HomeMy WebLinkAboutReg 2006-08-21 Item 7A - Ordinance - AT&T Corporation for Fiber Optic System in Right-of-Way Franchise
COUNCIL AGENDA SYNOPSIS
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ITEM No.
8/14/06
8/21/06
1(, (A.
CAS NUMBER: 06-086 IORIGINALAGEND,\DATE: AUGUST 14,2006
AGENPA lTE'1 DTI.E AT&T Corporation Franchise Agreement
CATEGORY ~ DiJ.C1lssion o };fotion o Resolf/tion [gJ OrdiliOIifi: o Bid Aword o Public Hearing o Otb<r
M/g Dak 8114106 MtgD"', J.\l~ Dott M/gD"', 8121106 ..lfig-Dott J[(sDOlt JUg Do:?
SPONSOR o COllncil o };fqyor o Adm Sm- DvCV o Fi1Janf~ o Fire o Lgal o Pe>R o Police [gJPI!7
SPONSOR'S AT&T Corporation requests franchise approval to install, operate, and maintain a fiber
SU~~L\RY optic system in the City's right-of way. AT&T intends to expand its national fiber optic
system and has recently purchased conduits and associated fiber infrastructure from 360
Networks and Touch America. Other than accessing manholes and pulling fiber, no other
construction activity is expected in the City's right-of-way.
REVIEWED BY o cow Mtg o CA.&P Cmte o F&S Cmte o Transportation Cmte
[g] Utilities Cmte o .Arts Comm. o PaIks Comm. o Planning Comm.
DATE: 8/08/06
RECOMl\<ffiNDATIONS:
SPONSOR/ADMIN. ADDrove Ordinance arantina franchise.
Cm.~[]TfEE Unanimous approval; forward to COW.
COST IMPACT / FUND SOURCE
RXPEl'o.'DITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED
$ $ $
Fund Source:
Comments:
MTG.DATE RECORD OF COUNCIL ACTION
8/14/06 Forward to Regular Meeting
8/21/06
MTG.DATE ATTACHMENTS
8/14/06 Information Memo dated July 25, 2006
Ordinance with Exhibits
Utilities Committee minutes from August 8, 2006
8/21/06 Ordinance and attachments in final form
ITEM INFORMATION
City of Tukwila
Washington
Ordinance No.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, GRANTING A NON-EXCLUSIVE FRANClllSE TO AT&T
CORP., LEGALLY AUTHORIZED TO CONDUCT BUSIJI.'ESS IN THE
STATE OF WASHINGTON, FOR THE PURPOSE OF INSTALLING,
OPERATING, AND "MAINTAINING A TELECOMMUNICATIONS
SYSTEM IN CERTAIN PUBliC RIGHTS-OF-WAY IN THE CITY;
PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE
DATE.
WHEREAS, AT&T Corp., a New York Corporation, ("AT&T") is a
telecommunications company that, among other things, provides voice and data
services to customers. incluillng those in the Puget Sound Region; and
WHEREAS, AT&T's desired route through the City of Tukwila, hereinafter
referred to as "City," requires the use of certain portions of City rights-of-way for the
installation, operation, and maintenance of a telecommunications s}'stem; and
WHEREAS, the City Council has detemlined that the use of portions of the City's
rights-of-way for inst1lllation of telecommunications system is appropriate from the
standpoint of the benefits to be derived by local business and the region as a result of
such services; and
WHEREAS, the City Council also recogniz$ that the use of public rights-of-wa}'
must be restricted to allow for the construction of amenities necessary to serve the
future needs of the citizens of Tukwila and that the coordination. plannin~ and
management of the City's rights-of-way is necessary to ensure that the burden of costs
for the operations of non-municipal interests are not borne by the citizenry; and
WHEREAS, the Revised Code of Washington (RCW) authorizes the City to grant.
and regulate nonexclusive franchises for the use of public streets. right-of-ways. and
other public property for transmission of communications;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ~-
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. Non-excIusive Franchise Granted.
A The City hereby grants to AT&T, subject to the conditions prescribed in this
ordinance ("Franchise Agreement"), the franchise rights and authority to construct,
replace, repair, monitor, maintain, use and operate the equipment and facilities
necessary for a telecommunications facility within the City-owned rights-of-way
generally described in Exhibit A and hereinafter referred to as the "franchise area."
B. Such Franchise shall"not be deemed to be exclusive to AT&T and shall in no
way prohibit or limit the City's ability to grant other franchises. permits. or rights alon~
over. or under the areas to which this Franchise has been granted to AT&T; provided.
that such other franchises do not unreasonably interfere with AT&T's exercise of
franchise rights granted herein as determined by the City This Franchise shall in no
way interfere with existing utilities or in an}' way limit, prohibit, or prevent. the City
from using the franchise area or affect the City's jurisdiction over such area in any way
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Section 2. Authority The Director of Public Works or his or her designee is hereby
granted the authority to administer and enforce the terms and provisions of this
Franchise Agreement and may develop such lawful and reasonable rules, policies, and
procedures as he or she deems necessary to carry out the provisions contained herein.
Section 3. Franchise, Term. The franchise rights granted herein shall remain in full
force and effect for a period of three years from the effective date of this ordinance. This
Franchise shall not take effect and AT&T shall have no rights under this Franchise
unless a written acceptance with the City is received pursuant to Section 4 of this
agreement. If AT&T requests a Franchise renewal prior to the expiration date, the City
may, at the City's sole discretion, extend the term of this Franchise for up to one year
beyond the expiration date to allow processing of renewal. If the City elects to extend
the term of this Franchise, written notice of the extension shall be provided to AT&T
prior to the Franchise expiration date.
Section 4. Acceptance of Terms and Conditions. The full acceptance of this
Franchise and all the terms and conditions shall be filed with the City Clerk within 30
days of the effective date of this ordinance in the form attached hereto as Exhibit B.
Failure on the part of AT&T to file said consent within 30 days of the effective date of
this ordinance shall void and nullify any and all rights granted under this Franchise
Agreement.
Section 5. Construction Provisions and Standards. The follO\ving provisions shall
be considered mandatory and failure to abide by any conditions described herein shall
be deemed as non-compliance with the terms of this Franchise Agreement and may
result in some or all of the penalties specified in s.,ction 6.
A Permit Required. No construction, maintenance, or repairs (except for
emergency repairs) shall be undertaken in the franchise area without first obtaining
appropriate permits from the City of Tukwila, Department of Public Works. In case of
an emergency, AT&T shall within 24 hours of the emergency, obtain a permit from the
City of Tukwila Deparbnent of Public Works.
B. Coordination. All capital construction projects performed by AT&T
within the franchise area shall be inspected by a City inspector. All work and inspection
shall be coordinated with the Engineering Division of the Public Works Deparbnent to
ensure consistency with City infrastructure, future Capital Improvement Projects, all
developer improvements, and pertinent codes and ordinances.
C. Construction Standards. Any construction, installation, maintenance, and
restoration activities performed by or for AT&T within the franchise area shall be
constructed and located so as to produce the least amOurlt of interference with the free
passage of pedestrian and vehicular traffic. All construction, installation, maintenance,
and restoration activities shall be conducted such that they conform to City's_
development guidelines and standards and comply with Title 11 of the Tukwila
Municipal Code.
D. Underground Installation Required. All telecommunications cables and
junction boxes or other vaulted system components shall be installed underground
unless otherwise exempted from this requirement, in writing, by the Director of Public
Works.
E. Relocation.
1. Within 90 days following written notice from the City, AT&T shall, at
no expense to the City, temporarily or permanently remove, relocate, place
underground, change or alter the position of any facilities or structures within the right-
of-way whenever the City has determined that such removal, relocation,
undergrounding, change or alteration is reasonably necessary for the construction,
repairr maintenancer installation)' public safety.. or operation of any City public
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improvement in the City's governmental, non-proprietary capacity in or upon the
rights-of-way
2. AT&T may, after receipt of written notice requesting a relocation of its
facilities, submit to the City ...vritten alternatives to such relocation. Such alternatives
shall indude the use and operation of temporary transmitting facilities in adjacent
rights of way The City shall evaluate such alternatives and advise AT&T in writing if
one or more of the alternatives are suitable to accommodate the work, which would
otherwise necessitate relocation of the facilities. If requested by the City, AT&T shall
submit additional information to assist the City in making such evaluation The City
shall give each alternative proposed by AT&T fuJJ and fair consideration In the event
the City ultimately determines that there is no other reasonable alternative, AT&T shall
relocate its facilities as otherwise provided in this section.
F Removal or Abandonment. Upon the removal from service of any
service antennas or other associated structures, facilities and amenities, AT&T shall
comply with all applicable siandards and requirements prescribed by the City of
Tukwila Public Works Department for the removal or abandonment of said structures
and facilities. No facility constructed or owned by AT&T may be abandoned ,vithout
the express written consent of the City
G. Bond. Before undertaking any of the work, instailation, improvements,
construction" repair" relocation,. or maintenance authorized by this Franchise
Agreement, AT&T shall upon the request of the City, furnish a bond executed by AT&T
and a corporate surety authorized to operate a surety business in the State of
Washington, in such sum as may be set and approved by the City as sufficient to ensure
performance of AT&T's obligations under this Franchise Agreement, provided,
however, that such sum shall not exceed 150% of the cost of the teIecorrununications
system to be instailed by AT&T in the City rights-of-way At AT&T's sole option, AT&T
may provide alternate security in the form of an assignment of funds or a letter of
credit, in the same amount as the bond. All forms of security shall be in the form
reasonably acceptable to the City The bond shall be conditioned so that AT&T shall
observe all the covenants, terms, and conditions and shall faithfully perform all of the
obligations of this Franchise Agreement, and to repair or replace any defective AT&T
work or materials discovered in the Citts roads, streets, or property
H. "One-Call" l""cation & Uabillty. AT&T shall subscribe to and maintain
membership in the regional "One-caIl" utility location service and shall promptly locate
all of its lines upon request. The City shall not be liable for any damages to AT&T's
system components or for interruptions in service to AT&T cu.stomers which are a
<!irect result of work performed for any City project fer which AT&T has failed to
properly locate its lines and facilities within the prescribed time limits and guidelines
established by One-Call. The qty shall also not be liable for any damages to the AT&T
system components or for inteIruptiOns in service to AT&T cu.stomers resulting from-
work performed under a permit issued by the City
1. As-Built Plans Required. AT&T shall maintain accurate engineering
plans and details of all installations within the City limits and shall provide such
information in both paper form and electronic form using the most current Autocad
version prior to close-out of any permits issued by the City and any work undertaken
by AT&T pursuant to this Franchise Agreement. The City shall determine the
acceptability of any as-built submittals provided under this section.
J. Recovery of Costs. AT&T shaJJ be subject to all permit fees associated
with acth~ties undertaken through the authority granted in this Franchise Agreement
or under ordinances of the City \Vhere the City maus costs and expenses for review or
inspection of activities undertaken through the authority granted in this Franchise
Agreement or any ordinances relating to the subject for which permit fees have not
been established, AT&T shall pay such reasonable costs and expenses direcHy to the
City
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K. Vacation. It at any time, the City shall vacate any City road, right-of-way
or other City property which is subject to rights granted by this Franchise Agreement
and said vacation shall be for the purpose of acquiring the fee or other property interest
in said road, right-of-way or other City property for the use ot the City, in either its
proprietary or governmental capactty, then the City may, at its option and by giving 30-
days written notice to AT&T, terminate this Franchise Agreement with reference to
such City road, right-of-way or other City property so vacated, and the City shall not be
liable for any damages or loss to AT&T by reason of such termination other than those
provided for in RCW 35.99
Section 6. Franchise Compliance.
A. Franchise Violations. The failure by AT&T to fully comply with any of the
provisions of this Franchise Agreement may result in a written notice from the City,
that describes the violations of the franchise and requests remedial action within 30
days of receipt of such notice. If AT&T has not attained full compliance at the end of the
3O-day period following receipt of the violation notification, the City may declare an
immediate termination of all franchise rights and privileges, provided that full
compliance was reasonably possible within that 3O-day period.
B. Emergency Actions.
1. If any of AT&T's actions, or any failure by AT&T to act to correct a
situation caused by AT&T, is deemed by the City to create a threat to life or property,
the City may order AT&T to immediately correct said threat or, at the City's discretion,
the City may undertake measures to correct said threat itself; provided that, when
possible, the City shall notify AT&T and give AT&T an opportunity to correct said
threat before undertaking such corrective measures. AT&T shall be liable for all costs,
expenses, and damages attributed to the correction of such an emergency situation as
undertaken by the City to the extent that such situation was caused by AT&T and shall
further be liable for all costs, expenses, and damages resulting to the City from such
situation and any reimbursement of such costs to the City shall be made within 30 days
of written notice of the completion of such action or determination of damages by the
City The failure by AT&T to take appropriate action to correct a situation caused by
AT&T and identified by the City as a threat to public or private safety or property shall
be considered a violation of franchise terms.
2. If during construction or maintenance of AT&T's facilities any damage
occurs to an underground facility, and the damage results in the release of natural gas
or other hazardous substance or potentially endangers life, health, or property, AT&T
or its contractor shall immediately call 911 or other local esnergency response number.
C. Other Remedies. Nothing contained in this Franchise Agreement shall limit
the City's available remedies ,in the event of AT&T's failure to comply with the_
provisions of this Franchise Agreement, to include but not limited to, the City's right to
a Iawsu.it for specific performance and/ or damages.
D. Removal of System. In the event that this Franchise Agreement is terminated
as a result of violations of the terms of this Franchise Agreement, AT&T shall at its sole
expense, promptly remove all system components and facilities, provided that the City,
at its sole option, may allow AT&T to abandon its facilities in place.
Section 7 Insurance.
A. AT&T shall maintain liability insurance written on a per-occurrence basis
during the full term of this franchise for persona! injuries and property damages. The
policy shall contain coverage in the amounts and conditions stipulated in Title 11 of the
Tukwila Municipal Code.
B. Such insurance shall specificaIIy name as additiona! insured, the City, its
officers, and employees, shall apply as primary insurance, shall stipulate that no
msurance affected by the City will be called on to contribute to a loss covered
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thereunder, and shall further provide that the policy shall not be modified or canceled
during the life of the permit or Franchise Agreement without giving 3D-days written
notice to the City Notice shall be by certified mail, return receipt requested to the City
C. If the City determines that circumstances warrant an increase in insurance
coverage and liability limits to adequately cover the risks of the City, the City may
require additional insurance to be acquired. The City shall provide written notice
should the City exercise its right to require additional insurance.
Section 8. Other Permits & Approvals. Nothing in this Agreement shall relieve
AT&T from any obligation to obtain approvals or necessary permits from applicable
federal, state, and City authorities for all activities in the franchise area.
Section 9. Transfer of Ownership.
A. The rights, privileges, benefits, title, or interest provided by this franchise shall
not be sold" transferred, assigned! or othenvise encumbered, without the prior written
consent of the City, ,vith such consent not being unreasonably withheld or delayed. No
such consent shall be required, however, for a transfer in trust, by other hypothecation.
or by assignment of any rights, title, or interest in AT&Ts telecommunications system
in order to secure indebtedness. Approval shall not be required for mortgaging
purposes provided that the collateral pledged for any mortgage shall not include the
assets of this franchise. Approval shall not be required for any transfer from AT&T to
another person or entity controlling. controlled by, or under common control with
AT&T.
B. In any transfer of this franchise which requires the approval of the City, AT&T
shall show that the recipient of such transfer has the technical ability, financial
capability, and any other legal or general qua1lfications as reasonably determined by the
City to be necessary to ensure that the obligations and terms required under this
Franchise Agreement can be met to the full satisfaction of the City The qua1lfications of
any transferee shall be determined by hearing before the City Council and the approval
to such transfer shall be granted by resolution of the City Council. Any administrative
costs associated ,vith a transfer of this franchise which require the approval of the City,
shall be reimbursed to the City within 30 days of such transfer.
Section 10. Administrative Fees.
A. Pursuant to the Revised Code of Washington (RCW), the City is precluded
from imposing franchise fees for "telephone bw;inesses" defined in RCW 82.G4.065,
except that fees may be collected for administrative expenses related to such franchise.
AT&T does hereby warrant that its operations, as authorized under this franchise, are
those of a telephone business as defined in RCIN 82.0!.065.
B. AT&T shall be subject to a $5,000 administrative fee for reimbursement of
costs associated ,vith the preparation. processing, and approval of this Franchise
Agreement. These costs shall include, but not be limited to, wages, benefits, overhead
expenses, equipment, and supplies associated with such tasks as plan review, site visits,
meetings, negotiations, and other functions critical to proper management and
oversight of City's right-of-way Administrative fees exclude normal permit fees as
stipulated in Title 11 of the Tukwila Municipal Code. Payment of the one-time
administrative fee is due 30 days after franchise approval.
C. In the event AT&T submits a request for work beyond scope of original
franchise, or submits a complex project that requires significant comprehensive plan
review, or inspection, AT&T shall reimburse City for franchise amendment and
expenses associated with the project. AT&T shall pay such costs within 30 days of
receipt of bill from the City
D. Failure by AT&T to make full payment of bills within the time specified shall
be considered sufficient grounds for the termination of all rights and privileges existing
under this ordinance utilizing the procedures specified in Section 6 of this ordinance.
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Section 11. Notices. Any notice to be served upon the City or AT&T shall be
deli\'ered to the following addresses respectively.
City ofTukwila
Office of the City Clerk
6200 Southcenter Bo,uJevard
Tukwila W A 98188
AT&T Corp.
Right-of-Way Engineering
3001 Cobb Parkway, l'-.TW - Room 162
Atlanta GA 30339
with a copy to:
AT&T Enterprise Serv:ices, Inc.
Law Department
175 East Houston Street - 210
San Antonio, TX 78205
Attention: General Attorney
Section 12. Indemnification.
A. AT&T shall use reas6nable and appropriate precautions to avoid damage to
persons or property in the construction... installationJ repair, operatioI\- and maintenance
of its structures and facilities. AT&T shall indemnify and hold the City harmless from
all claims, actions or damages, including reasonable attorney's and expert witness fees,
which may accrue to or be suHered by any person or persons, corporation or property
to the extent caused in part or in whole by any negligent act or omission of AT&T, its
officers, agents, servants or employees, carried on in the furtherance of the rights,
benefits, and privileges granted to AT&T by this Franchise. In the event any claim or
demand is presented to or filed with the City which gives rise to AT&T's obligation
pursuant to this section, the City shall, within a reasonable time, notify AT&T thereof
and AT&T shall have a right, at its election, to settle or compromise such claim or
demand. In the event any claim or action is commenced in which the City is named a
party, and which suit Or action is based on a claim or demand which gives rise to
AT&T's obligation pursuant to this section, the City shall promptly notify AT&T
thereot and AT&T shall, at its sole cost and expense, defend such suit or action by
attorneys of its own election. In defense of such suit or action, AT&T may, at its election
and at its sole cost and expense... settle or compromise such suit or action. This section
shall not be construed to require AT&T to:
1. protect and save the City harmless from any claims, actions, or damages;
2 settle or compromise any claim.. demand.. suit; or action;
3. appear in or defend any suit or action; or,
4. pay any judgment or reimburse the City's costs and expenses (including
reasonable attorney's fees), to the extent such claim arises out of the negligence or
intentional acts of the City, its employees, agents or independent contractors.
B. To the extent of any concurrent negligence between AT&T and the City,
AT&T's obligations under this paragraph shall only extend to its share of negligence or
fault. The City shall have the right at all times to participate through its own attorney in
any suit or action which arises out of any right, privilege, and authority granted by or
exercised pursuant to this Franchise when the City determines that such participation is
required to protect the interests of the City or the public. Such participation by the City
shall be at the City's sole cost and expense.
C. With respect to the performance of this Franchise and as to claims against the
City, its officers, agents and employees, AT&T expressly waives its immunity under
Title 51 of the Revised Code of Washington, the Industrial Insurance Act, for injuries to
its officers, agents and employees and agrees that the obligation to indemnify, defend
and hold harmless provided for in this paragraph extends to any cJaim brought by or
on behalf of AT&T's officers, agents or employees. This waiver is mutually negotiated
by the parties.
Section 13. Severability If any section, sentence, clause or phrase of this
ordinance is held to be invalid or unconstitutional by a court of competent jurisdiction,
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either party may deem the entire ordinance to be affected and thereby nullified.
However, in the event that a determination is made that a section.. sentence, clause, or
phrase in this ordinance is invalid or unconstitutional, the parties may agree to treat the
portion declared invalid or unconstitutional as severable and maintain in force the
remaining provisions of this ordinance; provided that, if the City elects, nithout
agreement by AT&T, to enforce the remaining provisions of the ordinance, AT&T shali
have the option to terminate the Franchise Agreement.
Section 14. Reservation of Rights. The parties agree that this agreement is
intended to satisfy the requirements of ali applicable laws, administrative guidelines,
rules, orders, and ordinances. Accordingly, any provision of this agreement or any local
ordinance which may conflict with or ,-tolate the law shall be invalid and
unenforceable, whether occurring before or after the execution of this agreement.. it
being the intention of the parties to preserve their respective rights and remedies under
the law, and that the execution of this agreement does not constitute a waiver of any
rights or obligations by either party under the law
Section 15. Police Powers. Nothing contained herein shall be deemed to affect the
City's authority to exercise its police powers. AT&T shall not by this Franchise
Agreement obtain any vested rights to use any portion of the City right-of-way except
for the locations approved by the City and then only subject to the terms and conditions
of this Franchise Agreement. This Franchise Agreement and the permits issued
thereunder shall be governed by applicable City ordinances in effect at the time of
application for such permits.
Section 16. Future Rules, Regulations, and Specifications. AT&T ac!mowledges
that the City may develop rules, regulations, and specifications, including a general
ordinance or other regulations governing telecommunications operations in the City
Such regulations, upon written notice to AT&T, shall thereafter govern AT&Ts
activities hereunder; provided, however, that in no event shall regulations:
A materially interfere with or adversely affect AT&Ts rights pursuant to
and in accordance with this Franchise Agreement; or
B. be applied in a discriminatory manner as it pertains to AT&T and other
similar user of such facilities.
Section 17 Effective Date. This ordinance, or a summary thereof, shall be
published in the official newspaper of the City, and shall take effect and be in full force
and effect five days after passage and publication as provided by law
PASSED BY TIffi CITY COUNCIL OF TIffi CITY OE TIJKIVILA, IV ASHINGTON,
at a Regular Meeting thereof this day of . 2006.
ATTESTI AU1BENTICATED:
Steven M. Mullet, Mayor
Jane E. Cantu, CMC, City Oerk
APPROVED AS TO FORt"! BY
Filed n-tth the City Oerk:
Passed by the City Cmmcll:
Published:
Effective Date:
Ordinance Number:
Office of the City Attorney
Attachments: Exhibit A, Fiber Optic System
Exhibit A-l, AT&T Fiber Optic Network ;v!ap, dated 61'}:? 106
Exhibit B, Acceptance Form
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EXHIBIT A
FRAt'tCHISE AGREEiVIE1'\'T
AT&T CORPORATION
Fiber Optic System
AT&T's fiber optic system enters Tukwila fi:om the south on West Valley Highway at S
180th Street. It continues nor1:b, on West Valley Highway to Southcenter Boulevard.
From this point it continues north on Interuban Avenue S to East Marginal Way S. On
East Marginal Way S, it continues north to Boeing Access Road, then east on Boeing
Access Rd to Airport Way S and finally north on Airport Way S to Seattle.
AT&T acquired another fiber optic system fi:om Touch America. The system enters
Tukwila on Southcenter Boulevard (S 154t!1 Street) at Tukwila International Boulevard.
It then continues east along Southcenter Boulevard for a distance of approximately 5,000
feet where it dead ends.
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EXHIBIT B
FRAt'lCHISE AGREEMEi\'T ACCEPTANCE FORM
AT&T CORPORATION
Date:
City OfTukwila
City Clerks Office
6200 Southcenter Blvd
Tukwila, WA 98188
Re: Ordinance
Adopted
Dear Ms. Cantu,
In accordance with and as required by Section A of City ofTu1.".vila Ordinance No.
(the "Ordinance"), passed by the City Council and approved by the
Mayor on , AT&T hereby aIXepts the tenns, conditions and
obligations to be complied with or perfonned by it under the Ordinance.
Sincerely,
Signature
Printed Name & Title