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ORD 16-823ORDINANCE NO. 16 -823 AN ORDINANCE of the city of Federal Way, Washington, granting Level 3 Communications, LLC, a Delaware Limited Liability Company, a nonexclusive franchise to occupy rights -of -way of the City of Federal Way, Washington, within the 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, WilTel Communications, LLC, formerly known as Williams Communications, LLC, a Delaware corporation ( "WilTel Communications ") 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, Level 3 Communications, LLC, a Delaware limited liability company ("Level 3 Communications ") purchased WilTel Communications; and WHEREAS, Level 3 Communications continues to maintain the fiber optic communications system located within the Military Road right -of -way and has requested a franchise from the City of Federal 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 Level 3 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; Ordinance No. 16 -823 Page 1 of 25 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 of twelve (12) underground conduits, of which ten have a diameter of 1.50 inches and two (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 and in plans on file with the City in File No. 00- 103793 UP. "Facilities" also means any other equipment approved by the Federal Way City Council by ordinance and incorporated herein by amendment. 1.5 "FWRC" means the Federal Way Revised 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 in plans on file with the City 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 Level 3 Communications and its respective successors and assigns if consented to by the City of Federal Way as provided in Section 24 herein. Ordinance No. 16 -823 Page 2 of 25 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 Franchisee to install 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 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 Military Road right -of -way depicted in Exhibit A. Section 4. Term Subject to Franchisee fling 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. This Franchise shall renew automatically for two (2) additional five (5) year terms, up to ten (10) years, unless either Ordinance No. 16 -823 Page 3 of 25 party gives notice prior to sixty (60) days from the expiration of the term of the party's intent to terminate. Section 5. Location of Facilities 5.1 Location. The Facilities permitted by this Franchise shall be installed underground. The location of the Facilities, including any 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 on "as- built" plans and a map and 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 and map to reflect actual or anticipated improvements to the system. Any such plans or map (or update thereof) so submitted shall be for informational purposes only and shall not obligate Franchisee to undertake any specific improvements, nor shall such map be construed as a proposal to undertake any specific improvements. 5.2 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 to 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 Ordinance No. 16 -823 Page 4 of 25 required by the Director. This requirement applies whether 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 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 FWRC 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. Ordinance No. 16 -823 Page 5 of 25 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, the 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 within thirty (30) days and shall be equal to or better than the surface condition prior to permit issuance. Any asphalt overlay completed within the Franchise Area during the five (5) year - period immediately prior to the date of permit application shall not be open cut by Franchisee unless required by an emergency and subject to the provisions of Subsection 7.2 above. Franchisee shall install new asphalt overlay on any street that is open cut, whether in an emergency or otherwise, for a minimum of one (1) block (approximately 500 feet) in length in both directions from the open cut, Ordinance No. 16 -823 Page 6 of 25 unless determined otherwise by the Director. Within ninety (90) days of completion of any installation of Franchisee's Facilities within the Franchise Area, Franchisee shall submit to the Director plans, stamped by a Professional Engineer licensed by the State of Washington, showing the "as- built" location of the Facilities. 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 thirty (30) days, or a period of time mutually agreed to in writing by the parties, after Franchisee receives written notice from the City regarding the Ordinance No. 16 -823 Page 7 of 25 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 pursuant to Section 13 herein and Franchisee's obligation to remove or relocate facilities pursuant to Section 12 herein. 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 attorney's 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. Required Relocation of Facilities 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 City's Duties. In the event the City undertakes any work, including necessary maintenance within a right -of -way in which Franchisee's facilities are located, and such work Ordinance No. 16 -823 Page 8 of 25 necessitates the relocation of Franchisee's then existing Facilities within the Franchise Area, the City shall: (a) Provide written notice of the required relocation to Franchisee within a reasonable time prior to the commencement of such City work; 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. 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. 12.3 Franchisee's Duties. Within sixty (60) days, or a period of time mutually agreed to in writing by the parties, of receipt of the City notice under Subsection 12.2(a) requiring relocation and receipt of the plans and specifications pursuant to Subsection 12.2(b), Franchisee shall raise, lower, or move such Facilities within the Franchise Area at its sole cost and expense to the location or position directed by the City, to cause the least interference with the improvement, repair, or alteration contemplated by the City and to conform to such new grades as may be established. If the City improves a right -of -way, Franchisee shall, at its sole cost and expense, upon receipt of notice, replace the Facilities located in the improved subgrade of the improvement with substitute Facilities conforming to the specifications for the improvement of the right -of -way. 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 within or adjacent to rights -of- way, the Franchisee agrees to repair the damage at its own cost and expense. The Franchisee shall, Ordinance No. 16 -823 Page 9 of 25 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 within or adjacent 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 as required in this section, the City may repair the damage and recover the costs and expenses of such repair from Franchisee pursuant to 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 Franchisees Facilities within the Franchise Area for the fair market value thereof. In determining the value of such Facilities, no value shall be Ordinance No. 16 -823 Page 10 of 25 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 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, policies 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 will 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 2000 Laws Ch. 83 (as passed by the Senate and House of Representatives of the State of Washington) and the FWRC, 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 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. Ordinance No. 16 -823 Page 11 of 25 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. This guarantee shall apply only to such settlement or repair that the City attributes to Franchisee's Facilities, actions, or omissions. Section 20. Charge for Administrative Costs 20.1 Franchisee agrees to pay a fee or a charge of One Thousand and No /100 Dollars ($1,000.00) to recover the administrative expenses incurred by the City that 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 Revised Code. 20.2 Franchisee previously installed, at no charge or cost to the City, two 1.50 inch conduits with splice boxes and pullboxes, for and on behalf of the City and such other equipment as set forth and depicted more specifically in Exhibit B hereto and in plans on file with the City of Federal Way in ROW — Telecom. Permit No. 00- 104171 -00 -TR ( "City Facilities "). Franchisee provided the portion of the City Facilities located outside the City boundaries after the City Council approval of Ordinance No. 00 -371. 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 the City Facilities shall be adequate for such purpose. The foregoing warranty is exclusive and is in lieu of all other express or implied warranties, including but Ordinance No. 16 -823 Page 12 of 25 not limited to warranties of merchantability and fitness for a particular purpose. If the City makes the City Facilities available to any other entity for the purpose of providing telecommunications or cable 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 television service for hire, sale, or resale to the general public. The City Facilities are owned by the City and Franchisee is not responsible for them, other than as provided herein. Franchisee proposed and voluntarily agreed to this Section as a matter of contract even if deemed to be more than the requirements of the 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 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 that gives rise to Franchisee's obligation pursuant to this Section 21, 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 Ordinance No. 16 -823 Page 13 of 25 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 at its own expense 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. 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 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 $5,000,000 for bodily injury, including personal injury or death, and property damage; (d) If Franchisee maintains umbrella insurance (primary, excess, or a combination thereof) that exceeds the above insurance requirements, such insurance shall constitute compliance with this Section. Ordinance No. 16 -823 Page 14 of 25 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 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; Coverage shall not be suspended, canceled, modified, or reduced except after thirty (30) days' prior written notice to the City. 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 form attached as Exhibit C and in the amount of $100,000 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 by 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 Ordinance No. 16 -823 Page 15 of 25 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 agreement in writing signed by both of the Parties. 24.3 Assignment and Leasing /Subleasing. (a) Assignment. Franchisee shall not have the right to transfer or assign, in whole or in part, any or all of its obligations and rights hereunder without the prior written consent of the City, which shall not be unreasonably withheld. Any assignee shall, within thirty (30) days of the date of any approved assignment, file written notice of the assignment with the City together with its written acceptance of all terms and conditions of this Franchise. Notwithstanding the foregoing, Franchisee shall have the right, without such notice or such written contest, to mortgage its rights, benefits and privileges in and under this Franchise to the Trustee for its bondholders. (b) Leasing /Subleasing. Franchisee may lease or sublease a portion or all of the Facilities to other entities, provided that any transfer or assignment to any such lessee or sublessee of any or all of Franchisee's obligations and rights hereunder shall be subject to Section 24.3(a). Unless such transfer or assignment is approved, and otherwise complies with the requirements of Section 24.3(a), entering into a lease or sublease shall not relieve Franchisee of its obligations under this Ordinance No. 16 -823 Page 16 of 25 Franchise, and the terms of this Franchise shall continue to bind Franchisee. 24.4 Attorneys' 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 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 or by Franchisee to the City shall be delivered to the parties at the following addresses: Franchisee: City: Level 3 Communications, LLC Attn: NIS Department 1025 Eldorado Blvd Broomfield, CO 80021 Ordinance No. 16 -823 City of Federal Way Attn: City Attorney 33325 8th Avenue South Federal Way, WA 98003 Page 17 of 25 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 act consistent with the authority and prior to the effective date of this Franchise is hereby ratified and affirmed. Section 27. Effective Date This Franchise shall take effect and be in full force thirty (30) days after its passage and publication, according to law (see Effective Date below). PASSED by the City Council of the City of Federal Way this 6th day of September, 2016. Ordinance No. 16 -823 Page 18 of 25 AT EST: RK, STEPHANIE C APPROVED AS T TNEY, CMC CITY ATTORNEY( /fc f% A j FILED WITH THE CITY CLERK: 08/05/2016 PASSED BY THE CITY COUNCIL: 09/06/2016 PUBLISHED: 09/09/2016 EFFECTIVE DATE: 10/09/2016 ORDINANCE NO.: 16 -823 Ordinance No. 16 -823 Page 19 of 25 ACCEPTANCE: The undersigned hereby accepts all the rights and privileges of the above granted License and acknowledges that such rights and privileges are subject to and limited by all ofthe terms, conditions and obligations contained therein. DATED this ;i-t6- day of 6-Gle--4--C7 82016. LEVEL 3 COMMUNICATIONS, LLC Its: / APS Ordinance No. 16-823 Page 20 of 25 EXHIBIT A LOCATION OF FACILITIES WITHIN THE FRANCHISE AREA Ordinance No. 16 -823 Page 21 of 25 PM/MIN/11 W10.1.1.744, rIij UN If 6 Si C1 ' r/LUERA I. WA V- ALONG All 1.11Att /LOAD IMIP, I. !.." MCI coNinuTs t-r-r j !,. EXHIBIT B LOCATION OF CITY OF FEDERAL WAY FACILITIES WITHIN THE FRANCHISE AREA Ordinance No. 16 -823 Page 22 of 25 EX 11111"1: li fissilfs '10 A ' 4'41411_1_ Slar Lake t PHOP,,P4,0 (Try OP FEDERAL WAY CONDUITS 1A'o '4' CONDUITS A LONG MILITARY ROAD *ROM S 3101'H ST TO STAR LAKE ROAD PROPOSED cri'v CIF FEDERAL WAY JON(.1 ION BOXES W5130T TYPE 3 AB's • NOR1 11 SIDE OF STA R LAKE ROAD • mown, AND soon, SIDE OF SMITH ST. - NURIfl SW OF S 2S;ATII ST. NOR*111 SIDE OP SR:41115r. - NORTII AND SOU III SIDE OF 5 J2011I wsocyr TYPE I WS: • INSTALLED AT EACH WILLIAMS BORE Pit' 1,1 nil 11 Steel Lake 1131 RI] w sf,f • f ri EXHIBIT C CITY OF FEDERAL WAY PERFORMANCE/MAINTENANCE BOND KNOW ALL PEOPLE BY THESE PRESENTS: Bond No. SU04163 We, the undersigned Level 3 Communications, LLC , ( "Principal ") and Aspen American Insurance Company , the undersigned corporation organized and existing under the laws of the State of Texas 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 One Hundred Thousand Dollars and No /100 ($_100,000.00 ) 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 the 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 September 6 2016, for Ordinance No. 16 -823 - franchise to occupy rights -of -way for the purposes of installing, constructing, maintaining, repairing, and restoring a fiber optic communications system. 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 time as may be granted under the Agreement, and shall 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 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 a period of two (2) years after its final acceptance thereof by the City, 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. The Surety hereby agrees that modifications and changes may be made in the terms and provisions of the Agreement without notice to Surety, and any such modifications or changes increasing the total amount to be paid the Principal shall automatically increase the obligation of the Surety on this Performance Bond in a like amount, such increase, however, not to exceed twenty -five percent (25 %) of the original amount of this bond without the consent of the Surety. Ordinance No. 16 -823 Page 23 of 25 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 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 15th day of September , 2016. CORPORATE SEAL OF PRINCIPAL: [PRINCIPAL] Level 3 Commmunications, LLC By: -V (Name of erson Executing Bond) Its f.eernrx /4s,r (Title) 1025 Eldorado Blvd. Broomfield, CO 80021 (Address) Fzo . Sig- /coo (Phone) Ordinance No. 16 -823 Page 24 of 25 CERTFICATES AS TO CORPORATE PRINCIPAL I, Holly Horn, certify that I am the Risk MaAagement Coordinator of the corporation as Principal in the within bond; that David Ingram who signed the said bond on behalf of the Principal, was then Director of Risk Management of the said corporation; that I know his 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 bond (Corporate Seal STATE OF Colorado COUNTY OF Broomfield On this 22nd Day of September, 2016 before me, A Notary Public of the State and County aforesaid, personally appeared David Ingram, who acknowledged that he /she is the Director of Risk Management of the Principal identified in the above bond and the being so authorized, he /she executed the above bond for and behalf of the Principal. HOLLY HORN NOTARY PUBLIC • STATE OF COLORADO Notary Identification 020154009731 My Commission Expires 3/9/2019 (SEAL) NOTARY PUBLIC My Commission Expires: 3 `1 /i Cl 01 CERTIFICATE AS TO CORPORATE SEAL 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 CORPORATE SEAL OF SURETY: Surety Aspen American Insurance Company By: Attorney -Fact (Attach Power of Attorney) Stacy Killebrew (Name of Person Executing Bo. d) 11001 Lakeline Blvd. Austin, TX 78704 (Address) 512- 378 -4534 (Phone) APPROVED AS TO FORM: City Attorney G:\ LawForms \PerformanceMaintenanceBond Rev. 01/15 Ordinance No. 16 -823 Page 25 of 25 D64 A S P E N Aspen American Insurance Company 175 Capital Boulevard, Rocky Hill, CT 06067 POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS, THAT Aspen American Insurance Company, a corporation duly organized under the laws of the State of Texas, and having its principal offices in Rocky Hill, Connecticut, (hereinafter the "Company ") does hereby make, constitute and appoint: Joseph R. Poplawski; Kathleen K. Freund; Margarita Holguin; Stacy Killebrew of Marsh USA, Inc. its true and lawful Attomey(s) -in -Fact, with full power and authority hereby conferred to sign, execute and acknowledge on behalf of the Company, at any place within the United States, the following instrument(s) by his/her sole signature and act: any and all bonds, recognizances, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking and any and all consents incident thereto, and to bind the Company thereby as fully and to the same extent as if the same were signed by the duly authorized officers of the Company. All acts of said Attorney(s) -in -Fact done pursuant to the authority herein given are hereby ratified and confirmed. This appointment is made under and by authority of the following Resolutions of the Board of Directors of said Company effective on April 7, 2011, which Resolutions are now in full force and effect; VOTED: All Executive Officers of the Company (including the President, any Executive, Senior or Assistant Vice President, any Vice President, any Treasurer, Assistant Treasurer, or Secretary or Assistant Secretary) may appoint Attomeys -in -Fact to act for and on behalf of the Company to sign with the Company's name and seal with the Company's seal, bonds, recognizances, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, and any of said Executive Officers at any time may remove any such appointee and revoke the power given him or her. VOTED: The foregoing authority for certain classes of officers of the Company to appoint Attorneys -in -Fact by virtue of a Power of Attorney to sign and seal bonds, recognizances, and other writings obligatory in the nature of a bond, recognizance, or conditional undertaking, as well as to revoke any such Power of Attorney, is hereby granted specifically to the following individual officers of Aspen Specialty Insurance Management, Inc.: Michael Toppi, Executive Vice President, Scott Sadowsky, Senior Vice President, James Mercier, Senior Vice President, Mathew Raino, Vice President, Scott Mandeville, Vice President and Ryan Field, Assistant Vice President. This Power of Attorney may be signed and sealed by facsimile (mechanical or printed) under and by authority of the following Resolution voted by the Boards of Directors of Aspen American Insurance Company, which Resolution is now in full force and effect: VOTED: That the signature of any of the Officers identified by title or specifically named above may be affixed by facsimile to any Power of Attorney for purposes only of executing and attesting bonds and undertakings and other writings obligatory in the nature thereof; and any and all consents incident thereto, and any such Power of Attomey or certificate bearing such facsimile signature or facsimile seal shall be valid and binding upon the Company. Any such power so executed and certified by such facsimile signature and /or facsimile seal shall be valid and binding upon the Company with respect to any bond or undertaking so executed. IN WITNESS WHEREOF, Aspen American Insurance Company has caused this instrument to be signed and its corporate seal to be hereto affixed this a z/14. day of °V II STATE OF CONNECTICUT SS. ROCKY HILL COUNTY OF HARTFORD d. On this - day of'4= ' oo(D // before me personally cameScott Mandeville to me known, who being by me duly swom, did depose and say; that he /she is Vice President, of Aspen American Insurance Company, the Company described in and which executed the above instrument, that he/she knows the seal of said corporation; that the seal affixed to he. said instrument is such corporate seal; and that he/she executed the said instrument on behalf of the Company by authority of his/her office under the above rv.olations thereof. Aspen America Insura al; \k \r,s71, on Mandeville, Vice •'U e . Notary Public My commission expires: (.518/l020/� CERTIFICATE I, the undersigned, Scott Mandeville of Aspen American Insurance Company, a stock corporation of the State of Texas, do hereby certify that the foregoing Power of.Attomey remains in full force and has not been revoked; and furthermore, that the Resolutions of the Boards of Directors, as set forth above, are now and remain in full force and effect. Given under my hand and seal of said Company, in Rocky Hill, Connecticut, this IS /lay of Sepietrtlohr r"D1 tp By Name: Scott Mandeville, Vice President * For verification of the authenticity of the Power of Attorney you may call (860) 760 -7728 or email: Patricia .Taber @aspenspecialty.com ACORD® CERTIFICATE OF LIABILITY INSURANCE DATE (MM /DD/YYYY) 04/19/2016 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER MARSH USA INC. 1225 17TH STREET, SUITE 1300 DENVER, CO 80202 -5534 Attn: Denver.CertRequest@marsh.com INSURED Level 3 Communications, Inc. Level 3 Communications, LLC tw telecom holdings, inc. 1025 Eldorado Boulevard Broomfield, CO 80021 CONTACT NAME: PHONE (AIC. No. Est): E -MAIL ADDRESS: FAX INC. No): INSURER(S) AFFORDING COVERAGE NAIC N INSURER A : Travelers Property Casualty Co. Of America 25674 INSURER B : The Travelers Indemnity Company 25658 INSURER C : XL Insurance America, Inc. 24554 INSURER D : INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER: SEA- 003040784 -01 REVISION NUMBER:4 THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE ADDL INSD SUBR MID POLICY NUMBER POLICY EFF (MMIDD/YYYY) POLICY EXP (MM/DD/YYYY) LIMITS A X COMMERCIAL GENERAL LIABILITY HJGLSA157D3802TIL15 05/01/2015 05/01/2016 EACH OCCURRENCE $ 1,000,000 DAMAGE TO PREMISES (EaEoccurrence) $ 1,000,000 CLAIMS -MADE X OCCUR MED EXP (Any one person) $ 10,000 PERSONAL & ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GEN'L AGGREGATE POLICY OTHER: LIMIT APPLIES JECT X PER: LOC PRODUCTS - COMP/OP AGG $ 2,000,000 $ A AUTOMOBILE X X X LIABILITY ANY AUTO ALL OWNED AUTOS HIRED AUTOS X _ SCHEDULED AUTOS NON -0WNED AUTOS HC2JCAP157D3814TIL15 05/01/2015 05/01/2016 COMBINED SINGLE LIMIT (Ea accident) $ 1000 000 BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE (Per accident) $ Deductible $ 100,000 C X UMBRELLA LIAB EXCESS LIAB X OCCUR CLAIMS -MADE US00067030L115A 05/01/2015 05/01/2016 EACH OCCURRENCE $ 1,000,000 AGGREGATE $ 1,000,000 $ DED X RETENTION$10,000 A B WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE Y / N OFFICER/MEMBER EXCLUDED? N (Mandatory In NH) If yes, describe under DESCRIPTION OF OPERATIONS below NIA HC2JUB157D382615 (AOS) HRKU6157D383815 (AZ,MA,WI) 05/01/2015 05/01/2015 05/01/2016 05/01/2016 x STATUTE OTH ER E.L. EACH ACCIDENT $ 1,000,000 E.L. DISEASE - EA EMPLOYEE $ 1,000,000 E.L. DISEASE - POLICY LIMIT $ 1 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) Re: Ordinance No. 00- 371 -City of Federal Way, WA Federal Way, City of WA, its officers, elected officials, employees and volunteers are included as additional insured (except workers compensation) where required by written contract. General Liability is primary and non - contributory over any existing insurance and limited to liability arising out of the operations of the named insured and where required by written contract. CERTIFICATE HOLDER CANCELLATION Federal Way, City of WA Attn: City Attorney PO Box 9718 Federal Way, WA 98063 -9718 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE of Marsh USA Inc. Amanda Davies ACORD 25 (2014/01) © 1988 -2014 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD