HomeMy WebLinkAboutCAG1999-0368 - Original - Metropolitan Fiber Systems of Seattle, Inc. - Fiber Optic Cable Limited Street License - 01/22/1999 LIMITED STREET LICENSE BETWEEN
THE CITY OF KENT AND
METROPOLITAN FIBER SYSTEMS OF SEATTLE,INC.
THIS LIMITED STREET LICENSE("License") is entered into between the CITY OF
KENT, a Washington Municipal Corporation("City"), and METROPOLITAN FIBER
SYSTEMS OF SEATTLE, INC. ("MFS").
WHEREAS, MFS seeks to construct, install, operate, inspect, maintain and repair a fiber
optic cable route in the City of Kent; and
WHEREAS, MFS has requested that the City grant a License to use City right-of-way to
construct, install, operate, inspect, maintain and repair a fiber optic cable route; and
WHEREAS,the City is willing to enter into this License under the terms and conditions
forth in this License so that MFS can commence construction, installation, operation,
maintenance, inspection and repair of the fiber optic cable; and
NOW, THEREFORE, THE CITY AND MFS AGREE AS FOLLOWS:
LICENSE
1. License Granted. The City grants MFS this Limited Street License for a period
of ten(10) years from the effective date of this License to install, construct, operate,maintain,
remove, repair, reconstruct,replace, use and inspect a fiber optic telecommunications system
containing fiber optic cable and all related equipment (the"Fiber Optic Line") across, along, in,
upon, and under the City's right-of-ways described in Exhibit A, which is attached and
incorporated by this reference. A general description of the plans and specifications for this
Fiber Optic Line are also attached as Exhibit A. This License may be renewed for one additional
ten (10)year term, followed by an additional five (5)year term,upon terms and conditions
satisfactory to the City and MFS. This License is subject to all the terms and conditions
established below.
2. Revocation and Termination. The intent of this License is to authorize MFS to
construct, install, operate, inspect, maintain and repair its Fiber Optic Line on the designated City
right-of-ways, which right-of-ways constitute a valuable property interest owned by the City.
This License does not grant an estate in the land described in Exhibit A; it is not an easement; it
is not a franchise; it is not exclusive. As a license upon real property, it is revocable at the will of
the City. However,prior to termination or revocation by the City, the City shall provide MFS
with a least sixty(60) calendar days written notice of that termination or revocation setting forth
the reasons for termination or revocation and provide an opportunity to MFS for a full and fair
hearing prior to termination or revocation. Upon the effective date of the City's termination or
revocation, the City may require MFS to remove the Fiber Optic Line within ninety(90) calendar
days; if MFS fails to remove the Fiber Optic Line within the allotted time the City may remove
all or part of the Fiber Optic Line and MFS waives any right it may have to any claim for
damages of any kind incurred as a result of the City's removal of all or part of the Fiber Optic
Line.
3. Permits Required. The City's grant of this License does not release MFS from
any of its obligations to obtains applicable local, state, and federal permits necessary to install,
construct, operate,maintain,remove,repair,reconstruct,replace, use and inspect the Fiber Optic
Line. MFS's failure to comply with this Section 3 shall constitute grounds for immediate
revocation of this License by the City,provided that the City has given MFS reasonable
opportunity to cure this non-compliance and MFS continues to fail to comply after such
opportunity is given.
4. Relocation. MFS shall, at its sole cost and expense,protect, support, temporarily
disconnect, relocate or remove, all or a part of its Fiber Optic Line when reasonably required by
the City for reasons of traffic conditions or public safety,widening or improvement of existing
right-of-ways, change or establishment of street grade, of the construction of any public
improvement or structure by any governmental agency acting in a governmental capacity,
provided that MFS shall, upon receiving approval and obtaining the necessary permits from the
City, have the right to bypass in the authorized portion of the same right-of-way, any section of
cable required to be temporarily disconnected or removed.
4.1. For the purposes of this Section 4, any condition or requirement imposed
by the City upon itself or any person or entity acting on the City's behalf(including without
limitation any condition or requirement imposed pursuant to any contract or in conjunction with
approvals for permits for zoning, land use, constriction, or development by the City or such
entity acting on the City's behalf)that reasonably necessitates the relocation of MFS's facilities
within the rights-of-ways described in Exhibit A shall be required relocation for purposes of this
previous subsection.
