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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 9.
For Meeting of:April 6, 2021
ITEM TITLE: Resolution authorizing a Master License Agreement with Yakima
MSA Limited Partnership for use of the City's rights-of-way to
install, maintain, and operate small cell wireless facilities
SUBMITTED BY: Sara Watkins, City Attorney
SUMMARY EXPLANATION:
Yakima MSA Limited Partnership seeks to utilize the City's rights-of-way to install, operate and
maintain a 5G wireless system. It intends to mainly utilize utility poles owned by third parties
(such as CenturyLink), but may seek to utilize the City's poles as well. The Agreement outlines
the terms and conditions of using the rights-of-way, the requirements for using City-owned poles,
and the costs and fees associated with said use. Nothing in the Agreement avoids the zoning
requirements of Chapter 15.29 of the Yakima Municipal Code. This Agreement is substantially
similar to the one previously approved by Council for New Cingular Wireless and Verizon.
ITEM BUDGETED: NA
STRATEGIC PRIORITY: Economic Development
APPROVED FOR SUBMITTAL BY THE CITY MANAGER
RECOMMENDATION:
Adopt resolution.
ATTACHMENTS:
Description Upload Date Type
D es-Master License Agree ent.Yakirra 3/5/20 1 esolution
D Yaki aM A.Master License Agr meat 3/5/20 1 retract
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RESOLUTION NO. R-2021-
A RESOLUTION authorizing a Master License Agreement with Yakima MSA Limited
Partnership for use of the City's rights-of-way to install, maintain, and
operate small cell wireless facilities.
WHEREAS, small cell wireless facilities create opportunities for increased wireless service
to residents of Yakima; and
WHEREAS, Yakima MSA Limited Partnership seeks to utilize utility poles within the City's
rights-of-way to install small cell wireless facilities; and
WHEREAS, rather than requiring Yakima MSA Limited Partnership to file for a new right-
of-way use permit each time it seeks to install, maintain, or repair a small cell wireless facility it is
more efficient to enter into a Master License Agreement covering the use of rights-of-way within
the City; and
WHEREAS, this Master License Agreement does not allow Yakima MSA Limited
Partnership to avoid the wireless facilities zoning requirements found in Yakima Municipal Code
section 15.29, nor does it allow Yakima MSA Limited Partnership to use City-owned utility poles
without the consent of the City; and
WHEREAS, under the Agreement each small cell facility must pay a yearly license fee;
and
WHEREAS, the Federal Communications Commission (FCC) has created a number of
regulations limiting the scope of charges and restrictions a municipality can place on small cell
wireless facilities; and
WHEREAS, the City Council of the City of Yakima finds that it is in the best interest of the
City and its residents to enter into a Master License Agreement with Yakima MSA Limited
Partnership to operate within the rights-of-way under the Agreement's terms and conditions; now,
therefore,
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA:
The City Manager is hereby authorized to execute the Master License Agreement between
the City of Yakima and Yakima MSA Limited Partnership outlining the terms and conditions of
operating within the City rights-of-way and utilizing utility poles within the rights-of-way. A copy
of the Master License Agreement is attached hereto and fully incorporated herein.
ADOPTED BY THE CITY COUNCIL this 6'h day of April, 2021.
Patricia Byers, Mayor
ATTEST:
Sonya Clear Tee, City Clerk
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MASTER LICENSE AGREEMENT BETWEEN THE
CITY OF YAKIMA AND YAKIMA MSA LIMITED PARTNERSHIP
FOR THE USE OF PUBLIC RIGHTS-OF-WAY
TABLE OF CONTENTS
SECTION PAGE
SECTION 1. DEFINITIONS .......................................................................................2
SECTION 2. GRANTING CLAUSE............................ .............................................4
SECTION 3. PERMITTED USE OF RIGHTS-OF-WAY.........................................4
SECTION 4. TERM AND AMENDIVIENTS...............................................................5
SECTION5. LICENSE FEES .....................................................................................7
SECTION 6. APPROVAL OF COMMUNICATION SITES.....................................7
SECTION 7. CONSTRUCTION WORK-REGULATION BY CITY.......................9
SECTION 8. CONSTRUCTION, RESTORATION AND MAINTENANCE
ACTIVITIES.........................................................................................10
SECTION 9. SUPERVISION BY CITY OF LOCATION OF POLES 13
SECTION 10. INTERFERENCE WITH OTHER FACILITIES PROHIBITED 13
SECTION 11. COMPLIANCE WITH UTILITY REGULATIONS 14
SECTION 12. EMERGENCY CONTACTS............................................ 14
SECTION 13. INDEMNITY.................................................................................... 14
SECTION 14. INSURANCE REQUIREMENTS 15
SECTION 15. ADMINISTRATION OF LICENSE................................ 17
SECTION 16. ASSIGNMENT OF LICENSE....... ....................................... 19
SECTION 17. FUTURE CONTINGENCY 19
SECTION 18. AGREEMENT VIOLATIONS LEADING TO TERMINATION 19
SECTION 19. TERMINATION BY LICENSEE........................................ 20
SECTION 20. GOVERNING LAW, JURISDICTION AND VENUE 20
SECTION 21. NON-DISCRIMINATION................................................ 21
SECTION 22. MISCELLANEOUS PROVISIONS 21
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This MASTER LICENSE AGREEMENT FOR THE USE OF PUBLIC RIGHTS OF WAY
("Agreement") is made and entered into on ("Effective Date")
by and between the City of Yakima ("City" or "Licensor"), and Yakima M S A
Limited Partnership, a Delaware limited partnership operating in the
State of Washington ("Licensee"). Licensor and Licensee are at times collectively
referred to hereinafter as the "Parties" or individually as the "Party."
WHEREAS, Licensee has requested use of certain locations within the public rights-of-
way of the City to install, maintain and operate communications facilities as
specified in this Agreement; and
WHEREAS, the City has the power to regulate the public rights-of-way within its
territorial boundaries and is willing to permit such use subject to the terms and
conditions of this Agreement;
NOW THEREFORE, IN RECOGNITION OF MUTUAL CONSIDERATION, THE
ABOVE PARTIES AGREE TO THE FOLLOWING:
SECTION 1. DEFINITIONS
For purposes of this Agreement the following terms shall have the same meanings herein.
When not inconsistent with the context, words in the plural number include the singular
number, and words in the singular include the plural.
(a) "Annual License Fee" means the annual rate described in Section 5
of this Agreement.
(b) "Backhaul Equipment" means broadband backhaul transmission facilities,
whether provided by landline communications infrastructure(including, without limitation,
fiber, conduit and related equipment and improvements) ("Landlme Backhaul
Equipment") and/or wireless communications infrastructure (including, without limitation,
wireless microwave and related cables, wires, equipment and improvements) ("Wireless
Backhaul Equipment") that interconnects with Wireless Communication Equipment at the
Point-of-Demarcation and is for the purpose of providing Backhaul Service.
(c) "Backhaul Service" means communications transport service, whether
provided by Landline Backhaul Equipment or Wireless Backhaul Equipment that
interconnects with the Wireless Communication Equipment at the Point-of-Demarcation.
(d) "City Representative" means the then current person at the City that
oversees administration of this Agreement, or his/her designee.
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(e) "Communication Facility" means Wireless Communication Equipment
and/or Backhaul Equipment.
(f) "Communication Service" means Wireless Communication Service
and/or Backhaul Service.
(g) "Communication Site" or "Site" means a location in the Public Rights-of-
Way selected for the Communication Facility.
(h) "Communication Site Application" means a Standard Wireless Application
as outlined by Yakima Municipal Code Section 15.29, as exists or is hereby amended.
(i) "Communication Sites Inventory" means an accurate and current inventory
of all Communication Sites approved by Licensor pursuant to this Agreement.
(j) "Effective Date" means the latest date on which this Agreement is signed
by both Parties.
(k) "Point of Demarcation" means the point where the Wireless
Communication Equipment terminates and interconnects with Backhaul Equipment.
(1) "Rights-of-Way" or "Public Rights-of-Way" means the surface of, and the
space above and below, any public street, road, highway, freeway, lane,path,public way or
place, sidewalk, alley, boulevard, parkway, drive, or other easement now or hereafter-held
by the City or over which the City exercises any rights of management control.
(m) "Rights-of-Way Regulations" means all portions of City ordinances that
concern the regulation or management of Public Rights-of-Way,which are applicable to all
utilities operating within the Public Rights-of-Way.
(n) "Rights-of-Way Manager" means the then current person at the City that
oversees the Public Rights-of-Way, or his/her designee.
(o) "Supplemental License"means a document, substantially in the form attached
as Exhibit A. Each Communication Site installation will be subject to a Supplemental
License.
(p) "Transmission Media" means radios, antennas, transmitters, wires, fiber
optic cables, and other wireless transmission devices which are part of the Wireless
Communication Equipment.
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(q) "Unauthorized Communication Site" means use of Public Rights-of-Way for
the installation of Communication Facility on City poles or poles owned by another party,
or for the installation of Licensee poles or any other facilities, for which Licensee did not
receive approval under this Agreement.
(r) "Unauthorized Installation Charge" means the license fee payable by
Licensee to Licensor under this Agreement for an Unauthorized Communication Site.
(s) "Wireless Communication Service" means wireless, Wi-Fi, voice, data,
messaging, or similar type of wireless service now or in the future offered to the public in
general using spectrum radio frequencies, whether or not licensed by the Federal
Communication Commission ("FCC") or any successor agency.
(t) "Wireless Communication Equipment" means the Transmission Media
attached, mounted, or installed on a pole located in Public Rights-of-Way, in addition to
control boxes, cables, conduit, power sources, and other equipment, structures, plant, and
appurtenances between the Transmission Media and the Point-of- Demarcation for the
purpose of providing Wireless Communication Service.
SECTION 2. GRANTING CLAUSE
(a) License to Use Rights-of-Way—Licensor hereby grants Licensee, a non-
exclusive, revocable license to use and occupy Rights-of-Way throughout the territorial
boundaries of the City, as these boundaries may be adjusted from time-to-time due to
annexations, for the permitted uses contemplated under Section 3, subject to the conditions
outlined in this Agreement. Notwithstanding anything to the contrary contained herein,
Licensor may only revoke the license as specifically provided herein.
(b) License to Use City Poles — Licensor also grants Licensee the right to use
City poles for the purpose of attaching the Communication Facility based on the then-
current inventory of City poles. Access to individual City poles will be determined on a case-
by-case basis pursuant to the provisions of this Agreement, the determination of the Public
Works Director, and the Yakima Municipal Code.
(c) Non-Exclusive License — The Licensee's right to use and occupy the Public
Rights-of-Way and attach to City poles shall not be exclusive as the City reserves the right
to grant a similar use of same to itself or any person or entity at any time during the Term,
provided that such other use does not unreasonably interfere with Licensee's use and placement of its
already-existing Communication Faclity in any Public Rights-of-Way.
SECTION 3. PERMITTED USE OF RIGHTS-OF-WAY
(a) Provision of Personal Communication Service — Public Rights-of-Way
may be used by Licensee, seven(7) days a week, twenty-four (24) hours a day, only for the
installation, construction,use,maintenance, operation,repair,modification,replacement and
upgrade of the Communication Facility by Licensee from time to time for Wireless
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Communication Service and/or Backhaul Service or to comply with applicable law, and not
for any other purpose whatsoever. This Agreement shall include new types of Wireless
Communication Equipment or Backhaul Equipment that may evolve or be adopted using
wireless technologies. Licensee shall, at its expense, comply with all applicable federal and
state laws, ordinances, rules and regulations, and Rights-of-Way Regulations in connection
with the use of Public Rights-of-Way. City will provide Licensee thirty(30) days' notice of
any changes to its right-of-way use ordinance.
(b) Installations — Wireless Communication Equipment and Wireless Backhaul
Equipment may be installed only on Licensor's poles under the terms of this Agreement,
on poles under the terms of a separate agreement with the owner of such poles, or on
Licensee's poles and surrounding space up to the Point-of- Demarcation, and
Landline Backhaul Equipment may be installed only at the locations and as provided in
a Supplemental License executed by the City.
SECTION 4. TERM AND AMENDMENTS
(a) Term of Agreement — The term of this Agreement shall be for twenty (20)
years commencing on the Effective Date and ending at midnight on the last day of the term
(the "Term"), provided however that, unless either Party provides written notice to the other
Party prior to expiration of the Term that the notifying Party will not renew the Term, the
Term will automatically renew for one(1)additional five(5)year period,upon the same terms
and conditions set forth in this Agreement. Notwithstanding the foregoing, in no event shall
the Term expire until: (i) terminated pursuant to Section 18, or (ii) the expiration or earlier
termination of all Supplemental Licenses entered into hereunder.
(b) Supplemental Licenses — Each Communication Site will be subject to a
Supplemental License pursuant to the terms and conditions of this Agreement and the
Yakima Municipal Code. The term of each Supplemental License shall be for (5) years
commencing on the date the corresponding Communication Site Application is approved as
provided hereunder ("Commencement Date"), provided however that, so long as the Term
is still in effect, unless Licensee provides written notice to the City prior to the
expiration of the then current term that Licensee will not renew the term, the term will
automatically renew for consecutive five (5) year periods, upon the same terms and
conditions set forth in this Agreement, subject to increases in license fees as outlined
in this Agreement, and provided the Agreement has not been terminated at the time
of automatic renewal.
(c) Termination of Supplemental Licenses — A Supplemental License may be
terminated prior to the expiration of the Term: (i) by Licensor upon notice to Licensee,
if Licensee fails to pay any amount when due hereunder concerning the applicable
Communication Facility and such failure continues for thirty (30) days after Licensee's
receipt of written notice of nonpayment from Licensor; or (ii) by either Party upon notice
to the other Party, if such other Party materially breaches any provision of this Agreement
concerning the applicable Communication Facility and the breach not cured within sixty
(60) days after receipt of written notice of the breach from the non-breaching Party; or (iii)
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by Licensee, at any time, with or without cause, upon notice to Licensor.
(d) Effect of Termination —All Annual License Fees paid prior to the expiration
or earlier termination of the Supplemental License shall be retained by Licensor.Within
thirty(30) days after such expiration or earlier termination, Licensee shall provide the City
Representative with a schedule and timeline for removing the Communication Facility
reasonably acceptable to the City Representative,excluding certain subsurface infrastructure,
the permanent abandonment of which shall be deemed to occur on the 120th day after
removal of the above-surface portions of the Communication Facility and shall be deemed
a transfer of ownership of such subsurface infrastructure to the City and be deemed no
longer part of the Communication Facility,provided, however,that permanent abandonment
shall not be deemed to occur with respect to any portions expressly excluded from
abandonment as specified in a notice from Licensee to Licensor during the 120-day period
or as otherwise agreed to in writing between the Parties. Licensee shall continue to be
liable to Licensor for the Annual License Fee prorated for every month that such
Communication Facility remains in the Rights-of-Way and the Supplemental License shall
be deemed to remain in effect until it is removed. After such removal, the Supplemental
License shall be of no further force or effect and Licensee shall have no further obligations
for the payment of Annual License Fees to Licensor in connection therewith.
(e) If City decides at any time to abandon any Pole, and it is not necessary to
remove said pole in the sole determination of the City, it shall give the Licensee notice in
writing or by electronic means at least ninety (90) days prior to the date on which it intends
to abandon such pole. If, at the expiration of said period,the City and any third parties have
no attachments on such pole, Licensee shall have the option of acquiring ownership of the
pole by paying City a mutually agreed upon price.
(f) Any holding over by Licensee after expiration or termination of this
Agreement shall not be considered as a renewal or extension of this Agreement.
Notwithstanding anything to the contrary in this Agreement and any associated
Supplemental License, the occupancy of each Site after expiration or termination of this
Agreement shall continue, and all other terms and conditions of this Agreement shall
continue in full force and effect; provided, however, City shall have the right to apply a
reasonable increase in the Annual License Fee to bring the Annual License Fee to fair market
value, except to the extent that the Annual License Fee for a Site would be, in the absence
of this Agreement, governed by law or regulation, in which case the Annual License Fee will
be set in accordance with such law or regulation. Upon expiration or termination of this
Agreement, the Parties will negotiate in good faith the terms of a replacement agreement. If
the Parties have not reached agreement after one hundred eighty (180) days of good faith
negotiations, City may thereafter terminate the holdover with an additional sixty (60) days
written notice. Calculation of all prorated Annual License Fees under this Section shall be
based on a 30-day month. Notice of any permitted increase in the Annual License Fee under
this Section shall be given in writing at least thirty(30) days prior to becoming effective.
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SECTION 5. LICENSE FEES
(a) Annual License Fee—The Annual License Fee per Communication Site shall
be Two Hundred Seventy and 00/100 dollars ($270.00) and includes all structure,
infrastructure, appurtenant equipment and facilities available at the approved site. If the Site
does not have the necessary infrastructure or facilities for Licensee's intended use,the cost to
bring those facilities to the Site shall be paid by the Licensee. Further, if the applicable City
poles will not meet State, local or Federal standards, or standards of any State or Federal
agency solely as a result of Licensee's proposed installation, Licensee shall, at its sole cost,
bring the applicable poles into compliance with all such required standards, prior to
Licensee's installation. The Annual License Fee shall not be prorated.
(b) Timing of License Fee Payments—Licensee shall pay in advance to Licensor
the Annual License Fee for the coming year for each Communication Site. The Annual
License Fee for all Communication Sites installed during any given month will commence
and be due on the first day of the following month (the "License Fee Commencement
Date"). Thereafter, on each annual anniversary of License Fee Commencement Date,
Licensee shall pay Licensor the Annual License Fees.
(c) Late Payment Interest—Any Annual License Fees not paid within fifteen(15)
days of receipt of written notice of non-payment will be assessed a rate of 10% per annum
from that date.
(d) Annual License Fees to Licensor — Licensee shall pay Licensor the fees
specified in this Section in the form of a money transfer or a check made out to the order
of the City of Yakima and sent to:
City of Yakima
c/o Public Works Director
2301 Fruitvale,Ave.
Yakima, WA 98902
(e) Periodic Increase in Annual License Fee -- The Annual License Fee shall
be reviewed each year and increased to the maximum license fee allowed by law or
regulation. In the event there is no maximum license fee, the Annual License Fee shall
increase 5% from the previous yearly fee.
SECTION 6. APPROVAL OF COMMUNICATION SITES
(a) Communication Site Application — Licensee shall file with the City
Representative a Communication Site Application for every proposed Communication Site
as outlined in the Yakima Municipal Code as it now exists or is hereafter amended.
(b) Communication Site Approval Process — Upon filing of a Communication
Site Application, the City Representative shall process the Communication Site Application
pursuant to the Yakima Municipal Code as it now exists or is hereafter amended.
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(1) ' eghts-of- ay 1 der °natio — The Licensor will determine whether the
location (and any existing pole) identified by Licensee as a Communication Site
is within City Rights-of-Way.
(2) Ownership of City Pole—The Licensor will confirm the ownership of any City
pole identified for installation of the Communication Facility. If a pole is a City
pole, the requirements of Section 8 must be met.
(3) Site Eligibility — Licensor shall determine whether a requested pole or the
location for the installation for a new pole is eligible as a Communication Site
based on space availability or other considerations. In addition, Licensor must
determine whether public safety considerations prevent eligibility of a pole as a
Communication Site. Concerning a request to install a new pole, Licensor shall
determine whether Rights-of-Way Regulations and availability of Rights-of-Way
prevent the pole installation at the requested location. Any poles added by
Licensee 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
accordance with all necessary permits and applicable regulations related thereto.
Licensor uses of its poles shall take priority and all other uses and facilities shall
be placed to accommodate Licensor's facilities and use of the pole, as directed by
Licensor.
(4) Review Criteria — For each Communication Site Application, the City
Representative shall:
a. Verify that the Communication Site Application is complete.
b. Review engineering design documents to determine:
i. compliance with contractual requirements under this Agreement;
and
ii. no interference with City public safety radio system, traffic signal
light system, or other communications components; and
iii. compliance with City pole attachment regulations for traffic light
poles, including replacement of an electric meter with dual meters,
if and as applicable.
c. Determine compliance with any other applicable requirements.
All Communication Site Applications requesting access to a City pole must include a
load bearing study to determine whether the attachment of the Communication Facility
may proceed without pole modification or whether the installation will require pole
reinforcement or replacement. If pole reinforcement or replacement is necessary,
Licensee shall provide engineering design and specification drawings demonstrating the
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proposed alteration to the pole.
As appropriate, the City Representative shall require Licensee to make design
modifications in order to comply with applicable requirements. Failure to make the
requested design modifications shall result in an incomplete Communication Site
Application which may not be processed under this Agreement.
(5) Approval of Application — Upon finding that the Communication Site
Application is complete and in compliance with all applicable requirements as
outlined above, the City Representative shall review the Application within the
federally-required time period and approve or deny such Communication Site
application. The approval of the Communication Site Application requesting to
attach to a City pole, or to install a new pole, shall authorize Licensee to proceed
to obtain all generally applicable, ministerial permits that are required of all
occupants of the Public Rights-of-Way, if required (collectively, "ROW
Permit"). Licensee shall comply with the requirements of the Rights-of-Way
Regulations. Licensee shall pay all appropriate Washington standard
promulgated one-time ROW Permit fees ("ROW Permit Fees"), if required.
In no event shall Licensor treat Licensee's Communication Site Applications or
ROW Permit applications in a more burdensome manner than Licensor treats
Public Rights-of-Way access permits of all other public utilities and
telecommunications services providers. Upon obtaining a ROW Permit,Licensee
may proceed to install the Communication Facility in coordination with any
affected City departments.
(6) Execution of Supplemental License — Upon approval of the Communication
Site Application, the Parties shall execute a Supplemental License, which shall
be effective as of the date of application approval.
SECTION 7. CONSTRUCTION WORK-REGULATION BY CITY
(a) Compliance with Law Required—The work done by Licensee in connection
with the installation, construction, maintenance, repair, and operation of Communication
Facility on poles within the Public Rights-of-Way shall be subject to and governed by all
pertinent local and state laws, rules, regulations, including the City's Rights- of-Way
Regulations, that are applicable to ensuring the work done does not unduly inconvenience
the public in the use of the surface of the streets and sidewalks, and at the expense of the
Licensee.
(b) Duty to Minimize Interference—All pole excavations,construction activities,
and aerial installations on poles in the Rights-of-Way shall be carried on as to minimize
interference with the use of City's Rights-of-Way and with the use of private property, in
accordance with all regulations of the City necessary to provide for public health, safety
and convenience.
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SECTIS N 8. CONSTRUCTION, ' STO TION AN 1 AINTENACE
ACT ITIES
(a) Eligibility of City Pole — Prior to submitting a Communication Site
Application related to the use of a City pole, Licensee shall verify with the City the
eligibility of the specified pole for attachment of the Communication Facility. City has the
sole authority to determine whether a pole is eligible or ineligible for use under this
agreement. In addition, Licensee shall conduct an engineering load bearing study to
determine whether the pole can withstand the added weight of the Communication
Facility. If the proposed installation will require pole reinforcement or replacement, the
engineering design documents included with the Communication Site Application shall
include specifications relating to the proposed pole reinforcement or replacement.
Construction activities involving pole reinforcement or replacement shall be coordinated
with applicable City personnel and the Rights-of-Way Manager.
(b) Compliance with Rights-of-Way Regulations — In the installation,
construction, maintenance, upgrade, and operation of Communication Facility, Licensee
shall comply with the provisions of the Rights-of-Way Regulations and permit
requirements, including but not limited to provisions and permits pertaining to the following
activities:
(1) construction activities related to the installation, maintenance, repair,
upgrade, and removal of Communication Facility on existing poles in the
Rights-of-Way;
(2) installation of new poles in the Rights-of-Way;
(3) cut or otherwise disturb the surfaces of the Rights-of-Way;
(4) disruption of vehicular and pedestrian traffic on Rights-of-Way to a
minimum as reasonably necessary to execute the required work;
(5) applicable excavation and restoration standards; and
(6) pavement repairs.
(c) Submission of Engineering Plans — Prior to installation, Licensee shall
submit engineering plans to the Rights-of-Way Manager for review and approval in
accordance with the Rights-of-Way Regulations.
(d) Identification of Utility Lines — Prior to beginning any excavation or
boring project on Public Rights-of-Way, Licensee shall engage a utility locator service.
Licensee has the responsibility to protect and support the various utility facilities of other
providers while conducting construction, installation, and maintenance operations.
(e) Maintenance and Repair of Communication Facility—Licensee shall keep
and maintain all Communication Facility installed on Public Rights-of-Way in
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commercially reasonable condition and repair throughout the Term, normal wear and tear
and casualty excepted. Licensee shall have the right to conduct testing and maintenance
activities, and repair and replace damaged or malfunctioning Communication Facility at
any time during the Term.
(f) Upgrade of Communication Facility — Licensee shall have the right to
upgrade the Communication Facility with next-generation equipment and innovative new
technologies. Prior to making any such equipment or technology upgrade that materially
changes the size or weight of the Communication Facility, Licensee shall file a
Communication Facility Application with the City Representative, who shall review the
application for compliance with the permitted use under this Agreement and to verify that
the new installation will not cause any interference with City's public safety
communications system, traffic light signal system, or other City communications
infrastructure operating on spectrum where the City is legally authorized to operate.
Licensee will address any interference issues prior to approval of such application.
(g) Coordination of Maintenance and Equipment Upgrade Activities —Prior
to Licensee engaging in planned or routine maintenance activities, or equipment
upgrades concerning Communication Facility attached to a City traffic light pole,Licensee
shall provide twenty (20) days advance notice to the City Representative in order to
coordinate such maintenance activities with City operations of the traffic light system or
other public safety functions. Licensee shall obtain all necessary permits prior to engaging
in any maintenance or equipment upgrade activities in the Rights-of-Way regardless of pole
ownership. Such twenty (20) day advance notice shall not be required in the case of an
emergency.
(h) Removal of Non-Compliant Installations—The City shall have the authority
at any time to order and require Licensee to remove and abate any Communication Facility
or other structure that is in violation of the City's Rights-of-Way Regulations. In case
Licensee, after receipt of written notice and thirty (30) days opportunity to cure, fails or
refuses to comply, the City shall have the authority to remove the same at the expense of
Licensee, all without compensation or liability for damages to Licensee.
(i) Reservation of Rights — The City reserves the right to install, and permit
others to install utility facilities in the Rights-of-Way. In permitting such work to be done
by others, the City shall not be liable to Licensee for any damage caused by those persons
or entities.
(j) No Limitation in City's Operation of Traffic Light Signal System—The
Parties agree that this Agreement does not in any way limit Licensor's right to locate,
operate, maintain, and remove City traffic light poles in the manner that best enables the
operation of its traffic light signal system and protect public safety. The City Representative
may deny access to City traffic light poles due to operational conditions at the requested
site, limited space availability,public safety concerns, future traffic signal system planning,
or other operational considerations. Further, nothing in this Agreement shall be construed
as granting Licensee any attachment right to install Communication Facility to any specific
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traffic light pole, other than an approved Communication Site Application and execution
of the corresponding Supplemental License under the te of this Agreement.
(k) Coordination of Traffic Light Maintenance Activities and
Emergency Response — Prior to conducting planned or routine maintenance on specific
components of the traffic light signal system mounted on poles where Communication
Facility has been installed,the City shall provide Licensee thirty(30) days advance written
notice of such maintenance activities. In advance of such maintenance activities, Licensee
shall temporarily cut-off electricity to its Communication Facility for the safety of
maintenance personnel. In the event of failure of components of the traffic light signal
system for whatever reason,including damage resulting from vehicular collisions,weather
related events, or malicious attacks, Licensor will respond to restore traffic light signal
operations as a matter of public safety under the emergency provisions outlined in Section
12. Should the events that result in damage or failure of the traffic light signal system also
affect Communication Facility, Licensee shall have the sole responsibility to repair or
replace its Communication Facility and shall coordinate its own emergency efforts with the
City.
(1) Relocation -- In the event the City desires to replace, relocate, improve, or
modify the Right-of-Way, or demolish any pole owned by the City and used by Licensee,
in connection with any type of public improvement project, in a manner likely to cause
interference with the Communication Facility therein, the City shall have the right to cause
Licensee to relocate the Communication Facility subject to the terms and conditions herein.
(1) Relocation. If the City requires Licensee to relocate Communication Facility
from all or any portion of a Citypole, the City shall have the right to require
Licensee to relocate to an alternative space upon the following terms and
conditions: (i)City shall deliver to Licensee a relocation notice to relocate the
Communication facility at least ninety (90) days from the date on which
Licensee must relocate the Communication Facility; (ii) City shall identify a
suitable relocation space to ensure that it provides substantially similar signal
coverage for the Licensee as that of the space being relocated; (iii) such
relocation will be performed exclusively by Licensee with costs paid by
Licensee; (iv) Licensee shall have the right to operate a temporary cell site if
feasible in a mutually agreeable location in the vicinity of the original pole or
space during such relocation with no additional fee due to City; and (v) the
Annual License Fee applicable to such new space shall not be payable until
the Licensee achieves full on-air operation in the ordinary course of
Licensee's business in the relocated space. Licensee shall not be required to
pay any additional application, review or other fees in connection with any
relocation initiated by City. If. in Licensee's reasonable judgment. no suitable
relocation space can be found, then Licensee shall have the right to terminate
the applicable Supplemental License for which City is requiring relocation
upon written notice to the City, and without penalty or further obligation.
(2) Relocation In The Event of An Emergency. Notwithstanding Section (l)(a)
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above,in the event of an emergency,the City will endeavor to provide as much
notice to Licensee for the relocation of the Communication Facility as
warranted by the circumstances pertaining to the emergency.
SECTION 9. SUPERVISION BY CITY OF LOCATION OF POLES
(a) Supervision by Rights-of-Way Manager—In the event Licensee desires to install
poles on Public Rights-of-Way in order to install a Communication Facility at a selected
Communication Site, such poles shall be owned and maintained by Licensee. Such poles
shall be of adequate strength and straight, and shall be set so that they will not interfere with
the flow of water in any gutter or drain, so that they will not interfere with any other existing
utilities or already-existing facilities, and so that they will not unduly interfere with ordinary
travel on the streets or sidewalk. The location of all Licensee's personal property, poles,
and electrical connections placed and constructed by the Licensee in the installation,
construction, and maintenance of Communication Facility shall be subject to the lawful,
reasonable and proper control, direction and/or approval of the Rights-of-Way Manager.
(b) Pre-Approval by Rights-of-Way Manager — Prior to submitting
a Communication Site Application covering the installation of a new pole, Licensee shall
verify with the Rights-of-Way Manager the eligibility of the Rights-of-Way location for the
proposed pole installation. Licensee shall include in the Communication Site Application
documentation from the Rights-of-Way Manager approving the proposed pole.
SECTION 10. INTERFERENCE WITH OTHER FACILITIES PROHIBITED
(a) Interference with Rights of Others Prohibited—Licensee shall not impede,
obstruct or otherwise interfere with the installation, existence and operation of any other
pre-existing facility in the Rights-of-Way, including sanitary sewers, water mains, storm
water drains, gas mains, poles, aerial and underground electrical infrastructure, cable
television and telecommunication wires, public safety and City networks, and other
telecommunications, utility, or City personal property.
(b) Signal Interference with City's Communication Infrastructure Prohibited
In the event that Licensee's Communication Facility interferes with the City's traffic light
signal system, public safety radio system, or other City communications infrastructure
operating on spectrum where the City is legally authorized to operate,Licensee will respond
to the Licensor's request to address the source of the interference as soon as practicable,
but in no event later than twenty-four(24)hours of receiving written notice.
(c) Inspection—Licensor reserves the right to make inspections of each of
Licensee's attachments and related equipment on City poles at any time. Licensor may
charge Licensee for necessary make ready work including pre-construction, post
construction, provided that Licensor has provided written notice to Licensee of such make
ready work, and with reasonable discretion, subsequent and periodic inspections of the
Communication Facilities occupying the City's poles and its Rights-of-Way. Licensee
shall reimburse Licensor for the reasonable expense of any inspection done to investigate
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interference with the rights of others' pre-existing uses, inspection regarding signal
interference, and other inspection conducted to ensure Licensee's compliance with this
Section 10 Licensee shall reimburse Licensor for the cost of such inspections.
SECTION 11. COMPLIANCE WITH UTILITY REGULATIONS
Compliance with Local Regulations —All Communication Facility installations shall be
in compliance with all relevant legal requirements for connecting the Communication
Facility to electricity and telecommunications service. City is not responsible for
providing electricity or transport connectivity to Licensee.
SECTION 12. EMERGENCY CONTACTS
(a) Coordination of Emergency Events — In case of an emergency due to
interference, failure of traffic light signal system, or any unforeseen events, Licensor will
act to protect the public health and safety of its citizens, and to protect public and private
property, notwithstanding any provision in this Agreement. Licensor will make every
reasonable effort to coordinate its emergency response with the Licensee. To that end, the
Licensor will use the following emergency contacts: The Licensee's network operations
center may be reached 24/7 at NOC 800-510-6091.
(b) Licensee's Duty to Maintain Current Emergency Contacts — Licensee
will maintain the emergency contact information current at all times with the City
Representative.
(c) Licensee's Response to Network Emergency - In case of a network
emergency, Licensee may access its Communication Facility without first obtaining
necessary permits, provided Licensee has conducted network trouble-shooting and
diagnostic tests and has reasonably identified the point or points of network failure
or malfunction. While acting under this provision to address a network emergency,
Licensee shall conduct its activities within the Rights-of-Way in such a manner as to protect
public and private property. Licensee will make every reasonable effort to coordinate its
emergency response with the Licensor. To that end, prior to entering the Rights-of-Way,
Licensee will contact the City Representative and give notice to Licensor of the network
emergency and an estimated time period to address the situation. Licensee will obtain
necessary permits as soon as possible after the emergency to cover its emergency work.
(d) Licensor's Duty to Maintain Emergency Contacts—Licensor will maintain
the emergency contact information current at all times with Licensee.
SECTION 13. INDEMNITY
(a) General Indemnity Clause — Licensee covenants and agrees to
INDEMNIFY, DEFEND and HOLD HARMLESS, the City and the elected officials,
employees, officers, directors, agents and representatives of the City,individually and
collectively ("Indemnitees"), from and against any and all costs, claims, liens,
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damages,losses, expenses, fees, fines, penalties,proceedings, actions, demands, causes
of action, Fla duty an s suits of any 'nd and nature, i ducting s ut ot ite I to,
personal or bodily injury, death and property damage, made upon the City arising out
of a third-party claim to the extent arising from any negligent acts or omissions of
Licensee, any agent, officer, director, representative, employee, consultant or
subcontractor of Licensee, or their respective officers, agents employees, directors or
representatives while in the exercise of the rights or performance of the duties under
this Agreement. The indemnity provided for in this paragraph shall not apply to any
liability arising from the negligence of the City or an Indemnitee. IN THE EVENT
LICENSEE AND CITY ARE FOUND JOINTLY LIABLE BY A COURT OF
COMPETENT JURISDICTION, LIABILITY SHALL BE APPORTIONED
COMPARATIVELY IN ACCORDANCE WITH APPLICABLE LAW, WITHOUT,
HOWEVER, WAIVING ANY GOVERNMENTAL IMMUNITY AVAILABLE TO
THE CITY UNDER STATE LAW AND WITHOUT WAIVING ANY DEFENSES
OF THE PARTIES UNDER STATE LAW.
(b) Licensor's Duty to Notify Licensee of Claims — The City shall give
prompt written notice to Licensee of any claim for which the City seeks indemnification.
Licensee shall have the right to investigate, defend, and compromise these claims with
prompt notice to the City attorney. Said approval shall not be unreasonably withheld,
delayed or conditioned.
(c) Licensor's Consent to Settle Claims — Licensee may not settle any claim
subject to this Section without the consent of City, unless (i) the settlement will be fully
funded by Licensee, and (ii) the proposed settlement does not contain an admission of
liability or wrongdoing by any elected officials, employees, officers, directors, volunteers
or representatives of City. The City's withholding its consent as allowed in the preceding
sentence does not release or impair Licensee of any obligations under this Section.
Licensee must give City at least twenty (20) days advance written notice of the details of
a proposed settlement before it becomes binding. Any settlement purporting to bind City
must first be approved by the City.
SECTION 14. INSURANCE REQUIREMENTS
(a) Prior to the commencement of any work under this Agreement, the Licensee
shall furnish copies of all required certificate(s) of insurance to the City Representative.
The City shall have no duty to pay or perform under this Agreement until such certificate
has been received by the City.
(b) City reserves the right to review the insurance requirements of this Section
during the effective period of this Agreement and any extension or renewal hereof and to
modify insurance coverages and their limits when reasonably determined necessary by the
City based upon changes in statutory law, court decisions, or circumstances surrounding
this Agreement. Such review and modification shall not occur more frequently than every
five (5) years.
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(c) The Licensee's financial integrity is of interest to the City; therefore, the
Licensee shall obtain and maintain in full force and effect for the duration ofthis Agreement,
and any extension hereof; at the Licensee's sole expense, insurance coverage written
on an occurrence basis, by companies eligible to do business in the State of Washington
and with an A.M Best's rating of no less than A-VII, in the following types and for amounts
listed below:
Type of Coverage Amounts
1. Workers' Compensation Statutory
2. Employers' Liability $2,000,000
3. Commercial General Liability Combined Single Limit for Bodily
Insurance on ISO CGL form 00 01 or Injury and Property Damage of
equivalent to include coverage for the $2,000,000 per occurrence and
following: General Aggregate limit of$2,000,000
Premises/Operations
b. Independent Contractors
c. Products/complete operations
4. Business Automobile Liability Combined Single Limit for Bodily
Injury and Property Damage of
$2,000,000 per occurrence
(d) The Licensee agrees that with respect to the above required insurance, all
insurance policies are to contain or be endorsed to contain the following provisions:
Include the City, its officers, officials, employees, and elected
representatives as additional insureds, as respects operations and activities of, or
on behalf of, the named insured performed under contract with the City,with the
exception of the workers' compensation policies.
(1) Workers' compensation and employers' liability policies will provide a
waiver of subrogation in favor of the City for claims subject to Licensee's
indemnity obligations.Licensee may be a qualified self insurer for this line
of coverage.
(2) Upon receipt of notice from its insurer, Licensee will provide Licensor
with thirty(30) days' prior written notice of cancellation of any required
coverage that is not replaced.
(e) Within thirty(30) calendar days of a suspension, cancellation or non-renewal
of coverage, the Licensee shall provide a replacement Certificate of Insurance and
applicable endorsements to the City. The City shall have the option to suspend the
Licensee's performance should there be a lapse in coverage at any time during this
Agreement.
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(f) In addition to any other remedies the City may have upon the Licensee's
failure to provide and maintain any insurance or policy endorsements to the extent and within
the time herein required, the City shall have the right to order the Licensee to stop work
hereunder,and/or withhold anypayment(s)which become due to the Licensee hereunder until
the Licensee demonstrates compliance with the requirements hereof.
(g) Nothing herein contained shall be construed as limiting in any way the extent
to which the Licensee may be held responsible for payments of damages to persons or
property resulting from the Licensee's or its subcontractors' performance of the work
covered under this Licensee Agreement.
(h) It is agreed that the Licensee's required insurance shall be deemed
primary and non- contributory with respect to any insurance or self-insurance carried by
the City for liability arising out of Licensee's indemnity obligations under this Agreement.
(i) It is understood and agreed that the insurance required is in addition to and
separate from any other obligation contained in this Agreement.
(j) Notwithstanding the foregoing, Licensee shall have the right to self-insure
the coverages required in this section. In the event Licensee elects to self-insure its
obligation to include City as an additional insured, the following additional provisions shall
apply(in addition to those set forth in section):
(1) City shall promptly and no later than thirty (30) days after notice thereof
provide Licensee with written notice of any claim, demand, lawsuit, or the like
for which it seeks coverage pursuant to this Section and provide Licensee with
copies of any demands, notices, summonses, or legal papers received in
connection with such claim, demand, lawsuit, or the like;
(2) City shall not settle any such claim, demand, lawsuit, or the like without the
prior written consent of Licensee; and
(3) City shall fully cooperate with Licensee in the defense of the claim, demand,
SECTION 15. ADMINISTRATION OF LICENSE
(a) Administration of License by City Officials — The City Representative is
the principal City person responsible for the administration of this Agreement. The Rights-
of-Way Manager, or Public Works Director in the event there is no assigned Rights-of-Way
Manager, shall review the operations of Licensee in the Rights-of- Way under this
Agreement and the Rights-of-Way Regulations.
(b) Licensee's Duty to Communicate with City Officials — Licensee
shall communicate with the Rights-of-Way Manager all matters in connection with or
affecting the installation, construction, reconstruction, maintenance and repair of Licensee's
Communication Facility in the Rights-of-Way and provide periodic deployment plans to the
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Rights-of-Way Manager and the City Representative.
(c) Notice—Notices required by this Agreement may be given by registered or
certified mail by depositing the same in the United States mail in the continental United
States, postage prepaid. Either Party shall have the right, by giving written notice to the
other,to change the address at which its notices are to be received. Until any such change is
made, notices shall be delivered as follows:
If to Licensor: With a copy to
City of Yakima City of Yakima
129 N. 2nd Street 129 N. 2nd Street
Yakima, WA 98901 Yakima, WA 98901
Attn: Public Works Director Attn: City Clerk's Offic
If to Licensee:
Yakima MSA Limited Partnership
c/o U.S. Cellular
Attention: Real Estate Lease
Administration
8410 West Bryn Mawr Avenue
Chicago, Illinois 60631
Phone: 1-866-573-4544
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SECTION 16. ASSIGN ENT I F LICENSE
(a) Limited Right of Assignment — This Agreement and each Supplemental
License under it may be sold or assigned by Licensee without any approval or consent of the
Licensor to Licensee's principal, affiliates, subsidiaries of its principal or to any entity which
acquires all or substantially all of Licensee's assets that are the subject of this Agreement by
reason of a merger, acquisition or other business reorganization provided that such
acquiring entity is bound by all of the terms and conditions of this Agreement. As to other
parties,this Agreement and each Supplemental License may not be sold or assigned without
the written consent of the Licensor, which shall not be unreasonably withheld, delayed or
conditioned. Licensee shall provide the City Representative notice of any such merger,
acquisition or other business reorganization with a principal, Affiliate or subsidiary of
Licensee within a reasonable period of time after the consummation thereof. No change of
stock ownership, partnership interest or control of Licensee or transfer upon partnership
or corporate dissolution of Licensee shall constitute an assignment hereunder.
(b) Licensee's Right to Grant Security Interest in License — Additionally,
Licensee may mortgage or grant a security interest in this Agreement and the Communication
Facility, and may assign this Agreement,any Supplemental License and Communication
Facility to any mortgagees or holders of security interest, including their successors or
assigns(collectively"Mortgagees"),provided such Mortgagees' interests in this Agreement
are subject to all of the terms and provisions of this Agreement. In such event, City shall
execute such consent to financing as may reasonably be required by Mortgagees.
SECTION 17. FUTURE CONTINGENCY
Renegotiation for Incapacity of Contract—Notwithstanding anything contained in this
Agreement to the contrary, in the event that this Agreement, in whole or in part, is declared
or determined by a judicial, administrative or legislative authority exercising its
jurisdiction to be excessive, unrecoverable, unenforceable, void, unlawful, or otherwise
inapplicable, the Licensee and Licensor shall meet and negotiate an amended Agreement
that is in compliance with the authority's decision or enactment.
SECTION 18. AGREEMENT VIOLATIONS LEADING TO TERMINATION
(a) Events of Termination — This Agreement may be terminated before the
expiration date of the Term on written notice by either party to the other party, if a party
engages in a pattern of materially breaching this Agreement and such breaches are not
cured within sixty(60)days after receipt of written notice of such breach. A party shall not
be excused from complying with any of the terms and conditions of this Agreement by the
previous failure of a party to insist upon or seek compliance with such terms and
conditions.
(b) No Waiver of Duties — Termination of this Agreement does not relieve
Licensee from the obligation(i)to pay Annual License Fees accrued and owing to Licensor
under the Agreement at the time of termination, or (ii) concerning any claim for damages
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against Licensee under this Agreement. Licensor's rights, options, and remedies under this
Agreement are cumulative,ulative, and no one of them is exclusive of the other. Licensor may
pursue any or all such remedies or any other remedy or relief provided by law, whether
or not stated in this Agreement. No waiver by Licensor of a breach of any covenant or
condition of this Agreement is a waiver of any succeeding or preceding breach of the same
or any other covenant or condition of this Agreement.
(c) Termination of this Agreement does not relieve either Party from the
obligation concerning any claim for damages against the other Party under this
Agreement. Parties' rights, options, and remedies under this Agreement are cumulative,
and no one of them is exclusive of the other. Either Party may pursue any or all such
remedies or any other remedy or relief provided by law, whether or not stated in this
Agreement. No waiver by either Party of a breach of any covenant or condition of this
Agreement is a waiver of any succeeding or preceding breach of the same or any other
covenant or condition of this Agreement.
SECTION 19. TERMINATION BY LICENSEE.
Licensee may terminate a Supplemental License for any reason or no reason upon thirty(30)
days' written notice to City.
SECTION 20. GOVERNING LAW, JURISDICTION AND VENUE
(a) Governing Law — This Agreement is passed in accordance with the
constitutions, statutes, ordinances, and regulations of the United States, the State of
Washington, and the City of Yakima in effect on the effective date of this Agreement, and
as such local, state, and federal laws may be subsequently amended.
(b) Compliance with Local Ordinances —Nothing in this Agreement shall be
interpreted to limit the authority of the City to adopt, from time to time, ordinances,rules and
regulations that are generally applicable to occupants of the Rights-of- Way that it
determines necessary in the exercise of City's governmental powers. Licensee shall abide
by any Rights-of-Way Regulations that do not conflict or are otherwise preempted by state
of federal law.
(c) Enforcement of Local Regulations — Licensor expressly reserves the right
to enforce requirements for ministerial issuance of ROW Permits. It is understood and
agreed that Licensee is responsible for obtaining all such permits necessary to install,
maintain and operate its Communication Facility.
(d) Jurisdiction and Venue — THE PROVISIONS OF THE AGREEMENT
SHALL BE CONSTRUED UNDER, AND IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF WASHINGTON, AND ALL OBLIGATIONS OF THE PARTIES
CREATED HEREUNDER SHALL BE PERFORMED IN THE COUNTY IN WHICH
THE CITY IS LOCATED. THEREFORE, IN THE EVENT ANY COURT ACTION IS
BROUGHT DIRECTLY OR INDIRECTLY BY REASON OF THIS AGREEMENT,THE
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STATE AND FEDERAL COURTS OF SUCH COUNTY SHALL HAVE
IC I N OVER THE DISPUTE
A VE E SHALL BE SUCH CO .
SECTION 21. NON-DISCRIMINATION
Non-Discrimination — Licensee agrees not to engage in employment practices that
discriminate against any employee or applicant for employment based on race, color,
religion, national origin, sex, sexual orientation, gender identity, veteran status, age,
disability, or political belief or affiliation, or any other persons or groups protected by state,
local or federal law, unless exempted by state or federal law.
SECTION 22. MISCELLANEOUS PROVISIONS
(a) Waiver—None of the material provisions of this Agreement may be waived
or modified except expressly in writing signed by the Licensee and Licensor. Failure of
either Party to require the performance of any term in this Agreement or the waiver by either
Party of any breach thereof shall not prevent subsequent enforcement of this term and shall
not be deemed a waiver of any subsequent breach.
(b) Severability—If any clause or provision of the Agreement is illegal, invalid,
or unenforceable under present or future laws effective during the Term, then and in that
event it is the intention of the Parties hereto that the remainder of this Agreement
shall not be affected thereby, and it is also the intention of the Parties that in lieu of each
clause or provision of this Agreement that is illegal, invalid, or unenforceable, there be
added as part of this Agreement a clause or provision as similar in terms to such illegal,
invalid, or unenforceable clause or provision as may be possible and be legal, valid, and
enforceable.
(c) Captions — The captions contained in this Agreement are for convenience
of reference only and in no way limit or enlarge the terms and conditions of this Agreement.
(d) Extent of Agreement—This Agreement, together with its attached exhibits
and the authorizing ordinance, if any, embodies the complete agreement of the Parties,
superseding all oral or written previous and contemporary agreements between the Parties
and relating to this Agreement.
(e) Authority —Licensee and the City hereby represent and warrant that the
signers of this Agreement have full authority to execute this Agreement on behalf of the
Licensee or the City respectively.
(f) Non-Waiver of Rights — By entering this Agreement, neither Licensor
nor Licensee has waived any rights either Party may have under applicable state and federal
law pertaining to the provision of Communication Service or Licensee's access rights
concerning the Rights-of-Way.
(g) Change of Law—If any federal, state, or local laws or regulations (including,
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but not limited to,those issued by the Federal Communications Commission or its successor
agency) and any binding judicial interpretations thereof(collectively, "Laws") that govern
any aspect of the rights or obligations of the Parties under this Agreement shall change after
the Effective Date and such change makes any aspect of such rights or obligations
inconsistent with the then-effective Laws, then the Parties agree to promptly amend
the Agreement as reasonably required to accommodate and/or ensure compliance with
any such legal or regulatory change.
(h) Force Majeure — In the event a Party's performance of any of the
terms, conditions, obligations or requirements of this Agreement is prevented or impaired
due to a force majeure event beyond such Party's reasonable control, such inability to
perform will be deemed to be excused and no penalties or sanctions will be imposed as a
result thereof For purposes of this subsection,"force majeure"means an act of God, a natural
disaster or an act of war (including terrorism), civil emergencies and labor unrest or strikes,
pandemics, untimely delivery of equipment, pole hits, and unavailability of essential
equipment, and/or materials, and any act beyond the Party's reasonable control. It also
includes an explosion, fire or other casualty or accident, which is not the result of gross
negligence, an intentional act or misconduct on the part of the Party.
(i) Amendments — Any amendment or revision to this Agreement shall be agreed
to,in writing,by both Parties.
(j) No Partnership or Joint Venture — The relationship between Licensor
and Licensee is at all times solely that of licensor and licensee, not that of partners or joint
venturers.
(k) Counterparts — This Agreement may be executed in multiple counterparts,
each of which is an original. Regardless of the number of counterparts, they constitute
only one agreement. In making proof of this agreement, it is not necessary to produce
or account for more counterparts than are necessary to show execution by or on behalf of
all Parties.
(1) Further Assurances — The Parties must execute and deliver such
additional documents and instruments as may be required to effect fully the provisions
hereof No such additional document(s), however, may alter the rights or obligations of the
Parties as contained in this Agreement.
[Remainder of page intentionally left blank; signature page to follow.]
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EXECUTED and AGREED.
CITY OF YAKIMA
Yakima MSA Limited Partnership
By:United States Cellular Operating Company of
Yakima
Its: General Partner
(Signature) (Signature)
I
Printed Name: Printed Name: (01‘-trt ykC r IC( tc_te T C
O vd
Title: Title: SQP1761 C VAL>6
Date: Date:
ATTEST:
Sonya Claar-Tee, City Clerk
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E I I IT A Supple ental
License Form
Supplemental License No.
For Communication Facility Installation
This Supplemental License is entered on this day of , between the
City of Yakima, acting through its City Representative, or his/her designee,
("Licensor")and Yakima MSA Limited Partnership("Licensee").
1. Overview of Supplemental License — This Supplemental License applies to the
Communication Sites described below.
Authorizing
Agreement:
License: Master License Agreement for Use of Public Rights-of-Way
Licensor: City of Yakima
Licensee: Yakima MSA Limited Partnership
Initial
Annual License Fees:
Commencement Date:
Term: Term subject to the Master License Agreement.
Licensee Site Communication Site GIS Type of Communication Facility
ID # Coordinates
[Wireless Communication Equipment]
[Wireless Backhaul Equipment]
[Landline Backhaul Equipment]
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ole Type 'ole Alteration Attach- Attach- Attachment Location of Equipment
ment ment Dimensions Shelter
Height Weight
[City Pole] [Pole Reinforcement] [Installed on Pole]
[Third-Party Pole] [Pole Replacement] [Installed in Ground
[Licensee Pole] [New Pole] (Vault)]
[Not Applicable/ [Not [Other Location (Requires
Needed] Applicable/Needed] City Representative
Approval)]
[Not Applicable/Needed]
2. Source of Authority—This Supplemental License is authorized and executed pursuant
to the terms and conditions of the "Master License Agreement between the City
and Licensee for the Use of Public Rights-of-Way," as it may be amended by the
Parties during its Term ("Master License Agreement"). All of the terms and
conditions of the Master License Agreement, including any future amendments, are
incorporated herein by reference and made a part hereof without the necessity of
repeating or attaching the Master License Agreement. Capitalized terms used in
this Supplemental License shall have the same definitions and meanings ascribed
to them in the Master License Agreement, unless otherwise indicated herein.
3. Approval Process — This Supplemental License arises from and is part of the approval
process associated with the Communication Site Application approved by the City
Representative on The Communication Site Application,
including all attachments, is incorporated as Exhibit 1 and made a part hereto. If
not attached, the Communication Site Application is hereby incorporated herein by
reference and made a part hereof without the necessity of repeating or attaching it.
4. Scope of License—This Supplemental License is limited to the Communication Facility
installation(s) referenced in the Communication Site Application associated with
this Supplemental License.
5. Conflict in Interpretation —Nothing in this Supplemental License is intended to grant
Licensee any rights or privileges beyond those addressed in the Master License
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Agreement. In the event of any conflict in contractual interpretation between this
Supplemental License and the aster License Agreement,the terms and conditions
of the Supplemental License shall govern, provided however that any future
amendments or modifications to the Master License Agreement shall
simultaneously apply and serve to amend or modify this Supplemental License
without the need by either Party to provide notice of such to the other.
6. Site Specific Conditions — All site specific conditions shall be addressed in the
Communication Site Application associated with this Supplemental License.
7. Site Modifications—Prior to making any post-installation future material modifications
to a Communication Site, other than maintenance and repair of site specific
Communication Facility as further provided in the Master License Agreement,
Licensee shall file a wireless facilities permit application, as required by ordinance,
with the City Representative describing the proposed modifications. The City
Representative, or his/her designee, shall review the application pursuant to the
terms and conditions in the Master License Agreement and federal, state and local
laws, and if approved such application shall be attached as Exhibit 2 and made a
part hereto. Any additional site modifications shall be incorporated hereto in the
same manner.
8. License Fee — The Annual License Fees applicable to this Supplemental License, as
summarized in Section 1 above, shall be calculated as set forth in the Master License
Agreement, payable by Licensee as provided therein.
9. Commencement Date —The Commencement Date for this Supplemental License shall
be the same date that the wireless facilities permit application associated with this
Supplemental License, which is hereby approved by the City Representative.
10. Term—The term for this Supplemental License, as described in Section 1 above, is set
forth in the Master License Agreement.
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NOW THEREFORE, the Parties hereto by the signature of their respective
representatives hereby agree to enter into this Supplemental License.
LICENSOR
CITY OF YAKIMA
By:
Printed Name:
Title:
Date:
LICENSEE
Yakima MSA Limited Partnership
By: United States Cellular Operating Company of Yakima
Its: General Partner
By:
Printed Name:
Title:
Date: