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HomeMy WebLinkAboutUtilities 2008-05-05 Item 3A - Agreement - Communications Conduit with Comcast (Strander Boulevard Bridge Site) INFORi"IATION MEMORA1~IlUM To: From: Date: Subject: Mayor Haggerton Public W orIes Director ~ April 28, 2008 IT. Communications Conduit Al!reement Issue Should City grant Comcast the right to use City-owned conduit located under the Strander Boulevard Bridge? Baclmround Comcast recently requested conduit capacity to accommodate three one-inch conduits within an existing City-owned, six-inch steel conduit located at the Strander Boulevard Bridge crossing. If approved;-eomcastwilt-use the three, one-inch conduits to extend their fiber optic infrastructure to the Commercial Business District (CBD). Discussion Comcast is embarking on a fiber optic project that would provide high speed connectivity and cable service to commercial businesses in the CBD. Success of their project depends on their ability to build, purchase or lease a communications conduit infrastructure at the Strander Bridge crossing. Com cast has decided on a long-term lease option. . Attached is the Communications Conduit Agreement that staff and Comcast have negotiated. Highlights of the Agreement include the following key provisions: . Conduit capacity to accommodate three one-inch conduits. . 15 year term with two, five year renewals. . Complimentary Comcast Business Class Music for the City's TV channel. . Participation in Comcast's future trenchlbore projects with free or discounted labor costs. . Upgrade of the cable TV signal at Building 6300 Southcenter Boulevard. . Installation of additional one-inch conduits in the City-owned six-inch conduit at Comcast's expense. In addition to the compensation package highlighted above, approval of the Communications Conduit Agreement would enable Comcastto offer cable TV and high-speed internet services to businesses, and facilitate broadband development throughout the CBD. Recommendation Send to the Utilities Committee and COW for discussion and approval/disapproval decision. Attachment: Communications Conduit Agreement fi: P:frank\2008\franchise\info memo-comcast conduit agreement 1 COlVINIUNICATIONS CONDUIT AGREEMENT THIS COMMUNICATIONS CONDUIT AGREE1tIENT is entered into between the CITY OF TUKWILA, a Washington municipal corporation ("City") and Comcast of Washington IV, Inc. (Comcast), 4020 Auburn N. Auburn, W A 98001. WHEREAS, Comcast is duly authorized to operate and maintain a cable television system in the City pursuant to a franchise granted by the City; and WHEREAS, the City and Comcast have entered into an Agreement for the City to lease conduit capacity within an existing City - owned conduit system located at the Strander Bridge crossing; and WHEREAS, the communications conduit system provides a critical path to the deployment of fiber connectivity to the commercial business district; and WHEREAS, this Conduit Agreement will facilitate broadband development in the commercial business district; and WHEREAS, the City has sufficient conduit capacity to handle present and future City requirements; and WHEREAS, the City Council has determined that the lease of communications conduit capacity is appropriate; and NOW, THEREFORE, in consideration of One Dollar and such other consideration as set forth herein, the City and Comcast hereby agree as follows: 1. GRANT OF RIGHT TO USE COl\tlMUNICATIONS CONDUIT. The City grants Comcast conduit capacity to accommodate three one - inch conduits within an existing City owned six - inch steel conduit located at the Strander Bridge. City shall designate the exact location of the conduit during the permit submission process. 2. TERM. The initial term of this Agreement shall be fifteen (15) years, commencing on the date of execution of this Agreement by the City and Comcast. ("Commencement Date"). 2 3. RENEWAL. This Agreement shall automatically renew for two (2) successive periods of five (5) years each (the "Renewal Terms") provided that: (a.) Comcast is not in default and has not been in default of the terms and conditions of this Agreement; (b.) there is no public need for the leased space; (c.) Comcast's continued use under this Agreement does not impair the safety or operation of the Strander Bridge, the right-of-way, or City fiber optic system as solely determined by the City; (d.) the terms and conditions oftrus Agreement conform to existing City policies or practices, state laws, City regulations and contracts, or provided Comcast is willing to amend this Agreement to bring it into compliance with such policies, practices, laws, regulations, and contracts; and (e) Com cast agrees to maintain insurance as stipulated in this Agreement. Subject to the conditions set forth above, each additional term shall be on the same terms and conditions as set forth in the Agreement, except as reflected in any written amendment(s) signed by both parties. Comcast shall give notice of its intent to renew this Agreement for any additional term at least ninety (90) days, but not more than six (6) months, prior to the expiration of this Agreement, or any extension thereof. In the event City exercises its right not to renew this Agreement, City shall provide Comcast with a minimum one hundred twenty (120) days notice of its intention not to renew. 4. COVENANTS BY COMCAST. A. Construction of Communications Conduits and Vault. Comcast shall construct and maintain at its cost and expense, the three one-inch conduits and associated infrastructure in accordance with City-approved permit documents. As a condition of this Agreement, Comcast shall during the installation of the three one-inch conduits install at its cost and expense, additional one-inch conduits in the City-owned steel conduit to fill it to its maximum safe capacity. The additional one-inch conduits above and beyond the three Comcast owned one-inch conduits shall be under sole ownership of the City. B. Insurance. Comcast shall procure and maintain for the duration of this Agreement, insurance against claims for injuries to persons or damage to property arising out of or in connection with acts or activities related to this Lease. Such insurance shall be combined single-limit liability coverage of not less than two million dollars ($2,000,000.00) naming the City as an additional insured and shall include a provision prohibiting cancellation or reduction in the amount of said insurance except upon thirty (30) days prior written notice to the City. Cancellation of the required insurance shall automatically result in termination of this Lease. 3 C. Waiver of Subrogation. Comcast hereby releases and discharges all claims, losses and liabilities arising from or caused by any hazard covered by property insurance on or in connection with the pedestrian bridge. This release shall apply only to the extent that such claim, loss or liability is covered by insurance. D. Indemnification. Comcast, its successors and assigns, will hold harmless the City, its authorized agents and employees, from all claims, actions, costs, damages, or expenses of any nature whatsoever by reason of the acts or omissions of Comcast, its assigns, subtenants, agents, contractors, licensees, invitees, employees, or any person whomsoever, arising out of or in connection with Com cast's performance under this Agreement. Comcast further agrees to defend the City, its agents or employees, in any litigation, including payment of any costs or attorney's fees, for any claims or actions commenced, arising out of, or in connection with Comcast's performance under this Agreement. Comcast expressly waives its immunity under Title 51 of the Revised Code of Washington, the Industrial Insurance Act, for injuries to its 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 any employee of Comcast in connection with Comcast's performance under this Agreement. This waiver is mutually negotiated by the parties. This paragraph shall not apply to any damage resulting from the negligence of the City, its agents and employees. To the extent any of the damages referenced by this paragraph were caused by or resulted from the concurrent negligence of the City, its agents or employees, this obligation to indemnify, defend and hold harmless is valid and enforceable only to the extent of the negligence of Comcast, its officers, agents, and employees. E. Rules and Regulations. Comcast agrees that it will abide by all applicable local, state and federal laws, rules and regulations in the use of the leased communications conduit system. 5. COMPENSATION. In consideration for the conduit capacity Comcast covenants and agrees to provide the City with the following compensation package: A. Complimentary Comcast Business Class Music Choice including one digital converter unit for the City to use in association with the City's TV channel. B. In those Southcenter Valley right-of-way areas where Comcast is proposing to open trench and the City has a gap between its existing conduit systems, Comcast will allow the placement of City purchased conduit( s) within the open trench pathways, with Comcast incurring the labor costs associated with the placement of the City conduit(s). The City shall confirm the conduit placement request prior to the issuance of the right-of-way permit. 4 C. In those Southcenter Valley right-of-way areas where Comcast is proposing a bore pathway and the City has a gap between its existing conduit systems, upon request of the City during the right-of-way permitting review, Comcast will provide a cost estimate to the City detailing the incremental cost of labor and materials to accommodate the requested City conduit(s) within the bore path. If the City accepts the cost estimate, Comcast will place the requested conduits 'Within the bore. D. Comcast shall provide a high-quality reception of cable television service to the City's offices located next to City Hall at 6300 Southcenter Blvd, Tukwila,98188.. 6. TERMINATION BY CITY. The City may terminate this Agreement, without penalty or further liability as follows, subject to applicable laws and regulations: A. Upon not less than thirty (30) days prior written notice to Comcast, if Comcast fails to inspect, maintain, and/or repair the conduits in a safe and satisfactory manner as required under this lease. B. Upon not less than thirty (30) days prior written notice to Corncast, if Comcast fails to cure a default for compensation provisions due under this lease within that thirty (30) day period. C. Upon the end of the authorized term, if there is a public need for the leased space. D. Upon not less than thirty (30) days prior written notice to Comcast, if Comcast's continued use under this Agreement causes an impairment to the safety or operation of the City's highway or right-of-way, as solely determined by the City, and Comcast fails to cure the impairment within that thirty (30) day period. 7. EFFECT OF TERiV1INATION. Upon termination of this Agreement, Corncast shall remove their fiber at Corncast's expense. In the event Corncast fails to do so, the City may, at Comcast's expense, remove and dispose of the fiber infrastructure as it deems appropriate, subject to applicable laws and regulations. Comcast shall reimburse the City for all expenses incurred in such removal and disposal within thirty (30) days of the date of the City's invoice for such costs. . 8. SUCCESSORS AND ASSIGNS. Comcast will not, in whole or in part, assign this Agreement without prior written consent of the City, which consent shall not be unreasonably withheld. Any 5 assignee shall be required to assume and fulfill all obligations of Comcast under this Agreement after the date of such assignment. 9. RECORDATION. This Agreement shall be recorded by Comcast with the King County Division of Records and Elections. Upon recording, the original document shall be returned to the City. 10. PARTIAL INVALIDITY. If any portion or provision ofthis Agreement is held invalid that materially modifies the terms and conditions of this Agreement and results in a detrimental change in circumstances or a material hardship for either party in performing this Agreement, either party may request to renegotiate this Agreement and the other party agrees to renegotiate fairly with the requesting party, otherwise the validity and enforceability of the remainder ofthis Agreement shall not be affected. 11. APPLICABLE LAW; VENUE; ATTORNEY'S FEES. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. In the event any suit, arbitration, or other proceeding is instituted to enforce any term of this Agreement, the parties specifically understand and agree that venue shall be properly laid in King County, Washington. The prevailing party in any such action shall be entitled to its attorney's fees and costs of suit. 12. FORCE MAJEURE. Neither party shall be liable for any failure of performance (including any delay in restoration of service) hereunder due to causes beyond its reasonable control including, but not limited to, acts of God, fire, explosion, vandalism, storm, or other similar catastrophes; any law, order, regulation, direction, decision, action or request of the United States government or the State of Washington; insurrection; riots or other civil disturbances; or wars. 13. NOTICE. Unless otherwise agreed to by the parties, any notice provided for under this Lease Agreement shall be sufficient if in writing and delivered personally to the following addressee or deposited in the United States mail, postage prepaid, certified mail, return receipt requested, addressed as follows, or to such other address as the receiving party specifies in writing: 6 (a) Notices to Corncast shall be mailed to: Corneast 4020 Auburn \Vay N Auburn, W A 98002 Attention: Director, Franchising and Government Mfairs With a non-binding courtesy copy to: Corncast 15815 25th Ave W Lynnvvood, WA 98087 Attention: Franchising and Government Affairs (b) Notices to the City shall be mailed to: City of Tukvvila 6300 Southcenter Blvd, Suite 100 Tukvvila, WA 98188-2544 Attention: Public \V orks Director IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the day and year first vvritten belovv. CITY OF TUKWILA COMCAST OF WASHINGTON IV, INC. Jim Haggerton Mayor Ken Rhoades Area Vice President Date: Date: Date: City Attorney 7