Ord 00-371
ORDINANCE NO. 00-371
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 F ed~al Way finds that it is in the public interest to grant
such a lÌ"anchise, 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) ar. underground fiber optic communication system
comprised of twelve (12) underground conduits, of which ten have a diameter of 1.50 inches and
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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 hereto and in plans on file with the City of
Federal Way 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 "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 in plans on file with
the City of Federal Way in File No. 00-103793 UP, and/or any other areas approved by the Federal
Way City Council and incorporated into this Ordinance via amendment.
1.7 "Franchisee" means 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 lÌ"anchise or open video system franchise or
agreement from the City.
2.2 Acceptance bv 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-FranchiseArea 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
ExhibitA.
Section 4. Term
Subject to Franchisee filing its acceptance pursuant to Subsection2.2, the term of this
Franchise shall be for a period of ten (10) years commencing on the effective date of this Franchise,
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unless terminated earlier pursuant to this Franchise or other applicable law.
Section S. 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
on "as-built" plans submitted to the City within ninety (90) days ofthe installation of the Facilities.
The "as-built" plans shall be stamped by a Professional Engineer licensed by the State of
Washington. Upon written request of the City, Franchisee shall update such "as-built" plans to
reflect actual or anticipated improvements to the system. Any 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 !he 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. ReQuirementto Obtain Permits
7.1 Permits and Permit Aoolications. 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
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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 subjectto approval by the City as a condition of the issuance of the
permit or approval.
7.2 Emergencv Exceotion 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: (I) 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: (I) required by an emergency; or (2) unless boring is not technically feasible and
permission is first obtained 1Ì"0m 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 wi,h 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
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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 Markin!!s/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. Ri!!htofCitv to Comolete 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 1Ì"0m
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.
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Section 12. Notice to Franchisee of Work bv City
12,1 City Reservation of Right& 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 of Franchisee's Facilitie&
In the event that exercise of any of the rights reserved under Section 12. I above
reasonably requires the City to construct, alter, repair, or improve the right-of-way ("City work"),
and the City work necessitates the relocation of the Facilities then existing in the Franchise Area,
the City may require Franchisee to relocate the Facilities, as provided herein.
12.2.1 City's Duties. The City shall:
(a) Provide written notice as soon as practicable of the requirement for
relocation and the date by which relocation shall be completed. The City shall calculate the date for
completion of the relocation in accordance with RCW 35.99.060(2) [2000 Laws, Ch. 83, Sec. 6(2)];
and
(b) Provide Franchisee with copies of pertinent portions of the City's plans
and specifications so that Franchisee may relocate its Facilities to accommodate the City work.
12.2.2 Franchisee's Duties. Franchisee shall:
(a) No later than the date set by the City for completion of the relocation
(unless adjusted by the City or a reviewing court pursuant to RCW 35.99.060(2) [2000 Laws, Ch.
83, Sec. 6(2)], 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,
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(b) bear all costs and expenses of the relocation and provision of substitute
Facilities, except as provided in RCW 35,99,060(3) and (4) [2000 Laws, Ch. 83, Sec. 6(3) and (4)].
Section 13. Damal!:e Reo air
In case of damage by the Franchisee, its agents or employees or by the Facilities of the
Franchisee to rights-of-way, or to public and private improvements to rights-of-way, the Franchisee
agrees to repair the damage at its own cost and expense. The Franchisee shall, upon discovery of
any such damage, immediately notify the City. The City will inspect the damage, and set a time
limit for completion ofthe 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 Ril!:hts
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
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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. Comvliance 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
2000 Laws Ch. 83 (as 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 Wav 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.
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
tel eco mm uni cations 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 35.21.860(1) [2000 Laws, Ch. 83, Sec.8(1)], the City is currently
precluded from imposing lÌ"anchise fees for "telephone businesses" defined in RCW 82.04.065 and
Service Providers as defined in RCW 35.99.010(6) and RCW 35.21.860(1) [2000 Laws Ch. 83,
Sec, 1 (6) and 8(1)], 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,
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including reasonable overhead costs associated with the administration of this franchise or costs
incurred by the City for actions undertaken in accordance with the franchise, These costs shall
include, but not be limited to wages, benefits, equipment and supplies for activities such as plan
review, permit processing and permit inspections. Such costs shall be billed to Franchisee on a
quarterly basis and Franchisee shall pay such costs within thirty (30) days of receipt of such bills.
Each bill shall include verifiable detail as to the nature of the costs incurred. Failure by Franchisee
to make full payment of bills within the time specified shall be considered sufficient grounds for the
termination of all rights and privileges existing under this Franchise. Franchisee also agrees to pay
a fee or a charge to 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 Citv 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 hereto and in
plans on file with the City of Federal Way in ROW - Telecom. Permit No. 00-104 I 71 -00- TR
("City Facilities"). Franchisee will provide that portion of the City Facilities located outside the
City boundaries only if the City Council approves this Franchise, and the City approves permits
necessary for construction of the Facilities, by August 15, 2000. It is understood and agreed that
this provision does not commit the City to approve this Franchise, such action being within the sole
and exclusive discretion of the City Council of the City of Federal Way. Franchisee and the City
agree to cooperate in good faith to ensure that all permit applications, documents and information
required for permit approvals are submitted within the timeframe necessary to facilitate approval by
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August 15,2000.
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 and implied warranties, including
but 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 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 television service for hire, sale, or resale to the general public.
