HomeMy WebLinkAboutOrdinance No. 20168ORDINANCE NU. Zo168
AN ORDINANCE GRANTING TO WILLIAMS CGM[MUNICATIDNS, INC.,
A NUN-EXCLUSIVE FRANCHISE TG USE THE PUBLIC 'WAY TO
CONSTRUCT AND MAINTAIN PUBLIC COMMUNICATION FACILITIES
WITHIN THE CITY OF EUGENE.
THE CITY GF EUGENE DUES ORDAIN AS FOLLOWS:
Section 1. As used in this Ordinance, the following words and phrases mean:
C.... ice: The City of Eugene, Gregor.
Cit Mana er: The City Manager of the City or his or her designee.
Communications facilities: Ail conduits and associated structures owned by
Grantee for use by Grantee in constructing, installing and maintaining a fiber optic
communication system.
Grantee: Williams Communicatians, Inc., its successors and assigns.
Public wav: The portion of the High Street right-of way located within the City,
where the Union Pacific Railroad crosses the High Street right-of way, as more specifically
shown on the diagram attached as Exhibit B hereto.
Section 2. Subject to the provisions and restrictions of this Grdinance and the Eugene Code,
1971, City grants to Grantee the non-exclusive privilege to use the public way to construct and
maintain communication facilities within the corporate limits of the City.
Section 3, It shall be Grantee's responsibility to locate and avoid all utilities located within
Crrantee's construction area, and Grantee shall be liable for any costs to repair or replace any utilities
which may be damaged due to Grantee's construction or location of its communication facilities.
Subj ect to the City Manager's authority to prescribe the location within the public way, it shall be
lawful for Grantee to make all necessary excavations in the public way for the purpose of
constructing and maintaining its communication facilities. Grantee's use of the public way shall
comply with the standard specifications of the City, including, but not limited to the City of Eugene
Manual on Traffic Control Devices, Signing, etc. for Construction and Maintenance on Streets and
Highways, and the City of Eugene Policies and Procedures: Utility and Right-of Way Cuts,
Construction Within and Use of the Public Way, and all other applicable Federal, State, and Iocal
laws, rules, and regulations. Grantee shall do no work affecting the public way without first
obtaining the permits required by the City, which may include plan submittal, approval and the
payment of fees before work begins. Grantee shall furnish all necessary material and labor to install
and maintain its communications facilities at its own expense.
Grdinance -1
Section 4. Nothing in this Qrdinance shall be construed in any way to prevent the City from
constructing and maintaining any public improvement in any public way. ~n its construction and
maintenance of public improvements, the City shall endeavor not to obstruct or prevent the free use
by Grantee of its communication facilities.
Section 5. whenever Grantee's communications facilities shall unnecessarily inconvenience
the public or property owners, the City may require the removal or change of location of the
communications facilities at Grantee's expense.
Section ~. Should it ever become necessary to temporarily rearrange or temporarily remove
Grantee's communications facilities at the request of a private person or business, Grantee shall
perform such rearrangement or removal as expeditiously as possible upon receipt of reasonable
written notice from the person ar business desiring the temporary change of location of the
communications facilities. The notice shall;
~a} be approved by the City Manager,
fib} detail the route of movement,
~c} provide that the costs incurred by Grantee in making the temporary change
be borne by the person or business giving said notice,
~d} provide that the person or business giving the notice shall indemnify and hold
harmless the Grantee of and from any and all damages or claims of whatsoever kind or nature
caused directly ar indirectly from such temporary change of the Grantee's communications
facilities, and
fie} if required by Grantee, be accompanied by a cash deposit or a good and
sufficient band to pay any and all of the Grantee's costs as estimated by Grantee.
Section 7. Grantee shall at all times maintain its communications facilities in a good state
of repair, and shall subscribe to a utility notification and locate service. ~f Grantee ceases to make
use of its communications facilities within the public way for the purposes authorized by this
franchise for a continuous period of four months or more, the facilities shall be deemed abandoned,
unless Grantee confirms in writing that the non-use is intended ~i.e., reservation of excess capacity}.
if non-use is not confirmed, upon 64 days written notice to Grantee at its address indicated in its
acceptance of this Ordinance, City may require Grantee to remove the facilities and restore the public
way at Grantee's sole cost and expense. If Grantee fails to remove the facilities and restore the
public way within the 60 day period, City may, at its option and in its sole discretion, remove the
facilities from the public way and require Grantee to pay for the full cost of removal and restoration
of the public way, or City may assume possession and ownership of the facilities. If Grantee
removes the facilities from the public way but fails to restore the public way to its prior condition,
City may complete the repairs and bill Grantee for the full cost thereof. Grantee must notify City
if it sub-leases its facilities to a provider that is not owned by Grantee.
Section 8. Grantee shall indemnify and save harmless the City of and from any and all
damages of any kind or character growing out of or arising by reason of the maintenance of the
Grantee's communications facilities in the City.
Section 9, in consideration of the privileges and franchise granted, City shall accept
Qrdinance - 2
Grantee's performance of the terms of the Cooperative Fiber Development Agreement entered into
between Grantee and City of July 34, 1999, a copy of which is attached as Exhibit A to this
Grdinance din kind services} in lieu of any and all franchise fees.
Section 10. The acceptance of in-kind services as provided in Section 9 above, shall not be
a waiver of, nor be credited toward the payment of property taxes or payments in lieu thereof by
Grantee, nor toward any sales or income tax adopted by City, nor any required application or license
or permit fees required by the Eugene Code,19? 1 to be paid by Grantee.
Section 11. The privileges and franchise herein granted shall continue and be in force for
a period of twenty X24}years from and after the date this Ordinance becomes effective as provided
in Section 12 of this ordinance.
Section 12. This ordinance shall take effect and be in force from and after its passage and
approval and acceptance by Grantee. Grantee shall, within thirty X34} days of the passage of this
Grdinance, file with the City Recorder its written acceptance of all the terms and conditions of this
Grdinance.
Passed by the City Council this Approved by the Mayor this
27th day of September, 1999
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City Recorder
Grdinance - 3
day of September, 1999
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CUGPERATIVE FIBER DEVELQPMENT AGREEMENT
Between
City of Eugene,
a municipal corporation,
and
wILLIAMS Communications, Inc,,
a Delaware corporation
RECITALS
WHEREAS the City of Eugene thereafter "the City"} has authority, over actions taking
place within the City, including within the City road right-of-way; and
WHEREAS the City desires to facilitate the construction and installation of fiber optic
systems in and mound the City; and
WHEREAS representatives of the City and other representatives from associated cities
and counties have met and have agreed in principle to form a consortium ~"Cansortium"}
and to work cooperatively to fulfill the purposes outlined in this Agreement; and
WHEREAS this Agreement reflects an understanding concerning point support and action
among several local governments including but not limited to Coos County, Douglas
County, Lane County, and the cities of Bandon, Coos Bay, Coquille, Reedsport,
Florence, Roseburg, Drain, Creswell, Springfield and Eugene, and reflects a portion of
the mutually benef cial actions identif ed by the local governments; and
WHEREAS wILLIAMS Communications Group thereafter "wILLIAMS"} has applied
for several permits from several local, state and federal agencies, and seeks approval to
allow construction of a fiber optic system, including a redundant route, from the Gregon
Coast in the vicinity of Bandon, Gregon, up the coast to a point near Florence and then
inland through Eugene and Springf eld to Jasper, and from the .coast highway east to near
Roseburg and then north through Drain and Creswell to Jasper; and
~~HEREAS wILLIAMS desires to offer the City, on behalf of the Consortium of local
governments, in-kind goods and services in return for the City's assistance and as an
alternative to any required right-of way fees that the Consortium of local governments
might charge.
July 9,1999
Page 1
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AGREEMENT
NO'L~, THEREFORE, it is agreed that:
A. In return far the City's promises and in fulfillment of its obligations under this
Agreement and any relevant City ordinance, wILLIAMS agrees to:
1. Provide, collectively to the City and all other cities and counties acting on behalf
of, and in anticipation of, an entity known as the "Fiber South Consortium", the
following equipment and services. Each and every obligation to provide this
equipment and service shall be transferable and shall be accepted by any entity
that obtains by transfer, sale, assignment, or other method of acquisition any of
the properties, rights, obligations, facilities or equipment related to or necessary
for the fulfillment of this Agreement.
a. An Indefeasible Right of Use ~"IRU"} for a period of 2~ years, with
negotiations on renewal to begin after 17 years} for six pairs twelve total
optical f fibers} of optical fiber along the route from the coastal POP near
Bandon to the point where the wILLIAMS' route intersects the BPA fiber
route at Structure 2912, and from the Lane BPA substation to the Jasper
Regen Site, and from the Jasper Regen site south along the wILLIAMS
route in Lane County and ODOT right of way and in O.C.R.R. right of
wa to the Dint where this route south and along the wagon Road
Y p .
intersects the ~UILLIAMS route from the Bandon POP to the BPA route.
This fiber shall hereafter be referred to as'fhe "Consortium Fiber". The
fiber shall be SMF-28 Single Made Optical Fiber or fiber of equal
serviceability. The routes referred to in this subsection are represented on
two maps, labeled Exhibit A and Exhibit B, which are attached, and by
this reference are incorporated into this agreement.
The IRU shall rovide that wILLIAMS will assume responsibility for
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maintenance of the Consortium Fiber. Maintenance shall include all
necessary steps to keep the f ber in working order. The IRU shall provide
that, in the event that relocation of the fiber is required for any reason,
wILLIAMS will absorb the cost of the relocation, except that the
Consortium will be responsible for the cost for the proportional cost} of
any additional f ber necessary to preserve the connectivity of the
Consortium Fiber.
After this Agreement has been executed, a formal IRU agreement
governing the terms and conditions of the grant of IRU shall be executed
between the parties and shall be attached hereto and made part of this
Agreement.
b. Twenty-five access points along the routes of the Consortium Fiber
described in paragraph a. of this subsection, such access paints to be
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Located in positions indicated by the Fiber South Consortium, the City and
other cities and counties signing similar agreements with w~LLIAMS. An
access point shall consist at a minimum of a vault separated from
wILLIAMS' other installed fiber containing the Consortium's terminated
fibers and an adequate splice case for all fibers. All access points shall be
provided on the same side oftheright-of way as the fiber.
The access points shall be located in the following locations, subject to
mutual agreement and refinement as to location during actual installation.
Starred sites are from BPA fiber, subject to arrangements with BPA.
BPA route:
1. Bandon PaP to transpacif c route and to other fiber ~~Ilagon
Road route}
2. At junction with BPA f ber
3. At Reeds ort Regen site with access to city of Reedsport}*
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4. At.V~alton Regen site only to regen facility}*
5. At junction with SPA f ber Lane Substation}
6. In Eugene at junction of rail lines ~BNSF main line and Coastal
line oCRR} tChambers Street}
7. I n Eugene at Charnelton Street
8. In Eugene at University of oregan Riverfront Research Park
Agate Street}
9. In Springfeld at Henderson Street done block east of Glenwood
Blvd.
,.
10. In Springfield at 1 oth Street Crossing
11. In Springfield at 42n~ Street Crossing
12. In S ringfeld at 100o N feet of intersection of Jasper Road and
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Brand S Road
~ 3. At Jasper Regen site
Wagon Road Route
14. At Bandon POP
15. Near Coquille (between 20 and 30 mile from Bandon POP)
16 At Dora regen site (only to regen facility)
17. At Melrose (just past 70 mile marker) [for Roseburg]
18. At Cleveland Regen (to regen facility. only)
19. At 89 mile marker [for Sutherlin]
20. At Yoncalla (mile 108.5)
21 At Drain regen (To the regen facilities and to the city of Drain)
22. At Cottage Grove Main Street crossing (app mile 130)
23. At Creswell (mile 147) Just before leaving RR
24. At Pleasant Hill (along highway 58 near Edgeway Rd)
25. At Jasper Regen site
July 9,1999 Page 3
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c. ~ An IRU providing the City of Eugene use of 96 ~SMF-28} f hers for a
distance of approximately 11 miles, along the route of wILLIAMS other
fiber in the railroad right of way in Eugene and Springfield, along with
seven points of access ~handholes} to this fiber, such points to consist of at
least a 25TA with a service loop, with the option to have installed the
vaulted access points described in paragraph a of this subsection, at these
same points, with such points to be installed at points to be mutually
agreed upon along the wILLIAMS route off of the railroad property. The
IRU shall be for a period of 20 years in duration, with a guarantee of
negotiations on renewal after 17 years. The City of Eugene will pay
wILLIAMS for the fiber to be installed, either through reimbursement to
wILLIAMS or payment in advance, upon wILLIAMS sole discretion,
such arrangements to be made prior to the initial installation of the 96
wILLIAMS' fibers. The total cost to the City of Eugene for the 96 f bers
will be 'VL~illiams' cost for the 96 fibers, the handholes, the pulling of the
fiber and other costs associated with the installation ~ excluding trenching}
provided Eugene, not to exceed $245,830.25. Final payment for the 96
fibers shall be made no later than when grant of IRU is, effectuated.
Maintenance for the 96 fibers will be at $30.00 per route mile per month
tapproximately $3 3 0.04 per month}.
The seven access points for the Eugene fiber will be located at the point on
the railroad right of way where the railroad right of way intersects the right
of way of the following cross streets, or in the event there is no actual
crossing, at a point of intersection created by the extension of the street
right of way across the railroad right of way.
• Greenhill Road Eugene}
• Bertelsen Road Eugene}
• Van Buren Street EEugene}
• Charnelton Street Eugene}
• Agate Street (Eugene}
• Henderson Street, one black from Glenwood Blvd. Springfield}
• 14`~ Street ~Springfreld}
The exact location of the access paint will be negotiated at the time of
installation of the fiber. However, all access points shall be provided on
the same side of the right-of-way as the f ber.
d. wILLIAMS will provide a mutually agreed upon amount of rack space at
wILLIAMS regeneration facilities along the WILLIAMS routes described
above, including the Bandon POP, and Reedsport, Walton, Dora,
Cleveland, Drain and Jasper Regen sites. WILLIAMS will allow the
Consortium Fibers to be installed in an adequate regeneration facility and
the regeneration of signals carded on the Consortium Fiber in the same
manner provided to other IRU holders, at a cost no higher than the lowest
cost charged by wILLIAMS at the same regen site to any other IRU
holder at the regen site. For the purposes of this section a regen site shall
July 9,1999
Page 4
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include any facility provided for the purpose of regeneration or
amplification of a fiber optic signal so as to assist transmission of the
signal to another destination along the fiber optic cable. Consortium
access to the Bandon PUP and regeneration facilities shall be mutually
agreed upon by the parties. The Consortium shall be responsible for
supplying power to its communications facilities at the Bandon PUP and
regeneration sites. Future requests for rack space by the Consortium shall
be considered on the basis of availability with consideration of
wILLIAMs' future needs. It is understood that wILLIAMS will not be
responsible far the procurement, installation, interconnection, or
maintenance of City and Consortium optronics or electronic equipment or
alarms, but shall only be responsible to install and maintain PUP and .
regen site common space and common equipment.
e. w1LLIAMS will use its best efforts to coordinate arrangements by ~-
w~LLIAMS affiliated companies to donate or sell at a discounted cost
equipment to assist the City and other members of the Consortium to
transmit signals along the Consortium Fiber. The City understands that
such equipment maybe surplus equipment no longer used by wILLIAMS,
but shall be in useable order and of such a standard and quality so as to be
useable with other equipment provided. .
f. W1LLlAMS will use its best efforts with all contractors installing fiber
along the wILLIAMS routes identif ed in this Agreement to have the
contractors leave at designated sites along the routes all excess fiber.
Excess f ber shall mean lengths of fiber longer than 1 Q0 feet that remain
... . .
after installation of the wILLIAMS fiber because of the need to adjust the
length of supplied reels of fiber to accommodate the actual installation of
w~LLIAMS f ber. Such excess fiber will be used by the Consortium for
any purpose.
2. Provide maintenance and repair of the Consortium's six pairs twelve total optical
fibers} of optical fibers at such times and such places as w1LLlAMS conducts
maintenance or repair activities on any part of wILLIAMS' other installed fiber.
Maintenance of the Consortium's six pairs of optical fibers includes the same
required movement or relocation as for wILLIAMS' other installed f ber.
Maintenance and relocation for the Consortium f ber shall be at no additional cost
to the Consortium, except that, in the event that relocation requires the use of
additional fiber, the Consortium can be asked to contribute its proportional share
of the costs of such additional fiber.
3. Comply with all applicable local, state and federal laws and regulations in the
installation, maintenance and operation of all wTLLIAMS' fiber. At the local
level this shall include at least the following:
• Providing all information required by local ordinances.
July 9,1999
Page 5
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Reaching agreement with the City regarding the exact location and method of
placement of the fiber, which will be memorialized in a final set of plans, signed
by the designated official of the City.
Providing the City with evidence that W~LLIAMS has joined the Oregon Utility
Notification Center and assurances that WILL~AMS will thereafter provide any
entity requesting information under the utility notif cation program with such
information as is necessary to determine the location; depth and extent of
VVILLIAMS' and the Consortium's fiber optic cable system, and will provide the
City with a f nal set of plans in such form as the City requests, showing the actual
location of the installed fibers to be given to the City and the Consortium.
• Providing a bond or other security agreeable to the City, in such an amount to be
specified by the City as is necessary to assure that installation of all f ber optics is
performed in accordance with the requirements of the City ordinance and returns
alI premises where fiber is installed to the conditions required by the ordinance.
4. Provide the City with the name, address and phone number of a contact person
who will be capable of facilitating the resolution of issues concerning the
completion of the permitting process and the fulfillment of all obligations
specified in this Agreement.
B. In return for WZLLIAMS' promises and performance, the City agrees, in
conjunction with other members of the Consortium:
I. To provide information to state and federal agencies, including the U.S. Army
Corps of Engineers and the Dregon Division of State Lands on the nature of the
proposed installation and the advantages that thewCity and.other members of the
Consortium might derive from a successful installation under the terms of this
Agreement.
2. To provide coordination, advice and assistance, consistent with local, state and
federal laws, to make certain that all permit applications are moved forward by the
appropriate jurisdiction in as expeditious a manner as is possible within the
requirements for appropriate review. The permit applications that the City
understands may be involved in the WILLIAMS' plans include, but are not
limited to:
• Right of way use permits or licenses from several jurisdictions including
cities, counties and the State of Dregon;
• Zoning approvals ~ from several counties;
• Wetlands alteration permits from the Dregon DSL and US Corps of
Engineers;
• Environmental review and approval from the Oregon DEQ.
3. If WILLIAMS plans to install fiber within the right of way of the City, the City
will accept the performance of the terms of this Agreement din kind services} in
lieu of any and all annualright-of-way use fees that would otherwise be charged
July 9, Z 999 Page 6
to wILLIAMS in return for City permission to install fiber facilities in the right-
of way. Such acceptance in lieu of payment shall be available only under the
terms of this Agreement and only upon completion of an application and issuance
of all appropriate permits or licenses pursuant to City ordinances. Such a waiver
does not include any required application fees, or any license fees associated with
the application for the right to operate in the right of way. This acceptance of in
kind services in lieu of right-af-way use fees franchise fees} is one of the
standard benefits that all members of the Consortium shall extend to w~LL~AMS
in return for WILLIAMS' in kind services to the Consortium.
PERMITTED USES
C. The parties jointly acknowledge and agree that many of the communities within
the Consortium, or which may choose to join the Consortium at a later date, may
lack effective, meaningful and affordable access to advanced telecommunications
services. The pasties also jointly acknowledge and agree that the fundamental
obj ective of the City, and the Consortium of which the City is a member, under
this Agreement is to place facilities permitting the provision of such advanced
telecommunications services in rural or other communities which may be affected
by this Agreement as members of the Consortium. Except as otherwise provided
in this Agreements the parties further acknowledge and agree that once placed, the
CitylConsortiummoy use the facilities it receives under this Agreement for any
lawful purpose. The primary purposes far the City and fihe Consortium to be
advanced by the acquisition of the facilities is to provide facilities that could allow
advanced telecommunications services far schools; libraries, healthcare providers
and governmental entities and to stimulate and advance economic development
within the area served by the City and the Consortium.
The parties acknowledge that the fiber being provided by wILLIAMS is for local
use and not for resale or for pass-through use. For purposes of this section, local
use consists of the transmission of signals originating in and or ending within the
geographical confines of the Consortium. For purposes of this section pass-
throughuse means the carriage of signals that originate from an area outside the
geographical boundaries of the Consortium and are transmitted through the
geographical boundaries of the Consortium to a point outside the geographical
boundaries of the Consortium without affecting or being affected by users within
the geographical boundaries of the Consortium other than retransmission ar
regeneration without alteration of the signal. The Consortium warrants that before
any agreement is completed and becomes effective concerning the sale, lease
assignment, or transfer of any consideration or right provided by wILLIAMS,
wILLIAMS will be notified of the term of the proposed agreement and will be
provided an opportunity of first refusal, to whit, the right to replace the proposed
agreement with an agreement with the Consortium on the same terms and
conditions, giving WILLIAMS the rights of use set forth in the proposed
Agreement. If wILLIAMS decides not to exercise its right of first refusal, it shall
July 9,1999 Page 7
retain the right to enforce the terms of this Agreement, particularly this Paragraph
C, against any third party to whom the Consortium sells, leases, assigns, or
transfers any of the rights contemplated in this Agreement. Furthermore, should
the Consortium sell, lease, assign, or transfer rights in the six ~6} fiber pair twelve
optical fibers} described herein, to any third party, a maintenance fee of $30.40
per route mile per month on the six ~6} fiber pair shall commence and the
Consortium shall waive all rights to the free maintenance contemplated in
Paragraph 2 of this Agreement unless the Consortium can show that the additional
charges would prevent completion of arrangements for the use of the six ~6} fiber
pair twelve optical f bens} in a manner consistent with the purposes of this
Agreement, especially as described in this Paragraph C, in which case the actual
amount of any maintenance fee, ranging from $0 to $30.04 per route mile per
month, will be negotiated with w1LL1AMS with the intent of preserving both the
need for services to the Consortium and the desire of W~LLZAMS not to provide a
subsidy to a profit making enterprise rather than a cost reduction for the
Consortium.
DATE 4~` DELIVERY
D. wILLIAMS will deliver control of the six pairs of fiber and other equipment
described in this Agreement within one month of the date of wILL1AMS'
completion of installation which shall include, but not be limited to, all splicing
and testing activities} of f ber to complete each of the routes. Evidence of the
delivery shall include a pedigree of all f bers delivered. Such a pedigree shall
include identification of the type of termination, the type of splice case and the
results of an end to end optical time domain reflectometer test, which includes
proof of optical continuity and a statement of dB loss end to end and point to
point. Evidence of delivery shall also include a final set of maps or plans
indicating the location of each access point provided under the terms of this
Agreement.
TERM AND TERMINATION
E. This Agreement becomes effective on July 10,1999, or the date of the final
signature aff xed below, and remains in effect during the period when the ZRU
remains in effect.
F. This Agreement may be terminated by mutual consent after alternative
arrangements have been made regarding the continuing obligations contained in
this Agreement. In the event that the Consortium which is being formed by the
City and other cities receiving f ber from WILLIAMS ceases to exist and the City
is no longer able to make any use of the fiber provided to the City and the
Consortium, this Agreement will terminate and wILL1AMS will thereafter be
responsible for the payment of all right of way fees owed after the termination of
this Agreement. Such fees shall not include any fees or payments preliminarily
July 9,1999 Page S
waived by this Agreement. In such an event wILLIAMS will be entitled to
recover and take ownership of the f ber and access points provided by
wILLIAMS to the City.
RENE~~TIATIUN CLAUSE
G. The parties acknowledge that time is of the essence in completion of the
construction of wILLIAMS f ber. To meet its other requirements, wILLIAMS
must have the BPA route installed and lit by September 1,1999, and the wagon
Road route installed and lit by October 15,1999. To meet this schedule,
wILLIAMS anticipates that it must be cleared to start construction and
installation by July 1,1999, for the BPA raute. The City understands the
importance of speed and undertakes to share a portion of the risk. If the mutual
efforts of the Consortium members and wILLIAMS are not successful in
resolving by July 1, I999, all outstanding permit issues identified in discussions
between the Consortium and wILL1AMS on or before June 10,1999, for any
permits that are an extension of or are triggered by those permit issues discussed
on or before June I O, I999~ the City accepts that there will have been a
diminution in the value of the services provided by the Consortium, which would
justify a reduction in the value or quantity of goods or services provided by
wILLIAMS in fulfillment of its obligations under this Agreement. The
determination of whether a reduction in wILLIAMS obligations will be
negotiated in the event that such becomes necessary will be determined in the sole
discretion of wILLIAMS operating in good faith}. if such renegotiations
become necessary the parties will negotiate in gvodfaith,-considering the nature
of the events causing delay, the efforts expended by the Consortium, the resulting
damage to wILLIAMS due to the delay, and the nature and extent of the delay.
Except in the event that there is a grossly negligent or willful action to prevent the
achievement of the purposes of this Agreement, the actions in furtherance of the
goals of this Agreement, and any failure to achieve the purposes of this
Agreement shall not be considered a cause of any damages to wILLIAMS due to
a delay in the completion of the construction. flawever, the preceding sentence
shall not apply to any diminution in value of the goods or services provided to the
CitylConsortium by Williams as provided in this paragraph.
Any determination of diminution of value, as described in this Agreement, shall
be made, and notice thereof shall be provided to the Consortium on or before
December 31,1999.
This Agreement concerning renegotiation does not cover or include any delay in
Lane County construction resulting from a need to complete requirements for
Lane County land use approval relating to construction in the right-of-ways, so
long as the Consortium continues to use best efforts to ensure rapid consideration
of such issues. This exception is made because the need for such a procedure was
not known to the parties at the time of the initial decision regarding renegotiation.
July 9,1999 Page 9
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INDEMNITY
H. Subject to the limitations ofthe Oregon Tort Claims Act and Article ~I, Section
I O of the Oregon Constitution, each of the parties hereto agrees to indemnify,
defend and save the other harmless from any claim, liability or damage resulting
from any error, omission or act of negligence on the part of the indemnifying
party, its off cers, agents or employees in the performance of its res onsibilities
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under this Agreement.
I. In the event of litigation involving the terms and conditions of this Agreement, the
prevailing party shall be entitled to recover reasonable attorney. fees, costs and
expenses from the losing party, including all such fees, costs and expenses on
appeal.
AMENDMENTS AND ASSIGNMENTS
J. No amendment to this Agreement shall be effective unless made in writing and
signed by both parties.
K. This Agreement may not be transferred or assigned without the prior written
consent of the other party. Either party may contract with any other entity to
obtain the services of that entity as the party's agent in the fulfillment of this
Agreement.
Assignment, sale lease or grant of an Indefeasible Right of Use ~"IRU"} of a
portion of wILLIAMS' f ber system within the tenitorial jurisdiction of the City
knot including the f ber provided to the Consortiums shall be allowed without the
consent of the City, provided that wILLIAMS provides notice of such a transfer
to the City. Notwithstanding the foregoing, assignment or sale of all
wILLIAMS' fiber subject to this Agreement, or any transfer of ownershi or
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control of the conduit or conduits containing the fiber within the jurisdiction of
the City, including the rights and responsibilities of maintenance, relocation and
expansion, shall only be allowed upon notice to and approval by the City.
Approval shall not be unreasonably withheld, conditioned, or delayed, and shall
be granted upon satisfactory demonstration that the assignee or buyer will have
the financial and technical capacity to fulfill wILLIAMS' obligations under the
permit and this Agreement, and the assignee ar buyer specifically acknowledges
and undertakes to fulfill all wILLIAMS' continuing obligations.
NgTICE
L, All notices required under this Agreement shall be sent to the signing person far
each party, at the address to be provided at the time of signing.
July 9,199 Page 10
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V~ TY aF A[~THGRITY
M. By his or her signature each person signing this Agreement warrants that he or she
has been authorized by the principal for whom this Agreement is signed to sign
this Agreement on behalf of the principal, that the principal has been informed~of
the signing, and that the principal has agreed to undertake all the obligations of
this Agreement upon the signature of the principal's agent.
N. This Agreement shall be governed by and construed in accordance with Dregon
law without reference to its choice of law principles.
D. If any term or condition is, to any extent, invalid ar enforceable, the remainder of
this Agreement shall not be affected thereby. ..
P. The relationship of WILLIAMS and City and Consortium shall not be that of
partners, agents, or ~ oint venturers, but independent contractors.
~. This Agreement may executed in counterparts, all of which taken together shall
constitute one instrument.
SIGNATURES
For the City of Eugene:
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Date
For WILLIAI~IS
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Date
July 9,1999 Page 11
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ACCEPTANCE OF gRDINANCE Na. ZO1 G8
Tq THE HUN(]RABLE MAYUR AND CITY CgUNCIL OF THE CITY ClF
EUGENE, QREGQN:
Williams Communications, Inc., a corporation, hereby unconditionally accepts Ordinance
No. 24165 of the City of Eugene and all of the terms, provisions, and conditions thereof, said
Ordinance No. 201 ~S being entitled:
AN ORDINANCE GRANTING TG WILLIAMS CO CATIONS, INC., ANON-
E~CLUSIVE FRANCHISE TO USE THE PUBLIC ~V'AY TO CONSTRUCT AND MAINTAIN
PUBLTC CO CATION FACILITIES WITHIN THE CITY OF EUGENE.
and having been duly passed and adopted by the City Council and approved by the Mayor of said
City of Eugene on the 27th day of September, 1999.
IN WITNESS WHEREOF, Williams Communications, Inc. has caused the acceptance of
Ordinance No. 20168 to be si ed b its ~t~~'YI~ yh ~ and its co orate seal to be affixed
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hereto and attested b its ~~ ~5-~~' S~.+E~~h ~ ~'da ofb~r 1
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STATE OF (~~~ahOm4 )
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County of ~ ~,,``~ )
WILLIAM P. HARWELL
Attarneyio-tact
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On this ~~ day of ,1999, personally a eared ~' ` m rWe ~ who been dul
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sworn, did say that ~i+~ is the r _• n W of Williams Communications, Inc., and that the
seal affixed to the foregoing instrument is the corporate seal of said corporation and that said
WILLIAIVIS CgMMUNICATIgNS,INC.
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By
Title:
Acceptance of Ordinance Na. Z016S -1
instrument was signed and sealed in behalf of said corporation by authority of its board of directors;
and acknowledged said instrument to be its voluntary act and deed.
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Notary ubiic for ~ ~ + w
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My Commission expires: . .
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Acceptance of ordinance No. 201 ~8 - 2