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HomeMy WebLinkAboutCOW 2010-04-12 Item 5D - Ordinance - AboveNet Communications for Telecommunications System FranchiseCAS NUMBER: 10-040 CATEGORY SPONSOR SPONSOR'S SUMMARY Fund Source: Comments: MTG. DATE 04/12/10 04/19/10 MTG. DATE 04/12/10 04/19/10 i` OLIO EXPENDITURE RI?QUIRED $0.00 Meeting Date 04/12/10 04/19/10 COUNCIL AGENDA .SYNOPSIS .jrepared by FI 14161 FI Initlals Mger review ATTACHMENTS Informational Memorandum dated 3/15/10 Draft Ordinance with Exhibits Minutes from the Utilities Committee meeting of 03/23/10 until review RECORD OF COUNCIL ACTION ITEM INFORMATION ORIGINAL AGENDA DATE: APRIL 12, 2010 AGIsNDA ITEM TITLE Ordinance to Renew AboveNet Communications Franchise Agreement ITEM No. D1sais ion Motion I !Resolution Ordinance n Bid Award n Public Hearing Other llftg Date 04/12/10 Mtg Date Mtg Date n Council n Mayor E Adm Svcs E DCD n Finance Fire Legal P &R Police Piil AboveNet Communications (formerly Metromedia Fiber Network Services) Ordinance No. 2145 expired on December 12, 2009. AboveNet Communications is a telecommunications company that provides customized network solutions and high bandwidth connectivity for financial, healthcare, and government entities. Council is being asked to approve the ordinance for the renewal of the AboveNet Communications franchise agreement for three years with an expiration date in April, 2013. Mtg Date 4/19/10 Mtg Date Mtg Date Mig Date RI sVU Wl?D BY COW Mtg. n CA &P Crnte 1 1 F &S Cmte n Transportation Cmte Utilities Crnte Arts Comm. n Parks Comm, n Planning Comm. DATE: 03/23/10 RECOMMENDATIONS: SPONSOR /ADMIN. Public Works COMMITTEE Unanimous Approval; Forward to Committee of the Whole COST IMPACT FUND SOURCE AMOUNT BUDGETED APPROPRIATION REQUIRED $0.00 $0.00 71 72 TO: DISCUSSION City of Tukwila INFORMATIONAL MEMORANDUM Mayor Haggerton Utilities Committee FROM: Public Works Director_= DATE: March 15, 2010 SUBJECT: AboveNet Communications Franchise Ordinance ISSUE AboveNet Communications Franchise Agreement renewal ordinance. BACKGROUND On December 12, 2006, City Council passed Ordinance No. 2145 (Franchise Agreement) authorizing AboveNet Communications to install, operate, and maintain a telecommunications system in the City's right -of -way. Ordinance No. 2145 expired on 12/12/09. AboveNet Communications (formerly Metromedia Fiber Network Services, Inc) is a telecommunications company that provides customized network solutions and high bandwidth connectivity. AboveNet's network is widely used in financial institutions, healthcare, government and businesses with significant bandwidth requirements. AboveNet's fiber optic system was constructed in 2000 through joint fiber optic construction projects with 360 Networks, McLeodUSA Incorporated, and Williams Communications. As depicted in Exhibit A of the Franchise ordinance, AboveNet has an extensive fiber optic infrastructure in the City. AboveNet has no immediate construction plans to expand its infrastructure in Tukwila, but will need to continue operating in the City's right -of -way. The Franchise Agreement has been coordinated with the City Attorney's office. This Ordinance will grant AboveNet a franchise agreement with the City for an additional three years. RECOMMENDATION Approve Ordinance for a Franchise Agreement with AboveNet Communications and consider this item at the April 12, 2010 Committee of the Whole Meeting and subsequent April 19, 2010 Regular Meeting. Attachment: Draft Franchise Ordinance W:\PW Eng\PROJECTS \Franchise \Infomation Memo AboveNet Franchise.doc Jim Haggerton, Mayor 73 74 DRAFT AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, GRANTING A NON EXCLUSIVE FRANCHISE TO ABOVENET COMMUNICATIONS, LEGALLY AUTHORIZED TO CONDUCT BUSINESS IN THE STATE OF WASHINGTON, FOR THE PURPOSE OF CONSTRUCTING, OPERATING AND MAINTAINING A TELECOMMUNICATIONS SYSTEM IN CERTAIN PUBLIC RIGHTS -OF- WAY IN THE CITY; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, AboveNet Communications, hereinafter referred to as "AboveNet," is a telecommunications company that, among other things, provides voice and data services to customers, including those in the Puget Sound region; and WHEREAS, AboveNet'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 system; and WHEREAS, the City Council has determined that the use of portions of the City's rights -of -way for installation of a 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 recognizes that the use of public rights -of -way 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, planning 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 non exclusive 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 TUKWILA, WASHINGTON, HEREBY ORDAINS AS FOLLOWS: Section 1. Non exclusive Franchise Granted. A. The City hereby grants to AboveNet, 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 AboveNet and shall in no way prohibit or limit the City's ability to grant other franchises, permits, or rights along, over or under the areas to which this franchise has been granted to AboveNet; provided, that such other franchises do not unreasonably interfere with AboveNet's exercise of franchise rights granted herein as determined by the City. This franchise shall in no way interfere with existing utilities or in any way limit, prohibit or prevent the City from using the franchise area or affect the City's jurisdiction over such area in any way. 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 W:\ Word Processing \Ordinances \AboveNet Franchise Agreement.doc FI:ksn 03/17/2010 Page 1 of 9 75 76 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 AboveNet shall have no rights under this franchise unless a written acceptance with the City is received pursuant to Section 4 of this agreement. If AboveNet 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 AboveNet 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 AboveNet 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 following 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 Section 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, AboveNet shall, within 24 hours of the emergency, obtain a permit from the City of Tukwila Department of Public Works. B. Coordination. All capital construction projects performed by AboveNet 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 Department 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 AboveNet within the franchise area shall be constructed and located so as to produce the least amount 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. Whenever the City causes a public improvement to be constructed within the franchise area, and such public improvement requires the relocation of AboveNet's facilities, the City shall provide AboveNet with written notice requesting such relocation, along with plans for the public improvement that are sufficiently complete to allow for the initial evaluation, coordination and the development of a relocation plan. The City and AboveNet shall meet at a time and location determined by the City to discuss the project requirements including critical timelines, schedules, construction standards, utility conflicts, as -built requirements, and other pertinent relocation plan details. 2. To ensure timely execution of relocation requirements, AboveNet shall, upon written request from the City, provide at AboveNet's expense, base maps, current as- built information, detailed relocation plan (including detailed schedule of relocation activities, identification of critical path, identification of facilities, and relocation W:\ Word Processing\ Ordinances \AboveNet Franchise Agreeuient.doc Fl:ksn 03/17/2010 Page 2of9 procedures), and other design, technical or operational requirements within the timeframe specified by the City. 3. AboveNet may, after receipt of written notice requesting a relocation of its facilities, submit to the City written alternatives to such relocation within the time specified by the City. Such alternatives shall include the use and operation of temporary facilities in adjacent rights of way. The City shall evaluate such alternatives and advise AboveNet 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, AboveNet shall submit additional information to assist the City in making such evaluation. The City shall give each alternative proposed by AboveNet full and fair consideration. In the event the City ultimately determines there is no other reasonable alternative, AboveNet shall relocate its facilities as otherwise specified in Section 5.E. 4. Upon final approval of the relocation plan by the City, AboveNet shall, at its own expense, unless otherwise prohibited by statute, and at the timeframe specified by 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, repair, maintenance, installation, public safety, or operation of any public improvement in or upon the rights -of -way. 5. If during the construction, repair, or maintenance of City's public improvement project an unexpected conflict occurs from AboveNet's facilities, AboveNet shall upon notification from the City, respond within 24 hours to resolve the conflict. F. Removal or Abandonment. Upon the removal from service of any service antennas or other associated structures, facilities and amenities, AboveNet shall comply with all applicable standards 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 AboveNet may be abandoned without the express written consent of the City. G. Bond. Before undertaking any of the work, installation, improvements, construction, repair, relocation, or maintenance authorized by this Franchise Agreement, AboveNet shall, upon the request of the City, furnish a bond executed by AboveNet 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 AboveNet's obligations under this Franchise Agreement, provided, however, that such sum shall not exceed 150% of the cost of the telecommunications system to be installed by AboveNet in the City rights -of -way. At AboveNet's sole option, AboveNet 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 AboveNet 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 AboveNet work or materials discovered in the City's roads, streets or property. H. "One -Call" Location Liability. AboveNet shall subscribe to and maintain membership in the regional "One -Call" utility location service and shall promptly locate all of its lines upon request. The City shall not be liable for any damages to AboveNet's system components or for interruptions in service to AboveNet customers which are a direct result of work performed for any City project for which AboveNet has failed to properly locate its lines and facilities within the prescribed time limits and guidelines established by One -Call. The City shall also not be liable for any damages to the AboveNet system components or for interruptions in service to AboveNet customers resulting from work performed under a permit issued by the City. I. As -Built Plans Required. AboveNet 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 AboveNet W:\ Word Processing Ordinances \AboveNet Franchise Agreement.doc Fl:ksn 03/17/2010 Page 3 of 9 77 78 pursuant to this Franchise Agreement. The City shall determine the acceptability of any as -built submittals provided under this section. J. Recovery of Costs. AboveNet shall be subject to all permit fees associated with activities undertaken through the authority granted in this Franchise Agreement or under ordinances of the City. Where the City incurs 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, AboveNet shall pay such reasonable costs and expenses directly to the City. K. Vacation. If, 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 of the City, in either its proprietary or governmental capacity, then the City may, at its option and by giving 30- days written notice to AboveNet, 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 AboveNet by reason of such termination other than those provided for in RCW 35.99. Section 6. Franchise Compliance. A. Franchise Violations. The failure by AboveNet 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 AboveNet has not attained full compliance at the end of the 30- 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 30 -day period. B. Emergency Actions. 1. If any of AboveNet's actions, or any failure by AboveNet to act to correct a situation caused by AboveNet, is deemed by the City to create a threat to life or property, financial harm, or cause a delay of the construction, repair or maintenance of the public improvement, the City may order AboveNet to immediately correct said threat, financial harm, or delay or, at the City's discretion, the City may undertake measures to correct said threat, financial harm or delay itself; provided that, when possible, the City shall notify AboveNet and give AboveNet an opportunity to correct within a specified time said threat, financial harm or delay before undertaking such corrective measures. AboveNet 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 AboveNet 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 AboveNet to take appropriate action to correct a situation caused by AboveNet and identified by the City as a threat to public or private safety or property, financial harm, or delay of the construction, repair or maintenance of the public improvement shall be considered a violation of franchise terms. 2. If during construction or maintenance of AboveNet'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, AboveNet or its contractor shall immediately call 911 or other local emergency response number. C. Other Remedies. Nothing contained in this Franchise Agreement shall limit the City's available remedies in the event of AboveNet's failure to comply with the provisions of this Franchise Agreement, to include but not limited to, the City's right to a lawsuit for specific performance and/ or damages. D. Removal of System. In the event this Franchise Agreement is terminated as a result of violations of the terms of this Franchise Agreement, AboveNet shall, at its sole W:\ Word Processing \Ordinances \AboveNet Franchise Agreementdoc FI:ksn 03/17/2010 Page 4 of 9 expense, promptly remove all system components and facilities, provided that the City, at its sole option, may allow AboveNet to abandon its facilities in place. Section 7. Insurance. A. AboveNet shall maintain liability insurance written on a per- occurrence basis during the full term of this franchise for personal 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 specifically name as additional insured, the City, its officers and employees; shall apply as primary insurance; shall stipulate that no insurance affected by the City will be called on to contribute to a loss covered 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 30 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 AboveNet 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 otherwise encumbered, without the prior written consent of the City, with 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 or any rights, title or interest in AboveNet's 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 AboveNet to another person or entity controlling, controlled by, or under common control with AboveNet. B. In any transfer of this franchise which requires the approval of the City, AboveNet shall show that the recipient of such transfer has the technical ability, financial capability, and any other legal or general qualifications 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 qualifications 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 with a transfer of this franchise which requires 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 RCW, the City is precluded from imposing franchise fees for "telephone businesses" defined in RCW 82.04.065, except that fees may be collected for administrative expenses related to such franchise. AboveNet does hereby warrant that its operations, as authorized under this franchise, are those of a telephone business as defined in RCW 82.04.065. B. AboveNet shall be subject to a $5,000 administrative fee for reimbursement of costs associated with 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. W: \Word Processing \Ordinances \AboveNet Franchise Agreernent.doc Fl:ksn 03/17/2010 Page 5 of 9 79 80 C. In the event AboveNet submits a request for work beyond scope of original franchise, or submits a complex project that requires significant comprehensive plan review or inspection, AboveNet shall reimburse City for franchise amendment and expenses associated with the project. AboveNet shall pay such costs within 30 days of receipt of bill from the City. D. Failure by AboveNet 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. Section 11. Notices. Any notice to be served upon the City or AboveNet shall be delivered to the following addresses respectively: City of Tukwila Office of the City Clerk 6200 Southcenter Boulevard Tukwila WA 98188 AboveNet 360 Hamilton Avenue 7th Floor White Plains NY 100601 Section 12. Indemnification. A. AboveNet shall use reasonable and appropriate precautions to avoid damage to persons or property in the construction, installation, repair, operation and maintenance of its structures and facilities. AboveNet 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 suffered by any person or persons, corporation or property to the extent caused in part or in whole by any negligent act or omission of AboveNet, its officers, agents, servants or employees, carried on in the furtherance of the rights, benefits, and privileges granted to AboveNet by this franchise. In the event any claim or demand is presented to or filed with the City which gives rise to AboveNet's obligation pursuant to this section, the City shall within a reasonable time notify AboveNet thereof and AboveNet 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 AboveNet's obligation pursuant to this section, the City shall promptly notify AboveNet thereof, and AboveNet 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, AboveNet 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 AboveNet 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 AboveNet and the City, AboveNet'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, AboveNet expressly waives its immunity under Title 51 of the RCW, the Industrial Insurance Act, for injuries to its officers, agents and W:\ Word Processing \Ordinances \AboveNet Franchise Agreetnentdoc FI:ksn 03/17/2010 Page 6 of 9 employees and agrees that the obligation to indemnify, defend and hold harmless provided for in this paragraph extends to any claim brought by or on behalf of AboveNet'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, 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, without agreement by AboveNet, to enforce the remaining provisions of the ordinance, AboveNet shall 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 all applicable laws, administrative guidelines, rules, orders and ordinances. Accordingly, any provision of this agreement or any local ordinance which may conflict with or violate 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. AboveNet 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. AboveNet acknowledges 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 AboveNet, shall thereafter govern AboveNet's activities hereunder; provided, however, that in no event shall regulations: 1. materially interfere with or adversely affect AboveNet's rights pursuant to and in accordance with this Franchise Agreement; or 2. be applied in a discriminatory manner as it pertains to AboveNet 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 five days after passage and publication as provided by law. PASSED BY THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, at a Regular Meeting thereof this day of 2010. ATTEST/ AUTHENTICATED: Christy O'Flaherty, CMC, City Clerk APPROVED AS TO FORM BY: Office of the City Attorney Attachments: Exhibit A Description Exhibit B Acceptance Form W: \Word Processing Ordinances \AboveNet Franchise Agreement.doc Fl:ksn 03/17/2010 Jim Haggerton, Mayor Filed with the City Clerk: Passed by the City Council: Published: Effective Date: Ordinance Number: Page 7 of 9 81 82 EXHIBIT A AboveNet route descriptions within the City of Tukwila (2) 1 '/4" conduits within the 360 Networks joint build beginning at the south City limits on West Valley highway northerly approximately 2.22 miles to the intersection of West Valley Highway, Grady Way and Interurban Ave. Populated with (1) 432ct fiber optic cable. (2) 1 1/4" conduits within the 360 Networks joint build continuing westerly along SW Grady Way approximately .2 miles to the eastern City limits. Populated with (1) 432ct fiber optic cable (2) 1 '/4" conduits within the 360 Networks joint build from the intersection of SW Grady Way, West Valley Highway and Interurban Ave northerly approximately 3.16 miles to the intersection of Interurban Ave and E Marginal Way S. Populated with (1) 864ct fiber optic cable. Note: There is no cable placed between S 133 St and E Marginal Way S along Interurban Ave. (2) 1 1/4" conduits within the 360 Networks joint build from the intersection of Interurban Ave and E Marginal Way S northerly approximately .63 miles to the intersection of E Marginal Way S and S Boeing Access Rd. Populated with (1) 432ct fiber optic cable. (2) 1 1/4" conduits within the 360 Networks joint build from the intersection of S Boeing Access Rd easterly approximately .23 miles to the intersection of S Boeing Access Rd and Airport Way S at the northern City limits. Populated with (1) 432ct fiber optic cable. (8) 1 '/z" conduits within the McLeod joint build from the intersection of Interurban Ave and S 133 St westerly approximately .36 miles, then continuing northerly along E Marginal Way S approximately 1 mile to the intersection of E Marginal Way S and Interurban Ave. Populated with (1) 864 ct fiber optic cable. Note: There is no cable placed between S 124 St and S 120 St along E Marginal Way S. (8) 1 1/4' conduits from the intersection of E Marginal Way S and S 124 St westerly approximately .13 miles. Populated with (1) 864 Ct fiber optic cable. (4) 1 '/z" conduits within the Williams joint build from the intersection of S 130 St and Pacific Highway S northerly approximately 1.41 miles to the intersection of Pacific Highway S and E Marginal Way S, then continuing northerly on E Marginal Way S approximately 1 9 miles to the north City limits. �,ENET p o fiber Optic System F Exhibit A -1 Not to Sale i Date: March 84 Date: City of Tukwila City Clerk's Office 6200 Southcenter Blvd Tukwila, WA 98188 Re: Ordinance Adopted Dear Ms. O'Flaherty, In accordance with and as required by Section 4.A of City of Tukwila Ordinance No. (the "Ordinance passed by the City Council and approved by the Mayor on AboveNet hereby accepts the terms, conditions and obligations to be complied with or performed by it under the ordinance. Sincerely, Signature Printed Name Title EXHIBIT B FRANCHISE AGREEMENT ACCEPTANCE FORM ABOVENET COMMUNICATIONS W: \Word Processing Ordinances \AboveNet Franchise Agreenrent.doc FI:ksn 03/17/2010 Page 9 of 9 85 86 UTILITIES COMMITTEE Meeting Minutes March 23, 2010 5:00 p.m. Conference Room #1 CALL TO ORDER: Committee Chair Hougardy called the meeting to order at 5:00 p.m. L PRESENTATIONS No Presentations City of Tukwila Utilities Committee PRESENT Councilmembers: Kathy Hougardy, Chair; Joe Duffle and Allan Ekberg Staff: Bob Giberson, Frank Iriarte, Gail Labanara, Ryan Larson, Greg Villanueva, Steve Lancaster and Kimberly Matej II. BUSINESS AGENDA A. Ordinance for Franchise Renewal: AboveNet Communications Staff is seeking full Council approval of an ordinance renewing the franchise agreement with AboveNet Communications (formerly Metromedia Fiber Network Services, Inc.). This franchise agreement allows AboveNet Communications to install, operate and maintain a telecommunications system in the City right -of -way. The current franchise agreement expired on December 12, 2009, and although AboveNet currently has no plans for expansion, they may need access to the right of-way for repairs and/or maintenance. The agreement is for three years, and the terms and conditions have not changed. There are no City funds expended on this agreement. AboveNet will pay the City a $5,000 fee for the reimbursement of administrative costs associated with this agreement. UNANIMOUS APPROVAL. FORWARD TO APRIL 12 COW FOR DISCUSSION. B. Ordinance for Franchise Agreement: PAETEC Holding Coro. Staff is seeking full Council approval of a franchise agreement with PAETEC Holding Corporation to install, operate and maintain a telecommunications system in the City right -of -way. This franchise agreement is essentially the same agreement as above, and although PAETEC currently has no plans for expansion, they may need access to the right -of -way for repairs and/or maintenance. PAE I EC acquired the fiber optic assets of McLeod USA. The agreement is for three years. There are no City funds expended on this agreement. PAETEC will pay the City a $5,000 fee for the reimbursement of administrative costs associated with this agreement. UNANIMOUS APPROVAL. FORWARD TO APRIL 12 COW FOR DISCUSSION. C. 2010 Annual Small Drainage Program Desinn Consultant Selection and Agreement Staff is seeking approval to enter into a consultant agreement with KPG, Inc. in the amount of $47,990.16 for design services for the City's 2010 Annual Small Drainage Program. KPG was chosen from the City's consultant roster (Municipal Research and Services Center Rosters), and has designed the Annual Small Drainage Program since 1991. Due to limited budget funds, Public Works has limited this year's program to 3 sites, verses the average 4 -6 sites per year. Three projects have been identified for construction in 2010 through maintenance and citizen complaints. Sites 1 and 2 involve Gilliam Creek and Site 3 is along Tukwila International Boulevard 87