Franchisee shall be responsible for obtaining all necessary permits, franchises, and/or approvals
necessary for installation of the City Facilities; the City shall cooperate in providing any
information or documents necessary for such permits, lÌ"anchises, and/or approvals. Within the
borders of the City, the City Facilities shall be installed alongside and concurrently with the
Facilities. 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 Section 21, the City shall promptly notifY Franchisee thereof.
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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 4.24.1 15 applies to this Franchise, Franchisee agrees to defend, hold
harmless and indemnifY the City to the maximum extent permitted thereunder, to the full extent of
Franchisee's negligence. The provisions of this Section 21 shall survive the expiration or
termination of the Franchise for a period of three (3) years.
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 $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 Provisions. The comprehensive general liability insurance and
automobile liability insurance policies shall be endorsed to contain the following provisions:
(a) The City, its officers, elected officials, employees, and volunteers are to be
named as additional insureds;
(b) Coverage shall apply separately to each insured against whom 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,
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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 pei"son 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 and 22-175 or as otherwise provided in the City Code. In the event that the
Franchisee fails to perform as required herein or by any permits required by Section 7, the City may
perform the work as provided in Section 11 above, and may have recourse to the bond in addition
to or in lieu of the remedies provided in Section I I, at the City's sole discretion.
Section 24. General Provisions
24. I 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 ISubleasing
24.3. I 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-interestor entity acquiring fifty-one percent (51 %) or
more of Franchisee's stock or assets, shall be deemed an assignment. The
Ordinance No. 00-371, Page 12
K:ltelecomlwilliamsftan.fm
24,3.2
City's review of a proposed assignment or transfer shall be based on the
following criteria: (i) the transferee shall have technical expertise,
capabilities and financial strength to meet the obligations of the Franchise
and being at least equal to or greater than that of Franchisee during the
twelve (12) months prior to the transfer; and (ii) the proposed transferee's
record of performance under similar agreements. Further, the transferee
shall assume all of the obligations of Franchisee hereunder, and Franchisee
shall not be released from the obligations of this Franchise by virtue of such
transfer until the City consents to such transfer or assignment. Franchisee
shall give to the City thirty (30) days' prior written notice of any such
proposed assignment or transfer and shall provide all necessary information
to the City, including financial data, in order to enable the City to evaluate
whether the proposed transferee satisfies the foregoing criteria. The City
shall take action on the proposed assignment or transfer no later than ninety
(90) days of receipt of all necessary information. In the case of any
proposed transfer for which the City' 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. I hereill. To the extent,
allowed by law or a court of competent jurisdiction, the City shall treat
documents and financial data provided by Franchisee for City evaluation
under this Section as confidential and exempt [¡-om 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.
Leasing I Subleasinl!. 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 [¡-anchise [¡-om 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
Ordinance No. 00-371, Page 13
K:ltelecomlwilliamsfran.fm
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 ofthis subsection shall be void.
24.4 Attornev Fees. In the event the City or the Franchisee defaults on the performance
of any terms in this Franchise, and the Franchisee or the City places the enforcement of the
Franchise or any part thereof or for the collection of any monies due, or to become due hereunder,
in the hands of an attorney, or files suit upon the same, the prevailing party shall be entitled to an
award of all reasonable attorneys' fees, costs and expenses. The venue for any dispute related to
this Franchise shall be King County, Washington, unless a court of competent jurisdiction
determines that an administrative agency outside of King County has primary jurisdiction, in which
case venue shall be said administrative agency,
24.5 No Waiver. Failure of either party to declare any breach or default by the other
party immediately upon the occurrence thereof, or delay in taking any action in connection
therewith, shall not waive such breach or default, but such party shall have the right to declare any
such breach or default at any time. Failure of either party to declare one breach or default does not
act as a waiver of such party's right to declare another breach or default.
24.6 Governing Law. This Franchise shall be made in and shall be governed by and
interpreted in accordance with the laws of the State of Washington,
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:
Williams Communications, Inc. City of Federal Way
Attn: Manager of Land & Records Attn: City Attorney
110 West Seventh Street, Suite 500 33530 1st Way South
Tulsa OK 74II9 FederalWayWA 98003-6210
Mailing Address:
P. O. Box 9718
Federal Way, WA 98063-9718
Any notices may be delivered personally to the addressee of the notice or may be deposited
in the United States mail, postage prepaid, to the address set forth herein, Any notice so posted in
Ordinance No. 00-371, Page 14
, K:ltelecomlwilliamsfran.fin
the United States mail shall be deemed received three (3) days after the date of mailing.
24.9 Caotions. 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.
PASSED by the City Council of the City of Federal Way this 1st
AU2ust ,2000.
day of
CITY OF FEDERAL WAY
~~y~/¿ /
MAYOR, MIKE
APPROVED AS TO FORM:
--sr¡ c. r ~
INTERIM CITY ATTORNEY, BOB C. STERBANK
Ordinance No. 00-371, Page 15
K:\telecom\williamsfran,fin
FILED WITH THE CITY CLERK.: 07/13/00
PASSED BY THE CITY COUNCIL: 08/01/00
PUBLISHED: 08/05/00
EFFECTIVE DATE: 08/23/00
ORDlNANCENO. 00-371
Ordinance No. 00-371, Page 16
K:ltelecomlwilliamsfÌ'an,fm
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.
DATEDthis.;B'~aYOf Ú-~
WILLIAMS COMMUNICATIONS,INc.
,2000.
By: ~/~
Its: Iii """1- I;, fA <-t
(7
Ordinance No. 00-371, Page 17
K:ltelecomlwilliamsfran,fm
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