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HomeMy WebLinkAboutUtilities 2016-01-26 Item 2A - Ordinance - Fiber Optic System Franchise with Level 3 CommunicationsCity of Tukwila Allan Ekberg, Mayor Public Works Department - Bob Giberson, Director INFORMATIONAL MEMORANDUM TO: Mayor Ekberg Utilities Committee FROM: Bob Giberson, Public Works Director 'f' BY: Frank Iriarte, Deputy Public Works Director DATE: January 22, 2016 SUBJECT: Level 3 Communication LLC Ordinance Approving Franchise Agreement ISSUE Approve Ordinance for Level 3 Communications, LLC (Level 3) Franchise Agreement. BACKGROUND The Tukwila Municipal Code requires all utilities using the City's right -of -way to have a non - exclusive franchise, Level 3 Communications, LLC is a multinational telecommunications company that provides high capacity interexchange transport to telecommunications common carriers, including data transmission, linkage to long distance carriers and other integrated telecommunications services. Level 3 serves customers in more than 500 markets, spanning three continents and more than 60 countries. It operates more than 350 data centers throughout North America (including three in Seattle), Latin America, and Europe. DISCUSSION In Tukwila, Level 3's long -haul fiber optic infrastructure passes through the City along the Burlington Northern Santa Fe (BNSF) and the Union Pacific (UP) rights of way. Through the acquisition of several telecommunications companies including Williams/Wiltel Communications and Time Warner Telecommunications LLC, Level 3 operates a metro network that services Tukwila commercial customers and other customers in the Puget Sound area, Level 3's fiber optic network is depicted in Exhibit A, Fiber Optic System Description and Project Map, The attached Franchise Agreement would allow Level 3 to continue operating and maintaining their fiber optic system in the City's right-of-way. FINANCIAL IMPACT Under the terms of the Franchise, Level 3 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 Level 3 Franchise Agreement and consider this item on the Consent Agenda at the February 01, 2016 Regular Meeting. Attachment: Draft Franchise Ordinance with Exhibits A & B W IPW EngtPROJECTSTranchse'I nfo Memo Level 3 Franchise Ordinance 01 22 -16 g docx 1 DAFT AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF TUKWILA, WASHINGTON, GRANTING A NON- EXCLUSIVE FRANCHISE TO LEVEL 3 COMMUNICATIONS, LLC, A DELAWARE LIMITED LIABILITY COMPANY 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; REPEALING ORDINANCE NO. 2061; PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, Level 3 Communications, LLC, hereinafter referred to as "Level 3," is a telecommunications company that, among other things, provides high capacity interexchange transport to telecommunications common carriers, including data transmission, linkage to long distance carriers and other telecommunications services to customers in the Puget Sound region; and WHEREAS, Level 3'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 bome 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 installation, operation and maintenance of a fiber optic system and transmission of communications; W: Word Processing \Ordinances\Level 3 franchise agreement 1 -14-16 FI:bjs Page 1 of 11 2 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 Level 3, 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 Level 3 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 Level 3; provided, that such other franchises do not unreasonably interfere with Level 3's exercise of franchise rights granted herein as determined by the City in its sole discretion. 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 Level 3 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 Level 3. 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 Level 3 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 Level 3 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 Level 3 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 Level 3 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. W: Word Processing \Ordinances \Level 3 franchise agreement 1 -14 -16 FI:bjs Page 2 of 11 3 Section 5. Construction Provisions and Standards. The foil wing.,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, Level 3 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 Level 3 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 Level 3 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 Level 3 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 public property or 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 govemmental capacity. In the event the City requires Level 3 to relocate its facilities, the City shall provide Level 3 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 Level 3 shall meet at a time and location determined by the City to discuss the project requirements including critical W: Word Processing \Ordinances \Level 3 franchise agreement 1 -14 -16 Fl:bjs Page 3of11 4 ..! timelines, schedules, construction standards, utility conflicts, as -built requirements, and other pertinent relocation plan details. The City shall notify Level 3 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 90 days. b. To ensure timely execution of relocation requirements, Level 3 shall, upon written request from the City, provide at Level 3'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 time frame specified by the City. c. Level 3 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 Level 3 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, Level 3 shall submit additional information to assist the City in making such evaluation. The City shall give each alternative proposed by Level 3 full and fair consideration. In the event the City, in its sole discretion, decides not to accept the alternatives suggested by Level 3, Level 3 shall relocate its facilities as otherwise specified in Section 5, subparagraph 5. d. Upon final approval of the relocation plan by the City, Level 3 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. In the event relocation is required by reason of construction by a third party, non - governmental entity —for the sole benefit of the third party, non - governmental entity —then Level 3's relocation costs shall be borne by the third party. e. If during the construction, repair, or maintenance of the City's public improvement project an unexpected conflict occurs from Level 3's facilities, Level 3 shall, upon notification from the City, respond within 24 hours to resolve the conflict. f. Level 3 acknowledges and understands that any delay by Level 3 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. Level 3 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. W: Word Processing \Ordinances\Level 3 franchise agreement 1 -14-16 Fl:bjs Page 4 of 11 5 g. Should Level 3 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 Level 3, including all reasonable costs and expenses incurred by the City due to Level 3's delay. In such event, the City shall not be liable for any damage to any portion of Level 3's system. In addition to any other indemnity set forth in this Franchise Agreement, Level 3 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 Level 3 to adjust, modify, protect in place, or relocate its facilities in a timely manner; provided that, Level 3 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, Level 3 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 Level 3 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, Level 3 shall, upon the request of the City, furnish a bond executed by Level 3 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 Level 3'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 Level 3 in the City rights -of -way. At Level 3's sole option, Level 3 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 Level 3 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 Level 3 work or materials discovered in the City's roads, streets or property. 8. "One -Call" Location and Liability. Level 3 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 Level 3's system components or for interruptions in service to Level 3 customers which are a direct result of work performed for any City project for which Level 3 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 Level 3 system components or for interruptions in service to Level 3 customers resulting from work performed under a permit issued by the City. W: Word Processing \Ordinances\Level 3 franchise agreement 1 -14-16 Fl:bjs Page 5of11 6 9. As -Built Plans Required. Level 3 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 Level 3 pursuant to this Franchise Agreement. The City shall determine the acceptability of any as -built submittals provided under this section. 10. Recovery of Costs. Level 3 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, Level 3 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 Level 3, 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 Level 3 by reason of such termination other than those provided for in RCW 35.99. Section 6. Franchise Compliance. A. Franchise Violations. The failure by Level 3 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 60 days of receipt of such notice. If Level 3 has not attained full compliance at the end of the 60 -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 60 -day period. B. Emergency Actions. 1. If any of Level 3's actions under this Franchise Agreement, or any failure by Level 3 to act to correct a situation caused by Level 3, 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 Level 3 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 Level 3 and give Level 3 an opportunity to correct within a specified time said threat, financial harm or delay before undertaking such corrective measures. Level 3 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 Level 3 and shall further be liable for all reasonable costs, expenses and damages resulting to the City W: Word Processing \Ordinances\Level 3 franchise agreement 1 -14 -16 FI:6js Page 6of11 7 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 Level 3 to take appropriate action to correct a situation caused by Level 3 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 Level 3'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, Level 3 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 Level .3'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, Level 3 shall, at its sole expense, promptly remove all system components and facilities, provided that the City, at its sole option, may allow Level 3 to abandon its facilities in place. Section 7. Insurance. A. Level 3 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 Level 3 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 Level 3 from any obligation to obtain approvals or necessary permits from applicable federal, state and City authorities for all activities in the Franchise Area. W: Word Processing \Ordinances \Level 3 franchise agreement 1 -14-16 Fl:bjs Page 7 of 11 8 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 Level 3'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 Level 3 to another person or entity controlling, controlled by, or under common control with Level 3. Level 3 may license fibers to other users without the consent of the City provided that Level 3 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, Level 3 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. Level 3 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 35.99.010. B. Level 3 shall be subject to a one -time $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 notice of 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 Level 3 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, Level 3 shall reimburse the City for franchise W: Word Processing \Ordinances \Level 3 franchise agreement 1 -14 -16 Fl:bjs Page 8 of 11 9 amendments and expenses associated with the project. Level 3 shall pay.,,such costs within 60 days of receipt of a bill from the City. E. Failure by Level 3 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 Level 3 shall be delivered to the following addresses respectively: City of Tukwila Office of the City Clerk 6200 Southcenter Boulevard Tukwila WA 98188 Email: TukwilaCityClerk a,tukwilawa.gov Phone: 206 -433 -1800 Level 3 Communications, LLC ATTN: NIS ROW 1025 Eldorado Boulevard Broomfield, CO 80021 With a copy to: Level 3 Communications, LLC ATTN: General Counsel 1025 Eldorado Boulevard Broomfield, CO 80021 Section 12. Indemnification. A. Level 3 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. Level 3 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 Level 3, its officers, agents, servants or employees, carried on in the furtherance of the rights, benefits, and privileges granted to Level 3 by this Franchise. In the event any claim or demand is presented to or filed with the City that gives rise to Level 3's obligation pursuant to this section, the City shall within a reasonable time notify Level 3 thereof and Level 3 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 Level 3's obligation pursuant to this section, the City shall promptly notify Level 3 thereof, and Level 3 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, Level 3 may, at its election and at its sole cost and expense, settle or W: Word Processing \Ordinances\Level 3 franchise agreement 1 -14-16 Fl:bjs Page 9 of 11 10 J compromise such suit or action. This section shall not be construed to require Level 3 to: 1. protect and save the City harmless from any claims, actions or damages; 2. settle or compromise any claim, demand, suit or action; 3. appear in or defend any suit or action; or, 4. pay any judgment or reimburse the City's costs and expenses (including reasonable attorney's fees), to the extent such claim arises out of the negligence or intentional acts of the City, its employees, agents or independent contractors. B. To the extent of any concurrent negligence between Level 3 and the City, Level 3'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, Level 3 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 Level 3'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 Level 3, to enforce the remaining provisions of the ordinance, Level 3 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. Level 3 shall not by this Franchise W: Word Processing \Ordinances\Level 3 franchise agreement 1 -14 -16 FI:bjs Page 10 of 11 11 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. Level 3 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 Level 3, shall thereafter govern Level 3's activities hereunder; provided, however, that in no event shall regulations: 1. materially interfere with or adversely affect Level 3's rights pursuant to and in accordance with this Franchise Agreement; or 2. be applied in a discriminatory manner as it pertains to Level 3 and other similar user of such facilities. Section 17. Repealer. Ordinance 2061 is hereby repealed. Section 18. 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 19. 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 , 2016. ATTEST /AUTHENTICATED: Christy O'Flaherty, MMC, City Clerk Allan Ekberg, Mayor APPROVED AS TO FORM BY: Rachel B. Turpin, City Attorney 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 — Level 3 Project Route Map Exhibit B — Franchise Agreement Acceptance Form W: Word Processing \Ordinances \Level 3 franchise agreement 1 -14-16 Fl:bjs Page 11 of 11 12 EXHIBIT A Level 3 Communications, LLC Fiber Optic System Description The Level 3 Long -haul Network passes through the City of Tukwila along: (1) BNSF ROW and local streets north of South Norfolk Street going into Seattle; (2) along local streets and the UP ROW to the south of South Norfolk Street going towards Olympia, WA. The Level 3 Metro Network in Tukwila starts at the manhole located on Airport Way South in Seattle and crosses into Tukwila on South Norfolk Street. From this point, it heads west along South Norfolk Street to the intersection of South Norfolk Street and East Marginal Way where it ties into the Metro Network. From the intersection of South Norfolk Street and East Marginal Way, the Network proceeds south along East Marginal Way. At the intersection of East Marginal Way and Boeing Access Road, the Network transitions to SR 99/Tukwila International Boulevard. In addition to the existing Network above, Level 3 built a conduit system from Zayo's manhole at the intersection of Interurban Avenue South and Southwest Grady Way to the Level 3 manhole located at Southwest Grady Way and Longacres Drive Southwest. Level 3 acquired the Williams/Wiltel Communications fiber optic network in Tukwila. That network goes from the northern City limit at East Marginal Way to the intersection of SR 99/Tukwila International Boulevard and continues to the southern City limit. Level 3 also purchased the Time Warner Telecom network in Tukwila that includes (1) a fiber optic system that runs along Interurban Avenue South. On Interurban Avenue South, the network continues east to Boeing Access Road and heads north on Airport Way South into Seattle; and (2) a fiber optic system located on East Marginal Way from Interurban Avenue South to South 133rd Street. This system continues east on South 133rd Street to Interurban Avenue South. Through the acquisition of the Time Warner Telecom network, Level 3 now has a system that serves customers in Tukwila's Commercial District. The system starts from a vault on Interurban Avenue South and Family Fun Center Way and heads to Southcenter Boulevard. On the north side, attached to the bridge portion of Southcenter Boulevard, the system heads to the Christiansen Trail on the west side of the Duwamish River, then heads south to the intersection of Tukwila Parkway and the Christiansen Trail. The system continues westerly on the south side of Tukwila Parkway to the intersection of Andover Park West and Tukwila Parkway. From the west side of Andover Park West, the system heads south to Corporate Drive North. At this location, the system heads back north across Corporate Drive North then west on the north side of Corporate Drive North and terminates into a telecommunications vault. 13 EXHIBIT B Level 3 Communications, LLC Franchise Agreement Acceptance Form Date: 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 "), Level 3 Communications, 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, Deputy Public Works Director, City of Tukwila 14 S 113th St 115th St S114h St S 152nd St S 52nd PI ■�11� 1 =11.11♦ Wig Blvd Co rporate Minkler B vd Upland Dr Midland Di Triland Dr Disclaimer: The location of features and boundaries are approximate and are intended for reference only. Data is based on best information available. S S 200th St 110%1rS iclitl ai._1._1•_`" W: \PW Eng \GIS\ Projects\ Frank \Fiber Optics \Level3 \Level3Fiber.mxd Date: 01/19/16 By: R. Linsao City of Tukwila Exhibit A Level 3 Fiber Optic Network S Not to Scale 15