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HomeMy WebLinkAbout4350RESOLUTION 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 'L '2008. C TY O RNA PETER B. LEWIS MAYOR ATTEST: Da i Ile E. Daskam, City Clerk MB?Iekid. O FOR A torney Re solution No. 4350 April 29, 2008 Page 2 of 2 LICENSE AGREEMENT THIS AGREEMENT, made and entered into as of the 5 day of'Wa-e-, 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"). WITN-ESSETH: 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. 1.5 Joint User shall mean a person, firm, corporation or other legal entity --------------------- Version Date: 04/28/2008 CONDUIT LICENSE AGREEMENT Pagel 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 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 --------------------- Version Date: 04/28/2008 CONDUIT LICENSE AGREEMENT Page 2 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 specified in writing by Licensor sufficient to cover the estimated charges for completing the required make-ready work. --------------------- Version Date: 04/28/2008 CONDUIT LICENSE AGREEMENT Page 3 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 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. --------------------- Version Date: 04/28/2008 CONDUIT LICENSE AGREEMENT Page 4 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 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 --------------------- Version Date: 04/28/2008 CONDUIT LICENSE AGREEMENT Page 5 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. 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 --------------------- Version Date: 04/28/2008 CONDUIT LICENSE AGREEMENT Page 6 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 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 --------------------- Version Date: 04/28/2008 CONDUIT LICENSE AGREEMENT Page 7 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 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. --------------------- Version Date: 04/28/2008 CONDUIT LICENSE AGREEMENT Page 8 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 LIAWLITY 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 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 --------------------- Version Date: 04/28/2008 CONDUIT LICENSE AGREEMENT Page 9 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 emplce'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. 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 --------------------- Version Date: 04/28/2008 CONDUIT LICENSE AGREEMENT Page 10 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 cant' 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 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. --------------------- Version Date: 04/28/2008 CONDUIT LICENSE AGREEMENT Page 11 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 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: --------------------- Version Date: 04/28/2008 CONDUIT LICENSE AGREEMENT Page 12 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 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. --------------------- Version Date: 04/28/2008 CONDUIT LICENSE AGREEMENT Page 13 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; Fax: (253) 931-3048 with a copy to: City Clerk City of Auburn 25 West Main Street - - Auburn, WA 98001-4998 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 Disclosure Act, RCW Chapter 42.56, Recipient shall protect such information provided --------------------- Version Date: 04/28/2008 CONDUIT LICENSE AGREEMENT Page 14 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 reasonable attorneys fees because of non-disclosures requested by Licensee under Washington's open public records law, provided reasonable notice and opportunity to --------------------- Version Date: 04/28/2008 CONDUIT LICENSE AGREEMENT Page 15 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 Peter 'B. Lewis Mayor MCI COMMUNICATIONS SERVICES, INC. by: obert H. Bohne Director ATTEST: D,y, Danielle E. Daskam, City Clerk APPROVED AS TO FORM: r 1 niel B. id, City Attorney --------------------- Version Date: 04/28/2008 CONDUIT LICENSE AGREEMENT Page 16 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. --------------------- Version Date: 04/28/2008 CONDUIT LICENSE AGREEMENT Page 17