ORD 17-829 - Granting State Park & Recreation FranchiseORDINANCE NO. 17 -829
AN ORDINANCE of the City of Federal Way, Washington,
granting Washington State Parks and Recreation, a nonexclusive
franchise to occupy rights -of -way of the City of Federal Way,
Washington, within the specified franchise area for the purposes
of constructing, maintaining, repairing, operating, and removing
gravity sewer lines, and other utilities, with all connections and
appurtenances thereto, for State Park purposes within and
through the City of Federal Way.
WHEREAS, Washington State Parks and Recreation has requested a franchise from the City
of Federal Way, in order to construct, operate and maintain a sewer line connection and other utilities
for State Park purposes through certain public rights -of -way, including SR 509 (Dash Point Road);
and
WHEREAS, on July 24, 2006, the City Council enacted Ordinance No. 06 -529, granting
Washington State Parks and Recreation a nonexclusive franchise to construct, operating and
maintain a sewer line and other utilities for State Park purposes; and
WHERAS, Washington State Parks did construct utilities in City right -of -way and those
utilities continue to exist; and
WHEREAS, Ordinance No. 06 -529 expired on July 24, 2016; 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 Washington State Parks and Recreation;
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, tunnels,
pipes and wires, and appurtenances for transmission and distribution of electrical energy, of signals
Ordinance No. 17 -829 Page 1 of 17
and other methods of communications, for water, sewer and other private and publicly owned and
operated facilities for public service; 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, DO 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 Franchisee's equipment to be located within the public right -of-
way.
1.5 "FWRC" means the Federal Way Revised Code.
1.6 "Franchise Area" means only that portion of South West Dash Point 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 Washington State Parks and Recreation, a State Agency, and its
respective successors and assigns if consented to by the City of Federal Way as provided in Section
24 herein.
Ordinance No. 17 -829 Page 2 of 17
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. This Franchise does not permit Franchisee to
lease, rent, or otherwise allow use of conduits, space or capacity provided by the Facilities to other
third -party telecommunications providers, and Franchisee covenants and agrees that it will not do so.
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 public roads, streets, avenues, alleys, and
highways.
Section 4. Term
Subject to Franchisee filing its acceptance pursuant to Subsection 2.2, the term of this
Franchise shall be for a period of ten (10) years commencing on the effective date of this Franchise,
unless terminated earlier pursuant to this Franchise or other applicable law. At any time not more
than two (2) years before the expiration of the Franchise or renewed term either party may request a
Ordinance No. 17 -829 Page 3 of 17
renewal of the Franchise for an additional ten (10) year renewal period.
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 (such as
cellular antennae) to which the Facilities are connected shall be depicted on a map and submitted to
the City within thirty (30) days of the installation or modification of the Facilities. Upon written
request of the City, Franchisee shall update such map to reflect actual or anticipated improvements to
the system. Any such 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 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 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
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provisions, regulations, resolutions and rules, as now existing or as hereafter amended; and (3) as
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 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.
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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
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,
unless determined otherwise by the Director.
Within fifteen (15) 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
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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 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 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
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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,
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
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
Ordinance No. 17 -829 Page 8 of 17
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 thirty (30) days 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,
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
Ordinance No. 17 -829 Page 9 of 17
improvement as required in this section, the City may repair the damage 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
attributed to the right to occupy the 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
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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.
18.2 Future City of Federal Way Regulation. 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.
Section 19. Guarantee
Franchisee shall guarantee work completed by the Franchisee under this Franchise for a
period of 10 years against settlement or repair.
Section 20. Charge for Administrative Costs
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.
Ordinance No. 17 -829 Page 11 of 17
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 to the extent allowed by
law. 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 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.
Section 22. Insurance
The Washington State Parks and Recreation Commission, an agency of the State of
Ordinance No. 17 -829 Page 12 of 17
Washington, warrants that it is self - insured against liability claims in accordance with the risk
management and tort claims statutes, including RCW 4.92 and RCW 43.21.280 et seq
Section 23. General Provisions
23.1 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.
23.2 Modification. No provision of this Franchise may be amended or added to except by
agreement in writing signed by both of the Parties.
23.3 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.
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.
23.4 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.
23.5 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
Ordinance No. 17 -829 Page 13 of 17
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.
23.6 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.
23.7 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.
23.8 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:
Washington State Parks and Recreation
7150 Cleanwater Lane
P.O. Box 42650
Olympia, WA 98504 -2650
City of Federal Way
Attn: City Attorney
33325 8th Avenue South
Federal Way, WA 98003
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.
23.9 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.
23.10 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 24. Severability
Ordinance No. 17 -829 Page 14 of 17
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 25. Ratification
Any act consistent with the authority and prior to the effective date of this Franchise is hereby
ratified and affirmed.
Section 26. 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 3rd day of January, 2017.
ATTEST:
04041117-
LERK, STEPHANIE URTNEY, CMC
APPROVED AS TO FORM:
Ac41 CITY ATTORNEY, /44r4 7rAgiA.4 tk
FILED WITH THE CITY CLERK:
PASSED BY THE CITY COUNCIL:
PUBLISHED:
EFFECTIVE DATE:
ORDINANCE NO.:
Ordinance No. 17 -829
11/29/2016
01/03/2017
01/06/2017
02/06/2017
17 -829
Page 15 of 17
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 of the terms, conditions
and obligations contained therein.
DATED this day of , 201_.
By:
Its:
Ordinance No. 17 -829 Page 16 of 17
Attachment A
Dash Point State Park
Franchise Area
l,1 0 500 1,000
Feet
This map is accompanied by NO warranties.
Ordinance No. 17 -829
Page 17 of 17