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HomeMy WebLinkAboutR-2000-153 City rights-of-way in order to construct facilitiesRESOLUTION NO. R-2000- 153 A RESOLUTION authorizing the Mayor to execute a Temporary License Agreement with Touch America, Inc., a Montana corporation, which authorizes Touch America, Inc. to occupy City of Yakima rights-of-way in order to construct and maintain a telecommunications system in the City of Yakima, Washington. WHEREAS, Touch America, Inc. ("TAI"), a Montana 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 telecommunications system in the City; and WHEREAS, the City and TAI 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 TAI to construct and maintain 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 Touch America, Inc., a Montana corporation, which authorizes Touch America, Inc. to occupy City rights-of-way, under a Temporary License, in order to construct and maintain a telecommunications system in the City of Yakima, Washington. ADOPTED BY THE CITY COUNCIL this 5th day of December ATTEST: .1<ct}, City Clerk , 2000. ary Place, Mayor TEMPORARY LICENSE AGREEMENT AN AGREEMENT GRANTING A LICENSE TO TOUCH AMERICA, INC., A MONTANA CORPORATION, TO CONSTRUCT AND MAINTAIN 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 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 Touch America, Inc., a Montana corporation (the "Licensee"), to begin preparation for and construction 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 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 six (6) months 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 location 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. Said policy shall be in effect for the duration of this License. The policy shall name the City, its elected and appointed officials, agents and employees as additional insureds, and the insurance shall not be cancelled or changed without the Licensee first giving the City thirty (30) calendar days prior written notice. 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. Said policy shall be in effect for the duration of this License. The policy shall name the City, its elected and appointed officials, officers, agents and employees as additional insureds, and the insurance shall not be cancelled or changed without the Licensee first giving the City thirty (30) calendar days prior written notice. 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 TEMPORARY LICENSE AGREEMENT Page 4 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 customers within the City. The sole authority granted by this License is the authority for the Licensee to construct and maintain a Telecommunications System as shown on and in only the locations shown on attached Exhibit 1. TEMPORARY LICENSE AGREEMENT Page 5 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,. -)f day of ,e ai �i , 2000. CITY OF YAKIMA TOUCH AMERICA, INC. /2/4 gee, Marace, Mayor City Contract No: ofO O- r'1 to Resolution No: %-a000- 153 TEMPORARY LICENSE AGREEMENT Page 7 iiii/1/4/‘8Pz-e..1% Its:.�.:'W ,t.J'\ State of bk.At-a , ) ss. County of,_,, h, (i Q (ti.\ ) I hereby .. ertify that I know or have satisfactory evidence that �' ),., L, u �, 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 Touch America, Inc., and acknowledged it as the - _ GALS of Touch America, Inc., to be the free and voluntary act of such party for the uses and purposes mentioned in this instrument. ((�� Dated this LIT -0 day of ' ,rmk1! . , 2000. Print Name: l/- V uii t- NOTARY PUBLIC in and for the State of Montana, residing at My commission expires: TEMPORARY LICENSE AGREEMENT Page 8 (1c, 7 2_4064 America,Inc. - Yakima,Washington Fiber AT&T Corp./TouchOptic Build EXHIBIT 1 9 GATEWA CENTER MP32.9 Proposed location for TA!AT&T project to onnect to Light Lanes. TERRACE HEIGHTS DR N. E SPRUCE ST Yakima - E ADAMS ST E HENNING ST" GUN CLUB RD W PEACH ST V ARLINGTON AVE W N W ARLINGTON AVE L., ILI 11111111 111 II W 111 Q' I Pil 11111 W MEAD AVE 11111 E MEAD AVE imommapwrith, imp IN CENTRAL AVE W VIOLA AVE W LOGAN AVE Route from Spokane (Under Construction) Proposed Route WSDOT "Light Lanes" Project E NOB HILL BLVD W BIRCHFIELD RD BIRCHFIELD RD 8181( BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. l For Meeting Of December 5. 2000 ITEM TITLE: A resolution authorizing the Mayor to execute a Temporary License Agreement with Touch America, Inc., a Montana corporation, which authorizes Touch America, Inc. to occupy City rights-of-way in order to construct and maintain a telecommunications system. SUBMITTED BY: Department Cook, Director, Community and Economic Development CONTACT PERSON/TELEPHONE: Randy Beehler, Cable Communications Manager, 575-6092 SUMMARY EXPLANATION: In August 2000, Touch America, Inc. ("TAI") requested that the City grant TAI authority to occupy City rights-of-way in order to construct certain telecommunications facilities. A portion of the proposed telecommunications facilities would be owned by TAI and a portion would be owned by AT&T Corp. ("AT&T"). TAI would utilize its portion of the proposed telecommunications facilities to provide certain "long haul" services it is authorized to provide by the Washington Utilities and Transportation Commission (the "WUTC"). AT&T would utilize its portion of the proposed telecommunications facilities to provide certain services it is authorized to by both the WUTC and under a franchise granted by the City. Currently, the City and TAI are in the process of drafting and negotiating a telecommunications system franchise. The attached Temporary License Agreement (the "License") allows TAI to construct certain telecommunications facilities 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: `cam -S � _ City Manager J STAFF RECOMMENDATION: Approve resolution. BOARD/COMMISSION RECOMMENDATION: N/A COUNCIL ACTION: