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HomeMy WebLinkAboutReg 2015-05-04 Item 5C - Ordinance - Telecommunications Franchise with Zayo GroupCOUNCIL AGENDA SYNOPSIS Initials Meeting Date Prepared ! t 11.4or'r en, Council review 05 04 15 BG tt• ` re Ordinance ❑ Bid Award Mtg Date ❑ Public Hearing Aftg Date • Other AN Date 04/28/15 AN Date SPONSOR ❑ Council ❑ Mayor ❑ HR ❑ DCD ❑ Finance [] Fire ❑ IT ❑ P&R ❑ Police !` PW SPONSOR'S Through its subsidiaries, Zayo Group LLC (Zayo) provides bandwith infrastructure SUMMARY solutions for the communications industry in the US and Europe. Specifically, they provide long haul fiber networks for carriers, financial services companies, healthcare, government, educational institutions and other enterprises. Council is being asked to approve the new ordinance for the franchise agreement that will allow Zayo to continue operating in the City's right -of -way and facilitate future expansion projects. REVIEWVED BY ❑ COW Mtg. Cmte ❑ CA &P Cmte ❑ F &S Cmte ❑ Parks ITEM INFORMATION ITEM No. 3 STAFF SPONSOR: BOB GIBERSON ORIGINAL AGENDA DATE: 05/04/15 AGENDA ITEM TIFILE Ordinance Granting a Non - Exclusive Franchise Agreement with Zayo Group LLC CATEGORY ❑ Main/011 Mfg Date ❑ Motion AN Date ❑ Resolution AN Date re Ordinance ❑ Bid Award Mtg Date ❑ Public Hearing Aftg Date • Other AN Date 04/28/15 AN Date SPONSOR ❑ Council ❑ Mayor ❑ HR ❑ DCD ❑ Finance [] Fire ❑ IT ❑ P&R ❑ Police !` PW SPONSOR'S Through its subsidiaries, Zayo Group LLC (Zayo) provides bandwith infrastructure SUMMARY solutions for the communications industry in the US and Europe. Specifically, they provide long haul fiber networks for carriers, financial services companies, healthcare, government, educational institutions and other enterprises. Council is being asked to approve the new ordinance for the franchise agreement that will allow Zayo to continue operating in the City's right -of -way and facilitate future expansion projects. REVIEWVED BY ❑ COW Mtg. Cmte ❑ CA &P Cmte ❑ F &S Cmte ❑ Parks ❑ Transportation Cmte Comm. ❑ Planning Comm. E CHAIR: DENNIS ROBERTSON 121 Utilities 1 Arts Comm. DATE: 04/28/15 COMMI 1 I RECOMMENDATIONS: SPONSOR/ADMIN. COMMIIITEE Public Works Department Unanimous Approval; Forward to Regular Consent Agenda COST IMPACT / FUND SOURCE EXPENDITURE REQUIRED AMOUNT BUDGETED APPROPRIATION REQUIRED $0.00 $0.00 $0.00 Fund Source: Comments: MTG. DATE RECORD OF COUNCIL ACTION 05/04/15 MTG. DATE ATTACHMENTS 05/04/15 Informational Memorandum dated 04/14/15 Draft Ordinance with Exhibits Minutes from the Utilities Committee meeting of 04/28/15 3 City of Tukwila Jim Haggerfon, Mayor INFORMATIONAL MEMORANDUM TO: Mayor Haggerton Utilities Committee FROM: Bob Giberson, PW Director BY: Frank Iriarte, Deputy PW Director DATE: April 14, 2015 SUBJECT: Zayo Group LLC Franchise Ordinance ISSUE Approval of Zayo Group LLC Franchise Ordinance. BACKGROUND Headquartered in Boulder Colorado, Zayo Group LLC. (Zayo) was founded in 2007. Through its subsidiaries, Zayo provides bandwidth infrastructure solutions for the communications industry in the US and Europe. Specifically, they provide long haul fiber networks for carriers, financial services companies, healthcare, government, educational institutions and other enterprises. DISCUSSION Zayo's fiber optic system was constructed through joint fiber optic construction projects with 360 Networks, McLeodUSA Incorporated, and Williams Communications. As depicted in Exhibited A of the Franchise ordinance, Zayo has an extensive fiber optic infrastructure in the City. The attached Franchise Agreement would allow Zayo to continue operating and maintaining its fiber optic system in the City's right -of -way and facilitate future expansion projects. FINANCIAL IMPACT Under the terms of the Franchise, Zayo will pay a $5,000 administrative fee within 30 days of franchise approval. RECOMMENDATION Council is being asked to approve the Ordinance that will grant a Franchise Agreement to Zayo Group LLC., and consider this item May 5, 2015 Regular Council Meeting Consent Agenda. attachment Draft Franchise Ordinance with Exhibits A & B. W:1PW Eng \PrajeclsLFranchlse \Into Memo Franchise Agreement -Zayo Group LLC. 5 City of Tukwila Washington Ordinance No. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, GRANTING A NON - EXCLUSIVE FRANCHISE TO ZAYO GROUP, 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, Zayo Group, hereinafter referred to as "Zayo," is a telecommunications company that, among other things, provides voice and data services to customers, including those in the Puget Sound region; and WHEREAS, Zayo'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: W: Word Processing \Ordinances'Zaya franchise agreement 4 -16 -15 FI:b ;s Page 1 of 11 7 Section 1. Non - exclusive Franchise Granted. A. The City hereby grants to Zayo, 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 Zayo 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 Zayo; provided, that such other franchises do not unreasonably interfere with Zayo'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 Zayo 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 Zayo. Section 2. Authority. The Director of Public Works or his or her designee is hereby granted the authority to administer and enforce the terms and provisions of this Franchise Agreement and may develop such lawful and reasonable rules, policies and procedures as he or she deems necessary to carry out the provisions contained herein. Section 3. Franchise Term. The franchise rights granted herein shall remain in full force and effect for a period of five years from the effective date of this ordinance. However, this Franchise Agreement shall not take effect and Zayo 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 Zayo 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, written notice of the extension shall be provided to Zayo prior to the Franchise expiration date. 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 Zayo 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. W: Word Pracessinglordinances\Zaya franchise agreement 4 -15 -15 Fi:6js 8 Page 2 of 11 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, Zayo shall, within 24 hours of the emergency, obtain a permit from the City of Tukwila's Public Works Department, 2. Coordination. All capital construction projects performed by Zayo 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. 3. Construction Standards. Any construction, installation, maintenance and restoration activities performed by or for Zayo 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. 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 Public Works Director. 5. Relocation. a. The City shall have the right to require Zayo to alter, adjust, relocate, or protect in place its facilities within the public right -of -way when reasonably necessary for construction, alteration, repair, or improvement of any portion of the public rights -of- way for purposes of public welfare, health, or safety ( "Public improvements "). Such Public Improvements include, by way of example but not limitation, public rights -of -way construction; public rights -of -way repair (including resurfacing or widening); change of public rights -of -way grade; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, communication lines, or any other type of government - owned communications, utility or public transportation systems, public work, public facility, or improvement of any government -owned utility; public rights -of -way vacation, and the construction of any public improvement or structure by any governmental agency acting in a governmental capacity. In the event the City requires Zayo to relocate its faciliites, the City shall provide Zayo 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 Zayo 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. The City shall notify Zayo as soon as practicable of the need for relocation and shall specify the date by which relocation shall be completed. Except in case of emergency such notice shall be no less than 30 days. W Word Processing \OrdinanceslZayo franchise agreement 4 -16 -15 FI:bjs Page 3 of 11 9 b. To ensure timely execution of relocation requirements, Zayo shall, upon written request from the City, provide at Zayo'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. Zayo 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 Zayo 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, Zayo shall submit additional information to assist the City in making such evaluation. The City shall give each alternative proposed by Zayo full and fair consideration. In the event the City, in its sole discretion, decides not to accept the alteratives suggested by Zayo, Zayo shall relocate its facilities as otherwise specified in Section 5, subparagraph 5. d. Upon final approval of the relocation plan by the City, Zayo shall, at its own expense, unless otherwise prohibited by statute, and at the time frame 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 Zayo's facilities, Zayo shall, upon notification from the City, respond within 24 hours to resolve the conflict. f. Zayo acknowledges and understands that any delay by Zayo in performing the work to alter, adjust, relocate, or protect in place its facilities within the public rights -of- way may delay, hinder, or interfere with the work performed by the City and its contractors and subcontractors in furtherance of construction, alteration, repair, or improvement of the public rights -of -way, and result in damage to the City, including but not limited to, delay claims. Zayo shall cooperate with the City and its contractors and subcontractors to coordinate such relocation work to accommodate the public improvement project and project schedules to avoid delay, hindrance of, or interference with such project. g. Should Zayo fail to alter, adjust, protect in place or relocate any facilities ordered by the City to be altered, adjusted, protected in place, or relocated, within the time prescribed by the City, given the nature and extent of the work, or if it is not done to the City's reasonable satisfaction, the City may, to the extent the City may lawfully do so, cause such work to be done and bill the reasonable cost of the work to Zayo, including all reasonable costs and expenses incurred by the City due to Zayo's delay. in such event, the City shall not be liable for any damage to any portion of Zayo's W: Word Processing\Ordinances\Zayo franchise agreement 4 -15 -15 Fl:bjs 10 Page 4 of 11 system. In addition to any other indemnity set forth in this Franchise Agreement, Zayo will indemnify, hold harmless, and pay the costs of defending the City from and against any and all claims, suits, actions, damages, or liabilities for delays on public improvement construction projects caused by or arising out of the failure of Zayo to adjust, modify, protect in place, or relocate its facilities in a timely manner; provided that, Zayo shall not be responsible for damages due to delays caused by the City. 6. Removal or Abandonment. Upon the removal from service of any service antennas or other associated structures, facilities and amenities, Zayo shall comply with all applicable standards and requirements prescribed by the City of Tukwila's Public Works Department for the removal or abandonment of said structures and facilities. No facility constructed or owned by Zayo shall 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, Zayo shall, upon the request of the City, furnish a bond executed by Zayo 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 Zayo'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 Zayo in the City rights -of -way. At Zayo's sole option, Zayo 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 Zayo 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 Zayo work or materials discovered in the City's roads, streets or property. 8. "One -Call" Location and Liability. Zayo 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 Zayo's system components or for interruptions in service to Zayo customers which are a direct result of work performed for any City project for which Zayo 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 Zayo system components or for interruptions in service to Zayo customers resulting from work performed under a permit issued by the City. 9. As -Built Plans Required. Zayo 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 Zayo pursuant to this Franchise Agreement. The City shall determine the acceptability of any as -built submittals provided under this section. W: Word Processing\OrdinancesiZay© franchise agreement 4 -16 -15 FI:bjs Page 5 of 11 11 10. Recovery of Costs. Zayo 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, Zayo 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 may, at its option and by giving 30- days written notice to Zayo, 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 Toss to Zayo by reason of such termination other than those provided for in RCW 35.99. Section 6. Franchise Compliance. A. Franchise Violations. The failure by Zayo 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 Agreement and requests remedial action within 30 days of receipt of such notice. If Zayo 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 Zayo's actions under this Franchise Agreement, or any failure by Zayo to act to correct a situation caused by Zayo, 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 Zayo 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 Zayo and give Zayo an opportunity to correct within a specified time said threat, financial harm or delay before undertaking such corrective measures. Zayo 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 Zayo 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 Zayo to take appropriate action to correct a situation caused by Zayo 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. W Word Processinglordinanoesgayo franchise agreement 4-16-15 Fi:bjs 12 Page 6 of 11 2. If during construction or maintenance of Zayo'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, Zayo 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 Zayo'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, Zayo shall, at its sole expense, promptly remove all system components and facilities, provided that the City, at its sole option, may allow Zayo to abandon its facilities in place. Section 7. Insurance. A. Zayo 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 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 Grantee 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 Zayo to acquire additional insurance. 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 Zayo 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 Zayo'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 Zayo to another person or entity controlling, controlled by, or under common control with Zayo. Zayo may W: Word Processingl0rdinancesIZayo franchise agreement 4 -16 -15 Fl:bjs Page 7 of 11 13 license fibers to other users without the consent of the City provided that Zayo 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, Zayo 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 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. Administrative Fees. A. Pursuant to the Revised Code of Washington (RCW), the City is precluded from imposing franchise fees for "telephone businesses" 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. Zayo does hereby warrant that its operations, as authorized under this Franchise Agreement, are those of a telephone business as defined in RCW 82.1 6.010 or a service provider as defined in 35.99.010. B. Zayo 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. 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 Zayo 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, Zayo shall reimburse the City for franchise amendments and expenses associated with the project. Zayo shall pay such costs within 30 days of receipt of a bill from the City. B. Failure by Zayo 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. W: Word Processing \Ordinances'Zayo franchise agreement 4 -16-15 FI:bjs 14 Page 8of11 Section 11. Notices. Any notice to be served upon the City or Zayo shall be delivered to the following addresses respectively: City of Tukwila Office of the City Clerk 6200 Southcenter Boulevard Tukwila WA 98188 Email: christy .oflahertyAtukwilawa.gov Phone: 206 -433 -1855 Zayo Group, LLC ATTN: General Counsel (ZPI) 1805 29th Street Boulder, CO 80301 Section 12. Indemnification. A. Zayo 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. Zayo 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 Zayo, its officers, agents, servants or employees, carried on in the furtherance of the rights, benefits, and privileges granted to Zayo by this Franchise. In the event any claim or demand is presented to or filed with the City that gives rise to Zayo's obligation pursuant to this section, the City shall within a reasonable time notify Zayo thereof and Zayo 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 Zayo's obligation pursuant to this section, the City shall promptly notify Zayo thereof, and Zayo 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, Zayo 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 Zayo 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. lAt Word Processinglordinances\Zaya franchise agreement 4 -16 -15 Fl :bjs Page 9 of 11 15 B. To the extent of any concurrent negligence between Zayo and the City, Zayo'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 Agreement 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, Zayo expressly waives its immunity under Title 51 of the Revised Code 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 Zayo'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 Zayo, to enforce the remaining provisions of the ordinance, Zayo 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. Zayo 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. Zayo 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 Zayo, shall thereafter govern Zayo's activities hereunder; provided, however, that in no event shall regulations: W: Word Processing\QrdinanceslZaya franchise agreement 4 -16 -15 FI:bjs 16 Page 10 of 11 1. materially interfere with or adversely affect Zayo's rights pursuant to and in accordance with this Franchise Agreement; or 2. be applied in a discriminatory manner as it pertains to Zayo and other similar user 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 , 2015. ATTEST/AUTHENTICATED: Christy O'Flaherty, MMC, City Clerk APPROVED AS TO FORM BY: Rachel B. Turpin, City Attorney Jim Haggerton, Mayor Filed with the City Clerk: Passed by the City Council: Published: Effective Date: Ordinance Number: Attachments: Exhibit A — Fiber Optic System Description Exhibit A -1 — Zayo Project Route Map Exhibit B — Franchise Agreement Acceptance Form W: Word Processing \QrdinancesVayo franchise agreement 4-16 -15 FI: bjs Page 11 of 11 17 EXHIBIT A — Page 1 Zayo Group, LLC Fiber Optic System Description (2) 1 -114" 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 S. Populated with (1) 432 count fiber optic cable. (2) 1 -114" conduits within the 360 Networks joint build continuing westerly along SW Grady Way approximately 2 miles to the eastern City limits. Populated with (1) 432 count fiber optic cable_ (2) 1 -114" conduits within the 360 Networks joint build from the intersection of SW Grady Way, West Valley Highway and Interurban Ave S northerly approximately 3 1 miles to the intersection of Interurban Ave S and E Marginal Way S. Populated with (1) 864 count fiber optic cable. Note: There is no cable placed between S 133 St and E Marginal Way S along Interurban Ave S. (2) 1 -114" conduits within the 360 Networks joint build from the intersection of interurban Ave S and E Marginal Way 5 northerly approximately .63 miles to the intersection of E Marginal Way S and S Boeing Access Rd. Populated with (1) 432 count fiber optic cable. (2) 1-1/4" conduits within the 360 Networks joint build from the intersection of Boeing Access Rd easterly approximately .23 miles to the intersection of Boeing Access Rd and Airport Way S at the northern City limits. Populated with (1) 432 count fiber optic cable. (8) 1-1/2" conduits within the McLeod joint build from the intersection of Interurban Ave S and 5 133 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 S. Populated with (1) 864 count fiber optic cable. Note. There is no cable placed between S 124 St and S 120 St along E Marginal Way S. (8) 1 -112" conduits from the intersection of E Marginal Way 5 and S 124 St westerly approximately .13 miles. Populated with (1) 864 count fiber optic cable. (4) 1-1/2" conduits within the Williams joint build from the intersection of 5 130 St and Tukwila International Boulevard northerly approximately 1.41 miles to the intersection of Tukwila International Boulevard and E Marginal Way S, then continuing northerly on E Marginal Way S approximately 1.9 miles to the north City limits. 