AN ORDINANCE relating to private party use of the City's fiber optic cable network; authorizing the Chief Technology Officer to enter agreements allowing private parties to use the excess capacity of the City's fiber optic cable network for providinghigh speed internet services and for other lawful purposes; amending Ordinance 117981 to allow agreements for private use; creating a fund for the financial transactions associated with private use; providing for an interfund loan; and amending the 2012budget, Ordinance 123758, by adding a new budget control level and increasing appropriations; all by a three-fourths vote of the City Council.
WHEREAS, in 1995, Seattle City Council passed Ordinance 117981 establishing a model agreement (Model Agreement) with general terms and conditions for cooperative agreements between public agencies for the installation, ownership, and maintenance offiber optic cable and associated infrastructure and facility use; and
WHEREAS, Ordinance 117981 provides that City departments may execute agreements consistent with the Model Agreement without formal council approval; and
WHEREAS, the Model Agreement established under Ordinance 117981 places restrictions on transferring and assigning the use of the fiber, and limits the use of the fiber to "... governmental, public educational, intergovernmental, or public utilitypurpose ..." ; and
WHEREAS, since 1996, the City has formed a fiber partnership with approximately 20 other government and public education agencies (the Partnership), and using the Model Agreement terms and conditions has installed over 500 miles of fiber optic cable inthe greater Seattle area for use by the City and the Partnership; and
WHEREAS, since the beginning of the Partnership, the City of Seattle Department of Information Technology has been selected by the Partnership as the agency for managing fiber installation and maintenance and for administering financial reimbursem*ntsbetween Partnership members; and
WHEREAS, it is the Department of Information Technology's customary practice (as provided in the Model Agreement) to install the maximum feasible amount of fiber optic cable in conduit; and
WHEREAS, fiber technology has developed so that a single strand of fiber can be split electronically into multiple virtual-fiber strands that may be used by different parties; and
WHEREAS, the Department of Information Technology has determined that the City's current fiber optic cable network has excess capacity in some locations where there are dark fiber strands not in use, or where excess capacity could be created throughelectronic splitting; and
WHEREAS, the Mayor and the Department of Information Technology have heard from numerous citizens and businesses that they do not have adequate access to high speed internet services; and
WHEREAS, the City desires to make its excess fiber capacity available to private parties in order to encourage the availability of faster internet speeds for businesses and residents throughout the City and to increase competition among serviceproviders;
WHEREAS, other Partnership agencies also have excess fiber capacity and also wish to make the excess available to private parties; and
WHEREAS, the Citizens' Telecommunications and Technology Advisory Board (CTTAB) unanimously recommended that the City Council pass this ordinance and that the City prioritize providers who emphasize citizen access, citizen coverage, and increasedcitizen choice; NOW, THEREFORE,
BE IT ORDAINED BY THE CITY OF SEATTLE AS FOLLOWS:
Section 1. For purposes of this ordinance, the following terms have the definitions given in this section.
"CTO" means the Chief Technology Officer of the City of Seattle, head of the Department of Information Technology. "Excess Fiber" means any City-owned dark fiber strand, whether in cable owned solely by the City or in cable owned by the City and itsFiber Partners, so long as the strand is not desired for use by the City or one of its Fiber Partners. "Excess Fiber" also means virtual fiber strands that may be created using City-owned fiber strands through wave division multiplexing equipmentwithout adversely impacting the City's use of the fiber strand. "Excess Fiber" does not include fiber located in ducts or conduit acquired by the City under Seattle Municipal Code (SMC) 15.32.070.A. "Fiber Infrastructure" means City-owned conduit,inner duct, vaults, and any other City-owned facility that is related to the use of fiber optic cable, excluding ducts or conduit the City acquired under SMC 15.32.070.A. "Fiber Partner" means any public entity or agency that is a party to any agreementwith the City for the joint installation and ownership of fiber optic cable, as authorized by Ordinance 117981.
Section 2. The CTO is authorized to execute, for and on behalf of the City of Seattle, one or more rental or license agreements with private parties for use of any Excess Fiber and Fiber Infrastructure under the CTO's management. The CTO is alsoauthorized to execute rental or license agreements for use of Excess Fiber and Fiber Infrastructure under the management of any other City of Seattle department with the approval of the director or superintendant of that department. The CTO shallensure that the department is reimbursed according to that department's standard rates.
Section 3. Upon the request of any Fiber Partner, the CTO may incorporate that Fiber Partner's fiber and infrastructure into any rental or license agreement entered into under the authority of this ordinance. The CTO will reimburse the Fiber Partneran agreed upon share of the use fee; provided, the CTO shall ensure that the City receives an equitable share of the use fee for any City-owned Excess Fiber and Fiber Infrastructure that is used under the agreement and that the City is reimbursed forany standard departmental charges and administrative costs associated with negotiating and administering the agreement.
Section 4. The CTO's authority to enter into agreements under this ordinance is limited as follows:
A. The term of any agreement for private use of Excess Fiber and Fiber Infrastructure shall not exceed ten years; however, prior to entering into any agreement with a term of more than five years, the CTO shall notify the City Council in writing of theintent to enter into an agreement and offer to brief the Council on the proposed agreement's terms and conditions. B. The CTO shall ensure that the consideration received by the City is based upon the following factors: the City's originalinstallation cost and the useful life of the Excess Fiber and Fiber Infrastructure; any City department's standard charges applicable to Fiber Infrastructure; and any additional connections, electronic installations or work that must be performed by theCity under the agreement. C. The agreements may allow the Excess Fiber and Fiber Infrastructure to be used for any lawful purpose; however, the CTO shall give priority to users that will offer or improve high speed fiber based internet service tosurrounding businesses and residences.
Section 5. The "General Terms and Conditions for Sharing of Fiber Optic Installation Projects" attached to Ordinance 117981 is amended as shown in the Revised General Terms and Conditions for Sharing of Fiber Optic Projects attached hereto asAttachment 1 (Revised Agreement).
Section 6. The CTO is authorized to enter into fiber sharing agreements that are consistent with the Revised Agreement. The CTO is further authorized to amend any agreement previously entered into under the authority of Ordinance 117981, as mutuallyagreed upon between the CTO and any affected Fiber Partner, in a manner that allows for private use of existing Excess Fiber and Fiber Infrastructure, so long as the amendment is consistent with the Revised Agreement, with minor alterations anddeletions consistent with the goals and purposes of allowing for private use of Excess Fiber and Fiber Infrastructure.
Section 7. A new Fiber Leasing Fund is created in the City Treasury, to which revenues may be deposited, and from which associated expenditures may be paid, including but not limited to operating, maintenance, capital and City administration costs forthe purposes described in Section 8 below.
Section 8. The purpose of the Fiber Leasing Fund authorized in Section 7 is to account for revenues, expenditures, assets, and liabilities associated with agreements with private parties for the use of Excess Fiber and Fiber Infrastructure. The Fundshall disburse agreed upon payments to Fiber Partners for their share of the consideration received under any City agreement with a private party that utilizes a Fiber Partner's fiber and infrastructure.
Section 9. The new Fiber Leasing Fund shall receive authorized associated revenues, including but not limited to revenues from sponsorship agreements; federal, state, county, or other grants or transfers; private funding, donations, or gifts; propertysales proceeds; and other monies as authorized by ordinance. The Fiber Leasing Fund shall receive earnings on its positive balances and pay interest on its negative balances.
Section 10. The CTO shall have responsibility for administering the Fiber Leasing Fund. The Director of Finance is authorized to create other Subfunds, Accounts, or Subaccountsas may be needed to implement the Fiber Leasing Fund's purpose and intent asestablished by this ordinance.
Section 11. The 2012 Adopted Budget is amended with the creation of a new City Fiber budget control level added to Attachment A of Ordinance 123758 as follows:
|
| Fund | Department | BCL Code | BCL Name | BCL Purpose |
| 11.1 | Fiber Leasing Fund (tbd) | Information Technology | DE9000 | City Fiber | The purpose of the City Fiber Budget Control Level is to manage the use of excess fiber and fiber infrastructure. |
Section 12. A loan of funds is authorized from the Information Technology Fund to the Fiber Leasing Fund for Fifty Thousand Dollars ($50,000) for a period beginning with the effective date of this Ordinance, and terminating not later than December 31,2015 with interest on the loan at the rate of return on the City's Consolidated (Residual) Cash Pool.
Section 13. The entire principal and interest amount of the loan authorized by Section 12 owed by the Fiber Leasing Fund to the Information Technology Fund shall be repaid with revenues from private parties for use of Excess Fiber and FiberInfrastructure.
Section 14. The CTO may effectuate the loan authorized in Section 12 by transferring cash from the Information Technology Fund to the Fiber Leasing Fund in an amount not to exceed Fifty Thousand Dollars ($50,000) through December 31, 2015.
Section 15. In order to pay for necessary costs and expenses incurred or to be incurred in 2012, but for which insufficient appropriations were made due to causes that could not reasonably have been foreseen at the time of the making of the 2012Budget, the appropriation for the following item in the 2012 Budget is increased from the fund shown, as follows:
|
| Fund | Department | Budget Control Level | Amount |
| 15.1 | Fiber Leasing Fund (tbd) | Information Technology | City Fiber (DE9000) | $50,000 |
| Total | $50,000 |
Unspent funds shall carry forward to subsequent years until they are exhausted or abandoned by ordinance.
Section 16. The CTO shall submit a written report to the City Council by the end of April each year from 2013 through 2015, reporting on activities under this ordinance through the end of the preceding calendar year. The report shall describe at leastthe following:
a. private party interest in use of the fiber network; b. private party agreements executed or in progress; c. the location and purpose of each private party agreement; d. the extent to which private party agreementsresulted (or will result) in improved high-speed fiber-based Internet service to surrounding businesses and/or residences; e. whether lower-income areas are served by private party agreements; f. the extent to which agreements haveprioritized providers who emphasize citizen access, citizen coverage, and increased citizen choice; g. revenue to the City from private party use fees; h. revenues to and expenditures from the Fiber Leasing Fund; and i. thestatus of any outstanding loan to the Fiber Leasing Fund.
Section 17. This ordinance shall take effect and be in force 30 days after its approval by the Mayor, but if not approved and returned by the Mayor within ten days after presentation, it shall take effect as provided by Seattle Municipal Code Section1.04.020.
Passed by a 3/4 vote of all the members of the City Council the ____ day of ________________________, 2012, and signed by me in open session in authentication of its passage this _____ day of ___________________, 2012.
_________________________________
President __________of the City Council
Approved by me this ____ day of _____________________, 2012.
_________________________________
Michael McGinn, Mayor
Filed by me this ____ day of __________________________, 2012.
____________________________________
Monica Martinez Simmons, City Clerk (Seal)
Attachment 1: Revised General Terms and Conditions for Sharing of Fiber Optic Projects
R E V I S E D G E N E R A L T E R M S and C O N D I T I O N S
For Sharing of Fiber Optic (( Installation ))
EXHIBIT A CITY OF SEATTLE FACILITIES
EXHIBIT B SEATTLE CITY LIGHT FACILITIES........................................................... .B1
ADDENDUM 1 : AUTHORIZING USE OF CITY OF SEATTLE
UNDERGROUND OR TRANSMISSION FACILITIES
ADDENDUM 2: SPECIAL TERMS AND CONDITIONS FOR
AGREEMENTS WITH THE UNITED STATES GOVERNMENT
I. DEFINITIONS
Whenever used in this Agreement with initial letters capitalized, the following terms shall have the following specified meanings, unless the context clearly requires a different meaning:
A. Building Entrance
Conduit or Conduits usually connecting a Vault, Handhole, or Maintenance Hole in the public right-of-way to a building.
B. Building or Location Served By Fiber Optic System
Any Facility, location, building, or structure where the Participating Agencies terminate any Fiber Optic Cable for use by the Participating Agencies.
C. Building Vault
A vault located substantially within a building and subject to uniform building and fire codes.
D. City Buildings
Structures owned, leased, and/or occupied or partially occupied by City employees, and/or equipment.
E. City Light Department Conduit
Conduit designed to house conductors or cables owned by the City Light Department and for which City Light has authority to control access and use.
F. Common Fiber Spares
Fiber strands installed as part of a Fiber Optic Project held in reserve solely for replacement of disabled fibers.
G. Conduit
Enclosed runway or tube designed to house cables for their protection (same as Duct).
H. Dark Fiber
An optical fiber strand not coupled to an optical light source.
I. Dead-end Tower
A structure designed and constructed to terminate electrical transmission or distribution circuits.
J. Dielectric Cable
Fiber Optic Cable which is entirely composed of nonelectrical current conducting elements (i.e., non-metallic).
K. Duct
Enclosed runway or tube designed to house cables for their protection (same as Conduit).
L. Duct Bank
Two or more parallel Ducts usually enclosed in a concrete envelope.
M. Excess Fiber
Any dark fiber strand that is not desired for use by a Participating Agency, or any virtual fiber strand that may be created through wave division multiplexing equipment without adversely impacting a Participating Agency's use of the fiber strand andthat is not desired for use by a Participating Agency.
N. Facility or Facilities
A structure including but not limited to: Buildings, Vaults, Maintenance Holes, Handholes, Conduit, Building Entrances, Substations, transmission towers, and distribution poles.
O. Facility Manager
The person designated by the Facility Owner to manage the Facility, including granting access, determining and approving its use and terms and conditions for such use.
P. Facility Owner
The entity that is the legal owner of a Facility or Facilities or the entity holding the legal right to grant permission to occupy, use or modify Facilities.
Q. Fiber Optic Cable
A cable installed by the Participating Agencies pursuant to this Agreement that is composed of strands of glass fiber, each strand which is designed to conduct signals of modulated light (optical signals) from one end to the other.
R. Fiber Optic Project
The activities associated with the installation of fiber optic transmission materials, including cable, splices, inner duct, sleeves, etc.
S. Fiber Optic Project Agreement
An agreement for a specific Fiber Optic Project with Participating Agencies that specifies the contractual relationships between and among the participants.
T. Fiber Strand or Strand of Fiber
A thin transparent fiber of glass enclosed by a material of a lower index of refraction that reflects light throughout its length by internal reflections.
U. Handhole
An underground structure (usually concrete) providing an opening in a Conduit in which workers may reach into but usually do not enter for the purposes of installation and maintenance of cable.
V. Indirect Costs
Indirect costs are costs determined in accordance with a Participating Agency's standard methodology for computing indirect costs. Indirect costs shall include costs of labor, benefits, equipment usage, miscellaneous materials, material handling, andadministrative and general charges. This definition also applies to Facility Owner indirect costs.
W. Lead Agency
The designee of the Participating Agencies by their mutual consent in a Fiber Optic Project Agreement responsible for managing fiber installation projects, including entering into construction contracts and overseeing the construction work for theParticipating Agencies and ongoing maintenance of the project(s).
X. Make-Ready Work
Any and all planning, analysis, design, review, adjustment to equipment, construction, and/or other activities (such as tree trimming) necessary to prepare existing Facilities for use by the Lead Agency as determined by the Facility Owner.
Y. Maintenance Hole
An underground structure (usually concrete) which workers may enter for the purposes of installation and maintenance of cable.
Z. Optical Ground Wire
A composite electrical conductor expressly designed and manufactured to enclose optical fibers for telecommunications and for installation as a shield wire on transmission towers to provide lightning protection.
II. RELATIONSHIPS AMONG PARTICIPATING AGENCIES
A. FIBER OPTIC PROJECT AGREEMENTS
All fiber optic installation projects among Participating Agencies shall have a Fiber Optic Project Agreement specifying the following; including contact names and addresses where appropriate.
Participating Agencies
Lead Agency and Project Manager
Route
Facilities to be Used; Facility Owners; and the Facility Manager(s)
Project Budget, including Contingency and Terms of Cost Sharing
Apportionment of Liability
Project Schedule
Changes or Addenda to General Terms and Conditions
Bond and Insurance Requirements for Contracting and Participating Agencies
The General Terms and Conditions for Sharing Fiber Optic Installation Projects shall be an attachment to each Fiber Optic Project Agreement.
B. PRINCIPLES
Agreements among the Participating Agencies for sharing of Fiber Optic Projects shall conform to the following principles:
1. Participation in Fiber Optic Projects is voluntary and can depend on specific cable routes.
2. Arrangements for cooperation should be fair and equitable among Participating Agencies. As a general principle, agreements among Participating Agencies, where each have a share of project control, should share costs proportionately based on eachshare of the fiber strands deployed. Any special configuration, such as a routing change to accommodate a particular entity, should be paid for in whole by such entity. If a Facility Owner requires a route change due to Facility access, the costs ofsuch a change shall be considered general project costs and not the sole responsibility of the Facility Owner as a Participating Agency.
In projects where a Participating Agency desires fiber for future use and does not participate in the route design, engineering, or terminations, such Participating Agency may be considered secondary. Costs may be allocated to a secondary ParticipatingAgency on an incremental basis.
C. GENERAL PLANNING, ENGINEERING AND DESIGN CONSIDERATIONS
Upon execution of a Fiber Optic Project Agreement, the Participating Agencies shall develop, review and/or revise planning, engineering, design, installation, and maintenance procedures for the Fiber Optic Project. The procedures will be subject to theapproval of the Participating Agencies and of the Facility Owners as specified in Section IV and in related Exhibits and Addenda. The procedures will be substantially similar to the following:
1. Perform Feasibility Review
An agency with an interest in a shared fiber optic project will undertake a feasibility review to determine which of the Participating Agencies has an interest in the Fiber Optic Project, the possible routes, the availability of Facilities, theapproximate cost and the time frame required for installation. Prospective Facility Owners shall be included in the feasibility review process.
2. Execute Fiber Optic Project Agreement
The Agreement must ensure that approval by the appropriate authority is granted for Facilities to be used and shall specify the information listed in Section II.A.
3. Perform Detailed Engineering Design
The Lead Agency shall work with Facility Owners to complete routing, obtain permission for use of Facilities, etc. Any changes exceeding the approved Project Budget shall require approval by the Participating Agencies; such approval shall not beunreasonably withheld.
4. Install Project
The Lead Agency shall be responsible to ensure compliance with all requirements of the Facility Owner.
5. Complete Acceptance of Fiber Optic Project
The Lead Agency shall formally accept installation of the Fiber Optic project by issuing a formal letter to the contractor(s) and the Participating Agencies stating that the Work has been completed in accordance with contract specifications and that allpunch-list items have been resolved to the satisfaction of the Lead Agency and Facility Owner. Such acceptance shall authorize final payment(s) to contractor(s). The Lead Agency shall also identify ownership of Fiber Strands.
6. Establish Maintenance Plan
The Lead Agency shall develop a maintenance plan for the Fiber Optic Project, and the Participating Agencies will appoint a maintenance manager.
7. Keep Records
The Lead Agency shall provide Facility Owners with whatever documents are specified by the Facility Manager(s) so Facility Owner(s) can maintain accurate records of where and how the Participating Agencies installed equipment within or on Facilities,and where and how the Participating Agencies modified any Facility. Among the materials that must be provided to Facility Owner are computerized records and archival quality drawings that document installation or modification Work performed by the LeadAgency or its contractors. The Lead Agency shall not charge the Facility Owner for providing any necessary documentation requested by the Facility Manager. Such costs, however, shall be included as part of the Project Budget, Section II.A.
8. Provide Access to Records
The Lead Agency shall provide access to any and all of the Participating Agencies' records with respect to design, installation and maintenance of components of the Fiber Optic System located within or on Facilities to Facility Owner(s) when requestedby the Facility Manager(s). The Lead Agency shall not charge the Facility Owner for either access to such information or for obtaining copies of any portion of the information. Such costs, however, shall be included as part of the Project Budget,Section II.A. The records to which the Lead Agency shall provide the Facility Owner access include, but are not limited to computerized records and design drawings, equipment and fiber specifications, route maps, manufacturer's test reports on fibersand on other equipment, documentation of the installation of Fiber Optic Cable and other equipment, and documentation of maintenance done on fibers and other equipment.
D. CHANGE ORDERS
Participating Agencies shall have the right to propose changes to the Fiber Optic Project Agreement which shall be approved by all Participating Agencies., including replacing the Lead Agency and adjusting project budgets. Changes that impact FacilityOwners shall be subject to approval by the Facility Owners.
The costs of any changes required by and beneficial to an individual Participating Agency made after the signing of a Fiber Optic Project Agreement shall be borne by that Participating Agency. If a Facility Owner requires a route relocation due toFacility access, the costs of such a relocation shall be considered general project costs and not the sole responsibility of the Facility Owner as a Participating Agency. The costs of other changes necessary to complete the project shall become part ofthe total project cost and shall be approved by the Participating Agencies.
E. OWNERSHIP OF FIBER OPTIC CABLE
All Fiber Optic Cable and Fiber Strands paid for in the initial installation of a Fiber Optic Project by the Participating Agencies shall be owned by those Participating Agencies as identified in the Fiber Optic Project Agreement.
F. USE OF FIBERS
Participating Agencies shall have complete free and unrestricted use of the fiber optic installations made under a Fiber Optic Project Agreement for any lawful(( governmental, public educational, intergovernmental or public utility))
Common Fiber Spares, if provided in a project, shall be shared among the Participating Agencies only. Identified Common F(( f)) s)) spare fibers
G. SALE OF FIBERS
Except as permitted in Section II.F., Participating Agencies shall not sell, assign, assign the use, or otherwise convey the use of (( any of))
Should any of the Participating Agencies wish to sell fibers installed under this Agreement, the other Participating Agencies in the project shall be granted right of first refusal. Any entity purchasing fibers installed under a Fiber Optic ProjectAgreement must agree to all the terms and conditions of this Agreement, including the General Terms and Conditions, Exhibits and Addenda as specified in this document and shall notify the Facility Owner(s) of any such purchase.
H. FUTURE USE OF FIBER OPTIC CABLE ALREADY OWNED BY INDIVIDUAL PUBLIC AGENCIES
Nothing in this document precludes Participating Agencies from entering into separate agreements with other Participating Agencies or other third parties to utilize fiber optic cable other than the Fiber Optic Cable installed pursuant to a Fiber OpticProject Agreement.
I. TAXES
The Participating Agencies shall pay, before delinquency, all applicable taxes, levies, and assessments arising from their joint Fiber Optic installations and undertakings under a Fiber Optic Project Agreement, taxes levied on the ParticipatingAgencies' property, equipment and improvements, and taxes on the Participating Agencies' interest in the Fiber Optic Project Agreement and any leasehold interest deemed to have been created thereby under RCW 82.29A.
J. PAYMENTS
Participating Agencies shall pay all amounts owed to the Lead Agency within thirty (30) days of receipt of the billing. If a Participating Agency cannot or does not make payment for charges owed within ninety (90) days, the Participating Agency shallbe given written notice to correct the default. The Participating Agency shall have ninety (90) days, or such longer time after receipt of notice as the Lead Agency may authorize in writing, to make payment. If the Participating Agency fails to makepayment, it shall be required to sell its fibers, offering right of first refusal to the other Participating Agencies. As a condition of sale, such Participating Agency shall require any entity purchasing their fibers to agree to all the terms andconditions of this Agreement, including the General Terms and Conditions, Exhibits and Addenda. Failure by any Participating Agency to comply with the requirements of this section may void the sale as determined by the other Participating Agencies.The Participating Agencies shall require such entity to notify the Facility Owner(s) of any such purchase.
K. LIABILITY
Liability attributed to the Participating Agencies under this Agreement shall be shared on a basis proportional to each Participating Agency's ownership of the fibers in the location where the liability occurs. Ownership is determined by thedemarcation points described in an Exhibit to the Project Agreement. However, in the case of gross negligence or willful misconduct on the part of any Participating Agency (including the Lead Agency), such Participating Agency shall be solely liablefor its conduct. The Facility Owner shall accrue no additional liability as a result of its ownership of facilities nor shall the Lead Agency accrue additional liability in its role as Lead Agency, except in the event of gross negligence or willfulmisconduct on the part of the Facility Owner or Lead Agency. See , Sections 3.G and 3.H; Sections 4.I and 4.K.
III. RELATIONSHIP AMONG PARTICIPATING AGENCIES AND THE LEAD AGENCY
A. GENERAL RESPONSIBILITY OF LEAD AGENCY
The Lead Agency shall be responsible for the overall management, installation and maintenance of the Fiber Optic Project as the agent of the Participating Agencies in the project. The Lead Agency shall be responsible for negotiating and entering intoseparate agreements on behalf of Participating Agencies with Facility Owners for the specific use of their Facilities and with contractors to perform all or part of the Work associated with the Fiber Optic Project. The Lead Agency is responsible forensuring that the applicable terms and conditions of the Project Agreement, General Terms and Conditions, exhibits and addenda are included in Agreements with Facility Owners and contractors. Prior to execution of any agreements with Facility Owners orcontractors, the Lead Agency shall provide opportunity for the Participating Agencies to review and comment on such agreements. In the event there is a dispute regarding any of the provisions or lack of provisions of any agreement, such dispute shallbe resolved through the process identified in this Agreement. The Lead Agency shall keep the Participating Agencies informed as to the status of the Fiber Optic Project.
B. INSTALLATION
The Lead Agency shall comply with standards and installation procedures as agreed to by the Participating Agencies and the Facility Owners pursuant to Section II.C.
The Lead Agency shall notify the Participating Agencies when initial installation of the Fiber Optic Cable and acceptance testing of all of the Fiber Strands in or on Facilities have been completed.
C. MAINTENANCE AND REPAIR RESPONSIBILITIES
1. Maintenance and Repair of Fiber Optic Cable and Fiber Strands
Maintenance of the Fiber Optic Cable and Fiber Strands within Fiber Optic Cable placed in or on Facilities pursuant to this Agreement shall be the responsibility of the Lead Agency as agent for the Participating Agencies for the term of the Fiber OpticProject Agreement and for any extensions or renewals.
In instances where service to any of the Participating Agencies has been interrupted, the Lead Agency, at the Participating Agencies' request, will make a reasonable effort to complete repairs of the Fiber Optic Cable as soon as permission to effect therepairs has been obtained from the Facility Owner.
2. Maintenance and Repair Expenses
The Participating Agencies shall be responsible for the expense of maintenance and repair of the Fiber Optic Cable and Fiber Strands for the duration of the Fiber Optic Project Agreement and any extensions or renewals on a basis proportional to theownership of fibers attributed to each Participating Agency. The Maintenance Manager shall review ongoing maintenance expenses with Participating Agencies on an annual basis.
D. FINANCIAL REIMBURsem*nTS AND OTHER PAYMENTS TO BE PROVIDED TO THE LEAD AGENCY
All costs and expenses incurred by the Lead Agency in performance of Work and payable by the Participating Agencies pursuant to this Agreement shall be actual and verifiable. The Lead Agency shall provide documentation of its methodology for computingany Indirect Costs, including Indirect Costs for Facility Owners. The Participating Agencies shall reimburse the Lead Agency within thirty (30) days of receipt of the Lead Agency's statement of charges.
E. LEAD AGENCY'S NONCOMPLIANCE
Failure of the Lead Agency to adhere to the requirements of Work and record keeping in this document will be corrected at the Participating Agencies' joint expense unless there has been gross negligence or willful misconduct on the part of the LeadAgency. Where there has been gross negligence or willful misconduct on the part of the Lead Agency, Work shall be corrected at the expense of the Lead Agency.
F. AUDIT
The Lead Agency shall permit Participating Agencies or agent(s) thereof from time to time (including after the expiration or termination of a Fiber Optic Project Agreement), to inspect and audit at any and all reasonable times in King County, or at suchother reasonable location as mutually agreed to by the Participating Agencies, all pertinent books and records of the Lead Agency, the subcontractors or any other person or entity in connection or related to the Fiber Optic Project with respect to theservices provided, costs thereof, and the compensation paid therefor.
G. LIMITATION OF LIABILITY
The Lead Agency shall not be liable, in law or in equity, to the Facility Owner, Participating Agencies, or any subsequent user for any damages relating to the interruption of service or interference with the operation of the Fiber Optic Project, exceptto the extent caused by the gross negligence or willful misconduct of the Lead Agency. THE LEAD AGENCY SHALL NOT BE LIABLE TO THE FACILITY OWNER, PARTICIPATING AGENCIES OR THEIR USERS OR ANY SUBSEQUENT USER UNDER ANY CIRc*msTANCES FOR INCIDENTAL,SPECIAL OR CONSEQUENTIAL DAMAGES OR DAMAGES ALLEGED TO HAVE ARISEN DUE TO AN INTERRUPTION OF SERVICE OR DAMAGE TO ANY FIBER OPTIC CABLE OR ASSOCIATED EQUIPMENT.
H. INDEMNIFICATION
The Facility Owners and Participating Agencies shall indemnify and save harmless the Lead Agency, its officers, employees, and agents from all claims, actions, liability, and damages of any nature arising out of any act or omission, except in the eventof gross negligence or willful misconduct by the Lead Agency in connection with this Agreement.
If any claim arises to which this indemnification provision may be applicable, the Facility Owner shall immediately upon learning of such claim, notify the Lead Agency, and upon such notice, the Lead Agency shall promptly notify the ParticipatingAgencies. The Participating Agencies may, at their option, settle or compromise such claim. In no event shall the Facility Owner or Lead Agency have the right to pay, settle or otherwise compromise such claim without the prior written consent of theParticipating Agencies who shall not unreasonably withhold such consent.
IV. RELATIONSHIP WITH FACILITY OWNERS
A. PRINCIPLES FOR USE OF CITY OF SEATTLE FACILITIES
Seattle Facilities may be used for fiber sharing projects consistent with principles adopted by the Seattle City Council in Resolution 29076.
1. Facilities, such as utility poles and Utilidors, which are currently available for use by non-City entities shall comply with all requirements of the City agency which owns them. Use of a Facility shall be engineered to maximize the reasonableadditional future use of such Facility, e. g., guy wire to facilitate future colashing. The project cost shall include all fees and charges for the use of the Facility.
2. The General Terms and Conditions do not authorize use of any other City of Seattle Facilities such as conduit, ducts and vaults unless such use is (( specifically
3. Shared fiber projects which utilize City poles and Utilidors shall be (( limited)) only )) shall be used for governmental and public educational purposes only.))
4. Use of Overhead Transmission Facilities is not authorized in a Fiber Optic Project Agreement unless specifically authorized by the City Council and a specific Addendum is attached hereto.
5. The Facility Owner has final approval of planning, engineering, design, material, and maintenance for all portions of a Fiber Optic Project on or within its Facilities.
B. APPROVALS
All contractors hired by the Lead Agency to work within or on Facilities shall be subject to approval by Facility Owners. In all agreements with contractors, the Facility Owner(s) may require the Lead Agency to require such contractors to attend apre-construction meeting with the appropriate authority to review installation requirements and Work restrictions prior to any Work being performed in or on Facilities. The contractor's agreement shall state that the Facility Owner or the jurisdictionhaving rights-of-way has authority to stop Work or require that inadequate Work be corrected.
C. ACKNOWLEDGMENT AND ACCEPTANCE OF RISKS
1. Co-location
In choosing to co-locate any components of a Fiber Optic Project in Facilities, the Participating Agencies acknowledge and accept all risks, such as the possibility of electrical fires that may damage components of a Fiber Optic Project, that areassociated with having components of the Fiber Optic Project co-located with such Facilities. Participating Agencies explicitly understand that these risks include bearing all costs, except such costs caused by the gross negligence or willfulmisconduct of the Facility Owner, including but not limited to: provision of alternate communication paths needed by the Participating Agencies, loss of Participating Agency business and restoration of their fiber systems if they are damaged.
2. Easem*nts
Participating Agencies acknowledge that existing easem*nts may not be warranted for this purpose.
3. Right of Entry Agreements
Participating Agencies specifically acknowledge the risks associated with use of Facilities where entry is based on right of entry agreements negotiated for the Fiber Optic Project.
D. ACCESS TO AND USE OF FACILITIES
The Lead Agency shall obtain access to and use of Facilities from Facility Owners for the purpose of installing, maintaining and repairing components of the Fiber Optic Project, subject to Facility availability as determined by the Facility Manager, andany and all conditions specified by the Facility Owner.
E. BUILDING ENTRANCES
In the event that a Building Entrance owned or controlled by one of the Participating Agencies is not usable for either entering a building or for providing access to the location in a building where the Participating Agencies have installed Fiber OpticProject components, the Lead Agency has the responsibility for making alternative arrangements for building access with a building owner. The expense associated with an alternative Building Entrance shall be borne by the Participating Agenciesutilizing the building.
F. MODIFICATIONS TO FACILITIES
At the Lead Agency's request, the Facility Owner may make modifications to Facilities to facilitate building access for the Fiber Optic Project. Any requests by the Lead Agency for such modifications shall be made to the Facility Manager. Costs forsuch modifications shall be paid by the Lead Agency and reimbursed by the Participating Agencies utilizing such Facilities.
All modifications to Facilities shall be subject to the review and approval by the Facility Owner and Participating Agencies during design and construction. If the Lead Agency is responsible for the construction of the Fiber Optic Project subject tothis Agreement, any unauthorized modifications must be corrected subject to Section III.E at the expense of the Lead Agency.
G. RELOCATION OF FIBER OPTIC CABLE
The Lead Agency will work with the Facility Owner to make a good faith effort to ensure that the Fiber Optic Cable utilizing Facilities is routed in such a manner as to minimize the likelihood of future relocation. However, upon notice from theFacility Owner that relocation is required, the Lead Agency shall work with the Facility Owner to ensure timely relocation of such Fiber Optic Cable. The Facility Owner has the right of pre-approval and post-construction acceptance of any work requiredeither to remove cable from Facilities or to place cable in alternative Facilities.
1. Notice
Except for emergency situations, the Facility Owner will give the Lead Agency at least one hundred twenty (120) days notice to relocate any components of the Fiber Optic Project located within or on Facilities.
2. Relocation
When relocation is required, the Facility Owner may, when possible, provide substitute Facilities within or on which the Participating Agencies may relocate the Fiber Optic Cable.
H. PAYMENT TO FACILITY OWNERS
1. Reimbursem*nts
The Facility Owner shall submit invoices to the Lead Agency during the progress of the Work for reimbursem*nt for Work completed to date.
a. For Performance of Work
The Lead Agency shall reimburse Facility Owner(s) for all costs incurred by the Facility Owner(s) in the performance of Work necessary for the installation and operation of the Fiber Optic Project. In addition to reimbursem*nt for direct costs of laborand materials incurred in the performance of Work necessary for the installation and operation of the Fiber Optic Project, the Facility Owner(s) shall be reimbursed by the Lead Agency for Indirect Costs as may be called for in the agreement for use ofFacilities between the Lead Agency and the Facility Owner.
b. For Relocation
The Lead Agency shall reimburse Facility Owner(s) for all direct and verifiable costs associated with any relocation unless the costs of relocation of any cables of the Fiber Optic Project located within or on Facilities are borne by a third Party. Inaddition to reimbursem*nt for direct costs of labor and materials incurred for such relocations, Facility Owner(s) shall be reimbursed by the Lead Agency for Indirect Costs as may be called for in the agreement for use of Facilities between the LeadAgency and the Facility Owner.
2. Annual Facility Use Payment
By December 31 of each year, the Facility Owner will submit to the Lead Agency a bill and supporting documentation for the annual payment for Facilities utilized by the Fiber Optic Project as of that year. Fees shall commence on the effective date ofthe document authorizing use.
3. Payment
Invoices shall be submitted by the Facility Owner to the Lead Agency.
All amounts due to the Facility Owner under this Agreement shall be paid by the Lead Agency within sixty (60) days of the date of the invoice from the Facility Owner. The Facility Owner may elect to assess an interest fee of 0.033% for each day paymentis late, and may consider the Participating Agencies in default if any amount is not paid to the Facility Owner by the due date.
4. Disputed Payments
If a dispute arises as to any funds due to the Facility Owner under the terms of this Agreement, the Participating Agencies shall pay the disputed amount into an escrow account pending the outcome of the dispute. The Participating Agencies may agree toallocate interest; if no such agreement can be reached, the interest will accrue to the benefit of the substantially prevailing party.
I. LIMITATION OF LIABILITY
Facility Owners shall not be liable, in law or in equity, to the Lead Agency, Participating Agencies, or any subsequent user for any damages relating to the interruption of service or interference with the operation of the Fiber Optic Project, except tothe extent caused by the gross negligence or willful misconduct of the Facility Owner. THE FACILITY OWNER SHALL NOT BE LIABLE TO THE PARTICIPATING AGENCIES OR THEIR USERS OR ANY SUBSEQUENT USER UNDER ANY CIRc*msTANCES FOR INCIDENTAL, SPECIAL ORCONSEQUENTIAL DAMAGES OR DAMAGES ALLEGED TO HAVE ARISEN DUE TO AN INTERRUPTION OF SERVICE OR DAMAGE TO ANY FIBER OPTIC CABLE OR ASSOCIATED EQUIPMENT.
J. RIGHTS OF PROPERTY
Nothing in the General Terms and Conditions, Exhibits and/or Addenda shall be construed to convey to the Participating Agencies any property rights in Facilities. Nothing in the General Terms and Conditions, Exhibits and/or Addenda shall be construedto compel a Facility Owner to maintain any of its Facilities for a period longer than is necessary for its own service requirements. In the event that Facilities are abandoned by the Facility Owner, the Participating Agencies may remain in suchFacilities at their own risk, subject to the approval of the Facility Owner.
K. INDEMNIFICATION
Except as limited below, the Lead Agency and Participating Agencies shall indemnify and save harmless Facility Owners, their officers, employees, and agents from all claims, actions, liability, and damages of any nature arising out of any act oromission, except in the event there has been gross negligence or willful misconduct by the Facility Owner in connection with this Agreement.
If any claim arises to which this indemnification provision may be applicable, the Facility Owner shall immediately upon learning of such claim, notify the Lead Agency, and upon such notice, the Lead Agency shall promptly notify the ParticipatingAgencies. The Participating Agencies may, at their option, settle or compromise such claim. In no event shall the Facility Owner or Lead Agency have the right to pay, settle or otherwise compromise such claim without the prior written consent of theParticipating Agencies who shall not unreasonably withhold such consent.
L. DEFAULT
Any of the following circ*mstances shall be considered an event of default, and based upon such default, the Facility Owner may, by written Notice of Termination (Section VI.E. -Termination) to the Participating Agencies, suspend or terminate itsAgreement with the Lead Agency effective as of the date specified by the Facility Owner in the Notice:
1. The Lead Agency's failure to perform the Work within the time specified, or any authorized extension thereof;
2. The Lead Agency's failure to satisfactorily perform Work in conformance with the Fiber Optic Project Agreement and/or to the satisfaction of the Facility Owner;
3. In the event the Facility Owner deems that the Lead Agency's performance or failure to perform will jeopardize the integrity of its systems and/or Facilities.
Upon the Facility Owner's identification of default, the Facility Owner may elect to give written notice to the Lead Agency to correct the default. The Facility Owner shall provide immediate telephonic notice to correct the default followed by afacsimile, to the Lead Agency. The Lead Agency shall provide immediate telephonic notice, followed by a facsimile, to Participating Agencies of any notice from a Facility Owner of such default, suspension or termination. The Lead Agency shall haveseven (7) days, or such longer period after receipt of notice of default as the Facility Owner may authorize in writing, to submit to the Facility Owner a written plan for corrective action. If the Lead Agency fails to respond with a written plan forcorrective action that is mutually acceptable to the Participating Agencies or if the Lead Agency fails to adhere to the plan for corrective action, the Facility Owner may transmit the termination notice. No notice of termination for reason of defaultwill be effective without first providing the Lead Agency with such written notice of default.
Upon receipt of a notice of termination, except as otherwise directed by the Facility Owner, the Lead Agency shall cease Work under the Fiber Optic Project Agreement on the date specified in the notice and waive all claims for profits and damages causedby such cessation; provided, however, unless an emergency exists, as defined by the appropriate Facility Owner authority, that the date of termination shall not be less than ten (10) days from the date such notice of termination is received.
In the event the Facility Owner terminates a Fiber Optic Project Agreement as provided in this clause, the Facility Owner may perform Work by whatever method it may deem expedient to protect its Facilities. In such case, expenses incurred by theFacility Owner for protecting its Facilities shall be charged to, and subject to Section III.E., paid by the Lead Agency.
V. RELATIONSHIP BETWEEN LEAD AGENCY AND CONTRACTORS
A. RESPONSIBILITY
The Lead Agency is responsible for ensuring that the applicable terms and conditions of the Project Agreement, General Terms and Conditions, exhibits and addenda are included in Agreements with Facility Owners and contractors. However, each contractorshall be held liable for any negligence caused by its performance or failure to perform the work under the Project Agreement or any contracts with the Lead Agency.
B. APPROVALS
All contractors hired by the Lead Agency to work within or on Facilities shall be subject to approval by Facility Owner(s). In all agreements with contractors, the Lead Agency may require such contractors to attend a preconstruction meeting with theappropriate authority to review installation requirements and Work restrictions prior to any Work being performed in or on Facilities. The contractor's agreement shall state that the Facility Owner or the jurisdiction having rights-of-way has authorityto stop Work or require that inadequate Work be corrected.
C. INSURANCE
Prior to undertaking any work under any Fiber Optic Project Agreement, the Lead Agency shall ensure that all contractors, at no expense to the Lead Agency, Participating Agencies and Facility Owner(s), have obtained and filed with the Lead Agency,acceptable evidence of a policy or policies of insurance as enumerated below.
1. The insurance shall contain the following types of coverages and minimum dollar limits:
a. Commercial General Liability: A policy of commercial general liability insurance, written on an occurrence form, including all the usual coverage known as:
* Premises/Operations Liability
* Products/Completed Operations
* Personal/Advertising Injury
* Contractual Liability similar approbation will be forthcoming in a timely manner and will not be unreasonably withheld.
C. SUBJECT TO LAWS
All Fiber Optic Project Agreements are subject to all applicable federal, state, and local laws, and regulations, rulings and orders of governmental agencies. Any Participating Agency may terminate its obligations under a Fiber Optic Project Agreementif ordered to do so by the final order or filing of a court or other governmental agency or if such order or ruling would make it impossible for any Participating Agency to carry out its obligations under this Agreement. If required by the final orderof a court of competent jurisdiction, upon the issuance of such order stating that the rights of use or access to an Owner's Facilities is unlawful, the Lead Agency shall immediately terminate work associated with the use or access and the Lead Agencyshall remove all violating appurtenances. In addition, if at any time during the term of this Agreement, the action of a governmental agency requires modification of terms and conditions of the Agreement in order to meet legal requirements, or rendersperformance by any Participating Agency unreasonable, the Participating Agencies will enter into negotiations to achieve an equitable adjustment of any increased costs or liabilities incurred by any Party as a result of such required modification. Thepreceding section shall not apply to a court order determining that the Participating Agencies' use violates a private easem*nt.
Facility Owners have no actual knowledge of any restriction in their agreements with third parties which would prohibit the Participating Agencies' use of Facilities as contemplated herein. The Participating Agencies recognize that the Facility Ownershave done no special searches or investigations with respect to restrictions in their agreements with third parties that may affect the use of Facilities as contemplated by the Fiber Optic Project Agreement.
D. TERM
Fiber Optic Project Agreements shall become effective upon the execution of all Participating Agencies, and unless terminated in accordance with the provisions of Article VI.E Termination, shall continue up to a term of twenty (20) years.
One year prior to the expiration of this twenty-year period, the Participating Agencies shall in good faith negotiate a renewal Agreement for an additional twenty-year period or terminate their participation according to the provisions in thisAgreement. As a starting point for negotiations of a renewal Agreement, the Participating Agencies will use the Fiber Optic Project Agreement as the framework for further negotiations. Under the terms of any renewal Agreement, the ParticipatingAgencies shall continue to make payments to Facility Owners for use of Facilities and to make other payments specified in the Fiber Optic Project Agreement.
Terms and conditions of existing Fiber Optic Project Agreements that have expired shall remain in effect until superseded by a new Agreement.
E. TERMINATION
1. For Cause
Any Participating Agency may terminate a Fiber Optic Project Agreement in the event that another fails to perform its obligations as described in this Agreement, and such failure has not been corrected to the reasonable satisfaction of the other in atimely manner after notice of breach has been provided to such other Party.
2. Notice
Notice of termination shall be given by the Participating Agency terminating the Agreement to the others not less than thirty (30) days prior to the effective date of termination.
F. FORCE MAJEURE
Any Participating Agency may suspend a Fiber Optic Project Agreement without recourse by another where performance is rendered impossible or impracticable for reasons beyond such Participating Agency's reasonable control, such as, but not limited to,acts of nature, war or warlike operations, civil commotion, riot, labor dispute including strike, walkout, or lockout, sabotage, or superior governmental regulation or control.
G. NO WAIVER
No term or provision hereof shall be deemed waived or consented to, and no breach excused unless such waiver or consent shall be in writing and signed by the Participating Agency claimed to have waived or consented.
Failure of a Participating Agency to insist upon strict performance of, or that Participating Agency's waiver of, any of the terms, conditions, or obligations of either the General Terms and Conditions or a specific Fiber Optic Project Agreement, shallnot be a waiver of any other term, condition, covenant or obligation, or of any subsequent default by breach of the same or other term, condition, covenant or obligation contained herein.
H. SEVERABILITY
In the event any section, sentence, clause, or phrase of the General Terms and Conditions or a specific Fiber Optic Project Agreement is adjudicated to be invalid or illegal by a court of last resort and of competent jurisdiction, the remainder of theGeneral Terms and Conditions or of a specific Fiber Optic Project Agreement shall be unaffected by such adjudication and all other provisions shall remain in full force and effect as though the section, clause, or phrase so adjudicated to be invalid hadnot been included herein. The Participating Agencies agree to then negotiate in good faith the replacement section, sentence, clause, or phrase which is legal and most closely represents the original intent of the Participating Agencies.
I. RIGHTS CUMULATIVE
The rights and remedies of the Participating Agencies provided for under the General Terms and Conditions or under a specific Fiber Optic Project Agreement are in addition to any other rights and remedies provided by law. The failure to exercise on anyoccasion any right shall not operate to forfeit such right on another occasion. The use of one remedy shall not exclude or waive the right to use another.
J. CONTRACTUAL RELATIONSHIP
The General Terms and Conditions do not constitute the Participating Agencies as the agent or legal representative of a Facility Owner for any purpose whatsoever. The Participating Agencies are not granted any express or implied right or authority toassume or create any obligation or responsibility on behalf of or in the name of the Facility Owner or to bind the Facility Owner in any manner or thing whatsoever.
K. HEADINGS
The titles of sections are for convenience only and do not define or limit the contents.
L. APPLICABLE LAW AND VENUE
All Agreements among the Participating Agencies shall be construed and interpreted in accordance with the laws of the State of Washington, and venue of any action brought hereunder shall be in the Superior Court for King County.
M. BINDING EFFECTS
The provisions, covenants and conditions in the General Terms and Conditions and in any specific Fiber Optic Project Agreement apply to bind the Participating Agencies, their legal heirs, representatives, successors, and assigns.
N. ASSIGNMENT
No Participating Agency or Lead Agency shall assign its rights or assign its duties under a Fiber Optic Project Agreement without the prior written consent of the other Participating Agencies, which consent shall not be unreasonably withheld.
O. NOTICES
All notices and other materials to be delivered hereunder, shall be in writing and shall be delivered or mailed to addresses as identified in the Fiber Optic Project Agreement.
P. NON-EXCLUSIVITY
This is a non-exclusive arrangement.
Q. MODIFICATION OR AMENDMENT
No modification to or amendment of the provisions of the General Terms and Conditions or of any specific Fiber Optic Project Agreement shall be effective unless in writing and signed by authorized representatives of the Participating Agencies to theFiber Optic Project Agreement. The Participating Agencies expressly reserve the right to modify any agreement, from time to time, by mutual agreement.
R. ATTORNEY FEES AND COSTS
In the event legal action is taken or commenced among the Participating Agencies hereto, declaratory or otherwise, for the enforcement of any of the covenants, terms, or conditions of this Agreement, the substantially prevailing party shall be entitledto its costs and reasonable attorney fees as determined by the trial and appellate courts.
Costs and reasonable attorney fees shall include, but not be limited to, reasonable attorney fees, paralegal and legal support staff expenses, costs of arbitration, mediation, expert witnesses, exhibits, reasonable investigations, and reimbursem*nt forall time, expense, and overhead of all substantially prevailing party personnel or consultants assisting in the legal action or responding to or investigating a claim or demand.
S. ARBITRATION/MEDIATION
If a dispute arises out of or relates to this Agreement, or the breach thereof, and if said dispute cannot be settled through direct discussions, the Lead Agency, Facility Owner or Participating Agencies agree to first endeavor to settle the dispute inan amicable manner by mediation, before resorting to arbitration. Thereafter, any unresolved controversy or claim arising out of or relating to this Agreement, or breach thereof, shall be settled by arbitration, and judgment upon the award rendered bythe arbitrator may be entered in any court having jurisdiction thereof. Nothing in this paragraph precludes any Lead Agency, Facility Owner or Participating Agency from seeking relief from King County Superior Court should mediation or arbitrationefforts be unsuccessful.
EXHIBIT A
CITY OF SEATTLE FACILITIES
I. GENERAL CONDITIONS FOR ACCESS TO AND USE OF CITY FACILITIES
A. All City of Seattle Facilities
1. Permission to Enter
Access to Facilities shall be allowed only after the Facility Owner has been notified per item 2., below, and permission has been granted by the Facility Owner.
2. Requests for Access
All requests for access to Facilities must be made through the appropriate City Facility Manager or designee in writing (facsimile acceptable), and shall be subject to the restrictions and conditions in this Agreement.
In the event of an emergency, requests for access may be made in person or by telephone. In such cases, prompt written documentation of the request will follow.
3. City Buildings
If the Lead Agency desires to utilize space in any City building, the Lead Agency shall comply with the restrictions and conditions specified by the designated building manager.
4. Conformance to Regulations
Access to and use of any Facility shall be in conformance with all codes, regulations and requirements.
5. Acknowledgment and Acceptance of Risks
In choosing to co-locate any components of a Fiber Optic Project with City Facilities, the Participating Agencies acknowledge and accept all risks, including but not limited to excessive heat or fires that may damage components of the Fiber OpticProject that are associated with having components of the Fiber Optic Project co-located with City Facilities.
B. City Department Facilities, Other than City Light
1. Priority Protection
The Lead Agency shall make the protection of the telecommunications, traffic control and street-lighting Facilities the highest priority when working in City Department Facilities or in proximity to City Department Facilities where such proximity coulddirectly affect the functioning of the Facilities. The Participating Agencies will not through their action or knowing inaction compromise such protection.
2. Priority Restoration
Restoration of telecommunications, traffic control, and street-lighting services shall be given the highest priority in the event that any of these services and the Participating Agencies' telecommunication services are interrupted at the same time,unless otherwise agreed to by the City and the Participating Agencies at the time of restoration. In the event of an outage, the City shall promptly work to restore the functionality of the Fiber Optic Cable as soon as reasonably possible and practicalafter restoration of any such necessary City services. The City shall not cut or otherwise damage Fiber Optic Cable unless absolutely necessary for the safe and prompt restoration of telecommunications, traffic control and street lighting systems.
3. Underground Facilities
Use of Underground Facilities is not authorized in a Fiber Optic Project Agreement unless such use is specifically authorized by the Seattle City Council pursuant to the Addendum Authorizing Use of City of Seattle Underground or TransmissionFacilities.
II. PROCEDURES FOR CITY OF SEATTLE FACILITIES
A. Engineering, Design, and Maintenance
Upon execution of a Fiber Optic Project Agreement, the Participating Agencies and Facility Owners shall review and revise planning, engineering, design, installation, and maintenance procedures for the Fiber Optic Project. The procedures will besubject to the approval of the Facility Owners.
B. Access
1. The Lead Agency shall notify the appropriate City Department at least two (2) working days before access to any City Department facility is desired. The affected City Department will respond to requests for access from the Lead Agency at leasttwenty-four (24) hours prior to the requested start time, indicating whether access has been granted as requested, access has been delayed or access has been denied.
2. The City shall make every effort to provide access to Facilities during the times requested by the Lead Agency. However, the City may not be able to accommodate all requests, and the Lead Agency will need to plan accordingly.
3. All access to City Facilities by the Lead Agency or its contractors must be coordinated with the appropriate authority staff designated by the City's Facility Manager(s). The Lead Agency and its contractors must comply with whatever conditionsfor access to City Facilities that are specified by designated Facility Managers.
C. Project Control
City staff shall be authorized to stop Work on installation that is being conducted by the Lead Agency and its contractors on the Fiber Optic Project if City staff determine that the Work in question would or could potentially cause electrical hazardsto workers or problems with the electrical system, telecommunications, traffic control or street-lighting systems. Such problems include, but are not limited to future City Work, present crowded conditions, future load growth on the City Light system,and the specification or installation of nonstandard equipment, materials and/or supplies by the Lead Agency.
III. ANNUAL PAYMENT TO THE CITY FOR USE OF FACILITIES
On an annual basis, the Lead Agency shall make an annual use payment to the Facility Owner. Regardless of the Ownership of Fiber Optic Cable, the Lead Agency shall pay the Facility Owner for the use of Facilities in or on which Fiber Optic Cable hasbeen installed by or on behalf of the Participating Agencies pursuant to a Fiber Optic Project Agreement.
Charges for Maintenance Hole, Handhole, Vault and Duct/Conduit occupancy shall be established by applicable City rate ordinance.
EXHIBIT B
SEATTLE CITY LIGHT FACILITIES
I. GENERAL CONDITIONS
Seattle City Light reserves the right to determine if work in or on its Facilities may be performed by contractors. All contractors hired by the Lead Agency to work within or on Seattle City Light Facilities shall be subject to approval by Seattle CityLight. In all agreements with contractors, the Lead Agency may require such contractors to attend a pre-construction meeting with the Seattle City Light to review installation requirements and Work restrictions prior to any Work being performed in oron Facilities. The contractor's agreement shall state that Seattle City Light has authority to stop Work or require that inadequate Work be corrected.
A. Priority Protection of the City's Electrical System
The Lead Agency shall make the protection of the City's electrical power system the highest priority when working in Seattle City Light Facilities or in proximity to Seattle City Light Facilities. The Lead Agency will not through his/her action orknowing inaction compromise such protection.
B. Priority Restoration
The restoration of electrical service shall have the highest priority in the event that both Seattle City Light's electrical system and the Participating Agencies' telecommunications services are interrupted, unless otherwise agreed to by City Light andParticipating Agencies at the time of restoration. In the event of an outage, Seattle City Light shall expeditiously work to restore the functionality of the Fiber Optic Cable as soon as reasonably possible and practical after restoration of allnecessary electrical service. Seattle City Light shall not cut or otherwise damage the Fiber Optic Cable unless absolutely necessary for the safe and prompt restoration of electrical service.
II. REQUIREMENTS FOR USE OF FACILITIES
A. Overhead Transmission Facilities
Use of Overhead Transmission Facilities is not authorized in this Fiber Optic Project Agreement unless such use is specifically authorized by the Seattle City Council pursuant to the Addendum Authorizing Use of City of Seattle Underground orTransmission Facilities.
B. Overhead Distribution Facilities
1. The Participating Agencies shall be subject to restrictions that are specified in any applicable franchise, easem*nt, and right-of-way agreements that City Light has with any entity located within or outside of the Seattle City Light ServiceArea.
2. The Lead Agency shall conduct at its own expense, whatever analyses Seattle City Light deems necessary to determine whether any modifications need to be made to its Overhead Distribution Facilities before Fiber Optic Cable can be safely attachedto these Facilities.
3. The Lead Agency shall install Fiber Optic Cable Splices in accordance with industry standards.
4. The Lead Agency shall comply with Seattle City Light's Pole Attachment Policy (DPP 500 P III-804) and shall complete a Master Pole Attachment Agreement.
C. Underground Facilities
Use of Underground Facilities is not authorized in this Fiber Optic Project Agreement unless such use is specifically authorized by the Seattle City Council pursuant to the Addendum Authorizing Use of City Of Seattle Underground or TransmissionFacilities.
Charges for Maintenance Hole, Handhole, Vault, and Duct/Conduit occupancy shall be established by applicable City rate ordinance.
D. Substations
Where the Lead Agency terminates Overhead Optical Ground Wire in Substations, such terminations shall be on Dead-end Towers unless otherwise authorized in writing by Seattle City Light.
III. PROCEDURES FOR SEATTLE CITY LIGHT FACILITIES
A. Engineering, Design, and Maintenance
Upon execution of a Fiber Optic Project Agreement, the Participating Agencies and Seattle City Light shall review and revise planning, engineering, design (includes material specifications), installation, and maintenance procedures for the Fiber OpticProject. The procedures will be subject to the approval of Seattle City Light. All materials used must be approved by Seattle City Light prior to installation.
B. Access
1. The Lead Agency shall notify Seattle City Light at least two (2) working days before access to any Seattle City Light facility is desired. City Light will respond to requests for access from the Lead Agency at least twenty-four (24) hours priorto the requested start time, indicating whether access has been granted as requested, access has been delayed or access has been denied.
2. Seattle City Light shall make every effort to provide access to Facilities during the times requested by the Lead Agency. However, Seattle City Light may not be able to accommodate all requests, and the Lead Agency will need to planaccordingly.
3. All access to Seattle City Light Facilities by the Lead Agency or its contractors must be coordinated with the appropriate authority designated by Seattle City Light's Facility Manager(s). The Lead Agency and its contractors must comply with theconditions for access to Seattle City Light Facilities that are specified by designated Facility Managers.
4. All installations within or on Seattle City Light Facilities by the Lead Agency, Participating Agencies or their contractors may require the presence of a Safety Observer. A Seattle City Light Safety Observer shall be used whenever a LeadAgency, Participating Agency or their contractors will perform Work:
a. In a substation or switchyard;
b. Intermittently in an energized Vault, Maintenance Hole or Handhole (NOTE: Intermittent work is performed in segments lasting only one month or less.); or
c. Installing duct, Vaults, Maintenance Holes or Handholes intermittently in the vicinity of energized underground cable (two (2) feet on either side of "marked for locate" conductors).
At Seattle City Light's option, the Lead Agency, Participating Agencies or their contractors may be allowed to supply their own qualified (as defined in the Seattle City Light Safety Observer Policy) electrical Safety Observers for continuous work onlyin (b) or (c).
C. Project Control
Seattle City Light staff shall be authorized to stop Work on installation that is being conducted by the Lead Agency and its contractors on the Fiber Optic Project if Seattle City Light determines that the Work in question would or could potentiallycause electrical hazards to workers or problems with the electrical system, telecommunications, traffic control or street-lighting systems. Such problems include, but are not limited to future City Light Work, present crowded conditions, future loadgrowth on the Seattle City Light system, and the specification or installation of non-standard equipment, materials and/or supplies by the Lead Agency.
IV. INSTALLATION STANDARDS FOR SEATTLE CITY LIGHT FACILITIES
All installations within or on Seattle City Light Facilities by the Lead Agency, Participating Agencies, or their contractors require the presence of a Safety Observer.
A. Substation
1. Any Optical Ground Wire or self-supporting aerial installed by the Participating Agencies which terminates in Substations shall be terminated on dead-end towers. Only clamps designed for optical ground wire shall be used. Optical ground wireshall be routed down a leg of the dead-end structure and supported as designated by the Seattle City Light Engineering Services Division. Fiber termination shall be in a Splice box mounted on the dead-end tower as specified by the Seattle City LightEngineering Services Division. Conduit shall be installed up to the Splice box to permit routing of a connecting cable between the Splice box and the Substation control building.
2. Any of the Participating Agencies' Fiber Optic Cable in Seattle City Light Substations shall be terminated on connectorized patch panels. Patch panels and electronic equipment shall be located on existing communication racks, or on newcommunication racks as specified by the Seattle City Light Engineering Services Division. Routing of the Participating Agencies' Fiber Optic Cables into and within Seattle City Light substations shall be as directed by the Seattle City LightEngineering Services Division.
B. Overhead Distribution Facilities
In addition to the provisions of the Master Pole Attachment Agreement, the following requirements shall apply to all such installations:
1. Climbing space. The "back", hereinafter defined, of the pole shall be kept clear for climbing space and shall not rotate around pole from quadrant to quadrant. The back of the pole shall mean the side opposite the "setting gain" or "brand"which is on the face of the pole 10 feet (Telecommunications Company set) or 12 feet (City Light Department set) from the butt end of the pole. The back of the pole shall also mean the convex side of the pole which has a natural sweep or curve from endto end.
2. Service drops shall not be permitted in the climbing space, and drops shall not be installed just beyond this space. A 36" space rather than a 24" space along the lead shall also be required. (Refer to Table 10, Section 236, State of WashingtonElectrical Construction Code.)
3. The vertical height of installations is to be determined from ground level rather than from the existing power secondary as the secondary is subject to relocation.
4. Non-metallic Conduit, PVC or equal, shall be required for vertical risers attached to the pole above telephone or other attachments.
5. Conduits on poles shall not be located in the climbing space. In case of questions concerning the location of a Conduit, City Light Department, upon request, will make a field determination.
6. The Lead Agency shall also conform to all future and to any existing installation rules, regulations or requirements that may be promulgated in writing to the Participating Agencies by Seattle City Light.
C. Requirement to Relocate Facilities, Other than Overhead
Notwithstanding any provision in this Agreement, Seattle City Light Department may require that Participating Agencies' Fiber Optic Project facilities be relocated or removed from City Light Department facilities. If, following notification (consistentwith Section IV.G.1.) to relocate or vacate, the Participating Agencies fail to relocate or remove their facilities in a timely manner, Seattle City Light may enforce one or more of the following options:
1. Seattle City Light may require the Participating Agencies to construct, or have constructed, alternate facilities such as vaults, maintenance holes, ducts, and conduits for Seattle City Light's use in lieu of relocating their facilities.
2. Seattle City Light may impose a fee of twothousand dollars ($2,000) per day for each day that the Participating Agencies' Fiber Optic Facilities remain in place after the date specified in the Facility Owner's request to relocate/remove.
3. Seattle City Light may assume ownership of the Participating Agencies' Fiber Optic Facilities.
4. Seattle City Light may remove the Participating Agencies' Fiber Optic Facilities and charge the costs, including direct and indirect costs, to the Participating Agencies.
ADDENDUM 1:
AUTHORIZING USE OF CITY OF SEATTLE
UNDERGROUND OR TRANSMISSION FACILITIES
This addendum to the General Terms and Conditions provides for the use of The City of Seattle's Underground Facilities, including conduit, ducts, etc.
The following material shall be added to Section IV.D of the General Terms and Conditions:
Any placement of fiber in Seattle City Light Underground Facilities must comply with all provisions of City Light Policies and Procedures for Duct/Vault Use.
The following material shall be added to Section IV.H of the General Terms and Conditions:
H. PAYMENT TO FACILITY OWNERS
1. c. For a Portion of the Cost of Duct, Maintenance Hole and Vault Upgrades and Changes
The Lead Agency shall reimburse Facility Owners for their respective share of the cost of upgrading Ducts, Maintenance Hole and Vaults that contain components of the Fiber Optic Project. In addition to reimbursem*nt for direct costs of labor andmaterials incurred in the maintenance of the Fiber Optic Project, the Facility Owner shall be reimbursed by the Lead Agency for Indirect Costs.
The following material shall replace section I.B.3 of Exhibit A to the General Terms and Conditions:
I. B. 3. Underground Facilities, Other than Seattle City Light
a. The appropriate City Department shall have complete authority over duct assignment to the Lead Agency.
b. The Lead Agency shall install, if not already installed, inner duct in all Seattle City Department Conduit under the following conditions:
i. Any Conduit utilized by the Lead Agency must be filled with inner duct to the maximum extent feasible, up to a maximum of four one-inch inner ducts.
ii. An inner duct must be installed in any Conduit utilized by the Lead Agency and shall become the property of that City Department.
iii. The appropriate City Department must approve in writing both the type and the color of any inner duct installed by the Lead Agency.
iv. All inner duct that is installed must have pull strings, unless the inner duct has Fiber Optic Cable(s) in it.
c. Splices, loops, coils or fiber termination equipment shall not be placed in City Underground Facilities or in Building Vaults unless authorized by the appropriate City Department. Penetrations of Building Vault walls must be done in accordancewith applicable fire codes and standard construction practices.
The following material shall be added to Exhibit B to the General Terms and Conditions:
Fiber Optic Cable Composition
The Lead Agency shall install only readily available Dielectric Cable within or on underground Facilities. All Fiber Optic Cable to be installed shall be approved by Seattle City Light prior to installation in Seattle City Light Facilities. Cableinstalled without this approval shall be removed by the Participating Agencies upon request from Seattle City Light. Optical Ground Wire, self-supporting cable or messenger-supported cable may be used on Overhead Transmission Facilities and OverheadDistribution Facilities as mutually determined by the Participating Agencies and the City.
Underground Facilities
Seattle City Light shall have complete authority over duct assignments, racking and placement of cables in maintenance holes, vaults and handholes. The Lead Agency shall comply with any such assignments and placement direction. Ownership of SeattleCity Light Underground Facilities containing any Fiber Optic Project materials shall remain with Seattle City Light.
The Lead Agency shall install, if not already installed, inner duct in all Seattle City Light conduit in which the Participating Agencies install Fiber Optic Cable subject to the following conditions:
a. Any Conduit utilized by the Lead Agency must be filled with inner duct to the maximum extent feasible, up to a maximum of four one-inch inner ducts.
b. An inner duct must be installed in any Conduit utilized by the Lead Agency.
c. Seattle City Light must approve in writing both the type and the color of any inner duct prior to installation by the Lead Agency.
d. All inner duct that is installed must have pull strings, unless the inner duct has Fiber Optic Cable(s) in it. All inner duct installed shall become the property of Seattle City Light.
Splices, loops, coils or fiber termination equipment shall not be placed in City Light Department Underground Facilities or in Building Vaults. Penetrations of Building Vault walls must be done in accordance with applicable fire codes and standardconstruction practices.
Backup Facilities
In recognition of the critical nature of the telecommunications services to be provided via the Fiber Optic Projects being constructed and used under this Agreement, the Participating Agencies shall attach to each Project Agreement writtenbackup/alternative communication plans that will be used by the Participating Agencies in the case of Fiber Optic system failure, relocation requests or service interruptions or any other reason that arise from being co-located with Seattle City Lightfacilities.
ADDENDUM 2:
SPECIAL TERMS AND CONDITIONS FOR AGREEMENTS WITH THE
UNITED STATES GOVERNMENT
This Addendum modifies the Revised General Terms and Conditions for Sharing of Fiber Optic Projects ("General Terms") in which the United States Government, by and through the General Services Administration (hereafter referred to as GSA), is either aFacility Owner, Lead Agency or Participating Agency. The modifications are necessary due to the special requirements of federal statutes or federal administrative policies. Unless otherwise noted, these modifications override the General Terms.
All parties to a fiber optic project in which GSA is either a Facility Owner, Lead Agency or Participating Agency shall agree to these modifications in their entirety.
I. The following paragraph will supplement the provisions of Section II, Relationships Among Participating Agencies, Paragraph B., Principles:
3. The GSA, as an agency of the United States government, intends to participate in the fiber optic project to the fullest extent practicable. As such, if and when additional moneys are necessary, beyond those agreed to at the start of each project,the United States government intends to pay such prorated share of these additional expenses, calculated in accordance with this agreement. The request for additional moneys will be presented to the United States government in the form of a 'claim' asdescribed in the attached Federal Acquisition Regulations (FAR), Clause 52.233-1, Disputes. The term "Contractor" referred to in the text of the attached FAR would either be the Facility Owner or the Lead Agency or both, whichever is applicable.
II. The following paragraph will supplement the provisions of Section II, Relationships Among Participating Agencies, Paragraph I., Taxes:
The GSA, as an agency of the United States government, is exempt from the payment of any federal, state or local taxes. As part of any fiber project, the Facility Owner, Lead Agency or Participating Agencies agree not to assess the GSA for any federal,state or local taxes.
III. The following paragraph will supplement the provisions of Section II, Relationships Among Participating Agencies, Paragraph J., Payments:
The GSA, as an agency of the United States government, will make payments in accordance with the Prompt Payment Act, Public Law 31 USC 3901 as amended. Payments for services under this agreement will be made by the United States Government only inarrears.
IV. The following paragraph will replace the provisions of Section III, Relationships Among Participating Agencies and the Lead Agency, Paragraph H., Indemnification as follows:
H. Save Harmless
Except as limited below, the Facility Owners and Participating Agencies shall save harmless the Lead Agency, its officers, employees, and agents from all claims, actions, liability, and damages of any nature arising out of any act or omission, except inthe event that there has been gross negligence or willful misconduct by the Lead Agency in connection with this Agreement.
If any claim arises to which this provision may be applicable, the Facility Owner shall, immediately upon learning of such claim, notify the Lead Agency, and upon such notice, the Lead Agency shall promptly notify the Participating Agencies. TheParticipating Agencies may, at their option, settle or compromise such claim. In no event shall the Facility Owner or Lead Agency have the right to pay, settle or otherwise compromise such claim without the prior written consent of the ParticipatingAgencies, who shall not unreasonably withhold such consent.
The United States Government cannot indemnify another entity or agency for any reason (Antideficiency Act, 31 U.S.C. 1341, Adequacy of Appropriations, 41 U.S.C. 11). The resolution of any claims against the United States Government under this Agreementwill be done in accordance with the Contract Disputes Act of 1978, Public Law 41 USC 601-613, as amended.
V. The following paragraph will replace the provisions of Section IV, Relationship With Facility Owners, Paragraph K., Indemnification as follows:
K. Save Harmless
Except as limited below, the Lead Agency and Participating Agencies shall save harmless the Facility Owner, its officers, employees, and agents from all claims, actions, liability, and damages of any nature arising out of any act or omission, except inthe event that there has been gross negligence or willful misconduct by the Facility Owner in connection with this Agreement.
If any claim arises to which this provision may be applicable, the Facility Owner shall, immediately upon learning of such claim, notify the Lead Agency, and upon such notice, the Lead Agency shall promptly notify the Participating Agencies. TheParticipating Agencies may, at their option, settle or compromise such claim. In no event shall the Facility Owner or Lead Agency have the right to pay, settle or otherwise compromise such claim without the prior written consent of the ParticipatingAgencies, who shall not unreasonably withhold such consent.
The United States Government cannot indemnify another entity or agency for any reason (Antideficiency Act, 31 U.S.C. 1341, Adequacy of Appropriations, 41 U.S.C. 11). The resolution of any claims against the United States Government under this Agreementwill be done in accordance with the Contract Disputes Act of 1978, Public Law 41 USC 601-613, as amended.
VI. The following paragraph will replace the provisions of Section VI, Additional Terms and Conditions Applicable to all Fiber Optic Project Agreements, Paragraph D., Term:
Fiber Optic Project Agreements shall become effective upon the execution of all Participating Agencies, and unless terminated in accordance with the provisions of Article VI. E Termination, shall continue in effect for a term of ten (10) years.
One year prior to the expiration of this ten year period, the Participating Agencies shall in good faith negotiate a new Agreement for a ten (10) year period. As a starting point for negotiations of an Agreement, the Participating Agencies will use theFiber Optic Project Agreement as the framework for further negotiations. Under the terms of any Agreement, the Participating Agencies shall continue to make payments to Facility Owners for use of Facilities and to make other payments specified in theFiber Optic Project Agreement.
VII. The following paragraph will supplement the provisions of Section VI, Additional Terms and Conditions Applicable to all Fiber Optic Project Agreements, Paragraph E., Termination:
3. The GSA, as an agency of the United States government, has the right to terminate this Agreement, in whole or in part, in accordance with the attached Federal Acquisition Regulation (FAR), Clause 52.249-6, Termination (Cost Reimbursem*nt). Theterm "Contractor" referred to in the text of the attached FAR would either be the Facility Owner or the Lead Agency or both, whichever is applicable.
VIII. The following paragraph will replace the provisions of Section VI, Additional Terms and Conditions Applicable to all Fiber Optic Project Agreements, Paragraph L., Applicable Law and Venue:
All agreements among the Participating Agencies shall be construed and interpreted in accordance with the laws of the United States of America and the laws of the State of Washington. The venue of any action brought hereunder shall be in the UnitedStates Federal District Court, Western District of Washington at Seattle.
IX. The following paragraph supplements the provisions of Section VI, Additional Terms and Conditions Applicable to all Fiber Optic Project Agreements, Paragraph S., Arbitration/Mediation:
Any dispute arising under this Agreement will be subject to the Contract Disputes Act of 1978, Public Law 41 U.S.C. 601-613. During the pendency of a dispute, the parties shall not be excused from performance of this Agreement.
DoIT Excess Fiber ATT 1 March 13, 2012 V.4
