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(formerly Administration Conference Room)
5 AGENDA
1. CALL TO ORDER
5 2. PUBLIC COMMENT
3. COMMITTEE BUSINESS
a. 5 Williams Communications Franchise Agreement (Bob Sterbank)
5 Action
6. NEXT MEETING: July 25, 2000 2:00 p.m.
Committee Members:
Mary Gates, Chair
Jeanne Burbidge
Michael Hellickson
City Stall?
lwen Wang, Management Services Director
Enola Christian, Administrative Assistant
(253) 661-4061
CITY OF FEDERAL WAY
MEMORANDUM
Date:
To:
From:
Subject:
July 7, 2000
Finance, Econom/i?~I~evelopment and Regional Affairs Committee
Bob C. Sterba~-~'-~uty'-/"'~ City Attorney
Proposed Williams Communications Fiber Optic Franchise - Military Road Right-
of-Way from approximately $. 306a to Star Lake Road/1-5 intersection.
Background:
Williams Communications has requested a franchise to locate a fiber optic communications
system within City right-of-way along Military Road, between approximately S. 306th and the
intersection of Star Lake Road, Military Road and 1-5. The fiber optic cable will be part of
Williams larger network running from Portland to the City of Seattle.
The basic terms of the proposed franchise are as follows:
1. Equipment
The lease would permit Williams to install 10 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. Of the 10 conduits, eight will be 1.5 inches in -
diameter each, and will be for Williams' use; the remaining two will be 1.25 inches in diameter
each and will be provided to the City at no cost. In addition, Williams will also provide to the
City a continuation of the two City conduits along Military Road from S. 306~ to S. 320* Street.
2. Consideration
Williams will pay the City's administrative costs and expenses in preparing and
approving the franchise. Williams will also relocate its facilities at the City's request, at
Williams' cost, and repair any damages it causes to the ROW, also at Williams' cost. In
addition, Williams is also providing conduit to the City, albeit on a volunteer basis (the conduit
was not requested by the City).
3. Insurance
Williams w/Il maintain insurance of $2 Million combined single limit for both
commercial general liability and automobile insurance.
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); and Weyerhaeuser and Sprint (fiber optic cable).
5. Bond
The proposed franchise requires Williams to post a bond in the amount of 120% of the
amount of the facilities prior to commencing any work under the Franchise.
6. Outstanding Issues
a. 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. Some franchises or agreements go on to provide that the City will
evaluate the financial, technical and legal expertise of the proposed transferee before consenting.
Williams, however, has requested that proposed transfers or assignments to parent or
subsidiary companies be treated differently. Originally, Williams insisted that it be allowed to
make such "in-house" transfers without any notice to or approval by the City. In the attached
draft franchise, however, Williams has agreed to a provision in which City approval ii required
for all assignments and transfers, although a presumption that the proposed transfer is reasonable
would exist for transfers to a parent, subsidiary or affiliate, provided that the City could first
determine that the proposed transferee had equivalent financial strength and technical
capabilities, that the transferee would assume all of the obligations of the franchise, and that
Williams would not be released from the obligations of the Franchise by virtue of such transfer
until the City consented to such transfer or assignment. However, the City may rebut the
presumption of"reasonable approval" if the proposed assignee or transferee has a record of
performance under similar franchise agreements which is unacceptable to the City under a
reasonable standard of evaluation.
Selection of either option is a policy issue for the Committee and Council. Staff can
work with the language currently proposed by Williams. Departing from the past standard,
however;~will may create a precedent, with the result that companies seeking a franchise or right-
of-way use agreement in the future will demand the same treatment that Williams has proposed.
In addition, franchisees or telecommunications companies with whom the City has existing right-
of-way use agreements or leases may demand that their agreements be changed to reflect the
language proposed by Williams.
b. City Conduit from S. 306th to S. 3204 Street Williams has stated that its willingness to
provide conduit for City use in the portion of Military Road from S. 306th Street running south to
S. 3204 Street, in the event that the Council considers and adopts the Franchise by its August 1,
2000 City Council meeting. Williams, however, has been unwilling to include its commitment
to do so in the Franchise document, stating its preference for a separate agreement. As of the
date of this memorandum, howev~er, no such agreement has been proposed, agreed upon, or
executed by Williams. Staff will brief the Committee on the status of this issue at the Committee
meeting.
Committee Recommendation:
Staff requests that the committee forward the proposed franchise to the full City Council,
for placement on the July 18, 2000 City Council agenda, with a "do pass" recommendation;
provided that the following changes are made to the draft franchise ordinance:
a. None
bo
APPROVAL BY COMMITTEE:
Committee Chair
Committee Member
Committee Member
K:\telecom\fedracwill.doc
DRAFT DATED 7/05/00
ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY,
WASHINGTON, GRANTING WILLIAMS COMMUNICATIONS, 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, Williams Communications, Inc., a Delaware corporation ("Williams
Communications") has requested a franchise from the City of Federal Way, in order to locate a
fiber optic communications system within the Military Road right-of-way; 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 Williams Communications; 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.
1.4 "Facilities" means: (a) an underground fiber optic communication system
comprised often (10) underground conduits, of which eight have a diameter of 1.50 inches and two
Ordinance No. , Page 1
SEADOCS:75793.2
(2) have a diameter of 1.25 inches; (b), the fiber running through the conduits; and (c) appurtenant
splice boxes, pull boxes, and "J" boxes necessary to provide access to the underground conduits; all
as specifically depicted in Exhibit A hereto and in plans on file with the City of Federal Way in
UP "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 Military Road 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 Williams Communications, and its successors and assigns if
approved and/or permitted as provided in Section 24.3 herein. 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 in the Franchise Area. This franchise is
specifically limited to the right for Williams Communications to install Facilities owned and
operated by Williams Communications. 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 Ci.ty 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 Military Road right-of-way depicted in
Exhibit A..
Section 4. Term
Subject to Franchisee filing its acceptance pursuant to Subsection 2.2, the term of this
Franchise shall be for a period often (10) years commencing on the effective date of this Franchise,
unless terminated earlier pursuant to this Franchise or other applicable law.
Ordinance No. , Page 2
SEADOCS:75793.2
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 surface of ground or grade of a right-
of-way, and any related existing equipment to which the Facilities are connected shall be depicted
(i) on "redline" plans submitted to the City within thirty (30)days of the installation of the
Facilities and (ii) on an "as-built" plans submitted to the City within one hundred twenty (120) days
of the installation of the Facilities. The "redline" and "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 such plans (or update thereof) 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 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 permit applications shall be accompanied by plans stamped by a Professional Engineer
Ordinance No. , Page 3
SEADOCS:75793.2
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 rights-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 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 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 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 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 completed
Ordinance No. , Page 4
SEADOCS:75793.2
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) 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.
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.
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. 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.
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.
Ordinance No. , Page 5
SEADOCS:75793.2
Section 12. Notice to Franchisee of 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
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 ofFranchisee's Facilitiex
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 __ [Senate Bill 6676, Section ]; 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 __ [Senate Bill 6676, Section
], 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 __ [Senate Bill 6676, Section ].
Ordinance No. , Page 6
SEADOCS:75793.2
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, °r 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. 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 30 days before vacating all or any portion of the
Ordinance No. , Page 7
SEADOCS:75793.2
Franchise Area. The City may, after thirty (30) days written notice to Franchisee, terminate this
Franchise with respect to any such 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 with applicable law, including but
not limited to with the Telecommunications Act of 1996, existing Washington State statutes and
Engrossed Substitute Senate Bill 6676 (as such Bill was passed by the Senate and House of
Representatives of the State of Washington) and the FWCC, as currently enacted and interpreted.
18.2 Future City of Federal Way Regulation. Subject to Section 18.1 above, Franchisee
acknowledges that the City may develop rules, regulations, ordinances and specifications for the
use of the fight-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.
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 35.21.860 of the Revised Code of
Washington (RCW) and RCW ~ [Senate Bill 6676, Section ], the City is currently
precluded from imposing franchise fees for "telephone businesses" defined in RCW 82.04.065 and
Service Providers as defined in RCW ~ [Senate Bille 6676, Section ], except that 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
Ordinance No. , Page 8
SEADOCS:75793.2
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 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
taxes 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.
20.2 City Owned Facilities. Franchisee, at no charge or cost to the City, shall provide
and install two 1.50 inch conduits with splice boxes and pullboxes, for and on behalf of the City
and such other equipment, all as set forth and depicted more specifically in Exhibit B, attached
hereto and incorporated herein by this reference ("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 line through the City Facilities at some future time
and the City Facilities shall be adequate for such purpose. If the City makes the City Facilities
available to any other entity for the purposes of providing telecommunications or cable television
service for hire, sale or resale to the general public, then the City shall, pursuant to contract,
reimburse Franchisee the fully allocated costs of installing the City Facilities. Such contract shall
not be considered a public works construction contract. Unless provided otherwise in this
Franchise, the City shall not use the City Facilities to provide telecommunications or cable
Ordinance No. , Page 9
SEADOCS:75793.2
televions service for hire, sale, or resale to the general public. The City Facilities shall be
installed alongside and concurrently with the Facilities within the borders of the City. The City
Facilities will not be connected to the access structures and vaults of Franchisee. The City Facilities
shall be owned by the City, and once installed, Franchisee shall not be responsible for them, other
than as provided for herein. Franchisee has proposed and 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 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, or 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 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 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 Section21 shall survive the expiration or
terminati on of the Franchise for a period of three (3) years.
