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HomeMy WebLinkAboutReg 2014-08-04 Item 5C - Ordinance - Telecommunications System Franchise with Astound BroadbandCOUNCIL AGENDA SYNOPSIS Aleetiug Datr Prepared fey Major's renew Council maw 08/04/14 BG4e1 11 Ordinance ❑ Bid Award #itg Date ❑ Public Hearing Aftg Date ❑ Other it Duty e'11Pg Date 08/04/14 SPONSOR ❑ Council ❑ cilayor ❑ HR ❑ DCD ❑ Finance ❑ Fin ❑ IT ❑ P &R Q Police ® PIF SP[)\ )R'S Astound Broadband, LLC, a subsidiary of Wave Division Holdings, LLC, provides Si \I,\I.\RN' telecommunication services including high -speed internet access, data transport, and dark fiber leasing. Astound intends to construct fiber optic laterals for the Tukwila School District's broadband capacity. The Astound franchise agreement is for five years with a possible one year extension. Council is being asked to approve the new ordinance for the franchise agreement to Astound Broadband, LLC. REVIEWED By ❑ COW Mtg. ❑ CA &P Cmte ❑ F &S Cmte ❑ Transportation (:mte Crate ® Arts Comm. ❑ Parks Comm. ❑ Planning Comm. COMMVITEE CHAIR: ALLAN EKBERG (ACTING) ►t Utilities DATE: 07/21/14 RECOMMENDATIONS: SP( )Nm )R/A1)MIN. CommirrEE Public Works Department ITEM INFORMATION ITEM No. ISTAFF SPONSOR: BOB GIBERSON (. }R I(; I\.\ I .A(, I :'.FDA DATE: 08/04/14 _\GENDA IT Tri I.I -. Ordinance Granting a Non- Exclusive Franchise Agreement with Astound Broadband, LLC CATEGORY ❑ Discxtssion Aft! Date ❑ Motion M/ Dale ❑ Resolution Mfg Date 11 Ordinance ❑ Bid Award #itg Date ❑ Public Hearing Aftg Date ❑ Other it Duty e'11Pg Date 08/04/14 SPONSOR ❑ Council ❑ cilayor ❑ HR ❑ DCD ❑ Finance ❑ Fin ❑ IT ❑ P &R Q Police ® PIF SP[)\ )R'S Astound Broadband, LLC, a subsidiary of Wave Division Holdings, LLC, provides Si \I,\I.\RN' telecommunication services including high -speed internet access, data transport, and dark fiber leasing. Astound intends to construct fiber optic laterals for the Tukwila School District's broadband capacity. The Astound franchise agreement is for five years with a possible one year extension. Council is being asked to approve the new ordinance for the franchise agreement to Astound Broadband, LLC. REVIEWED By ❑ COW Mtg. ❑ CA &P Cmte ❑ F &S Cmte ❑ Transportation (:mte Crate ® Arts Comm. ❑ Parks Comm. ❑ Planning Comm. COMMVITEE CHAIR: ALLAN EKBERG (ACTING) ►t Utilities DATE: 07/21/14 RECOMMENDATIONS: SP( )Nm )R/A1)MIN. CommirrEE Public Works Department Majority Approval; Forward to Regular Consent Agenda COST IMPACT 1 FUND SOURCE E!I'I Drrl'Rl: RI:Ql'1RI:ID AMOUNT BUDGETED APPROPRIATION REQUIRED $0.00 $0.00 $0.00 Fund Source: Comments: MTG. DATE RECORD OF COUNCIL ACTION 08/04/14 MTG. DATE ATTACHMENTS 08/04/14 Informational Memorandum dated 07/18/14 Draft Franchise Ordinance with Exhibits (revised after 7/21 UC) Minutes from the Utilities Committee meeting of 07/21/14 19 City of Tukwila Jim Haggerton, Mayor INFORMATIONAL MEMORANDUM TO: Mayor Haggerton Utilities Committee FROM: Bob Giberson, Public Works Director 458 BY: Frank Iriarte, Deputy Public Works Director DATE: July 18, 2014 SUBJECT: Astound Broadband LLC Ordinance Approving Franchise Agreement ISSUE Approve Ordinance for Astound Broadband LLC (Astound) Franchise Agreement. BACKGROUND Astound is a Washington limited liability company and is a wholly -owned subsidiary of Wave Division Holdings LLC, Astound provides telecommunication services including high -speed internet access, data transport and dark fiber leasing to business customers. DISCUSSION Astound owns conduit and fiber assets within the Lake Washington Ring. Astound's backbone enters the City from SW Grady Way, proceeding north along Interurban Ave S to East Marginal Way S, then to Boeing Access Rd and continues north on Airport Way S into Seattle. From the backbone, Astound intends to construct fiber optic laterals to provide fiber connectivity to the Tukwila School District. When completed, the fiber project will significantly increase Tukwila School District's broadband capacity. In addition to the Tukwila School District, Astound's fiber project will include a connection to serve a potential customer located in the vicinity of King County Bow Lake Transfer Station. Astound's fiber project is depicted in Exhibit A, Fiber Optic System Description and Project Map. The attached Franchise Agreement would allow Astound to construct, operate and maintain a fiber optic system in the City's right -of -way. FINANCIAL IMPACT Under the terms of the Franchise, Astound will be required to pay the City a $5,000 administrative fee within 30 days of franchise approval. RECOMMENDATION Council is being asked to approve the Ordinance allowing Astound Broadband LLC Franchise Agreement and consider this item on the Consent Agenda at the August 4, 2014 Regular Meeting. Attachment: Draft Franchise ordinance with Exhibits A & B W:IPW Eng \PROJECTS\Franchise \Info Memo Ordinance Franchise Astound Broadband FINAI.docs 21 22 City of Tukwila Washington Ordinance No. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, GRANTING A NON- EXCLUSIVE FRANCHISE TO ASTOUND BROADBAND, LLC, 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, Astound Broadband, LLC ( "Astound') is a telecommunications company that, among other things, provides voice and data services to customers, including those in the Puget Sound region; and WHEREAS, Astound'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 businesses 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, rights -of -way, and other public property for transmission of communications; W: Word ProcessinglordinanceslAstound franchise agreement 7 -15 -14 FI:bjs Page 1 of 11 23 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 Astound, 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 attached hereto, and hereinafter referred to as the "Franchise Area" B. The foregoing franchise rights and authority ( "Franchise ") shall not be deemed to be exclusive to Astound and shall in no way prohibit or limit the City's ability to grant other franchises, permits, or rights along, aver, or under the areas to which this Franchise has been granted to Astound; provided, that such other franchises do not unreasonably interfere with Astound'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. C. This Franchise Agreement merely authorizes Astound to occupy and use the Franchise Area. Nothing contained herein shall be construed to grant or convey any right, title, or interest in the Franchise Area to Astound. 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, uniform, non - discriminatory, 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 five years from the effective date of this ordinance. However, this Franchise Agreement shall not take effect and Astound shall have no rights under this Franchise Agreement unless a written acceptance with the City is received pursuant to Section 4 of this agreement. if Astound requests a Franchise renewal prior to the expiration date, the City may, at the City's sole discretion, extend the term of this Franchise Agreement 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 Agreement, written notice of the extension shall be provided to Astound prior to the Franchise expiration date. W: Word ProcessinglordinancestAsiound franchise agreement 7 -15 -14 FI:kjs 24 Page 2 of 11 Section 4. Acceptance of Terms and Conditions. The full acceptance of this Franchise Agreement 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 Astound 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. 1. 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, Astound shall, within 24 hours of the emergency, obtain a permit from the City of Tukwila's Department of Public Works. 2. Coordination. All capital construction projects performed by Astound within the Franchise Area shall be inspected by a City inspector. All work and inspection shall be coordinated with the Public Works Engineering Division to ensure consistency with City infrastructure, future Capital Improvement Projects, all developer improvements, and pertinent codes and ordinances. 3. Construction Standards. Any construction, installation, maintenance, and restoration activities performed by or for Astound 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 the City's development guidelines and standards and comply with Title 11 of the Tukwila Municipal Code. 4. 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. 5. Relocation. a. Whenever the City causes a public improvement to be constructed within the Franchise Area, and such public improvement requires the relocation of Astound's facilities, the City shall provide Astound 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 Astound shall meet at a time and location determined by the City to discuss the project requirements including critical timelines, schedules, construction W: Word Pracessing\Ordinancesb4staund franchise agreement 7 -15 -14 FE: bjs Page 3 of 11 25 standards, utility conflicts, as -built requirements, and other pertinent relocation plan details. b. To ensure timely execution of relocation requirements, Astound shall, upon written request from the City, provide at Astound'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 procedures), and other design, technical or operational requirements within the timeframe specified by the City. c. Astound may, after receipt of written notice requesting a relocation of its facilities, submit to the City written alternatives to such relocation within a reasonable 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 Astound 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, Astound shall submit additional information to assist the City in making such evaluation. The City shall give each alternative proposed by Astound full and fair consideration. In the event the City ultimately determines that there is no other reasonable alternative, Astound shall relocate its facilities as otherwise specified in Section 5, subparagraph 5. d. Upon final approval of the relocation plan by the City, Astound 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. e. If during the construction, repair, or maintenance of the City's public improvement project an unexpected conflict occurs from Astound's facilities, Astound shall, upon notification from the City, respond within 24 hours to resolve the conflict. 6. Removal or Abandonment. Upon removal from service of Astound's facilities or equipment that are located within the Franchise Area, Astound 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 Astound may be abandoned without the express written consent of the City. 7. Bond. Before undertaking any of the work, installation, improvements, construction, repair, relocation, or maintenance authorized by this Franchise Agreement, Astound shall, upon the request of the City, furnish a bond executed by Astound 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 W Word ProcessinglordinanceslAstound franchise agreement 7 -15 -14 Fl:bjs 26 Page 4 of 11 ensure performance of Astound'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 Astound in the City rights -of -way. At Astound's sole option, Astound 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 Astound 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 Astound work or materials discovered in the City's roads, streets, or property. 8. "One -Call" Location and Liability. Astound 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 Astound's system components or for interruptions in service to Astound customers which are a direct result of work performed for any City project for which Astound 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 Astound system components or for interruptions in service to Astound customers resulting from work performed under a permit issued by the City. 9. As -Built Plans Required. Astound 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 permit issued by the City and any work undertaken by Astound pursuant to this Franchise Agreement. The City shall determine the acceptability of any as -built submittals provided under this section. 10. Recovery of Costs. Astound 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 reasonable 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, Astound shall pay such reasonable costs and expenses directly to the City. 11. 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 rnay, at its option and by giving 30 days written notice to Astound, 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 Astound by reason of such termination other than those provided for in RCW 35.99. W: Word Processing\ Ordinances\Astound franchise agreement 7 -15 -14 FI:bjs Page 5 of 11 27 Section 6. Franchise Compliance. A. Franchise Violations. The failure by Astound to fully comply with any of the provisions of this Franchise Agreement may result in a written notice from the City which describes the violations of the Franchise Agreement and requests remedial action within 30 days of receipt of such notice. If Astound 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 Astound's actions under this Franchise Agreement, or any failure by Astound to act to correct a situation caused by Astound, 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 Astound 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 Astound and give Astound an opportunity to correct within a reasonable specified time, said threat, financial harm or delay before undertaking such corrective measures. Astound shall be liable for all reasonable 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 Astound and shall further be liable for all reasonable 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 Astound to take appropriate action to correct a situation caused by Astound 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 the terms of this Franchise Agreement. 2. If, during construction or maintenance of Astound'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, Astound 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 Astound'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 that this Franchise Agreement is terminated as a result of violations of the terms of this Franchise Agreement, Astound shall, at its sole expense, promptly remove all system components and facilities, provided that the City, at its sole option, may allow Astound to abandon its facilities in place. W: Word Processinglordinances\AstoUnd franchise agreement 7 -15 -14 FI:bjs 28 Page 6 of 11 Section 7. Insurance. A. Astound shall maintain liability insurance written on a per occurrence basis during the full term of this Franchise Agreement 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 Toss 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 and Approvals. Nothing in this Agreement shall relieve Astound 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 Agreement shall not be sold, transferred, assigned, or otherwise encumbered, without the prior written consent of the City, with such consent not to be 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 Astound'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 Astound to another person or entity controlling, controlled by, or under common control with Astound. Astound may license fibers to other users without the consent of the City provided that Astound remains solely responsible for the terms and conditions outlined in this Franchise Agreement. B. in any transfer of this Franchise which requires the approval of the City, Astound 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 actual and W: Word Processing\OrdinanceslAstound franchise agreement 7 -15 -14 F bjs Page 7 of 11 29 reasonable administrative costs associated with a transfer of this Franchise that requires the approval of the City shall be reimbursed to the City within 30 days of such transfer. Section 10. AdministrativelFranchise Fees. A. Pursuant to the Revised Code of Washington (RCW), the City is precluded from imposing franchise fees for any "telephone business" as defined in RCW 82.16.010 or "service provider" as defined in RCW 35.99.010, except that fees may be collected for administrative expenses related to such franchise. Astound does hereby warrant that its operations as authorized under this Franchise Agreement are those of a telephone business as defined in RCW 82.16.010 or a service provider as defined in RCW 35.99.010. B. Astound 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 the 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. The City reserves the right to exercise authority it has or may acquire in the future to charge a franchise fee as authorized by law. D. In the event Astound submits a request for work beyond the scope of this Franchise Agreement, or submits a complex project that requires significant comprehensive plan review or inspection, Astound shall reimburse the City for amendments and expenses associated with the project. Astound shall pay such costs within 30 days of receipt of a bill from the City. E. Failure by Astound 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 Astound shall be delivered to the following addresses respectively: City of Tukwila Office of the City Clerk 6200 Southcenter Boulevard Tukwila, WA 98188 Email: christy.oflaherty©a tukwilawa.gov Phone: 206 433 -1855 W: Word ProcessinglordinanceslAstoUnd franchise agreement 7 -15 -14 FI:hjs 30 Page 8 of 11 Astound Broadband, LLC Attn: James A. Penney, EVP 401 Kirkland Parkplace, Suite 500 Kirkland, WA 98033 Email: jpenney@wavebroadband.com Phone: 425 -896 -1891 with an additional copy to: Cinnamon Mueller 307 N. Michigan Ave., Suite 1020 Chicago, IL 60601 Section 12. Indemnification. A. Astound 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 within the Franchise Area. Astound shall indemnify and hold the City harmless from all third party 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 Astound, its officers, agents, servants or employees, carried on in the furtherance of the rights, benefits, and privileges granted to Astound by this Franchise. In the event any claim or demand is presented to or filed with the City that gives rise to Astound's obligation pursuant to this section, the City shall within a reasonable time notify Astound thereof and Astound 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 Astound's obligation pursuant to this section, the City shall promptly notify Astound thereof, and Astound 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, Astound 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 Astound 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. W: Ward ProcessinglordinanceslAstound franchise agreement 7 -15 -14 Fl: bjs Page 9 of 11 31 B. To the extent of any concurrent negligence between Astound and the City, Astound'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 that 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, Astound 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 claim brought by or on behalf of Astound'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 Astound, to enforce the remaining provisions of the ordinance, Astound 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 that 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. Astound 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. W word Processing \Ordinances\Astound franchise agreement 1 -15 -14 Fi:hjs 32 Page 10 of 11 Section 16. Future Rules, Regulations, and Specifications. Astound 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 Astound, shall thereafter govern Astound's activities hereunder; provided, however, that in no event shall regulations: 1. materially interfere with or adversely affect Astound's rights pursuant to and in accordance with this Franchise Agreement; or 2. be applied in a discriminatory manner as it pertains to Astound and other similar users of such facilities. Section 17. Corrections by City Clerk or Code Reviser. Upon approval of the City Attorney, the City Clerk and the code reviser are authorized to make necessary corrections to this ordinance, including the correction of clerical errors; references to other local, state or federal laws, codes, rules, or regulations; or ordinance numbering and section/subsection numbering. Section 18. 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 , 2014. ATTEST/AUTHENTICATED: Christy O'Flaherty, MMC, City Clerk APPROVED AS TO FORM BY: Rachel Turpin, Assistant City Attorney Jim Haggerton, Mayor Filed with the City Clerk: Passed by the City Council: Published: Effective Date: Ordinance Number: Attachments: Exhibit A — Astound Broadband, LLC, Fiber Optic System Description and Project Map Exhibit B — Astound Broadband, LLC, Franchise Agreement Acceptance Form W: Word Process ng \Ordinances4Astound franchise agreement 7 -15 -14 ri:bjs Page11 of 11 33 Exhibit A Astound Broadband, LLC Fiber Optic System Description Existing Conduit Path: Beginning at the Eastern City limits at Southwest Grady Way and Monster Road, Astound has ownership in a single conduit within the conduit path commonly known as the "Lake Washington Ring", constructed by 360 Networks, and currently operated by Zayo Group. This path routes along Southwest Grady Way, then proceeds north along Interurban Ave South, which then changes to East Marginal Way South. The route then transitions at State Route 900 to Airport Way South, leaving Tukwila right of way at a point north of State Route 900, and south of Boeing Field. This route then re- enters Tukwila right of way on Airport Way South for approximately 2,000 feet, then leaves Tukwila right of way, and continues north into Seattle. All Routes in Tukwila will ultimately extend from this existing path to service Iodations on the network. Below are the route descriptions working from south to north, identifying each route and sub -route as a "Spur Route ". Spur Route 1, 1A, 1B Spur Route 1 (Serving Tukwila Elementary) Beginning at Interurban Avenue South and 58th Avenue South, construct on 58th Avenue South to South 147th Street, then east to 59th Ave South, and then south on 59th Ave South to South 149th Street, then east on South 149th Street to Tukwila Elementary School. This entire route is to be constructed using underground construction methodology. Spur Route 1A Beginning at 58th Avenue South and South 144th Street, proceed west using underground construction methodology on South 144th Street across Interstate 5 to 51st Avenue South. Proceed south on 51st Avenue South, placing aerial cable on existing poles, to Southcenter Boulevard. The route continues south using underground construction methodology across Highway 518, following to the point the road turns into Klickitat Drive, then across Interstate 5 and into Southcenter Mall property to serve a customer. Spur Route 1 A is a future planned route 35 Spur Route 1B Beginning at 51st Avenue South, using underground construction methodology, the route proceeds west on Southcenter Boulevard to 42nd Avenue South. Continue south on 42nd Avenue South, across Highway 518, to South 164th Street, where this route departs Tukwila right of way. This route will continue south outside Tukwila right of way, and will re -enter the right of way for a connection to a customer at the Bow Lake Landfill facility north of South 188th Street and Orillia Road South. After crossing Highway 518, to the point the route departs Tukwila Right of way, the cable will be aerial cable on existing poles. Spur Route 1B is a future planned route. Spur Route 2 Route begins at Interurban Avenue South and South 133rd Street, then proceeds west, crossing Interurban Avenue South with underground construction methodology to a point west of South 134th Place, just beyond the entrance to the on -ramp to Highway 599. The route will then continue with aerial placement on existing poles on South 133rd Street to South 130th Street, then continues west on South 130th Street to 37th Avenue South. Continue south on 37th Avenue South to South 132nd Street, then southwest on South 132nd Street, across Tukwila International Boulevard, and on to South 133rd Street, leaving Tukwila right of way at the western City limits on South 133rd Street at Military Road South. Spur Route 2 is a future planned route. Spur Route 3 Beginning at Interurban Avenue South and 42nd Avenue South, the route will proceed north on 42nd Avenue South to South 124th Street, then proceed east on South 124th Street to 50th Place South. Continue south on 50th Place South and South 129th Street, leaving Tukwila right of way after crossing Interstate 5 on South 129th Street. Spur Route 3 is a future planned route. Spur Route 4 (to Serve Tukwila School District Sites) Beginning at an existing vault on Interurban Avenue South, approximately 200 feet south of East Marginal Way South, using underground construction methodology, new conduit will be constructed north on Interurban Avenue South to East Marginal Way South, to an existing pole line. The route will then proceed south, using aerial cable placement, on East Marginal Way South to South 126th Street, then west on South 126th Street to 35th Avenue South. At this point, the route will continue north on 35th Avenue 36 South to Sabey property for connectivity to electronic switching gear. The route will also proceed south on 35th Avenue South, still with aerial placement on existing poles, to a point about 100 feet north of South 130th Street. The route will cross South 130th Street, then proceed west to a pole on the east side of Tukwila International Boulevard, where it will rise to aerial placement on existing poles. The route will cross Tukwila International Boulevard, and continue south on 34th Avenue South to South 135th Street, then west to a point approximately 100 feet east of 32nd Avenue South. The route will continue, using underground construction methodology, to 32nd Avenue South, with a termination taking place at Cascade View Elementary School, then south to South 137th Street, then east approximately 100 feet to existing poles. The route will continue with aerial placement east on South 137th Street to 37th Avenue South, then south to South 140th Street, then east to Tukwila International Boulevard, crossing Tukwila International Boulevard with underground construction methodology. The route will proceed east on South 140th Street, rising to aerial placement for a short span, then crossing 42nd Avenue South with underground construction, then rising to aerial placement again at 43rd Avenue South, then south on 43rd Avenue South aerially to a point about 200 feet north of South 142nd Street. The route will then go to underground construction to South 142nd Street, west to 42nd Avenue South, then south to South 144th Street, and east to 40th Avenue South. The route will return to aerial construction at 45th Avenue South, and proceed south to South 150th Street. The route will proceed with underground construction on South 150th Street, and will terminate at Thorndyke Elementary. 37 City of Tukwila s Not to Scale Vicinity Map W:VPW Eng1GI S',,Gen era! MapsAStreets_11x17_Ap!2014mxd Dale: 04+11114 By. R. Linsasr Disclaimer: The location of features and boundaries are approximate and are intended for reference only. Data is based on best information available_ 0 n v0 Date : EXHIBIT B Astound Broadband LLC Franchise Agreement Acceptance Form City of Tukwila City Clerk's Office 6200 Southcenter Boulevard Tukwila WA 98188 Re: Ordinance No. , Adopted on Dear City Clerk: In accordance with and as required by Section 4 of City of Tukwila Ordinance No. , passed by the City Council and approved by the Mayor on (the "Ordinance "), Astound Broadband, LLC hereby accepts the terms, conditions and obligations to be complied with or performed by it under the Ordinance. Sincerely, Signature Printed Name and Title cc: Frank Iriarte, Deputy Public Works Director Exhibit B 41 4. UTILITIES COMMITTEE Meeting Minutes July 21. 2014 — 5:15 p.m. — Foster Conference Room, 6300 Building City of Tukwila Utilities Committee PRESENT Councilmembers: Allan Ekberg. Kathy Hougardy (Absent: Kate Kruller) Staff: Bob Giberson, Frank Iriarte, Robin Tischmak, Ryan Larson. Pat Brodin, Gail Labanara, Laurel Humphrey Guests: Vic Peterson and Dan Walla, Astound Broadband LLC CALL TO ORDER: The meeting was called to order at 5:19 p.m. I. PRESENTATIONS 11. BUSINESS AGENDA A. Ordinance: Franchise Agreement. Astound Broadband LLC Staff is seeking Council approval of an ordinance that would grant a franchise to Astound Broadband LLC for the purpose of construction, operation and maintenance of a fiber optic system in the City right -of -way. Astound intends to construct fiber optic laterals. or "spur routes" from their existing conduit path as described in Exhibit A. These routes will provide connectivity to the Tukwila School District. significantly increasing its broadband capacity. This proposed project will also include a connection to serve a potential customer near the Bow Lake Transfer Station. Under the terms of the proposed Franchise agreement, Astound will pay the City $5.000 within 30 days of approval. Courcilmember Hougardy asked for clarification about the proposed aerial facilities shown on the project map, and ensuing discussion and investigation revealed the map contained errors. An updated map will be provided prior to full Council action. MAJORITY APPROVAL. FORWARD TO AUGUST 4, 2014 REGULAR CONSENT AGENDA B. Supplemental Agreement: East Marginal Way South Stormwater Outfalls Staff is seeking Council approval of Supplemental Agreement No. 1 to Contract No. 14 -010 with KPG, Inc. in the amount of $117,889.40 to produce 90% plans, specifications and cost estimate for the East Marginal Way South Stormwater Outfalls project. The base contract was for the design report, which following a review by the Washington State Department of Ecology was determined to require additional analysis to demonstrate that the planned permeable pavement Low Impact Development (LID) technique is appropriate at this location. LiD water quality measures are a requirement of the $120,000 funding the City received from the DOE Municipal Stormwater Capacity Grant. This supplement will address the DOE's concerns and take the design to 90 %. Funds for the total design effort are available from the 412 Surface Water fund using DOE Municipal Stormwater Capacity and Watershed Grant funding. MAJORITY APPROVAL. FORWARD TO AUGUST 4, 2014 REGULAR CONSENT AGENDA. C. Purchase of Accelerated Vactor Truck Staff is seeking Committee authorization to accelerate the purchase of a new Vactor truck for the Water /Sewer Department in the amount of $522,795.36. The City currently owns two Vactor trucks, one of which was replaced approximately six years ago. The second. Unit #1309, is 16 years old and is currently out of service due to a variety of serious issues. Repairs would require approximately $90.000 which exceeds the assessed value of the truck. It is scheduled for replacement in 2015. but staff would like to accelerate the purchase to this year. The truck will take approximately 6 months to build so actual payment will be in January 2015 43