18 EXHIBIT A - Page 2 (2) 1-1/2" conduits from the intersection of S 130 St and E Marginal Way S to SCL pole 1375850- 12901, approximately .023 miles. Populated with (1) 48 count fiber optic cable. Strand and lash (1) 48 count fiber optic cable to SCL pole 1375850- 12091; east on 5 130 St, south on Macadam Rd S, and south east on S 131 PI to 13130 44 Ave S, approximately .42 miles. (2) 1-1/2" conduits from the intersection of S 130 St and Tukwila International Boulevard to SCL pole 1375537, approximately .029 miles. Populated with (1) 144 count fiber optic cable. Strand and lash (1) 144 count fiber optic cable to SCL pole 1375537; west on S 130 St, south on 32 Ave 5, and east on S 135 St to City of SeaTac city limits approximately .54 miles. (2) 1-1/2" conduits from the intersection of S 152 'St and Tukwila International Boulevard east on S 152 St to SCL pole 1375449, approximately .066 miles. Populated with (1) 144 count fiber optic cable. Strand and lash (1) 144 count fiber optic cable to SCL pole 1375449; east on S 152 St to SCL pole 1375133 approximately .24 miles. (2) 1-1/2" conduits from SCL pole 1375133 east on S 152 St, south on 42 Ave 5 to SCL pole 1375335 approximately ,269 miles. Populated with (1) 144 count fiber optic cable. Strand and lash (1) 144 count fiber optic cable to SCL pole 1375335; south on 42 Ave S to City of SeaTac city limits approximately .25 miles. PLANNED (2) 1 -112" conduits from the intersection of W Valley Hwy and Strander Blvd west on Strander, south on Andover Park E to 325 Andover Park E approximately .41 miles. Populated with (1) 48 count fiber optic cable. (2) 1-1/2" conduits from the intersection of W Valley Hwy and S 180 St east on S 180 St to the City of Kent city limits approximately .34 miles. Populated with (1) 48 count fiber optic cable, 19 20 Lake Washington 1 IR Will wing � I W:\PW Eng \GIS Projects \Frank \Fiber Optics \Zayo\FiberZayo.mxd Date: 04/16/15 By: R. Linsao City of Tukwila ZAYO Project Map Not to Scale Existing - - - - - -I Proposed Vicinity Map Disclaimer: The location of features and boundaries are approximate and are intended for reference only. Data is based on best information available. 2 Date: EXHIBIT B Zayo Group, LLC Franchise Agreement Acceptance Form City of Tukwila City Clerk's Office 6200 Southcenter Boulevard Tukwila, WA 98188 Re: Ordinance No. , adopted on Dear Ms. O'Flaherty: In accordance with and as required by Section 4 of City of Tukwila Ordinance No. (the "Ordinance "), passed by the City Council and approved by the Mayor on , Zayo Group, LLC, hereby accepts the terms, conditions and obligations to be complied with or performed by it under the Ordinance. Sincerely, Signature Printed Name Title cc: Frank Iriarte, Public Works Department, City of Tukwila 23 UTILITIES COMMITTEE Meeting Minutes April 28, 2015 — 5:30 p.m. — Foster Conference Room, 6300 Building City of Tukwila Utilities Committee PRESENT Councilmembers: Dennis Robertson, Chair; De'Sean Quinn, Verna Seal Staff: Robin Tischmak, Pat Brodin, Frank Iriarte, Mike Cusick, Laurel Humphrey Guests: Frank Lavarato, Dorothy Wojciethowska, Zayo Group LLC CALL TO ORDER: Committee Chair Robertson called the meeting to order at 5:30 p.m. I. PRESENTATIONS II. BUSINESS AGENDA A. Ordinance: Zayo Group LLC Franchise Staff is seeking Council approval of an ordinance to grant a franchise to Zayo Group LLC, for the operation and maintenance of its fiber optic system in the City right -of -way. Zayo provides bandwidth infrastructure solutions for the communications industry in the United States and Europe, specifically long haul fiber networks for carriers, financial services, healthcare, government and other business. Zayo's extensive fiber optic system was constructed through joint projects with 360 Networks, McLeodUSA Incorporated, and Williams Communications. The proposed franchise ordinance authorizes Zayo to occupy and use the right -of -way, does not grant any right, title or interest, and requires a $5,000 administrative fee from Zayo within 30 days of approval. UNANIMOUS APPROVAL. FORWARD TO MAY 5, 2015 REGULAR CONSENT AGENDA. B. Interlocal Agreement: Valley View Sewer District Staff is seeking Council approval of an interlocal agreement with Valley View Sewer District to allow Valley View to provide sanitary sewer service to the Loop Area in Tukwila. The Loop Area is that area in the City bounded generally by South 160th Street, 42nd Avenue South, State Route 518, and 51st Avenue South and it is not currently served by a public sewer system. While it is in the Sewer Comprehensive Plan, City - provided sewer service in this area has been a low priority and is not in the adopted CIP. In conjunction with the City's planned reconstruction of 42nd Avenue South from Southcenter Boulevard to South 160th Street, and because Valley View has an existing 8" sewer line in 42nd Avenue South, Valley View is willing to plan and construct public sewers to serve Loop Area if the City is supportive. Committee members asked clarifying questions and expressed support for this proposal. Because connection to public sewers has financial impacts to residents, they did request that the City participate in the communications effort and ensure that residents receive detailed and timely information about costs and the construction schedule. UNANIMOUS APPROVAL. FORWARD TO MAY 11, 2015 COMMITTEE OF THE WHOLE. 25