ORD 05-485� �
ORDINANCE NO. 05 - 485
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY
OF FEDERAL WAY, WASHINGTON, GRANTING VSNL
TELECOMMUNICATIONS (US), 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 MAINTAI1vING,
REPAIRING, AND RESTORING A FIBER OPTIC
COMMUNICATIONS SYSTEM WITHIN AND THROUGH
THE CITY OF FEDERAL WAY.
WHEREAS, VSNL Telecommunications (US) Inc., a Delaware corporation, ("VSNL") h'as?:
requested a franchise from the City of Federal Way, in order to maintain, repair, and restore;a�
portion of Williams Communications' fiber aptic communications system within the Military Road`
right-of-way; and
WHEREAS, on August l, 2000, the City Council enacted Ordinance No. 00-371, granting
Williams Communications a nonexclusive franchise to occupy rights of way within the City for the
purposes of installing, constructing, maintaining, repairing, and restoring a fiber optic
communications system within the City; and
WHEREAS, Williams Communications' fiber optic communications system consists of
twelve (12) underground conduits, of which ten (10) have a diameter of 1.50 inches and two (2)
Ordinance No. 05 - 485
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have a diameter of 1.25 inches; the fiber running through the conduit, and appurtenant splice boxes;
and
WHEREAS, Williams Communications has constructed and installed said fiber optic
communications system; and
WHEREAS, Section 24.3.1 of the Williams Communications' franchise requires that
Williams Communications obtain the City's approval before transferring or assigning any portion
of the communications system under the franchise Ordinance No. 00-371; and
WHEREAS, Williams Communications and Tyco entered into a joint built agreement
whereby Tyco took title to four (4) of the ducts installed; and
WHEREAS, Tyco and certain affiliates of VSNL entered into a Stock and Asset Purchase
Agreement on Nowember i, 2004, under which the VSNL affiliates will acquire the Tyco Global
Network; and � -
WHEREAS, the City Council of Federal Way finds that it is in the public interest to grarii' _ -
such a franchise, which will specify the rights and duties of VSNL; 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 COUNCII. OF THE CITY OF FEDERAL WAY,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
Ordinance No. OS - 485
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Sectinn 1 _ Definitionc
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Where used in this Franchise the following terms shall be defined as follows:
l.l "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 off'icial capacity.
1.3 "Director" means the Public Works Director, or designee, of the City of Federal
Way Public Works Department.
1.4 "Facilities" means: (a) an underground fiber optic communication system comprised
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of four (4) underground lilac, grey, green and yellow conduits, of the twelve (12) underground
conduits authorized by Ordinance No. 00-371; and (b), the fiber running through the conduits as I
specifically depieted in Exhibit A hereto and in plans on file with the City of Federal Way iti :F11e : ,�;
No. 00-103793 UUP. "Facilities" also means any other equipment approved by the Federal Way?Ci�ty .
` Council byordinance and incorporated herein by amendment:
1.5
1.6
"FWCC" means the Federal Way City Code.
"Franchise Area" means only that portion of the Military Road rights-of-way located
in the City of Federal Way and shown in Exhibit A attached hereto and in plans on file with the
City of Federal Way in File No. 00-103793 UP, and/or any other areas approved by the Federal
Way City Council and incorporated into this Ordinance via amendment.
1.7 "Franchisee" means VSNL Telecommunications (US) Inc., a direct, wholly owned
subsidiary of VSNL Netherlands B.V., a holding company that is a wholly owned subsidiary of
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Videsh Sanchar Nigam Ltd., a limited company organized under the laws of India, and its
successors and assigns if approved and/or permitted as provided in Section 24.3 herein.
�.`f'���iTiy�l�iT7/ • � . �
21 �rant c,f Franc.hice. The City hereby grants to Franchisee the nonexclusive right to
enter upon the Franchise Area for the limited purpose of installing and maintaining the fiber
running through the Facilities within the Franchise Area. This franchise is specifically limited to
the right for Franchisee to maintain Facilities owned and operated by Franchisee. 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 A c -e tan�P h� Franchisee. Franchisee shall have no rights under this Franchise, nor
� � shall Franchisee be bound by the terms and conditions of this F� unless Franchi'se'e shall, '�'� '�� �
within thirty� (30) days after the effective date of this Franchise; � file with the City it� `uvritten '� `
acceptance of this Franchise and all of its terms and conditions. . ;�' _ ,
f.`���iSiTC ► � i �� :�t � i�.• r
This Franchise does not and shall not convey any right to �ranchisee to maintain 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 Military Road right-of-way
depicted in Exhibit A.
�ectinn 4_ Term
Subject to Franchisee filing its acceptance pursuant to Subsection 2.2, the term of this
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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.
Sectinn 5_ i,ncatinn of Facilities
5.1 L�atinn. The Facilities will be installed underground pursuant to the Williams
Communications franchise Ordinance No. 00-371. Upon written request of the City, Franchisee
shall update "as-built" plans to reflect actual or anticipated improvements to the system. Any such
plans (or update thereofl 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 �ta. At such time as Franchisee develops or employs Geographic Information
�. �� System '("�GIS") technology, Franclusee shall submit the' information required in Subsestion 5.:1 :�
' abo�e in digital GIS format; showing the location of its Facilities within the Franchise Arca. ..� ::` -
5.3 i)P�;o Mark;n�. In tha; 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 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 sha11 provide all other reasonable cooperation and assistance requested by the City.
Section 6. Nnninterfprence nf Facilitiec
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 laws of the State of Washington and City Code requirements, franchise
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provisions, regulations, resolutions, rules, and policies, 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.
Spcti�n 7_ Rp�nirpmpnt. tn (lhtain Permitc
7.1 PPrmitc anc� PPrmit Annlic.atinnc 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 permit applications shall be accompanied by plans 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 repaired, replaced or: rerrioved at that- time, 'show their relative posntion 'to �:
� _ : existing rights-of=way or property lines upon prints drawn to:scale;: designate rights-of-wa� by�their � `
�- ' _� names and� irnprovements, such as, but not^ lirn'rted to, sidewalks, :curbs, gutters, shoulders .of ` �
roadway, ditches, paved roadways, roadways to property lines, turnouts, parking strips, teleplione ar
electric distribution poles, and water pipes existing on 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 turnouts 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
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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 pernut or
approval.
7,2 F.mergPnr� F.xr.Pntinn tn PPrmit RPrn,irement. 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, Iife, 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 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 ,
a� practicable following cessation of the:emergency. � �° � �� �, a�
, � , _ •' 4tandard nf Perf�rmance �, "� • � ' `
,. , �� �LS.` � _ . ., '� '
Frariehisee shall not utilize open cut or open trench construction methods for repairing, :.�. ....
�' replacing o'r removing Facilities, unless: (1) requiredby 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 with in 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
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completed within thirty (30) days and shall be equal to or better than the surface condition prior to
permit issuance. As part o€ final surface restoration, Franchisee shall install new asphalt overlay for
a minimum distance of 500 feet from the cut or trench on both sides of the cut or trench (i.e., a total
distance of 1,000 feet). 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.
�i ' r• ►/. •w . i� 1/ �i u�i
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.
.�ertion 1 b_ Snrface Markingg/S akec , ,.; ° . . �
Prior to Franchisee commencing any exeavation work - within the Franchise A�a; .�.• °�j �
. : 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. The cost of monuments or other
markers lost, destroyed, or disturbed, and the expense of replacement of the monuments, shall be
borne solely by the Franchisee. A complete set of reference notes for monuments and other ties
shall be filed with the City.
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Sectinn 11 _ Righ nf C'ity tn f'nm=lptp W�rk
•
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. ff 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
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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 otherthan Franchisee or a qualified:and licensed electrical contractor. • �`�
I ' �erfinn 12_ R �l �ire�l Relncatinn nf Facilitiec ` � ' ° � �
� 12.1 �� Recervati�n c,f Righrc. 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.
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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
Franchise Area, nor from exercising such other powers and authorities granted to the City by the
Washington State Constitution and general law.
12.2 RPln�atinn nf Franc.hicPP'c Fa�ilitiec, 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 C'�'s i�ntiec. The City shall:
(a) Provide i�ritten notice as soon as practicable of the requirement for
retocation and the date by which reloeation shall be completed; and � '
@) 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.
Nothing in this section shall be construed as to relieve Franchisee of its duty and obligation
to relocate its Facilities, at Franchisee's sole cost, for any improvement project undertaken by, or on
behalf of, the City in the interest of public health, safety, welfare, necessity or convenience, as
adjudged in the sole discretion of the City.
j2,2,2 Fran�hisPP'c nutiPC, Franchisee shall:
(a) No later than the date set by the City for completion of the relocation,
raise, lower, or move the Facilities to the location or position directed by the City, to cause the least
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interference with the City work and to confortn 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 ta the specifications for the improvement of the right-of-way;
(b) bear all costs and expenses of the relocation and provision of substitute
Facilities.
�t I.ii.�• :•�, r
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 within or adjacent 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, 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 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.
Sectinn 14_ n fanl
14.1 Nntice nf l�efanit 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.
Ordinance No. 05 - 485
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14.2 Revncatic,n nf 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.
�.Y*���� � � :� � � :�t7�
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.
Sec�tinn 16_ F,minent nnmain
The existence af 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.
$ectinn .17_ Vacati�n
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 30 days before vacating all or any portion of the
Franchise Area. The City may, after thirty (30) days written notice to Franchisee, ternunate this
Franchise with respect to any such vacated area.
Seetinn 1 R_ (".nm= lianee with T,awc
18.1 �. Franchisee shall comply with all applicable federal, state and City laws,
franchises, resolutions, regulations, standards and procedures, as now existing or hereafter amended
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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, regularion, 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 with applicable law, including but
not limited to with the Tele�ommunications Act of 1996, existing Washington State statutes and the
FWCC, as currently enacted and interpreted.
18.2 Fnt �.�itv �f Fecieral Wav Re l a� Franchisee acknowledges that the City may
develop rules, regulations, ordinances and specifications 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.` .
Sectinn 19_ (inarantpp , ` '
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.
Sectinn 2(1_ Administrative (''�ctc
Franchisee agrees to reimburse the City 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
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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 recover 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 Federal Way City Code 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 it reasonably incurs in
response to any emergency involving Franchisee's Facilities. Further, Franchisee shall also pay all
t�es and pavement and street degradation fees which are authorized by law or City ordinance and
may now or hereafter be required and imposed by the City.
Sec.tinn 21. indemnificati�n
Franchisee agrees to indemnify and hold harmless and defend the City, its elected officials,
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officers, employees, agents, and volunteers from any and all claims, demands, losses, actions and
liabilities (including costs and all attorney 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, ar by the
Franchisee's breach of any provisions 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 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 Section 2�, 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 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 deternunes 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 ma3cimum 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.
Ordinance Na 05 - 485
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fipctinn 22_ Tncnrance
•
22.1 Minimnm T.imitc The Franchisee agrees to carry as a minimum, the following
insurance, in such forms and with such carriers as are sarisfactory 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 not less than $5,000,000 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 not
less than $2,000,000 for bodily injury, including personal injury or�death and property damage.
, 22 Manrlatnr� TncnrancP Prnvicinnc 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 insured;
(b) Coverage shall apply separately to each insured against whom 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
Ordinance No. OS - 485
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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 Verificatinn nf ('nvera¢e. Franchisee shall furnish the City with certificates of
insurance evidencing the coverages required by this Section. The certificates 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 in the event of a claim,
Franchisee shall deliver certified copies of all required insurance policies.
Seetinn 23_ $�d
Upon accepting this Franchise, the Franchisee shall post a bond in the form attached as
F.xhihit R and in the amount of $25 ,000 to guarantee performance of the construction, performance,
,, maintenance or repair in accordance with any permits required and with any provisions of this
Franchise. 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, the City may perform the
work as provided herein, and may have recourse to the bond in addition to or in lieu of the remedies
provided herein, 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 or termination 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.
