Req. #12611
ORDINANCE NO. 27898
1 AN ORDINANCE relating to cable communications and franchise services;
2 granting to the Port of Tacoma the nonexclusive right, privilege, authority,
and limited franchise to construct, operate, maintain, remove, replace, and
3 repair fiber-optic communications facilities in designated area of City
right-of-way, together with equipment and appurtenances for the
4 transmission of data within and through those certain right-of-way areas,
5 streets, and public property.
6 WHEREAS, on April 15, 1997, the City Council passed Amended
7 Substitute Ordinance No. 26053, amending the Tacoma Municipal Code to add
8 Title 16 regulating the occupancy and use of public rights-of-way by
9 telecommunications systems, cable systems, and private communication
10
systems; regulating cable systems; establishing franchise and licensing
1 1
requirements; and prescribing minimum charges, terms, and conditions for the
1 2
1 3construction, maintenance, and repair of such systems, and
14 WHEREAS, on April 21, 2002, the City Council passed Substitute
1 5Ordinance No. 26936, repealing and reenacting Title 16 to be entitled "Cable
16 Systems, Open Video Systems, Telecommunications Systems, and Private
1 7Communications Systems" for the regulation of cable, open video and private
18
communications systems and to comply with federal and state law, and
19
20 WHEREAS the City's telecommunications right-of-way ordinance
21 requires operators of telecommunications systems to obtain a franchise to use
22 and occupy City right-of-way for their business purposes, and
23 WHEREAS, in response to a franchise application received from the Port
24 of Tacoma, City staff has negotiated a limited franchise agreement that
25
establishes the contractual and legal charges, terms, and conditions for and
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upon the construction, maintenance, and repair of its communications system in
conformance with the City Council's telecommunications right-of-way
2
3 ordinance; Now, Therefore,
4 BE IT ORDAINED BY THE CITY OF TACOMA:
5 Section 1. Purpose.
6 The City grants this nonexclusive franchise to Grantee to operate and
7 maintain fiber optic communication lines and related facilities (the "Facilities")
8
necessary to the operation of Grantee's business and to the health, safety and
9
10 welfare of the community. This franchise is conditioned upon the terms and
11 conditions contained herein and Grantee's compliance with any applicable
12 federal or state regulatory programs that currently exist or may hereafter be
13 enacted by any federal or state regulatory agencies with jurisdiction over the
14 Grantee and its use of the right-of-way. The purpose of this franchise is to
1 5 delineate the conditions relating to Grantee's use of the public's right of way,
16
streets and property and to create a foundation for the parties to work
1 7
18 cooperatively in the public's best interests after this ordinance becomes
19 effective. By granting this franchise, the City is not assuming any risks or
20 liabilities therefrom, which shall be solely and separately borne by Grantee.
21 Section 2. Right Conveyed.
22 2.1 Grantor hereby grants, under the terms and conditions contained
23
herein, to Grantee, a municipal corporation organized and existing under and by
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virtue of the laws of the State of Washington, and which is registered and
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26 authorized to transact business within the State of Washington, the right,
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privilege, authority and franchise to construct, operate, maintain, remove,
2 replace and repair the Facilities, together with all equipment and appurtenances
3 as may be necessary thereto, for the transmission and handling of electronic
4 information and data, through and under those certain streets, avenues, drives
5 and other public lands within the City of Tacoma, as designated and more
6 particularly described in Schedule 1, which is attached hereto and expressly
7
incorporated herein by this reference (the "Franchised Area").
8
2.2 This franchise is only intended to convey a limited right and
9
10 interest as to that public property and those rights of way designated on
I I Schedule I in which the City has an actual interest. It is not a warranty of title or
12 interest in City road rights of way, nor is it a warranty of Grantee's right to locate
13 in any such area. None of the rights granted herein shall affect the City's ability
14 or jurisdiction over its property, streets or rights of way.
15
Section 3. Term.
16
17 Each of the provisions of this franchise shall become effective upon
18 Grantee's acceptance of the terms and conditions of this franchise (the
19 "Effective Date") and shall remain in effect for ten (1 0) years thereafter.
20 Subsequently, and in accordance with the terms and provisions of Tacoma
21 Charter Article Vill, City Council may consider renewing this franchise, at the
22 written request of Grantee, for any additional renewal period at any time within
23
two (2) years before the end of the franchise's original ten (10) year term,
24
25 unless either party expresses its intention in writing to terminate this franchise
26 at the conclusion of the original ten (1 0) year term.
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Section 4. Compliance with Laws Standards and Policies.
2 Grantee shall, in carrying out any authorized activities under the
3 privileges granted herein, comply with all applicable federal, state and local
4 laws of any governmental entity with jurisdiction over the Facilities. This shall
5 include all applicable laws, rules and regulations, and published City of Tacoma
6 policies relating to Grantee's use of City right-of-way existing at the Effective
7 Date of this franchise or that may be subsequently enacted, modified or
8
amended by any governmental entity with jurisdiction over Grantee and/or the
9
Facilities.
10
I I Section 5. Construction on Public Properties.
1 2 5.1 This Section 5 shall apply to all construction done by Grantee in
13 the Franchised Area. Except in the event of an emergency, Grantee shall
14 provide Grantor at least thirty (30) calendar days' written notice prior to any
1 5
alteration, repair, replacement, removal, or other substantial activity, other than
16
routine inspections and maintenance, by Grantee, its agents, employees or
17
18 contractors on Grantee's Facilities or appurtenant structures on Grantor's
19 property. Said written notice shall include, at a minimum, detailed plans and
20 specifications, if any, and a detailed description of the proposed work and
21 anticipated time of the work. Such work shall only commence upon the
22 issuance of applicable permits by the City, which permits shall hot be
23
unreasonably withheld or delayed. In the event of an emergency requiring
24
25 immediate action by Grantee for the protection of the Facilities, Grantor's
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property or other persons or property, Grantee may take such action upon such
notice to Grantor as is reasonable under the circumstances.
2
3 5.2 All work done hereunder by Grantee or upon Grantee's direction
4 or on Grantee's behalf shall be undertaken and completed in a workmanlike
5 manner and in accordance with the descriptions, plans and specifications
6 provided to, and approved by, Grantor. Grantee's activities shall be conducted
7 in such a manner as to avoid damage or interference with other utilities, drains
8
or other structures, and to interfere as little as possible with public travel, or
9
10 other municipal uses and the free use of adjoining property and so as to provide
1 1 safety for persons and property. The Grantee's construction, maintenance and
12 repairs shall be in compliance with all applicable laws and regulations of
13 governmental agencies with jurisdiction including, without limitation the City's
14 right-of-way restoration policy.
1 5
5.3 The City may condition the granting of any permit or other
16
approval that is required under this Franchise, at any time, on any lawful
1 7
18 condition or regulation, unless such condition or regulation is in conflict with a
19 federal directive, as may be reasonably necessary to the management of the
20 public right-of-way or the Grantor's property, including, by way of example and
21 not limitation, bonding, maintaining proper distance from other utilities,
22 protecting the continuity of pedestrian and vehicular traffic and protecting any
23
right-of-way improvements, private facilities and public safety.
24
5.4 Whenever it shall be necessary in constructing, maintaining,
25
26 repairing, relocating, removing or replacing any of the Grantee's Facilities in any
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street, right of way area, or public property, the Grantee shall without delay, as
soon as is commercially reasonable, and at Grantee's sole expense, remove all
2
3 debris and restore the surface of the street, or public property as nearly as
4 practicable to as good or better condition as it was in before the work began.
5 Grantee shall replace any property corner monuments, survey reference or
6 hubs that were disturbed or destroyed during Grantee's work in the areas
7 covered by this franchise. Such restoration shall be done in a manner
8
consistent with applicable codes and laws, under the supervision of the City's
9
10 Director of Public Works or his authorized designee and to the City's
I Ireasonable satisfaction and specifications. Whenever restoration is required
12 hereunder, the restoration shall be done under a bond in an amount appropriate
13 to guarantee adequate restoration.
14 5.5 Grantee shall continuously be a member of the State of
15
Washington one number locator service under RCW 19.122, or approved
16
equivalent, and shall comply with all such applicable rules and regulations.
17
18 Grantee shall provide reasonable notice to the City prior to commencing any
ig work or construction under this Franchise and additionally to those owners or
20 other persons in control of property abutting the Franchise Area when such
21 work or construction will affect access to such property or otherwise impact
22 such property or the private or public improvements within said area.
23
5.6 Upon acceptance of this franchise by Grantee, and as a condition
24
of this Franchise, Grantee shall make available to the City, upon the City's
25
26 written request and at no cost to the City, within sixty (60) working days from
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construction completion of the Facilities, relevant as-built plans, maps and
1
2 records revealing the current location and condition of Grantee's Facilities
3 within the public right-of-way and public places.
4 5.7 Nothing in this franchise shall be deemed to impose any duty or
5 obligation upon Grantor to determine the adequacy or sufficiency of Grantee's
6 plans and designs or to ascertain whether Grantee's proposed or actual
7 construction, testing, maintenance, repairs, replacement or removal is in
8
conformance with the plans and specifications reviewed by Grantor. Grantee
9
10 shall ensure that any contractor working on its job sites within the Franchise
11 Area has a written safety plan addressing the safety of all persons and property
12 during the performance of any work therein.
13 Section 6. Operations, Maintenance, Inspection and Testing.
14 Grantee shall operate, test, inspect and maintain its Facilities in full
15 compliance with all applicable laws, rules, regulations and policies as now
16
enacted or hereafter amended, and any other current or future laws or
17
18 regulations that are applicable to Grantee's Facilities.
19 Section 7. INTENTIONALLY OMITTED
20 Section 8. Relocation.
21 8.1 Relocation for Public Work. Grantee shall, by a time specified by
22 the Grantor, protect, support, temporarily disconnect, relocate, or remove any of
23
its Facilities when required by Grantor for work in furtherance of the public
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health, safety, or welfare, which work includes, without limitation: traffic
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26 conditions; public safety; public right-of-way construction; public right-of-way
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repair (including resurfacing or widening); change of public right-of-way grade;
2 construction, installation or repair of sewers, drains, water pipes, power lines,
3 signal lines, tracks, or any other type of government-owned telecommunications
4 or public transportation systems, public work, public facility, or improvement or
5 any government-owned utility; public right-of-way vacation; or for any other
6 public purpose where the work involved would be aided by the removal or
7 relocation of the Facilities. Collectively, such matters are referred to as the
8
"public work."
9
10 8.1.1 Grantee may, after receipt of written notice requesting a
I I relocation of its facilities under section 8. 1, submit to the City written alternatives
12 to such relocation within thirty (30) calendar days of receiving the plans and
13 specifications. The City shall evaluate such alternatives and advise Grantee in
14 writing if one or more of the alternatives are suitable to accommodate the work
15
that would otherwise necessitate relocation of the Facilities. If so requested by
16
the City, Grantee shall submit additional information to assist the City in making
17
18 such evaluation. The City shall give each alternative proposed by Grantee full
19 and fair consideration but retains sole discretion to decide for itself whether to
20 utilize its original plan or an alternative proposed by Grantee. In the event the
21 City ultimately determines that there is no other reasonable alternative, Grantee
22 shall relocate its Facilities as otherwise provided in this Section.
23
8.1.2 Grantor shall work cooperatively with Grantee in determining
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25 a viable and practical route within which Grantee may relocate its Facilities under
26 this Section 8, in order to minimize costs while meeting the public work project
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objectives. Upon receipt of Grantor's notice, plans and specifications, Grantee
1
2 shall complete relocation of its Facilities so as to accommodate the public work
project at least ten (1 0) calendar days prior to commencement of the public work
3
4 project or such other time as the parties may agree in writing.
5 8.2 Notice. Except in the case of emergencies, the City shall provide
6 written notice, describing where the public work is to be performed, at least
7 sixty (60) days prior to the deadline by which Grantee must protect, support,
8
temporarily disconnect, relocate or remove its Facilities. Grantee may seek an
9
10 extension of the time to perform such tasks where they cannot be performed in
1 1sixty (60) days even with the exercise of due diligence, and such request for an
12 extension shall not be unreasonably refused.
13 8.3 Emergency Relocation or Repair. In the event of an emergency, or
14 where the Facilities create or are contributing to an imminent danger to health,
15
safety, or property, the City may protect, support, temporarily disconnect,
16
remove, repair or relocate any or all parts of the Facilities, without prior notice,
17
18 and charge the Grantee for costs incurred.
19 8.4 Relocation for Other than Public Work. The City reserves its
20 authority to require relocation of the Facilities located within the public
21 right-of-way, as provided for under applicable state, federal, and local law.
22 8.5 Redesign Option. As an alternative to relocation, Grantee may
23
propose an alternative design for the pending public work in order to avoid any
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relocation of Grantee's Facilities. Such redesign proposal shall be subject to
25
review and approval by the City and all costs of the redesign, including, without
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limitation, the costs actually incurred in the public work as a result of the
1
2 redesign shall be solely for Grantee's account. Approval and acceptance of any
3 such redesign proposal shall be at the sole discretion of the City.
4 Section 9. INTENTIONALLY OMITTED
5 Section 10. Dispute Resolution.
6 10.1 In the event of a dispute between Grantor and Grantee arising by
7 reason of this franchise, or any obligation hereunder, the dispute shall first be
8
referred to the operational officers or representatives designated by Grantor
9
10 and Grantee to have oversight over the administration of this franchise. Said
11 officers or representatives shall meet within thirty (30) calendar days of either
1 2party's request for said meeting, whichever request is first, and the parties shall
13 make a good faith effort to attempt to achieve a resolution of the dispute.
14 10.2 In the event that the parties are unable to resolve the dispute
1 5
under the procedure set forth in section 1 0. 1, then the parties hereby agree that
16
the matter shall be referred to mediation within Pierce County. The parties shall
17
18 mutually agree upon a mediator to assist them in resolving their differences. If
19 the parties are unable to agree upon a mediator, the parties shall jointly obtain a
20 list of seven (7) mediators from a reputable dispute resolution organization and
21 alternate striking mediators on that list until one remains. A coin toss shall
22 determine who may strike the first name. If a party fails to notify the other party
23
of which mediator it has stricken within two (2) business days, the other party
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25
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shall have the option of selecting the mediator from those mediators remaining
1
2 on the list. Any expenses incidental to mediation shall be borne equally by the
3 parties.
4 10.3 If either party is dissatisfied with the outcome of the mediation,
5 that party may then pursue any available judicial remedies in Pierce County,
6 provided, that if the party seeking judicial redress does not substantially prevail
7 in the judicial action, it shall pay the other party's reasonable legal fees and
8
costs incurred in the judicial action.
9
Section 1 1. Abandonment or Removal of Facilities.
10
1 1 In the event of abandonment or Grantee's permanent cessation of use of
12 its Facilities, or any portion thereof within the City of Tacoma, the Grantee shall,
13 within one hundred and eighty days (1 80) after the abandonment or permanent
14 cessation of use, remove the Facilities, secure the Facilities in such a manner
15
as to cause it to be as safe as is reasonably possible, or petitioning the City to
16
be allowed to decommission the Facilities in place, all in compliance with
17
18 applicable laws, regulations and industry standards. In the event of the removal
19 of all or a portion of the Facilities, Grantee shall restore the Franchise Area as
20 nearly as possible to a condition that existed prior to installation of Grantee's
21 facilities and in compliance with the City's right-of-way restoration policy. Such
22 property restoration work shall be done at Grantee's sole cost and expense and
23
to Grantor's reasonable satisfaction. If Grantee fails to remove, secure or
24
decommission the Facilities, and/or fails to restore the Franchised Area or take
25
26 such other mutually agreed upon action, Grantor may, after reasonable notice
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to Grantee, remove the Facilities, restore the Franchised Area or take such
1
2 other action as is reasonably necessary at Grantee's expense and Grantor shall
3 not be liable therefor. This remedy shall not be deemed to be exclusive and
4 shall not prevent the City from seeking a judicial order directing that the
5 Facilities be removed.
6 Section 12. Nonexclusive Franchise.
7 This franchise is nonexclusive. Grantor reserves the right to grant other
8
franchises, easements, licenses, permits or other approvals to others, subject to
9
10 the rights granted herein, provided that Grantor shall not grant any other
I Ifranchise, license, permit or other approval which would substantially interfere
12 with Grantee's use. Grantor shall notify Grantee in writing of any proposed
13 franchise, easement, license or permit for a utility or other structure which may
14 be located within ten (10) feet of Grantee's Facilities, as shown on the latest
15
map Grantee has provided the City. When the Grantor has notice that
16
excavation, construction or other work may be undertaken within ten (10) feet of
17
18 Grantee's Facilities, it shall notify Grantee, where possible sixty (60) days in
19 advance, so that Grantee may have the opportunity to inspect the work to see
20 that Grantee's Facilities are not damaged. If the contractor undertaking the
21 excavation, construction or other work is observed to have violated safety
22 regulations, Grantor will cooperate to the extent feasible in pursuing an
23
enforcement action to avoid third party damage to the Facilities. This provision
24
shall not create, either expressly or implicitly, nor shall the City assume, any
25
26 liability under any circumstances hereunder.
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Section 13. Indemnification.
13.1 General Indemnification. Grantee shall indemnify, defend and
2
3 hold harmless Grantor from any and all liability, loss, damage, cost, expense,
4 and claim whatsoever, arising on or after the date of this Agreement, whether at
5 law or in equity, arising out of or related to, directly or indirectly, the
6 construction, operation, use, location, testing, repair, maintenance, relocation,
7 removal, abandonment or damage to Grantee's Facilities, or from the existence
8
of Grantee's Facilities and appurtenances, or for any information or other items
9
10 transmitted through the Facilities, from any and all causes whatsoever, except
I Ito the extent they are caused by Grantor's sole negligence. If any action or
1 2proceeding is brought against Grantor by reason of the Facilities, Grantee shall
13 defend the Grantor at the Grantee's complete expense, provided that, for
14 uninsured actions or proceedings, defense attorneys shall be approved by
5 Grantor, which approval shall not be unreasonably withheld.
16
13.2 Environmental Indemnification. Grantee shall indemnify, defend
17
18 and save Grantor harmless from and against any and all liability, loss, damage,
19 expense, actions and claims, arising on or after the date of this Agreement,
2o either at law or in equity, including, but not limited to, costs and reasonable
21 attorneys' and experts' fees incurred by Grantor in defense thereof, arising from
22 (a) Grantee's breach of any environmental laws applicable to the Facilities or
23
(b) from any release of a hazardous substance on, from or as a result of the
24
Facilities being in the Franchise Area, or (c) other activity related to this
25
26 franchise by Grantee, its agents, contractors or subcontractors. This indemnity
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includes but is not limited to (a) liability for a governmental agency's costs of
1
2 removal or remedial action for hazardous substances; (b) damages to natural
3 resources caused by hazardous substances, including the reasonable costs of
4 assessing such damages; (c) liability for any other person's costs of responding
5 to hazardous substances; (d) liability for any costs of investigation, abatement,
6 correction, cleanup, fines, penalties, or other damages arising under any
7 environmental laws; and (e) liability for personal injury, property damage, or
8
economic loss arising under any statutory or common-law theory.
9
13.3 Definitions.
10
11 13.3.1 "Hazardous Substance" means any hazardous, toxic, or
12 dangerous substance, material, waste, pollutant, or contaminant, including all
13 substances designated under the Resource Conservation and Recovery Act,
14 42 U.S.C. 6901 et seq.; the Comprehensive Environmental Response,
15 Compensation and Liability Act, 42 U.S.C. 9601 et aeg.; the Hazardous
16
Materials Transportation Act, 49 U.S.C. 1801 et gLeg.; the Federal Water
17
18 Pollution Control Act, 33 U.S.C. 1257 et seq.; the Clean Air Act, 42 U.S.C.
19 7401 et seq.; the Toxic Substances Control Act, 15 U.S.C. 2601 et seq.; the
2o Federal Insecticide, Fungicide, Rodenticide Act, 7 U.S.C. 136 et seq.; the
21 Washington Hazardous Waste management Act, Chapter 70.105 RCW; and the
22 Washington Model Toxics Control Act, Chapter 70.105D, RCW; all as amended
23
from time to time; or any other federal, state, or local statute, code or ordinance
24
or lawful rule, regulation, order, decree, or other governmental authority as now
25
26 or at any time hereafter in effect. The term shall specifically include petroleum
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and petroleum products. The term shall also be interpreted to include any
|1013|
2 substance which, after release into the environment, will or may reasonably be
3 anticipated to cause death, disease, behavior abnormalities, cancer, or genetic
4 abnormalities.
5 13.3.2 "Environmental Laws" shall include the Resource Conservation
6 and Recovery Act, 42 U.S.C. 6901 et seg.; the Comprehensive Environmental
7 Response, Compensation, and Liability Act, 42 U.S.C. 9601 et seg.; the
|1013|
Hazardous Materials Transportation Act, 49 U.S.C. 1801 et seg.; the Federal
|10 13|
10 Water Pollution Control Act, 33 U.S.C. 1257 et seg.; the Clean Air Act,
1 142 U.S.C. 7401 et seg.: the Toxic Substances Control Act, 15 U.S.C. 2601
12 et seg.; the Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. 136
13 et seg.; the Occupational Safety and Health Act, 29 U.S.C. 651 et seg.; the
14 Washington Hazardous Waste Management Act, Chapter 70.105 RCW; and the
15
Washington Model Toxics Control Act, Chapter 70.105D RCW; all as amended
16
from time to time; or any other federal, state, or local statute, code, or ordinance
17
18 or federal or state administrative rule, regulation, ordinance, order, decree, or
19 other governmental authority as now or at any time hereafter in effect pertaining
20 to the protection of human health or the environment.
21 Section 14. Insurance, Performance Bond and Security.
22 14.1 During this Agreement, Grantee shall provide and maintain, at its
23
own cost, insurance in the minimum amount of Two Million United States
24
Dollars ($2000,000.00) each occurrence, in a form and with a carrier
25
26 reasonably acceptable to the Grantor, naming Grantor as an additional insured
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for ongoing operations and completed operations, to cover any and all insurable
1
2 liability, damage, claims and loss as set forth in Section 13.1 above, and, to the
3 extent such coverage is reasonably available in the commercial marketplace, all
4 liability, damage, claims and loss as set forth in Section 13.2 above, except for
5 liability for fines and penalties for violation of environmental laws and as
6 otherwise provided below. Insurance coverage shall include, but is not limited
7
to, all defense costs. Such insurance shall include, but is not limited to,
8
9 environmental liability coverage, at a minimum covering liability from
environmental incidents, subject to time element reporting requirements, and
10
I I such other applicable pollution coverage as is reasonably available in the
12 commercial marketplace. In the event that a deductible or self retention amount
13 applies to the insurance herein, Grantee agrees to pay the amount of that
14 deductible or self retention amount.
15
14.2 Proof of insurance and a copy of the insurance policy, including,
16
17 but not limited to, coverage terms and claims procedures, shall be provided to
18 the Grantor prior to the beginning of any substantial work, testing or
19 construction or reconstruction on the Facilities. Said insurance shall contain a
20 provision that it shall not be canceled without a minimum of thirty (30) days'
21 prior written notice to the Grantor, and shall include the City of Tacoma as a
22 named additional insured. All required liability policies shall be maintained for a
23
period of not less than three years following termination of this franchise.
24
25 14.3 The indemnity and insurance provisions herein under Sections 13
26 and 14 shall survive the termination of this franchise and shall continue for as
4,
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long as the Grantee's Facilities shall remain in or on the Franchise Area or until
2 the parties execute a new franchise agreement which modifies or terminates
3 these indemnity or insurance provisions.
4 14.4 Performance Bond. Within thirty (30) days after the award of this
5 franchise, but in no event sooner than the final reading of the franchise
6 ordinance, Grantee shall submit to the City Attorney, which shall be filed with
7 the appropriate City department, a performance bond running to the City, with
8
good and sufficient surety licensed to do business in the State of Washington
9
10 and approved by the City in the amount of $10,000.00, conditioned that Grantee
I 1 shall well and truly observe, fulfill, and perform each term and condition of the
12 franchise. In the alternative, Grantee may provide written evidence of the
13 establishment of an assignment of funds in favor of the City, in a form and with
14 afinancialinstitutionacceptabletotheCityintheamountof$10,000.00. This
15 bond (or assignment of funds) shall be conditioned that in the event Grantee
16
shall fail to comply with any one or more of the provisions of this franchise, then
17
18 there shall be recoverable jointly and severally from the principal and/or surety
19 of such bond, any damages suffered by the Grantor as a result thereof,
20 including the full amount of any compensation, indemnification, or cost of
21 removal, relocation or abandonment of Facilities as prescribed herein; said
22 condition to be a continuing obligation for the duration of the franchise and
23
thereafter until Grantee has liquidated all of its obligations with the City that may
24
have arisen from the acceptance of the franchise by Grantee or from its
25
26 exercise of any privilege herein granted. Written evidence of payment of
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required premiums shall be filed and maintained with the City. In lieu of the
bond, Grantee may provide for a letter of credit, assignment of funds, or similar
2
3 arrangement to be established giving the City rights substantially the same as
4 the rights of the City in relation to the bond, the provisions of which letter of
5 credit, assignment of funds, or other arrangement shall be subject to the
6 approval of legal counsel for the City.
7 Neither the provisions of this section, any bond (or other security)
8
accepted by the City pursuant thereto, nor any damages recovered by the City
9
10 thereunder shall be construed to excuse faithful performance by Grantee or to
1 1limit liability of Grantee under the franchise or for damages, either to the full
12 amount of the bond or otherwise, except as otherwise provided herein.
13 14.5 Validity of Bond. If at any time during the term of the franchise,
14 the condition of the entity issuing the bond shall change in such a manner as to
5 render the bond unsatisfactory to the City, Grantee shall replace such bond by
16
a bond of like amount and similarly conditioned, issued by an entity satisfactory
1 7
18 to the City. The City Council, from time to time, may authorize or require
19 appropriate and reasonable adjustments in the amount of the bond; provided,
2o however, that prior to any required increase in the amount of the bond, the City
21 shall give Grantee at least one hundred twenty (120) days' prior notice thereof
22 stating the exact reason for the requirement. Such reasons must demonstrate a
23
change in Grantee's business practices that would materially prohibit or impair
24
its ability to comply with the terms of the franchise or afford compliance
25
26 therewith.
i63 -18-
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LEG 004 (11/89)
Section 15. Annual Franchise Fee.
15.1 In consideration for granting this franchise and for the use of the
2
3 Franchised Area, there is hereby established an annual fee of $4,000.00, paid
4 in United States Dollars (the "Franchise Fee"). The first installment of the
5 Franchise Fee shall be paid within three (3) weeks of the time Grantee accepts
6 this franchise and shall cover the first twelve (1 2) months of operation. Each
7 succeeding installment shall cover the next twelve (11 2) month period and shall
8
be paid upon receipt of invoice, not later than the anniversary date of this
9
10 franchise's Effective Date. Interest shall accrue on any late payment at the rate
1 1 of twelve percent (12%) per annum.
12 15.2 Grantee agrees that it will obtain, pursuant to the City's currently
13 effective code and rates, any and all licenses, permits or other approvals
14 necessary for Grantee to operate, maintain or repair its facilities in the
15 franchised area. This shall include, by way of example only and not limitation,
16
inspection and permit costs associated with Grantee's work in the City's right of
1 7
18 way. The franchise fee set forth in section 15.1 does not include standard and
19 customary payments associated with the City's administrative expenses
20 incurred in reviewing, licensing, permitting or granting any other approvals
21 necessary for Grantee to construct, operate, maintain or repair its Facilities or
22 for any inspection or enforcement costs related thereto. Additionally, the
23
foregoing annual fee does not include any generally applicable taxes that the
24
Grantor may legally levy.
25
26
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LEG 004 (11/89)
Section 16. Notice.
All notices, demands, requests, consents and approvals which may, or
2
3 are required to be given by any party to any other party hereunder, shall be in
4 writing and shall be deemed to have been duly given if delivered personally,
5 sent by facsimile, sent by a nationally recognized overnight delivery service, or
6 if mailed or deposited in the United States mail and sent by registered or
7 certified mail, return receipt requested, postage prepaid to:
8
Grantor: Cable Communications and Franchise Services
9 Manager
10 City of Tacoma
1224 IVILK, Jr., Way
11 Tacoma, WA 98405
12 With copy to: City Attorney
City of Tacoma
13 747 Market Street, #737
14 Tacoma, WA 98402
1 5 Grantee: Port of Tacoma, Director of Contracts
P.O. Box 1837
16 Tacoma, WA 98401
1 7 With copy to: Port General Counsel (provided the City has been
18 informed of the Port Counsel's current address)
19 or to such other address as the foregoing parties hereto may from time-to-time
2o designate in writing and deliver in a like manner. All notices shall be deemed
21 complete upon actual receipt or refusal to accept delivery. Facsimile
22 transmission of any signed original document and retransmission of any signed
23
facsimile transmission shall be the same as delivery of an original document.
24
25
26
165 Ord 1 261 I.doc-JHC/lad -20-
LEG 004 (11/89)
Section 17. Assignment and Transfer of Franchise.
17.1 InaccordancewithTacomaCityCharterArticleV[11,Section8.5,
2
3 this franchise shall not be leased, assigned or otherwise alienated without the
4 express consent of the Grantor by ordinance, which approval shall not be
5 unreasonably withheld.
6 17.2 Subject to the foregoing, Grantee and any proposed assignee or
7 transferee shall provide and certify the following to the City not less than ninety
8
(90) days prior to the proposed date of transfer:
9
10 17.2.1 Complete information setting forth the nature, terms and
1 1 conditions of the proposed assignment or transfer;
12 17.2.2 All information reasonably required by the City of a
13 franchise applicant under Tacoma City Charter Article VI II and any applicable
14 provisions of the Tacoma Municipal Code, as it may be amended from time to
15
time, with respect to the proposed assignee or transferee;
16
17.2.3 Any other information reasonably required by the City; and,
17
18 17.2.4 An application fee which shall be set by the City, plus any
19 other costs actually and reasonably incurred by the City in processing and
20 investigating the proposed assignment or transfer.
21 17.3 No transfer shall be approved unless the assignee or transferee
22 has at least the legal, technical, financial, and other requisite qualifications to
23
carry on the activities of the franchisee granted hereunder.
24
25
26 166
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Ordl 261 l.doc-JHC/lad
LEG 004 (11/89)
17.4 Any transfer or assignment of this franchise without the prior
written consent of the City as set forth herein shall be void and shall result in
2
3 revocation of the existing permit or franchise.
4 Section 18. Reservation of Police Power.
5 All the rights and privileges granted in this franchise shall be governed by
6 the terms and conditions contained herein subject to the City's reservation of all
7 its police powers to enact ordinances that are necessary to protect the health,
8
safety and welfare of the general public.
9
Section 19. Termination.
10
I 1 19.1 Grantor may terminate this Agreement upon the occurrence of
12 any of the following events:
13 19.1.1 If Grantee materially breaches or otherwise fails to perform,
14 comply with or otherwise observe any of the terms and conditions of this
15 franchise or fails to maintain all required licenses and approvals from federal,
16
state, and local jurisdictions, and fails to cure such breach or default within thirty
17
18 (30) calendar days of Grantor's providing Grantee written notice thereof, or, if
19 not reasonably capable of being cured within thirty (30) calendar days, within
20 such other reasonable period of time as the parties may agree upon; or,
21 19.1.2 Grantee becomes insolvent, unable or unwilling to pay its
22 debts, or is adjudged a bankrupt; or
23
19.1.3 Grantee fails to maintain the full amount of, or to post a
24
performance bond as required under the terms of this franchise.
25
26
167 -22-
Ord1261 l.doc-JHC/lad
LEG 004 (11/89)
19.2 This Agreement shall not be terminated except upon a majority
1
2 vote of the City Council, after reasonable notice to Grantee and an opportunity
3 to be heard, provided that if exigent circumstances necessitate immediate
4 termination, the hearing may be held as soon as possible after the termination.
5 19.3 Grantor's right to terminate this franchise is in addition to and not
6 in limitation of any other remedy of Grantor at law or equity. Grantor's failure to
7 exercise such remedy at any time shall not waive Grantor's right to terminate or
8
assert any other remedy at law or equity for any future breach or default of
9
Grantee.
10
I 1 19.4 Termination of this franchise shall not release Grantee from any
12 liability or obligation with respect to any matter occurring prior to such
13 termination, nor shall such termination release Grantee from any obligation to
14 remove or secure the Facilities and restore the premises pursuant to Section 1 1
15
hereof.
16
Section 20. Legal Relations.
17
18 20.1 Grantee accepts any privileges granted hereunder by Grantor to
19 the franchised public right of way and other public property in an "as is"
20 condition. Grantee agrees that the City has never made any representations,
21 implied or express warranties or guarantees as to the suitability, security or
22 safety of Grantee's location of Facilities or the Facilities themselves in public
23
property or right of way or possible hazards or dangers arising from other uses
24
of the public right of way or other public property by the City or the general
25
26 public. Grantee shall remain solely and separately liable for the function,
-23- 168
Ord1261 1.doc-JHC/Iad
LEG 004 (I 1 /89)
testing, maintenance, replacement and/or repair of the Facilities or other
activities permitted hereunder.
2
3 20.2 Grantee hereby waives immunity under Title 51 RCW in any
4 cases involving the Grantor and affirms that the Grantor and Grantee have
5 specifically negotiated this provision, to the extent it may apply.
6 20.3 This franchise ordinance shall not create any duty on the City or
7 any of its officials, employees or agents and no liability shall arise from any
8
action or failure to act by the City or any of its officials, employees or agents in
9
10 the exercise of powers reserved herein. Further, this ordinance is not intended
I I to acknowledge, create, imply or expand any duty or liability of the Grantor with
12 respect to any function in the exercise of its police power or for any other
13 purpose. Any duty that may be deemed to be created in the City hereunder
14 shall be deemed a duty to the general public and not to any specific party,
15
group or entity.
16
20.4 This franchise shall be governed by, and construed in accordance
17
18 with, the laws of the State of Washington and the parties agree that, in any such
19 action brought hereunder, except actions based on federal questions, venue
20 shall lie exclusively in Pierce County, Washington.
21 Section 21. Grantee's Acceptance.
22 This franchise ordinance shall be completely void if Grantee shall not file
23
its unconditional acceptance of this franchise within thirty (30) calendar days
24
25
26
1 6 -9 -24-
Ord1261 l.doc-MC/lad
LEG 004 (11/89)
from the final passage of same by Council. Grantee shall file its unconditional
2 acceptance with the City's Finance Director and a copy of same with the City
3 Attorney's Office.
4 Section 22. Specific Performance.
5 The parties acknowledge that the covenants set forth herein are
6 essential to this franchise, and, but for the mutual agreements of the parties to
7 comply with such covenants, the parties would not have entered into this
8
franchise. The parties further acknowledge that they may not have an
9
10 adequate remedy at law if the other party violates such covenant. Therefore,
I 1the parties shall have the right, in addition to any other rights they may have, to
12 obtain in any court of competent jurisdiction injunctive relief to restrain any
13 breach or threatened breach of or otherwise to specifically enforce any of such
14 covenants contained herein should the other party fail to perform them after
5 notice as provided herein.
16
Section 23. Miscellaneous Provisions.
17
18 23.1 All the provisions, conditions, terms and requirements contained
19 herein shall be binding upon the Grantee's successors and assigns. All of
2o Grantee's privileges, obligations, and liabilities shall inure to its successors and
21 assigns equally as if they were specifically mentioned in this franchise wherever
22 the Grantee is so mentioned.
23
23.2 Any modification, change or alteration to this franchise shall only
24
be effective if completed in a written ordinance duly approved by City Council
25
26 approving said modification, change or alteration.
-25- i7o
Ordl 261 l.doc-JHC/lad
LEG 004 (11/89)
23.3 No failure by any of the foregoing parties to insist upon the strict
2 performance of any covenant, duty, agreement, or condition of this franchise or
3 to exercise any right or remedy consequent upon a breach thereof shall
4 constitute a waiver of any such breach or any other covenant, agreement, term
5 or condition. Any party hereto, by notice, and only by notice as provided herein
6 may, but shall be under no obligation to, waive any of its rights or any
7 conditions to its obligations hereunder, or any duty, obligation or covenant of
8
any other party hereto. No waiver shall affect or alter this franchise, and each
9
10 and every covenant, agreement, term and condition of this franchise shall
11 continue in full force and effect with respect to other then existing or subsequent
12 breach thereof.
13 23.4 The captions of this franchise ordinance are for convenience and
14 reference only and in no way define, limit, or describe the scope or intent of this
15
franchise.
16 Passed JUL 1 3 2010
17
18 Mayor
19 Attest:
20
21 City Clerk
22
23 Approved as to Form:
24
25 Deputy Chy Attorney
26
171 -26-
Ord 1 261 I.doc-JHC/lad
LFG 004 (II /89)
1 FRANCHISE ACCEPTANCE BY GRANTEE:
2 1, the undersigned official of the Port of Tacoma (the "Port"), am authorized to
3 bind the Port and to accept the terms and conditions of the foregoing franchise
(Ordinance No. which are hereby accepted by the Port this
4 @@ day of -1 20 -. The foregoing date shall constitute
the "Effective Date" of the Ordinance.
5
Port of Tacoma
6
7 By:
8
Name:
9
Title:
10
I 1Subscribed and sworn to before me this day of 2010.
12
13
14 Notary Public in and for the
State of Washington
15 My commission
expires
16
17 Received on behalf of the City this day of 2010.
18
19
Name:
2o Title:
21
22
23
24
25
26
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Ord 1261 l.doc-JHC/lad
LEG 004 (11/89)
Schedule I
"Franchised Area"
2
3 A meandering 5 Foot wide strip lying within the
northerly 75 feet of the Port of Tacoma Road Right of
4 Way described as follows:
5 Beginning at a point 45 Feet easterly of the
intersection of East 1 1th Street, as vacated by City of
6 Tacoma Ordinance 15312 dated April 18, 1955 and
7 the extended northerly margin of Port of Tacoma
Road as dedicated per the Corrected Plat of Port of
8 Tacoma Industrial Development District, First Addition
recorded March 20, 1957 under Auditor's File
9 Number 1782439, records of Pierce County,
10 Washington; thence Southeasterly, within said Port of
Tacoma Road Right of Way, to a point lying 250 Feet
11 Easterly of the easterly margin of Lincoln Avenue and
the Terminus of this described strip.
12
As further depicted within the As-Build drawings
13 attached hereto and incorporated herein by this
reference.
14
15 All situate in the Northeast and Southeast Quarter of
Section 34, and the Southwest Quarter of Section 35,
16 Township 21 North, Range 3 East of the W.M., City of
Tacoma, County of Pierce, State of Washington.
17
18
19
20
21
22
23
24
25
26
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170 Ordl 261 l.doc-MC/lad
LVG 004 (11/89)
CITY CLERK USE ONLY
RIO
"QUEST FORR, E C E i V E f1equest
Tacoma M O"INANCE F1 RESOLUT@T Ord./Res.
1. DATE: May 28, 201 0
k4 LL'
2. SPONSORED BY: COUNCIL MEMBER(s) N/A
3a. REQUESTING 4a. CONTACT (for questions): PHONE:
DEPARTMENT/DIVISIONIPROGRAM Jeff Lueders 591-5727
Information Technology / Enterprise
Applications Support / Citizen
Solutions / Cable Communications 4b. Person Presenting: PHONE:
and Franchise Services Jeff Lueders 591-5727
3b. "Do PASS" FROM Government
Performance and Finance
F@ Yes Scheduled for 6/16/10 4c. ATTORNEY: PHONE:
No 591-5638
To Committee as information only Jeff Capell
Did not go before a Committee
3c. DID THIS ITEM GO BEFORE THE
PUBLIC UTILITY BOARD?
F-1 Yes, on
Not required
get 0 er a
5. REQUESTED COUNCIL DATE: June 22, 201 0
(If a specific council meeting date is required, explain why; ion deadline, contract
expiration date, required contract execution date, public notice or hearing required, etc.)
6. SUMMARY AGENDA TITLE: (A concise sentence, as it will appear on the Council agenda.)
Granting a non-exclusive telecommunications franchise to Port of Tacoma, to construct, operate, and
maintain a telecommunications system within the City of Tacoma.
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?)
On April 15, 1997, the City Council passed a telecommunications rights-of-way ordinance, which
Ordinance was repealed and reenacted by the City Council on May 21, 2002, by Ordinance No. 26936
The City's telecommunications rights-of-way ordinance requires operators of telecommunications
systems to obtain a franchise to use and occupy City rights-of-way for their business purposes City staff,
in response to a franchise application received from Port of Tacoma have negotiated a franchise
agreement which establishes the contractual and legal charges, terms, and conditions for, and upon, the
construction, maintenance, and repair of their telecommunications system in conformance with the City
Council's telecommunications rights-of-way ordinance.
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
1 7 4'
cotclerk \forms \ ReqiiestResoliitionOrdiiiaitce.doc Office of tlw City Clerk (03/23/2009)
CITY CLERK USE ONLY
REQUEST (CONT) Request 12(011
Ord/Res 27 898
9. WHICHOFTHECITY'SSTRATEGIcGOALsDOEsTHISITEMSUPPORT?(CHECKTHEGOALTHATBESTAPPLIES)
A. EIA SAFE, CLEAN AND ATTRACTIVE COMMUNITY
B. A DIVERSE, PRODUCTIVE AND SUSTAINABLE ECONOMY
C. A HIGH-PERFORMING, OPEN AND ENGAGED GOVERNMENT
10. IFTHISCONTRACTISFORANAMOUNTOF$200,OOOORLESS,EXPLAINWHVITNEEDSLEGISLATIVEAPPROVAL:
11. FINANCIAL IMPACT: F-1 EXPENDITURE Z REVENUE
A. F No IMPACT (NO FISCAL NOTE)
B. F] YES, OVER $ 1 00,000, Fiscal Note Attached
C. Z 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
1431 IT Municipal $40,000.00 $40,000.00
Cable TV ($4,000 per year
for ten years)
If an expenditure, is it budgeted? Yes R No Where? Cost Center:
Acct
175
cotclerk\forins\ReqiiestResolittioii0rditiatice.doc Office of the City Clerk (03/23/2009)
Ordinance No. 27898
First Reading of Ordinance: JUN 2 2 2010
Final Reading of Ordinance: JUL 1 3 2010
Passed: JUL i 3 2010
Roll Call Vote:
MEMBERS AYES NAYS ABSTAIN ABSENT
Mr. Boe
Mr. Campbell
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
FM-a-yor Strickland
i:\ccagenda\agenda procedures and formslordinancevotingrecord.doc