COUNCIL COMMUNICATION

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1 Meeting Date: June 13, 2017 COUNCIL COMMUNICATION Agenda Item: Agenda Location: Consent Calendar 36 Work Plan # Legal Review: 1 st Reading 2 nd Reading Subject: A resolution authorizing a Sixth Amendment to the non-exclusive right-of-way use agreement between the City of Thornton and Zayo Group, LLC. Recommended by: Brett Henry Approved by: Jeffrey B. Coder Ordinance previously introduced by: Presenter(s): Brett Henry, Executive Director - Infrastructure SYNOPSIS: Zayo Group, LLC (Zayo), is a fiber-based provider of telecommunication and broadband infrastructure and currently operates a fiber optic network and associated appurtenances within the City of Thornton (City) rights-of-way pursuant to an existing Non-Exclusive Right-of-Way Use Agreement, a First Amendment, Second Amendment, Third Amendment, Fourth Amendment, and Fifth Amendment to such non-exclusive Right-of-Way Use Agreement. Zayo now wishes to enter into a Sixth Amendment (Amendment) to add new facilities within the City s rights-of-way along Thornton Parkway, Grant Street, Oneida Street, 88 th Avenue, Summit Grove Parkway, Eppinger Boulevard, York Street, 93 rd Place, Switzer Lane, Huron Street, and 136 th Avenue as shown in Exhibits A, B, C, D, E, F, and G of the agreement. The Zayo facilities will provide broadband communication to businesses and residents within the City. RECOMMENDATION: Staff recommends Alternative No. 1, approval of the resolution to set forth the terms and conditions for Zayo to place additional facilities in the City rights-of-way to establish an infrastructure system that will enhance services to businesses and residents within the City. BUDGET/STAFF IMPLICATIONS: None. ALTERNATIVES: 1. Approve the resolution authorizing Zayo to place its facilities within the City s rights-of-way through an amendment to an existing Non-Exclusive Right-of-Way Use Agreement to further provide an infrastructure system that will enhance services to businesses and residents within the City. 2. Do not approve the resolution, which would effectively restrict installation of additional conduit and fiber in the City rights-of-way by Zayo, limiting the ability to expand Zayo s infrastructure system. BACKGROUND (ANALYSIS/NEXT STEPS/HISTORY): (includes previous City Council action) City Code requires communication service companies wishing to place their facilities within the City rights-of-way to obtain permission through a Non-Exclusive Right-of-Way Use Agreement.

2 COUNCIL COMMUNICATION PAGE 2 A Non-Exclusive Right-of-Way Use Agreement authorized by City Council on July 27, 2010 (C.D. No ) granted permission to Zayo for installation of fiber in City-owned conduit along Washington Street between 83 rd Drive and 97 th Avenue. In exchange for Zayo s use of City-owned conduit, Zayo installed conduit and fiber on Washington Street between 97 th Avenue and 104 th Avenue exclusively for the City. Under this agreement, Zayo also installed its own fiber and conduit on Washington Street between 97 th Avenue and 104 th Avenue. The first amendment to Zayo s Non-Exclusive Right-of-Way Use Agreement authorized by City Council on May 28, 2013 (C.D. No ) granted permission for Zayo to install conduit and fiber service connections extending from Zayo s Washington Street fiber backbone between 83 rd Drive and 104 th Avenue. Zayo purchased conduit and fiber facilities from Metromedia Fiber Network Services along Grant Street north of 120 th Avenue, 124 th Avenue west of Washington Street, Washington Street north of 120 th Avenue, and 120 th Avenue east of Washington Street. C.D. No granted permission for Zayo to install conduit and fiber service connections extending from these locations. C.D. No granted permission to Zayo for installation of fiber in City-owned conduit along Thornton Parkway between Pearl Street and Washington Street. In exchange for Zayo s use of Cityowned conduit, Zayo installed conduit and fiber on Thornton Parkway between Washington Street and Hoffman Way (Safeway traffic signal). Zayo was also granted permission to install fiber and conduit on Pearl Street north of Thornton Parkway, 95 th Avenue east of Washington Street, and Hoffman Way south of 95 th Avenue. Zayo also installed conduit and fiber service connections extending from Zayo s 84 th Avenue fiber backbone between Huron Street and Washington Street. The second amendment, C.D. No , granted permission for Zayo to install conduit and fiber on 104 th Avenue east and west of Steele Street, Washington Street between 124 th Avenue and 128 th Avenue, 128 th Avenue between Washington Street and Claude Court, 128 th Avenue between Colorado Boulevard and Quebec Street, Claude Court south of 128 th Avenue, 120 th Avenue between the FasTracks rail line and Colorado Boulevard, Colorado Boulevard between 120 th Avenue and 128 th Avenue, Hudson Street between 126 th Avenue and 128 th Avenue, 126 th Avenue east of Hudson Street, and Quebec Street between 128 th Avenue and north of 138 th Avenue. The third amendment, C.D. No , granted permission for Zayo to install conduit and fiber on Russell Boulevard between Pearl Street and Washington Street, Pearl Street north of Russell Boulevard, 144 th Avenue between I-25 and Grant Street, and Grant Street south of 144 th Avenue. The fourth amendment, C.D. No , granted permission for Zayo to install conduit and fiber on Pecos Street south of 88 th Avenue, 88 th Avenue east of Pecos Street, and 88 th Avenue between I-25 and Washington Street. It also recognized and approved the change of name from Zayo Bandwidth, LLC to Zayo Group, LLC. The fifth amendment, C.D. No , granted permission for Zayo to install conduit and fiber on Hoffman Way between Dorothy Boulevard and Eppinger Boulevard, Eppinger Boulevard between Hoffman Way and Gaylord Street, Colorado Boulevard south of 121 st Avenue, 121 st Avenue/Northaven Circle between Colorado Boulevard and 120 th Avenue, 120 th Avenue between Northaven Circle and Holly Street, Holly Street between 113 th Place and 120 th Avenue, 113 th Place between Holly Street and

3 COUNCIL COMMUNICATION PAGE 3 Kearney Way, Kearney Way between 113 th Place and Leyden Street, Leyden Street between Kearney Way and 114 th Avenue, and 114 th Avenue east of Leyden Street. This sixth amendment to Zayo s Non-Exclusive Right-of-Way Use Agreement grants Zayo permission to install conduit and fiber on Thornton Parkway between I-25 and Grant Street, Grant Street between Thornton Parkway and 100 th Place, Oneida Street north of 128 th Avenue, 88 th Avenue between Washington Street and Corona Street, Summit Grove Parkway between Monroe Street and Colorado Boulevard, Eppinger Boulevard from west of Gaylord Street to York Street, York Street between 93 rd Place and Eppinger Boulevard, 93 rd Place east of York Street, Switzer Lane east of Huron Street, Huron Street from Switzer Lane to 96 th Place, and 136 th Avenue east of Lincoln Street as shown in Exhibits A, B, C, D, E, F, and G of the agreement. If Zayo were to function under a franchise agreement, repeated amendments to Zayo s Non-Exclusive Right-of-Way Agreement would not be necessary, as Zayo would then essentially have an agreement for citywide use of rights-of-way. However, Article 5.5 of Chapter 38 of the state law entitled Rights-of- Way: Telecommunications Providers prohibits telecommunications providers from entering into a franchise agreement. However, the state law requires local agencies to allow the use of rights-of-way by telecommunications providers. As an alternative to a franchise agreement, the City uses a right-ofway use agreement to manage the installation of a telecommunication provider s infrastructure in City rights-of-way. The buildout of Zayo s broadband infrastructure is primarily driven by customer need. As a result, it is difficult for Zayo to predict where broadband infrastructure will need to be installed in the City and amendments to Zayo s Non-Exclusive Right-of-Way Agreement are necessary whenever a need arises for Zayo to install such infrastructure.

4 R E S O L U T I O N A RESOLUTION AUTHORIZING A SIXTH AMENDMENT TO THE NON-EXCLUSIVE RIGHT-OF-WAY USE AGREEMENT BETWEEN THE CITY OF THORNTON AND ZAYO GROUP, LLC. WHEREAS, Zayo Bandwidth, LLC, a Delaware limited liability company (Zayo), is a bandwidth provider that was granted a Non-Exclusive Right-of-Way Use Agreement (Use Agreement) to operate a fiber optic network and associated appurtenances within the City of Thornton (City) on July 27, 2010; and WHEREAS, Zayo was granted additional locations to install fiber optic facilities in the City rights-of-way by a first amendment approved on May 28, 2013, a second amendment approved on May 12, 2015, a third amendment approved on December 1, 2015, a fourth amendment approved on March 29, 2016, and a fifth amendment on March 9, 2017; and WHEREAS, Zayo Bandwidth, LLC has merged with Zayo Group, LLC, also a Delaware limited liability company, still referred to herein as Zayo ; and WHEREAS, Zayo now wishes to place additional facilities in the City rights-of-way in order to expand its network and thus enhance its operations. Pursuant to the current Use Agreement, Zayo is allowed to place additional facilities within the City rights-of-way only with permission from the City; and WHEREAS, Zayo now therefore requests approval of additional locations in the Use Agreement to allow additional facilities to be placed in the City rights-of-way and to allow for the City to use Zayo s facilities; and WHEREAS, this amendment to the Use Agreement is necessary to provide Zayo with permission to expand its services in order to benefit Zayo by providing more comprehensive coverage; and WHEREAS, allowing Zayo to place additional facilities within the City is consistent with other public uses of the rights-of-way. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF THORNTON, COLORADO, AS FOLLOWS: That the Sixth Amendment to the Non-Exclusive Right-Of-Way Use Agreement between the City of Thornton and Zayo Group, LLC, attached as Attachment A, is hereby approved, and the Acting City Manager is hereby authorized to execute on behalf of the City, and the City Clerk to attest the Use Agreement.

5 PASSED AND ADOPTED at a regular meeting of the City Council of the City of Thornton, Colorado, on, CITY OF THORNTON, COLORADO ATTEST: Heidi K. Williams, Mayor Kristen N. Rosenbaum, City Clerk 2

6 ATTACHMENT A SIXTH AMENDMENT TO NON-EXCLUSIVE RIGHT- OF- WAY USE AGREEMENT THIS SIXTH AMENDMENT ("Sixth Amendment") to a NON-EXCLUSIVE RIGHT-OF- WAY USE AGREEMENT is entered into by and between the CITY OF THORNTON, a Colorado municipal corporation (the City ), and ZAYO GROUP, LLC, a Delaware limited liability company ( Zayo"), on this day of, The City and Zayo hereafter may be referred to collectively as Parties, or individually as Party. Recitals A. On July 27, 2010, the City and Zayo Bandwidth, LLC, a fiber based broadband provider, entered into a Non-Exclusive Right-of-Way Use Agreement ( Use Agreement ) that allowed Zayo Bandwidth, LLC, together with its affiliates, to construct, maintain and operate a fiber optic network and associated appurtenances within the City. B. On May 28, 2013, the City and Zayo Bandwidth, LLC entered into the First Amendment to the Use Agreement ("First Amendment"); on May 12, 2015, the City and Zayo Bandwidth, LLC entered into the Second Amendment to the Use Agreement ("Second Amendment"); on December 1, 2015, the City and Zayo Bandwidth, LLC entered into the Third Amendment to the Use Agreement ( Third Amendment ); on April 4, 2016, the City and Zayo Bandwidth, LLC entered into the Fourth Amendment to the Use Agreement ( Fourth Amendment ), which also recognized and approved change of name of Zayo Bandwidth, LLC to Zayo Group, LLC; all such amendments authorized Zayo Group, LLC and its affiliates, to construct, maintain, and operate additional fiber optic facilities and associated appurtenances in different locations within the City; and on March 9, 2017, the City and Zayo Group, LLC entered into a Fifth Amendment to the Use Agreement ( Fifth Amendment ), which also authorized Zayo to place additional facilities within the City s rights-of-way. C. In accordance with the requirements of Subsection 3(H) of the Use Agreement, as amended by the Second Amendment, Zayo seeks an amendment to the Use Agreement to place further facilities in the City's rights-of-way and as such, this Sixth Amendment is required. NOW THEREFORE, pursuant to Zayo's request to obtain permission from the City to place new facilities in the City's rights-of-way, the Parties hereby agree as follows: A. The Parties agree to allow Zayo together with its affiliates, to place additional facilities within the City s rights-of-way in accordance with the locations depicted in Exhibits A, B, C, D, E, F, and G, attached hereto and incorporated herein by this reference and to be considered as additional exhibits to the Use Agreement, the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, and this Sixth Amendment. (1) Pursuant to Section (H) of the Use Agreement, as amended in the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, the Fifth Amendment, and this Sixth Amendment to the Use Agreement by attaching additional exhibits accurately identifies the locations of the new facilities and otherwise makes no change or modification to the terms or

7 conditions of the Use Agreement, the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, or the Fifth Amendment. (2) This Sixth Amendment shall constitute permission by the City to allow Zayo to place additional facilities in locations other than those agreed to in the Use Agreement, the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, and the Fifth Amendment to such Use Agreement and in accordance with all the terms and conditions of the Use Agreement, the First Amendment, Second Amendment; Third Amendment, Fourth Amendment, and the Fifth Amendment, and which terms and conditions shall in no way be affected by this Sixth Amendment. B. Provided, further, the Parties agree this Sixth Amendment will require Zayo to meet all insurance provisions of the Use Agreement as applicable to all the new areas authorized for the facilities Zayo will place in the City s rights-of-way pursuant to this Sixth Amendment. C. All other terms and conditions of the Use Agreement, the First Amendment, the Second Amendment, the Third Amendment, the Fourth Amendment, and the Fifth Amendment shall remain in full force and effect. IN WITNESS WHEREOF, and in order to bind themselves legally to the terms and conditions of this Sixth Amendment to the Use Agreement, the duly authorized representative of the parties have executed this Sixth Amendment to the Use Agreement to be effective as of the date first written above. CITY OF THORNTON By: Jeffrey B. Coder, Acting City Manager ATTEST: Kristen N. Rosenbaum, City Clerk APPROVED AS TO FORM: Luis A. Corchado, City Attorney 2

8 ZAYO GROUP, LLC By: Title: STATE OF COLORADO ) ) ss. COUNTY OF ) Subscribed and sworn to before me this day of, 2017, by, as of Zayo Group, LLC. Witness my hand and official seal. My commission expires: Notary Public 3

CITY COUNCIL AGENDA ITEM CITY OF SHORELINE, WASHINGTON

Council Meeting Date: April 20, 2015 Agenda Item: 8(b) CITY COUNCIL AGENDA ITEM CITY OF SHORELINE, WASHINGTON AGENDA TITLE: Adoption of Resolution No. 373 Approving Transfer of Telecommunications Franchise