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RESOLUTION NO. ~ 7 8 3
2
3 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF AUBURN
4 WASHINGTON, AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A
RIGHT OF WAY PERMIT AGREEMENT WITH WORLDCOM NETWORK SERVICES,
5 INC.
7 WHEREAS, recent Federal legislation related to the tele-
8 communication industry (Telecommunications Act of 1996) has
9 resulted in a sudden new interest in the provision of
10
competitive communication services; and
]]
WHEREAS the City is obligated under Section #253 of the act
]2
entitled nRemoval of Barriers to Entry" to permit new
]4 telecommunication development in accordance with State
15 regulatory authority; and
WHEREAS, both parties recognize and agree that the City has
17
a right to act independently of Union Pacific to protect the
]8
19 City's interest; and
20 WHEREAS, the Council finds that the health, safety, and
2] welfare of residents of the Auburn community require that the
22
City maintain uniform control of access to the public right of
23
way; and
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Resolution No. 2783
November 27, 1996
Page 1
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WHEREAS, RCW 35a.11.020 and the Telecommunications Act of
2
1996 grants the City broad authority to regulate the use of the
4 public right of way; and
5 WHEREAS, RCW 35a.47.040 grants the City broad authority to
6 grant non-exclusive franchise agreements; and
7
WHEREAS, WorldCom Network Services, Inc. a Delaware
8
Corporation, authorized to do business in the State of
9
10 Washington, whose address is WorldCom Network Services, Inc.,
]] Cherokee Industrial Park, 6929 North Lakewood Avenue, MD-2.2-
12 409A, Tulsa, Oklahoma 74117, desires to enter the northwest
13
regional market as a new commercial telecommunication carrier to
14
complete the construction of a fiber optics communication
15
16 trunkline between Portland and Seattle within the existing Union
17 Pacific Railroad right of way; and
]8 WHEREAS, completion of the fiber optics communication
19
trunkline requires the crossing of City street rights of way in
20
order to complete installation; and
21
22 WHEREAS, the City has an interest in protecting it's
23 current street, water, sanitary sewer, and stormwater utility
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26
Resolution No. 2783
November 27, 1996
Page 2
1
infrastructure within the same general vicinity of the proposed
2
alignment of the new fiber optics communication trunkline; and
4 WHEREAS, it is recognized and understood by both parties
5 that the City owns the underlying right of way interest in the
6 West Main Street crossing, and that Union Pacific owns and
?
maintains the underlying right of way for the o~her crossings
8
described in Exhibit B of this agreement; and
9
WHEREAS, it is understood by both parties that WorldCom
10
]1 does not intend to provide local service to retail customers in
]2 the City of Auburn and, thus, a franchise is not now
appropriate. However, should WorldCom decide to provide local
14
services within the City of Auburn in the future, a franchise
]5
16 will be negotiated to replace this agreement prior to
17 commencement of such local service; and
]8
WHEREAS, WorldCom is responsible for obtaining all rights,
19
permits, and authorizations required by the Union Pacific
20
Railroad independent of this agreement with the City;
21
22 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
23 WASHINGTON, IN A REGULAR MEETING DULY ASSEMBLED, HEREWITH
24
RESOLVES THAT:
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26
Resolution No. 2783
November 27, 1996
Page 3
S~CTTON ~. PO;.ICY. It is policy of the City of Auburn
to require all entities installing or maintaining facilities in,
on, above or below the public right of way to comply with an
4
5 orderly process for obtaining a right of way use agreement or
6 permit from the City. (Auburn City Code Chapter 12.24
7
"excavation permits" and Chapter 12.60 "right of ~ay permits").
8
SRCTTON 2. The City Engineer shall proceed to authorize
9
installation of the fiber optics communication trunkline in
10
11 accordance with requirements contained in Chapter 12.24, Auburn
]2 City Code and upon completion of such installation to the City's
satisfaction as verified by inspection, and payment of all fees,
14
the City Council authorizes the Mayor and City Clerk of the City
15
of Auburn to execute the attached right of way agreement with
]7 WorldCom denominated Exhibit "A" and by this reference made a
18 part hereof.
]9
SRCTTON 3. The Mayor is hereby authorized to implement
20
such administrative procedures as may be necessary to carry out
21
22 the directives of this legislation.
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Resolution No. 2783
November 27, 1996
Page 4
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DATED and SIGNED this /~day of December, 1996.
4 CITY OF AUBURN
5
7
CHARLES A.
8 MAYOR
9
ATTEST:
10
11
]3 Robin Wohlhueter,
City Clerk
]4
15
16 APPROVED AS TO FORM:
17
18 Mich~e~
]9
ynolds,
20 City Attorney
21
22
23
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Resolution No. 2783
November 27, 1996
Page 5
ยท . ORIGINAL
EXHIBIT "A"
CITY OF AUBURN, WASHINGTON
RIGHT-OF-WAY PERMIT AGREEMENT WITH WORLDCOM
SECTION 1. The CITY of Auburn (hereinafter called the "CITY") hereby grants to
WorldCorn Network Services, Inc. (hereinafter called "GRANTEE"), the right to use that CITY
right-of-way hereinaf~er described in Exhibit "B", to construct, replace, maintain and use
equipment and facilities for an underground fiber optics trunkline under the terms and conditions
contained herein and as provided in Exhibit "C" (Terms and Conditions).
SECTION 2. DEFINITIONS.
"Facility" Means the plant, equipment, and property, including but not limited to, cables,
wires, conduits, ducts, pedestals, hubs, antennae, electronics, and other appurtenances used or to
be used for the purpose of offering telecommunications services.
"Conduit" Means the duct or protective enclosure of the fiber optic trunkline.
"Life-cycle Cost" Means the estimated cost computed by the CITY for planning,
designing, constructing, and operating a particular capital improvement for either CITY Utilities
or Street purposes for a 20 year period.
"Affiliate" Means a person that (directly or indirectly) owns or controls, is owned or
controlled by, or is under common ownership or control with another person.
"Local Service" Means that service would be provided to customers (business and/or
residential) within the corporate CITY limits of Auburn.
"Conflict" Means a future planned CITY street or utility capital improvement requires the
City's use of the same physical space occupied by Wo~dCom's conduit, and relocation of said
conduit is a pre-requisite to construction of the City's planned improvement.
SECTION 3. INSTALLATION OF EQUIPMENT. All facilities shall be installed and
maintained at such places and locations as shall least interfere with existing utilities and franchise
rights, and with the free passage of traffic and in accordance with federal law and the laws of the
State of Washington and Ordinances and Standards of the CITY regulating such construction.
This includes the terms and conditions of any permili required and issued for construction of such
facilities. GRANTEE warrants as a condition of this agreement that any equipment, facilities and
system installed constitutes a trunk-through system only which will not directly and separately
service local businesses or residents in the CITY.
SECTION 4. RELOCATION OF EQUIPMENT. Whenever the CITY determines it
necessary that any facilities of GRANTEE be moved or relocated to accommodate the
improvement of any areas, including, but not limited to, the grading or widening of any street
within the public right-of-way defined herein, GRANTEE shall, within 120 days of written notice
from the CITY, move or relocate such facilities as directed, to an area within CITY fight-of-way
mutually agreed upon, at no cost to the CITY. In the event WorldCom fails to perform within the
120 day period, WorldCorn agrees to reimburse the CITY for all costs and damages incurred by
the CITY or its contractors for re-routing and delays related to conduit and cable routing conflicts
with future CITY work.
EXHIBIT "A" - RESOLUTION NO. 2783
ADOPTED DECEMBER 16, 1996
SECTION 5. CITY DRAINAGE RIGHTS. WorldCom acknowledges the City's Storm
Water Utility prescriptive drainage fights in the natural side-ditches that parallel the Union Pacific
Railroad fight of way from the south city limits to the north city limits.. The CITY drainage fights
are senior to WorldCom in place and time. WorldCorn, therefore, agrees to cooperate with the
CITY as necessary in the future to make future stormwater system improvements. Where
improvements require relocation of WorldCom's conduit, WorldCorn will perform such
relocations at no cost to the CITY. The CITY agrees that if other technically feasible alternatives
are available, such alternatives may be utilized by the CITY, upon WorldCom's agreement to
compensate the CITY for the additional life-cycle cost the CITY would incur. Should the CITY
determine that a conflict with future planned street or CITY utility improvements exists, it will
notify WorldCom in writing, identifying the nature of the conflict, and an estimate of the cost
required to further explore alternative remedies. Within 60 days WorldCom will either agree to
the relocation in accordance with the terms of paragraph #3 RELOCATION OF EQUIPMENT,
or deposit funds in an amount equal to the cost to explore alternative remedies with the CITY
Finance Office.
After the CITY has completed the analyses for feasible alternative remedies it will notify
WorldCom in writing. WoridCom will then meet with the CITY within 30 days of the notification
to negotiate a mutually acceptable alternative remedy and associated additional life cycle costs. If
the parties fail to reach an agreement regarding an alternate remedy, WorldCom agrees to
relocate its facilities as necessary to accommodate the City's needs in accordance with Section 3.
SECTION 6. RECORD OF INSTALLATION. GRANTEE shall provide to the CITY,
upon the CITY's request, copies ol' available current drawings in use by GRANTEE showing the
location of GRANTEEs facilities within public right-of-way. With respect to excavations within
any area, the CITY and GRANTEli shall comply with the provisions of Chapter 19.122 RCW and
any other applicable State law or CITY Ordinance. Before issuance of the excavation permit,
WorldCorn shall post a performance bond from a Washington State based surety company in the
amount of $30,000. Once the installation and all related site restoration work has been completed
to the CITY's satisfaction, and WorldCorn has submitted record plans as required by the CITY
for each crossing, the CITY will release the bond.
SECTION 7. FEES. As reimbursement for administration expenses, GRANTEE shall
pay an initial fee to the CITY of $727.00 based upon the CITY's estimate of costs to inspect and
map the work described in Exhibit 'B", and includes the initial Five Year fight-of-way use permit
fee. Permit renewals at 5 year intervals will require the fee applicable at that time. Fees are due
and payable at time of permit issuance and renewal in accordance with Chapter 12.60 of the CITY
Code.
SECTION 8. INDEMNITY. In the construction, installation, repair, operation or
maintenance of all conductors, wire, conduits, substations, apparatus and appliances or other
facilities.
GRANTEE hereby agrees to defend, indemnify, protect and save harmless the CITY from
all claims, actions or damages of every kind or description which may accrue to or be suffered by
any person or persons, corporation or property by reason of or occasioned in whole or in part by
any act or activity carried on by GRANTEE, its officers, agents, servants or employees in the
exercise or in furtherance of the privileges and authority granted herein whether or not it is
alleged that the CITY is responsible to any extent, and including specifically, but not limited to,
EXHIBIT "A" - RESOLUTION NO. 2783
2 ADOPTED DECEMBER 16, 1996
suits by employees of GRANTEE against the CITY. In the event any claim or demand be
presented to or filed with the CITY which may give rise to GRANTEE's duty to defend and so
hold the CITY harmless, the CITY shall within 60 days notify GRANTEE thereof in writing and
GRANTEE shall have the fight, at its selection, to settle or compromise such claim or demand.
In the event any suit or action is commenced in which the CITY is named as a party, which might
give rise to GRANTEEs obligation to so defend and save the CITY harmless, GRANTEE shall
be notified thereof within 30 days, and GRANTEE shall have the right, at its sole cost and
expense, to defend, settle or compromise such suit or action by attorneys of its own selection
subject to the City's right to participate as provided in this section.
The provisions of this section shall not be construed to require GRANTEE to hold
harmless, appear and defend, pay any judgment or reimburse the CITY's costs as to any claim,
demand, suit or action which arises out of the sole negligence of the CITY. Provided that if the
CITY, its employees, or agents negligently damage any facility installed by GRANTEE pursuant
to this agreement, the CITY's responsibility with respect to any damage directly or indirectly
resulting from such action, including, but not limited to, any claim of economic loss by any person
resulting from interference with or disruption of said communications facility, shall be limited to
the cost of replacing or repairing such facility.
The CITY shall have the right at all times to participate through its own attorney in any
suit or actions which arises out of any fight, privilege or authority granted by or exercised
pursuant to this agreement in the event the CITY determines that such participation is required to
protect the interests of the CITY or the public.
SECTION 9. INS~CE. GRANTEE shall maintain in full force and effect
throughout the term of this agreement the following:
1. Commercial General Liability insurance in an amount of not less than $5,000,000 per
occurrence, $5,000,000 General Aggregate and $5,000,000 Products/Completed Operations
Aggregate.
2. Automobile Liability Insurance covering any auto in an amount of not less than
$5,000,000 combined single limit.
The Commercial General Liability insurance policy shall contain or be endorsed to include the
following:
1. Products and Completed liability operations coverage.
2. Contractual liability coverage.
3. Cross liability/Severability of interest.
4. Broad form property damage.
5. Occurrence form.
6. Independent contractors coverage.
7. No X, C, or U (explosion, collapse, or underground) exclusion.
8. CITY named as additional insured.
The Automobile Liability and Commercial General Liability insurance shall be written by
companies licensed to do business in the State of Washington. An excess or umbrella liability
policy may be purchased to meet the required insurance limits. Certificates of insurance
evidencing the insurance requirements shall be furnished to the CITY before granting of the
permit ands at any time thereafter at the request of the CITY. Such insurance certificates shall
give 30 days notice of cancellation to the CITY. Any contractors, subcontractors, or agents of
the Grantee shall also meet all of the insurance requirements of Section 9 and shall not be allowed
on CITY right-of-way until certificates of insurance evidencing the insurance requirements in a
satisfactory manner are received by the CITY.
EXHIBIT "A" - RESOLUTION NO. 2783
3 ADOPTED DECEMBER 16, 1996
SECTION 10. NON-EXCLUSIVE. The fights and privileges herein granted shall not be
deemed exclusive and the fight is hereby reserved to the CITY to grant to any other person,
company, corporation or association, or entity, including the CITY, the right to exercise the fights
and privileges herein granted.
SECTION 11. POLICE POWERS. Nothing herein shall be deemed to affect the CITY's
ability to exercise its police powers. Further, nothing shall be deemed to grant GRANTEE vested
rights or franchise rights.
SECTION 12. MODIFICATIONS OF TERMS AND CONDITIONS. The CITY and
GRANTEE hereby reserve the right to alter, amend or modify the terms and conditions of this
agreement upon written agreement by both parties to such alteration, amendment or modification.
SECTION 13. RENEWAL OF PERMIT. This agreement shall be automatically renewed
for additional five-year periods upon payment of the renewal fee, unless either the CITY or
GRANTEE provides written notice of its intent not to renew the agreement 120 days prior to
January 1st of said renewal year. In the event that GRANTEE shall decide to offer at any time
local services from its equipment, facilities, or communications system to business and/or
residential customers within Auburn's incorporated area, it shall first apply for and obtain a
franchise agreement from the CITY. In order to assure adequate time to apply for and negotiate
the terms of such a franchise, WorldCom shall provide written notice of it's intent to offer local
services and submit an application for franchise 120 days prior to the desired date of commencing
local service. If a franchise is granted by the CITY, this agreement shall terminate and the use,
operation, and maintenance of such equipment, facilities, and communications system, and all
related appurtenances, shall be subject solely to the provisions of said franchise.
SECTION 14. VALIDITY OF TERMS. If any terms, provisions, condition, or portion
of this agreement shall be held to be invalid or unconstitutional for any reason, the CITY may, at
its own option, deem the entire agreement to be affected and thereby nullified. However, in the
event of said determination of invalidity of any part of this agreement, the CITY may elect to treat
the portion declared invalid as severable and enforce the remaining portions of this agreement
until such time as a new agreement is negotiated and approved by both parties. The CITY does
not, by executing this agreement, waive any rights to later require a franchise agreement under
CITY Code in the event Grantee shall decide to offer point services from its equipment, facilities,
or communications system to CITY area businesses and/or residential customers.
SECTION 15. NON-TRANSFERABLE. The rights granted by this agreement inure to
the benefit of GRANTEE, and any parent, subsidiary, or affiliate, now or hereafter existing.
GRANTEE may assign its rights under this agreement to a parent, subsidiary, or affiliate so long
as (1) such parent, subsidiary, affiliate or successor, assumes all obligations of GRANTEE
hereunder, (2) is bound to the same extent as GRANTEE hereunder, and (3) The CITY receives
sufficient evidence of such agreement and notice to confirm that the above conditions are
satisfied. The rights shall not be assignable to parties other that a parent, subsidiary, or affiliate,
without the express, written consent of the governing body of CITY. Any consent is to be
evidenced by written agreement with the CITY that fully recites the terms and conditions, if any,
upon which consent is given.
SECTION 16. ENFORCEMENT.
If the CITY seeks enforcement of any terms or conditions of this agreement in court, or if a
lawsuit is instituted with respect to this Agreement, the Owner agrees to pay the City's reasonable
attorney's fees and costs and other allied expenses incurred by the CITY regarding said
enforcement or lawsuit if the CITY is the substantially prevailing party.
EXHIBIT "A" - RESOLUTION NO. 2783
4 ADOPTED DECEMBER 16, 1996
SECTION 18. EFFECTIVE DATE. This agreement shall take effect and be in force
upon written approval by the undersigned CITY official.
DATED THIS 5'~day of
Acknowledged and Accepted by:
W~NETWORK SERVICES, INC.:
'nature /
~ ~ Print Nam~e~nd Title-
Name, Address, and Phone #
CITY OF AUBURN:
Mayor, Charles A. Bo'x0th Date
25 W. Main
Auburn WA 98001-4998
Attested to:
CITY Clerk, Robin Wohlhueter
A~orney, MikfT~~e Reynolds
EXHIBIT "A" - RESOLUITON NO. 2783
ADOPTED DECEMBER 16, 1996
STATE OF WASHINGTON )
COUNTY OF KING )
On this~"~- day of X~_o..(~, 1996, before me, the u 'ersign ,
Notary Public in'and for the State of'[
within and foregoing instrument, and acknowledged said instrument to be the free and voluntary
act and deed of said corporation for the uses and purposes therein mentioned, and on oath stated
that he is authorized to execute said instrument on behalf of said corporation.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
date hereinabove set forth.
"'-..: el. tt~ ".: ~ NOTARY P~U~LIC ~n and the te of
EXHIBIT "A" - RESOLUTION NO. 2783
ADOPTED DECEMBER 16, 1996
6
EXHIBIT "B"
CITY OF AUBURN, WASHINGTON
RIGHT-OF-WAY PERMIT AGREEMENT WITH WORLDCOM
LOCATION AND IDENTIFICATION OF RIGHTS GRANTED
The CITY grants WorldCorn the fight to construct and maintain a fiber optics communication
trunkline within CITY'street fight-of-way at the following locations where city streets intersect
within the 100-foot right-of-way of the Union Pacific Railroad, subject to all the terms and
conditions stated in this agreement.
LOCATION WIDTH SIZE OF
CROSSING
1. 15th Street SW 100 LF 3" Pipe
2. West Main Street 60 LF 3" Pipe
3. 15th Street NW 80 LF 3" Pipe
4. 291h Street NW 50 LF 3" Pipe
5. 371h Street NE 60 LF 3" Pipe
6. South 2851h Street 50 LF 3" Pipe
7. South 2771h Street 60 LF 3" Pipe
460 LF
EXHIBIT "b" - RESOLUTION NO. 2783
ADOPTED DECEMBER 16, 1996
EXHIBIT "C"
TERMS AND CONDITIONS OF RIGHT-OF-WAY PERMIT AGREEMENT
WORLDCOM
1. A pre-construction conference shall be required at least 24 hours prior to commencing
work within CITY right-of-way (Seven days notice required to schedule conference. Call
(206) 93 1-3010 Caroline Bergt or Larry Dahl).
2. GRANTEE shall notify all affected property owners in writing a minimum of seven days
prior to starting construction in the area.
3. Construction shall be in complianc~ with plans submitted to and approved by the CITY
Department of Public Works.
4. GRANTEE, its successors and assigns, is given permission to enter upon the right-of-way
or public place for the purpose of performing the work described in an excavation permit
which must be approved by the CITY Engineer or his designee.
5. After the installation, operation, maintenance, or removal of a utility or facility, the
GRANTEE shall restore all rights-of-way and public places to the same or equivalent
condition they were in before work began. All such work must meet the approval of the
CITY Engineer.
6. In the event that any damage of any kind, as determined solely by the CITY, to the CITY's
property or rights-of-way is caused by the GRANTEE in the course of performing work
authorized by this agreement, the GRANTEE will repair said damage at it's sole cost and
expense. Repair work shall begin without delay, as directed by the CITY, and continue
without interruption until completed. If damage is extensive, the time allowed for repair
will be prescribed by the CITY Engineer and/or his/her designee. Failures to properly
restore any damages within 30 days notice will be referred to the CITY Attorney under
Section 16. ENFORCEMENT.
7. The CITY Engineer or his/her designee may at any time, do, order, or have done any and
all work considered necessary to restore to a safe condition any area lef~ by the
GRANTEE in a condition dangerous to life or property. The GRANTEE shall be notified
of any substandard condition requiring correction by the City's Construction Manager,
and upon failure of the GRANTEE to make said correction within the specific timeframe
allowed, the CITY shall perform the correction and the GRANTEE shall pay to the CITY
all costs of such work, labor and materials. IfWorldCom fails to compensate the CITY
for actual costs the CITY will exercise the performance bond to pay for any work of
emergency nature.
8. When the CITY deems it advisable to change the alignment or grade of any street or right-
of-way or public place or structure by widening, grading, re-grading, paving, improving,
altering or repairing same, the CITY and the GRANTEE will diligently pursue alternative
methods of achieving the CITY' s preferred alignment or grade of subject structure
including, but not limited to sharing engineering expenses. If the GRANTEE has no
alternatives acceptable to the CITY, the GRANTEE shall at its own cost and expense
EXHIBIT "C" - RESOLUTION NO. 2783
ADOPTED DECEMBER 16, 1996
raise, lower, move, change or reconstruct such installations to conform with the plans of
work ordered by the CITY according to the time schedules described in Section 3 of this
agreement titled "RELOCATION OF EQUIPMENT".
9. All the provisions, conditions, requirements and regulations herein contained shall be
binding upon the successors and assigns of the GRANTEE and all privileges of the
GRANTEE shall be given to such successors and assigns as if they were specifically
mentioned.
10. The CITY and GRANTEE recognize the paramount public interest in the fight-of-way
subject to this agreement. Should the public interest, determined by the CITY, require
termination of this agreement, GRANTEE shall be given a minimum of six (6) months
written notice of such termination. The CITY and GRANTEE shall meet at GRANTEEs
request to discuss and consider alternatives to agreement termination or system relocation.
In the event GRANTEE is not satisfied with the result of such discussions and
considerations, GRANTEE may petition the CITY's legislative authority who shall hear
and consider such petition at a Public Hearing. The decision of the legislative authority,
following said Hearing, shall be final.
11. GRANTEE by accepting permits pursuant to this agreement agrees to obtain information
from all utility departments and existing franchises regarding location and current status of
their installations before starting work. Private property owners adjoining, or in proximity
to the right-of-way, including existing franchises, shall be notified. in writing when such
property is exposed to the possibility of injury or damage through performance of this
project. The GRANTEE shall make all advance arrangements necessary to protect such
property and/or utility from injury or damage.
12. The issuance of this agreement to the GRANTEE does not in any way relieve the
GRANTEE from compliance with any other applicable laws in performing the work
subject to this agreement.
13. All road crossings shall be reviewed independently for feasibility of open cuts as opposed
to a push or bore.
14. GRANTEE shall maintain minimum 5 feet horizontal separation and 1 foot vertical
separation from any and all CITY utilities.
15. GRANTEE shall provide as-built plans showing horizontal and vertical location of
facilities in the right-of-way. Said plans shall be certified by a professional engineer or
land surveyor.
16. Contractors or agents of GRANTEE shall obtain any and all other necessary permits,
licenses, and approvals as required by law.
17. GRANTEE shall provide and maintain a means of locating said improvements upon
request in accordance with RCW 19.122.
DD/bd
REF. H:XENGINEERXE96XE96-1028
EXHIBIT "C" - RESOLUTION NO. 2783
ADOPTED DECEMBER 16, 1996
