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HomeMy WebLinkAbout5.587 Amendment 35.587 RIGHT OFWAY LICENSE AGREEMENT RENEWAL NO.3 This Agreement is entered into this 30 auy of -D..rnl"-, roru between the City of Port Angeles (hereinafter "City") granting municipal consent to the Clallam County Public Utility District No. I (hereinafter "Grantee"), in the form ofa right-of-way license for the purpose of reconstructing maintaining, operating and using a telecommunications syst€m in public streets, alleys and rights-of-way in the City of Port Angeles to provide for the Grantee's intemal telecommunications needs and to provide wholesale telecommunications services outside of the City; providing for general and administrative pmvisions; providing fees and compensation for the privileges conferred under this right-of-way license; providing conditions; providing for enforcement ofrighr of-way license provisions; and providing for written acceptance of the terms of this righf 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 ofa right-of-way license, and granted renewed mrmicipal consent to the Grantee on Septernber 27, 2006 and Novonber 30, 201l, and is authorized to consent to one or more non-exclusive right-of-way licenses to recorstruc! operate, and maintain a telecommrmication systern 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 writtor application for this right-of-way license renewal, which application is attached hereto as Exhibit "8"; 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 thc City'; and WHEREAS, as applicablg the definitions of all words not defined herein shall be as used in the following chapters of the Port Angeles Municipal Code: Chapter I l.l4 Telecommunications, Chapter 3.70 Revenues and Fees, Chapter 5.04 Licensing, Chapter 5.80 Taxation, Chapter I1.08 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 I of6 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 agrce as follows: Section I - Scooe OfCitv Consent. The City herby consents to authorize the Grantee, a renewed term for a period of five (5) years fiom and after the effective date of this Agreemenl (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 "8" of the Novemb€r 7, 2016 right-of-way license, subject to applicable law and specifically Chapter 11.14 PAMC, hereafter referred to as the Telecommunications Ordinance. The consent extended to Grantee herein is limited to the right to reconstruct, maintain and repair the installation and facilities conternplated by the October 10, 2001 right of way license only and specifically does not include any exteosion or expansion of facilities or equipment. Section 2 - A ty Not Exclusive. The consent conferr€d in Section I is not exclusivg pusuant 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 4 - Reconstruction and on of the Telecommunication Svstem. In reconstsucting and operating and maintaining its telecommunication system, the Grantee shall comply with all applicable requirernents 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, or relocate 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. Crantee shall not commence reconstruction unless and until all maps and other documents are provided to the City, in accordance with Chapter ll.l4 Telecommunications, Chapter 5.04 Licensing, Chapter 5.80 Page 2 of 6 Sec{.ion 3 - Fees And Compensation. From and after the effective date of this Agreement and throughout the Term of this Agreernent, the Grantee shall pay the City all taxes, fees and compensation pursuant to the Telecommunications Ordinance. Taxation, Chapter I I .08 Construction or Excavation Work Within Rights-of- Way, Chapter 11.12 Right-of-Way Use, and Chapter 13.14 Pole Attachments. 4.3 Scheduling. The Crantee shall provide the City advance notice before beginning reconstruction or installatiorL pursrunt to the Telecommunications Ordinance. 4.4 Commencernent of Construction. Construction of the facilities contemplated by the October 10, 2001 right-of-way licease was completd, any reconstruction and maintenance work shall comply with this righrof-way license. 4.5 Construction Standards. Grantee shall comply with construction standards in accordance with Section 11.14.040 of the Telecommunications Ordinance. In addition, any ernployee, contractor, vendor or agent assigned to work on the reconstructiorl maintenance, or repair of systern equipment must be properly licensed under the laws of the State of Washingtoo and the City ofPort Angeles. 4.6 Inspections. The Grantee shall perrnit the City to conduct inspectiors of reconstruction, maintenance or repair to ensure compliance with the Telecommunications Ordinance. 4-7 Restoration of Property. At its own cost and expensg Grantee shall within ten (10) calendar days restore prcperty 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, wte, 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 la$,fuI occupant of any property involved. 4.10 City Use of Grantee's Facilities. In consideration of the rights and privileges hcrcby granted, the City shatl 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 Page 3 of6 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 have been installed or maintained by the City and not solely by Grantee, the City agrees to hold thc Grantee harmless from al1 liability from any claims or damages that may arise out of the negiigent installation, maintenance, use or operation by the City of these facilities. 4.1 I Books and Records. The Grantee shall keep books and records as required by the Telecommrmicatiors Ordinance and in accordance with generally accepted accounting principles. Section 5 - Tree Trimmine. Upon ten (10) days'written notise provided to the Director, except in an emergency of imminent danger to peBons or property, the Grantee may trim trees or other vegetation owned by the City or encroaching upon the public right-ol'-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 requirernents 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 penion approved by the City prior to the rendering of said services. Section 6 - Reports. The Crantee shall make available to the City such information or reports, as required by the Telecommunications Ordinance. The Grantee shall allow the City t<r inspect any of the Grantee's facilities and equipment with sufficient notice as to not disrupt the operations ofthe Grantee, Section 7 - Indernnity 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 Ordinancg Grantee will be subject to termination and remedies as provided for in PAMC 1I.14.050. Section 9 - Compliance With Laws: Severabilitv. Notrvithstanding 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 Ifany 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 Page 4 of 6 hereafter in effect, or is held by such court or agency to be modified in any way in order to conform to the requirfirents of any such law, rule or regulation, said provision shall be considered as a s€parate, distinct and independent part of this Agreement, and such holding shall not affect t}te validity and enfiorceability of all other provisions hereof or thereof In the event that such law, rule or regulation is 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 retum 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 zuch change before requiring compliance with said provision. 9.2 If the City detennines that a material provision of this Agreernent is affected by such action of a court of the federal, state or local governmant, the City and Grantee shall have the right to modiry 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 Ageement. Section 10 - Taxes, Permit And Other Fees. Nothing contained in this Agreernent 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 hee trimming fees, which are or may be hereafter lawfully imposed on all entities engaged in the same business as thc Grantee, or as are generally applicable in the City or State. Section l1- Sale Or Transfer. With respect to the sale or transfer of the Grantee's franchise or telscommrmication system, the Grantee shall comply with appropriate sections of the Telecommunications Orrdinance. Section l2 - Service Of Notice All notices required or permitted to be given to either party by the other party under any provisions of this Agreernent shall be in writing and shall be deerned 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 O) When mailed to any other person designated by that party in writing herein to receive such noticg via certified mail, retum receipt requested. 12.1 Notice shall be given to the following:(a) If to the City: Craig Fulton, Public Works and Utilities Director P.O. Box 1 150, Port Angeles, WA 98362-0217 O) If to Grantee: Genetal Manager P.O. Box 1090, Port Angeles, WA 98362-0207 Page 5 of6 Section 13 - Force Majeure. Any delay, preemptiorL or other failure to perform caused by factor beyond either party's reasonable control, such as an act of Go4 unauthorized labor dispute, non-delivery by non-affiliated suppliers, war, riot, technical breakdown, or govlm*tent administrative or judicial order or regulation, shall not result in a default of the Agreernent. Each party shall exercise its reasonable efforts to cure any such delays and cause thereof, and performance under the terms of this Ageement shall be excused for the period of time during which such factor continues. Section 14 - Constsuction And Jurisdiction. In the event ofany conflict between this AgEsrnent and the Telecommunications Ordinance, the terms ofthe Telecommunications Ordinance shall prevail and control. This Agreement is made and perfomred in Clallam County, Washington, and it shall be constsued in accordance with the laws in the State of Washington and the City of Port Angeles. Any lawsuit under this Agreernent shall be brought in Clallarn County, Washington. Section 15 - Execution. This Agreerneat shall take effect upon execution by the following duly authorized representatives of the parties. City of Port Angeles: By: Dan McKea, City Manag€r Attest: v eneklasen, City Clerk ved as to iam Bloor,ity Atlomey Crantee: by: i. f' Page 6 of6 by: