Req.#12777
O"INANCENO. 27957
AN ORDINANCE relating to communications facilities, electrical power
2 transmission, and use of City right-of-way; granting to the Puyallup Tribe of
Indians the nonexclusive right, privilege, and authority through a limited
3 franchise to install conduits in East "R" Street between East 29th Street and
4 East 32nd Street for the future development of a private electrical and
communications network.
5
WHEREAS the Puyallup Tribe of Indians ("Puyallup Tribe") is obtaining
6
permit approval to construct road and infrastructure improvements to the
7
8 East "R" Street right-of-way, and
9 WHEREAS, as part of this project, the Puyallup Tribe would like to install
10 conduits into East "R" Street for the future development of a private electrical
11 and communications network, and
12 WHEREAS a limited franchise is required to allow the Puyallup Tribe to
13
occupy City right-of-way with private utility infrastructure, and
14
WHEREAS General Government and Public Utilities staff have reviewed
1 5
16 the plans for installation of the conduits and have determined that the plans do
1 7 not interfere with the City's current or planned use of the East "R" Street
18 right-of-way, and
19 WHEREAS the City and the Puyallup Tribe have negotiated a franchise
20
agreement, which establishes the contractual and legal charges, terms, and
21
conditions for the construction, maintenance, and repair of its system in
22
23 conformance with applicable laws, City standards, and City codes; Now,
24 Therefore,
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BE IT ORDAINED BY THE CITY OF TACOMA:
2 Section 1. Definitions.
3 For the purposes of this Franchise and all exhibits attached hereto (all of which
are hereby incorporated herein by this reference), the following terms, phrases,
4 and words shall have the meaning given herein. When not inconsistent with the
context, words used in the present tense include the future, words in the plural
5 include the singular, and words in the singular include the plural. Words not
6 defined shall be given their common and ordinary meaning.
7 1.1 "Construct or Construction" shall mean initial installation, removing,
replacing, and repairing existing Facilities and may include, but are not limited
8 to, digging and/or excavating for the purposes of initial installation, removing,
9 replacing, and repairing existing conduit(s) and/or Facilities.
10 1.2 "Effective Date" shall mean the date designated herein, after passage, and
approval of this Ordinance and acceptance by Grantee, upon which the rights,
I I duties and obligations shall become effective and the date from which the time
requirement for any notice, extension and/or renewal will be measured.
12
13 1.3 "Facilities" shall mean the Grantee's conduit, raceways, appurtenances, and
all other Facilities necessary for the purpose of facilitating Grantee's utilities.
14
1.4 "Franchise" shall mean this Franchise and any amendments, exhibits, or
15 appendices to this Franchise.
16 1.5 "Franchise Area" means that certain area within the jurisdictional
17 boundaries of the Grantor designated on Exhibit A.
18 1.6 "Hazardous Substance" shall mean any hazardous, toxic, or dangerous
substance, material, waste, pollutant, or contaminant. The term shall specifically
19 include natural gas, petroleum and petroleum products and their bi-products,
residue, and remainder in whatever form or state. The term shall also be
20 interpreted to include any substance which, after release into the environment,
21 will or may reasonably be anticipated to cause death, disease, injury, sickness,
illness, behavior abnormalities or, genetic abnormalities.
22
1.7 "Maintenance" or "Maintain" shall mean examining, testing, inspecting,
23 repairing, maintaining and replacing the Facilities to be constructed or any part
24 thereof as required and necessary for safe operation of the Facilities.
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1.8 "Utility Corridor" shall mean the utility pathway through the Franchise Area
in which the conduit(s) and or Facilities of the Grantee are located, including
2 any Rights-of-Way, Public Property, and/or easement over and through private
property.
3
1.9 "Public Properties" shall mean the present and/or future property owned or
4 leased by Grantor within the present and/or future corporate limits or
jurisdictional boundaries of the Grantor that are to become part of the Franchise
5 Area.
6 1. 1 0 "Operate" or "Operations" shall mean the use of Grantee's Facilities to
7 supply utility services.
8 1. 1 1 "Rights-of-Way" means the surface and the space above and below
9 streets, roadways, highways, avenues, courts, lanes, alleys, sidewalks,
easements, rights-of-way and similar public property and areas located within
10 the Franchise Area.
I 1 Section 2. Grant of Authority.
1 2 2.1 Grantor hereby grants to Grantee, a sovereign, federally-recognized Tribal
1 3 government which is authorized to transact business within the State of
Washington, its successors and assigns (as provided in Section 4), the right,
1 4 privilege, authority and Franchise to Construct, Operate and Maintain the
Facilities in the Franchise Area.
1 5
2.2 This Franchise is non-exclusive. Grantor reserves all rights to its property,
16 including, without limitation, the right to grant additional Franchises, easements,
1 7 licenses and permits to others to use the Rights-of Way and Public Properties,
provided that the Grantor shall not grant any other Franchise, license,
18 easement or permit that would unreasonably interfere with Grantee's permitted
use under this Franchise. For purposes hereof, "unreasonably interfere" shall
19 not include any requirement to relocate the Facilities. This Franchise shall in no
20 manner prohibit the Grantor or limit its power to perform work upon its Rights-
of-Way, Public Properties or make all necessary changes, relocations, repairs,
maintenance, establishment, improvement thereto, or from using any of the
21 Rights-of Way and Public Properties, or any part of them, as the Grantor may
22 deem fit from time to time, including the dedication, establishment, maintenance
and improvement of all new Rights-of-Way and other Public Properties of every
23 type and description.
24 2.3 This Franchise is conditioned upon the terms and conditions contained
25 herein and Grantee's compliance with all applicable federal, state, local or other
regulatory programs that currently exist or may hereafter be enacted by any
26 regulatory agencies with jurisdiction over the Franchise Area.
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1 2.4 By granting this Franchise, the Grantor is not assuming any risks or
2 liabilities therefrom, all of which shall be solely and separately borne by
Grantee. Grantee agrees and covenants to, at its sole cost and expense, take
3 all necessary and prudent steps to protect, support, and keep safe from harm
its Facilities, or any part thereof, when necessary to protect the public health
4 and safety.
5 2.5 This Franchise is only intended to convey a limited right and interest. It is
6 not a warranty of title or interest in Grantor's Rights-of Way or other Public
Property. None of the rights granted herein shall affect the Grantor's jurisdiction
7 over its property, streets or Rights-of-Way.
8 2.6 The limited rights and privileges granted under this Franchise shall not
9 convey any right to Grantee to install any new Facilities without the express
written consent of Grantor.
10 Section 3. Term.
I I
Each of the provisions of this Franchise shall become effective upon the
12 Effective Date, subject to Grantee's acceptance of the terms and conditions of
13 this Franchise and shall remain in effect for twenty (20) years thereafter.
Subsequently, and in accordance with Tacoma Charter Article Vill, the City
14 Council will consider renewing this Franchise, at the written request of Grantee,
for an additional twenty (20) year renewal period at any time within two (2)
15 years before the end of the Franchise's original twenty (20) year term, unless
either party expresses its intention in writing to terminate this Franchise at the
16 conclusion of the original twenty (20) year term.
17 Section 4. Assignment and Transfer of Franchise.
18
4.1 This Franchise shall not be leased, assigned or otherwise alienated without
19 the express consent of the Grantor by ordinance, which approval shall not be
20 unreasonably withheld.
21 4.2 Subject to the foregoing, Grantee and any proposed assignee or transferee
shall provide and certify the following to the City not less than 120 days prior to
22 the proposed date of transfer or assignment: (a) Complete information setting
forth the nature, terms and conditions of the proposed assignment or transfer;
23 (b) All information reasonably required by the City of a franchise applicant under
24 applicable City of Tacoma policies and the Tacoma Municipal Code ("TMC")
and City Charter with respect to the proposed assignee or transferee; c) Any
25 other information reasonably required by the City, including information about
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the proposed assignee's or transferee's safety record; and, d) An application
fee which shall be set by the City, plus any other costs actually and reasonably
incurred by the City in processing and investigating the proposed assignment or
2 transfer.
3
4.3 No transfer shall be approved unless the assignee or transferee has at least
4 the legal, technical, financial, and other requisite qualifications to carry on the
activities of the Grantee.
5
6 4.4 Any transfer or assignment of this Franchise without the prior written
consent of the City shall be void and result in revocation of the Franchise.
7
Section 5. Compliance with Laws and Standards.
8
9 5.1 In carrying out any authorized activities under the privileges granted herein,
Grantee shall meet accepted industry standards and comply with all applicable
10 laws of any governmental entity with jurisdiction over the Facilities and their
operation. This shall include all applicable laws, rules and regulations existing at
I I the Effective Date of this Franchise or that may be subsequently enacted by
any governmental entity with jurisdiction over Grantee, the Franchise Area
12 and/or the Facilities.
1 3 Section 6. Construction and Maintenance.
14
6.1 All Construction, Maintenance or Operation undertaken by Grantee, upon
15 Grantee's direction or on Grantee's behalf shall be completed in a workmanlike
manner.
1 6
17 6.2 Except in the case of an emergency, prior to commencing any Construction
and/or Maintenance work in the Franchise Area, the Grantee shall first file with
18 the Grantor such detailed plans, specifications and profiles of the intended work
as may be required by the Grantor. Grantor may require such additional
19 information, plans and/or specifications as are in Grantor's opinion necessary to
protect the public health and safety during the Construction and/or Maintenance
20 work and for the remaining term of this Franchise.
21 6.3 All Construction and/or Maintenance work shall be performed in conformity
22 with the maps and specifications filed with the Grantor, except in instances in
which deviation may be allowed thereafter in writing pursuant to an application
23 by the Grantee.
24 6.4 All components of any Facilities used in Construction and/or Maintenance
25 activities within the Franchise Area shall comply with applicable state, federal
and local regulations, as from time to time amended.
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6.5 Except in the event of an emergency, Grantee shall provide Grantor at least
I sixty (60) calendar days written notice prior to any Construction and/or
2 Maintenance, or other substantial activity, other than routine inspections and
maintenance, by Grantee, its agents, employees or contractors on Grantee's
3 Facilities within the Franchise Area.
4 6.6 Work shall only commence upon the issuance of applicable permits by the
5 City, which permits shall not be unreasonably withheld or delayed. However, in
the event of an emergency requiring immediate action by Grantee for the
6 protection of the Facilities, Grantor's property or other persons or property,
Grantee may proceed without first obtaining the normally required permits. In
7 such event Grantee must (1) take all necessary and prudent steps to protect,
support, and keep safe from harm its Facilities, or any part thereof; Grantor's
8 property; or other persons or property, and to protect the public health and
9 safety; and (2) as soon as possible thereafter, must obtain the required permits
and comply with any mitigation requirements or other conditions in the after-the-
10 fact permit.
11 6.7 Unless such condition or regulation is in conflict with a federal requirement,
the Grantor may condition the granting of any permit or other approval that is
1 2 required under this Franchise, in any manner reasonably necessary for the safe
1 3 use and management of the public right-of-way or the Grantor's property
including, by way of example and not limitation, bonding, maintaining proper
1 4 distance from other utilities, protecting the continuity of pedestrian and vehicular
traffic and protecting any Right-of-Way improvements, private facilities and
15 public safety.
16 6.8 Whenever necessary, after Constructing or Maintaining any of Grantee's
17 Facilities within the Franchise Area, the Grantee shall, without delay, and at
Grantee's sole expense, remove all debris and restore the surface as nearly as
18 possible to as good or better condition as it was in before the work began.
Grantee shall replace any property corner monuments, survey reference or
19 hubs that were disturbed or destroyed during Grantee's work in the Franchise
Area. Such restoration shall be done in a manner consistent with applicable
20 codes and laws, under the supervision of the Grantor and to the Grantor's
21 satisfaction and specifications. The restoration shall be done under a bond in an
amount appropriate to guarantee adequate restoration.
22
6.9 Grantee shall continuously be a member of the State of Washington one
23 number locator service under RCW 19.122, or an approved equivalent, and
24 shall comply with all such applicable rules and regulations. Grantee shall
provide reasonable notice to the City prior to commencing any Maintenance or
25
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Construction under this Franchise and additionally to those owners or other
persons in control of property in the Franchise Area when the Maintenance or
2 Construction will affect access or otherwise impact the property.
3 6.1 0 Upon acceptance of this Franchise by Grantee, the Grantee shall file and
thereafter maintain at all times with the Grantor a survey depicting the location
4 of the Utility Corridor within the Franchise Area as well as the approximate
5 location of Grantee's Facilities within the Utility Corridor along with all other
known utilities, landmarks, and physical features.
6 6.11 Grantee shall also provide detailed as-built design drawings showing the
7 size, depth and location of all appurtenances and Facilities within the Franchise
Area.
8
9 6.12 Within thirty (30) days of completing any Maintenance or Construction, or
any other substantial activity within the Franchise Area, the Grantee shall
10 provide updated and corrected as-built drawings and a survey showing the
location, depth and other characteristics of the Facilities within the Franchise
11 Area.
12 6.13 Nothing in this Franchise shall be deemed to impose any duty or obligation
13 upon Grantor to determine the adequacy or sufficiency of Grantee's plans and
designs or to ascertain whether Grantee's proposed or actual construction,
1 4 testing, maintenance, repairs, replacement or removal is adequate or sufficient
or in conformance with the plans and specifications reviewed by Grantor.
1 5
6.14 Grantee shall be solely and completely responsible for workplace safety
16 and safe working practices on its job sites within the Franchise Area, including
1 7 safety of all persons and property during the performance of any work.
18 6.15 All Construction, Maintenance, repair or other work on the Facilities
hereunder shall be completed in accordance with Grantor's right-of-way
19 restoration policy.
20 Section 7. Operations, Maintenance, Inspection, Testing.
21 7.1 Grantee shall Operate, Maintain, inspect and test its Facilities in the
22 Franchise Area in full compliance with the applicable provisions of all federal,
state and local laws, regulations and standards, as now enacted or hereafter
23 amended, and any other future laws or regulations that are applicable to
24 Grantee's Facilities, products and business operations.
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Section 8. Encroachment Management.
2 8.1 Within ninety (90) days of entering into this Franchise, and on an annual
basis thereafter, Grantee shall provide a written encroachment management
3 plan that demonstrates how Grantee's Facilities are and will be protected
against possible encroachment. This plan shall include at least the following: (1)
4 education and one-call involvement as defined in State and/or Federal
Regulations, and (2) an encroachment management process(es)
5 demonstrating: (a) Grantee's process for monitoring activity in or near the Utility
6 Corridor; (b) Grantee's field verification of the location of Facilities within the
Utility Corridor; (c) Grantee's encroachment tracking system; (d) Grantee's
7 review/coordination process for critical encroachments; (e) control center
notification of existing or active encroachments; and f) assertive protection of
8 the Rights-of-Way.
9 8.2 Upon notification to Grantee of planned construction by Grantor or any third
10 party within ten (10) feet of Grantee's Utility Corridor, Grantee shall flag the
precise location of its Facilities before the construction commences, provide a
11 representative to inspect the construction when it commences, and periodically
inspect thereafter to ensure that Grantee's Facilities are not damaged by the
1 2 construction.
13 Section 9. INTENTIONALLY OMITTED
1 4
Section 1 0. Relocation.
1 5
10.1 Relocation for Public Work. Grantee shall, by a time specified by the
16 Grantor, protect, support, temporarily disconnect, relocate, or remove any of its
17 Facilities when required by Grantor for work in furtherance of the public health,
safety, or welfare, which work includes, without limitation: traffic conditions;
18 public safety; public right-of-way construction; public right-of-way repair
(including resurfacing or widening); change of public right-of-way grade;
19 construction, installation or repair of sewers, drains, water pipes, power lines,
signal lines, tracks, or any other type of government-owned telecommunications
20 or public transportation systems, public work, public facility, or improvement or
21 any government-owned utility; public right-of-way vacation; or for any other
public purpose where the work involved would be aided by the removal or
22 relocation of the Facilities. Collectively, such matters are referred to as the
"public work."
23
24 1 0.1. 1 Grantee may, after receipt of written notice requesting a relocation
of its Facilities under section 1 0. 1, submit to Grantor written alternatives
25 to such relocation within forty five (45) calendar days of receiving the
plans and specifications. Grantor shall evaluate these alternatives and
26 advise Grantee in writing if one or more of the alternatives are suitable to
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accommodate the work that would otherwise necessitate relocation of
I the Facilities. If so requested by Grantor, Grantee shall submit additional
2 information to assist Grantor in making such evaluation. Grantor shall
give each alternative proposed by Grantee full and fair consideration but
3 retains full discretion to decide for itself whether to utilize its original plan
or an alternative proposed by Grantee. In the event Grantor ultimately
4 determines that there is no other reasonable alternative, Grantee shall
relocate its facilities as otherwise provided in this Section.
5
6 10.1.2 Grantor shall work cooperatively with Grantee in determining a
viable and practical route within which Grantee may relocate its Facilities
7 under this section 1 0, in order to minimize costs while meeting the public
work project objectives. Upon receipt of Grantor's notice, plans and
8 specifications, Grantee shall complete relocation of such Facilities so as
9 to accommodate the improvement project at least ten (1 0) calendar days
prior to commencement of the public work project or such other time as
10 the parties may agree in writing.
I 1 10.2 Notice. Except in the case of emergencies, the City shall provide written
notice, describing where the public work is to be performed, at least sixty (60)
12 days prior to the deadline by which Grantee must protect, support, temporarily
13 disconnect, relocate or remove its Facilities. Grantee may seek an extension of
the time to perform such tasks where they cannot be performed in sixty (60)
14 days even with the exercise of due diligence, and such request for an extension
shall not be unreasonably refused.
15
10.3 Emergency Relocation or Repair. In the event of an emergency, or
16 where the Facilities create or are contributing to an imminent danger to health,
17 safety, or property, Grantor may protect, support, temporarily disconnect,
remove, repair, decommission, or relocate any or all parts of the Facilities,
18 without prior notice, and charge the Grantee for costs incurred.
19 10.4 Relocation for Other than Public Work. Grantor reserves its authority to
require relocation of the Facilities located within the public right-of-way, as
20 provided for under applicable state, federal, and local law.
21 10.5 Redesign Option. As an alternative to relocation, Grantee may propose
22 an alternative design for the pending public work in order to avoid any
relocation of Grantee's Facilities. Such redesign proposal shall be subject to
23 review and approval by Grantor and all costs of the redesign, including, without
24 limitation, the costs actually incurred in the public work as a result of the
redesign shall be solely for Grantee's account. Approval and acceptance of any
25 such redesign proposal shall be at the sole discretion of Grantor.
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Section 1 1. Removal, Abandonment in Place
2 1 1. 1 In the event of Grantee's permanent cessation of use of its Facilities, or
any portion thereof, within the Franchise Area, the Grantee shall, within one
3 hundred and eighty days (1 80) after the cessation of use, remove the Facilities
or any portion thereof.
4
11.2 In the event of the removal of all or a portion of the Facilities, Grantee shall
5 restore the Franchise Area to as good or better condition as it was in before the
6 work began in compliance with Grantor's right-of-way restoration policy.
7 11.3 Removal and restoration work shall be done at Grantee's sole cost and
expense and to Grantor's reasonable satisfaction. Grantee shall be responsible
8 for any environmental review required for the removal of any Facility and the
9 payment of any costs of the environmental review.
10 1 1.4 If Grantee is required to remove its Facilities and fails to do so and/or fails
to adequately restore the Franchise Area or other mutually agreed upon
I I action(s), Grantor may, after reasonable notice to Grantee, remove the
Facilities, restore the Franchise Area and/or take other action as is reasonably
12 necessary at Grantee's expense. This remedy shall not be deemed to be
13 exclusive and shall not prevent the City from seeking a judicial order directing
that the Facilities be removed.
14
11.5 With the express written consent of the Grantor, the Grantee may lawfully
15 decommission its Facilities, as directed by Grantor, and abandon them in place.
Grantee shall be responsible for any environmental review required for the
16 abandonment of any Facilities and the payment of any costs of such
17 environmental review. Grantor's consent to the abandonment of Facilities in
place shall not relieve the Grantee of the obligation and/or costs to remove or to
18 alter such Facilities in the future in the event it is reasonably determined that
removal or alteration is necessary or advisable for the health and safety of the
19 public, in which case the Grantee shall perform such work at no cost to the
Grantor.
20
21 11.6 The parties expressly agree that paragraph 11.5 shall survive the
expiration, revocation or termination of this Franchise.
22
Section 12. Violations, Remedies and Termination.
23
24 12.1 In addition to any rights set out elsewhere in this Franchise, or other rights
it may possess at law or equity, the Grantor reserves the right to apply any of
25 the following remedies, alone or in combination, in the event Grantee violates
any material provision of this Franchise. The remedies provided for in this
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Franchise are cumulative and not exclusive; the exercise of one remedy shall
not prevent the exercise of another or any rights of the Grantor at law or equity.
2 12.2 If Grantee fails or refuses to comply with this Franchise, or any of its terms
3 or provisions, the damages suffered by the Grantor as a result may include,
without limitation, increased costs of administration and other damages difficult
4 to measure. Therefore, Grantor and Grantee agree that liquidated damages up
to one thousand dollars ($1,000) per day, per incident or other measure of
5 violation, may be assessed from the first day of the violation or incident. These
6 damages represent both parties' best estimate of the damages resulting from
the specified injury. The imposition of liquidated damages will invoke the
7 dispute resolution provisions as provided in this Franchise; provided, however,
that liquidated damages shall not accrue during the pendency of dispute
8 resolution proceedings.
9 12.3 Grantor may also terminate this Franchise if Grantee materially breaches
10 or otherwise fails to perform, comply with or otherwise observe any of the terms
and conditions of this Franchise, or fails to maintain all required licenses and
11 approvals from federal, state, and local jurisdictions, and fails to cure such
breach or default within thirty (30) calendar days of Grantor's providing Grantee
12 written notice thereof, or, if not reasonably capable of being cured within thirty
13 (30) calendar days, within such other reasonable period of time as the parties
may agree.
14
12.4 This Franchise shall not be terminated except upon a majority vote of the
15 City Council, after reasonable notice to Grantee and an opportunity to be heard,
provided that if exigent circumstances necessitate immediate termination, the
16 hearing may be held as soon as possible after the termination.
17 12.5 In the event of termination under this Franchise, Grantee shall immediately
18 discontinue operation of the Facilities through the Franchise Area. Either party
may in such case invoke the dispute resolution provisions. Alternatively,
19 Grantor may elect to seek relief directly in Pierce County Superior Court, in
which case the dispute resolution requirements shall not be applicable in this
20 limited situation. Once the Grantee's rights to Operate in the Franchise Area
21 have terminated, Grantee shall comply with the Franchise provisions
regarding removal and/or abandonment of Facilities.
22
12.6 Grantor's failure to exercise a particular remedy at any time shall not waive
23 Grantor's right to terminate, assess penalties, or assert that or any other
24 remedy at law or equity for any future breach or default of Grantee.
25 12.7 Termination of this Franchise shall not release Grantee from any liability or
obligation with respect to any matter occurring prior to such termination, nor
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shall such termination release Grantee from any obligation to remove or secure
I the Facilities pursuant to this Franchise and to restore the Franchise Area.
2 12.8 The parties acknowledge that the covenants set forth herein are essential
3 to this Franchise, and, but for the mutual agreements of the parties to comply
with such covenants, the parties would not have entered into this Franchise.
4 The parties further acknowledge that they may not have an adequate remedy at
5 law if the other party violates such covenant. Therefore, the parties shall have
the right, in addition to any other rights they may have, to obtain in any court of
6 competent jurisdiction injunctive relief to restrain any breach or threatened
breach or otherwise to specifically enforce any of the covenants contained
7 herein should the other party fail to perform them.
8 Section 13. Dispute Resolution.
9 13.1 In the event of a dispute between Grantor and Grantee arising by reason
10 of this Franchise, the dispute shall first be referred to the operational officers or
representatives designated by Grantor and Grantee to have oversight over the
I I administration of this Franchise. The officers or representatives shall meet
within thirty (30) calendar days of either party's request for a meeting,
12 whichever request is first, and the parties shall make a good faith effort to
13 achieve a resolution of the dispute
14 13.2 If the parties are unable to resolve the dispute under the procedure set
forth in this section, the parties hereby agree that the matter shall be referred to
15 mediation. The parties shall mutually agree upon a mediator to assist them in
resolving their differences. If the parties are unable to agree upon a mediator,
16 the parties shall jointly obtain a list of seven (7) mediators from a reputable
17 dispute resolution organization and alternate striking mediators on that list until
one remains. A coin toss shall determine who may strike the first name. If a
18 party fails to notify the other party of which mediator it has stricken within two
(2) business days, the other party shall have the option of selecting the
19 mediator from those mediators remaining on the list. Any expenses incidental to
20 mediation shall be borne equally by the parties.
21 13.3 If the parties fail to achieve a resolution of the dispute through mediation,
either party may then pursue any available judicial remedies, provided that if the
22 party seeking judicial redress does not substantially prevail in the judicial action,
it shall pay the other party's reasonable legal fees and costs incurred in the
23 judicial action.
24 Section 14. Indemnification.
25
14.1 General Indemnification. Grantee shall indemnify, defend and hold
26 harmless Grantor from any and all liability, loss, damage, cost, expense, and
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claim of any kind, including reasonable aftorneys'and experts'fees incurred by
Grantor in defense thereof, arising out of or related to, directly or indirectly, the
2 installation, construction, operation, use, location, testing, repair, maintenance,
removal, or abandonment of Grantee's Facilities, or from the existence of
3 Grantee's Facilities, and the products contained in, transferred through,
released or escaped from said Facilities, including the reasonable costs of
4 assessing such damages and any liability for costs of investigation, abatement,
correction, cleanup, fines, penalties, or other damages arising under any
5 environmental laws; provided, however, that this provision shall not apply to the
6 extent liability results from the negligent action or inaction of the Grantor. If any
action or proceeding covered by this section is brought against Grantor by
7 reason of the Facilities, Grantee shall defend the Grantor at the Grantee's
complete expense, provided that, for uninsured actions or proceedings, defense
8 attorneys shall be approved by Grantor, which approval shall not be
9 unreasonably withheld.
10 14.2 Environmental Indemnification. Grantee shall indemnify, defend and save
Grantor harmless from and against any and all liability, loss, damage, expense,
I I actions and claims, either at law or in equity, including, but not limited to, costs
and reasonable aftorneys'and experts'fees incurred by Grantor in defense
12 thereof, arising directly or indirectly from (a) Grantee's breach of any
13 environmental laws applicable to the Facilities or (b) from any release of a
Hazardous Substance on or from the Facilities or (c) other activity related to this
14 Franchise by Grantee, its agents, contractors or subcontractors. This indemnity
includes but is not limited to (a) liability for a governmental agency's costs of
15 removal or remedial action for Hazardous Substances; (b) damages to natural
resources caused by Hazardous Substances, including the reasonable costs of
16 assessing such damages; (c) liability for any other person's costs of responding
17 to Hazardous Substances; (d) liability for any costs of investigation, abatement,
correction, cleanup, fines, penalties, or other damages arising under any
18 environmental laws; and (e) liability for personal injury, property damage, or
economic loss arising under any statutory or common-law theory.
19
Section 15. Insurance and Bond Requirements.
20
21 15.1 During the term of this Franchise, Grantee shall provide and maintain, at
its own cost, insurance in the minimum amount of TWO MILLION UNITED
22 STATES DOLLARS ($2,000,000.00) for each occurrence, in a form and with a
carrier reasonably acceptable to the Grantor, naming Grantor as an additional
23 insured, to cover any and all insurable liability, damage, claims and loss as set
24 forth in Section 14.1 above, and, to the extent such coverage is reasonably
available in the commercial marketplace, all liability, damage, claims and loss
25 as set forth in Section 14.2 above, except for liability for fines and penalties for
violation of environmental laws as otherwise provided below. Insurance
26 coverage shall include, but is not limited to, all defense costs. Such insurance
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shall include, but is not limited to, pollution liability coverage, at a minimum
covering liability from sudden and accidental occurrences, subject to time
2 element reporting requirements, and such other applicable pollution coverage
as is reasonably available in the commercial marketplace.
3
15.2 Proof of insurance and a copy of the insurance policy, including, but not
4 limited to, coverage terms and claims procedures, shall be provided to the
5 Grantor prior to the beginning of any substantial work, testing or construction or
reconstruction on the Facilities. Said insurance shall contain a provision that it
6 shall not be canceled without a minimum of thirty (30) days prior written notice
to the Grantor.
7
15.3 On or before the Effective Date of this Franchise, the Grantee shall furnish
8 a bond executed by the Grantee and a corporate surety authorized to do surety
9 business in the State of Washington, with an AM Best rating of A XII in the sum
of One Hundred Thousand Dollars ($100,000.00) to insure performance of the
10 Grantee's obligations and performance under this Franchise, such bond to be
conditioned that the Grantee shall well and truly keep and observe all of the
I I covenants, terms and conditions and faithfully perform all of the Grantee's
obligations under this Franchise.
12
13 15.4 The indemnity, insurance and bond provisions contained herein shall
survive the termination of this Franchise and shall continue for as long as the
14 Grantee's Facilities shall remain in or on the Franchise Area or until the parties
execute a new Franchise Agreement which modifies or terminates these
15 indemnity, insurance and bond provisions.
16 Section 16. Receivership and Foreclosure.
17 16.1 Grantee shall immediately notify the Grantor in writing if it: files a voluntary
18 petition in bankruptcy, a voluntary petition to reorganize its business, or a
voluntary petition to effect a plan or other arrangement with creditors; files an
19 answer admitting the jurisdiction of the Court and the material allegations of an
20 involuntary petition filed pursuant to the Bankruptcy Code, as amended; or is
adjudicated bankrupt, makes an assignment for the benefit of creditors, or
21 applies for or consents to the appointment of any receiver or trustee of all or
any part of its property including all or any parts of its business operations, or
22 Facilities within or affecting the Franchise Area.
23 16.2 Upon the foreclosure or other judicial sale of all or a substantial part of
24 Grantee's business operations, or Facilities within or affecting the Franchise
Area, or upon the termination of any lease covering all or a substantial part of
25 the Facilities within or affecting the Franchise Area, or upon the occasion of
additional events which effectively cause termination of Grantee's rights or
26 ability to operate the Facilities within or affecting the Franchise Area, Grantee
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shall notify the Grantor of such fact, and such notification or the occurrence of
I such terminating events shall be treated as a notification that a change in
2 control of the Grantee has taken place, and the provisions of this Franchise
Agreement governing the consent of the Grantor to such change in control of
3 the Grantee shall apply.
4 16.3 The Grantor shall have the right to cancel this Franchise one hundred
5 twenty (1 20) days after the appointment of a receiver or trustee to take over and
conduct the business of Grantee, whether in receivership, reorganization,
6 bankruptcy, or other action or proceeding, unless such receivership or
trusteeship shall have been vacated prior to the expiration of said one hundred
7 twenty (120) days, or unless:
8 (a) Within one hundred twenty (120) days after the election or
9 appointment, such receiver or trustee shall have fully complied with all of
the provisions of this Franchise Agreement and remedied any existing
10 violations and/or defaults; and
I 1 (b) Within said one hundred twenty (120) days, such receiver or trustee
shall have executed an agreement, duly approved by the court having
12 jurisdiction, whereby such receiver or trustee assumes and agrees to be
13 bound by each and every provision of this Franchise Agreement granted
to the Grantee except where expressly prohibited by Washington law.
14
Section 17. Franchise Fee and Costs.
1 5
17.1 In consideration for granting this Franchise and for the use of the
16 Franchise Area, there is hereby established an annual fee equal to Three
1 7 Thousand Six Hundred Twenty-Three Dollars ($3,623.00) per year.
18 17.2 The first installment shall be paid at the time Grantee accepts this
Franchise and shall cover the next twelve (11 2) months. Each succeeding
19 installment shall cover the next twelve (12) month period and shall be paid not
20 later than the anniversary date of the Effective Date of this Franchise.
21 17.3 Interest shall accrue on any late payment at the rate of twelve percent
(1 2%) per annum. The annual fee shall remain constant for the first three (3)
22 years of this Franchise and shall then subsequently increase at a rate of one
and a half percent (1 1/2%) every year thereafter beginning with year four (4)
23 for the Franchise's remaining term.
24 17.4 The Franchise Fee set forth in section 17.1 does not include any payments
25 associated with the Grantor licensing, permitting or granting any other
approvals necessary for Grantee to Construct, Operate or Maintain its Facilities
26 or for any inspection or enforcement costs hereunder. Grantee agrees that it
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LEG 004 (11/89)
will obtain, at the Grantor's then-existing rate, any and all licenses, permits or
other approvals necessary for Grantee to Construct, Operate and Maintain its
2 Facilities in the Franchise Area.
3 Section 18. Legal Relations.
4 18.1 Nothing contained in this Franchise shall be construed to create an
5 association, trust, partnership, agency relationship, or joint venture or to impose
a trust, partnership, or agency duty, obligation or liability on or with regard to
6 any party. Each party shall be individually and severally liable for its own duties,
obligations, and liabilities under this Franchise.
7
18.2 Grantee accepts any privileges granted by Grantor to the Franchise Area,
8 public Rights-of-Way and other Public Property in an "as is" condition. Grantee
9 agrees that the City has never made any representations, implied or express
warranties or guarantees as to the suitability, security or safety of Grantee's
10 location of Facilities or the Facilities themselves in public property or right of
way areas or possible hazards or dangers arising from other uses of the public
1 1 rights of way or other public property by the City or the general public. Grantee
shall remain solely and separately liable for the function, testing, maintenance,
12 replacement and/or repair of the Facilities or other activities permitted under this
13 Franchise.
14 18.3 Grantee waives immunity under Title 51 RCW in any cases involving the
Grantor and affirms that the Grantor and Grantee have specifically negotiated
15 this provision, to the extent it may apply. This Franchise shall not create any
16 duty of the City or any of its officials, employees or agents and no liability shall
arise from any action or failure to act by the City or any of its officials,
17 employees or agents in the exercise of powers reserved to the Grantor. Further,
this ordinance is not intended to acknowledge, create, imply or expand any duty
18 or liability of the Grantor with respect to any function in the exercise of its police
power or for any other purpose. Any duty that may be deemed to be created in
19 the City shall be deemed a duty to the general public and not to any specific
20 party, group or entity.
21 18.4 This Franchise shall be governed by and construed in accordance with the
laws of the State of Washington and the parties agree that in any action, except
22 actions based on federal questions, venue shall lie exclusively in Pierce County,
Washington.
23
24
25
26
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Section 19. Miscellaneous.
2 19.1 In the event that a court or agency of competent jurisdiction declares a
material provision of this Franchise Agreement to be invalid, illegal or
3 unenforceable, the parties shall negotiate in good faith and agree, to the
maximum extent practicable in light of such determination, to such amendments
4 or modifications as are appropriate actions so as to give effect to the intentions
5 of the parties as reflected herein. If severance from this Franchise Agreement of
the particular provision(s) determined to be invalid, illegal or unenforceable will
6 fundamentally impair the value of this Franchise Agreement, either party may
apply to a court of competent jurisdiction to reform or reconstitute the Franchise
7 Agreement so as to recapture the original intent of said particular provision(s).
All other provisions of the Franchise shall remain in effect at all times during
8 which negotiations or a judicial action remains pending.
9 19.2 Whenever this Franchise sets forth a time for any act to be performed,
10 such time shall be deemed to be of the essence, and any failure to perform
within the allotted time may be considered a material violation of this Franchise.
19.3 In the event that Grantee is prevented or delayed in the performance of
12 any of its obligations under this Franchise by reason(s) beyond the reasonable
13 control of Grantee, then Grantee's performance shall be excused during the
Force Majeure occurrence. Upon removal or termination of the Force Majeure
14 occurrence, the Grantee shall promptly perform the affected obligations in an
orderly and expedited manner under this Franchise or procure a substitute for
15 such obligation or performance that is satisfactory to Grantor. Grantee shall not
be excused by mere economic hardship or by misfeasance or malfeasance of
16 its directors, officers or employees.
17 19.4 The Section headings in this Franchise are for convenience only, and do
18 not purport to and shall not be deemed to define, limit, or extend the scope or
intent of the Section to which they pertain.
19
20 19.5 By entering into this Franchise, the parties expressly do not intend to
create any obligation or liability, or promise any performance to, any third party,
21 nor have the parties created for any third party any right to enforce this
Franchise.
22
19.6 This Franchise and all of the terms and provisions shall be binding upon
23 and inure to the benefit of the respective successors and assignees of the
24 parties.
25 19.7 Whenever this Franchise calls for notice to or notification by any party, the
same (unless otherwise specifically provided) shall be in writing and directed to
26 the recipient at the address set forth in this Section, unless written notice of
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change of address is provided to the other party. If the date for making any
payment or performing any act is a legal holiday, payment may be made or the
2 act performed on the next succeeding business day which is not a legal holiday.
Notices shall be directed to the parties as follows:
3
To the Grantor: To Grantee:
4
City of Tacoma Puyallup Tribe of Indians
5 ATTN: Real Property Services Tribal Administrator
6 747 Market Street, 7th Floor cc: Land Use Director
Tacoma, WA 98402 3009 E. Portland Ave.
7 Tacoma, WA 98404
8 19.8 The parties each represent and warrant that they have full authority to
9 enter into and to perform this Franchise, that they are not in default or violation
of any permit, license, or similar requirement necessary to carry out the terms
10 hereof, and that no further approval, permit, license, certification, or action by a
governmental authority is required to execute and perform this Franchise,
11 except such as may be routinely required and obtained in the ordinary course of
business.
1 2
13 19.9 This Franchise Agreement and the attachments hereto represent the entire
Understanding and agreement between the parties with respect to the subject
14 matter and it supersedes all prior oral negotiations between the parties. This
Franchise can be amended, supplemented, modified or changed only by duly
1 5 approved amending ordinance made in writing which makes specific reference
to the Franchise or the appropriate attachment and which is signed by the party
1 6 against whom enforcement of any such amendment, supplement, modification
1 7 or change is sought. All previous franchise agreements between the parties
pertaining to Grantee's Operation of its Facilities are hereby superseded.
18
19.1 0 Grantee shall, within thirty (30) days after passage of this Ordinance, file
19 with the City Clerk, its unconditional written acceptance of all the terms and
conditions of this Franchise. If Grantee shall fail to so file its written acceptance
20 within such period, then the rights and privileges granted hereunder shall be
21 deemed forfeited.
22
23
24
25
26
1 83
0rd12777.doc-JHC/1ad
LEG 004 (11/89)
19.11 The Effective Date of this Franchise shall be the -LLj.7day of
20$
.7, after passage, approval and legal publication of this Ordinance as
2 proMded by law, and provided it has been duly accepted by Grantee as herein
above provided.
3
Passed DE 1 4 2010
4
5
Mayor
6 Attest:
7
8 City Clerk
9
10 Approved as to Form:
1 1
12 D e pu'V@@Ky Attorney
1 3
14
1 5
16
1 7
18
19
20
21
22
23
24
25
26
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UNCONDITIONAL ACCEPTANCE BY GRANTEE:
2 1, the undersigned Chairman of the Puyallup Tribal Council, governing body of
the Puyallup Tribe of Indians, am authorized to bind the Tribe and to
3 unconditionally accept the terms and conditions of the foregoing Franchise
(Ordinance No. which are hereby accepted by the Puyallup Tribe
4 this day of 2010.
5
6 PUYALLUP TRIBE OF INDIANS
7
8 Name: Herman Dillon, Sr.
9 Chairman, Puyallup Tribal Council
10 Subscribed and sworn to before me this day of 2010.
11
12 Notary Public in and for the State of
13 Washington
My commission expires
14
15 Received on behalf of the City this day of 2010.
1 6
17 Name:
18 Title:
19
20
21
22
23
24
25
26
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0rd12777.doc-JHC/1ad I 5
M 004 (11/89)
Schedule I
"Franchised Area"
2
3 All that portion of East "R" Street, lying between
East 32 nd Street and East 29th Streets, as dedicated to
4 the City of Tacoma within the Map of Indian Addition to
5 the City of Tacoma, according to the Plat thereof filed
of record on May 1, 1896 in Book 7 of Plats at
6 Pages 30 and 31, records of Pierce County,
Washington.
7
All as specifically depicted within the City of Tacoma's
8 Work Order 60000024831, on file with the City of
9 Tacoma, Construction Division of Public Works.
10
11
12
1 3
14
1 5
1 6
17
18
19
20
21
22
23
24
25
26
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186
LEG 004 (11/89)
CITY CLERK USE ONLY
REQUEST FO]k."- Requiest
Tacoma
E ORDINANCE F1 RESOLUTION Ord./Res.
1@, J
1. DATE: October 25, 201 0
2. SPONSORED BY: COUNCIL MFMBER(s) N/A
3a. REQUESTING 4a. CONTACT (for questions): PHONE:
DEPARTMENT/DIVISION/PROGRAM Conor McCarthy 591-5320
Public Works, Facilities
Management, Real Property
Services 4b. Person Presenting: PHONE:
3b. "Do PASS" FROM Government Conor McCarthy 591-5320
Performance and Finance
Yes October 20, 2010
No 4c. ATTORNEY: PHONE:
nTo Committee as information only Jeff Capell 591-5638
F-1 Did not go before a Committee
3c. DID THIS ITEM GO BEFORE THE
PUBLIC UTILITY BOARD?
Yes, on
Not required
N/A
@Richar@d E@McKin@ley, P@WDire@ctorF Robert K. Biles, Finance Director Rey Deputy City Manager
5 .REQUESTED COUNCIL DATE: November 23, 201 0
6. SUMMARY AGENDA TITLE: (A concise sentence, as it will appear on the Council agenda.)
Granting a non-exclusive, limited franchise to the Puyallup Tribe to install conduits in East R Street
between East 29th and East 32 nd, for the future development of a private electrical and communications
network.
7. BACKGROUND INFORMATION/GENERAL DISCUSSION: (Why is this request necessary? Are there legal
requirements? What are the viable alternatives? Who has been involved in the process?)
The Puyallup Tribe is obtaining permit approval to construct road and infrastructure improvements to
East R Street right-of-way. As part of this project, the Puyallup Tribe would like to install conduits into
East R Street for the future development of a private electrical and communications network. A limited
franchise is required to allow the Puyallup Tribe to occupy City right-of-way with private utility
infrastructure. City and TPU staff have reviewed the plans for installation of the conduits and said plans
do not interfere with the City's current or planned use of East R Street right-of-way. City staff and the
Puyallup Tribe have negotiated a franchise agreement which establishes the contractual and legal
charges, terms, and conditions for the construction, maintenance, and repair of its system in
conformance with applicable laws, City standards and City codes.
8. LIST ALL MATERIAL AVAILABLE AS BACKUP INFORMATION FOR THE REQUEST AND INDICATE WHERE FILED:
Source Documents/Backup Material Location of Document
Proposed Franchise Agreement City Clerk
187
cotderk\fbrms\ RequestResolution0rdinance.doc Office of the Cihj Clerk (03/23/2009)
CITY CLERK USE ONLY
REQUEST (CONT) Request
Ord/Res
9. WHICHOFTHECITY'SSTRATEGIcGOALsDOEsTHISITEMSUPPORT?(CHECKTHEGOALTHATBESTAPPLIES)
A. F] A SAFE, CLEAN AND ATTRACTIVE COMMUNITY
B. X1 A DIVERSE, PRODUCTIVE AND SUSTAINABLE ECONOMY
C. El A HIGH-PERFORMING, OPEN AND ENGAGED GOVERNMENT
10. IFTHISCONTRACTISFORANAMOUNTOF$200,OOOORLESS,EXPLAINWHYITNEEDSLEGISLATIVEAPPROVAL:
11. FINANCIAL IMPACT: FI EXPENDITURE M REVENUE
A. F1 No IMPACT (NO FISCAL NOTE)
B. F-1 YES, OVER$ 1 00,000, Fiscal Note Attached
C. F@ YES, UNDER $ 1 00,000, (NO FISCAL NOTE)
Provide funding source information below:
FUNDING SOURCE: (Enter amount of funding from each source)
Fund Number & Name: State $ City $ Other $ Total Amount
1 1 00 PROP, PW $72,460.00 $72,460.00
Property ($3,623 per year
Management for twenty
years)
If an expenditure, is it budgeted? El Yes El No Where? Cost Center:
Acct
cotclerk \forms \ RequestResolutionOrdinance.doc Office of the City Clerk (03/23/2009)
Ordinance No. 279 57
NOV 2 3 2010
First Reading of Ordinance:
Final Reading of Ordinance: - DEC 1 4 2010
Passed: DEC 1 4 2010
Roll Call Vote:
MEMBERS AYES NAYS ABSTAIN ABSENT
Mr. Boe
Mr. Campbell t/
Mr. Fey
Mr. Lonergan
Mr. Manthou
Mr. Mello
Ms. Walker
Ms. Woodards
Mayor trickland
MEMBERS AYES NAYS ABSTAIN ABSENT
Mr. Boe
Mr. Campbell
Mr. Fey
Mr. Lonergan
Mr. Manthou
Mr. Mello
Ms. Walker
Ms. Woodards
Mayor Strickland
k@ccagenda@agenda procedures and forms\ordinancevotingrecord-doc