Loading...
Ord 02-427 ORDINANCE NO. 02-..A2L 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 fTanchise fTom the City of Federal Way, in order to maintain, repair, and restore a portion of Williams Commurucations' fiber optic commurucations 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 fTanchise to oceupy rights of way within the City for the purposes of insta1ling, constructing, maintaining, repairing, and restoring a fiber optic commurucations system within the City; and WHEREAS, Williams Commurucations' fiber optic commurucations 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 Ordinance No. 02-A21.. Page 1 fiY.~~~ \\a\Yl¡BD¡IUt. 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 publie 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: Seetion 1 Definition. Where used in this Franehise 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. I.2 "Council" means the City of Federal Way Council acting in its official capacity. Ordinance No. 02-..421... Page 2 I.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. I.7 "Franchisee" means Tyco, and its successors and assigns if approved and/or permitted as provided in Section 24.3 herein. S""tion 2 C'.rantl A"""ptan"" 2.1 "ranI 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 fTanchise is specifically limited to the right for Tyco to maintain Facilities owned and operated by Tyco. Franchisee may not provide Ordinance No. 02-A21... Page 3 cable television or open video system services, unless it first obtains a cable television tTanchise or open video system tTanchise or agreement tTom the City. 2.2 Acœpt~nœ hy Fr~nchi«'.e. Franchisee shaH have no rights under this Franchise, nor shall Franchisee be bound by the terms and conditions of tills Franchise, unless Franchisee shall, within sixty (60) days after the effective date of this Franchise, file with the City its written acceptance ofthis Franchise and all of its terms and conditions. S..rtion 1 Non-Franrhi... Ar..a City Prl\P"rty 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. Section 4 Iwn Subject to Franchisee filing its acceptance pursuant to Subsection 2.2, the term of this Franchise shall be for a period often (10) years commencing on the effective date of tills Franchise, unless terminated earlier pursuant to tills Franchise or other applicable law. S..rtion "i T ,oration of Farmti... 5.1 Location. The Facilities will be installed underground pursuant to the Williams Communications tTanchise Ordinance No. 00-371. Upon written request of the City, Franchisee shall update "as-built" plans to reflect actual or antieipated improvements to the system. Any such Ordinance No. 02-~ Page 4 plans (or update thereof) so submitted shall be for informational purposes only and shall not obligate Franchisee to undertake any specific improvements, nor shall sueh 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 De.ign Marking., 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 Franehise 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. Sectinn (\ Noninterferenre of Facilitie. Franchisee agrees to maintain its Facilities and perform any and all activities authorized by this Franchise: (I) 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, fumchise 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. Ordinance No. 02-..422. Page 5 Section 7 Requirement to Obtain Permit. 7.1 Permit. am! Permit Application. 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 shaH 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, baekfill, 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 Ordinance No. 02-A21... Page 6 complete the work is subject to approval by the City as a condition of the issuance of the permit or approval. 7.2 Em"(gf'.n~y Fx~"f'tion to P"nnit R"qnir"m"nt. 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, hea1th 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 praeticable following cessation of the emergency. Sedion II Standard of P..rforman.... 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 pennission is first obtained from the Direetor of Public Works. In the event that Franchisee utilizes open cut or open trench construction methods, Franchisee shall not excavate for a distance of more than one hundred feet (100') without immediately backfilling and compacting to surface grade and city standards. Backfilled trench areas within a driving lane must be patched, either temporarily or permanently, before the end of the work day in which they have been opened. Trench areas within the right-of-way, but not with in a driving lane, must a1so 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 Ordinance No. 02-..421... Page 7 a minimum distance of300 feet ITom 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 Surve.y Markers and Monument< 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. Se~tion 10 Surfa~e Marking./Stake. Prior to Franchisee commencing any excavation work within the Franchise Area, Franehisee shall reference all monuments and markers relating to subdivisions, plats, highways, and other surveys. The reference points shaH be located so that they shaH 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 eost 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. Ordinance No. 02-.A21... Page 8 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 often (10) days after Franchisee receives written notice ITom 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 aU 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 eontractor. Section 12 Notice to Franchi.ee of Work hy City 12.1 f'.ity Rf'.<f,rvMion ofRi¡jIl.. 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. Ordinance No. 02-..42L Page 9 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 1Tom exercising such other powers and authorities granted to the City by the Washington State Constitution and general law. 12.2 Relo,,~tion ofFr~n"hi,ee', F~"ilitip.,. In the event that exercise of any of the rights reserved under Section 12. I aboye 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 C'.ity'd111tip., The City sha1l: (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 ofthe relocation in aecordance 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 Fr~n"hi,p'p'" f)l1tip.,. 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 Ordinance No. 02-..421.- Page 10 . established. If the City improves the right-of-way and, if directed by the City, Franchisee shall replace the Facilities with substitute Facilities eonforming 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 11 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. Ifthe 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 I I of this Agreement. Section 14 Dclault 14.1 Noti"" of])f'.fml1t. 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 sueh compliance and Franchisee shall have sixty (60) days from the receipt of Ordinance No. 02-..421... Page 11 such notice in which to comply. 14.2 Revocation of Fr"nchi.e. 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 1 "í T .imitell RigJ1t. 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. Sertion 1 {i Rminent 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. Sertion 17 YaJ:atinn 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 Franehisee, terminate this Franchise with respect to any such yacated area. Ordinance No. 02-~ Page 12 Section II! f'.ompliance with J ,aws 18.1 General. Franchisee shall comply with all applicable federal, state and City laws, fTanchises, 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 eondition of any City law, code, fTanchise, resolution, regulation, standard, procedure, permit or approval are in conflict, the term or condition of this Franchise shaJI 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 Fntnrp. f'.ity ofFp.np.ral Way Rp£J,lation. Subject to Section 18.1 above, Franchisee acknowledges that the City may develop rules, regulations, ordinances and speeifications 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. Sectinn 19 Gnarantee Franchisee shall guarantee work eompleted by the Franchisee under this Franchise for a period of IO years against settlement or repair including Facilities and right-of-way restoration; Ordinance No. 02-..42L Page 13 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 tTom imposing tTanchise 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 tTanchise 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 tTanchise or costs incurred by the City for actions undertaken in accordance with the tTanchise. 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 tTom charging administrative fees Ordinance No. 02-.ÆI2L Page 14 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 applieable 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 tTanchise 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 aboye, 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. Sertion 21 Jnrlemnifieation Franchisee agrees to indemnifY and hold harmless and defend the City, its elected officials, officers, employees, agents, and volunteers ftom 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 ftom, resulting ITOm, 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 Ordinance No. 02-..421... Page 15 claims or damages arising ITom 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 ofthree (3) years. S....tinn 22 Ins"ran.... 22.1 Minimum T imits. 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 Ordinance No. 02-..421... Page 16 damage; and (c) Automobile liability insuranee 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 Manrbtory TnRllrance ProviRionR. 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 roverae:e. Franchisee shall furnish the City with certificates of insuranee evidencing the eoverages 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 reeeived 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. Ordinance No. 02-.ÆI21... Page 17 S....tion 21 Bün.d Before executing this Franehise, 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- I 75 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. S....tion 24. r...n..raJ Provisions 24.1 Fntirf'. Agrf'.f'.mf'.Jlt. 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 shan be effective for any purpose. 24.2 MoeiificMion. No provision of this Franchise may be amended or added to except by agreement in writing signed by both of the Parties. 24.3 Assi£11mf'.Jlt "nei T f'."sing/Snhlf'."sine. 24.3.1 Assignmf'.nt. This Franchise may not be assigned or transferred without the prior, express, written approval of the City, whieh approval shall not be unreasonably withheld, Ordinance No. 02-A21... Page 18 provided that the Franchisee sha11 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 pereent (51%) or more of Franehisee'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 sha11 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 Ordinance No. 02-..421... Page 19 this Section as confidential and exempt fÌom 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 T P.H<ing/SllhlP.H<ing Notwithstanding the provIsIOns of Section 24.3.1 above, Franehisee 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 fi-anchise 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 fÌanchise requirements with said person or entity. Any lease or sublease entered into in violation of this subsection shall be void. 24.4 Attorn".}' Fp.p.<. 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 attomey, or files suit upon the same, the prevailing party shall be entitled to an award of ail reasonable attorneys' fees, costs and expenses. The venue for any dispute related to this Franehise 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-..421... Page 20 24.5 No Weiver. 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 waiye such breach or default, but such party shall have the right to declare any sueh 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 (joveming r ew. This Francmse shall be made in and shall be governed by and interpreted in accordance with the laws of the State of Washington. 24.7 .A.u.thm:i1¥, Each individual executing this Franchise on behalf of the City and Francmsee 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 Nati.J.=. 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: Russell D. Williams Director of Terrestrial Construction Tyco Networks (US) Inc. 10 Park Avenue Morristown, NY 07960 . City of Federal Way Attn: City Attorney 33530 1st Way South Federal WayWA 98003-6210 Mailing Address: P. O. Box 9718 Federal Way, W A 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-..422. 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 Remerlies rnmnbtive Any remedies provided for under the terms of this Franehise are not intended to be exclusive but shall be eumulative with all other remedies available to the City at law, in equity or by statute. Spdion 25 Spvprahility 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. Sprtion 2fi. Ratifiration 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 litlt day of Oct:ober , 2002. CITY OF FEDERAL WAY d~ ~RB~~ ATTEST: Ordinance No. 02-.!i21.-, Page 22 '>7 ~~M.- CITY CLERK, N. CHRlSTINE GREEN, CMC APPROVED AS TO FORM: ?~ú.~ . CITY ATTORNEY, PATRlCIA A. RlCHARDSON FILED WITH THE CITY CLERK: 9/24/02 PASSED BY THE CITY COUNCIL: 10/15/02 PUBLISHED:10/19/02. EFFECTIVE DATE: 11/14/02 ORDINANCE NO. 02-427 Ordinance No. 02-áZL..--, 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,ITeJecomltycomfumfinal Ordinance No. 02-~ Page 24 . EXHIBIT A Detailed plans ofthe Franehise Area are on file with the City of Federal Way Public Works Department. Ordinance No. 02-..421... Page 25 TYCO FIBER ROUTE FEDERAL WAY / KING KING COUNfy WASHINGTON / < . ( - kk v COUNTY PRO.JECT LOCATION 1:qca Telecommunications