:� �i ' .•i• L � ��
24.1 Fntir� eement This Franchise contains all of the agreements of the Parties with
Ordinance No. 05 - 485
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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 M�rlificati�n No provision of this Franchise, including this provision, may be
amended or added to except by agreement in writing signed by both of the Parties.
24.3 Acc; mPnt 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 sha11 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°Io) or more of Franchisee's stock or assets, shall be deemed an assignrnent:.: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 oblig�tions -
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
Ordinance No. 05 - 485
Page 18
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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' 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 herein. 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.
24.4 Attnrne,� FP .s. 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 o� a11 reasonable attorneys' fees, costs and expenses. The venue for any dispute related to °
- this Franchise shall be King County, Washington. ', .
24.5 N� Wa;ver. 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 ar 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 ('�nverning � aw. This Franchise shall be made in and shall be governed by and
interpreted in accordance with the laws of the State of Washington.
24.? Authn�iL}t. Each individual executing this Franchise on behalf of the City and
Ordinance No. 05 - 485
Page 19
i #
Franchisee represents and warrants that such individual is duly authorized to execute and deliver
this Franchise on behalf of the Franchisee or the City.
24.8 �es. Any notices required to be given by the City to Franchisee or by
i
Franchisee to the City shall be delivered to the parties at the following addresses:
Franchisee:
VSNL Telecommunications (US) Inc.
2100 Reston Parkway, Suite 320
Reston, Virginia 20191
Attn: David Ryan
City:
City of Federal Way
Attn: City Attorney
33325 8`� Avenue South
Federal Way WA 98003-621Q
Mailing Address:
With a copy to: P. O. Box 9718
Randall W. Sifers Federal Way, WA 98063-9718
Kelley Drye & Warren LLP
120019` St NW, Suite 500
Washington, DC 20036
Any notices may be delivered personally to the addressee of the notice or may be deposiCed
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 �'-�,tinnc The respective captions of the sections of this Franchise are inseRed 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 RPmPC1iPC C�,m�,tative. 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.
Seetinn 25. Seve
If any section, sentence, clause, or phrase of this Franchise should be held to be invalid or
Ordinance No. 05 - 485
Page 20
•
�
•
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.
� i � ; , o i
Any act consistent with the authority and prior to the effective daie of this Franchise is
hereby ratified and affirmed.
o� �
This ordinance shall take effect and be in force 30 days from the time of its final passage, as
provided by law, provided it has been duly accepted by Franchisee as herein provided above.
PASSED by the City Council of the City of Federal Way this 19thday of
i
April 2005.
Y O FEDERAL WAY
�
�
OR, DEAN McCOLG
n
CITY CLERK, N.
,CMC
APPROVED AS TO FORM:
��C�r . �����.
CITY ATTORNEY, PATRICIA A. RICHARDSON
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
PtJBLISHED:
EFFECTIVE DATE:
ORDINANCE NO.:
ACCEPTANCE:
�
3/30/2005
4/19/2005
4/23/2005
5/23/2005
OS-485
• Ordinance No. OS - 485
Page 21
�
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 , 2005.
VSNL Telecommunications (US) Inc.
By:
Its:
K:\Telecom\VSNL Telecom Franchise 3.14.05
Ordinance No. OS - 485
Page 22
•
EXHIBIT A
•
Detailed plans of the Franchise Area are on file with the City of Federal Way Public Works
Department.
Ordinance No. OS - 485
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•
EXHIBIT B
•
CITY OF FEDERAL WAY
PERFORMANCE BOND FOR
RIGHT OF WAY FRANCHISE AGREEMENT
KNOW ALL PEOPLE BY THESE PRESENTS:
We, the undersigned ,
("Principal") and —, the
undersigned corporation organized and existing under the laws of the State of
and legally doing business in the State of Washington as a surety ("Surety"),
are held and firmly bound unto the City of Federal Way, a Washington municipal corporation,
("City") in the penal sum of Dollars and no/100 ($ )
for the payment of which we firmly bind ourselves and our legal representatives, heirs,
successors and assigns, jointly and severally. __
This obligation is entered into pursuant to the statutes of the State of Washington: ; and : tlie
ordinances, regulations, standards and policies of the City, as now existing or hereafter amended
or adopted.
The Principal has entered into an Agreement with the City dated to
NOW, THEREFORE, if the Principal shall perform all the provisions of the Agreement in the
manner and within the time period prescribed by the City, or within such extensions of rime as
may be granted under the Agreement, and sha11 pay all laborers, mechanics, subcontractors and
material men or women, and all persons who shall supply the Principal or subcontractors with
provisions and supplies for the carrying on of said work, and shall hold the City, their officials,
agents, employees and volunteers harmless from any loss or damage occasioned to any person or
property by reason of any carelessness or negligence on the part of the Principal, or any
subcontractor in the performance of said work, and shall indemnify and hold the City harmless
Ordinance No. 05 - 485
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. •
from any damage or expense by reason of failure of performance as specified in the Agreement,
or from defects appearing or developing in the material or workmanship provided or performed
under the Agreement within the period not less than:
1. the term of the Agreement; or
2. two (2) years beyond the completion of �nal installation or construction by the Principal
pursuant to the Agreement if required by the City; whichever is longer, then and in the
event this obligation shall be void; but otherwise, it shall be and remain in full force and
effect.
And the Surety, for value received, hereby further stipulates and agrees that no change, extension
of time, alteration or addition to the terms of the Agreement or to the work to be performed
thereunder or the specifications accompanying the same shall in any way affect its obligation on
this bond, and it does hereby waive notice of any change, extension of time, alterations or
additions to the terms of the Agreement or to the Work.
Within forty-five (45) days of receiving notice that the Principal has defaulted on all.or part of
the terms of the Agreement, the Surety shall make a written commitment to the City that it will
either: (a) cure the default itself within a reasonable time period, or (b) tender to the: City, the
amount necessary for the City to remedy the default, including legal fees incurred by the City, or
(c) in the event that Surety's evaluation of the dispute is not complete or in the event the Surety
disputes the City's claim of default, the Surety shall notify the City of its finding and its intent, if
any, to interplead. The Surety shall then fulfill its obligations under this bond, according to the
option it has elected. Should Surety elect option (a) to cure the default, the penal sum of the
Bond shall be reduced in an amount equal to the costs actually incurred by the Surety in curing
the default. If the Surety elects option (b), then upon completion of the necessary work, the City
shall notify the Surety of its actual costs. The City shall return, without interest, any
overpayment made by the Surety and the Surety shall pay to the City any actual costs which
exceed the City estimate, limited to the bond amount. Should the Surety elect option (c), the
Parties shall first complete participation in mediation, described in the below paragraph, prior to
any interplead action.
In the event a dispute should arise between the Parties to this Bond with respect to the City's
declaration of default by the Principal, the Parties agree to participate in at least four hours of
Ordinance No. 05 - 485
Page 25
� �
mediation in accordance with the mediation procedures of United States Arbitration and
Mediation ("USA&M"). The Parties shall proportionately share in the cost of the mediation.
The mediation shall be administered by the Seattle USA&M office, 4300 Two Union Square,
601 Union Street, Seattle, Washington 98101-2327. The Surety shall not interplead prior to
completion of the mediation.
DATED this day of , 20_.
� CORPORATE SEAL OF PRINCIPAL: [PRINCIPAL]
By:
(Name of Person Executing Bond)
Its:
(Title)
(Address)
(Phone
: I • •:'•: � Y
I hereby certify that I am the (Assistant) Secretary of the Corporation named as Principal in
the within bond; that , who signed the said bond on behalf of the
Principal, was of the said Corporation; that I know his or her
signature thereto is genuine, and that said bond was duly signed, sealed, and attested for and in
behalf of said Corporation by authority of its governing body.
Secretary or Assistant Secretary
Ordinance No. 05 - 485
Page 26
�
CORPORATE SEAL OF SURETY: SURETY
:
�
Attorney-in-Fact
(Attach Power of Attorney)
(Name of Person Executing Bond)
(Address)
(Phone),
APPROVED AS TO FORM:
Patricia A. Richardson, City Attorney
Ordinance No. OS - 485
Page 27