HomeMy WebLinkAboutR-1999-040 TEMPORARY LICENSE AGREEMENT RENEWAL FOR TELECOMMUNICATIONS NETWORK CONSTRUCTION, OPERATE, AND MAINTAIN.RESOLUTION NO. R-99-4 0
A RESOLUTION authorizing the Mayor to execute a Temporary License
Agreement renewal with Electric Lightwave, Inc., a
Delaware corporation, which authorizes Electric
Lightwave, Inc., to occupy City of Yakima rights-of-way in
order to construct, operate and maintain a
telecommunications network in the City of Yakima,
Washington.
WHEREAS, Electric Lightwave, Inc., a Delaware corporation, has
requested permission, under a Temporary License Agreement, from the City of
Yakima (the "City") to occupy City rights-of-way in order to construct, operate
and maintain a telecommunications network in the City of Yakima, Washington;
and
WHEREAS, Electric Lightwave, Inc. intends to utilize said
telecommunications network to provide switched and non -switched telephone
services within the City of Yakima, Washington; and
WHEREAS, said Temporary License Agreement provides limited
authority under a Temporary License for Electric Lightwave, Inc. to construct
certain telecommunications facilities in the City of Yakima, Washington; now,
therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The Mayor is hereby authorized to execute the attached Temporary
License Agreement renewal with Electric Lightwave, Inc., a Delaware
corporation, which authorizes Electric Lightwave, Inc. to occupy City rights-of-
way, under a Temporary License, in order to construct, operate and maintain a
telecommunications network in the City of Yakima, Washington, for the purpose
of providing switched and non -switched telephone services within the City.
ADOPTED BY THE CITY COUNCIL this ('day of
APR( i_— ,1999.
ATTEST:
City Clerk
John Puccinelli, Mayor
Cir' OT YeLY
LEGAL
DEPARTMENT
200Sou h1imdsiieetYaldi,Washmgion 989Q12630 (509)575-6030 Fax(509)575-6160
PRIVILEGED AND CONFIDENTIAL: COVERED BY THE ATTORNEY-CLIENT
AND ATTORNEY WORK PRODUCT PRIVILEGES
TO:
MEMORANDUM
April 1, 1999
The Honorable Mayor and Members of the City Council
Dick Zais, City Manager
FROM: Helen A. Harvey, Assistant City Attorney
SUBJ: City of Yakima v. Electric Lightwave, Inc.
Yakima County Superior Court Cause No. 98-2-03045-2
Electric Lightwave's motion for summary judgment was
heard this morning by Judge Bob Hackett. Electric Lightwave requested
a ruling that the federal Telecommunications Act of 1996 preempts the
Charter provision requiring approval by a majority of the voters prior to
the issuance of a franchise (Article XI, Section 2 of the City Charter) .
Judge Hackett granted Electric Lightwave's motion for
summary judgment. He held that 47 U.S.C. § 253(a)1 is an "express
preemption" of the City's Charter requirement of a popular vote. He
stated that the "clear intent" of Congress in enacting the
Telecommunications Act of 1996 was to foster "open competition" for
telecommunications companies. He stated that requiring approval by a
majority of the voters prior to the issuance of a franchise would be
inconsistent with the goals of the 1996 Act. In making this statement,
142 USC § 253, which is entitled "Removal of barriers to entry," provides
in subsection (a):
"No State or local statute or regulation, or other State or local legal
requirement, may prohibit or have the effect of prohibiting the ability of
any entity to provide any interstate or intrastate telecommunications
service" (emphasis added). Judge Hackett ruled that the voting
requirement has the "effect of prohibiting" Electric Lightwave's entry into
this market.
Memo to City Council and Dick Zais re
April 1, 1999
Page 2
Citi' v. Elect-ic Lig h wave
he very briefly referred in dictum to an "affirmative vote by a City
Council" as likewise being inconsistent witt•, the Act.
Judge Hackett's ruling is limited to only Section 2 of Article
XI of the City Charter, and does not deal with the remaining sections of
Article XI. Furthermore, the ruling did not impact the voting
requirement for non -telecommunications providers (for example, Cascade
Natural Gas), since the court's ruling was based specifically on federal
legislation dealing with telecommunications.
A written order will be prepared and presented to Judge
Hackett. It is possible we will be able to agree on the wording of the
order and present an agreed order.
an election.
In summary, Electric Lightwave can have a franchise without
The hearing on the renewal of the Temporary License
Agreement with Electric Lightwave remains set before the City Council on
Tuesday, April 6.
CM( OYL��
LEGAL
DEPARTMENT
RECEIVED
CITY OF YAKIMA
MAR 2 9 1999
200SwthThmdSheekYalcima,Washington 93901-2830
OFF: C4y
PRIVILEGED AND CONFIDENTIAL: COVERED BY THE ATTORNEY-CLIENT
AND ATTORNEY WORK PRODUCT PRIVILEGES
MEMORANDUM
March 26, 1999
TO: The Honorable Mayor and Members of the City Council
Dick Zais, City Manager
FROM: Helen A. Harvey, Assistant City Attorney
SUBJ: City of Yakima v. Electric Lightwave, Inc.
Yakima County Superior Court Cause No. 98-2-03045-2
Summary Judgment Motion
Attached is a copy of Electric Lightwave's reply
memorandum in support of its motion for summary judgment, which we
received today. Electric Lightwave's motion for summary judgment is
scheduled for April 1, 1999.
cc: Bill Cook, Department of Community and Economic Development
Randy Beehler, Cable Communications Manager (both with encls.)
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RECEIVED
MAR 2 61999
CITY LEGAL DEPT.
IN THE SUPERIOR COURT OF THE STATE OF WASHINGTON
FOR THE COUNTY OF YAKIMA
CITY OF YAKIMA, a municipal corporation of
the State of Washington,
Plaintiff,
v.
ELECTRIC LIGHTWAVE, INC., a Delaware
corporation,
Defendant.
Case No. 98 2 03045 2
DEFENDANT'S REPLY
MEMORANDUM IN SUPPORT
OF ITS MOTION FOR
SUMMARY JUDGMENT
INTRODUCTION
Defendant Electric Lightwave, Inc. ("ELI") has moved for this Court's
summary ruling that the Federal Telecommunications Act of 199E preempts Article XI,
Section 2 of the Yakima City Charter. The question presented is strictly a matter of legal
interpretation, free of any factual controversy. Because the Federal Act expressly preempts
local barriers to entry, ELI's summary judgment motion should be granted.
THE 1996 ACT EXPRESSLY PREEMPTS STATE AND LOCAL SUBSTANTIVE
REGULATION
The City's brief ably summarizes the three general areas in which federal
preemption of state or local law may arise: (1) express Congressional preemption; (2) where
Congress has occupied an entire field; and (3) where state law conflicts with federal law.
However, the City's discussion of the second and third types of preemption is irrelevant here,
because the 1996 Act expressly preempts the type of local substantive regulation created by
DEFENDANT'S REPLY MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY
P'DGMENT n Page 1
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the Yakima City charter provision at issue.
The 1996 Act, at 47 USC § 253, contains a clear and express statement of
Congressional intent to preempt state and local substantive regulation of the
telecommunications industry. That statute is entitled "Removal of Barriers to Entry" and its
very first subsection provides as follows:
"(a) No State or local statute or regulation, or other State or
local legal requirement, may prohibit or have the effect of
prohibiting the ability of any entity to provide any interstate or
intrastate telecommunication service."
This is nothing Less than an express statement of preemption.
The City points out that the 1996 Federal Telecommunications Act "does not
contain express language prohibiting an election process." City's Memorandum, p. 7. This
statement is Iiterally true. The City would thus conclude that the Act "does not contain
express indicia of Congressional intent to preempt a voter approval provision relating to
franchises affecting a city's rights-of-way." Id
This view exaggerates the level of specificity that Congress must employ in its
laws to articulate express federal preemption. The City apparently believes that a finding of
express federal preemption can be founded only upon an extremely explicit and literal level
of specificity. However, this is simply not so. Indeed, the four cases cited by the City prove
this is not so.
The issue in Cipollone' was federal cigarette labeling legislation. In All -Pure
Chem. Co v. White2, Goodwin v. Bacon', and Hue v. Farmboy Spray Co., Inc.', it was federal
insecticide legislation. In all of these cases, the question was whether these federal laws
preempted private state -law tort or contract claims. None of the federal legislation being
construed made any specific mention of private tort or contract claims. Yet in each case such
' Cipollone v. Liggett Group, Inc., 505 US 504, 112 S Ct 2608, 120 L Ed 2d 407 (1992).
2 127 Wn 2d 1, 896 P2d 697 (1995).
3 127 Wn 2d 50, 896 P2d 673 (1995).
127 Wn 2d 67, 896 P2d 682 (1995).
DEFENDANT'S REPLY MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY
JUDGMENT - Page 2
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1 claims were held to be expressly preempted by the federal legislation
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The fact that 47 USC § 253(a) does not specifically refer to municipal
elections does mean *hot it does not expressly pr? pt 1 t w Indeed,
the
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cigarette labeling laws discussed in Cipollone also do not specifically refer to municipal
elections. Yet it is difficult to imagine that a state or local ballot measure requiring that
cigarettes carry poison stickers could possibly be sustained under Supremacy Clause
principles. That is because the federal cigarette labeling laws expressly preempt state and
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1.4".031 aLaius?5auti7s iug,6SyC6u4ni3, l'ZNAI5S11rS.11 u3 wilai Wan jt rrgni
9 Express preemption does not require that the statute refer to all of the specific
10 possible mechanisms by which a state or local legal barrier to entry might be created. As the
11 City correctly points out, Section 253(a) does not specifically refer to the electoral process. It
12 also does not refer to taxes, ordinances, initiative petitions, legislative resolutions, or
13 gubernatorial or mayoral executive proclamations. The statute does not have to refer to all of
14 these numerous possible mechanisms for creating a barrier to entry, because the statute
15 embraces all of them through its comprehensive Language.
16 What roust be shown to find express federal preemption is a clear showing of
17 i Congressional intent. As the City notes, a federal statute may make that clear showing
18 explicitly or it may be "implicitly contained in its structure and purpose." Cipollone, supra,
19 505 US at 516. In the case of the 1996 Act, we submit that Congress was quite explicit.
20 Section 253(a) expressly provides for federal preemption. It speaks of
21 "Removal of Barriers to Entry." It expressly prohibits state or local "legal requirements" that
22 may restrict telecommunication services. it expressly extends to legal requirements that may
23 simply have "the effect" of prohibiting the ability to provide telecommunication services.
24 We submit that this language is considerably more express and specific than the statutory
25 language construed in either the federal cigarette labeling laws or the insecticide laws.
26 The plain fact is that the City's election requirement for franchises is a "legal
DEFENDANTS REPLY MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY
JUDGMENT - Page 3
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1 requirement" that constitutes a "barrier to entry." $ It is thus expressly preempted under the
2 1996 Act.
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ELI MAY NOT BE COMPELLED TO UNDERGO AN ELECTORAL PROCESS
THAT THE CITY MAY NOT CONSTITUTIONALLY REQUIRE
5 As anticipated, the City appears to argue also that its charter provision does
6 not create a barrier to entry for ELI, because it can not be known in advance what the
7 outcome of a popular vote would be. City's Memorandum, p. 8. However, this argument
8 misses the point.
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The 1996 Telecommunications Act has removed substantive regulatory power
10 from state or local control. This must include any requirement of a popular up -or -down vote
11 on a proposed franchise. There simply is no room in this new statutory and regulatory
12 . framework for a political process at the local level. The City may not condition approval of
13 ELI's franchise on anything more substantive than reasonable regulation of the public rights -
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i ts-14 of -way.' Accordingly, ELI cannot be compelled to undergo a popular vote the City could not
15 constitutionally require in the first place. See AT&T Communications of the Southwest, Inc.
16 v. City of Austin, 975 F Supp 928, 942 (WD Tex 1997) ("AT&T should not be penalized for
17 refusing to comply with an ordinance the City had no authority in the first instance to
18 impose.")
19 The fact is that an election "may" "have the effect of prohibiting" ELI's ability
20
s It is apparent that having to stand for a municipal election is more burdensome, more of a
1 "barrier to entry," than the 18 -page franchise application struck down in AT&T
Communications of the Southwest, Inc. v. City of Dallas, 8 F Supp 2d 582 (ND Tex 1998).
22 6 It is undisputed that ELI is willing and prepared to submit to the City of Yakima's
23 management of the public rights-of-way in connection with ELI's proposed new fiber optic
cable services. It is further undisputed that ELI is willing and prepared to provide fair and
24 reasonable compensation to the City of Yakima, consistent with other state and federal laws
and regulations. Affidavit of Dean Nasery, ¶ 5.03. This is the furthest extent of authority
25 remaining at the municipal level pursuant to 47 USC § 253(c). See AT&T Communications
of the Southwest, Inc. v. City of Dallas, 8 F Supp 2d 582, 592-93 (ND Tex 1998) ("granting a
26 franchise may only be conditioned on a company's agreement to comply with the city's
reasonable regulations of its right-of-way and the fees for use of those rights-of-way").
DEFENDANT'S REPLY MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY
JUDGMENT - Page 4
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to provide telecommunications services in Yakima. That is precisely what the Act does not
permit No election can be required under the plain language of the 1996 Act.
CONCLUSION
For the reasons set forth above and in ELrs opening brief, ELI respectfully
requests that the Court summarily rile that Article XI of Section 2 of the City of Yakima
Charter, as it applies in these circ, is preempted by the Federal
Telecommunications Act of 1996.
.I
DATED ED this ZE7iay of March, 1999.
TONKON TORP LLP
By
EDWIN C. PERRY, WS 1 A NO. 15082
Of Attorneys for Defendant
DEFENDANTS REPLY MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY
JUDGMENT - Page 5
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1 CERTIFICATE OF SERVICE
2
3 ' I hereby certify that I served the foregoing DEFENDANT'S REPLY
4 MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT
5 on:
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Helen A. Harvey
Senior Assistant City Attorney
City of Yakima Legal Department
200 South Third Street
Yakima, WA 98901-2830
Of Attorneys for Plaintiff
❑ by mailing a copy thereof in a sealed, first-class postage prepaid envelope,
addressed to each attorney's last -known address and depositing in the U.S. mail at Portland,
Oregon on the date set forth below;
❑ by causing a copy thereof to be hand -delivered to said attorneys at each
attorney's last -known office address on the date set forth below;
REby sending a copy thereof via overnight courier in a sealed, prepaid
envelope, addressed to each attorney's last -known address on the date set forth below; or
by faxing a copy thereof to each attorney at his last -known facsimile
number on the date set forth below.
DATED this 26th day of March, 1999.
TONKON TORP LLP
009274,00005452661 .01
CERTIFICATE OF SERVICE - Page 1
By
EDWIN C. PER1 Y, WSBA NO. 15082
Of Attorneys for Defen
TONKON TORP us
AalaeIye $ Law
$U S.W. 9'i* Suits 1600
!Wank On_ 97204.2099
Telephone 007)221.1040
ELECTRIC
LIGHTWAVE
February 16, 1999
Mailing Address:
Electric Lightwave, Inc.
4400 N.E. 77th Avenue
Vancouver, Washington 98662
(360) 816-3000 Fax: (360) 816-8934
Mr. Randy Beehler
City of Yakima
124 South Second Street
Yakima, WA 98901
RE: ELI License Agreement
Dear Randy:
Per our conversation today, I am sending this letter to confirm out interest in extending
our exiting Temporary License Agreement. ELI is approximately thirty days away from
finalizing engineering plans for contractor bid and City permits. Our concern is that our
construction shall be completing at the time our existing agreement expires, and that
due to the legal proceedings and ongoing development of the permanent Franchise
Agreement, ELI will be in violation of our temporary agreement.
As we discussed, it is in the best interest of both parties to request that the City Council
grant ELI a 12 month extension to our existing agreement. This will allow ELI to begin
the construction of our $3,000,000.00 fiber optic system without the fear of time running
out on our temporary agreement, and allow the needed time for the permanent
agreement to be legally resolved and negotiated. Further, ELI will agree to language
obligating us to negotiate with diligence towards to completion of the permanent
agreement (pending legal resolution), and that as soon as a permanent agreement is
achieved, the temporary agreement shall terminate.
Please feel free to contact me with any questions that you may have. Thank you for
your assistance with this matter.
Sincerely,
Electric Lightwave, Inc.
dward (Ed F. Fournier
Real Estate Manager
Direct Line: 360/816-3998
E -Mail: ed_fournier@eli.net
DEPARTMENT OF COMMUNITY AND ECONOMIC DEVELOPMENT
129 North Second Street
Yakima, Washington 98901
FaX (5 09) 575-6105
William R. Cook, Director
March 19, 1999
Mr. Ed Fornier
Real Estate Manager
Electric Lightwave, Inc.
400 N.E. 77th Avenue
Vancouver, WA 98662
RE: Temporary License Agreement with City of Yakima
Dear Mr. Fornier:
In response to your February 16, 1999 letter requesting an extension of
the Temporary License Agreement ("License") granted to Electric Lightwave, Inc.
("ELI") by the Yakima City Council on April 28, 1998, we will submit to the City
Council a renewal of the existing License for an additional year. Attached, for
your review and files, are the proposed documents that will be submitted to the
City Council for its Council meeting on April 6, 1999. By renewing the existing
License, ELI can continue to progress in its design, construction and
deployment of its proposed fiber optic telecommunications network without
undue interruption while matters related to negotiation and issuance of a
franchise agreement are resolved.
The attached Temporary License Agreement renewal is identical to the
Agreement approved in 1998, with the exception that the applicable dates have
been changed from 1998 to 1999, and one sentence has been added regarding
umbrella liability insurance. On page 6, in Section 10, h, (3), "Umbrella
Liability Insurance," the following sentence has been added at the end of the
paragraph: "Providing coverage in the amounts set forth shall not be construed
to relieve the licensee from liability in excess of those limits." That sentence
simply clarifies ELI's responsibility regarding liability insurance coverage and
its effect.
The attached Temporary License Agreement renewal is scheduled to be
considered by the City Council at its April 6, 1999, regular agenda meeting.
That meeting will begin at 2:00 p.m. and will be held at Yakima City Hall, 129
North 2nd Street. As we have discussed, you may want to consider having an
ELI representative present at the meeting to address any questions that may be
raised by Council members. Yakima
Till'
Cable T.V. 575-6092 • Code Administration 575-6121 • Engineerrng 575-6111 • Neighborhood Services 575.6101 • Planning 575.6183 i�L
Mr. Ed Fornier
March 19, 1999
Page 2
I appreciate your continuing professionalism and cooperation in
addressing matters related to ELI's entrance into the Yakima market. While
some issues regarding issuance of a franchise to ELI remain to be resolved,
significant progress has been made. The City is committed to ensuring that
ELI and all telecommunications providers are afforded a competitively neutral
opportunity to provide services to Yakima citizens. The attached Temporary
License Agreement renewal represents another positive step in meeting that
objective.
If you have any questions about the attached Temporary License
Agreement renewal, the process of presenting it for the City Council's
consideration, or any other issue related to this matter, feel free to contact me.
My office phone number is 509-575-6092.
I look forward to speaking with you soon.
Sincerely,
CITY
YAKIMA
RB/bjf
Enc.
Randy Beehler
Cable Communications Manager
TEMPORARY LICENSE AGREEMENT
AN AGREEMENT GRANTING A LICENSE TO ELECTRIC LIGHTWAVE,
INC., A DELAWARE CORPORATION, TO CONSTRUCT, OPERATE AND
MAINTAIN A TELECOMMUNICATIONS NETWORK IN THE CITY OF
YAKIMA, WA., IN CONTEMPLATION OF A TELECOMMUNICATIONS
FRANCHISE ENABLING ORDINANCE (TELECOMMUNICATIONS
RIGHT-OF-WAY ORDINANCE) AND FRANCHISE ADOPTED PURSUANT
THERETO; ' SETTING FORTH TERMS AND CONDITIONS
ACCOMPANYING THE GRANT OF THE TEMPORARY LICENSE AND
PROVIDING FOR THE REGULATION OF CONSTRUCTION, OPERATION,
MAINTENANCE AND USE OF THE NETWORK AND CITY RIGHTS -OF
WAY.
PURPOSE
The City of Yakima ("City") intends, by the adoption of this Temporary
License Agreement ("License") to allow Electric Lightwave, Inc., a Washington
corporation ("Licensee"), to begin preparation for and operation of a
Telecommunications Network prior to adoption of a Telecommunications
Franchise Ordinance (Telecommunications Right -of -Way Ordinance) and
Franchise pursuant thereto.
1. Licensee has applied to the City for permission to use City
rights-of-way for the purpose of deploying fiber optic
infrastructure and services in the City. This License grants
authority to construct and install, prior to formal adoption of a
Franchise Ordinance (Telecommunications Right -of -Way
Ordinance) and Franchise, a fiber optic network and infrastructure
in the locations shown on attached Exhibit 1.
2. This License authorizes Licensee to begin providing
switched and non -switched services to business customers within
the City. Additional services may be permitted in accordance with
the subsequently -adopted Franchise.
3. This License is granted subject to all City Ordinances, now
and hereafter enacted, the City Charter, applicable state and
Temporary License Agreement
Page 1
federal law and, specifically, pursuant to Yakima Municipal Code
("YMC") Section 5.50.050.
4. It is proposed that infrastructure will be placed above
ground on existing poles or underground in existing conduit to the
fullest extent possible, and Licensee shall avoid disturbance of the
rights-of-way to the fullest extent possible. In the event opening
or disturbance of a street or other City right-of-way is required,
Licensee shall so notify City and comply with all other notification
and permitting requirements of the City.
5. This License is effective for a period of 1 year from its
effective date or until the City and Licensee enter into a final
franchise agreement pursuant to a Franchise Enabling Ordinance
(Telecommunications Right-of-Way Ordinance) adopted by City
and such franchise becomes effective, whichever occurs sooner.
6. No act, event, occurrence or thing shall give Licensee any
rights to occupy or use the City's rights-of-way permanently nor
shall operate as an estoppel against the City. Upon expiration of
this License or revocation by the City Council, Licensee shall
remove its infrastructure or other facilities from City rights-of-way
to the satisfaction of City, should no longer-term Franchise be
granted.
7. This License is not exclusive. The City expressly reserves the
right to grant such rights, permits, licenses or franchises to other
persons or entities to use City rights-of-way for similar or different
purposes allowed shall,
8. Licensee shall, dur i lg the effective period of this License,
include all revenue received relating to its telecommunications
business in City as taxable activities, subject to the six percent (6%)
rate imposed under the City's occupation taxes on utilities, YMC
Section 5.50.050.
9. Licensee shall pay City all reasonable costs of granting or
enforcing the provisions of this License and subsequently
adopted franchise, whether as a result of apportioned or
attributed in-house expenses or actual out-of-pocket expenses or
administrative costs, as well as expenses in retaining
independent legal, technical or financial consultants or advisors.
Temporary License Agreement
Page 2
Such obligation further includes municipal fees related to
receiving and approving rights-of-way opening permits,
inspecting plans and construction or relating to the
preparation of a detailed statement pursuant to RCW Chapter
43.21(c).
10. This License is granted subject specifically to Licensee:
a. Negotiating in good faith and entering into a longer-
term franchise;
b. Notifying the City sufficiently in advance of the time
installation of infrastructure will start and when it
will be completed;
c. Notifying in advance of installation of infrastructure
any utility or property owner who may be subject to
damage or inconvenience during performance of the
work and making all necessary arrangements for the
protection of the interests of any such utility or
property owner;
d. Completing installation of infrastructure with
diligence and with due respect to all property,
contracts, persons, rights and the interests and rights
of the public;
e. Holding the City, its elected officials, agents, officers,
and employees harmless from any and all damage
which may accrue or be claimed to accrue to any
person or property because of said infrastructure
installation or maintenance of same;
f. Notifying utilities of any work to be done under this
License by calling no less than forty-eight (48) hours
prior to the opening of rights-of-way, installing or
otherwise disturbing property employed by such
utility;
g. Maintaining lanes of vehicular traffic in each direction
at all times during infrastructure installation or
maintenance;
Temporary License Agreement
Page 3
h. Insurance:
(1) Commercial Liability Insurance. On or before date
this Agreement is fully executed by the parties, Licensee
shall provide the City with a certificate of insurance as proof
of commercial liability insurance with a minimum liability
limit of Five Hundred Thousand Dollars ($500,000.00)
combined single limit bodily injury and property damage.
This coverage will have a per job aggregate endorsement
and Washington stop gap coverage. The certificate shall
clearly state who the provider is, the amount of coverage_
the policy number, and when the policy and provisions
provided are in effect (any statement in the certificate to the
effect of "this certificate is issued as a matter of information
only and confers no right upon the certificate holder" shall
be deleted). Said policy shall be in effect for the duration of
this Temporary License Agreement. The policy shall name
the City, its elected officials, officers, agents and employees
as additional insureds, and shall contain a clause that the
insurer will not cancel or change the insurance without first
giving the City thirty (30) calendar days prior written notice
(any language in the clause to the effect of "but failure to
mail such notice shall impose no obligation or liability of any
kind upon the company" shall be crossed out and initialed
by the insurance agent). The insurance shall be with an
insurance company or companies rated A-VII or higher in
Best's Guide and admitted inure State of Washington. if
Licensee uses any contractors and/ or subcontractors to
perform any of the work referenced in this Temporary
License Agreement, the contractors and/ or subcontractors
shall maintain the same minimum limits of liability and
comply with all other provisions discussed above in this
paragraph entitled "Commercial Liability Insurance."
(2) Commercial Automobile Liability Insurance.
On or before the date this Agreement is fully executed by the
parties, Licensee shall provide the City with a certificate of
insurance as proof of commercial automobile liability
Temporary License Agreement
Page 4
insurance with a minimum liability limit of Five
Hundred Thousand Dollars ($500,000.00) combined with
single limit bodily injury and property damage. The
certificate shall clearly state who the provider is, the amount
of coverage, the policy number and when the policy and
provisions provided are in effect (any statement in the
certificate to the effect of "this certificate is issued as a
matter of information only and confers no right upon the
certificate holder" shall be deleted). Said policy shall be in
effect for the duration of this Agreement. The policy shall
name the City, its elected officials, officers, agents and
employees as additional insureds, and shall contain a clause
that the insurer will not cancel or change the insurance
without first giving the City thirty (30) calendar days prior
written notice (any language in the clause to the effect of
"but failure to mail such notice shall impose no obligation or
liability of any kind upon the company" shall be crossed out
and initialed by the insurance agent). The insurance shall be
with an insurance company or companies rated A -VII or
higher in Best's Guide and admitted in the State of
Washington. If Licensee uses any contractors and/or
subcontractors to perform any of the work referenced in this
Temporary License Agreement, the contractors and/or
subcontractors shall maintain the same minimum limits of
liability and comply with all other provisions discussed
above in this paragraph entitled "Commercial Automobile
Liability Insurance."
(3) Umbrella Liability Insurance. Licensee and its
contractors and subcontractors shall maintain umbrella
liability insurance coverage, in an occurrence form, over
underlying commercial liability and automobile liability. On
before date this Agreement is fully executed by the parties,
Licensee shall provide the City with a certificate of insurance
as proof of umbrella coverage with a minimum liability limit
of Three Million Dollars ($3,000,000.00). The insurance shall
be with an insurance company or companies rated A -VII or
Temporary License Agreement
Page 5
higher in Best's Guide and admitted in the State of
Washington. Providing coverage in the amounts set forth
shall not be construed to relieve the licensee from liability in
excess of those limits.
11. The following additional representations and conditions also
apply:
a. Licensee understands the City plans to prepare and
adopt a Telecommunications Right -of -Way Ordinance
and Licensee agrees to enter into a franchise provided
for therein prior to or at such time as City adopts such
� A
Ordinance, or at such time that the execution of such
franchise has received all necessary approvals;
b. Backfilling and replacing of pavement between curb
and property shall be done by Licensee to the
satisfaction of City and, if not acceptable upon City
inspection, shall be completed at Licensee's expense;
c. City required improvements must not be delayed or
otherwise impeded by work authorized by this
License;
d. This License is temporary only;
e. This License is not transferable.
12. Backfill and repair of street, alley or other City rights-of-way
shall be completed in accordance with all City Ordinances
and to the satisfaction of the City Engineer. All restoration
must be completed to the same or better condition than
found. Traffic, control devices to protect and control
pedestrian and vehicular traffic in any construction or
infrastructure installation areas may be prescribed by City.
13. If it ever becomes necessary to excavate or relocate the lines,
facilities or other infrastructure of Licensee pursuant to this
License, such shall be at Licensee's risk and expense. If such
excavation or relocation is done by Licensee or its assigns, it
shall hold City harmless from any claims or damages and
such excavation or relocation shall be subject to the terms of
this License, unless otherwise then agreed to by the parties
thereto.
Temporary License Agreement
Page 6
14. Indemnity and Hold Harmless. The Licensee shall protect,
defend, indemnify and hold harmless the City, its elected
officials, agents, officers and employees from any and all
claims, demands, damages, losses, liens, liabilities, penalties,
fines, lawsuits, judgments, awards, costs and expenses
(including attorney's fees and disbursements) arising
directly or indirectly from or out of, relating to or in any way
connected with the performance or non-performance of the
activities of the Licensee and/or its contractors or
subcontractors referred to in this Temporary License
Agreement, including but not limited to, the construction
and installation of a fiber optic network and infrastructure in
the City, except in the event of gross negligence or
intentional misconduct on the part of the City.
15. At such time as a Franchise for the construction, operation
and maintenance of a Telecommunications Network is
adopted by the City, all terms and conditions and
permission granted by this Temporary License will become
null and void and Licensee agrees to be bound by the terms
and conditions of said Franchise.
Dated this
CITY OF YAKIMA
ohn Puccinelli
Mayor
Attest:
day of April, 1999.
ELECTRIC LIGHTWAVE, INC.
By:
Its:
City Clerk , Karen S. Roberts
City Contract No: Qq- V V
Resolution No: ,('-ex-V()
Temporary License Agreement
Page 7
State of )
County of )
I hereby certify that I know or have satisfactory evidence that
is the person who appeared before me, and said
person acknowledged that he/she signed this instrument, and on oath stated
that he/she was authorized to execute the instrument on behalf of Electric
Lightwave. Inc.. and acknowledged it as the of Electric
Lightwave, Inc., to be the free and voluntary act of such party for the uses and
purposes mentioned in this instrument.
Dated this day of April, 1999.
Print Name:
NOTARY PUBLIC in and for the State of
residing at
My commission expires:
Temporary License Agreement
Page 8
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 14
For Meeting Of April 6. 1999
ITEM TITLE: A resolution authorizing the Mayor to execute a Temporary
License Agreement renewal with Electric Lightwave, Inc., a Delaware
corporation, which authorizes Electric Lightwave, Inc. to occupy City rights-of-
way in order to construct, operate and maintain a telecommunications network
for the purpose of providing switched and non -switched telephone service in the
City.
SUBMITTED BY:
Department
ok, Director, Community and Economic Development
CONTACT PERSON/TELEPHONE: Randy Beehler, Cable Communications
Manager, 575-6092
SUMMARY EXPLANATION: On April 7, 1998, the City Council granted Electric
Lightwave, Inc. ("ELI") a Temporary License to occupy City rights-of-way in order
to construct, operate and maintain a telecommunications network. The License
took effect April 28, 1998, for a term of one year. Pending resolution of issues
regarding issuance of a franchise, ELI has requested the Temporary License be
renewed for an additional year. ELI has indicated it will begin construction of its
telecommunications network within the next few months (see attached letter from
Edward Fornier, of Electric Lightwave, Inc., dated February 16, 1999). ELI will be
investing approximately $3,000,000 in the first phase of constructing its fiber
optic network in Yakima. Approval of the Temporary License Agreement renewal
will allow ELI to continue to progress in the construction and deployment of its
network while matters related to a franchise agreement are resolved.
X Resolution Ordinance Contract
Other (Specify)
APPROVAL FOR SUBMITTAL: `s
City Manager
STAFF RECOMMENDATION: Approve resolution.
BOARD/COMMISSION RECOMMENDATION: N/A
COUNCIL ACTION:
MEMORANDUM
TO: Randy Beehler
FROM: Linda Watkins
DATE: July 21, 1999
SUBJECT: Contract Follow -Up
Randy, is there anything formal/final happening on the Electric Lightwave
contract? Remember I sent it to you in April for signature; I've never gotten a
signed copy back. Is it going to go anywhere? Please let me know.
Reference Council Meeting 4/6/99, Contract No. 99-44, Resolution R-99-40.
Thanks,
Linda