HomeMy WebLinkAboutR-2001-091 Construction and maintenance of the telecommunications systemRESOLUTION NO. R-2001- 91
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 under a Temporary License in order to
continue to construct and maintain a telecommunications
system in the City of Yakima, Washington.
WHEREAS, on December 5, 2000 the Yakima City Council passed resolution
No. R-2000-153 authorizing execution of a Temporary License Agreement (City of
Yakima Contract No. 2000-96) with Touch America, Inc. ("TAI"), a Montana
corporation, to occupy City rights-of-way under a Temporary License in order to
construct and maintain a telecommunications system in the City; and
WHEREAS, said Temporary License Agreement took effect on December 20,
2000 for a term of six (6) months and will, therefore, expire on June 20, 2001; and
WHEREAS, TAI has requested the City grant TAI another Temporary License
under a Temporary License Agreement in order that TAI be authorized to occupy City
rights-of-way in order to continue 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 continue to construct
and maintain a telecommunications system in the City of Yakima, Washington.
ADOPTED BY THE CITY COUNCIL this 5 day of , 2001.
ATTEST:
Wat.../Le.„
City Clerk
i/Ze.
ary Place, Mayor
TEMPORARY LICENSE AGREEMENT
AN AGREEMENT GRANTING A TEMPORARY LICENSE TO TOUCH
AMERICA, INC., A MONTANA CORPORATION, TO OCCUPY CITY RIGHTS-
OF-WAY IN ORDER 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 IN 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 occupy City rights-of-way in order to construct 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 occupy 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 occupy City rights-of-way in
order to construct and install, prior to formal adoption of a Telecommunications
System Franchise Ordinance and franchise pursuant thereto, a Telecommunications
System.
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 City 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 will 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
entity or any persons within the City. The sole authority
granted by this License is the authority for the Licensee to
occupy City rights-of-way in order to construct and maintain a
Telecommunications System.
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.
TEMPORARY LICENSE AGREEMENT
Page 5
11. Backfill, repair and restoration 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 Telecommunications System and related
infrastructure in the City.
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
the Licensee agrees to be bound by the terms and conditions of said franchise.
TEMPORARY LICENSE AGREEMENT
Page 6
• •
Dated this G'Ciday of Jai() e , 2001.
CITY OF YAKIMA
Attest:
City Clerk Co - « -0
TOUCH AMERICA, INC.
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By:
its: /9
City Contract No: 2001-59
Resolution No: 2001'1
State of rn i -t n LL
) ss.
County of Le' L,,21 s 4- akr-1
I hereby certify that I know or have satisfactory evidence that
u ct n e Lir • k- is the person who appeared before me, and said
person acknowledge 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 y, _ Pet' . Cv 0..rv,cier of Touch America, Inc., to be
the free and voluntary act of such party for the us's and purposes mentioned in this
instrument.
Dated this ZL day of , 2001.
Print Name: kr., un r�
NOTARY PUBLIC in and for the State of
Montana, residing at 1.1 c.1 z n
My commission expires: "cat 3, 2.004
TEMPORARY LICENSE AGREEMENT
Page 7
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No.
For Meeting Of June 5, 2001
ITEM TITLE: A resolution authorizing the Mayor to execute a Temporary License Agreement with Touch
America, Inc. to occupy City rights-of-way under a Temporary License in order to construct and maintain a
telecommunications system.
SUBMITTED BY: Cook, Director of Community & Economic Development
CONTACT PERSON/TELEPHONE: Randy Beehler, Telecommunications Manager, 575-6092
SUMMARY EXPLANATION:
On Dec. 5, 2000, the City Council passed City of Yakima Resolution No. R-2000-153 granting Touch Amenca, Inc.
("TAI") a Temporary License under a Temporary License Agreement (City of Yakima Contract No. 2000-96). The
Temporary License allowed TAI to occupy City nghts-of-way in order to construct certain telecommunications
facilities. TAI plans to eventually utilize its telecommunications facilities in Yakima to provide certain "long-haul"
telecommunications services as authorized by the Washington Utilities and Transportation Commission. Currently,
the City and TAI are in the process of negotiating a long-term telecommunications system franchise. However, the
franchising process will not be completed pnor to the expiration date (June 20, 2001) of the ongmal Temporary
License Agreement. The attached Temporary License Agreement allows TAI to continue installation of
telecommunications facilities and to continue repair and restoration of City nghts-of-way and other property prior to
the formal adoption and effective date of a telecommunications system franchise.
As also contained in the onginal Temporary License Agreement, Sections 4, 9(c), 9(d), 10(c), 10(d) and 11 of the
attached Temporary License Agreement require TAI to repair and restore all City rights-of-way and/or other property
disturbed or damaged during installation of telecommunications facilities to the same or better condition than prior to
the installation to the satisfaction of the City. TAI has begun repair and restoration of City rights-of-way and other
property in accordance with the Temporary License Agreement currently in place and other applicable City
ordinances and requirements. The City continues to provide oversight of and to inspect all repair and restoration work
done by TAI and to require all such repair and restoration work done by TAI to be completed to the satisfaction of the
City.
Resolution X Ordinance Other (Specify)
Contract X Mail to (name and address): Phone:
Funding Source
APPROVED FOR SUBMITTAL:
City Manager
STAFF RECOMMENDATION: Approve resolution
BOARD/COMMISSION RECOMMENDATION: N/A.
COUNCIL ACTION: Resolution adopted. RESOLUTION NO. R-2001-91