4.2. If the City, under its authority, causes a required relocation of all or part of
the Fiber Optic Line, the City, at least ninety(90) calendar days prior to the commencement of
the project requiring relocation, shall provide written notice to MFS of the required relocation
and shall provide MFS with copies of pertinent portions of the plans and specifications for the
project. After receipt of the City's notice,MFS must complete the required relocation of its
affected facilities at least ten(10) calendar days prior to the commencement of the project
requiring relocation. MFS will complete this required relocation at no charge or expense to the
City. Further, MFS's relocation shall be accomplished in a manner that accommodates and does
not interfere with the project requiring relocation. The City shall exercise its best efforts to assist
with this relocation, including without limitation,priority processing of all necessary permits and
approvals.
G:13thfloor/Agreements!Washington/LimitedStreetLicense-Kent.doc 2
4.3. MFS may, after receipt of the City's written notice requesting relocation,
submit written alternatives to the City. The City will evaluate those alternatives to determine if
any of the alternatives can accommodate the work that would otherwise necessitate the relocation
of the Fiber Optic Line. If requested by the City, MFS will submit additional information to
assist the City in making its determination. The City will give each alternative proposed by MFS
full and fair consideration. In the event the City ultimately determines that no reasonable or
feasible alternative exists, MFS shall relocate its facilities as otherwise provided in this Section
4.
4.4. In the event that a relocation of any of the Fiber Optic Line is required by
any person or entity other than the City, so long as that person or entity is not acting on the
City's behalf in conducting any of the activities described in this Section 4, MFS shall make
those arrangements, including reimbursement for all of MFS's relocation cost,that it deems
appropriate with that person or entity.
4.5 The provisions of this Section 4 shall survive the expiration or termination
of this License, unless MFS is permitted by the City to temporarily or permanently abandon its
Facilities.
5. Undergrounding. MFS shall, wherever possible,underground its Fiber Optic
Line. MFS shall not erect poles,run or suspend wires, cables, or other facilities in any area
where there are no aerial facilities, or in any area in which telephone, electric power wires and
cables have been placed underground. Nevertheless, if at the time of permit application, the City
does not require the undergrounding of all or part of the Fiber Optic Line, the City may, at any
time while this License is in effect, require the conversion of MFS's aerial facilities to
underground installation at MFS's sole cost and expense.
5.1. Whenever the City requires undergrounding of any aerial utilities in the
street right-of-ways, MFS shall underground its aerial facilities in the manner specified by the
City concurrently with the other affected utilities. If MFS has aerial Facilities being placed
underground and other utilities are present and involved in the undergrounding project, MFS
shall pay its fair share of common costs born by all utilities in addition to the costs specifically
attributable to the undergrounding of MFS' own facilities. Common costs shall include
necessary costs not specifically attributable to the undergrounding of any particular facility, such
as costs for common trenching and utility vaults. "Fair share" shall be determined for a project
on the basis of the number and size of MFS's facilities being undergrounded in comparison to
the total number and size of all other utility facilities being undergrounded. If all of MFS's
facilities were underground prior to any undergrounding projects contemplated by this Section 5,
MFS shall not be required to pay any amounts pursuant to this Section 5.
6. Emergency. In the event of any emergency in which any portion of the Fiber
Optic Line breaks,becomes damaged, or in any other way becomes an immediate danger to the
property, life, health, or safety of any individual, MFS shall immediately take the proper
emergency measures to remedy the dangerous condition without first applying for and obtaining
G:13thfloor/Agreements/Washington/LimitedStreetLicense-Kent.doc 3
a permit as required by this License. However, this emergency work shall not relieve MFS from
its obligation to obtain all permits necessary for this purpose, and MFS shall apply for those
permits within the next two succeeding business days.
7. Indemnification. MFS shall comply with the following indemnification
requirements.
7.1. MFS shall defend, indemnify and hold the City, its officers, officials,
employees, agents, assigns and volunteers harmless from any and all claims, actions, injuries,
damages, losses or suits, including all legal costs, witness fees and attorney fees, arising out of or
in connection with the performance of any of MFS's rights or obligations granted by this
License, but only to the extent of the negligence or comparative fault of MFS, its employees,
agents, contractors, subcontractors, consultants, subconsultants or assigns.
7.2. the City's inspection or acceptance of any of MFS's work when completed
shall not necessarily be grounds to avoid any of these covenants of indemnification.
7.3. These indemnification obligations shall extend to any claim, action or suit
that may be settled by compromise,provided that MFS or its insurer shall not be liable to
indemnify the City for any settlement agreed upon without the consent of MFS or its insurer
where such consent is required by the insurer; however, if MFS or its insurer consents to the
agreed upon settlement, then MFS or its insurer shall indemnify and hold the City harmless as
provided for in this Section 7 by reason of that settlement. Moreover, if MFS or its insurer
wrongfully refuses to defend the City against claims by third parties, MFS or its insurer shall
indemnify the City regardless of whether the settlement was made with or without MFS's or its
insurer's consent.
7.4. In the event that MFS refuses to tender defense in any claim, action or suit
by a third party pursuant to this Section 7 and if MFS's refusal is subsequently determined by a
court having jurisdiction(or such other tribunal that the parties shall agree to decide the matter)
to have been wrongful refusal, then MFS shall pay all the City's reasonable costs for defense of
the action, including all legal costs,witness fees and attorneys' fees and also including the City's
reasonable costs, including all legal costs, witness fees and attorney's fees, for recovery under
this indemnification clause(Section 7).
7.5. The provisions of this Section 7 shall survive the expiration or termination
of this Agreement.
8. Insurance. MFS shall procure and maintain for the duration of this License,
insurance of the types and in the amounts described below against claims for injuries to persons
or damages to property which may arise from or in connection with the performance of the work
by MFS, its agents, representatives, employees, contractors, subcontractors, consultants,
subconsultants or assigns.
G:13thfloor/Agreements/Washington/LimitedStreetLicense-Kent.doc 4
8.1. Before beginning work on the project described in this License,MFS shall
provide a Certificate of Insurance evidencing:
8.1.1. Automobile Liabilitv insurance with limits no less than $1,000,000
combined single limit per accident for bodily injury and property damage; and
8.1.2. Commercial General Liability insurance written on an occurrence
basis with limits no less than $2,000,000 combined single limit per occurrence and general
aggregate for personal injury,bodily injury and property damage. Coverage shall include but not
limited to: blanket contractual; products/completed operations/broad from property damage;
explosion, collapse and underground(XCU), and employer's liability.
8.1.3. Excess Liability insurance with limits not less than $2,000,000 per
occurrence and aggregate.
8.2. Any payment of deductible or self-insured retention shall be the sole
responsibility of MFS.
8.3. The City, its officers, officials, employees, agents and assigns shall be
named as an additional insured on the insurance policy, as respects work performed by or on
behalf of MFS and a copy of the endorsement naming the City as additional insured shall be
attached to the Certificate of Insurance.
8.4. MFS's insurance shall contain a clause stating that coverage shall apply
separately to each insured against whom claim is made or suit is brought, except with respects to
the limits of the insurer's liability.
8.5. MFS's insurance shall be primary insurance as respects the City, and the
City shall be given thirty (30) calendar days prior written notice by certified mail of any
cancellation, suspension or material change in coverage.
9. Modification. This License may not be modified, altered, or amended unless first
approved in writing by the City and MFS.
10. Assignment. MFS may assign all or any portion of its rights,benefits, and
privileges, in and under this License subject to and conditioned upon approval of the City, which
approval will not be unreasonably withheld or delayed. MFS shall, not later than thirty(30) days
of the date of any proposed assignment, file written notice of intent to assign the License with the
City together with the assignee's written acceptance of all terms and conditions of the License
and promise of compliance. Notwithstanding the foregoing, MFS shall have the right,without
such notice or such written acceptance, to mortgage its rights, benefits, and privileges in and
under this License to the Trustee for its bondholders and assign to any subsidiary,parent, affiliate
or company having common control with MFS so long as notice of same is provided to the City
and provided MFS remains fully liable to the City for compliance with all the terms and
conditions hereof until such time as the City shall consent to such assignment as provided above.
G:13thfloor/Agreements/Washington/LimitedStreetLicense-Kent.doc 5
11. Dispute Resolution; Venue; Jurisdiction. In the event of any alleged breach or
threatened breach of this License by either party and if the city and MFS are unable to cure the
breach or otherwise resolve their dispute,then final resolution of this dispute or claim shall occur
solely under the jurisdiction or venue of the King County Superior Court located in Kent,
Washington. Each party shall also be responsible for its own legal costs and attorney fees
incurred in defending or bringing that claim or lawsuit.
12. Notice. All notices, requests, demands, or other communications provided for in
this License shall be in writing and shall be deemed to have been given when sent by registered
or certified mail,return receipt requested, addressed as the case may be,to the addresses listed
below for each party, or to such other person or address as either party shall designate to the
other from time to time in writing forwarded in like manner:
City of Kent Metropolitan Fiber Systems of Seattle,Inc.
Contact: CITY CLERK Attention: Steven J. Harper /
220 Fourth Avenue South 6929 N. Lakewood Ave.
Kent, WA 98403 Tulsa, OK 74117
Please Copy to:
MCI WorldCom
One Tower Lane, Suite 1600
Oakbrook Terrace, IL 60181
Attention: Jodi J. Caro
Counsel for Development
G:13thfloor/Agreements/Washington/Limited StreetLicense-Kent.doc 6
13. Integration Clause. This License contains the entire agreement between the
parties and, in executing it,the City and MFS do not rely upon any statement,promise, or
representation,whether oral or written,not expressed herein.
IN WITNESS, this Limited Street License is executed and shall become effective as of
the last date signed below.
CITY OF KENT METROPOLITAN FIBER SYSTEMS OF
SEATTLE, INC.
By By:
-dot , Mayor 7/ae-7 F✓h
APPROVED AS TO FORM: APPROVED AS TO FORM:
By: r2Ak Lt,',"- By:-- 1�&a
homas C. Brubaker J di J. earo
Assistant City Attorney Counsel for Development
Legal Department
D AS T FORM
1
y
J. Ca , Esq.
G:13thfloor/Agreements/Washington/LimitedStreetLicense-Kent.doc 7
EXHIBIT A
ROUTE DESCRIPTION for THE CITY OF KENT
Metro Fiber Systems of Seattle inc.
Kent Near Net Project
August 19, 1998
North Lateral
The North Lateral will began at a US-West manhole#635 on the west side of West
Valley Hwy, 433 feet south of the centerline of 196th St. The route will go northerly three feet
behind the sidewalk for the first 153 feet and then go to four feet behind the west curb of West
Valley Hwy to the north side of the intersection of 190th ST. The route will then parallel 190 th
St. to the east,thirty eight feet north of the centerline of the 190 th St. The route continues
easterly to a point eighty one feet west of the centerline of the proposed Seventy Second Ave.
Here, it then begins to turn at a fifty three foot radius and comes to a point twenty eight feet east
of the centerline of Seventy Second Ave. The route continues north @ twenty eight feet west
from the centerline of Seventy Second Ave to one foot north of the lot line which is on the south
side of Lot 2, Tract B,of the Uplands West Valley#4 Addition. Here the route turns to the east
and parallels the railroad easement @ one foot north of the lot line to the P.S.E. Property. The
route crosses the P.S.E.Property and the Union Pacific Railroad Property in a easterly direction
to a point forty five feet east of the centerline of the Union Pacific Railroad. The route then turns
to the north twenty five feet and comes to a end @ a MCI Manhole# 17036.
South Lateral
The South Lateral will begin at a point on the north side of MCI Manhole# 17015. The
route will then go twenty five feet north to a point forty five feet east of the centerline of the
Union Pacific Railroad. The route will then turn to the west and cross the Union Pacific Railroad
property and the P.S.E. property to a point eighteen feet east of the westerly P.S.E.property line.
The route then turns to the south fifty one feet to a point twenty one feet north of the section line.
The route then turns to the west and parallels the section line twenty one feet north of the section
line to a point twenty seven feet east of the centerline of Seventy Second Ave. The route then
parallels Seventy Second Ave. twenty seven feet east of the centerline to the south at a point
where it turns a fifty three foot radius and comes to a point thirty seven feet north of the
centerline of the Proposed 196 th ST. Widening Project. The route then continues to the west @
thirty seven feet north of the centerline of the Proposed 196 th ST. Widening Project to a point
ten feet west of the lot line between Lot 1 and Lot 17 of the Highway Home Garden Tracts
where it turns to cross 196 th ST. The route then parallels 196 th ST. Forty five feet south of the
centerline of 196 th ST.,twenty feet west to a point on the east side of an existing US-West
Manhole which is the end of the route.
This description is preliminary and subject to change.
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A66 ER OfAfL �� DATE
1/22/99YY1 R
PRdbUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
JSL & CO, OF ATLANTA HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR
P .O. Box 80707 ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW.
At I anta , GA 30366-0707 COMPANIES AFFORDING COVERAGE
COMPANY
770-476-1770 _A _CIGNA Insurance Companies
INSURED COMPANY
MFS COMMUNICATIONS INC & B U.S. Fire Insurance Company
Metropolitan Fiber Systems ; a COMPANY
subsidiary of WorldCom, Inc . C
500 Clinton Center Dr , COMPANY
Clintoh MS 39056 D
COVERAGES
THISISTO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD
INDICATED,NOTWITHSTANDING ANY REQUIREMENT,TERMOR CONDITION OF ANY CONTRACTOR OTHER DOCUMENT WITH RESPECT TO WHICHTHIS
CERTIFICATE MAY BE ISSUED OR MAY PERTAIN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,
EXCLUSIONS AND CONDITIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS.
Co ►OLICYEFPBCTIVE PO=(MMflR)D
LIMITS
LTR TYPE OF INSURANCE POLICY NUMBER DATE(MMIDDIYY) D
GENERAL LIABILITY GENERAL AGGREGATE $ 2 000 000
A X COMMERCIAL GENERAL LIABILITY HDOG18966074 7/01/98 7/01/99 PRODUCTS-COMP/OP AGG $ 2 000 000
CLAIMS MADE 51 OCCUR PERSONAL & ADV INJURY $ 1 QQQ 0_00
OWNER'S&CONTRACTOR'S PROT EACH OCCURRENCE $ 1 000 000
X X C U included 'FIRE DAMAGE(Any one fire) $ 1 000 000
MED EXP (Any one person) $ 25 000
AUTOMOBLELIABLITY COMBINED SINGLE LIMIT $
A ' XANYAUTO ISAH07130879 7/01/98 7/01/99 1 ,000 000
X BODILY INJURY
ALL OWNED AUTOS (Per person) $
SCHEDULED AUTOS
X HIRED AUTOS BODILY INJURY I§
(Per accident)
X NON-OWNED AUTOS
PROPERTY DAMAGE §
GARAGE LIABILITY AUTO ONLY - EA ACCIDENT $
ANY AUTO OTHER THAN AUTO ONLY:
EACH ACCIDENT $
AGGREGATE It
EXCESSLIABLITY EACH OCCURRENCE $ 25 000 000
B X UMBRELLA FORM 553051806-3 7/01198 7/01/99 AGGREGATE $ 50 000 000
OTHER THAN UMBRELLA FORM $
WORKERS COMPENSATION AND X STATUTORY LIMITS
EMPLOYERS'LIABLITY $
A I WLRC42613228 ALL STAT 7l01/98 7/01 /99 EACH ACCIDENT 1 000 000
THE PROPRIETOR/ INCL NWCC4261323A MA & WI 7/01/98 7/01/99 DISEASE - POLICY LIMIT $ 1 OOO 00O
PARTNERS/EXECUTIVE
OFFICERS ARE: EXCL 'DISEASE-EACH EMPLOYEE $ 1 QQQ OOO
OTHER
DESCRIPTION OF OPERATIONSLOCATIONSIVEHICLEBIBPECIAL ITEMS
ADD'L INSUREDS: THE CITY OF KENT; ITS OFFICERS , OFFICIALS , EMPLOYEES , AGENTS ,
& ASSIGNS PER ATTACHED ENDORSEMENT
CERTIFICATE HOLDER CANCELLATM
SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE
EXPIRATION DATE THEREOF, THE ISSUING COMPANY WILL ENDEAVOR TO MAL
CITY OF KENT 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT,
220 FOURTH AVENUE SOUTH BUT FAILURE TO MAL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR LIABLITY
KENT , WA 98408 OF ANY KWD UPON THE OWPANY, gq AGENTS OR REPRESENTATIVES.
AUTHOR D RESENTATIVE 752786000
ACOAD 26•6 3193 a A D CO11PflRATJON 19Y9
POLICY NUMBER: HDOG18966074 - WorldCom, iNc. and 6&W*?WffkkAL LIABILITY
including MFS of Seattle, Inc. CG 20 10 03 97
THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.
ADDITIONAL INSURED- 011MRS, LESSEES OR
CONTRACTORS- SCHEDULED PERSON OR
ORGANIZATION
This endorsement modifies insurance provided under the following:
COMMERCIAL GENERAL LIABILITY COVERAGE PART
SCHEDULE
The City of Kent, its officers, officials, employees, agents and assigns
-----------------------------------------------------------------------------
Name of Person or Organization:
220 Fourth Avenue South
Kent, WA 98403
-----------------------------------------------------------------------------
(If no entry appears above, information required to complete this
endorsement will be shown in the Declarations as applicable to this
endorsement.)
Who Is An Insured (Section II) is'amended to include as an insured the
person or organization shown in the Schedule, but only with respect to
liability arising out of your ongoing operations performed for that insured.
CG 20 10 03 97 Page 1 of 1
Copyright, Insurance Services Office, Inc. , 1996
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