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HomeMy WebLinkAboutORD 4906CITY OF RENTON, WASHINGTON ORDINANCE NO. 4906 AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON, GRANTING UNTO TIME WARNER TELECOM OF WASHINGTON, LLC, A DELAWARE LIMITED LIABILITY CORPORATION, ITS SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE, AUTHORITY AND FRANCHISE TO INSTALL FIBER OPTICS CABLE UNDERGROUND TOGETHER WITH APPURTENANCES THERETO, UPON, OVER, UNDER, ALONG, ACROSS THE STREETS, AVENUES AND ALLEYS OF THE CITY OF RENTON FOR THE PURPOSE OF INSTALLING INFRASTRUCTURE TO OPERATE AS A BROADBAND DIGITAL COMMUNICATION PROVIDER AND CARRIER UTILIZING SWITCHING AND FIBER OPTIC FACILITIES. THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DO ORDAIN AS FOLLOWS: SECTION I. Grant of Franchise- There is hereby given and granted unto Time Warner Telecom of Washington, LLC ("TWTC"), a Delaware limited Corporation, its successors, and assignees for a period of 10 years from the effective date of this franchise, the rights, privileges, and authority to provide telecommunications service to persons within the City and lay down, construct, operate, maintain, replace, alter, remove and repair one or more communication lines, together with all equipment support structures and appurtenances of Franchisees' systems, for the telecommunications under, along, over, below and through certain pubhc right-of-way and other public lands within the City of Renton. The following City codes shall apply to this agreement in their entirety: City Code 5-19-05 5-19-09 5-19-10 5-19-11 5-19-12 Time Warner Telecom 1 ORDINANCE NO. 4906 SECTION II. Non-Exclusive Franchise, Section 5-19-5.E: This Franchise is granted upon the express condition that it shall not be deemed or held to be an exclusive franchise in, along, over, through, under, below or across any of said pubhc right- of-ways, public thoroughfares, sidewalks, and utility easements within the City of Renton. Such franchise shall in no way prevent or prohibit the City of Renton or its tenants from using any of said roads, streets or other public or tenant properties or affect its jurisdiction over them or any part of them. The City of Renton retains full power to make all necessary changes, relocations, repairs, maintenance, establishment, improvement, and dedication of same as they may deem fit including the dedication, estabhshment, maintenance and improvement of all new right-of-ways and thoroughfares and other public properties of every type and description. TWTC, as Franchisee herein, agrees and covenants at its sole cost and expense to protect, support, temporarily disconnect, relocate or remove from any street any of its installations when so required by the City of Renton, upon not less then ninety (90) days prior written notice. Cause for the City of Renton to issue such notice include, but are not limited to, traffic conditions, pubhc safety, street vacations, dedications of new right-of-ways and the establishment and improvement thereof, freeway construction, change of estabhshment of street grade or the construction of any pubhc improvement or structure by Government agency acting in a Government capacity. The Franchisee shall in all such cases have the privilege to temporarily by-pass, in the authorized portion of the same street, upon approval by the City of Renton, any section of the System required to be temporarily disconnected or removed. SECTION 111. Location of Facilities: The location of facilities shall be underground or in accordance with City code 5-19-5.1.1 through 4 as conditions warrant. SECTION IV. Construction Permit, Section 5-19-10.C: A Construction permit application with three (3) sets of plans is required for each proposed project. AH construction, and installation of work wherever same crosses any of the pubhc properties shall be done under the supervision of the duly authorized representative of the Planning/Building/Public Works Administrator, and Franchisee shall timely submit unto the Public Works Administrator, prior to any such work, detailed plans and specifications of any proposed work. The location of any Permit on public property in a street, Municipal Airport, or other Time Warner Telecom 2 ORDINANCE NO. 4906 public area shall be subject to approval of the Pubhc Works Administrator or his authorized representative and such approval shall not be unreasonably withheld and shall be provided in writing. The Franchisee shall further inform the City of any time or date that the Franchisee is performing work within the franchised area to allow the City to inspect such work. Work within City Streets shall be accomplished through boring rather than open trenching whenever reasonably feasible. New facilities installed within City right-of-ways shall be located outside of the street travel and parking lanes, whenever feasible and will not delay or increase the costs of the proposed facilities. The Construction permit fee is stated in Section 18 of this agreement document. SECTION V. System Components: All components of the System and other components of any communication line, to be placed within any street right-of-way, Municipal Airport, or other pubhc property shall be designated, manufactured and installed in accordance and in full compliance with industry standards and applicable ordinances. Placement of conduit in street crossings shall be PVC schedule 80 or steel conduit. Schedule 40 PVC is acceptable in areas outside the roadway. SECTION VI. Permanent Records, Section 5-19-10.M: The Franchisee shall at all times keep full and complete plans, profiles and records showing the location, installed depth and size of all its installations and systems wherefore laid in the City and hereafter installed. Such plans and records shall be kept current by the Franchisee. As-built plans and records shall be available to the City at all times upon request. A telephone contact number for requested plans shall be supplied to the City and kept current. SECTION VII. Planning for Construction: During any period of construction, all surface structures, if any, shall be erected and used in such places and positions within said pubhc right-of-way, and other pubhc properties so as to interfere as little as possible with the free passage of traffic and the free use of adjoining property and tenants and Franchisee shall at all times post and maintain proper barricades during such period of construction as required by the laws and statutes of the State of Washington. The Franchisee shall avoid the use of arterials as designated by the City of Renton Arterial Street Map, Time Warner Telecom 3 ORDINANCE NO. 4906 defined by the Transportation Department, and recently constructed or paved overlaid streets as much as possible. Specific route alignments are subject to approval by the City via the construction permitting process. All components of the System constructed and installed by the Franchisee underground within the City of Renton shall be located in approved locations, buried and installed to a depth of not less than three feet and as otherwise provided for in the aforesaid Code, the laws of the State of Washington, and the ordinances of the City of Renton, now or hereafter in force, regulating such installations. Franchisee shall establish and maintain at all times adequate facilities on the portion of each of the systems installed under the authority of this franchise, and elsewhere on the system, to promptly localize operating troubles and to nrinimize the effects thereof, whether on City streets or on their use by the public. All trucks, vehicles and equipment working in City right-of-way shall be marked with company logo, including company name and phone numbers. Approved traffic control plans shall be utilized for each installation when working in the pubhc right-of-way (Section 5-19-1 l.F). The Franchisee shall be responsible for all work by their contractor meeting the requirements of the Manual on Uniform Traffic Control Devices (MUTCD) for all work within the pubhc right-of-ways. The Franchisee shall be responsible for notifying the Valley Communication Center for any street closures, a minimum of 24 hours prior to said closure. The Franchisee shall subscribe to and maintain membership in the regional "One-Call" utility location service and shall promptly locate all of its lines upon request. SECTION VIII. Restoration And Repair of Facilities, Section 5-19-10.H: Franchisee, its successors and assignees, hereby agrees and covenants to promptly repair any damage to City or tenant property of every type and nature and all other City or tenant improvements caused by failure of Franchisee's work during the life of this Franchise. Should it be necessary to make any excavation witliin any pubhc right-of-way, in the laying, constructing, maintenance, removing, replacing, altering or repairing of all or any portion of the system, Franchisee shall without delay and at Franchisee's sole cost and expense, restore the surface of said right-of-way or other pubhc or tenant property to at least the same condition immediately Time Warner Telecom 4 ORDINANCE NO. 4906 prior to any such installation and construction. In case of damage by the Franchisee to said streets, avenues, roads, alleys, lanes, public places and ways, to the pavement, turnouts, gutters, ditches, walks, poles, pipes, plantings, rail, bridges, trestles, wharves or landings, and/or other appurtenances and improvements, the Franchisee shall immediately repair all damage at its sole cost and expense. Franchisee shall comply with all ordinances and regulations of the City of Renton, Washington, regarding such excavation and whenever deemed necessary by the Pubhc Works Administrator shall be required to post a performance bond in favor of the City warranting, among other things, that such restoration work will be done promptly to a condition equal or better than the original condition and in a proper, workman like manner. Where concrete encased recorded monuments have been disturbed or displaced Franchisee shall restore the monument to federal state and local standards and specifications. All restoration of pubhc streets, sidewalks and other amenities shall conform to current City of Renton Standard Specifications for Road, Bridge and Municipal Construction and the City of Renton's Trench Restoration Standards. As a condition of receiving the right to work within the public right-of-way, Time Warner Telecom of Washington, LLC, shall assume full responsibility for using materials and installation methods that are in full comphance with City Standards and shall verify this by submittal of documentation of materials and testing reports when requested by the City. All costs for performing on-site testing, such as Compaction tests, shall be borne by Franchisee. SECTION IX. I Iold Harmless Agreement: The Franchisee, its successors and assignees, agrees and covenants to mdemnify and hold harmless the City of Renton from and against any and all habihty, loss cost, damage, whether to persons or property, or expense of any type or nature to the extent it arises from any negligent act or omission or vvillful misconduct of Franchisee, its successors and assigns arising from or connected to the Franchisee's work under this Franchise, provided, however, that in case any suit or action is instituted against the City by reasons of any such damage or injury, City shall (i) cause written notice thereof to be given unto Franchisee and (ii) give all reasonably requested assistance in defense or settlement of such claim at Franchisee's expense, and (hi) grant Franchisee the right to control the defense or settlement of such claims. Time Warner Telecom 5 ORDINANCE NO. 4906 SECTION X. Liability Insurance, Section 5-19-1G.O, P, Q & R: Franchisee shall maintain in full force and effect throughout the term of this franchise agreement, Comprehensive General Liability insurance coverage, inclusive of umbrella coverage, insuring both the Franchisee and the City and its elected and appointed officers, officials, agents and employees as additionally insured as follows: 1. Comprehensive general liability insurance, inclusive of umbrella coverage, with limits not less than: a. Five million dollars ($5,000,000) for bodily injury or death to each person; b. Five milhon dollars ($5,000,000) for property damage resulting from any one accident; 2. Automobile habihty insurance for owned, non-owned and hired vehicles, inclusive of umbrella coverage, with a limit of three milhon dollars ($3,000,000); 3. Worker's compensation with statutory limits and employer habihty insurance, inclusive of umbrella coverage, with limits of not less than one milhon dollars ($1,000,000); and 4. Comprehensive form premises - Operations, explosions and collapse hazard, underground hazard and products completed hazard, inclusive of umbrella coverage, with limits of not less than three rnillion dollars ($3,000,000). The Franchisee shall submit to the City Clerk evidence that it has in full force and effect and shall keep in full force and effect during the life of the Franchise, pubhc habihty insurance naming Franchisee and the City of Renton as additional insured with coverage as stated above. It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until 30 days after receipt by the City, by registered mail, of a written notice addressed as required by such intent to cancel or not renew. After receipt by the City of said notice, and in no event later than ten days prior to said cancellation, the Franchisee shall obtain and furnish to the City replacement insurance policies meeting the requirements of this section. SECTION XL Revocation or Termination of Grant, Section 5-19-10.U and V: For the purpose of compelling comphance by the Franchisee with all the terms and conditions of this Franchise and the maintenance of said System and facilities in good condition, City retains the right to end and terrmnate and fully forfeit the Franchise herein granted, within (30) thirty days after written notice unto the Franchisee, whenever the Franchisee fails to comply Time Warner Telecom 6 ORDINANCE NO. 4906 with any of the material terms and conditions hereof, provided that Franchisee has a reasonable length of time in which to cure such noncompliance. Upon forfeiture the City shall have the right to require the Franchisee to remove any and all of its systems within the City of Renton, all at the Franchisee's cost and expense, and to promptly and timely restore all roads and other pubhc properties to the condition immediately prior to any such forfeiture and termination. However, the Franchisee may apply to the city for an extension of time to comply due to unavoidable delays and events beyond its control. The extension of time will not be unreasonably withheld as determined by the City. SECTION XII. Reservation of Rights, Section 5-19-12.D: The Franchisee acknowledges that its rights hereunder are subject to the legitimate rights of the police power of the City at all times and the City shall enforce general ordinances necessary to protect the safety and welfare of the pubhc. The Franchisee agrees to comply with all applicable general laws enacted by the City as long as such regulations do not increase the burden or impair the rights of the franchise hereunder. The laying, construction, installation, maintenance and operation of the System and facilities in connection therewith shaU not preclude the City of Renton, its authorized agents, contractors and representatives from blasting, grading, excavating or doing other necessary or pubhc works over, unto, abutting, or contiguous to Franchisee's System provided, however, that Franchisee shall be given (10) ten working days written notice of any such blasting, grading, or excavating so that the Franchisee may take proper steps to protect its communication line and facilities. The parties agree that this Franchise is intended to satisfy the requirements of all applicable laws, administrative guidelines, rules, orders and ordinances (the "Law"). Accordingly, any provision of this Franchise or any local ordinance, which may conflict with or violate the Law, shah be invalid and unenforceable, whether occurring before or after the execution of this Franchise, it being the intention of the parties (i) to preserve their respective rights and remedies under the Law, and (ii) that the execution of this Franchise does not constitute a waiver of any rights or obligations by either party under the Law. The provisions of this Franchise shall be Time Warner Telecom 7 ORDINANCE NO. 4906 applied to all telecommunications providers in a competitively neutral and nondiscriminatory manner. SECTION XIII. Damage, Injury or Loss, Section 5-19-10.K: Except for damage, injury or loss caused by the City of Renton, the Franchisee shall have no recourse whatsoever against the City of Renton for any loss cost, expense, or damage arising out of any provision or requirement of this Franchise or the enforcement thereof. This Franchise does not relieve the Franchisee of any requirement of any City Ordinance, rule or regulation, or specification of the City, including but not limited to any requirement relating to street work, street excavation permits and fees therefore, or the use, removal or relocation of property and streets. No privilege nor exemption is granted or conferred unto the Franchisee by this Franchise except those specifically prescribed herein, and any such privilege claimed under this Franchise by the Franchisee in any street shall be subordinate to any prior lawful occupancy of the street or any subsequent improvement or installation therein. SECTION XIV. Discontinued Franchise, Section 5-19-10.1.1-5: In the event the use of any permitted property is permanently discontinued by Franchisee, or no Permit has been obtained therefore upon expiration of this Franchise, or within thirty days after any termination of this Franchise, then the Franchisee shall promptly remove from the streets and other properties all its facilities, other than any the City may permit to be temporarily or permanently abandoned. SECTION XV. Ownership Transfer, Section 5-19-10.T.1-6: This Franchise may not be assigned to a successor or assignees without the prior written consent of the City Council of the City of Renton. The city will not delay or withhold written consent without just cause. For the purposes of this section, a merger or corporate reorganization of any entity controlling, controlled by or under common control with Franchisee shall not be deemed a transfer of assignment. SECTION XVI. Security Device, Section 5-19-10.Q: The Franchisee shah, within (10) ten days after the award of this Franchise, file with the City of Renton Pubhc Works Department, and at all times thereafter, maintain in full force and effect a performance bond written by a corporate surety in the sum of $25,000. The bond shall Time Warner Telecom 8 ORDINANCE NO. 4906 contain a condition that the Franchisee shall observe aU the terms, covenants and conditions and faithfully perform all of the obligations of this franchise, and erect or replace any defective work or materials discovered in the replacement of the City's streets or property within a period of one (1) year from the date of replacement and acceptance of such repaired streets by the City. In the event of substantial change in volume of street space occupied by permitted properties, the City may permit or may require a corresponding change in the amount of such Bond, but in no event shall such bond amount exceed 100% of the estimated cost of the construction project. SECTION XVII. System Expansion: Upon apphcation to the City of Renton's Department of Planning/Building/Pubhc Works by the Franchisee, the Department of Public Works may authorize the Franchisee to install, construct and/or retain in City streets additional System expansions, as contemplated in Section 1 hereof, in manner satisfactory to the Department of Pubhc Works. Such additional installations shall be subject to all of the terms and conditions of this Franchise Agreement and to any such additional conditions as may be prescribed by the Department of Public Works as to any such additions. The City of Renton conducts both an annual pavement overlay program and a 6-year transportation improvement program for the repair and improvement of city streets. The city pubhshes updates to these programs annually. It is the City's intent that newly paved streets not be excavated or damaged within five years of pavement installation. It is therefore the Franchisee's responsibihty to obtain the city's annual pubhcations regarding the pavement overlay program and the 6-year transportation improvement program, and to schedule any system expansions or programmed maintenance operations in such a way as to avoid disturbing pavement within five years of installation. The City of Renton reserves the right to withhold issuance of permits for planned expansion or maintenance activities that will damage pavement within five years of its installation. SECTION XVIII. Telecommunications Fees: The Franchisee, its successors and assignee agree to pay annually to the City of Renton from and after the date of acceptance of this Franchise and during the period it shall remain in effect a utility tax of six per cent (6%) per annum of its gross exchange service receipts derived Time Warner Telecom 9 ORDINANCE NO. 4906 from the telecommunications located within the limits of said City of Renton as specified in City code 5-11-1. However, if the 6% per annum telecommunication (utility) tax tails below $200 annually than an administrative fee shall be applied up to $200. Payments are to be paid in monthly installments in accordance with City code 5-11-2 to the Finance and Information Service Administrator. a. Construction Permit Fee $50.00 Plus time & materials Cost. b. Administrative Fee $5,000.00 Franchisee does hereby agree to pay a one time Administrative fee for Franchise preparation and processing of $5,000. SECTION XFX. Applicant's Contacts: Any notices or information required to be given to parties under this Franchise Agreement may be sent to the following addresses unless otherwise directed. Time Warner Telecom of Washington, LLC Attn: Tina Davis 10475 Park Meadows Drive Littleton, CO 80124 With a copy to: Brian D. Thomas 520 SW Sixth Avenue, Suite 300 Portland, OR 97204 Renton City Hall Attn: Jan Illian Development Services, 6th Floor 1055 - S. Grady Way Renton, WA 98055 SECTION XX. Effective date: This Ordinance shall be in full force and effect from and after its passage, approval, and five days after its legal publication as provided by law, and provided it has been duly accepted by Franchisee as herein above provided. Time Warner Telecom 10 ORDINANCE NO. 4906 PASSED BY THE CITY COUNCIL this 4th day of June 2001. APPROVED BY THE MAYOR this 4th day of June 2001. Lawrence J. Warren, City Attorney Date of Publication: 6/8/2001 ( Summary) ACCEPTED BY FRANCHISEE, Time Warner Telecom of Washington, LLC this ' day of , 2001. *S> 'J. —^ TITLE ^f- ^uurro^y Signature Print Name TITLE Signature Print Name ORD.915:5/14/0 l:ma Time Warner Telecom 11