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HomeMy WebLinkAboutORD 5497CITY OF RENTON, WASHINGTON ORDINANCE NO. 5497 AN ORDINANCE OF THE CITY OF RENTON, WASHINGTON, GRANTING UNTO ZAYO BANDWIDTH NORTHWEST, INC., A WASHINGTON CORPORATION, ITS AFFILIATES, SUCCESSORS AND ASSIGNS, THE RIGHT, PRIVILEGE, AUTHORITY AND MASTER STREET USE AGREEMENT TO INSTALL TELECOMMUNICATION FACILITIES TOGETHER WITH APPURTENANCES THERETO, UPON, OVER, UNDER, ALONG, ACROSS THE STREETS, AVENUES AND ALLEYS OF THE CITY OF RENTON WITHIN CITY RIGHT-OF-WAY AND PUBLIC PROPERTIES OF THE CITY. THE CITY COUNCIL OF THE CITY OF RENTON, WASHINGTON, DOES ORDAIN AS FOLLOWS: SECTION I. Master Street Use Agreement: There is hereby given and granted unto Zayo Bandwidth Northwest, Inc., a Washington corporation ("Grantee"), its affiliates, successors, and assignees for a period of fourteen (14) years from the effective date of this Master Street Use Agreement ("Agreement"), the rights, privileges, and authority to construct, operate, maintain, replace, alter, remove and repair one or more fiber optics communications facilities ("Facilities"), together with all equipment, support structures, conduit, cables and appurtenances of Grantee's systems, under, along, over, below and through certain public right-of-ways and other public lands within the City of Renton ("the City"). SECTION II. Non-Exclusive Master Street Use Agreement: This Agreement is granted upon the express condition that it shall not be deemed or held to be an exclusive agreement in, along, over, through, under, below or across any of the public right-of-ways, public thoroughfares, sidewalks, and utility easements within the City. Such Agreement shall in no way prevent or prohibit the City or its tenants from using any of the ORDINANCE NO. 5497 roads, streets or other public or tenant properties or affect its jurisdiction over them or any part of them. The City retains full power to make all necessary changes, relocations, repairs, maintenance, establishment, improvement, dedication of same as it may deem fit including the dedication, establishment, maintenance and improvement of all new right-of-ways and thoroughfares and other public properties of every type and description. Grantee herein agrees and covenants at its sole cost and expense to protect, support, temporarily disconnect, relocate or remove from any street any of its installations when so required by the City, upon not less then ninety (90) days prior written notice. Cause for the City to issue such notice include, but are not limit to, traffic conditions, public safety, street vacations, dedications of new right-of-ways and the establishment and improvement thereof, freeway construction, change of establishment of street grade or the construction of any public improvement or structure by a government agency acting in a governmental capacity ("Redevelopment"). The Grantee shall in all such cases have the privilege to temporarily bypass, in the authorized portion of the same street, upon approval by the City, any section of the system required to be temporarily disconnected or removed. If Grantee is unable to bypass the affected Facilities during the City's Redevelopment, the City and Grantee shall reasonably cooperate to allow Grantee to operate a temporary facility on property owned, operated or controlled by the City in the immediate vicinity, if possible. In the event Grantee must permanently relocate any Facilities due to such Redevelopment by the City, the City agrees to use best efforts to relocate Grantee's Facilities to an adjacent right-of-way area. Grantee may, after receipt of written notice requesting a permanent relocation of its Facilities, submit to the City written alternatives to such relocation. The City shall evaluate such ORDINANCE NO. 5497 alternatives and advise Grantee in writing if one or more of the alternatives are suitable to accommodate the work, which would otherwise necessitate relocation of the Facilities. If so requested by the City, Grantee shall submit additional relevant information to assist the City in making such evaluation. The City shall give each alternative proposed by the Grantee full and fair consideration, within a reasonable time so as to allow for the relocation work to be performed in a timely manner. In the event the City ultimately determines not less than fifteen (15) days from the commencement of such work by the City that there is no other reasonable alternative, Grantee shall relocate its Facilities as otherwise provided in this Section. SECTION III. Location of Facilities: The location of facilities shall be underground or in accordance with all applicable Renton Municipal Code ("RMC") provisions. SECTION IV. Master Street Use/Franchise Construction Permit: A Master Use/Franchise Construction permit application with three (3) sets of plans is required for each proposed project. All construction and installation of work wherever same crosses any of the public properties shall be done under the supervision of the duly authorized representative of the Community and Economic Development Administrator, and Grantee shall timely submit unto the Community and Economic Development Administrator, prior to any such work, detailed plans and specifications of any proposed work. The location of any permit on public property in a street, the Municipal Airport, or other public area shall be subject to approval of the Community and Economic Development Administrator or his authorized representative and such approval shall be provided in writing. The Grantee shall further inform the City of any time or date that the Grantee is performing work within the franchised area to ORDINANCE NO. 5497 allow the City to inspect such work. Any such inspection shall be coordinated among the parties. Work within City streets shall be accomplished through boring rather than open trenching whenever reasonably feasible. New facilities installed within City right-of-ways shall be located outside of the street travel and parking lanes, whenever feasible and will not delay or increase the costs of the proposed facilities. The Master Use/Franchise Construction permit fee is stated in Section XVIII of this Agreement. SECTION V. System Components: All components of the Grantee's system and other components of any communication line, to be placed within any street right-of-way, the Municipal Airport, or other public property shall be designated, manufactured and installed in accordance and in full compliance with industry standards and applicable ordinances. Placement of conduit in street crossings shall be PVC schedule 80 or steel conduit. Schedule 40 PVC is acceptable in areas outside the roadway. SECTION VI. Permanent Records: The Grantee shall at all times keep full and complete plans, profiles and records showing the location, installed depth and size of all its installations and systems wherefore laid in the City and hereafter installed. Such plans and records shall be kept current by the Grantee. As-built plans and records shall be available to the City at all times upon request. A telephone contact number for requested plans shall be supplied to the City and kept current. SECTION VII. Planning for Construction: During any period of construction, all surface structures, if any, shall be erected and used in such places and positions within the public right-of-way, and other public properties so ORDINANCE NO. 5497 as to interfere as little as possible with the free passage of traffic and the free use of adjoining property and tenants and Grantee shall at all times post and maintain proper barricades during such period of construction as required by the laws and statutes of the State of Washington. The Grantee shall avoid the use of arterials as designated by the City of Renton Arterial Street Map, and recently constructed or paved overlaid streets as much as possible. Specific route alignments are subject to approval by the City via the construction permitting process. All components of the system that may have been constructed and installed by the Grantee underground, within the City, shall be located in approved locations, buried and installed to a depth of not less than three (3) feet and as otherwise provided for in the aforesaid Code, the laws of the State of Washington, and the ordinances of the City of Renton, now or hereafter in force, regulating such installations. Grantee shall establish and maintain at all times adequate facilities on the portion of each of the systems installed under the authority of this Agreement, and elsewhere on the system, to promptly localize operating troubles and to minimize the effects thereof, whether on City streets or on their use by the public. All truck, vehicles and equipment working in City right-of-way shall be marked with company logo, including company name and phone numbers. Approved traffic control plans shall be utilized for each installation when working in the public right-of-way. The Grantee shall be responsible for all work bv their contractor, meeting the requirements of the Manual on Uniform Traffic Control Devices (MUTCD) for all work within the public right-of-ways. The Grantee shall be responsible for notifying the Valley Communication Center for any street closures, a minimum of twenty-four (24) hours prior to the closure. ORDINANCE NO. 5497 The Grantee shall subscribe to and maintain membership in the regional "One-Call" utility location service and shall promptly locate all of its lines upon request. SECTION VIII. Restoration and Repair of Facilities: Grantee, its successors and assignees, hereby agrees and covenants to promptly repair any damage to the City or tenant property of every type and nature and all other City or tenant improvements caused by failure of Grantee's work during the life of this Agreement. Should it be necessary to make any excavation within any public right-of-way, in the laying, constructing, maintenance, removing, replacing, altering or repairing of all or any portion of the system, Grantee shall without delay and at Grantee's sole cost and expense, restore the surface of the right-of-way or other public or tenant property to at least the same condition immediately prior to any such installation and construction. In case of damage by the Grantee to the streets, avenues, roads, alleys, lanes, public places and ways, to the pavement, turnouts, gutters, ditches, walks, poles, pipes, plantings, rail, bridges, trestles, wharves or landings, and/or other appurtenances and improvements, the Grantee shall immediately repair all damage at its sole cost and expense. Grantee shall comply with all ordinances and regulations of the City, regarding such excavation and whenever deemed necessary by the Community and Economic Development Administrator shall be required to post a performance bond in favor of the City warranting, among other things, that such restoration work will be done promptly to a condition equal to or better than the original condition and in a proper, workman like manner. Where concrete encased recorded monuments have been disturbed or displaced, Grantee shall restore the monument to federal state and local standards and specifications. ORDINANCE NO. 5497 All restoration of public streets, sidewalks and other amenities shall conform to current City of Renton Standard Specifications for Road, Bridge and Municipal Construction and the City of Renton's Trench Restoration Standards. As a condition of receiving the right to work within the public right-of-way, Grantee shall assume full responsibility for using materials and installation methods that are in full compliance with City standards and shall verify this by submittal of documentation of materials and testing reports when requested by the City. All costs for performing on-site testing, such as compaction tests, shall be borne by Grantee. SECTION IX. Hold Harmless Agreement: The Grantee, its successors and assignees, agrees and covenants to indemnify and hold harmless the City from and against any and all liability, loss, cost, damage, whether to persons or property, or expense of any type or nature to the extent it arises (collectively, "Claims") from any negligent act or omission or willful misconduct of Grantee, its successors and assigns arising from or connected to the Grantee's work under this Agreement, except to the extent any such Claim is due to negligent act or omission or willful misconduct of the City, its employees, agents or independent contractors. In addition, in case any suit or action is instituted against the City by reasons of any such damage or injury, the City shall (i) cause written notice thereof to be given unto Grantee and (ii) give all reasonably requested assistance in defense or settlement of such claim at Grantee's expense, and (iii) grant Grantee the right to control the defense or settlement of such claims. SECTION X. Liability Insurance: Grantee shall maintain in full force and effect throughout the term of this Agreement, Comprehensive General Liability insurance coverage, inclusive of umbrella coverage, insuring ORDINANCE NO. 5497 both the Grantee and the City and its elected and appointed officers, officials, agents and employees as additionally insured as follows: 1. Comprehensive general liability insurance, inclusive of umbrella coverage, with limits not less than: a. Five million dollars ($5,000,000) for bodily injury or death to each person; b. Five million dollars ($5,000,000) for property damage resulting from any one accident; 2. Automobile liability insurance for owned, non-owned and hired vehicles, inclusive of umbrella coverage, with a limit of three million dollars ($3,000,000); 3. Worker's compensation with statutory limits and employer liability insurance, inclusive of umbrella coverage, with limits of not less than one million dollars ($1,000,000); and 4. Comprehensive form premises - Operations, explosions and collapse hazard, underground hazard and products completed hazard, inclusive of umbrella coverage, with limits of not less than three million dollars ($3,000,000). The Grantee shall submit to the City Clerk evidence that it has in full force and effect and shall keep in full force and effect during the life of the Agreement, comprehensive general liability insurance naming Grantee and the City as an additional insured with coverage as stated above. ORDINANCE NO. 5497 It is hereby understood and agreed that this policy may not be canceled nor the intention not to renew be stated until thirty (30) days after receipt by the City, by registered mail, of a written notice addressed as required by such intent to cancel or not renew. 'After receipt by the City of the notice, and in no event later than ten (10) days prior to said cancellation, the Grantee shall obtain and furnish to the City replacement insurance policies meeting the requirements of this section. SECTION XI. Revocation or Termination of Grant: For the purpose of compelling compliance by the Grantee with all the terms and conditions of this Agreement and the maintenance of the system and facilities in good condition, the City retains the right to end and terminate and fully forfeit the Agreement herein granted, within thirty (30) days after written notice unto the Grantee, whenever the Grantee fails to comply with any of the material terms and conditions hereof, provided that Grantee has thirty (30) days in which to cure such noncompliance. Upon Grantee's failure to cure within the requisite time period, and if during the subsequent hearing the City Council revokes the franchise granted in this Agreement pursuant to RMC 5-19-8W or X, then the City shall have the right to require the Grantee to remove any and all of its systems within the City of Renton, all at the Grantee's cost and expense, and to promptly and timely restore all roads and other public properties to the condition immediately prior to any such forfeiture and termination. However, the Grantee may apply to the City for an extension of time to comply due to unavoidable delays and events beyond its control. The application must be made at the earliest ORDINANCE NO. 5497 possible time and set forth in writing, the estimated time needed to comply. The extension of time will not be unreasonably withheld as determined by the City. SECTION XII. Reservation of Rights: The Grantee acknowledges that its rights hereunder are subject to the legitimate rights of the police power of the City at all times and the City shall enforce general ordinances necessary to protect the safety and welfare of the public. The Grantee agrees to comply with all applicable general laws enacted by the City as long as such regulations do not increase the burden or impair the rights of the Agreement hereunder. The laying, construction, installation, maintenance and operation of the Facilities, system and facilities in connection therewith shall not preclude the City, its authorized agents, contractors and representatives from blasting, grading, excavating or doing other necessary or public works over, unto, abutting, or contiguous to Grantee's system provided, however, that Grantee shall be given ten (10) working days written notice of any such blasting, grading, or excavating so that the Grantee may take proper steps to protect its communication line and facilities. The parties agree that this Agreement is intended to satisfy the requirements of all applicable laws, administrative guidelines, rules, orders and ordinances (the "Law"). Accordingly, any provision of this Agreement or any local ordinance, which may conflict with or violate the Law, shall be invalid and unenforceable, whether occurring before or after the execution of this Agreement, it being the intention of the parties (i) to preserve their respective rights and remedies under the Law, and (ii) that the execution of this Agreement does not constitute a waiver of any rights or obligations by either party under the Law. The 10 ORDINANCE NO. 5497 provisions of this Agreement shall be applied to all telecommunication providers in a competitively neutral and nondiscriminatory manner. SECTION XIII. Damage, Injury or Loss: Except for damage, injury or loss directly or proximately caused by the negligent, willful, intentional or malicious act or omission of the City, the Grantee shall have no recourse whatsoever against the City for any loss, cost, expense, or damage arising out of any provision or requirement of this Agreement or the enforcement thereof. This Agreement does not relieve the Grantee of any requirement of any City ordinance, rule or regulation, or specification of the City, including but not limited to any requirement relating to street work, street excavation permits and fees therefor, or the use, removal or relocation of property and streets. No privilege nor exemption is granted or conferred unto the Grantee by this Agreement except those specifically prescribed herein, and any such privilege claimed under this Agreement by the Grantee in any street shall be subordinate to any prior lawful occupancy of the street or any subsequent improvement or installation therein. SECTION XIV. Discontinued Agreement: In the event the use of any permitted property is permanently discontinued by Grantee, or no permit has been obtained therefor upon expiration of this Agreement, or within thirty (30) days after any termination of this Agreement, then the Grantee shall promptly remove from the streets and other properties all its facilities, other than any the City may permit to be temporarily or permanently abandoned. SECTION XV. Ownership Transfer: 11 ORDINANCE NO. 5497 This Agreement may not be assigned to a successor or assignee without the prior written consent of the City Council of the City of Renton, provided that Grantee may assign this Agreement to a parent or affiliate upon prior written notice to the City. The City will not delay or withhold written consent without just cause. For the purposes of this Section, a merger or corporate reorganization of any entity controlling, controlled by or under common control with Grantee shall not be deemed a transfer of assignment. SECTION XVI. Security Device: The Grantee shall, within ten (10) days after the award of this Agreement, file with the City's Community and Economic Development Department and at all times thereafter maintain in full force and effect an acceptable security device or escrow account in duplicate effective for the entire term of this Agreement, and conditional that in the event Grantee shall fail to comply with any one or more of the provisions of this Agreement then there shall be recovered jointly and severally from the principal and surety of such security device or escrow account any damage suffered by the City as a result thereof, including the full amount of any compensation, indemnification or cost of removal or abandonment of properties herein above described, up to the full amount of the security device or escrow account, the condition to be continuing obligations within the City or may have arisen from the acceptance of such Agreement by the Grantee or from its exercise of any such privilege herein granted. The security device or escrow account initially filed in accordance with the requirement of this Section shall be in the amount of twenty-five thousand dollars ($25.000). In the event of substantial change in volume of street space occupied by permitted properties, the City may 12 ORDINANCE NO. 5497 permit or may require a corresponding change in the amount of such security device or escrow account. SECTION XVII. System Expansion: Upon application to the City, by the Grantee, the City may authorize the Grantee to install, construct and/or retain in City streets additional system expansions, as contemplated in Section I hereof, in manner satisfactory to the Community and Economic Development Department. Such additional installations shall be subject to all of the terms and conditions of this Master Use Agreement and to any such additional conditions as may be prescribed by the Community and Economic Development Department as to any such additions. SECTION XVIII. Telecommunication/Permit Fees: Any and all specified payments under this Agreement are to be paid in monthly installments to the City, in accordance with all applicable City codes. Master Use/Franchise Construction Permit Fee is fifty dollars ($50). Inspection rate is billed at forty dollars ($40) an hour. Zayo Bandwidth Northwest, Inc., does hereby agree to pay a one time Administrative fee for Agreement preparation and processing of five thousand dollars ($5,000). SECTION XIX. Applicants Contacts: Any notices or information required to be given to parties under this Agreement may be sent to the following addresses unless otherwise directed. Zayo Bandwidth Northwest, Inc. Attn: General Counsel 901 Front Street, Suite 200 Louisville, CO 80027 City of Renton Attn: Jan lllian Development Services 6Ln Floor 1055-S.Grady Way Renton, WA 98057 -th 13 ORDINANCE NO. 5497 SECTION XX. Effective Date: This Ordinance shall be in full force and effect from and after its passage, approval and five (5) days after its legal publication as provided by law, and provided it has been duly accepted by Grantee as herein above provided. SECTION XXI. Environmental Indemnification: Grantee shall not introduce or use any Hazardous Substance as defined by the United States Occupational Health and Safety Administration on the property where it constructs, operates, maintains, replaces, alters, removes and repairs its Facilities ("Property"). Grantee shall be responsible for, and shall promptly conduct any investigation and remediation as required by any applicable environmental laws, all spills or other releases of any Hazardous Substance caused by Grantee, that have occurred or which may occur on the Property. Each party agrees to defend, indemnify and hold harmless the other from and against any and all administrative and judicial actions and rulings, claims, causes of action, demands and liability (collectively, "Claims") including, but not limited to, damages, costs, expenses, assessments, penalties, fines, losses, judgments and reasonable attorney fees that the indemnitee may suffer or incur due to the existence or discovery of any Hazardous Substances on the Property or the migration of any Hazardous Substance to other properties or the release of any Hazardous Substance into the environment (collectively, "Actions"), that relate to or arise from the indemnitor's activities on the Property. The indemnifications in this Section specifically include, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work required by any governmental authority. 14 ORDINANCE NO. 5497 PASSED BY THE CITY COUNCIL this 16th day of November 2009. &uu6~^ ljJd££t^ Bonnie Walton, City Clerk APPROVED BY THE MAYOR this 16th day of November 2009. liU-_z. Denis Law, Mayor Approvepkas to form: Lawrence J. Warren, City Attorney Date of Publication: H/20/2009 (summary) ORD.1593:10/16/09:scr 15 ORDINANCE NO. 5497 ACCEPTED BY GRANTEE, ZAYO BANDWIDTH NORTHWEST, INC., this ~* " day of "De-cc-vvufc.'i 20 H TITLE €>ClJ£"«2-4t... Ci>tyJS£4, Signature Print Name Signature Print Name TITLE 16