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;
Ordinance No. __., Page 10
SEADOCS:75793.2
(b) Commercial general liability insurance with combined single limits of
liability 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 not
less than $2,000,000 for bodily injury, including personal injury or death and property
damage.
22.2 Mandatory Insurance Provisionr~ 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 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 performed in connection with the Facilities to guarantee performance of
the construction, performance, maintenance or repair in accordance with any 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
Sections22-146 and22-175 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
Ordinance No. , Page 11
SEADOCS:75793.2
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 discrection.
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 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.
Notwithstanding the foregoing, if the following criteria are satisfied, as
determined by the City, the transfer of the rights and obligations of
Franchisee hereunder to a parent, subsidiary, or financially viable affiliate of
Franchisee or to any successor-in-interest or entity acquiring all or
substantially all of Franchisee's outstanding voting stock or assets will be
presumed reasonable: (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; (ii) the transferee shall assume all of
the obligations of Franchisee hereunder; and (iii) 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 The City may rebut
the presumption of "reasonable approval" if the proposed assignee or
transferee has a record of performance under similar agreements which is
unacceptable to the City under a reasonable standard of evaluation.
Ordinance No. , Page 12
SEADOCS:75793.2
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.
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 20.1 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 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 / Subleasin~ Notwithstanding the provisions of Section 24.3.1
above, Franchisee may lease or sublease a portion of the Facilities to other
entities, provided that Franchisee shall not permit any such lessee or
sublessee to utilize or control the leased or subleased Facilities until the
lessee or sublessee has first obtained a franchise from the City. Franchisee
shall provide notice, as soon as practicable but in any event prior to entering
into any lease or sublease, of the name, mailing address and telephone
number of any person or entity proposing or requesting to lease or sublease
any portion of the Facilities, so that the City may contact and discuss
franchise requirements with said person or entity. Any lease or sublease
entered into in violation of this subsection shall be void.
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.
24.5 No Waiver. Failure of either party to declare any breach or default by the other
Ordinance No. , Page 13
SEADOCS:75793.2
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.
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 on behalf of the Franchisee or the City.
24.8 Notices. Any notices required to be given by the City to
Franchisee to the City shall be delivered to the parties at the following addresses:
Franchisee:
Williams Communications, Inc.
Attn: Manager of Land & Records
110 West Seventh Street, Suite 500
Tulsa OK
Franchisee or by
City:
City of Federal Way
Attn: City Attorney
33530 1st Way South
Federal Way WA 98003-6210
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 Captionr~ 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 unconstitutionalityshall not
affect the validity or constitutionality of any other section, sentence, clause or phrase of this
Franchise.
Ordinance No. , Page 14
SEADOCS:75793.2
Section 26. Ratification
Any act consistent with the authority and prior to the effective date of this Franchise is
hereby ratified and affirmed.
PASSED by the City Council of the City of Federal Way this day of
.,2000.
CITY OF FEDERAL WAY
ATTEST:
MAYOR, RON GINTZ
CITY CLERK, N. CHRISTINE GREEN, CMC
APPROVED AS TO FORM:
INTERIM CITY ATTORNEY, ROBERT STERBANK
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
PUBLISHED:
EFFECTIVE DATE:
ORDINANCE NO.
Ordinance No. , Page 15
SEADOCS:75793.2
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 ., 2000.
WILLIAMS COMMUNICATIONS, INC.
By:
Its:
Ordinance No. , Page 16
SEADOCS:75793.2
EXHIBIT A
Ordinance No. , Page 17
SEADOCS:75793.2
EXHIBIT B
Ordinance No. , Page 18
SEADOCS:75793.2
Page 1 of 1
Enola Christian - Special FEDRAC Meeting
From: lwen Wang
To: councilhome; Enola Christian; MT
Date: 7/3/00 10:27 AM
Subject: Special FEDRAC Meeting
A special FEDRAC meeting has been scheduled for July 10, 1:30 PM to consider a Franchise Agreement with Williams Communications. The packet will be
distributed later this week.
Iwen
file://C:\WINDOWS\TEMP\GW} 00001 .HTM 7/5/00
From:
To:
Date:
Subject:
Robert Sterbank
Enola Christian
Tuesday, July 18, 2000 2:08PM
Re: Special fedrac meeting 7/10/00
Dick Kelly attended from Williams, along with Terry Berman, Williams' attorney. Tim McHarg, from
Madrona Planning, the City's consultant, was also present and spoke on the Williams issue.
>>> Enola Christian 07/18/00 01:19PM >>>
Bob-
I am typing up the minutes from the Williams Communications Franchise Agreement meeting and I need
the names (correct spelling) of the folks that attended the meeting last week. There was a Dick (?) from
Williams and a Tim Begard (?) from Madronna Planning. Anyone else I should note?
Thanks,
Enola