with the Constitution of the State of Washington.
Section 19. Guarantee
Franchisee shall guarantee work completed by the Franchisee under this Franchise for a
period of 10 years against settlement or repair including Facilities and right-of-way restoration;
provided, however, Franchisee is not guaranteeing the provision of any specific
telecommunications services.
Section 20. Administrative Costs and City Owned Facilities
20.1 Charge for Administrative Costs. Pursuant to RCW 35.21 and RCW
35.99.010(6), fees may be collected for administrative expenses related to such franchise and
Franchisee does hereby warrant that its operations as authorized under this Franchise are those of
a Service Provider and telephone business as defined in RCW 82.04.065. In recognition of
Franchisee's status, the City shall be entitled to reimbursement of all actual costs, including
reasonable overhead costs associated with the administration of this Franchise or costs incurred
by the City for actions undertaken in accordance with the Franchise. These costs shall include,
but not be limited to wages, benefits, equipment and supplies for activities such as plan review,
permit processing and permit inspections. Such costs shall be billed to Franchisee on a quarterly
basis and Franchisee 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 Franchisee 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 Franchise. Franchisee also agrees
to pay a fee or a charge to cover the actual reasonable administrative expenses incurred by the
City which are directly related to preparing and approving this Franchise. Nothing herein shall
preclude the City from charging administrative fees or recovering any administrative costs
incurred by the City in the approval of permits or in the supervision, inspection or examination
of all work by Franchisee in the Franchise Area as prescribed in accordance with applicable
provisions of the FWCC or as permitted by other applicable law. Franchisee shall be subject to
all permit fees associated with activities undertaken through the authority granted in this
Franchise or under ordinances of the City. Where the City incurs costs and expenses for review
or inspection of activities undertaken through the authority granted in this Franchise or any
ordinance relating to the subject for which a permit fee is not established, Franchisee shall pay
such costs and expenses directly to the City. In addition to the above, Franchisee shall promptly
reimburse the City for any and all costs the City reasonably incurs in response to any emergency
involving Franchisee's Facilities. Further, Franchisee shall also pay all taxes and pavement and
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street degradation fees which are authorized by law or City ordinance and may now or hereafter
be required and imposed by the City.
20.2 City Facilities.
20.2.1 Installation and Location. Franchisee shall install City Facilities,
at Franchisee's sole cost, within the Franchise Area in the same locations as the Facilities, all as
shown in the City-approved plans in Exhibit A and on File with the City in File No.
Franchisee shall have no obligation to install conduit in locations where the Franchisee is not
installing conduit but is only installing fiber optic cable within existing buried conduit. The
locations and spacing of junction boxes, pull boxes, and other access structures or vaults to be
installed as part of the City Facilities shall be as specified by the Director. The City Facilities
will not be connected to the access structures and vaults of Franchisee. The conduit and other
components comprising the City Facilities shall meet the specifications reasonably established
by the Director, and shall at a minimum be of the same type and quality as the materials used by
Franchisee in its Facilities.
20.2.2 Use of City Facilities. The City shall inform Franchisee of the
use, and any change in use, of the City Facilities. As part of such use, the City may run its own
signal cable and/or fiber optic cable through the City Facilities at some future time, and
Franchisee warrants that the City Facilities shall be adequate for such purpose. Unless
authorized by this Franchise or by general law, the City shall not use the City Facilities to
provide telecommunications or cable television service for hire, sale, or resale to the general
public. Franchisee shall be responsible for obtaining all necessary permits, franchises, and/or
approvals necessary for installation of the City Facilities; the City shall cooperate in providing
any information or documents necessary for such permits, franchises, and/or approvals.
20.2.3 Inspection. During installation of the City Facilities, the City shall
have the right to observe and inspect the installation.
20.2.4 Transfer of City Facilities. After installation of the City
Facilities_is completed by Franchisee, Franchisee shall notify the City and the City shall have
thirty (30) business days to notify Franchisee whether it accepts or rejects, for cause, the City
Facilities. In the event of a rejection for cause, Franchisee shall promptly make such repairs as
are reasonably required to make the City Facilities usable by the City, notify the City when such
repairs are complete, and the notification process shall repeat until City acceptance is achieved.
Upon City acceptance, Franchisee shall assign and transfer to the City, by bill of sale and an
assignment and assumption agreement, any and all of its rights and obligations with respect to
the City Facilities, and the City shall immediately accept and assume all such rights and
obligations (the "Transfer").
20.2.5 Maintenance and Repair of City Facilities. Following the
Transfer,_(a) Franchisee shall have no obligation to maintain and/or repair all or any portion of
the City Facilities, and such repair and maintenance obligations shall be the sole responsibility of
the City, provided, however, that Franchisee shall be obligated to repair any defects in the City
Facilities discovered within six (6) years of the Transfer, and Franchisee shall be obligated to
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repair any damage or defects to City Facilities arising out of Franchisee's actions under this
Franchise, (b) the City shall be solely responsible for any and all taxes, fees and assessments
relating to the ownership, use and maintenance of the City Facilities, except as provided in
Section 20.1.9(a) above; (c) the City shall indemnify, defend, and hold harmless Franchisee and
its officers, directors, shareholders, agents, employees and volunteers against any and all
liability, claims, actions, causes of action, expenses or demands whatsoever against any of them,
including any injury to or de'ath of any person or damage to property or other liability of any
nature, arising out of or connected with the City's ownership, use, maintenance and repair of the
City Facilities, except that this section shall not be construed as requiring the City to indemnify,
hold harmless or defend the Franchisee against claims or damages arising from the negligence or
willful misconduct of the Franchisee, its agents, independent contractors or employees, nor shall
this section be construed as requiring the City to indemnify Franchisee against costs, claims or
damages for which Franchisee is otherwise responsible under this Franchise, and (d) Franchisee
shall provide to the City a copy of an as-built drawings of the City Facilities.
Franchisee has voluntarily agreed to this Section 20.2 as a matter of contract even if it is
deemed to be more than the requirements of applicable law.
Section 21. Indemnification
Franchisee agrees to indemnify and hold harmless and defend the City, its elected
officials, officers, employees, agents, and volunteers from any and all claims, demands, losses,
actions and liabilities (including costs and all attorneys' fees) to or by any and all persons or
entities, including, without limitation, their respective agents, licensees, or representatives,
arising from, resulting from, or connected with this Franchise to the extent caused in part or in
whole by the acts, errors or omissions of the Franchisee, its officers, partners, shareholders,
agents, employees, or by the Franchisee's breach of any provision of this Franchise; provided,
however, that this section shall not be construed as requiring Franchisee to indemnify, hold
harmless or defend the City against claims or damages arising from the negligence or willful
misconduct of the City, its agents or employees. In the event any claim, demand, suit or action is
commenced against the City which gives rise to Franchisee's obligation pursuant to this
Section21, the City shall promptly notify Franchisee thereof. Franchisee's selection of an
attorney to defend any such claim, demand, suit or action shall be subject to the City's approval,
which shall not be unreasonably withheld. Franchisee shall not settle or compromise any such
suit or action except with the prior written consent of the City, which shall not be unreasonably
withheld. The City shall have the right at all times to participate through its own attorney in any
suit or action which arises pursuant to this Franchise when the City determines that such
participation is required to protect the interest of the City or the public. In the event it is
determined that RCW 4.24.115 applies to this Franchise, Franchisee agrees to defend, hold
harmless and indemnify the City to the maximum extent permitted thereunder, to the full extent
of Franchisee's negligence. The provisions of this Section 21 shall survive the expiration or
termination of the Franchise for a period of three (3) years.
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Section 22. Insurance
22.1 Minimum Limits. The Franchisee agrees to carry as a minimum, the
following insurance, in such forms and with such carriers as are satisfactory to the City.
(a) Workers compensation and employer's liability insurance in
amounts sufficient pursuant to the laws of the State of Washington;
(b) Commercial general liability insurance with combined single limits
of liability of not less than $2,000,000 for bodily injury, including personal injury or death,
products liability, contractual coverage, operations, explosion, collapse, underground and
property damage; and
(c) Automobile liability insurance with combined single limits of
liability of not less than $2,000,000 for bodily injury, including personal injury or death and
property damage.
22.2 Mandatory Insurance Provisions. The comprehensive general liability
insurance and automobile liability insurance policies shall be endorsed to contain the following
provisions:
(a) The City, its officers, elected officials, employees, and volunteers
are to be named as additional insureds;
(b) Coverage shall apply separately to each insured against whom a
claim is made or suit is brought, except with respect to the limits of the insurer's liability;
(c) Coverage shall not be suspended, canceled, modified or reduced
except after thirty (30) days prior written notice to the City delivered by certified mail, return
receipt requested; and
(d) Coverage shall be primary as to the City, its officers, officials,
employees and volunteers. Any insurance or self-insurance by the City, its officers, officials,
employees or volunteers shall be in excess of Franchisee's required insurance.
22.3 Verification of Coverage. Franchisee shall furnish the City with
certificates of insurance and original endorsements evidencing the coverages required by this
Section. The certificates and endorsements shall be signed by a person authorized by the insurer
to bind coverage on its behalf and must be received and approved by the City prior to the
commencement of any work. At the City's request, Franchisee shall deliver certified copies of
all required insurance policies.
Section 23. Bond
Before commencing work within the City, the Franchisee shall post a bond in the amount
of 120% of the value of work to be performed in connection with the Facilities to guarantee
performance of the construction, performance, maintenance or repair in accordance with any
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permits required by Section 7, with the standard of performance as referenced in Section 8, and
with the City's rights as specified herein. Procedures for submission and release of the bond
shall be as provided in FWCC Sections 22-146 and 22-175 or as otherwise provided in the City
Code. In the event that the Franchisee fails to perform as required herein or by any permits
required by Section 7, the City may perform the work as provided in Section 11 above, and may
have recourse to the bond in addition to or in lieu of the remedies provided in Section 11, at the
City's sole discretion. Franchisee shall be entitled to return of the bond, or portion thereof, as
remains sixty (60) days after the expiration of the term of the Franchise, provided the City has
not notified Franchisee of any actual or potential damages incurred as a result of Franchisee's
operations pursuant to the Franchise or as a result of default thereunder.
Section 24. General Provisions
24.1 Entire Agreement. This Franchise contains all of the agreements of the
Parties with respect to any matter covered or mentioned in this Franchise and no prior
agreements or understandings pertaining to any such matters shall be effective for any purpose.
24.2 Modification. No provision of this Franchise may be amended or added
to except by an agreement in writing signed by both of the parties.
24.3 Assignment and Leasing /Subleasing.
24.3.1 Assignment. This Franchise may not be assigned or transferred
without the prior, express, written approval of the City, which approval shall not be unreasonably
withheld,, provided that the Franchisee shall have the right to mortgage its rights, benefits and
privileges in and under this Franchise to secure any indebtedness without notice or approval.
Any attempted assignment or transfer in violation of this section shall be void. The transfer of
the rights and obligations of Franchisee to a parent, subsidiary, affiliate, or to any successor-in-
interest or entity acquiring fifty-one percent (51%) or more of Franchisee's stock or assets, shall
be deemed an assignment. The City's review of a proposed assignment or transfer shall be based
on the following criteria: (i) the transferee shall have technical expertise, capabilities and
financial strength to meet the obligations of the Franchise and being at least equal to or greater
than that of Franchisee during the twelve (12) months prior to the transfer; and (ii) the proposed
transferee's record of performance under similar agreements. Further, the transferee shall
assume all of the obligations of Franchisee hereunder, and Franchisee shall not be released from
the obligations of this Franchise by virtue of such transfer until the City consents to such transfer
or assignment. Franchisee shall give to the City thirty (30) days' prior written notice of any such
proposed assignment or transfer and shall provide all necessary information to the City,
including financial data, in order to enable the City to evaluate whether the proposed transferee
satisfies the foregoing criteria. The City shall take action on the proposed assignment or transfer
no later than ninety (90) days of receipt of all necessary information. In the case of any proposed
transfer for which the City's approval is required hereunder, Franchisee agrees that the City's
reasonable expenses incurred in reviewing such transfer or assignment proposal are Franchise
administration expenses, which shall be reimbursed pursuant to Section 20.1 herein. To the
extent allowed by law or a court of competent jurisdiction, the City shall treat documents and
financial data provided by Franchisee for City evaluation under this Section as confidential and
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exempt from public disclosure. Within thirty (30) days of the date of any approved assignment
or transfer, Franchisee and assignee or transferee shall file written notice of the assignment or
transfer with the City together with written acceptance of all terms and conditions of this
Franchise.
24.3.2 Leasing / Subleasing. Notwithstanding the provisions of
Section 24.3.1 above, Franchisee may, in the ordinary course of its business lease or sublease a
portion of the Facilities to other entities, provided that Franchisee shall not permit any such
lessee or sublessee to locate, service, repair, relocate, remove or control the leased or subleased
Facilities until the lessee or sublessee has first obtained a franchise from the City. Franchisee
may grant a right of user interest in the Facilities or offer or provide capacity or bandwidth from
the Facilities without the prior written notice or consent of the City, PROVIDED THAT
Franchisee shall at all times retain exclusive control over the Facilities and shall remain
responsible for locating, servicing, repairing, relocating or removing the Facilities pursuant to the
terms and conditions of this Franchise. In the event Franchisee desires to enter into an
agreement to transfer the ability to locate, service, repair, relocate, remove or control of the
Facilities, Franchisee shall comply with the provisions of Section 24.3.1 herein and provide
notice of the name, mailing address and telephone number of any person or entity proposing or
requesting to obtain control of the Facilities, so that the City may contact and discuss franchise
requirements with said person or entity. Any agreement entered into in violation of this
subsection shall be void.
24.3.3 Tax Enforcement. To the extent not prohibited by applicable law,
within thirty (30) days of a written request of the City with respect to Franchisee's customers
within the City, Franchisee shall provide such information deemed necessary by the City to
determine the compliance of Franchisee and Franchisee's customers with FWCC Chapter 14,
Article 5. Any such information provided by Franchisee shall be treated as confidential and shall
not be made public in accordance with FWCC Section 14-181.
24.4 Attorney Fees. In the event the City or the Franchisee defaults on the
performance of any terms in this Franchise, and the Franchisee or the City places the
enforcement of the Franchise or any part thereof or for the collection of any monies due, or to
become due hereunder, in the hands of an attorney, or files suit upon the same, the prevailing
party shall be entitled to an award of all reasonable attorneys' fees, costs and expenses. The
venue for any dispute related to this Franchise shall be King County, Washington, unless a court
of competent jurisdiction determines that an administrative agency outside of King County has
primary jurisdiction, in which case venue shall be at said administrative agency.
24.5 No Waiver. Failure of either party to declare any breach or default by the
other party immediately upon the occurrence thereof, or delay in taking any action in connection
therewith, shall not waive such breach or default, but such party shall have the right to declare
any such breach or default at any time. Failure of either party to declare one breach or default
does not act as a waiver of such party's right to declare another breach or default.
24.6 Governing Law. This Franchise shall be made in and shall be governed
by and interpreted in accordance with the laws of the State of Washington.
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24.7 Authority. Each individual executing this Franchise on behalf of the City
and Franchisee represents and warrants that such individual is duly authorized to execute and
deliver this Franchise, respectively, on behalf of the Franchisee or the City.
.24.8 Notices. Any notices required to be given by the City to Franchisee or by
Franchisee to the City shall be delivered to the parties at the following addresses:
Franchisee:
Metromedia Fiber Network Services, Inc.
Attn: V.P. Legal Affairs
360 Hamilton Ave.
White Plains, NY 10601
City:
City of Federal Way
Attn: City Attorney
33530 1st Way South
P. O. Box 9718
Federal Way WA 98063-9718
Any notices may be delivered personally to the addressee of the notice or may be
deposited in the United States mail, postage prepaid, to the address set forth herein. Any notice
so posted in the United States mail shall be deemed received three (3) days after the date of
mailing.
24.9 Captions. The respective captions of the sections of this Franchise are
inserted for convenience of reference only and shall not be deemed to modify or otherwise affect
in any respect any of the provisions of this Franchise.
24.10 Remedies Cumulative. Any remedies provided for under the terms of
this Franchise are not intended to be exclusive but shall be cumulative with all other remedies
available to the City at law, in equity or by statute.
Section 25. Severability
If any section, sentence, clause, or phrase of this Franchise should be held to be invalid or
unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall
not affect the validity or constitutionality of any other section, sentence, clause or phrase of this
Franchise.
Section 26. Ratification
Any City act consistent with the authority and prior to the effective date of this Franchise
is hereby ratified and affirmed.
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PASSED by the City Council of the City of Federal Way this
,2001.
day of
CITY OF FEDERAL WAY
MAYOR, MIKE PARK
ATTEST:
CITY CLERK, N. CHRISTINE GREEN, CMC
APPROVED AS TO FORM:
CITY ATTORNEY, BOB C. STERBANK
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
PUBLISHED:
EFFECTIVE DATE:
ORDINANCE NO.
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ACCEPTANCE:
The undersigned hereby accepts all the rights and privileges of the above-granted Franchise and
acknowledges that such rights and privileges are subject to and limited by all of the terms,
conditions and obligations contained therein.
DATED this __ day of ,2001.
METROMEDIA FIBER NETWORKS, INC.
By:
Its:
Ordinance No.
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EXHIBIT A
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Ordinance No.
, Page 17
EXHIBIT B
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Ordinance No.
, Page 18
