HomeMy WebLinkAboutR-2000-020 Temporary License Agreement with Avista Communications of Washington, Inc.is
RESOLUTION NO. R-2000- 2 0
A RESOLUTION authorizing the Mayor to execute a Temporary License
Agreement with Avista Communications of Washington, Inc., a
Washington corporation, which authorizes Avista
Communications of Washington, Inc., to occupy City of
Yakima rights-of-way in order to construct and maintain a
portion of a telecommunications system in the City of Yakima,
Washington.
WHEREAS, Avista Communications of Washington, Inc. ("Avista"), a
Washington corporation, has requested permission, under a Temporary License
Agreement, from the City of Yakima, Washington (the "City") to occupy City rights-of-
way in order to construct and maintain a portion of a telecommunications system in the
City; and
WHEREAS, the City and Avista are currently engaged in the process of
negotiation, consideration and issuance of a telecommunications system franchise; and
WHEREAS, said Temporary License Agreement provides limited authority
under a Temporary License for Avista to construct certain telecommunications facilities
in the City; 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
with Avista Communications of Washington, Inc., a Washington corporation, which
authorizes Avista Communications of Washington, Inc. to occupy City rights-of-way,
under a Temporary License, in order to construct and maintain a portion of a
telecommunications system in the City of Yakima, Washington.
ADOPTED BY THE CITY COUNCIL this 1 S day of1ZRUAR)i , 2000.
ATTEST:
City Clerk
7&
Mary Place, Mayor
TEMPORARY LICENSE AGREEMENT
AN AGREEMENT GRANTING A LICENSE TO AVISTA COMMUNICATIONS
OF WASHINGTON, INC., A WASHINGTON CORPORATION, TO
CONSTRUCT AND MAINTAIN A PORTION OF A TELECOMMUNICATIONS
SYSTEM IN THE CITY OF YAKIMA, WASHINGTON, IN CONTEMPLATION
OF THE ADOPTION OF A TELECOMMUNICATIONS SYSTEM FRANCHISE
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 AND MAINTENANCE OF A PORTION
OF A TELECOMMUNICATIONS SYSTEM AND CITY RIGHTS -OF WAY.
The City of Yakima (the "City"), by the adoption of this Temporary License
Agreement (the "License"), intends to allow Avista Communications of Washington,
Inc., a Washington corporation (the "Licensee"), to begin preparation for and
construction of a portion of a Telecommunications System prior to adoption of a
Telecommunications System Franchise 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 a Telecommunications System and to utilize such
Telecommunications System to provide Telecommunications Services in the City.
This License grants the Licensee the authority to construct and install, prior to
formal adoption of a Telecommunications System Franchise Ordinance and
franchise pursuant thereto, a portion of a Telecommunications System as shown on
and only in the locations shown on attached Exhibit 1.
2. This License does not grant the Licensee authority to begin providing
any telecommunications services to customers within the City.
3. This License is granted subject to all City ordinances, now and
hereafter enacted, the City Charter, and all applicable state and federal laws and
regulations.
TEMPORARY LICENSE AGREEMENT
Page 1
4. It is proposed that Telecommunications System infrastructure will be
placed above the ground on existing poles or underground in existing conduit to
the fullest extent possible and the 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, the Licensee shall so notify the City and comply
with all other notification and permitting requirements of the City.
5. This License is effective for a period of one -hundred twenty (120)
days from its effective date, or until the City and the Licensee enter into a final
franchise agreement pursuant to a Telecommunications System Franchise
Ordinance adopted by the City and such franchise becomes effective, whichever
occurs sooner.
6. No act, event, occurrence or thing shall give the Licensee any rights to
occupy or use City rights-of-way permanently nor shall operate as an estoppel
against the City. Upon expiration of this License or revocation by the City Council,
the Licensee shall remove its Telecommunications System infrastructure or other
facilities from City rights-of-way to the satisfaction of the City, should no franchise
be entered into between the Licensee and the City.
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 hereunder.
8. The Licensee shall pay all reasonable costs of granting or enforcing the
provisions of this License and any subsequently adopted franchise incurred by the
City, 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. 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).
TEMPORARY LICENSE AGREEMENT
Page 2
9. This License is granted subject specifically to the Licensee:
a. Negotiating in good faith with the City with the intention of
entering into a franchise;
b. Notifying the City sufficiently in advance of the time
installation of Telecommunications System infrastructure will
start and when it will be completed;
c. Notifying in advance of installation of Telecommunications
System 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 Telecommunications System
infrastructure with diligence and with due respect to all
property, contracts, persons, rights and the interests and rights
of the public;
e. Holding harmless the City from any and all damage which
may accrue or be claimed to accrue to any person or property
because of said Telecommunications System infrastructure
installation or maintenance of same;
f. Notifying utilities of any work to be done under this License by
contacting such utilities no less than forty-eight (48) hours prior
to the opening of rights-of-way, installing or otherwise
disturbing property employed by such utilities;
g. Maintaining lanes of vehicular traffic in each direction at all
times during Telecommunications System infrastructure
installation or maintenance;
h. Insurance
(1) Commercial Liability Insurance. On or before the date this
License is fully executed by the parties, the Licensee shall
provide the City with a certificate of insurance as proof of
commercial liability insurance with a minimum liability limit of
One Million Dollars ($1,000,000.00) combined single limit
bodily injury and property damage. This coverage will have a
per job aggregate endorsement and Washington stop gap
TEMPORARY LICENSE AGREEMENT
Page 3
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 License. The policy shall name
the City, its elected officials, 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 the Best's
Guide and admitted in the State of Washington. If the Licensee
uses any contractors and/or subcontractors to perform any of
the work referenced in this License, 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 License is fully executed by the parties, the
Licensee shall provide the City with a certificate of insurance as
proof of commercial automobile liability insurance with a
minimum liability limit of One Million Dollars ($1,000,000.00)
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 License. The policy shall name the City, its
elected officials, officers, agents and employees as additional
TEMPORARY LICENSE AGREEMENT
Page 4
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 the Best's Guide and
admitted in the State of Washington. If the Licensee uses any
contractors and/ or subcontractors to perform any of the work
referenced in this License, 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. The Licensee and its
contractors and/or subcontractors shall maintain umbrella
liability insurance coverage, in an occurrence form, over
underlying commercial liability and automobile liability. On or
before the date this License is fully executed by the parties, the
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 rate A -VII or higher
in the Best's Guide and admitted in the State of Washington.
10. The following additional representations and conditions also apply:
a. The Licensee understands the City plans to prepare and submit
to the Licensee for its review a Telecommunications System
Franchise Ordinance and the Licensee hereby agrees to
negotiate in good faith with the City to enter into a franchise
pursuant to said Telecommunications System Franchise
Ordinance;
b. No authority is granted to the Licensee by this License to
operate or provide any Telecommunications Services to any
TEMPORARY LICENSE AGREEMENT
Page 5
customers within the City. The sole authority granted by this
License is the authority for the Licensee to construct and
maintain a portion of a Telecommunications System as shown
on and in only the locations shown on attached Exhibit 1.
c. Backfilling and replacing of pavement between curb and
property shall be done by the Licensee to the satisfaction of the
City and, if not acceptable upon City inspection, shall be
completed at the Licensee's expense;
d. City required improvements must not be delayed or otherwise
impeded by work authorized by this License;
e. This License is temporary only;
f. This License is not transferable.
11. Backfill and repair of streets, alleys or other City rights-of-way shall
be completed in accordance with all City ordinances and regulations and to the
satisfaction of the City. 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 Telecommunications System infrastructure
installation areas may be prescribed by the City.
12. If it ever becomes necessary to excavate or relocate the lines, facilities
or other Telecommunications System infrastructure of the Licensee pursuant to this
License, such shall be at the Licensee's risk and expense. If such excavation or
relocation is done by the Licensee or its assigns, it shall hold the 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.
13. 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
attorneys 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 referred to in this License, including but not limited to the
construction and installation of a portion of a Telecommunications System and
infrastructure in the City.
TEMPORARY LICENSE AGREEMENT
Page 6
14. At such time as a franchise for the construction, operation and
maintenance of a Telecommunications System is adopted by the City, all terms and
conditions and permission granted by this License will become null and void and
Licensee agrees to be bound by the terms and conditions of said franchise.
Dated this„-.-76/lay of • , 2000.
U/
AVISTA COMMUNICATIONS
CITY OF YAKIMA OF WASHINGTON, INC.
Gtr
By:c
Mary Place, Mayor Its:...
Attest:
City Clerk
a..
ALL
City Contract No: 7onn-21
Resolution No: R-7nnn-n
TEMPORARY LICENSE AGREEMENT
Page 7
State of L JO IL
County of
/
I _hereby certify that I know or have satisfactory evidence that
''L L �kti�ti J is the person who appeared before me, and said
person acknowledged that he/she signed this instrument, and on oath stated that
she/he was authorized to execute the instrument on behalf of Avista
�
mmunicltions bf Washington, Inc., and acknowledged it as the
Leve (AL, n of Avista Communications of Washington, Inc., to be free
and voluntary act of such party for the uses and purposes mentioned in this
instrument.
) ss.
Dated this v+ ` day of\•._"-{,4't,C. .s°ft.r._.- 2000.
TEMPORARY LICENSE AGREEMENT
Page 8
Print Name: 1./Ua A d 0 i r' +.,s �� L
NOTARY PUBLIC in and for the State of
Washington, residing at J- 1 °5% r�Gvc.,c61.}
My commission expires: '7/ / ''03
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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No.
For Meeting Of February 15, 2000
ITEM TITLE: A resolution authorizing the Mayor to execute a Temporary License
Agreement with Avista Communications of Washington, Inc., a Washington corporation,
which authorizes Avista Communications of Washington, Inc. to occupy City rights-of-
way in order to construct,ind maintain a portion of a telecommunications system.
SUBMITTED BY: ti Air Cook, Director, Community and Economic Development
Department
CONTACT PERSON/TELEPHONE: Randy Beehler, Cable Communications
Manager, 575-6092
SUMMARY EXPLANATION: In November 1999, Avista Communications of
Washington, Inc. ("Avista") requested that the City grant Avista a telecommunications
system franchise. Since November 1999, a franchise has been drafted and is currently
being reviewed by both the City and Avista. Avista plans to construct a state-of-the-art
fiber optic telecommunications system in Yakima in order to provide a wide range of
enhanced telecommunications services. Avista would be Yakima's first facilities -based,
competitive local exchange carrier. Avista has said that it plans to provide up to 20 jobs
immediately and may eventually employ as many as 40 people locally. The attached
Temporary License Agreement (the "License") allows Avista to construct a portion of its
telecommunications system in order to connect its main switching equipment to the
switching equipment of another telecommunications provider. The License allows
Avista to begin construction of a portion of its telecommunications system prior to the
formal adoption and effective date of a telecommunications system franchise.
Resolution X Ordinance Other (specify)
Contract X Mail to (name & address)
Phone:
Funding Source
APPROVAL FOR SUBMITTAL:
f /%L-/7City Manager
STAFF RECOMMENDATION: Approve resolution.
BOARD/COMMISSION RECOMMENDATION: N/A
COUNCIL ACTION: