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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 he OA i \\ VV El A4 :4;41, icrit INEL 111110.1.41101.'.- �411111144, i �� ��� � � es�r j `''i,u•� araz I. - 1!'ii■r1■ tiler °+711..... w itis �1111t11ttfi rit ittl ( r!" 9. 11111111.011111/F46 `f dl karti®!�..�Rs!' ii - %��-"Itl n r ilttll::"ii}}1ff it' Ya �■�- � . ���€�" ,'':�II��iN 1'lliitEiiilii.- /llli.. '10r� 1111�i1••tnnii:l4ttitnit R'ri fl tit. JI11eiitwlillit/11i1 ��trri�r�ar iE. tip fit' "Jd t l'Ilki- IiC�_ ��irn� L -mo . r■'lniir ' il►inilu � _w1 cbA --- FtiTa9¢ 41/A. NNF0ii.4,t T o '9. ELECTRIC LIGHTWAVE, INC. ]Engineering ]Department Yakima, Washington Plusl■■ Profile December 1997 ® ELI/BPA Longhaul Route BPA Site/Splice Point Central Office Location COMO Dun & Bradstreet Data (see D&B Legend below) Area Businesses Sorted by Employee Size Data Purchased 1997 waSi Ala&1 1.041111411, war 100-249 (57) 1000-2499 (2) 250-499 (4) 50-99 (73) 500-999 (2) 5000-9999 (1) Unknown (233) Iles ELI PROP CONE �... -_ RIFTA ELI PROPRIETARY AND CONFIDENTIAL INFORMATION "11VO RMAT10N 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: