HomeMy WebLinkAboutITEM VIII-B-7
A TY OF
UBURN AGENDA BILL APPROVAL FORM
WASHINGTON
Agenda Subject: Date:
Resolution No. 4350 Aril 29, 2008
Department: Attachments: Budget Impact:
Public Works Resolution No. 4350 $ 0
Administrative Recommendation:
City Council to adopt Resolution No. 4350.
Background Summary:
Resolution No. 4350 authorizes the Mayor and City Clerk to enter into a License Agreement with MCI
Communications Services, Inc. to place and maintain underground communications facilities within a City
owned conduit along a portion of City right-of-way set forth in Appendix II.
MCI shall compensate the City as set forth in Appendix I for use of City owned conduit.
W0505-11
03.10.9
Reviewed by Council & Committees: Reviewed by Departments & Divisions:
? Arts Commission COUNCIL COMMITTEES: ? Building ? M&O
? Airport ® Finance ? Cemetery ? Mayor
? Hearing Examiner ? Municipal Serv. ? Finance ? Parks
? Human Services ? Planning & CD ? Fire ? Planning
? Park Board ED Public Works ® Legal ? Police
? Planning Comm. ? Other ® Public Works ? Human Resources
Action:
Committee Approval: ?Yes ?No
Council Approval: ?Yes ?No Call for Public Hearing
Referred to Until
Tabled Until
Councilmember: Wagner Staff: Dowd
Meeting Date: : May 5, 2008 Item Number: VIII.6.7
AUBURN* MORE THAN YOU IMAGINED
RESOLUTION NO. 4 3 5 0
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
AUBURN, WASHINGTON, AUTHORIZING THE MAYOR
AND CITY CLERK TO EXECUTE AN AGREEMENT
BETWEEN THE CITY OF AUBURN AND MCIMETRO
ACCESS TRANSMISSION SERVICES FOR A LICENSE TO
USE THE CITY OF AUBURN'S CONDUITS
WHEREAS, the City of Auburn has entered into a Public Way Agreement
with MClmetro Access Transmission Services (MCI) pursuant to City of Auburn
Resolution No. 4338; and
WHEREAS, the City of Auburn owns conduit within the area
encompassed by MCI's Public Way Agreement; and
WHEREAS, the Public Way Agreement contemplated that the City and
MCI would enter into negotiations for an agreement by which the City would
license MCI's use of the City's conduits; and
WHEREAS, the City and MCI have concluded those negotiations; and
WHEREAS, it is in the public interest for the parties to enter into an
agreement for MCI's use of the City's conduits.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
KING COUNTY, WASHINGTON, HEREBY RESOLVES as follows:
Section 1. The Mayor of the City of Auburn and the Auburn City Clerk
are hereby authorized to execute an Agreement between the City of Auburn
Resolution No. 4350
April 29, 2008
Page 1 of 2
and MClmetro Access Transmission Services LLC, a Delaware limited liability
company, for use of certain City conduits, which agreement shall be in
substantial conformity with the Agreement a copy of which is attached hereto,
marked as Exhibit "A" and incorporated herein by this reference.
Section 2. The Mayor is hereby authorized to implement such
administrative procedures as may be necessary to carry out the directives of
this legislation.
Section 3. This resolution shall be in full force and effect upon
passage and signatures hereon.
Dated and Signed this day of , 2008.
CITY OF AUBURN
PETER B. LEWIS
MAYOR
ATTEST:
Danielle E. Daskam, City Clerk
APPROVED AS TO FORM:
Daniel B. Heid, City Attorney
Resolution No. 4350
April 29, 2008
Page 2 of 2
LICENSE AGREEMENT
THIS AGREEMENT, made and entered into as of the _ day of , 2008,
by and between the City of Auburn, a Washington municipal corporation (hereinafter
referred to as "Licensor"), and MCI Communications Services, Inc. ("MCI"), a Delaware
limited liability company, having an office at 2400 North Glenville Drive, Richardson,
Texas 75082 (hereinafter referred to as "Licensee").
WITNESSETH:
WHEREAS, Licensee has applied for a Public Way Agreement with the City of
Auburn to enter, use, and occupy certain public right(s)-of-way within the City; and
WHEREAS, Licensee desires to place and maintain underground
communications facilities within the area described above and desires to place such
communications facilities in the conduit system of Licensor; and
WHEREAS, Licensor is willing to permit, under certain conditions, on a non-
exclusive license basis, to the extent it may lawfully do so, the placement of said
communications facilities on or within Licensor's facilities where reasonably available in
the area described above and where such use will not interfere with Licensor's service
requirements or the service requirements of those parties with which Licensor has joint
user arrangements;
NOW THEREFORE, in consideration of the mutual covenants, terms and
conditions herein contained, the parties do hereby mutually covenant and agree as
follows:
ARTICLE I DEFINITIONS
As used in this Agreement:
1.1 Conduit shall mean a structure, usually underground, containing one or
more ducts.
1.2 Conduit Occupancy shall mean occupancy of the conduit system by any
part of Licensee's Communications Facilities (as hereinafter defined).
1.3 Conduit System shall mean any combination of ducts, conduits, manholes,
handholes and vaults, joined to form an integrated whole, which is owned solely or in
part by Licensor.
1.4 Duct shall mean a single enclosed raceway for wire conductors or cables.
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Resolution No. 4350
Exhibit A
Version Date: 04/28/2008
Page 1
1.5 Joint User shall mean a person, firm, corporation or other legal entity
which may occupy a conduit either solely or partially owned by Licensor, in return for
granting Licensor equivalent rights of occupancy of conduit which it owns, either solely
or partially.
1.6 Licensee's Communications Facilities shall mean all facilities, including,
but not limited to, cables, equipment and associated hardware, owned and utilized by
Licensee which occupy the Conduit System.
1.7 Manhole and/or Handhole shall mean a subsurface enclosure which
personnel may enter and/or use for the purpose of installing, operating, maintaining and
repairing communications facilities.
1.8 Make-Ready Work shall mean all work, including, but not limited to,
rearrangement and/or transfer of existing facilities or other changes required to
accommodate Licensee's Communications Facilities in the Conduit System.
1.9 Prelicense Survey shall mean all work, including field inspection and
administrative processing, required to determine the make-ready work necessary to
accommodate Licensee's Communications Facilities in the Conduit System or duct.
ARTICLE II SCOPE OF AGREEMENT
2.1 Subject to the provisions of this Agreement, Licensor hereby grants to
Licensee a non-exclusive license authorizing the placement of Licensee's
Communications Facilities in Licensor's Conduit System, as described in Appendix I and
depicted in Appendix II, both attached hereto and incorporated by reference, all within
the geographical area of the City of Auburn.
2.2 No use, however extended, of Conduit System or payment of any fees or
charges required under this Agreement shall create or vest in Licensee any easements
or any other ownership or property rights of any nature in such Conduit System. Neither
this Agreement nor any license granted hereunder shall constitute an assignment of any
of Licensor's rights to use the public or private property at the locations of such Conduit
System.
2.3 Licensor's rights to locate and maintain its Conduit System and to operate
its facilities in conjunction therewith in such a manner as will best enable it to fulfill its
own service requirements are in no manner limited by this Agreement.
2.4 Nothing contained in this Agreement shall be construed to compel
Licensor to construct, reconstruct, retain, extend, place or maintain any duct or other
facility for use by Licensee not needed for Licensor's own service requirements;
provided, however, that Licensor shall make such repairs to Licensor's Conduit System
that the parties agree are necessary for Licensee to install Licensee's Communications
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Resolution No. 4350
Exhibit A
Version Date: 04/28/2008
Page 2
Facilities in the Conduit System. The parties agree that such repairs shall not include
the construction of new conduit at those locations where no conduit existed at the time
of execution of this Agreement. Should the Licensor determine that the extent of said
repairs make this Agreement untenable, either party may terminate this Agreement
upon thirty (30) days written notice to the other party, Article IX of this Agreement
notwithstanding, or the parties may mutually agree to revise the terms of this Agreement
to adjust for the costs of the repairs.
2.5 Nothing contained in this Agreement shall be construed as a limitation,
restriction or prohibition against Licensor with respect to any Joint User agreement or
arrangement which Licensor has heretofore entered into, or may in the future enter into,
with others not parties to this Agreement regarding the Conduit System covered by this
Agreement. The rights of Licensee shall at all times be subject to any such existing and
future agreement(s) or arrangement(s) with any such Joint User(s).
2.6 Licensee shall not sublicense or otherwise assign or transfer the license
granted under this Agreement.
ARTICLE III FEES AND CHARGES
3.1 Licensee shall pay to Licensor all applicable fees and charges in
connection with the occupancy of the Conduit System by Licensee's Communications
Facilities as specified in Appendix I attached hereto.
3.2 Non-payment of any amount due under this Agreement shall constitute a
breach by Licensee of this Agreement subject to the provisions of ARTICLE XVII,
herein.
3.3 Licensee shall pay all applicable fees and charges due within forty-five
(45) days after receipt from Licensor of an itemized invoice therefor.
3.4 Amendments to fees and charges shall be effected by the separate
execution of a substitute Appendix I which shall become a part of and be governed by
the terms and conditions of this Agreement.
ARTICLE IV ADVANCE PAYMENT
4.1 Licensee shall make an advance payment to Licensor prior to:
a) any undertaking by Licensor of a prelicense survey or the administrative
processing portion of such a survey in an amount specified in writing by
Licensor sufficient to cover the estimated charges for completing the work
specified in such prelicense survey, and
b) performance by Licensor of any make-ready work required in an amount
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Resolution No. 4350
Exhibit A
Version Date: 04/28/2008
Page 3
specified in writing by Licensor sufficient to cover the estimated charges
for completing the required make-ready work.
4.2 The amount of the advance payment required will be credited against the
payment due Licensor from Licensee for performing the prelicense survey or portion
thereof and/or the make-ready work or for having the same performed by others on
behalf of Licensor.
4.3 When the advance payment is less than the charge by Licensor for such
work, Licensee agrees to pay Licensor, within thirty (30) days of receipt of an itemized
invoice therefor, all sums due in excess of the amount of the advance payment.
4.4 When the advance payment exceeds the charge by Licensor for such
work, Licensor shall refund the difference to Licensee within thirty (30) days of issuance
of the itemized invoice therefor.
ARTICLE V SPECIFICATIONS
5.1 Licensee's Communications Facilities shall be placed and maintained in
Licensor's facilities in accordance with the requirements and specifications of the
current editions of the National Electrical Code (NEC), the National Electrical Safety
Code (NESC), and the rules and regulations of the Occupational Safety and Health Act
(OSHA) and any governing authority having jurisdiction over the subject matter. Where
a difference in specifications may exist, the more stringent shall apply.
5.2 If any part of Licensee's Communications Facilities is not placed and
maintained in accordance with the provisions of Section 5.1, herein, and Licensee has
not corrected the violation within sixty (60) days after receipt of written notice thereof
from Licensor, Licensor may, at its option, correct said violation; provided, however, that
if Licensee provides Licensor with written notice at least ten (10) days prior to the
expiration of the sixty (60) day time period detailing the reasons for its inability to cure
the violation within said sixty (60) day period, then, upon the consent of Licensor, which
consent shall not be unreasonably withheld or delayed, the time for curing such violation
shall be extended for such period of time as may be reasonably necessary to complete
such curing. If, upon the expiration of the sixty (60) day time period, Licensor elects to
correct the violation on behalf of Licensee, Licensor will attempt to notify Licensee in
writing prior to performing such work whenever practicable. Notwithstanding the
provisions of this Section 5.2, when, in the reasonable opinion of Licensor, such
violation poses an immediate threat to the safety of Licensor's employees or the public,
interferes with the performance of Licensor's then existing and current service
requirements, or poses an immediate threat to the physical integrity of Licensor's
facilities, Licensor may perform such work and/or take such action as it deems
necessary to correct the violation without first giving written notice to Licensee and
without subjecting itself to any liability. As soon as practicable thereafter, Licensor will
advise Licensee in writing of the work performed or the action taken and will endeavor
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Resolution No. 4350
Exhibit A
Version Date: 04/28/2008
Page 4
to arrange for re-accommodation of Licensee's Communications Facilities so affected.
Licensee shall be responsible for paying Licensor for any actual, reasonable and
verifiable costs incurred by Licensor for all work, action and re-accommodation
performed by Licensor under this Section 5.2.
ARTICLE VI LEGAL REQUIREMENTS
6.1 Licensee shall be responsible for obtaining all required governmental
authorizations to construct, operate and/or maintain its Communications Facilities in
Licensor's Conduit System.
6.2 The parties shall at all times observe and comply with the provisions of
this Agreement and all laws, ordinances and regulations in effect which in any manner
affect the rights and obligations of the parties hereto under the provisions of this
Agreement.
ARTICLE VII MAKE-READY WORK
7.1 When an application for conduit occupancy is submitted by Licensee, a
Prelicense Survey by Licensor will be required to determine the availability of the
Conduit System to accommodate Licensee's Communications Facilities. Licensor will
advise Licensee in writing of the estimated charges that will apply for such Prelicense
Survey and receive written authorization and advance payment from Licensee, as
provided for in ARTICLE IV, herein, before undertaking such a survey. A representative
of Licensee may accompany Licensor's representative on the field inspection portion of
such Prelicense Survey. Licensee shall have ninety (90) days from receipt of the
written notice of the estimated charges to make the required payment and indicate its
written authorization for completion of the required Prelicense Survey and acceptance
of the resulting charges. Failure to respond within such ninety (90) day period will result
in cancellation of the application.
7.2 Licensor retains the right, in its sole judgment, to determine the availability
of space in its Conduit System. In the event Licensor determines that rearrangement of
existing facilities in the Conduit System is required before Licensee's Communications
Facilities can be accommodated, Licensor will advise Licensee in writing of the
estimated make-ready charges for such rearrangement work. Licensee shall have
ninety (90) days from receipt of the written notice of the estimated make-ready charges
to make the required payment and indicate its written authorization for completion of the
required make-ready work and acceptance of the resulting charges. Failure to respond
within such ninety (90) day period will result in cancellation of the application.
7.3 Should Licensor or any governmental entity with whom Licensor has an
agreement granting such entity priority access to and/or occupancy of Licensor's
Conduit System need, for its own service requirements, any of the conduit capacity
occupied by Licensee's Communications Facilities and, if Licensor advises Licensee
that Licensee's Communications Facilities can be accommodated otherwise in
Resolution No. 4350
Exhibit A
Version Date: 04/28/2008
Page 5
Licensor's Conduit System, Licensee shall be required to rearrange its Communications
Facilities in the manner designated by Licensor and at the expense of Licensee. If
Licensee has not so rearranged its Communications Facilities within sixty (60) days of
receipt of written notice from Licensor, Licensor may perform or have performed such
rearrangement without any liability on the part of Licensor and Licensee shall reimburse
Licensor for the full costs thereof.
7.4 In the event Licensee is required to rearrange its Communications
Facilities occupying the Conduit System in order to accommodate the facilities of a third
party (other than a governmental entity), Licensor shall provide Licensee with at least
sixty (60) days' advance written notice of the need for such rearrangement. Licensor
agrees that Licensee shall be required to undertake such rearrangement only at the
sole cost and expense of the third party.
7.5 In performing all make-ready work to accommodate Licensee's
Communications Facilities, Licensor will endeavor to include such work in its normal
work load schedule.
ARTICLE VIII CONSTRUCTION, MAINTENANCE AND REMOVAL OF
COMMUNICATIONS FACILITIES
8.1 Except as otherwise expressly provided in this Agreement, Licensee, at its
own expense, shall place, maintain, rearrange, transfer and remove its own
Communications Facilities, and shall at all times perform such work promptly and in
such a manner as not to interfere with work or service being performed by Licensor or
any third party. Upon completion of work by Licensor which will necessitate transfer of
Licensee's Communications Facilities, Licensor shall provide written notice to Licensee
that such transfer must be completed.
8.2 Licensee shall, at its own expense, construct and maintain its
Communications Facilities in Conduit System covered by this Agreement in a safe
condition and in a manner reasonably acceptable to Licensor, so as not to physically
conflict or electrically interfere with the facilities placed therein by Licensor, Joint Users
or other authorized licensees.
8.3 Licensee must obtain prior written authorization, which authorization shall
not be unreasonably withheld or delayed, from Licensor before Licensee may install,
remove or provide maintenance of its Communication Facilities in Licensor's Conduit
System. Notwithstanding the provisions of the foregoing sentence, the parties hereto
acknowledge that the requirement placed on Licensee to receive written authorization
from Licensor prior to entering Licensor's Conduit System will cause undue hardship for
Licensee in the event of an emergency affecting Licensee's Communications Facilities.
In the event of an emergency, Licensee shall be permitted immediate access to its
Communications Facilities in Licensor's Conduit System, provided Licensee complies
with the requirements of the provisions of Section 8.5 herein.
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Resolution No. 4350
Exhibit A
Version Date: 04/28/2008
Page 6
8.4 In each instance where Licensee's Communications Facilities are to be
placed in Licensor's Conduit System, Licensor shall designate the particular duct(s) to
be occupied, the location and manner in which Licensee's Communications Facilities
will enter and exit Licensor's Conduit System and the specific location and manner of
installation for any associated equipment which is permitted by Licensor to occupy the
Conduit System. Licensor reserves the right to exclude or limit the type of Licensee's
Communications Facilities which may be placed in Licensor's Conduit System;
provided, however, that Licensor shall provide Licensee with a written explanation of
any such exclusion or limitation which may be imposed.
8.5 Prior to opening any Licensor manholes and conducting work operations
therein, Licensee shall obtain permission from the City of Auburn Right-of-Way
Manager. In the event of an emergency situation, Licensee may take immediate action
without first obtaining the required permission, provided that Licensee shall notify the
City of Auburn Right-of-Way Manager telephonically or in person within twenty-four (24)
hours of the event.
8.6 Licensee, at its expense, will remove its Communications Facilities from
portions of the Conduit System within six (6) months after:
a) termination of the license covering such conduit occupancy; or
b) the date Licensee replaces its existing facilities in one duct with the
placement of substitute facilities in another duct; or
c) termination of this Agreement.
Licensee shall remain liable for and pay to Licensor all fees and charges
pursuant to provisions of this Agreement until all of Licensee's Communications
Facilities are physically removed from portions of the Conduit System.
If Licensee fails to remove its Communications Facilities within such six (6)
month period, Licensor shall have the right to take ownership, either in whole or in part,
of the Communications Facilities or remove, either in whole or in part, such facilities at
Licensee's expense and without any liability on the part of Licensor for damage to such
facilities and/or without any liability for any interruption of Licensee's services. Should
Licensor, under any applicable provision of this Agreement, remove Licensee's
Communications Facilities from Conduit System covered by this Agreement, Licensor
will deliver to Licensee the Communications Facilities so removed upon payment by
Licensee of the cost of removal, storage and delivery, and all other amounts due
Licensor.
8.7 When Licensee's Communications Facilities are removed from the
Conduit System, no replacement in the same portion of the Conduit System shall be
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Resolution No. 4350
Exhibit A
Version Date: 04/28/2008
Page 7
made until:
a) Licensee has first complied with all of the provisions of this Agreement as
though no such conduit occupancy had previously been made, and
b) All outstanding charges due Licensor for such previous occupancy have
been paid in full.
8.8 Licensee shall advise Licensor in writing of the date on which the removal
of its Communications Facilities from each portion of Conduit System has been
completed.
ARTICLE IX TERMINATION OF LICENSES
9.1 Any license issued under this Agreement shall automatically terminate
when Licensee ceases to have authority to construct and operate its Communications
Facilities on public or private property at the location of the portion of Conduit System
covered by the license; provided, however, that Licensee shall have the right to contest
any notice of termination of authority from any governmental authority or property owner
and, in such event, the license covering the use of such Conduit System shall remain in
effect until such time as Licensee's appeal process is exhausted or the right to use such
portion of Conduit System has been reinstated. Licensee agrees to indemnify, defend
and save harmless Licensor from and against any legal action or any cost resulting from
such legal action brought against it as a result of Licensee's actions in connection with
the exercise of its rights under this Section 9.1.
9.2 Licensee may, at any time, terminate its license with respect to the
occupancy of a portion of Conduit System and remove its Communications Facilities by
giving Licensor written notice of such intention. Once Licensee's Communications
Facilities have been removed they shall not occupy the same portion of the Conduit
System until Licensee has complied with all provisions of this Agreement as though no
previous license had been issued.
ARTICLE X INSPECTION OF LICENSEE'S COMMUNICATIONS
FACILITIES
10.1 Licensor reserves the right to make periodic inspections of any part of
Licensee's Communications Facilities occupying Licensor's Conduit System, and
Licensee shall reimburse Licensor for the expense of such inspections; provided,
however, that Licensee shall have the right to have one or more of its employees or
representatives present during the time of any such inspection.
10.2 Licensor will give Licensee advance written notice of such inspections,
except in those instances where, in the sole judgment of Licensor, safety considerations
justify the need for such an inspection without the delay of waiting until written notice
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Resolution No. 4350
Exhibit A
Version Date: 04/28/2008
Page 8
has been forwarded to Licensee; provided, however, that Licensor shall make a good
faith effort to verbally notify Licensee, in advance, of any such inspection.
10.3 The making of periodic inspections or the failure to do so shall not operate
to impose upon Licensor any liability of any kind whatsoever nor relieve Licensee of any
responsibility, obligations or liability assumed under this Agreement.
ARTICLE XI UNAUTHORIZED UTILIZATION OR OCCUPANCY
11.1 If any of Licensee's Communications Facilities shall be found occupying
the Conduit System for which no license is outstanding, Licensor, without prejudice to
its other rights and remedies under this Agreement including termination of licenses,
may impose a charge and require Licensee to submit in writing, within thirty (30) days
after receipt of written notification from Licensor of the unauthorized occupancy, an
application for conduit occupancy as set forth in Article VII. If such request is not
received by Licensor within such thirty (30) day period, Licensee may be required, at
Licensor's option, to remove its occupancy within sixty (60) days of the final date of
submitting the required application, or Licensor may, at Licensor's option, after notice to
Licensee, remove Licensee's Communications Facilities without liability, and the
expense of such removal shall be borne by Licensee.
11.2 For the purpose of determining the applicable charge, any unauthorized
Conduit System occupancy shall be treated as having existed for a period of one (1)
year prior to its discovery or from the time of the last inspection date or for the period
beginning with the Commencement Date (as hereinafter defined) of this Agreement,
whichever period shall be the shortest.
The fees and charges for the unlicensed occupancy, as specified in
APPENDIX I, shall be due and payable forthwith whether or not Licensee is permitted to
continue the conduit occupancy.
11.3 No act or failure to act by Licensor with regard to any unlicensed
occupancy shall be deemed as a ratification of the unlicensed occupancy; and if any
license should be subsequently issued, said license shall not operate retroactively or
constitute a waiver by Licensor of any of its rights or privileges under this Agreement or
otherwise; provided, however, that Licensee shall be subject to all liabilities, obligations
and responsibilities of this Agreement with respect to such unauthorized occupancy
from its inception.
ARTICLE XII LIABILITY AND DAMAGES
12.1 Licensee shall exercise precaution to avoid damaging the facilities of
Licensor and of others occupying the Conduit System also occupied by Licensee and
shall make an immediate report to the owner of such facilities of the occurrence of any
such damage caused by Licensee's employees, agents or contractors. Licensee
agrees to reimburse Licensor for all reasonable costs incurred by Licensor for the
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Resolution No. 4350
Exhibit A
Version Date: 04/28/2008
Page 9
physical repair of such facilities damaged by the negligence of Licensee, its employees,
agents, contractors, subcontractors or invitees; provided, however, that Licensee shall
not be liable to Licensor or others for any interruption of Licensor's or others' service or
for interference with the operation of Licensor's or others' facilities, or for any special,
indirect or consequential damages arising in any manner, including Licensee's
negligence, out of Licensee's use of Conduit System or Licensee's actions or omissions
with respect thereto, and Licensor shall indemnify and save harmless Licensee from
and against any and all claims, demands, causes of action, costs and reasonable
attorneys' fees with respect to such special, indirect or consequential damages.
12.2 Licensor shall exercise precaution to avoid damaging Licensee's
Communications Facilities and shall make an immediate report to Licensee of the
occurrence of any such damage caused by its employees, agents or contractors.
Licensor agrees to reimburse Licensee for all reasonable costs incurred by Licensee for
the physical repair of such facilities damaged by the negligence of Licensor, its
employees, agents, contractors, subcontractors or invitees; provided, however, that
Licensor shall not be liable to Licensee for any interruption of Licensee's service or for
interference with the operation of Licensee's Communications Facilities, or for any
special, indirect or consequential damages arising in any manner, including Licensor's
negligence, out of the use of Licensor's Conduit System or Licensor's actions or
omissions with respect thereto and Licensee shall indemnify and save harmless
Licensor from and against any and all claims, demands, causes of action, costs and
reasonable attorneys' fees with respect to such special, indirect or consequential
damages.
12.3 Licensee shall indemnify, protect and save harmless Licensor, its
directors, officers, employees and agents, Licensor's other licensees and Joint Users
from and against any and all claims, demands, causes of action, damages and costs,
including reasonable attorneys' fees through appeals, incurred by Licensor, Licensor's
other licensees and Joint Users as a result of acts by Licensee, its employees, agents
or contractors, including, but not limited to, the cost of relocating any of Licensee's
Communications Facilities resulting from a loss of right-of-way or property owner
consents and/or the cost of defending those rights and/or consents.
12.4 Licensee shall indemnify, protect and save harmless Licensor, its
directors, officers, employees and agents, Licensor's other licensees and Joint Users
from and against any and all claims, demands, causes of actions and costs, including
reasonable attorneys' fees through appeals, for damages to property and injury or death
to persons, including, but not limited to, payments under any Worker's Compensation
Law or under any plan for employee's disability and death benefits, caused by, arising
from, incident to, connected with or growing out of the installation, rearrangement,
maintenance, presence, use or removal of Licensee's Communications Facilities
occupying the Conduit System, or by any act or omission of Licensee's employees,
agents or contractors in the vicinity of Licensor's Conduit System.
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Resolution No. 4350
Exhibit A
Version Date: 04/28/2008
Page 10
12.5 Either party shall have a right to defend the other regarding any claims
indemnified against. Each party shall give the other prompt notice of any claims or
actions against that party (indemnitee) for which the other (indemnitor) may be required
to indemnify the indemnitee under this Agreement. Each party shall cooperate fully with
the other in the defense of any such claim or action and shall not settle any such claim
or action without the prior written consent of the indemnitor. In the event the indemnitee
settles any such claim or action (either purposefully or inadvertently) without the prior
written consent of the indemnitor, the indemnitor shall have an obligation to indemnify
the indemnitee with respect to such claim or action only to the extent that such
settlement does not exceed the indemnitor's reasonable calculated settlement value
thereof.
ARTICLE XIII INSURANCE
13.1 Licensee shall obtain and maintain Commercial General Liability
insurance, including contractual liability insuring the indemnification provisions of this
Agreement, issued by an insurance carrier reasonably satisfactory to Licensor, to
protect Licensee from and against all claims, demands, causes of action, judgments,
costs, including reasonable attorneys' fees, expenses and liabilities of every kind and
nature which may arise or result from any loss, injury or damage covered in this
Agreement and include the Licensor as an additional insured as their interest may
appear.
13.2 The amount of such insurance shall be $1,000,000 combined single limit
for bodily injury and property damage and $5,000,000 aggregate.
13.3 Licensee shall submit to Licensor certificates of insurance with respect to
any insurance required hereunder. Such certificate(s) shall contain a provision stating
that the insurer or its authorized representative(s) shall endeavor to provide thirty days
prior written notice of intent to non-renew, cancellation or material adverse change to
Licensor, except that ten (10) day notice for nonpayment of premium shall apply.
13.4 Licensee shall also carry workers compensation insurance as will protect it
from all claims in compliance with the statutory requirements of the state(s) of operation
and applicable to it as a result of any activities performed pursuant to this Agreement.
13.5 All insurance required in accordance with the provisions of Sections 13.2
and 13.4, herein, must be effective before Licensor will authorize occupancy of the
Conduit System and shall remain in force until Licensee's Communications Facilities
have been removed from all such Conduit System.
13.6 The insurance policies are to contain, or be endorsed to contain, the
following provisions for Automobile Liability and Commercial General Liability insurance:
Licensee's insurance coverage shall be primary insurance as respect
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Resolution No. 4350
Exhibit A
Version Date: 04/28/2008
Page 11
Licensor. Any Insurance, self-insurance, or insurance pool coverage
maintained by Licensor shall be excess of the Licensee's insurance and
shall not contribute with it.
13.7 Licensee's maintenance of insurance as required by this Agreement shall
not be construed to limit the liability of the Licensee to the coverage provided by such
insurance, or otherwise limit the Licensor's recourse to any remedy available at law or in
equity.
ARTICLE XIV AUTHORIZATION NOT EXCLUSIVE
Nothing herein contained shall be construed as a grant of any exclusive
authorization, rights or privilege to Licensee. Licensor shall have the right to grant,
renew and extend rights and privileges to others not parties to this Agreement, by
contract or otherwise, to use any Conduit System covered by this Agreement and
Licensee's rights hereunder; provided, however, that any future agreements with other
licensees or users (other than Joint Users) shall be subject and subordinate to this
Agreement and Licensee's rights hereunder.
ARTICLE XVASSIGNMENT OF RIGHTS
15.1 Licensee shall not assign or transfer this Agreement or any license or any
authorization granted under this Agreement, without the prior written consent of
Licensor, which consent shall not be unreasonably withheld or delayed; provided,
however, that Licensee shall have the right, without Licensor's consent, to assign or
transfer this Agreement, in whole or in part, or any license or any authorization granted
under this Agreement, in whole or in part, to any parent, subsidiary or affiliate of
Licensee, or to any person, firm or corporation which shall control, be under the control
of, or be under common control with Licensee, or to any corporation into which Licensee
may be merged or consolidated or which purchases all or substantially all of the assets
or stock of Licensee.
15.2 This Agreement shall be binding on and inure to the benefit of the parties
hereto and their respective successors and assigns.
ARTICLE XVI FAILURE TO ENFORCE
Failure of Licensor to enforce or insist upon compliance with any of the terms or
conditions of this Agreement or to give notice or declare this Agreement or any
authorization granted hereunder terminated shall not constitute a general waiver or
relinquishment of any term or condition of this Agreement, but the same shall be and
remain at all times in full force and effect.
ARTICLE XVII TERMINATION OF AGREEMENT; DEFAULT
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Resolution No. 4350
Exhibit A
Version Date: 04/28/2008
Page 12
17.1 Subject to the provisions of ARTICLE XV herein, should Licensee's right
to occupy City of Auburn rights-of-way cease, then all of Licensee's rights, privileges
and authorizations under this Agreement, including all licenses issued hereunder, shall
automatically terminate as of the date following the final day Licensee is permitted to
occupy such rights-of-way.
17.2 Subject to the provisions of Section 17.3, herein, Licensor shall have the
right to terminate this entire Agreement or any license issued hereunder whenever
Licensee is in breach of any term of this Agreement, including, but not limited to, the
following conditions:
a) if Licensee's Communications Facilities are used or maintained in violation
of any law or in aid of any unlawful act or undertaking; or
b) if Licensee occupies any portion of the Conduit System without having first
been issued a license therefor, subject to the provisions of ARTICLE XI,
herein; or
c) if any authorization required of Licensee by any governmental or private
authority for the construction, operation and maintenance of Licensee's
Communications Facilities is denied or revoked and Licensee has failed to
comply with the provisions of Section 9.1, herein; or
d) if Licensee's insurance carrier shall at any time notify Licensor or Licensee
that the policy or policies of insurance required under ARTICLE XIII,
herein, will be canceled or changed and Licensee has not obtained
substitute adequate coverage within the time periods specified herein, and
if in the sole judgment of Licensor the requirements of ARTICLE XIII will
no longer be satisfied, this Agreement shall terminate upon the effective
date of such cancellation or change.
17.3 Licensee shall not be in default under this Agreement, or in breach of any
provision hereof unless and until Licensor shall have given Licensee written notice of
such breach and Licensee shall have failed to cure the same within thirty (30) days (or
such other time period as may be specified elsewhere in this Agreement) after receipt of
such notice; provided, however, that where such breach cannot reasonably be cured
within such thirty (30) day period (or such other time period as may be specified
elsewhere in this Agreement), if Licensee shall proceed promptly to cure the same and
prosecute such curing with due diligence, the time for curing such breach shall be
extended for such period of time as may be necessary to complete such curing.
ARTICLE XIII TERM OF AGREEMENT
18.1 Unless sooner terminated as herein provided, this Agreement shall
continue in effect for a term of five (5) years from the date hereof (herein referred to as
the "Commencement Date") and thereafter from year to year until either party hereto
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Resolution No. 4350
Exhibit A
Version Date: 04/28/2008
Page 13
terminates this Agreement by giving the other party at least one hundred eighty (180)
days' prior written notice thereof. Such one hundred eighty (180) days' notice of
termination may be given to take effect at the end of the original five (5) year term or
any time thereafter.
18.2 Termination of this Agreement or any licenses issued hereunder shall not
affect Licensee's liabilities and obligations incurred hereunder prior to the effective date
of such termination.
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Resolution No. 4350
Exhibit A
Version Date: 04/28/2008
Page 14
ARTICLE XIX NOTICES
All written notices required under this Agreement shall be given by posting the
same certified mail, return receipt requested or by sending via facsimile or via a
nationally recognized overnight delivery service, to Licensee as follows:
MCI Communications Services, Inc.
2400 North Glenville Drive
Richardson, Texas 75082
Facsimile Number: 972.729.6700
Attn: Manager, Right of Way and Municipal Affairs
with a copy to:
Verizon Business, Legal and External Affairs
205 North Michigan Avenue
6th Floor
Chicago, Illinois 60601
Attention: Associate General Counsel, Network Facilities
Facsimile Number: 312.260.3528
and to Licensor as follows:
Right-of-Way Manager
City of Auburn
25 West Main Street
Auburn, WA 98001-4998
Telephone: (253) 931-3010;
with a copy to:
City Clerk
City of Auburn
25 West Main Street
Auburn, WA 98001-4998
Fax: (253) 931-3048
or to such address as either party hereto may from time to time specify in writing to the
other by like notice.
ARTICLE XX CONFIDENTIALITY
20.1 During the term of this Agreement and any renewals or extensions
thereof, it may be necessary for one party (hereinafter referred to as "Owner") to
provide the other (hereinafter referred to as "Recipient") with certain information
considered to be proprietary or confidential. To the extent allowable under the Public
Resolution No. 4350
Exhibit A
Version Date: 04/28/2008
Page 15
Disclosure Act, RCW Chapter 42.56, Recipient shall protect such information provided
by Owner from distribution, disclosure or dissemination to anyone except employees,
contractors or agents of Recipient with a need to know such information in conjunction
with undertaking the terms and conditions of this Agreement.
20.2 All such proprietary or confidential information shall be in writing or other
tangible form and clearly marked with a confidential or proprietary legend. Information
conveyed orally shall be designated as proprietary or confidential at the time of such
oral conveyance and shall be reduced to writing within forty-five (45) days.
20.3 Recipient shall not have an obligation to protect any portion of Owner's
information which:
a) is made publicly available by Owner or lawfully by a nonparty to this
Agreement; or
b) is lawfully obtained by Recipient from any source other than Owner;
or
c) is previously known to Recipient without an obligation to keep it
confidential; or
d) is publicly released by Owner in writing; or
e) is required to be released by Recipient pursuant to any subpoena
issued in connection with any legal action or administrative
proceedings; provided, however, that Recipient shall immediately
notify Owner of such subpoena.
20.4 Recipient will only make such copies of the information received from
Owner as are necessary for its use under the terms hereof, and each such copy will be
marked with the same proprietary notices as appear on the originals.
20.5 Recipient agrees not to identify Owner or any other owner of information
disclosed hereunder in any advertising or publicity without the prior written permission of
Owner.
20.6 Notwithstanding the foregoing, the parties understand that Washington
law limits the ability of the Licensor to shield from public disclosure any information
given to the Licensor. Accordingly, the parties agree to work together to avoid
disclosures of information which would result in economic loss or damage to Licensee
because of mandatory disclosure requirements to third persons. In the event the parties
cannot agree, the dispute shall be submitted to the City Hearing Examiner, subject to
the record before the Hearings Examiner. Notwithstanding this option, Licensee shall
indemnify and hold harmless the Licensor for any loss or liability for costs for
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Resolution No. 4350
Exhibit A
Version Date: 04/28/2008
Page 16
reasonable attorneys fees because of non-disclosures requested by Licensee under
Washington's open public records law, provided reasonable notice and opportunity to
defend was given to Licensee or Licensee is made aware of the pending of a request or
claim. .
IN WITNESS WHEREOF, the parties hereto have executed this Agreement by
their duly authorized representatives as of the day and year first above written.
CITY OF AUBURN MCI COMMUNICATIONS SERVICES, INC.
Peter B. Lewis by
Mayor
ATTEST:
Danielle E. Daskam,
City Clerk
APPROVED AS TO FORM:
Daniel B. Heid,
City Attorney
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Resolution No. 4350
Exhibit A
Version Date: 04/28/2008
Page 17
Appendix I
Schedule of Fees and Charges
Licensor shall make available to Licensee one (1) conduit of one and one quarter inches
(1 1/4") in size along that portion of the route set forth in Appendix II ("City Conduit
Route") within which said conduit exists, along with access to all Licensor vaults,
manholes, and/or handholes along that route.
In consideration for this use, Licensee shall pay to Licensor Thirty-Five Cents ($0.35)
per lineal foot of Licensor conduit used per year. The length of conduit shall be
established from the as-built drawings for Licensee's project to place its fiber into
Licensor's conduit, and shall not include any conduit constructed by Licensee for
Licensor. Subject to the terms of Article III, payments shall be made on an annual
basis, with the first payment due upon calculation of the length of conduit, and
subsequent payments due on the anniversary of that date.
As additional compensation to the Licensor, Licensee shall place two twenty-four (24)
strand optical cable into Licensor conduits along the City Conduit Route (one cable per
conduit) running from Point A to Point B, as designated in Exhibit II. Each cable shall
be long enough to provide Two Hundred (200) feet of additional slack cable at Point A
and Four Hundred (400) feet of additional slack cable at Point B.
For those portions of the City Conduit Route, or any alternate route MCI chooses to use
in place of a portion of the City Conduit Route, in which the Licensee will construct new
conduit, the Licensee shall construct for the Licensor, and connect to Licensor's existing
conduit system, one (1) three inch (3") conduit along with such vaults, manholes,
handholes, and other related structures necessary to access the conduit; provided, that
at the crossing point of the Burlington Northern Railroad right-of-way, designated as
Point C in Exhibit II ("Railroad Crossing"), Licensee shall provide to Licensor one (1)
Licensor-owned conduit of one and one quarter inches (1 1/4") in size ("Small City
conduit") located within Licensee's conduit crossing the Burlington Northern Railway
right-of-way ("Railroad Conduit"). Licensee also grants to Licensor a license for the
Small City Conduit to remain in the Railroad Conduit till the expiration of Licensee's right
to remain in the Burlington Northern Railroad right-of-way. Upon expiration of said
Licensee right, Licensor shall have the right, but not the duty, to take ownership of the
Railroad Conduit. The conduit provided to the Licensor under this paragraph is
provided as consideration for leasing existing City conduit, and is not subject to the
provisions of RCW 35.99.070.
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Resolution No. 4350
Exhibit A
Version Date: 04/28/2008
Page 18
City Conduit Route
Appendix 11
Qwwest