Ord 02-427ORDINANCE NO. 02- 427
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF FEDERAL WAY,
WASHINGTON, GRANTING TYCO NETWORKS (US), INC., A NEVADA
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 MAINTAINING,
REPAIRING, AND RESTORING A FIBER OPTIC COMMUNICATIONS
SYSTEM WITHIN AND THROUGH THE CITY OF FEDERAL WAY.
WHEREAS, Tyco Networks (US) Inc., a Nevada corporation ("Tyco") has requested a
franchise from the City of Federal Way, in order to maintain, repair, and restore a portion of
Williams Communications' fiber optic communications system within the Military Road right-of-
way; and
WHEREAS, on August 1, 2000, the City Council enacted Ordinance No. 00-371, granting
Williams Communications a nonexclusive franchise to occupy rights of way within the City for the
purposes of installing, constructing, maintaining, repairing, and restoring a fiber optic
communications system within the City; and
WHEREAS, Williams Communications' fiber optic communications system consists of
twelve (12) underground conduits, of which ten (10) have a diameter of 1.50 inches and two (2)
have a diameter of 1.25 inches; the fiber running through the conduit, and appurtenant splice boxes;
and
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WHEREAS, Williams Communications has constructed and installed said fiber optic
communications system; and
WHEREAS, Section 24.3.1 of the Williams Communications' franchise requires that
Williams Communications obtain the City's approval before transferring or assigning any portion
of the communications system under the franchise Ordinance No. 00-37. and
WHEREAS, Williams Communications and Tyco entered into a joint built agreement
whereby Tyco will take title to four (4) of the ducts installed; 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 Tyco; 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:
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.
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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 four (4) underground lilac, grey, green and yellow conduits, of the twelve (12) underground
conduits authorized by Ordinance No. 00-371; and (b), the fiber running through the conduits as
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 Tyco, and its successors and assigns if approved and/or
permitted as provided in Section 24.3 herein.
Section 2. Grant/Acre tit ance
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 installing and maintaining the fiber
running through the Facilities within the Franchise Area. This franchise is specifically limited to
the right for Tyco to maintain Facilities owned and operated by Tyco. Franchisee may not provide
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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.
This Franchise does not and shall not convey any right to Franchisee to maintain its
Facilities on, under, over, across, or to otherwise use City -owned or leased properties of any kind
outside the Franchise Area, or to install Facilities on, under, over, across or otherwise use any City
owned or leased property within the Franchise Area other than the Military Road right-of-way
depicted in Exhibit A.
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.
5.1 Location. The Facilities will be installed underground pursuant to the Williams
Communications franchise Ordinance No. 00-371. Upon written request of the City, Franchisee
shall update "as -built' plans to reflect actual or anticipated improvements to the system. Any such
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plans (or update thereof) so submitted shall be for informational purposes only and shall not
obligate Franchisee to undertake any specific improvements, nor shall such plans be construed as a
proposal to undertake any specific improvements.
5.2 GIS Data. At such time as Franchisee develops or employs Geographic Information
System ("GIS") technology, Franchisee shall submit the information required in Subsection 5.1
above in digital GIS format, showing the location of its Facilities within the Franchise Area.
5.3 Design Markings. In the event the City desires to design new streets or
intersections, renovate existing streets, or make any other public improvements, Franchisee shall at
the City of Federal Way's reasonable request, provide the location of Franchisee's underground
Facilities within the Franchise Area by either field markings or by locating the Facilities on the
City's design drawings, and shall provide all other reasonable cooperation and assistance requested
by the City.
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.
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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 repaired, replaced or removed 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
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complete the work is subject to approval by the City as a condition of the issuance of the permit or
approval.
7.2 Emergency ExCeptiOn to Permit Requirement. In the event of an emergency in
which Franchisee's Facilities within the Franchise Area are in a condition as to immediately
endanger the property, life, health or safety of any individual, Franchisee may take action
immediately to correct the dangerous condition without first obtaining any required permit so long
as: (1) Franchisee informs the City of nature and extent of the emergency, and the work to be
performed, prior to commencing the work; and (2) such permit is obtained by Franchisee as soon
as practicable following cessation of the emergency.
Franchisee shall not utilize open cut or open trench construction methods for repairing,
replacing or removing 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. hi the event
that Franchisee utilizes open cut or open trench construction methods, Franchisee shall not excavate
for a distance of more than one hundred feet (100') without immediately backfilling and compacting
to surface grade and city standards. Backfilled trench areas within a driving lane must be patched,
either temporarily or permanently, before the end of the work day in which they have been opened.
Trench areas within the right-of-way, but not with in a driving lane, must also be patched within the
time limits specified by the City on the right-of-way use permit. Final surface restoration shall be
completed 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
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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.
$EClion 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 pemut, and as directed by the City. The cost of monuments or other
markers lost, destroyed, or disturbed, and the expense of replacement of the monuments, shall be
borne solely by the Franchisee. A complete set of reference notes for monuments and other ties
shall be filed with the City.
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In the event Franchisee fails to comply with any applicable federal, state or City laws,
ordinances, Hiles, regulations or standards or with any of the terms of this Franchise, and such
noncompliance continues for a period of ten (10) days after Franchisee receives written notice from
the City regarding the noncompliance, the City may, but in no event is the City obligated to, order
any work completed, including without limitation Franchisee's obligation to repair and Franchisee's
obligation to remove or relocate facilities. If the City causes such work to be done by its own
employees or by any person or entity other than Franchisee, Franchisee shall, upon the City's
written request, immediately reimburse the City for all reasonable costs and expenses incurred by
the City in having such work performed, which costs may include the City's reasonable overhead
expenses and attorneys fees. However, the City shall not have any electrical work accomplished by
any person or entity other than Franchisee or a qualified and licensed electrical contractor.
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.
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This Franchise is not an exclusive Franchise and shall not be construed to in any manner
prohibit the City from granting other and further Franchises in, under, over, upon, and along the
Franchise Area, nor from exercising such other powers and authorities granted to the City by the
Washington State Constitution and general law.
In the event that exercise of any of the rights reserved under Section 12.1 above
reasonably requires the City to construct, alter, repair, or improve the right-of-way ("City work"),
and the City work necessitates the relocation of the Facilities then existing in the Franchise Area,
the City may require Franchisee to relocate the Facilities, as provided herein.
12.2.1 City's Duties. The City shall:
(a) Provide written notice as soon as practicable of the requirement for
relocation and the date by which relocation shall be completed. The City shall calculate the date for
completion of the relocation in accordance with RCW 35.99.060(2) [2000 Laws, Ch. 83, Sec. 6(2)1;
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
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established. If the City improves the right-of-way and, if directed by the City, Franchisee shall
replace the Facilities with substitute Facilities conforming to the specifications for the improvement
of the right-of-way;
(b) bear all costs and expenses of the relocation and provision of substitute
Facilities, except as provided in RCW 35.99.060(3) and (4) [2000 Laws, Ch. 83, Sec. 6(3) and (4)].
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 to rights -of -way, the Franchisee
agrees to repair the damage at its own cost and expense. The Franchisee shall, upon discovery of
any such damage, immediately notify the City. The City will inspect the damage, and set a time
limit for completion of the repair. If the City discovers damage caused by the Franchisee to rights -
of -way, or to public and private improvements to rights -of -way, the City shall give the Franchisee
notice of the damage and set a time limit in which the Franchisee must repair the damage. In the
event the Franchisee does not repair a right-of-way or an improvement to a right-of-way as required
in this section, the City may repair the damage and recover the costs and expenses of such repair
from Franchisee in accordance with the provisions of Section 1 I of this Agreement.
Section 14. IZefauj(
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
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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.
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.
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.
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.
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Section 18_ Compliance with Laws
18.1 General. Franchisee shall comply with all applicable federal, state and City laws,
franchises, resolutions, regulations, standards and procedures, as now existing or hereafter amended
or adopted, including without limitation the State Environmental Policy Act; provided, however,
that if any term or condition of this Franchise and any term or condition of any City law, code,
franchise, resolution, regulation, standard, procedure, permit or approval are in conflict, the term or
condition of this Franchise shall control. City and Franchisee acknowledge and agree that the
terms, conditions and provisions of this Franchise are consistent with applicable law, including but
not limited to with the Telecommunications Act of 1996, existing Washington State statutes and
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 Way Regulation. ate. 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 govem 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;
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provided, however, Franchisee is not guaranteeing the provision of any specific
telecommunications services.
Section 20. 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 franchise 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, 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
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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.
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
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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.
Franchisee's selection of an attorney to defend any such claim, demand, suit or action shall be
subject to the City's approval, which shall not be unreasonably withheld. Franchisee shall not settle
or compromise any such suit or action except with prior written consent of the City, which shall not
be unreasonably withheld. The City shall have the right at all times to participate through its own
attorney in any suit or action which arises pursuant to this Franchise when the City determines that
such participation is required to protect the interest of the City or the public. In the event it is
determined that RCW 4.24.115 applies to this Franchise, Franchisee agrees to defend, hold
harmless and indemnify the City to the maximum extent permitted thereunder, to the full extent of
Franchisee's negligence. The provisions of this Section 21 shall survive the expiration or
termination of the Franchise for a period of three (3) years.
Section 22_ Insurance
22.1 Minimum Limit 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
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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 lncnranee provision¢. The comprehensive general liability insurance and
automobile liability insurance policies shall be endorsed to contain the following provisions:
(a) The City, its officers, elected officials, employees, and volunteers are to be
named as additional insureds;
(b) Coverage shall apply separately to each insured against whom claim is
made or suit is brought, except with respect to the limits of the insurer's liability;
(c) Coverage shall not be suspended, canceled, modified or reduced except after
thirty (30) days prior written notice to the City delivered by certified mail, return receipt requested;
and
(d) Coverage shall be primary as to the City, its officers, officials, employees
and volunteers. Any insurance or self-insurance by the City, its officers, officials, employees or
volunteers shall be in excess of Franchisee's required insurance.
22.3 Verification of Coverage. Franchisee shall furnish the City with certificates of
insurance evidencing the coverages required by this Section. The certificates shall be signed by a
person authorized by the insurer to bind coverage on its behalf and must be received and approved
by the City prior to the commencement of any work. At the City s request in the event of a claim,
Franchisee shall deliver certified copies of all required insurance policies.
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Section 2:3_ $nntl
Before executing this Franchise, the Franchisee shall post a bond in the amount of $50,000
in connection with the Facilities to guarantee performance of the 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 Sections 22-146 and 22-175 or as otherwise provided in
the City Code. In the event that the Franchisee fails to perform as required herein or by any permits
required 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 11, at the
City's sole discretion.
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 1 easing/Suhleasing.
24.3.1 Assignment. This Franchise may not be assigned or transferred without the
prior, express, written approval of the City, which approval shall not be unreasonably withheld,
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provided that the Franchisee shall have the right to mortgage its rights, benefits and privileges in
and under this Franchise to secure any indebtedness without notice or approval. Any attempted
assignment or transfer in violation of this section shall be void. The transfer of the rights and
obligations of Franchisee to a parent, subsidiary, affiliate, or to any successor -in -interest or entity
acquiring fifty-one percent (51%) or more of Franchisee's stock or assets, shall be deemed an
assignment. The City's review of a proposed assignment or transfer shall be based on the following
criteria: (i) the transferee shall have technical expertise, capabilities and financial strength to meet
the 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 herein. To the extent allowed by law or a court of competent jurisdiction,
the City shall treat documents and financial data provided by Franchisee for City evaluation under
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this Section as confidential and exempt from public disclosure. Within thirty (30) days of the date
of any approved assignment or transfer, Franchisee and assignee or transferee shall file written
notice of the assignment or transfer with the City together with written acceptance of all terms and
conditions of this Franchise.
24.3.2 Leasing Cnhleasinv. Notwithstanding the provisions of Section 24.3.1
above, Franchisee may lease or sublease a portion of the Facilities to other entities, provided that
Franchisee shall not permit any such lessee or sublessee to utilize or control the leased or subleased
Facilities until the lessee or sublessee has first obtained a franchise from the City. Franchisee shall
provide notice, as soon as practicable but in any event prior to entering into any lease or sublease, of
the name, mailing address and telephone number of any person or entity proposing or requesting to
lease or sublease any portion of the Facilities, so that the City may contact and discuss franchise
requirements with said person or entity. Any lease or sublease entered into in violation of this
subsection shall be void.
24.4 Attorney Fees. In the event the City or the Franchisee defaults on the perfonnance
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.
Ordinance No. 02-AZ_'L
Page 20
24.5 No Waives_ 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 1 aw. This Franchise shall be made in and shall be governed by and
interpreted in accordance with the laws of the State of Washington.
24.7 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:
Russell D. Williams
Director of Terrestrial Construction
Tyco Networks (US) Inc.
10 Park Avenue
Morristown, NY 07960
City:
City of Federal Way
Attn: City Attorney
33530 1 st Way South
Federal Way WA 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
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
Ordinance No. 02- 427
Page 21
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.
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.
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 L5�Lh day of
October ,2002.
CITY OF FEDERAL WAY
ATTEST:
Ordinance No. 02- 477
Page 22
� C
CITY CLERK, N. CHRISTINE GREEN, CMC
APPROVED AS TO FORM:
CITY ATTORNEY, PATRICIA A. RICHARDSON
FILED WITH THE CITY CLERK: 9/24/02
PASSED BY THE CITY COUNCIL: 10/15/02
PUBLISHED:10/ 19/o2
EFFECTIVE DATE: 11/14/02
ORDINANCE NO. 02-427
Ordinance No. 02-477
Page 23
ACCEPTANCE:
The undersigned hereby accepts all the rights and privileges of the above granted Franchise
and acknowledges that such rights and privileges are subject to and limited by all of the terms,
conditions and obligations contained therein.
DATED this _ day of 2002.
TYCO
By:
Its:
K ATeImom\tycomfranfinal
Ordinance No. 02- 427
Page 24
EXHIBIT A
Detailed plans of the Franchise Area are on file with the City of Federal Way Public Works
Department.
Ordinance No. 02- 427
Page 25
TYCO FIBER ROUTE
FEDERAL WAY KING COUNTY
KING COUNTY
WA(�PIKMTOKI
Telecommunications
CITY OF
Vr CITY HALL
33530 1 st Way South
PO Box 9718
March 5, 2003
Williams Communications, Inc.
Attn: Manager of Land & Records
110 West Seventh Street, Suite 500
Tulsa, OK 74119
Re: Fiber Optic Franchise
To Whom It May Concern:
(253) 661-4000
Federal Way, WA 98063-9718
(253) 661-4034
This letter is to inform you that the proposed TyCom Networks (US) Inc_ ("Tycom") Fiber
Optic Franchise detailed in Federal Way Ordinance 02-427, which was designed to
accommodate a Joint Build agreement made September 18, 2000, between TyCom and
Williams Communication, Inc. ("Williams"), is void for lack of acceptance and final approval.
In correspondence dated October 26, 2000, February 5, 2001, and April 4, 2001, Williams'
representatives notified the City of Federal Way that it had entered into a Joint Build
agreement with TyCom under which TyCom would take title to four of the seven fiber optic
ducts to be installed under Williams' Franchise No_ 00-371 _ Federal Way Ordinance 00-371,
which details the Williams Franchise, however, specifies that a transfer or assignment may
not be made without "prior, express, written approval of the City. — Any attempted
assignment or transfer in violation of this section shall be void." (24.3.1).
At Williams' request, the City took steps to accommodate the intent of the Williams/TyCom
agreement and, after negotiations with TyCom, put forward Ordinance 02-427. This
proposed ordinance would have assigned a portion of Williams' franchise to TyCom. The
ordinance was filed with the City Clerk September 24, 2002, passed by City Council October
15, 2002, and published October 19, 2002. Both Ordinance 00-371 and Ordinance 02-427
state that "within thirty (30) days of the date of any [City] approved assignment or transfer, the
Franchisee and assignee or transferee shall file written notice of the assignment or transfer
with the City together with written acceptance of all terms and conditions of this Franchise."
(24.3.1). The effective date of Ordinance 02-427 would have been November 14, 2002,
however, as of today's_date, TyCom has failed to file written acceptance of the franchise.
More than thirty days have passed; the proposed assignment of Franchise is, therefore,
invalid.
Whereas Ordinance 02-427 did not receive final approval (i.e. acceptance by TyCom), the
assignment is not valid and Williams Communications, Inc. shall maintain full responsibility for
all facilities and obligations under Ordinance 00-371.
Page 1 of 2
If you have any questions or concerns, please call my office at (253) 661-4034.
Sincerely,
Jennifer L. Tepker
Staff Attorney
cc: Russell D. Williams Leo Redmond
Director of Terrestrial Construction Manager, Global Sourcing
TyCom Networks (US) Inc. TyCom Networks (US) Inc.
10 Park Avenue 60 Columbia Turnpike Bldg A
Morristown, W07960 Morristown, NJ 07960
Page 2 of 2