HomeMy WebLinkAbout3010C=
0)
ORDINANCE NO. 10
AN ORDINANCE of the City of Kent,
Washington, granting unto MCI Telecommunications
Corporation, a Delaware corporation, its
successors and assigns, the right, privilege,
authority and franchise for ten years, to
construct, maintain, operate, replace and
repair an underground fiber optic cable
telecommunications system, in, across, under,
through and below certain designated public
rights-of-way and public properties of the City
of Kent, Washington.
THE CITY COUNCIL OF THE CITY OF KENT, WASHINGTON DOES
HEREBY ORDAIN AS FOLLOWS:
Section 1. Franchise Granted. The existing right-of-way
permit granted by the City of Kent, Washington (hereinafter the
if if d MCI T lecommunications Corporation a Delaware
City ), an e
corporation (hereinafter "MCI"), for utilization of streets,
avenues, rights-of-way, roads, alleys, lanes or other public
1places within the City of Kent is hereby cancelled as of 1-2-92
Pursuant to RCW 35A.47.040, the City hereby grants to
MCI, its heirs, successors, administrators, legal representatives
and assigns, subject to the terms and conditions set forth
hereinafter, a franchise for a period of ten years, commencing
January 2, 1992 and expiring January 2, 2002
0012 Nd ITO 5080938 AIMO9 9NIN W 004080 tO20-EO2O26
N
M
This franchise shall grant MCI the right, privilege and
authority to construct, operate, maintain, replace, and use all
necessary equipment and facilities thereto for an underground
fiber optic cable telecommunications system, in, under, on,
across, or below the public right-of-ways and public places
located in the City of Kent, more specifically described as
follows:
STREET DISTANCE LOCATION
76th Ave. So.
120
ft.
B.N.R.R.
R/W
Tracks
South 212th Street
110
ft.
B.N.R.R.
R/W
Tracks
South 228th Street
100
ft.
B.N.R.R.
R/W
Tracks
James Street
110
ft.
B.N.R.R.
R/W
Tracks
Smith Street
60
ft.
B.N.R.R.
R/W
Tracks
Meeker Street
60
ft.
B.N.R.R.
R/W
Tracks
West Gowe Street
60
ft.
B.N.R.R.
R/W
Tracks
West Titus Street
60
ft.
B.N.R.R.
R/W
Tracks
West Willis Street
66
ft.
B.N.R.R.
R/W
Tracks
South 259th Street
30
ft.
B.N.R.R.
R/W
Tracks
South 266th Street
30
ft.
B.N.R.R.
R/W
Tracks
The rights and privileges granted under this franchise
shall not convey any right to MCI for the use of City -owned,
leased or operated properties outside of the franchise area
described above.
Section 2. Non -Exclusive Franchise Grant. This franchis,
is granted upon the express condition that it shall not in any
manner prevent the City from granting other or further franchises
in, along, over, through, under, below or across any of said
right-of-ways, streets, avenues or all other public lands and
properties of every type and description. Such franchise shall in
no way prevent or prohibit the City from using any of said roads,
streets or other public properties or affect its jurisdiction over
- 2 -
Q
O
O
C ..)
them or any part of them, and the City shall retain power to make
all necessary changes, relocations, repairs, maintenance,
establishment, improvement, dedication of same as the City may
deem fit, including the dedication, establishment, maintenance,
and improvement of all new rights -of -ways, thoroughfares and other
public properties of every type and description.
Section 3. Relocation of Fiber Optic Cable and
Telecommunications System Facilities. MCI agrees and covenants at
its sole cost and expense, to protect, support, temporarily
disconnect, relocate or remove from any street any of its
installations when so required by the City by reason of traffic
conditions or public safety, dedications of new right-of-ways and
the establishment and improvement thereof, freeway construction,
change or establishment of street grade, or the construction of
any public improvement or structure by any governmental agency
acting in a governmental capacity, provided that MCI shall in all
such cases have the privilege to temporarily bypass, in the
authorized portion of the same street upon approval by the City,
any section of cable required to be temporarily disconnected or
removed.
If the City determines that the project necessitates the
relocation of MCI's then existing facilities, the City shall:
a) At least sixty (60) days prior to the commencement
of such improvement project, provide MCI with written notice
requiring such relocation; and
b) Provide MCI with copies of pertinent portions of the
plans and specifications for such improvement project and a
- 3 -
proposed location for MCI's facilities so that MCI may relocate
its facilities in other City right-of-way in order to accommodate
such improvement project.
C) After receipt of such notice and such plans and
specifications, MCI shall complete relocation of its facilities at,
no charge or expense to the City so as to accommodate the
improvement project at least ten (10) days prior to commencement
of the project.
MCI may, after receipt of written notice requesting
a relocation of its facilities, submit to the City written
alternatives to such relocation. The City shall evaluate such
alternatives and advise MCI in writing if one or more of the
alternatives is suitable to accommodate the work which would
otherwise necessitate relocation of the facilities. If so
requested by the City, MCI shall submit additional information to
assist the City in making such evaluation. The City shall give
each alternative proposed by MCI full and fair consideration. In
the event the City ultimately determines that there is no other
reasonable alternative, MCI shall relocate its facilities as
otherwise provided in this Section.
The provisions of this Section shall in no manner
preclude or restrict MCI from making any arrangements it may deem
appropriate when responding to a request for relocation of its
facilities by any person or entity other than the City, where the
facilities to be constructed by said person or entity are not or
will not become City -owned, operated or maintained facilities,
provided that such arrangements do not unduly delay a City
construction project.
- 4 -
O
C'%J
C=
Cn
a
CV
Q
M
Section 4. MCI's Maps and Records. As a condition of
this franchise, MCI shall provide to the City at no cost, a copy
of its current as built plans, maps and records of its fiber optic)
cable system and facilities as they exist on the date of this
franchise agreement in the City. All such as built plans, maps
and records will be available to the City upon request.
Section 5. Excavations. During any period of relocation
or maintenance, all surface structures, if any, shall be erected
and used in such places and positions within said public right-of-
ways and other public properties so as to interfere as little as
possible with the free passage of traffic and the free use of
adjoining property, and MCI shall at all times post and maintain
proper barricades and comply with all applicable safety
regulations during such period of construction as required by the
ordinances of the City or the laws of the State of Washington,
including RCW 39.04.180 for the construction of trench safety
systems.
Whenever MCI shall excavate in any public right-of-way or
other public property for the purpose of installation, con-
struction, repair, maintenance or relocation of its cable or
equipment, it shall apply to the City for a permit to do so and
shall give the City at least three (3) working days notice
thereof. In no case shall any work commence within any public
right-of-way or other public property without a permit, except as
otherwise provided in this franchise ordinance. During the
progress of the work, MCI shall not unnecessarily obstruct the
passage or proper use of the right-of-way, and shall file as built
plans or maps with the City showing the proposed and final
location of the cable.
- 5 -
"t -
O
C
O
O
If either the City or MCI shall at any time plan to make
excavations in any area covered by this franchise and as described
in this section, the party planning such excavation shall afford
the other, upon receipt of a written request to do so, an
opportunity to share such excavation, PROVIDED THAT: (1) such
joint use shall not unreasonably delay the work of the party
causing the excavation to be made; (2) such joint use shall be
arranged and accomplished on terms and conditions satisfactory to
both parties; and (3) either party may deny such request for
safety reasons.
Section 6. Restoration after Construction. MCI shall,
after abandonment approved under Section 11 herein, or
installation, construction, relocation, maintenance, or repair of
cable/facilities within the franchise area, restore the surface of
the right-of-way or public property to at least the condition same
was in immediately prior to any such installation, construction,
relocation, maintenance or repair. All concrete encased monuments
which have been disturbed or displaced by such work shall be
restored pursuant to all federal, state and local standards and
ispecifications. MCI agrees to promptly complete all restoration
jwork and to promptly repair any damage caused by such work to the
franchise area or other affected area at its sole cost and expense
Section 7. Emergency Work -- Permit Waiver. In the
event of any emergency in which any facilities located in or under
i
any street, breaks, are damaged, or if MCI's construction area is
otherwise in such a condition as to immediately endanger the
property, life, health or safety of any individual, MCI shall
immediately take the proper emergency measures to repair its
O
O
O
CIQQ
facilities, to cure or remedy the dangerous conditions for the
protection of property, life, health or safety of individuals
without first applying for and obtaining a permit as required by
this franchise. However, this shall not relieve MCI from the
requirement of obtaining any permits necessary for this purpose,
and MCI shall apply for all such permits not later than the next
succeeding day during which the Kent City Hall is open for
business.
Section 8. Dangerous Conditions, Authority for City to
Abate. Whenever construction, installation or excavation of
facilities authorized by this franchise has caused or contributed
to a condition that appears to substantially impair the lateral
support of the adjoining street or public place, or endangers the
public, an adjoining public place, street utilities or City
property, the Public Works Director may direct MCI, at MCI's own
expense, to take actions to protect the public, adjacent public
places, City property or street utilities; and such action may
include compliance within a prescribed time.
In the event that MCI fails or refuses to promptly take
the actions directed by the City, or fails to fully comply with
such directions, or if emergency conditions exist which require
immediate action, the City may enter upon the property and take
such actions as are necessary to protect the public, the adjacent
streets, or street utilities, or to maintain the lateral support
thereof, or actions regarded as necessary safety precautions; and
MCI shall be liable to the City for the costs thereof.
- 7 -
N
O
CIQM
Section 9. Recovery of Costs. MCI shall pay a filing
fee for the City's administrative costs in drafting and processing
this franchise agreement and all work related thereto. MCI shall
further be subject to all permit fees associated with activities
undertaken through the authority granted in this franchise
ordinance or under the laws of the City. Where the City incurs
costs and expenses for review, inspection or supervision of
activities undertaken through the authority granted in this
franchise or any ordinances relating to the subject for which a
permit fee is not established, MCI shall pay such costs and
expenses directly to the City. In addition to the above, MCI
shall promptly reimburse the City for any and all costs it
reasonably incurs in response to any emergency involving MCI's
cable and facilities.
Section 10. City's Reservation of Rights. Pursuant to
Section 35.21.860 of the Revised Code of Washington (RCW), the
City is precluded from imposing a franchise fee on a telephone
business as defined in RCW 82.04.065, except for administrative
expenses or any tax authorized by RCW 35.21.865. MCI hereby
warrants that its operations as authorized under this franchise
are those of a telephone business as defined in RCW 82.04.065.
a result, the City will not impose a franchise fee under the tel
of this ordinance, other than as described herein.
However, the City hereby reserves its right to impose a
franchise fee on MCI for purposes other than to recover its
administrative expenses or taxing, if MCI's operations as
authorized by this franchise change so that not all uses of the
franchise are those of a 'telephone business' as defined in RCW
82.04.065; or, if statutory prohibitions on the imposition of su
fees are removed. In the former instance, the City reserves its
right to require that MCI obtain a separate franchise for its
- 8 -
q4tf-
O
O
O
CNJO
change in use, which franchise may include provisions intended to
regulate MCI's operations, as allowed under applicable law.
Section 11. Indemnification. MCI hereby releases,
covenants not to bring suit and agrees to indemnify, defend and
hold harmless the City, its officers, employees, agents and
representatives from any and all claims, costs, judgments, awards
or liability to any person, including claims by MCI's own
employees to which MCI might otherwise be immune under Title 51
RCW, arising from injury or death of any person or damage to
property of which the negligent acts or omissions of MCI, its
agents, servants, officers or employees in performing this
franchise are the proximate cause. MCI further releases,
covenants not to bring suit and agrees to indemnify, defend and
hold harmless the City, its officers and employees from any and
all claims, costs, judgments, awards or liability to any person
(including claims by MCI's own employees, including those claims
to which MCI might otherwise have immunity under Title 51 RCW)
arising against the City solely by virtue of the City's ownership
or control of the rights-of-way or other public properties, by
virtue of MCI's exercise of the rights granted herein, or by
virtue of the City's permitting MCI's use of the City's
rights-of-way or other public property based upon the inspection
or lack of inspection of work performed by MCI, its agents and
servants, officers or employees in connection with work authorized
on the City's property or property over which the City has
control, pursuant to this franchise or pursuant to any other
permit or approval issued in connection with this franchise. This
covenant of indemnification shall include, but not be limited by
this reference, claims against the City arising as a result of the
negligent acts or omissions of MCI, its agents, servants, officers
or employees in barricading, instituting trench safety systems or
providing other adequate warnings of any excavation, construction,
O
O
O
CV
O
C'\!
M
or work in any public right-of-way or other public place in
performance of work or services permitted under this franchise.
Inspection or acceptance by the City of any work
performed by MCI at the time of completion of construction shall
not be grounds for avoidance of any of these covenants of
indemnification. Said indemnification obligations shall extend
claims which are not reduced to a suit and any claims which may
compromised prior to the culmination of any litigation or the
[institution of any litigation.
In the event that MCI refuses the tender of defense in
any suit or any claim, said tender having been made pursuant to
the indemnification clauses contained herein, and said refusal is
subsequently determined by a court having jurisdiction (or such
other tribunal that the parties shall agree to decide the matter),
to have been a wrongful refusal on the part of MCI, then MCI shall
pay all of the City's costs for defense of the action, including
all reasonable expert witness fees and reasonable attorneys' fees
and the reasonable costs of the City, including reasonable
attorneys' fees of recovering under this indemnification clause.
Should a court of competent jurisdiction determine that
this franchise agreement is subject to RCW 4.24.115, then, in the
event of liability for damages arising out of bodily injury to
persons or damages to property caused by or resulting from the
concurrent negligence of MCI and the City, its officers, employee:
and agents, MCI's liability hereunder shall be only to the extent
of MCI's negligence. It is further specifically and expressly
understood that the indemnification provided herein constitutes
MCI's waiver of immunity under Title 51 RCW, solely for the
purposes of this indemnification. This waiver has been mutually
negotiated by the parties.
- 10 -
N
O
M
N
O
O-)
The provisions of this Section shall survive the
expiration or termination of this franchise agreement.
Section 12. Insurance. MCI shall procure and maintain
for the duration of the franchise, insurance against claims for
injuries to persons or damages to property which may arise from or
in connection with the exercise of the rights, privileges and
authority granted hereunder to MCI, its agents, representatives or
employees. MCI shall provide a copy of such insurance policy to
the City for its inspection prior to the adoption of this
Ifranchise ordinance, and such insurance shall evidence:
1. Automobile Liability insurance with limits no less
than $1,000,000 Combined Single Limit per accident
for bodily injury and property damage; and
2. Commercial General Liability insurance policy
written on an occurrence basis with limits no less
than $1,000,000 Combined Single Limit per occurrence
and $1,000,000 aggregate for personal injury, bodily
injury and property damage. Coverage shall include
but not be limited to: blanket contractual;
products/completed operations; broad form property;
explosion, collapse and underground (XCU); and
Employer's Liability.
Any deductibles or self-insured retentions must be
declared to and approved by the City. Payment of deductible or
self-insured retention shall be the sole responsibility of MCI.
The insurance obtained by MCI shall name the City, its
officers, employees and volunteers as insureds with regard to
activities performed by or on behalf of MCI. The coverage shall
mct
N
O
O
(11%j
C::)
CEJ
contain no special limitations on the scope of protection afforded
to the City, its officers, officials, employees or volunteers. In
addition, the insurance policy shall contain a clause stating that
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. MCI's insurance shall be primary
insurance as respects the City, its officers, officials, employees
and volunteers. Any insurance maintained by the City, its
officers, officials, employees or volunteers shall be excess of
MCI's insurance and shall not contribute with it. The insurance
policy or polices required by this clause shall be endorsed to
state that coverage shall not be suspended, voided, cancelled by
either party, reduced in coverage or in limits except after thirty
(30) days' prior written notice by certified mail, return receipt
requested, has been given to the City.
Any failure to comply with the reporting provisions of
the policies required herein shall not affect coverage provided
the City, its officers, officials, employees or volunteers.
Section 13. Abandonment of MCI's Cable or
Telecommunication Svstem Facilities. No cable, section of cable
or facility laid in the street by MCI may be abandoned by MCI
without the express written consent of the City. Any plan for
abandonment or removal of MCI's cable and facilities must be fir
approved by the Public Works Director, and all necessary permits
must be obtained prior to such work.
Section 14. Bond. Before undertaking any of the work,
installation, improvements, construction, repair, relocation or
maintenance authorized by this franchise, MCI shall, upon the
request of the City, furnish a bond executed by MCI and a
corporate surety authorized to do a surety business in the State
- 12 -
of Washington, in a sum to be set and approved by the Director of
Public Works as sufficient to ensure performance of MCI's
obligations under this franchise. The bond shall be conditioned
so that MCI shall observe all the covenants, terms and conditions
and faithfully perform all of the obligations of this franchise,
and to erect or replace any defective work or materials discovere
in the replacement of the City's streets or property within a
period of two years from the date of the replacement and
acceptance of such repaired streets by the City.
Section 15. Modification. The City and MCI hereby
reserve the right to alter, amend or modify the terms and
conditions of this franchise upon written agreement of both
parties to such alteration, amendment or modification.
Section 16. Forfeiture and Revocation. If MCI willfully
violates or fails to comply with any of the provisions of this
franchise, or through willful or unreasonable negligence fails to
heed or comply with any notice given MCI by the City under the
provisions of this franchise, then MCI shall, at the election of
the Kent City Council, forfeit all rights conferred hereunder and
this franchise may be revoked or annulled by the Council after a
hearing held upon reasonable notice to MCI. The City may elect,
in lieu of the above and without any prejudice to any of its other
legal rights and remedies, to obtain an order from the superior
court having jurisdiction compelling MCI to comply with the
provisions of this Ordinance and to recover damages and costs
incurred by the City by reason of MCI's failure to comply.
Section 17. Remedies to Enforce Compliance. In additio:
to any other remedy provided herein, the City reserves the right
to pursue any remedy to compel or force MCI and/or its successors
and assigns to comply with the terms hereof, and the pursuit of
- 13 -
any right or remedy by the City shall not prevent the City from
thereafter declaring a forfeiture or revocation for breach of the
conditions herein.
i Section 18. City Ordinances and Regulations. Nothing
herein shall be deemed to direct or restrict the City's ability to
adopt and enforce all necessary and appropriate ordinances
regulating the performance of the conditions of this franchise,
including any reasonable ordinance made in the exercise of its
police powers in the interest of public safety and for the welfare
of the public. The City shall have the authority at all times to
control by appropriate regulations the location, elevation, and
manner of construction and maintenance of any fiber optic cable ox
cable facilities by MCI, and MCI shall promptly conform with all
such regulations, unless compliance would cause MCI to violate
other requirements of law.
O
OSection 19. Cost of Publication. The cost of the
Opublication of this Ordinance shall be borne by MCI.
O
N
Cr, Section 20. Acceptance. After the passage and approval
of this Ordinance and within sixty days after such approval, this
franchise shall be accepted by MCI by its filing with the City
Clerk an unconditional written acceptance thereof. Failure of MC
I to so accept this franchise within said period of time shall be
deemed a rejection thereof by MCI, and the rights and privileges
herein granted shall, after the expiration of the sixty day
period, absolutely cease and determine, unless the time period is
extended by ordinance duly passed for that purpose.
Section 21. Survival. All of the provisions, conditia
and requirements of Sections 9, 10, 11, and 12 of this franchise
shall be in addition to any and all other obligations and
- 14 -
liabilities MCI may have to the City at common law, by statute, or
by contract, and shall survive the City's franchise to MCI for the
use of the areas mentioned in Section 1 herein, and any renewals
or extensions thereof. All of the provisions, conditions,
regulations and requirements contained in this franchise Ordinance
shall further be binding upon the heirs, successors, executors,
administrators, legal representatives and assigns of MCI and all
privileges, as well as all obligations and liabilities of MCI
shall inure to its heirs, successors and assigns equally as if
they were specifically mentioned wherever MCI is named herein.
Section 22. Severability. If any section, sentence,
clause or phrase of this Ordinance should be held to be invalid or
N I unconstitutional by a court of competent jurisdiction, such
C=) invalidity or unconstitutionality shall not affect the validity or
M
CD constitutionality of any other section, sentence, clause or phrase
fV
CD of this franchise Ordinance. In the event that any of the
provisions of this franchise are held to be invalid by a court of
Icompetent jurisdiction, the City reserves the right to reconsider
the grant of this franchise and may amend, repeal, add, replace or
iimodify any other provision of this franchise, or may terminate
Iithis franchise.
Section 23. Assianment. This agreement may not be
assigned or transferred without the written approval of the City,
except MCI may freely assign this Agreement in whole or in part t
a parent, subsidiary, or affiliated corporation or as part of any
corporate reorganization or refinancing. MCI shall provide
written notice to the City of any such assignment.
Section 24. Notice. Any notice or information required
or permitted to be given to the parties under this franchise
- 15 -
agreement may be sent to the following addresses unless otherwise
specified:
City of Kent
Director of Public Works
300 West Gowe
Kent, WA 98032
MCI Telecommunications Corp.
Site Route Management
Department 1103
400 International Parkway
Richardson, Texas 75081
MCI Telecommunications Corp.
Office of General Counsel
Real Estate Administrator
1133 - 19th Street NW
Washington D.0 20036
Section 25. Effective Date. This Ordinance shall take
.,� effect on January 2, 1992 or thirty (30) days after its
N execution; having first been submitted to the Kent City Attorney;
having been granted by the approving vote of at least a majority
Nof the City Council at a regular meeting and after introduction
on November 19, 1991; and after having been published at least
Cn
once in a newspaper of general circulation in the City of Kent.
D KELLEHER, MAYOR
ATTEST:
BRENDA JACOBER; D UTY CITY CLERK
I
- 16 -
APPROVED AS TO FORM:
.�.) PASSED the r day ofkLa--12�2�-J' 1991.
O) '
CV APPROVED the day of , 1991.
1991.
O ' PUBLISHED the day of
I hereby certify that this is a true copy of Ord
I
• 1 No, Uig; passed by the City Council of the City of Kent,
Washington, and approved by the Mayor of the City of Kent as
indicated.
9560-340
BRENDA JACOBtR,
- 17 -
a. (;c��'L ( SEAL)
DEPUTY CITY CLI