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Ordinance No. 1��ZL
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TUKWILA, WASHINGTON, GRANTING A TEMPORARY NON-
EXCLUSIVE FRANCHISE TO METROMEDIA FIBER NETWORK
SERVICES, INC. "MFN A DELAWARE CORPORATION
LEGALLY AUTHORIZED TO CONDUCT BUSINESS IN THE STATE
OF WASHINGTON, FOR THE PURPOSE OF CONSTRUCTING,
OPERATING, AND MAINTAINING A TELECOMMUNICATIONS
TRANSMISSION LINE IN CERTAIN PUBLIC RIGHTS -OF -WAY IN
THE CITY; PROVIDING FOR SEVERABILITY; AND
ESTABLISHING AN EFFECTIVE DATE.
WHEREAS, Metromedia Fiber Network Services, Inc., hereinafter referred to as "MFN," is a
telecommunications company that, among other things, provides nonswitched, dedicated and
private line, high capacity fiber optic transmission services to firms, businesses or institutions
within and outside the City; and
WHEREAS, MFN desires to extend its services to certain businesses located within the
corporate limits of the City of Tukwila, hereinafter referred to as "City and
WHEREAS, MFN's desired route through the City of Tukwila requires the use of certain
portions of City rights -of -way for the installation, operation, and maintenance of a
telecommunication system which will include fiber -optic cables; and
WHEREAS, the City Council has determined that the use of portions of the City's rights -of-
way for installation of telecommunication transmission lines 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 City Council has determined that the development of a comprehensive plan
for rights -of -way use and management is the most effective means for managing the current use of
rights -of -way and ensuring prudent and appropriate decisions concerning the use of rights -of -way
in the future; and
WHEREAS, MFN has determined that it is in its best interests to move forward with the
installation of facilities within the public rights -of -way prior to the completion of the
comprehensive rights -of -way use and management plan, and has agreed to abide by the terms and
conditions of such a plan once it has been completed;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF TUKWILA,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. Non exclusive temporary franchise granted. The City of Tukwila hereby grants
to MFN, 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 an underground telecommunication transmission system,
which includes fiber -optic cable, within the City -owned rights -of -way generally described below,
and shown in Exhibit A, and hereinafter referred to as the "Franchise Area
Metromedia franchise 9 -00 1
A. Route description for cable placement in the City of Tukwila. Approximately 43,000
feet consisting of a route beginning at the northern limit of the City on Airport Way and going
south on Airport Way to Boeing Access Road, continuing west on Boeing Access Road to East
Marginal Way South, then south on East Marginal Way to Interurban Avenue South, then south on
Interurban to West Valley Highway, then south on West Valley to 180th Street at the southernmost
limit of the City.
B. Route description for conduit construction in the City of Tukwila. Approximately
7,000 feet consisting of a route beginning 300 feet north of the intersection of Interurban Avenue
South and East Marginal Way South, going south on Interurban Avenue South to the intersection
of Interurban and East Marginal Way, continuing south on East Marginal Way to South 133rd
Street and then south on South 133rd Street to the intersection of South 133rd Street and Interurban
Avenue South, tying back into the cable route mentioned above.
C. Future routes.
1. For the purposes of providing service to individual homes, private entities, or
businesses, MFN shall request authorization from Public Works Director to use
telecommunications corridors designated in the City's Right -of -Way Management Plan.
2. Such franchise shall not be deemed to be exclusive to MFN 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 Agreement has been granted to MFN; provided that such other
franchises do not unreasonably interfere with MFN's exercise of franchise rights granted herein as
determined by the City. This Franchise Agreement shall in no way interfere with existing utilities
or in any way limit, prohibit, or prevent the City from using the Franchise Area or affect the City's
jurisdiction over such area in any way.
Section 2. Authority. The Director of Public Works or his or her designee is hereby granted
the authority to administer and enforce the terms and provisions of this Franchise Agreement and
may develop such rules, policies, and procedures as he or she deems necessary to carry out the
provisions contained herein.
Section 3. 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 4.
A. Permit Required. No construction, maintenance, or repairs (except for emergency
repairs) shall be undertaken in the Franchise Area without first obtaining a Franchise Utility
Permit from the City of Tukwila, Department of Public Works. In case of an emergency, MFN
shall, within 24 hours of the emergency, obtain a Franchise Utility Permit from the City of Tukwila
Department of Public Works.
B. Coordination. All capital construction projects performed by MFN within the Franchise
Area shall be inspected by a contract inspector. All work and inspection shall be coordinated with
the Engineering Division of the Public Works Department to ensure consistency with City
infrastructure, future capital improvement projects, all developer improvements, and pertinent
codes and ordinances.
C. Construction Standards. Any construction, installation, maintenance, and restoration
activities performed by or for MFN within the Franchise Area shall be conducted 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 of Tukwila standards in effect at the time that such activities take
place.
D. Underground installation required. All telecommunications cables and junction boxes
or other vaulted system components shall be installed underground unless otherwise exempted
from this requirement, in writing, by the Director of Public Works.
E. Relocation.
1. Whenever the City determines that it is necessary for any of MFN's facilities or other
system components to be moved or relocated to accommodate the construction, alteration, repair,
or improvement of the right of way for purposes of public welfare, health, or safety, City shall
Metromedia franchise 9 -00 2
notify MFN in writing of such determination, and MFN shall promptly submit plans for such
relocation. Within 120 days of the approval by the City of the plans for relocation, MFN shall
relocate those facilities or structures designated by the City. All costs of moving or relocating such
facilities or structures, including but not limited to costs for design, engineering and construction,
shall be the sole responsibility of MFN except where MFN had paid for the relocation cost of the
MFN's facilities at the request of the City within the past five years, MFN's share of the relocation
cost will be paid by the City.
2. Where a project is primarily for private benefit, the private party or parties shall
reimburse the relocation cost in the same proportion to their contribution to the costs of the
project. MFN will not be precluded from recovering its costs associated with relocation required
provided that the recovery is consistent with applicable laws.
F. Removal or abandonment. Upon the removal from service of any transmission lines or
other associated structures, facilities and amenities, MFN 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 transmission facilities.
G. Performance bond. The Public Works Director for the City of Tukwila reserves the right
to require MFN to obtain a performance bond for any work which the Director deems to pose a
threat to any property or public safety. Such bond shall be issued by a company licensed by
proper authority of the State of Washington and shall be filed with the City Clerk's Office until
release is authorized by the Public Works Director.
H. "One -Call" location and liability. MFN 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 MFN's system components or for
interruptions in service to MFN customers which are a direct result of work performed for any
City project for which MFN 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 MFN system components or for interruptions in service to MFN customers
resulting from the grounds that the work was performed under any Franchise Utility Permit
issued by the City.
I. City- provided conduit. In those areas where the City has installed its own conduit,
MFN shall utilize such conduit under separate lease agreement with the City. Such agreement
shall be negotiated as to the specific terms and the lease shall be provided at a reasonable rate.
Notwithstanding the above, MFN shall not be required to utilize City -owned conduit unless MFN
intends to construct the same or similar conduit at the same location and MFN may utilize conduit
from another utility instead of utilizing City -owned conduit.
J. As -built plans required. MFN 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 prior to close -out of any Franchise Utility Permit issued by the City and any work
undertaken by MFN pursuant to this Franchise Agreement. The City shall determine the
acceptability of any as -built submittals provided under this section.
Section 4. Franchise compliance.
A. Franchise violations. The failure by MFN to comply fully 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 thirty (30) days of
receipt of such notice. If MFN has not attained full compliance at the end of the thirty (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 thirty (30) day period. The demonstration of due diligence on the part of
MFN may be grounds for the grant of an extension in the period during which compliance is to be
attained, provided that MFN continues to pursue correction of any violations of the Franchise
Agreement noted by the City.
B. Emergency actions. If any of MFN's actions, or lack of action threatens life or property,
City may order MFN to take immediate action or, at the City's discretion, the City may undertake
measures to correct said situation threat itself; provided that, when possible, the City shall notify
MFN of said threat and give MFN an opportunity to correct said threat before undertaking such
measures itself. MFN shall be liable for all costs, expenses, and damages attributable to the
correction of such an emergency situation as undertaken by the City to the extent that such
Metromedia franchise 9 -00 3
situation was caused by MFN 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 thirty (30) days of written notice of the completion of such action or determination of
damages by the City. The failure by MFN to take appropriate action to correct a situation caused
by MFN and identified by the City as a threat to public or private safety or property shall be
considered a violation of Franchise Agreement terms and each day that such a situation continues
to exist and MFN fails to take appropriate action to abate said situation shall be regarded as a
separate violation.
C. Other remedies. Nothing contained in this Franchise Agreement shall limit the City's
available remedies in the event of MFN's failure to comply with the provisions of this Franchise
Agreement, to include but not limited to, the City's right to sue 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, MFN shall, at its sole expense, promptly
remove all transmission system components and facilities, provided that the City, at its sole
option, may allow MFN to abandon its facilities in place.
Section 5. Insurance.
A. MFN shall maintain liability insurance written on a per occurrence basis during the full
term of this franchise for personal injuries and property damages. The policy shall name the City
of Tukwila as additionally insured and shall contain coverage in the following minimum amounts
per separate occurrence:
1. Personal Injury $5,000,000 per person and $10,000,000 per occurrence.
2. Property Damage $5,000,000 per claimant and $10,000,000 per occurrence.
3. $1,000,000 for all other types liability including claims for damages for invasion of
the right of privacy; for defamation of any person, firm, or corporation; for the violation or
infringement of any copyright, trademark, trade name, service mark or patent; or, for damage to
any other person, firm, or corporation arising out of or alleged to arise out of failure to comply
with the provisions of any statute, regulation or resolution of the United States, State of
Washington, or any local agency with jurisdiction.
B. Such insurance policy shall also contain a policy provision that it cannot be revoked,
canceled, or reduced without sixty (60) days advance written notice to the City, and MFN shall,
upon request by the City, annually provide proof of such insurance to the City Clerk's Office.
Section 6. Other permits and approvals. Nothing in this agreement shall relieve MFN from
any obligation to obtain approvals or necessary permits from applicable federal, state, and City
authorities for all activities in the Franchise Area.
Section 7. 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 being 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 MFN telecommunication cable 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 Agreement, or if
such transfer is from MFN to another person or entity controlling, controlled by, or under common
control with MFN.
B. In any transfer of this franchise which requires the approval of the City, MFN shall show
that the recipient of such transfer has the technical ability, financial capability, and any other legal
or general qualifications as reasonably determined by the City to be necessary to ensure that the
obligations and terms required under this Franchise Agreement can be met to the full satisfaction
of the City. The qualifications of any transferee shall be determined by hearing before the City
Council and the approval to such transfer shall be granted by resolution of the City Council. Any
administrative costs associated with a transfer of this franchise, which requires the approval of the
City, shall be reimbursed to the City within thirty (30) days of such transfer.
Metromedia franchise 9 -00 4
Section 8. Franchise term. The franchise rights granted herein shall remain in full force and
effect for a period of three (3) years from the effective date of this ordinance, or one hundred
eighty (180) days from the adoption by the City Council of a rights -of -way use and management
plan prescribing new terms and conditions under which MFN may occupy City rights -of -way,
whichever shall occur first; provided that MFN files with the City Clerk a document
acknowledging consent to the terms and conditions herein in the form attached hereto as Exhibit
C. Failure on the part of MFN to file said consent within thirty (30) days of the effective date of
this ordinance shall void and nullify any and all rights granted under this franchise.
Section 9. Administrative fees.
A. Pursuant to 35.21.860 of the Revised Code of Washington (RCW), as amended by
Chapter 83, Laws of 2000 "Chapter 83 the City is precluded from imposing franchise fees for
"telephone businesses" defined in RCW 82.04.065, except that fees may be collected for
administrative expenses related to such franchise. MFN does hereby warrant that its operations as
authorized under this Franchise Agreement are those of a telephone business as defined in RCW
82.04.065 and /or that of a service provider as defined in Chapter 83.
B. MFN shall be subject to an administrative fee determined by the Public Works Director
for reimbursement of costs associated with the preparation, processing, and approval of this
Franchise Agreement. These costs shall include but not 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 processing fees. Payment of the one -time
administrative fee is due thirty (30) days after franchise approval.
C. In the event MFN 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, MFN shall reimburse City for Franchise Agreement amendment and expenses
associated with the project. MFN shall pay such costs within thirty (30) days of receipt of bill from
the City.
D. Failure by MFN 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 4.A. of this ordinance.
Section 10. Capacity for City use. The City anticipates the future need for data transmission
and communications connections, which will require telecommunications capacity in MFN's fiber
optic system in the City. The terms and conditions for the use of such capacity by the City shall be
negotiated under separate agreement between the City and MFN. The provision of such capacity
by MFN for City needs shall not be unreasonably withheld.
Section 11. Notices. Any notices to be served upon the City or MFN shall be delivered to the
following addresses respectively:
City of Tukwila
Office of the City Clerk
6200 Southcenter Boulevard
Tukwila, WA 98188
Metromedia Fiber Network Services, Inc.
360 Hamilton Ave.
White Plains, New York 10601
Section 12. Claims for Damages.
A. In the construction, installation, repair, operation, and maintenance of its structures and
facilities, MFN shall use reasonable and appropriate precautions to avoid damage to persons or
property. MFN shall indemnify and save harmless the City from all claims, actions or damages of
every kind or description, 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 MFN, its officers, agents, servants or
employees, carried on in the furtherance of the rights, benefits, and privileges granted to MFN by
this Franchise Agreement. In the event any claim or demand is presented to or filed with the City
which gives rise to MFN's obligation pursuant to this section, the City shall within a reasonable
time notify MFN thereof and MFN shall have a right, at its election, to settle or compromise such
Metromedia franchise 9 -00 5
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 MFN's
obligation pursuant to this section, the City shall promptly notify MFN thereof, and MFN 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, MFN 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 MFN 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 sole negligence of the City.
B. To the extent of any concurrent negligence between MFN and the City, MFN'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.
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, the City may, at its sole
option, deem the entire Franchise Agreement 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 City may elect to treat the portion declared invalid or
unconstitutional as severable and enforce the remaining provisions of this ordinance; provided
that if the City elects to enforce the remaining provisions of the ordinance, MFN shall have the
option to terminate the Franchise Agreement.
Section 14. Indemnification.
MFN assigns, agrees and covenants to indemnify and hold harmless the City of Tukwila from and
against any and all liability, loss, cost, damages, whether to persons or property, or expense of any
type or nature, including reasonable attorney's fees and expert witness fees, to the extent it arises
from any negligent act or omission or willful misconduct of MFNS, its successors and assigns
arising from or connected to MFN work under this franchise, provided however, that in case any
suit or action is instituted against the City by reason of any such damage or injury, City shall:
1. cause written notice thereof to be given unto MFN; and
2. provide all reasonably requested assistance in defense or settlement of such claim at
MFN's expense; and
3. retain the right to control the defense of settlement or such claims.
Section 15. Reservation of rights. The parties agree that this Agreement is intended to
satisfy the requirements of all applicable laws, administrative guidelines, rules, orders, and
ordinances. Accordingly, any provision of this Agreement or any local ordinance which may
conflict with or violate the law shall be invalid and unenforceable, whether occurring before or
after the execution of this agreement, it being the intention of the parties to preserve their
respective rights and remedies under the law, and that the execution of this agreement does not
constitute a waiver of any rights or obligations by either party under the law.
Section 16. Police powers. Nothing contained herein shall be deemed to affect the City's
authority to exercise its police powers. MFN 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 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.
Metromedia franchise 9 -00 6
Section 17. Future rules, regulations and specifications.
MFN 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 MFN, shall thereafter govern MFN's activities hereunder;
provided, however, that in no event shall regulations:
1. materially interfere with or adversely affect MFN's rights pursuant to and in
accordance with this Franchise Agreement; or
2. be applied in a discriminatory manner as it pertains to MFN and other similar user
of such facilities.
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 and effect five (5) days after
passage and publication as provided by law.
PASSED BY THE CITY COUNCIL OF THE CIy, OF TUKWILA, WASHINGTON, at a
Regular Meeting thereof this day of Qr,Ota -r A.fi1J 2000.
ATTEST /AUTHENTICATED:
g.
e E. Cantu, CMC, City Clerk
APPROVED AS TO FORM:
By
Office of the City i ttorney
FILED WITH THE CITY CLERKS- oFi
PASSED BY THE CITY COUNCIL: 9 .5=6
PUBLISHED: y= Zd
EFFECTIVE DATE: 9- 49-d-6
ORDINANCE NO.: .?26,
Metromedia franchise 9 00
Steven M. Mullet, Mayor
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Date: ,).:0/ 7'� a)O
Addressee: 6thi cA T k w A a
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Re: Ordinance /?;;O=
Adopted 9 it
Dear 0; 0_1/Li/L.
Sincerely,
Signature
Printed name /title
EXHIBIT B
Franchise Acceptance Form
In accordance with and as required by Section l i3 of City of Tukwila
Ordinanc V passed by the City Council and approved by the Mayor on
`l' (the "Ordinance Metromedia Fiber Network Services, Inc.
hereby accepts the terms, conditions and obligations to be complied with or
performed by it under the ordinance.
CITY OF TUKWILA
SUMMARY OF ORDINANCE NO.
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF
TUKWILA, WASHINGTON, GRANTING A TEMPORARY
NON EXCLUSIVE FRANCHISE TO METROMEDIA FIBER
NETWORK SERVICES, INC. "MFN A DELAWARE
CORPORATION LEGALLY AUTHORIZED TO CONDUCT
BUSINESS IN THE STATE OF WASHINGTON, FOR THE
PURPOSE OF CONSTRUCTING, OPERATING, AND
MAINTAINING A TELECOMMUNICATIONS TRANSMISSION
LINE IN CERTAIN PUBLIC RIGHTS -OF -WAY IN THE CITY;
PROVIDING FOR SEVERABILITY; AND ESTABLISHING AN
EFFECTIVE DATE.
On �4 24/ the City Council of the City of Tukwila passed
Ordinance No. /9Z-6 granting MFN the franchise rights and authority to
construct, replace, repair, monitor, maintain, use and operate the equipment and
facilities necessary for an underground telecommunication transmission system, which
includes fiber -optic cable, within the City -owned rights -of -way as described; providing
for severability; and establishing an effective date.
The full text of this ordinance will be mailed without charge to anyone who
submits a written request to the City Clerk of the City of Tukwila for a copy of the text.
APPROVED by the City Council at its meeting of 9 D
Published Seattle Times: 9- g'-
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-1-442,24:6 6-4 /a
e E. Cantu, CMC, City Clerk