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CC AGR 04-072 e e ~ Northshore School District Office of Superintendent Ms. JoAnne Trudel City Clerk City of Bothell 18305101st Avenue NE Bothell, W A 98011 RECE\\IEO l~\-\ , % '1.00S C~ c\el\<.BO~~\~n CitY 0\ Ou' Administrative Center 3330 Monte Villa Parkway Bothell, WA 98021-8972 Phone: (425) 489-6353 Fax: (425) 489-6005 www.nsd.org January 12, 2005 Re: WAN Franchise Acceptance Dear Ms. Trudel: Regarding the Bothell City Council Ordinance No. 1937, granting the Northshore School District No. 417 (the "District") a franchise to construct, maintain, operate, replace, and repair a wide area network of fiber optic cables within the public ways of the City ("WAN Franchise"), the Board of Directors of the Northshore School District took action to accept without condition the WAN Franchise at it's meeting on January 11,2005. Please contact Mr. Mike Cullum at (425) 489-6322 if you have any questions. Sincerely, 9f~ c. ~) Karen A. Forys, Ph.D. Superintendent C: City of Bothell, Director of Public Works City of Bothell, City Engineer Northshore School District, Mike Cullum e e ORDINANCE NO. 1937 (2004) AN ORDINANCE OF THE CITY OF BOTHEll, WASHINGTON, GRANTING TO THE NORTHSHORE SCHOOL DISTRICT #417, FOR THE RIGHT, PRIVilEGE, AUTHORITY AND NONEXCLUSIVE FRANCHISE, TO CONSTRUCT, MAINTAIN, OPERATE, REPLACE AND REPAIR A NETWORK OF FIBER OPTIC CABLES WITHIN CERTAIN DESIGNATED PUBLIC RIGHTS-OF-WAY OF THE CITY OF BOTHEll, WASHINGTON, PRESCRIBING CERTAIN RIGHTS, DUTIES, TERMS, AND CONDITIONS WITH RESPECT THERETO, AND ESTABLISHING AN EFFECTIVE DATE. WHEREAS, the Northshore School District #417 (hereinafter "NSD") is a quasi- municipal corporation authorized to construct, own and operate telecommunications facilities for certain educational and other governmental purposes; and WHEREAS, the City of Bothell, Washington ("City") is a non-charter Code city that owns and manages certain rights-of-way and performs other municipal functions; and WHEREAS, the City through Ordinance No. 1696 has adopted chapter 17.24 of the Bothell Municipal Code (BMC) (the "Public Utility Right-of-Way Placement Permit Ordinance") to regulate use of the right-of-way for certain purposes; and WHEREAS, NSD has requested that the City grant it the rights under a nonexclusive franchise to construct, maintain, operate, replace and repair a "wide area network" of fiber optic cables (hereinafter "WAN") within the public ways of the City; and WHEREAS, the City Council understands that the purpose of the WAN is for NSD to be able to link its various school facilities and other governmental facilities to allow its C:\Documents And Settings\Staff\Local Settings\Temp\12-20..o4 2nd Reading - NSD Pranchise Ord - Attachment I.Doc 1 1937 (2004) e e students and faculty, and other governmental agencies, to take advantage of the technological opportunities and conveniences that such a system would allow; and WHEREAS, the City Council has found it desirable for the welfare of the City and its residents that such rights within the public ways of the City be granted to NSD; and WHEREAS, the City Council has the authority under RCW 35A.47.040 to grant franchises for the use of its streets and other public properties; and WHEREAS, the City is willing to grant the rights requested subject certain terms and conditions, NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF BOTHELL, WASHINGTON DO ORDAIN AS FOLLOWS: Section 1. Franchise Granted. Pursuant to RCW 35A.47.040, the City hereby grants to NSD a franchise beginning on the effective date of this ordinance, set forth in Section 20 herein. This franchise shall grant NSD the right, privilege and authority to construct, maintain, operate, replace, repair, and use all necessary Facilities for a fiber- optics telecommunications network within the public Rights-of-Ways located in the City of Bothell, as approved under City permits issued pursuant to this franchise. Section 2. Non-Exclusive Franchise Grant. This franchise is granted upon the express condition that it shall not in any manner prevent the City from granting other or further franchises within said Rights-of-Ways that do not prevent NSD's use of said Rights-of-Ways. Such franchise shall in no way prevent or prohibit the City from using any of said roads, streets or other public properties or affect its jurisdiction over them or any part of them, and the City shall retain power to make all necessary changes, relocations, repairs, maintenance, establishment, improvement, dedication of same as the City may deem fit, including the dedication, establishment, maintenance, and improvement of all new Rights-of-Way, thoroughfares and other public properties of every type and description. Section 3. Definitions. For the purposes of this Franchise, the following terms, phrases, words, and abbreviations shall have the meanings specified below. a. "Communication Facilities" or "Facilities" shall mean NSD's fiber optic cables and attendant structures constructed and operated within the City's Public Way. A C:\Documents And Settings\Staff\Local Settings\Temp\12-20-04 2nd Reading - NSD Franchise Ord - Attachment l.Doc 2 1937 (2004) e e general description of the Facilities currently planned is set forth in Exhibit A, attached hereto and incorporated by this reference. b. "Public Way" shall mean the surface of, and any space above or below, any public street, highway, freeway, bridge, path, alley, court, boulevard, sidewalk, parkway, lane, drive circle, or other Public Right-of-Way, including, but not limited to, public utility easements, utility strips, or rights-of-way dedicated for compatible uses and any temporary or permanent fixtures or improvements located thereon now or hereafter held by the City. Public Way shall also mean any easement now or hereafter held by the City for the purpose of public travel, or for utility or public service use. c. "Service Area" shall mean the area within the City's corporate boundaries together with the area served by NSD, as the same may be amended from time to time. Section 4. Location of Fiber-Optics Telecommunications Network Facilities. NSD may locate its Facilities anywhere within the Service Area consistent with the City's Design and Construction Standards and subject to the City's applicable permit requirements. NSD shall not be required to amend this franchise to construct or acquire Facilities within the Service Area. Section 5. Riqht-of-Way Placement Permit. Upon receipt of NSD's complete application for a Right of Way Placement Permit for the Communication Facilities, the Public Works Director shall review and, if appropriate, issue such Permit to NSD and all provisions of the Public Utility Right-of-Way Placement Permit Ordinance shall govern actions taken by NSD pursuant to this Franchise except as expressly provided in this Franchise. The parties specifically intend that the Public Utility Right-of-Way Placement Permit Ordinance be applied to resolve matters relating to future relocated and/or undergrounding of the Facilities. In recognition of NSD's status as a quasi-municipal corporation, the limited services that NSD will provide and the limited nature of NSD's construction, the Director shall: a. Waive the performance deposit and insurance requirement of the Public Utility Right-of-Way Placement Permit Ordinance; and b. Accept an alternative instrument in satisfaction of the security deposit, device or insurance requirement of the Public Utility Right-of-Way Placement Permit Ordinance; and c. Recognize that NSD, as a quasi-municipal corporation, may indemnify the City only to the extent of NSD's own negligent actions, errors, omissions, or breach of any obligations. Section 6. Private Permissions Required. NSD acknowledges that it is responsible for obtaining permission from the owners of any poles it intends to use for the use of such poles, and that such permission is not covered by this Franchise. Section 7. Relocation of Facilities. Whenever the City determines that any local improvement district work or any construction for street or transportation purposes or C:\Documents And Settings\Staff\Local Settings\Temp\12-20-04 2nd Reading - NSD Franchise Ord - Attachment I.Doc 3 1937 (2004) e e other public improvement authorized or ordered by the City necessitates the relocation or adjustment of NSD's then existing communication facilities in the service area, NSD is responsible to relocate, adjust or move their facilities at NSD's expense. The City shall provide written notice to NSD of the need to relocate, adjust or move their communication facilities. NSD is responsible to relocate, adjust or move their facilities within ninety (90) days following receipt of such written notice from the City, unless the City and NSD agree to a different date. Section 8. Term; Termination. The initial term of this Franchise shall be for a period of ten (10) years unless sooner terminated. This Franchise shall automatically renew for one (1) additional ten (10) year term; provided, however, that either Party may notify the other of its desire to renegotiate any of the terms set forth herein or of its desire to add to or delete any such terms not later than 90 days prior to expiration of the initial term hereof or any subsequent renewal terms. If either Party makes such a request, this Franchise shall not renew unless and until the Parties reach agreement on said modification. In addition, either Party may, upon 12 months' notice, terminate the Franchise with no further obligation, except as specifically set forth herein. Section 9. NSD's MaDS and Records. After construction is complete, and as a condition of this franchise, NSD shall provide the City upon request and at no cost with copies of all as-built plans, maps, and records revealing the final location and condition of its Facilities in the Public Ways. Section 10. Modification. The City and NSD reserve the right to alter, amend or modify the terms and conditions of this Franchise upon mutual written agreement. Section 11. City Ordinances and Reoulations. Except as provided in Section 2 above, nothing in this Franchise shall be deemed to direct or restrict the City's ability to adopt and enforce all necessary and appropriate ordinances regulating the Public Ways, including any valid ordinance made in the exercise of its police powers in the interest of public safety and for the welfare of the public. The City shall have the authority at all times to control by appropriate regulations the location, elevation, manner of construction and maintenance of NSD's facilities, and NSD shall promptly conform with all such regulations, unless compliance would cause NSD to violate other requirements of law. In the event of a conflict between the provisions of this Franchise and any other ordinance(s) enacted under the City's police power authority, such other ordinance(s) shall take precedence over the provisions set forth herein. Section 12. Severabilitv. If any section, sentence, clause, or phrase of this Franchise should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause, or phrase of this Franchise unless such invalidity or unconstitutionality materially alters the right, privileges, duties, or obligations hereunder, in which event either party may request renegotiation of those remaining terms of this franchise materially affected by such court's ruling. C:\Documents And Settings\Staft\Local Settings\Temp\12-20-04 2nd Reading ~ NSD Franchise Ord - Attachment I.Doc 4 1937 (2004) e e Section 13. Assianment. Neither Party may assign its rights or obligations under this Franchise without the written approval of the other Party, which approval shall not be unreasonably withheld or delayed, except that NSD may freely assign its rights and obligations in whole or part to any other governmental entity that serves educational needs within the City or the area served by NSD. Section 14. Notice. Any notice or information required or permitted to be given to the parties under this Franchise may be sent to the following addresses unless otherwise specified: City: City of Bothell Director of Public Works 9654 NE 182nd Ave NE Bothell, WA 98011 Phone: 425-486-2768 Fax: 425-486-2489 NSD: Northshore School District #417 Technology Department 3330 Monte Villa Parkway Bothell, WA 98021 Phone: 425-489-6395 Fax: 425-489-6317 With Cooies to: City Engineer Public Works Department 9654 NE 182nd Ave NE Bothell, WA 98011 Phone: 425-486-2768 Fax: 425-486-2489 Notice shall be deemed given upon receipt in the case of personal delivery, three days after deposit in the United States Mail in the case of regular mail, or the next day in the case of overnight delivery. Section 15. Entire Aareement. This Franchise constitutes the entire understanding and agreement between the parties as to the subject matter herein and no other agreements or understandings, written or otherwise, shall be binding upon the Parties. Section 16. Attorney's Fees. If any suit or other action is instituted in connection with any controversy arising under this Franchise, the prevailing party shall be entitled to recover all of its costs and expenses including such sum as the court may judge reasonable for attorney's fees, including fees upon appeal of any judgment or ruling. Section 17. Non-waiver. Failure of either Party to declare any breach or default immediately upon the occurrence thereof, or delay in taking any action in connection therewith, shall not waive such breach or default, but each Party shall have the right to declare any such breach or default at any time. Failure of either Party to declare one breach or default does not act as a waiver of the Party's right to declare another breach or default. C:\Documents And Settings\Staff\Local Settings\Temp\12.20..()4 2nd Reading ~ NSD Franchise Ord - Attachment I.Doc 5 1937 (2004) e e Section 18. Governino LawNenue. This Franchise shall be governed by and construed in accordance with the laws of the State of Washington. The venue and jurisdiction over any dispute arising under this Franchise shall be with the King County Superior Court. Section 19. Acceptance. Within 60 days after the passage and approval of this ordinance, this Franchise may be accepted by Franchisee by its filing with the City Clerk an unconditional written acceptance thereof. Failure of the Franchisee to so accept this Franchise within said period of time shall be deemed a rejection thereof, and the rights and privileges herein granted shall, after the expiration of the 60 day period, absolutely cease and determine, unless the time period is extended by ordinance duly passed for that purpose. Section 20. Effective Date. This ordinance, being an exercise of. a power specifically delegated to the City legislative body, is not subject to referendum, and shall take effect 5 days after the passage and publication of an approved summary thereof consisting of the title. Section 21. NSD agrees to work with the City in good faith to enter a separate agreement allowing the City to utilize NSD's communication facilities for the benefit of the City's needs of communication and other governmental uses in a reasonable manner. A TTEST/AUTHENTlCA TED: ~~~~~~ CI LERK, JOANNE TRUDEL FILED WITH THE CITY CLERK: December 10, 2004 PASSED BY THE CITY COUNCIL: np~pinhpr?n ?nn" , SIGNED BY THE MAYOR: December 20. 2004 PUBLISHED: Decemhpr?4, ?OO" EFFECTIVE DATE: December 29, 2004 ORDINANCE NO.: 1937 (2004) C:\Documents And Settings\Staff\Local Settings\Temp\12.20...Q4 2nd Reading. NSD Franchise Ord - Attachment I.Doc 6 1937 (2004) e e SUMMARY OF ORDINANCE NO. lQ,7 (7004) of the City of Bothell, Washington On the 20th day of December , 2004, a majority of the entire City Council of the City of Bothell, passed Ordinance No. 1937 (2004) A summary of the content of said ordinance, consisting of the title, provides as follows: AN ORDINANCE OF THE CITY OF BOTHELL, WASHINGTON, GRANTING TO THE NORTHSHORE SCHOOL DISTRICT #417, FOR THE RIGHT, PRIVILEGE, AUTHORITY AND NONEXCLUSIVE FRANCHISE, TO CONSTRUCT, MAINTAIN, OPERATE, REPLACE AND REPAIR A NETWORK OF FIBER OPTIC CABLES WITHIN CERTAIN DESIGNATED PUBLIC RIGHTS-OF-WAY OF THE CITY OF BOTHELL, WASHINGTON, PRESCRIBING CERTAIN RIGHTS, DUTIES, TERMS, AND CONDITIONS WITH RESPECT THERETO, AND ESTABLISHING AN EFFECTIVE DATE. The full text of this Ordinance will be mailed upon request. DATED this 71ot- day of TIprpmhPr ,2004. !M~' tl~9tit JOANNE TRUDEL, CITY ERK FILED WITH THE CITY CLERK: December 10, 2004 PASSED BY THE CITY COUNCIL: December 20. 2004 PUBLISHED: December 24, 2004 EFFECTIVE DATE: ORDINANCE NO.: December 29, 2004 1937 (2004) C:\Documents And Settings\Staft\Local Settings\Temp\12-20-o4 2nd Reading. NSD Franchise Ord - Attachment 1.Doc 7 1937 (2004) . . i .- ,= . ""~~) '212THSTSE '" ~" ~'""IT ,~ -.- . . ~ < ~ ~ tur,.,.. . ~ ! - - ~ . ~ ~ t ! ! , CITY OF 80THELL E.XHIBIT A KINe COUNTY I ~~ OIlA~lI'I: 1AST./;l)ITl ~~ ~ LE(;BND .~ .Nttr'NGTa'~ .~r;r.ND.~ eWff1UCr.rrrcI(/I_ elr8nVCT.Ntl6QunJaH'l/l-JiU U/I1J6f1Q1OU/W D~ ''''''' UJnkf4 ctrT 'lUtt ,,;,/////,,'// ///;'''h'//;/ O.O'//""h'<" =~- arrUHIDU =~....... -~- -""'" ~'/I1CTUU .crnvx.ir/MS cnTUWUllroUJ' . ~ UCInMi' CI1"I'U~U .ctTTvx.i11ll.'l.l' =~....... '"n','',''''''' "//",,/1'//,,, " . 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