HomeMy WebLinkAboutR-1998-043 License Agreement / Electric Lightwave, Inc., / Cable Communications• RESOLUTION NO. R - 98 - 43
A RESOLUTION authorizing the Mayor to execute a Temporary License
Agreement with Electric Lightwave, Inc., a Washington
corporation, which authorizes Electric Lightwave, Inc. to
occupy City rights-of-way in order to construct, operate
and maintain a telecommunications network in the City
of Yakima, Wa.
WHEREAS, Electric Lightwave, Inc., a Washington corporation, has
requested permission, under a Temporary License Agreement, from the City
to occupy City rights-of-way in order to construct, operate and maintain a
telecommunications network in the City of Yakima, Wa.; and
WHEREAS, Electric Lightwave, Inc. intends to utilize said
telecommunications network to provide switched and non -switched
telephone services within the City of Yakima, Wa.; and
WHEREAS, said Temporary License Agreement provides limited
authority under a Temprary License for Electric Lightwave, Inc. to construct
certain telecommunications facilities in the City of Yakima, Wa., 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 Electric Lightwave, Inc., a Washington corporation,
which authorizes Electric Lightwave, Inc. to occupy City rights-of-way, under
a Temporary License Agreement, in order to construct, operate and maintain
a telecommunications network in the City of Yakima, Wa. for the purpose of
providing switched and non -switched telephone services within the City.
ADOPTED BY
THE CITY COUNCIL this 7 day of
, 1998.
ATTEST:
144-0--,-- )2 /6 c.:
CityClerk
John Puccinelli, Mayor
TEMPORARY LICENSE AGREEMENT
AN AGREE,_ ► NT GRANTING A LICENSE TO ELECTRIC LIGHTWAVE,
INC., A ��r-•�", =riAr a 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 hereunder.
8. Licensee shall, during 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
Temporary License Agreement
Page 2
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).
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 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 Liability Insurance."
(2) Commercial Automobile Liability Insurance. On or
before the date this Agreement is fully executed by the
Temporary License Agreement
Page 4
parties, Licensee shall provide the City with a certificate of
insurance as proof of commercial automobile liability
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
Temporary License Agreement
Page 5
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 higher in Best's Guide and
admitted in the State of Washington.
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
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 of 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 g 0 day of April, 1998.
CITY OF YAKIMA
aJohn Puccinelli
'Mayor
Attest:
1<a-'
City Clerk
_98-.4b.
R-98-43
Temporary License Agreement
Page 7
ELECTRIC LIGHTWAVE, INC.
By:
Its'
State of (ka4 k -e-'
County of
ss.
I hereby certify that I know or have satisfactory evidence that
6- is the person who appeared before me, and
sai 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 Lt 61()--4-4-
of
- -
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, 1998.
Print Name: 6/ sof-►
NOTARY PUBLIC in and for the State
of Washington, residing at
My commission expires: C ex.
Temporary License Agreement
Page 8
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]Engineering ]Department
Yakima, Washington
Plusl■■ Profile
December 1997
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COMO Dun & Bradstreet Data
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Area Businesses Sorted by Employee Size
Data Purchased 1997
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1000-2499 (2)
250-499 (4)
50-99 (73)
500-999 (2)
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CONFIDENTIAL INFORMATION
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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No.
For Meeting Of April 7. 1998
ITEM TITLE: A resolution authorizing the Mayor to execute a Temporary
License Agreement with Electric Lightwave, Inc., a Washington 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: Glenn Rice, Asst. City Manager and Acting Director,
Community and Economic Development Department
CONTACT PERSON/TELEPHONE: Randy Beehler, Cable
Communications Manager, 575-6092
SUMMARY EXPLANATION: Electric Lightwave, Inc. has requested
permission from the City, under a Temporary License Agreement, 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 within the City. Electric Lightwave, Inc. has requested temporary
permission as outlined above, pending resolution of issues related to
negotiation and approval of a franchise.
X Resolution Ordinance Contract
Other (Specify)
APPROVAL FOR SUBMITTAL:
ity Manager
STAFF RECOMMENDATION: Approve resolution.
BOARD/COMMISSION RECOMMENDATION: N/A
COUNCIL ACTION: