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09/04/2012 04F City Light Poles; Water Meter Reader Transmitters/Repeaters; Nob Hill Water Association Revocable License Agreement • y � Y Y " BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. / F. For Meeting of: September 4, 2012 ITEM TITLE: Resolution authorizing a Revocable License Agreement with Nob Hill Water Association (Licensee) providing for installation, attachment and maintenance of automated water meter reader equipment to City light poles, and /or utilizing City right -of -way for equipment installation and maintenance. SUBMITTED BY: Jeff Cutter, City Attorney CONTACT Jeff Cutter, City Attorney /575 -6030 PERSON /TELEPHONE: SUMMARY EXPLANATION: Nob Hill Water Association has requested permission to utilize City light poles, as well as to install its own poles in certain City right -of -way, as support structure for the installation of automatic meter reading equipment. To memorialize the City's permission to use its light poles and right -of -way for the support of automatic meter reading equipment the City and the Nob Hill Water Association must enter into the attached and incorporated Revocable License Agreement. The attached Agreement provides the specific terms and conditions by which the City will permit the use of its light poles and right -of -way for the Association to install, attach, and maintain the water meter reader transmitters, repeaters and infrastructure necessary to support the automated reader system. Installation of an automatic water meter reader system will benefit the City and its citizens, as well as Nob Hill Water Association, by providing greater efficiency in billing, greater accuracy of use history and an immediate indication of unusual flow rates that could help avoid excessive water consumption resulting from service leaks. The Nob Hill Water Association will reimburse the City for all costs associated with the use with regard to City administration, actual field work required by City personnel and the cost of electrical power necessary to operate the equipment. Resolution X Ordinance Other (specify) Contract: Mail to: Contract Term: Amount: Expiration Date: Insurance Required? No • Funding Phone: Source: APPROVED FOR .� SUBMITTAL: City Manager STAFF RECOMMENDATION: Adopt Resolution. BOARD /COMMISSION RECOMMENDATION: ATTACHMENTS: Click to download ❑ Resolution -Nob Hill Water Association License Agreement -Light Pole Attachment -8 -2012 ❑ Nob Hill agreement • RESOLUTION NO. R -2012- A RESOLUTION authorizing the City Manager to execute a Revocable License Agreement between Nob Hill Water Association (Licensee) and the City of Yakima, governing Licensee's installation, attachment and maintenance of water meter reader transmitters and /or repeaters to City light poles, and /or Licensee's placement of poles within the City right -of -way, all as support infrastructure for Licensee's automatic water meter reader system. WHEREAS, Nob Hill Water Association has requested a license and right to install, attach and maintain water meter reader transmitters and /or repeaters to City light poles, and /or placement of poles within the City right -of -way, as necessary for the support of Licensee's automatic water meter reader system; and WHEREAS, an automatic water meter reader system would benefit the provision of potable water to the City and its citizens, as well as assisting the Nob Hill Water Association with greater accuracy and efficiency in tracking customers' water consumption and potential systemic problems; and WHEREAS, the Nob Hill Water Association shall reimburse all direct costs incurred by the City to permit this licensed use, including but not limited to administrative support, City personnel's time spent preparing for the equipment installation and the direct costs of power consumed by the equipment; and WHEREAS, the Yakima City Council finds and determines that it is in the public interest to grant Nob Hill Water Association a Revocable License Agreement, attached hereto and incorporated herein by this reference, to authorize and allow Licensee's installation of automatic water meter reader infrastructure on poles installed within City right -of -way and on City light poles located within the City limits; Now, Therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized and directed to execute the attached and incorporated Revocable License Agreement, thereby permitting the Nob Hill Water Association to install, attach and maintain water meter reader transmitters, repeaters and other necessary infrastructure to City light poles, and /or to place poles within the City right -of -way, all to support the operation of Licensee's automatic water meter reader system. ADOPTED BY THE CITY COUNCIL this 4th day of September, 2012.. ATTEST: Micah Cawley, Mayor City Clerk • Revocable License Agreement for Pole Attachment 1.0 PURPOSE. 1.1 This is a Revocable License Agreement between the City of Yakima, a municipal corporation ( "Licensor") and Nob Hill Water Association ( "Licensee "), governing Licensee's installation, attachment and maintenance of water meter reader transmitters and /or repeaters ( "Facilities ") to Licensor's City light poles ( "Poles ") and /or placement of poles within the City Right -of -Way, all as support for Licensee's automatic water meter reader system. 2.0 SCOPE. 2.1 Subject to the provisions of this Agreement and Licensor's applicable processes, Licensor agrees to grant Licensee a nonexclusive, revocable license authorizing Licensee to attach, maintain, rearrange, transfer and remove, at its sole expense, its Facilities on certain previously identified and approved Poles and upon specified Right -of -Way owned or controlled by Licensor pursuant to and as described in the attached "Approved Pole Use Locations" list attached hereto and fully incorporated herein as Exhibit "A ". 2.2 Licensor agrees to provide access to Poles and Right -of -Way access identified pursuant to this Agreement for attachment of Licensee's Facilities Any and all rights granted to Licensee shall be subject to and subordinate to any present and future local, state and /or federal requirements. 2.3 Licensor shall permit use of Pole space until such time as Licensor has an actual need for that space, at which time Licensor may recover the space for its own use. Licensor shall give the displaced Licensee ninety (90) days written notice of the reclamation of space to allow Licensee to make alternate arrangements, if available, including but not limited to allowing Licensee to pay for any reasonable modifications needed to continue to accommodate Licensee's Attachments that would otherwise be displaced. 2.4 Except as expressly provided herein, nothing in this Agreement shall be construed to require or compel Licensor to construct, install, modify, or place any Poles or other facility for use by Licensee. 3.0 DEFINITIONS. "Agreement" means this License Agreement for use of space on Poles or use of City Right -of- Way for Licensee's pole location "Audit" means a periodic full system physical examination of Licensor's Poles and Right -of -Way used or occupied by Licensee and any of Licensee's Facilities for the purpose of i) verifying the presence or location of all such Facilities, or ii) determining whether Licensee is in compliance with the requirements and specifications of this Agreement. "Facilities" includes, but is not limited to, antennas, cables, wires, conductors, fiber optics, insulators, connectors, fasteners, transformers, capacitors, switches, batteries, amplifiers, repeaters, transmitters, photocells, materials, appurtenances, or apparatus of any sort, whether Page . License Agreement for Street Light Poles electrical or physical in nature, including without limitation all support equipment such as guy wires, anchors, anchor rods, grounds, clamps and other accessories attached to or occupying Licensor's Poles and Right -of -Way. "Make -ready Work" means all engineering, inspection, design, planning, construction, or other work reasonably necessary to prepare Licensor's Poles for the installation of Licensee's Attachments, including without limitation, work related to accessing electrical power, fastening Facilities, and the installation of new Poles on Right -of -Way. "National Electrical Safety Code" or "NESC" means the current edition, and any supplements thereto and revisions or replacements thereof, of the publication, so named, published by the Institute of Electrical and Electronics Engineers, Inc., for the purpose of safeguarding persons and property during the installation, operation, or maintenance of electric supply and communication lines and associated equipment. "Order" means the individual orders for attachment or placement of Facilities to Poles, as well as the location of poles in Right -of -Way, submitted by Licensee and approved by Licensor granting permission to attach, install, maintain and modify Licensee's Facilities to Poles, and to install poles, pursuant to the terms and conditions set forth in this Agreement. "Poles" means the street light poles owned or controlled by Licensor 4.0 TERM. 4.1 This Agreement shall commence upon execution by both parties and continue until such time as the use granted by this License is no longer required, or until the License is revoked, whichever shall first occur 4.2 Any permission granted under any individual application for Pole attachments shall continue in effect from the effective date until terminated by either party as provided herein. 5.0 TERMINATION. 5.1 Licensor may terminate this Agreement (which will have the effect of terminating all individually approved attachments hereunder), for Cause, by providing notice of such termination in writing and by certified Mail to Licensee. "Cause" as used herein shall include, but is not limited to, Licensee's use of its Facilities in material violation of this Agreement, any applicable law, rule, regulation or order, or in aid of any unlawful act or making an unauthorized modification to Licensor's Poles, or any act or omission that violates the terms and conditions of any underlying Right -of -Way agreements. In the event Licensor issues a notice of termination for Cause, Licensee shall have fifteen (15) days within which to cure the problem asserted in the notice to the satisfaction of the Licensor. If an acceptable cure is not provided within that time, the termination will take effect as provided in the notice. 5.2 To the extent permitted by law, either party may terminate this Agreement without cause (which will have the effect of terminating all approved uses hereunder), or any individual approvals hereunder, without cause, by providing notice of such termination in writing and by certified Mail to the other party ninety (90) days prior to the effective termination. Page 2 License Agreement for Street Light Poles 5 3 Termination of this Agreement or any approved use hereunder does not release either party from any liability under this Agreement that may have accrued or that arises out of any claim that may have been accruing at the time of termination, including indemnity, warranties, and confidential information. 5.4 If Licensor terminates this Agreement for Cause, or if Licensee terminates this Agreement without Cause, Licensee shall remove its Facilities from the Poles within ninety (90) days following the identified effective termination date, or be deemed to have caused Licensor to remove its Facilities from the Poles at Licensee's expense; provided, however, that Licensee shall be liable for and pay all appropriate and applicable use fees and charges provided for in this Agreement to Licensor until Licensee's Facilities are physically removed. Notwithstanding anything herein to the contrary, upon the termination of this Agreement for any reason whatsoever, all approved uses hereunder shall simultaneously terminate. 5 5 If this Agreement or any approved use is terminated for reasons other than Cause, then Licensee shall remove its Facilities from Poles within one hundred and eighty (180) days from the date of termination; provided, however, that Licensee shall be liable for and pay all appropriate and applicable fees and charges provided for in this Agreement to Licensor until Licensee's Facilities are physically removed. 5.6 Licensor may abandon or sell any Poles at any time by giving written notice to Licensee in accord with paragraph 8.6, below. Any Poles that are sold will be sold subject to all existing legal rights of Licensee. Upon abandonment or sale of poles, if required by Licensor, Licensee shall, within fifteen (15) calendar days of such notice, either 1) continue to occupy the Poles pursuant to its existing rights under this Agreement if the Poles are purchased by another party; 2) purchase the Poles from Licensor at the current market value; or 3) remove its Facilities therefrom 6.0 CHARGES AND BILLING. 6.1. As applicable and specifically agreed upon by the parties, Licensee shall pay the following fees Field Verification /Inspection Fee, Make -Ready Fee, Pole Attachment Fee, and Electrical Power Usage Fee. Usage fees will be assessed on an annual basis. Annual usage fees will be assessed as of January 1 of each year. Applicable Field Verification /Inspection Fees and Make -Ready Fees shall be paid in advance. All other charges, including but not limited to nonroutine inspection charges, unauthorized attachment charges and audit charges shall be paid within thirty (30) days following receipt of invoices. All fees are not refundable except as expressly provided herein. Any outstanding invoice will be subject to applicable finance charges at the rate of one and one half percent (1.5 %) per month or the greatest amount allowable under law, whichever is higher. 6.2. Licensor has the right to revise any of its fees upon written notice to Licensee within at least sixty (60) days prior to the end of any annual billing period. 7.0 INSURANCE. During the effective term of this License Agreement Licensee shall secure and maintain in effect insurance to protect Licensor from and against all claims, damages, losses, and expenses ari Page 3 License Agreement for Street Light Poles out of or resulting from the performance of this Agreement. Licensee shall provide and maintain in force insurance in limits no less than that stated below, as applicable. Licensor reserves the right to require higher limits should it be deemed necessary in the best interest of the public. 7.1 Commercial General Liability Insurance. Before this License Agreement is fully executed by the parties, Licensee shall provide Licensor with a certificate of insurance as proof of commercial liability insurance and commercial umbrella liability insurance with a total minimum liability limit of Two Million Dollars ($2,000,000.00) per occurrence combined single limit bodily injury and property damage, and Two Million Dollars ($2,000,000 00) general aggregate (per project). The policy shall include employers liability (Washington Stop Gap). The certificate shall clearly state who the provider is, the coverage amount, the policy number, and when the policy and provisions provided are in effect. Said policy shall be in effect for the duration of this Agreement. The policy shall name Licensor, its elected officials, officers, agents, employees, and volunteers as additional insureds. 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. 7.2 Commercial Automobile Liability Insurance. a. If Licensee owns any vehicles, before this Contract is fully executed by the parties, Licensee shall provide Licensor with a certificate of insurance as proof of commercial automobile liability insurance and commercial umbrella liability insurance with a total minimum liability limit of Two Million Dollars ($2,000,000.00) per occurrence combined single limit bodily injury and property damage. Automobile liability will apply to "Any Auto" and be shown on the certificate. b. If Licensee does not own any vehicles, only "Non -owned and Hired Automobile Liability" will be required and may be added to the commercial liability coverage at the same limits as required in Section 7.2(a) entitled "Commercial Liability Insurance ". c. Under either situation described above in Section 7.2(a) and Section 7.2(b), the required certificate of insurance shall clearly state who the provider is, the coverage amount, 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 Agreement. The policy shall name Licensor, its elected officials, officers, agents, employees, and volunteers as additional insureds 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. 8.0 CONSTRUCTION AND MAINTENANCE OF FACILITIES. 8.1 Licensor retains the right, in its sole judgment, to determine the availability of space on Poles consistent with applicable rules, regulations and orders In the event Licensor determines that rearrangement of the existing Facilities on Poles is required before Licensee's Facilities can be accommodated, the cost of such modification will be included in the Licensee's nonrecurring charges as Make -Ready Work for the associated Poles Order. Any poles added by Licensee in Licensor's right -of -way shall be pre- approved by Licensor prior to being installed. Installation of poles and Facilities shall be at Licensee's sole risk and responsibility and in accord with all necessary permits and applicable regulations related thereto Page 4 License Agreement for Street Light Poles • 8.2 Prior to installing any poles in Licensor's Right -of -Way, or Facilities on Licensor's Poles, Licensee shall provide notice to Licensor of the specific use and location of said installation or use arid shall pay all applicable costs and obtain all necessary permits, approvals or other legal authority and permission, at the Licensee's sole expense. Required permits shall include, but not limited to, a City- Street Break Permit, as required for work conducted within the City Right -of -Way. The Licensee shall comply with all conditions of rights -of -way and Orders. 8.3 Licensee's Facilities shall be placed and maintained in accordance with the requirements and specifications of current Industry Standards, the National Electrical Code, the NESC, the rules and regulations of the Occupational Safety and Health Act, and in compliance with Licensor's permits and procedures, if applicable, all of which are incorporated herein by this reference, together with any other governing authority having jurisdiction of the subject matter of this Agreement. Where a difference in specifications exists, the more stringent shall apply. In particular, Licensee agrees that, consistent with industry practice and in consideration of safety and service concerns, Licensor's Facilities shall take Attachment priority on Licensor's Poles. All other Facilities shall be placed to accommodate Licensor's Facilities, as directed by Licensor. Failure to maintain Facilities in accordance with the above requirements shall be considered Cause for termination of authorization for Attachment. Termination of more than two (2) Attachments in any twelve -month period pursuant to the foregoing sentence shall be deemed Cause for purposes of termination of this Agreement. If applicable, Licensor's procedures governing its standard maintenance practices shall be made available upon request for public inspection at the Licensor's premises. Licensee's procedures governing its standard maintenance practices for Facilities shall be made available to Licensor upon request. Licensee shall within thirty (30) days after notification of noncompliance, comply and provide the requested information to Licensor and bring their Facilities into compliance with the stated terms and conditions. 8.4 In the event of any electrical service outage or physical damage affecting Licensor's Poles, repairs shall be effectuated as quickly as is reasonably possible. Except for the negligent acts or omissions of Licensor, Licensor shall not be responsible to Licensee in any way for any loss of information, service availability or any other effects whatsoever to Licensee's Facilities associated with a loss of power to, or physical damage to Licensor's Pole or Poles. 8.5 Licensee shall maintain and provide to the Licensor a current "Approved Pole Use Locations" list (Exhibit "A ") of all Licensor's Poles utilized by Licensee for Facilities installation. The list shall be updated as necessary to indicate any additional Poles used by Licensee and /or changes in Poles used, and shall also include the Pole number assigned to each of Licensor's Poles utilized for Facilities mounting, together with specific identification of each of the Facilities mounted thereon. All Facilities mounted on Licensor's Poles shall be labeled with legible permanent identification indicating Licensee as owner and an independent device identification to allow Licensor to refer to a specific device when communicating with Licensee. Poles that Licensee installs in Licensor's right -of -way shall also include individual identification, shall be included on the "Approved Pole Use Locations" list and shall be identified by specific location as poles added by Licensee in Licensor's right -of -way. 8 6 In the event Licensor plans to relocate a Pole that includes Licensee's attached Facilities, or requires the relocation of a pole Licensee previously located in Licensor's right -of -way, Licensor shall provide Licensee with fifteen (15) days written notice of the intent to cause Page 5 License Agreement for Street Light Poles said relocation. Upon receiving said notice, Licensee shall remove said Facilities and / or poles, at Licensee's expense, within the fifteen day notice period. Licensor and Licensee shall coordinate a new location for the Facilities so removed, as may be necessary. 9.0 INSPECTION OF FACILITIES AND AUDIT. Licensor reserves the right to make inspections of each of Licensee's Attachments and related equipment at any time. Licensor may charge Licensee for the expense of any inspection and for necessary make ready work including pre - construction, post construction, and with reasonable discretion, subsequent and periodic inspections of Licensee's Facilities occupying the Pole system and Licensor's Right -of -Way Licensee shall reimburse Licensor for the cost of such inspections at the rate established herein. 9.1. Where final construction inspection by Licensor has been completed, Licensee shall be obligated to correct non - complying conditions within thirty (30) days of receiving written notice from Licensor. In the event the corrections are not completed within the thirty (30) day period, occupancy authorization for the Poles system where non - complying conditions remain uncorrected shall terminate immediately, regardless of whether Licensee has energized the Facilities occupying said Poles system, unless Licensor has provided Licensee a written extension to comply. Licensee shall remove its Facilities from said Poles in accordance with the provisions set forth in Section 12 of this Agreement. No further occupancy authorization shall be issued to Licensee until such non - complying conditions are corrected or until Licensee's Facilities are removed from the Pole where such non - complying conditions exist. If agreed to in writing, by both parties, Licensor shall perform such corrections and Licensee shall pay Licensor the cost of performing such work. Subsequent inspections to determine if appropriate corrective action has been taken may be made by Licensor. 9.2 The costs of inspections made during construction and /or the final construction survey and subsequent inspection shall be billed to the Licensee within thirty (30) days upon completion of the inspection. 9.3 Final construction, subsequent and periodic inspections or the failure to make such inspections, shall not impose any liability of any kind upon Licensor, and shall not relieve Licensee of any responsibilities, obligations, or liability arising under this Agreement. 9.4 Licensor reserves the right to perform a full system, physical inspection of Licensee's attachments ( "Audit ") at any time after the execution of this agreement, but not more frequently than once every five years ( "Audit "), upon at least sixty (60) days prior written notice. However, Licensor may require a "verification" inventory to be taken of all Poles utilized by Licensee more frequently than every five years in the event of a pattern of Licensee's non - performance of its obligations hereunder. Licensor shall notify Licensee in writing of such "verification" inventory thirty (30) days in advance of the inventory. 10.0 UNAUTHORIZED FACILITIES. 10 1 If any Facilities are found attached to Poles for which no use approval is in effect, Licensor, without prejudice to any other rights or remedies under this Agreement, shall assess an unauthorized attachment fee of Fifty Dollars ($50.00) per unauthorized Facility, and require the Licensee to submit in writing, within ten (10) days after receipt of written notification from Licensor of the unauthorized occupancy, a request for additional Pole use. Licensor shall waive the unauthorized attachment fee if the unauthorized attachment arose due to error by Licensor rather than by Licensee. If such application is not received Page 6 License Agreement for Street Light Poles • by Licensor within the specified time period, the Licensee shall be required to remove its unauthorized facility within ten (10) days of the final date for submitting the request for additional Pole use, Licensor may remove the Licensee's Facilities without liability for damage, and the cost of such removal shall be borne by the Licensee. Any Facilities so removed shall be returned to Licensee. 10.2 No act or failure to act by Licensor with regard to an unauthorized attachment or occupancy shall be deemed to constitute the authorization of the attachment or occupancy; any authorization that may be granted subsequently shall not operate retroactively or constitute a waiver by Licensor of any of its rights of privileges under this Agreement or otherwise. For the purpose of determining the applicable usage charges, unless otherwise determined, the unauthorized Poles occupancy shall be treated as having existed from the initiation of the use permitted under this Revocable License and the charges, as specified in Section 6, shall be due and payable forthwith for that period of use, whether or not Licensee is permitted to continue the attachment /occupancy of the Poles system. 11.0 REMOVAL OF FACILITIES. Should Licensor, under the provisions of this Agreement, remove Licensee's Facilities from the Poles covered by any Order (or otherwise), Licensor will deliver the Facilities removed to Licensee, upon payment by Licensee of the cost of removal together with any other amounts due Licensor. If payment is. not received by Licensor within thirty (30) days, Licensee will be deemed to have abandoned such Facilities, and Licensor may dispose of said Facilities as it determines to be appropriate. If Licensor must dispose of said Facilities, such action will not relieve Licensee of any other financial responsibility associated with such removal as provided herein. If Licensee removes its Facilities from Poles for reasons other than repair or maintenance purposes, the Licensee shall have no right to replace such Facilities on the Poles until such time as all outstanding charges that are due to Licensor for previous occupancy have been paid in full. 12.0 INDEMNIFICATION AND LIMITATION OF LIABILITIES. 12.1. Licensee agrees to protect, defend, indemnify and hold harmless Licensor, its elected officials, officers, employees, agents, and volunteers from any and all claims, demands, losses, liens, liabilities, penalties, fines, lawsuits, and other proceedings and all judgments, awards, costs and expenses (including reasonable costs and attorney fees) resulting from death or bodily injury to any person or damage or destruction to a third party or third parties to the extent caused by any negligent act and /or omission of Licensee, its officers, employees, agents, volunteers and /or subcontractors, arising out of the performance of this Contract. 12.2 If the negligence or willful. misconduct of both Licensee and Licensor (or a person identified above for whom each is liable) is a cause of such third party claim, the loss, cost, or expense shall be shared between Licensee and Licensor in proportion to their relative degrees of negligence or willful misconduct and the right of indemnity will apply for such proportion 12.3 Nothing contained in this Section or this Contract shall be construed to create a liability or a right of indemnification in any third party. 13.0 DISPUTE RESOLUTION / CHOICE OF LAW / VENUE. Page 7 License Agreement for Street Light Poles In the event that any dispute shall arise as to the interpretation of this Revocable License Agreement, or in the event of a notice of default as to whether such default does constitute a breach of the contract, and if the parties hereto cannot mutually settle such differences, then the parties shall first pursue mediation as a means to resolve the dispute. If the afore mentioned method is not successful then any dispute relating to this Agreement shall be decided in a court of law, If both parties consent in writing, other available means of dispute resolution may be implemented. This Agreement shall be governed by and construed in accordance with the laws of the state of Washington. The venue for any action to enforce or interpret this Agreement shall lie in a court of proper jurisdiction in Yakima County, Washington. 14.0 LAWFULNESS. This Agreement and the parties' actions under this Agreement shall comply with all applicable federal, state, and local laws, rules, regulations, court orders, and governmental agency orders. Any change in rates, charges or regulations mandated by the legally constituted authorities will act as a modification of any contract to that extent without further notice. Nothing contained herein shall substitute for or be deemed a waiver of the parties' respective rights and obligations under applicable federal, state and local laws, regulations and guidelines. 15.0 SEVERABILITY. In the event that a court, governmental agency, or regulatory agency with proper jurisdiction determines that this Agreement or a provision of this Agreement is unlawful, this Agreement, or that provision of the Agreement to the extent it is unlawful, shall terminate. If a provision of this Agreement is terminated but the parties can legally, commercially and practicably continue without the terminated provision, the remainder of this Agreement shall continue in effect. 16.0 GENERAL PROVISIONS. 16.1 No term, covenant or condition of this Agreement or any breach thereof shall be deemed waived, unless such waiver shall be in writing and executed by the party claimed to have waived the same. The waiver of any breach by a party, whether express or implied, shall not constitute a waiver of any subsequent breach. This Agreement may not be amended, nor shall any change or discharge be affected except by an appropriate writing executed by the parties. No course of dealing or failure of any party to strictly enforce any term, right, or condition of this Agreement in any instance constitutes a general waiver or relinquishment of the term, right or condition. 16.2 This Agreement shall not be assignable by Licensee without the express written consent of Licensor. Assignment of this Agreement by Licensee to Licensee's subsidiary or affiliate shall be presumed to be reasonable; provided, however, that Licensee must obtain Licensor's prior written consent in any event. Licensee shall provide prior written notice to Licensor in the event of a merger, reorganization, change in stock ownership, change in control or other event affecting the organizational structure of Licensee. 16.3 This Agreement benefits Licensee and Licensor. There are no third party beneficiaries. 16.4 This Agreement constitutes the entire understanding between Licensee and Licensor with respect to matters set forth herein and supersedes any prior agreements or understandings Page 8 License Agreement for Street Light Poles 17. NOTICES Address for Notices Address for Notices LICENSOR: LICENSEE: City of Yakima — Public Works Administration Nob Hill Water Association 2301 Fruitvale Blvd. 6111 Tieton Dr. Yakima, WA 98902 Yakima, WA 98908, Contact: Joe Rosenlund Contact: Dave England Phone. (509) 575 -6005 Phone: (509) 966 -0272 FAX: (509) 575 -6238 FAX: (509) 966 -0740 The parties hereby execute and authorize this Agreement as of the latest date shown below: LICENSEE — City of Yakima LIC OR — b Hill to sociation Tony O'Roarke, City Manager Signature WILLIAM J. ALLISON Name Typed or Printed Date VICE PRESIDENT Title AUGUST 20, 2012 Date Page 9 License Agreement for Street Light Poles