Loading...
HomeMy WebLinkAbout5.587 Amendment (2)RIGHT OF WAY LICENSE AGREEMENT RENEWAL NO. 2 This Agreement is entered into this 3oday of thV 2011 between the City of Port Angeles (hereinafter "City granting municipal consent to the Clallam County Public Utility District No. 1 (hereinafter "Grantee in the form of a right -of -way license for the purpose of reconstructing, maintaining, operating and using a telecommunications system in public streets, alleys and rights -of -way in the City of Port Angeles to provide for the Grantee's internal telecommunications needs and to provide wholesale telecommunications services outside of the City; providing for general and administrative provisions; providing fees and compensation for the privileges conferred under this right -of -way license; providing conditions; providing for enforcement of right of -way license provisions; and providing for written acceptance of the terms of this right of -way license. WHEREAS, the City of Port Angeles, pursuant to federal law, state statutes, and local ordinances, granted municipal consent to the Grantee on October 10, 2001 in the form of a right -of -way license, and granted renewed municipal consent to the Grantee on September 27, 2006, and is authorized to consent to one or more non exclusive right -of- way licenses to reconstruct, operate, and maintain a telecommunication system in the public rights -of -way within the municipal boundaries of the City as designated in Exhibit "A" "City Area and WHEREAS, the Grantee has requested municipal consent from the City and has submitted a written application for this right -of -way license renewal, which application is attached hereto as Exhibit `B and WHEREAS, nothing within this right -of -way license shall be construed to authorize the Grantee to provide telecommunications services or wholesale telecommunications services to end users within the City; and WHEREAS, as applicable, the definitions of all words not defined herein shall be as used in the following chapters of the Port Angeles Municipal Code: Chapter 11.14 Telecommunications, Chapter 3.70 Revenues and Fees, Chapter 5.04 Licensing, Chapter 5.80 Taxation, Chapter 11.08 Construction or Excavation Work Within Rights -of -Way, Chapter 11.12 Right -of -Way Use, Chapter 13.14 Pole Attachments, and Chapter 17.52 Page 1 of 6 5 :6 g7 Wireless Telecommunications Towers and Facilities, which are incorporated herein for all purposes; IN CONSIDERATION of the above representations and the agreements set forth herein, the parties hereby agree as follows: Section 1 Scone of City Consent. The City hereby consents to authorize the Grantee, a renewed term for a period of five (5) years from and after the Effective Date of this Agreement (the "Term the non- exclusive right to reconstruct, use, operate, own and maintain a telecommunication system in, on, under and over the public rights -of -way, as described in Exhibit "B" of the right -of -way license, subject to applicable law and specifically Chapter 11.14 PAMC, hereafter referred to as the Telecommunications Ordinance. The Effective Date �f the license granted hereby is October 10, 2011. The consent extended to Grantee herein is limited to the right to reconstruct, maintain and repair the installation and facilities contemplated by the October 10, 2001 right of way license only and specifically does not include any extension or expansion of facilities or equipment. Section 2 Authority not Exclusive. The consent conferred in Section 1 is not exclusive, pursuant to the Telecommunication Ordinance. The Grantee shall respect the rights and property of the City and other authorized users of the public rights -of -way. Section 3 Fees and Compensation. From and after the effective date of this Agreement and throughout the Term of this Agreement, the Grantee shall pay the City all taxes, fees and compensation pursuant to the Telecommunications Ordinance. Section 4 Reconstruction and Operation of the Telecommunication System. In reconstructing and operating and maintaining its telecommunication system, the Grantee shall comply with all applicable requirements of the following Chapters of the Port Angeles Municipal Code: Chapter 11.14 Telecommunications, Chapter 3.70 Revenues and Fees, Chapter 5.04 Licensing, Chapter 5.80 Taxation, Chapter 11.08 Construction or Excavation Work Within Rights -of -Way, Chapter 11.12 Right -of -Way Use, Chapter 13.14 Pole Attachments, and Chapter 17.52 Wireless Telecommunication Towers and Facilities. In addition, the Grantee shall comply with the following: 4.1 Permits Required. Grantee shall not reconstruct, the telecommunication system (or parts thereof) within the public rights -of -way or on City property unless authority has been obtained in accordance with the Telecommunications Ordinance or other applicable City approvals. 4.2 Plan Review. Grantee shall not commence reconstruction unless and until all maps and other documents are provided to the City, in accordance with Chapter 11.14 Telecommunications, Chapter 5.04 Licensing, Chapter 5.80 Taxation, Chapter 11.08 Construction or Excavation Work Within Rights -of- Way, Chapter 11.12 Right -of -Way Use, and Chapter 13.14 Pole Attachments. Page 2 of 6 4.3 Scheduling. The Grantee shall provide the City advance notice before beginning reconstruction or installation, pursuant to the Telecommunications Ordinance. 4.4 Commencement of Construction. Construction of the facilities contemplated by the October 10, 2001 right -of -way license was completed, any reconstruction and maintenance work shall comply with this right -of -way license. 4.5 Reconstruction Standards. Grantee shall comply with construction standards in accordance with Section 11.14.040 of the Telecommunications Ordinance. In addition, any employee, contractor, vendor or agent assigned to work on the reconstruction, maintenance, or repair. of system equipment must be properly licensed under the laws of the State of Washington and the City of Port Angeles. 4.6 Inspections. The Grantee shall permit the City to conduct inspections of reconstruction, maintenance or repair to ensure compliance with the Telecommunications Ordinance. 4.7 Restoration of Property. At its own cost and expense, Grantee shall within ten (10) calendar days restore property on public or private lands disturbed by Grantee's activities, pursuant to the Telecommunications Ordinance. 4.8 Removal or Relocation of Facilities. The Grantee shall remove or relocate facilities as required by the Telecommunications Ordinance. 4.9 Installations on City Property and Private Property. No cable line, wire, amplifier, converter, or other piece of equipment owned by the Grantee shall be installed by the Grantee on any City property or private property without first securing the written permission of the City or a grant of authority as required under this Agreement or written permission of the property owner and /or lawful occupant of any property involved. 4.10 City Use of Grantee's Facilities. In consideration of the rights and privileges hereby granted, the City shall have, and Grantee hereby grants to the City, the right and privilege to suspend and maintain wires and necessary control boxes on poles placed by the Grantee in the streets, and other places aforesaid, or if such wires are placed underground, to place and maintain in the pipes or conduits of the Grantee, if space therein is available, wires which City may require for electrical, water, wastewater, fire, police, or emergency services. All such wires must be placed on the poles or in conduits so as not to interfere with communications service and shall not carry currents or voltage dangerous to Grantee's plant or Grantee's users, and all installations, maintenance and repairs shall be subject to the rules, regulations and supervision of the Grantee. City agrees in consideration of establishing this service and furnishing such facilities, to hold Grantee harmless from all claims and or liability for damage, which may arise out of operating these wires and control boxes. Further, where such facilities Page 3 of 6 have been installed or maintained by the City and not solely by Grantee, the City agrees to hold the Grantee harmless from all liability from any claims or damages that may arise out of the negligent installation, maintenance, use or operation by the City of these facilities. 4.11 Books and Records. The Grantee shall keep books and records as required by the Telecommunications Ordinance and in accordance with generally accepted accounting principles. Section 5 Tree Trimming. Upon ten (10) days' written notice provided to the Director, except in an emergency of imminent danger to persons or property, the Grantee may trim trees or other vegetation owned by the City or encroaching upon the public right -of -way to prevent branches or leaves from touching or otherwise interfering with its wires. All trimming or pruning within environmentally sensitive areas shall be subject to applicable requirements of Chapter 15.20 PAMC Environmentally Sensitive Areas Protection. All trimming or pruning shall be at the sole cost of the Grantee. The Grantee may contract for said trimming or pruning services with any person approved by the City prior to the rendering of said services. Section 6 Reports. The Grantee shall make available to the City such information or reports, as required by the Telecommunications Ordinance. The Grantee shall allow the City to inspect any of the Grantee's facilities and equipment with sufficient notice as to not disrupt the operations of the Grantee. Section 7 Indemnity and Insurance. The Grantee shall comply with applicable sections of the Telecommunication Ordinance governing indemnity and insurance. Section 8 Grantee Default and Remedies. If Grantee fails to comply with or is in violation of this Agreement or the Telecommunication Ordinance, Grantee will be subject to termination and remedies as provided for in PAMC 11.14.050. Section 9 Compliance with Laws: Severability. Notwithstanding any other provisions of this Agreement to the contrary, the Grantee shall at all times comply with all applicable police powers and regulations of the City and all administrative agencies thereof. 9.1 If any provision of this Agreement or any related ordinance is held by any court or by any federal, state, or local agency of competent jurisdiction to be invalid as conflicting with any federal, state or local law, rule or regulation now or hereafter in effect, or is held by such court or agency to be modified in any way in order to conform to the requirements of any such law, rule or regulation, said provision shall be considered as a separate, distinct and independent part of this Agreement, and such holding shall not affect the validity and enforceability of all other provisions hereof or thereof. In the event that such law, rule or regulation is Page 4 of 6 subsequently repealed, rescinded, amended or otherwise changed, so that the provision hereof or thereof which had been held invalid or modified is no longer in conflict with the law, rules and regulations then in effect, said provision shall thereupon return to full force and effect and shall thereafter be binding on the parties hereto, provided that the City shall give the Grantee sixty (60) days written notice of such change before requiring compliance with said provision. 9.2 If the City determines that a material provision of this Agreement is affected by such action of a court of the federal, state or local government, the City and Grantee shall have the right to modify any of the provision hereof or in such related ordinances to such reasonable extent as may be necessary to carry out the full intent and purpose of this Agreement. Section 10 Taxes. Permit and Other Fees. Nothing contained in this Agreement shall be construed to exempt the Grantee from any tax levy, permit fee or assessment, including but not limited to application, inspection, pole attachment, excavation impact, or tree trimming fees, which are or may be hereafter lawfully imposed on all entities engaged in the same business as the Grantee, or as are generally applicable in the City or State. Section 11 Sale or Transfer. With respect to the sale or transfer of the Grantee's franchise or telecommunication system, the Grantee shall comply with appropriate sections of the Telecommunications Ordinance. Section 12 Service of Notice. All notices required or permitted to be given to either party by the other party under any provisions of this Agreement shall be in writing and shall be deemed served as follows: (a) When delivered by hand or by Federal Express or similar service to that party's address set forth below during normal hours; or (b) When mailed to any other person designated by that party in writing herein to receive such notice, via certified mail, return receipt requested. 12.1 Notice shall be given to the following: (a) If to the City: Glenn Cutler, Public Works and Utilities Director P.O. Box 1150, Port Angeles, WA 98362 -0217 (b) If to Grantee: General Manager P.O. Box 1090, Port Angeles, WA 98362 -0207 Section 13 Force Maieure. Any delay, preemption, or other failure to perform caused by factor beyond either party's reasonable control, such as an act of God, unauthorized labor dispute, non- delivery by non affiliated suppliers, war, riot, technical breakdown, or government administrative or judicial order or regulation, shall not result in a default of the Agreement. Each party shall exercise its reasonable efforts to cure any such delays and Page 5 of 6 cause thereof, and performance under the terms of this Agreement shall be excused for the period of time during which such factor continues. Section 14 Construction and Jurisdiction. In the event of any conflict between this Agreement and the Telecommunications Ordinance, the terms of the Telecommunications Ordinance shall prevail and control. This Agreement is made and performed in Clallam County, Washington, and it shall be construed in accordance with the laws in the State of Washington and the City of Port Angeles. Any lawsuit under this Agreement shall be brought in Clallam County, Washington. Section 15 Execution. This Agreement shall take effect upon execution by the following duly authorized representatives of the parties. City of Port Angeles: By: n Kent Myers, Ci Raiger Attest: by: Page 6 of 6 Hurd, City Clerk A pprove as to form: William B'lOor, City Attorney Grant by: