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City of Bellevue
Right-of-Way Use Agreement
Whereas COMPANY, a _____________ Corporation ("COMPANY"), and the City of Bellevue ("City") have engaged in negotiations regarding the right of COMPANY to install, operate and maintain a communications system in certain rights-of-way of the City ("Agreement"); and
Whereas COMPANY and the City desire to enter into an agreement authorizing COMPANY to use certain portions of the right of way in the City for its communication system subject to certain conditions and restrictions; now therefore, COMPANY and the City agree as follows:
A. COMPANY is authorized to use those certain City rights-of-way as specified in the Scope of Work, Attachment A, for the purpose of constructing, replacing, maintaining and using equipment and facilities for a telecommunications system provided they shall first obtain all necessary permits and authorizations required by the City.
Such permits and authorizations shall be issued subject to the provisions of Title 6 of the Bellevue City Code and the General Conditions set forth in Sections 1 through 13 of paragraph H of this Agreement which General Conditions shall be incorporated by reference in such permits and authorizations as if fully set forth in whole therein. Such permits and authorizations shall also be subject to any other applicable City ordinances, resolutions, codes, policies and standards. Nothing provided herein shall in any way limit the City's authority to otherwise exercise its police powers.
B. COMPANY and the City recognize that the rights-of-way authorized to be used by COMPANY pursuant to Paragraph A above will permit COMPANY to construct its wireless telecommunications system.
COMPANY and the City further recognize that COMPANY will need to utilize substantial additional rights-of-way in order to be able to provide service to its customers. COMPANY agrees to cooperate with the City's Department of Transportation to identify and evaluate those additional rights-of-way necessary for COMPANY to serve its customers. Priority shall be given to use of those rights-of-way, construction upon which can be coordinated with other City and private construction activities, will least impact the existing condition of the rights-of-way, will least impact traffic during construction, and will least impact adjacent neighborhoods during construction and after installation. The Director of the Transportation Department or other person designated by the City Manager, shall be authorized to approve the use by COMPANY of such additional rights-of-way requested by COMPANY which the Director deems appropriate.
Additional rights-of-way authorized for use by the Director shall be listed and made an addendum to Attachment A.
C. COMPANY shall be subject to a one time administrative fee of two thousand dollars ($2000.00) relating to the issuance and administration of this Agreement. COMPANY agrees to pay such administrative fee on the effective date of this Agreement.
Nothing provided herein shall exempt or otherwise limit COMPANY's obligation to pay any tax required by Title 4 of the Bellevue City Code or any other City ordinance.
Pursuant to Section 35.21.860 of the Revised Code of Washington (RCW), the City is precluded from imposing a franchise fee on a telephone business as defined in RCW 82.04.065, except for administrative expenses or any tax authorized by RCW 35.21.865. COMPANY hereby warrants that its operations as authorized under this franchise are those of a telephone business as defined in RCW 82.04.065. As a result, the City will not impose a franchise fee under the terms of this ordinance, other than as described herein.
However, the City hereby reserves its right to impose a franchise fee on COMPANY, for purposes other than to recover its administrative expenses, if COMPANY's operations as authorized by this agreement change so that not all uses of the agreement are those of a "telephone business" as defined in RCW 82.04.065; or, if statutory prohibitions on the imposition of such fees are removed. In either instance, the City also reserves its right to require that COMPANY obtain a separate franchise for its change in use, which franchise may include provisions intended to regulate COMPANY's operations, as allowed under applicable law.
The City reserves its right to charge site specific charges for the use of City right of way for placement of personal wireless services equipment or facilities as provided in RCW 35.21.860(e). The rent shall be charged as shown on the Attachment A.
COMPANY reserves its right to contest or challenge the City's determination that it may impose a franchise fee or require that COMPANY obtain a separate franchise under the provisions of this section, federal or state law.
D. This Agreement shall be in effect for a period of five (5) years from the effective date of this Agreement. This Agreement shall be automatically renewed for _______ (X) additional five (5) year period(s) thereafter.
E. This Agreement may be terminated if COMPANY fails to commence construction of its facilities/system within one year of the effective date of this Agreement unless otherwise agreed to in writing by the City.
F. To the extent that COMPANY makes the facilities and/or services available to other governmental entities within the State of Washington, COMPANY shall also make such facilities and services available to the City at similar rates and on similar terms and conditions unless otherwise prohibited or restricted by state or federal laws, regulations, or tariffs.
G. The General Conditions referenced in paragraph A are as follows:
Section 1. Permits and Authorizations. COMPANY shall apply for and obtain all necessary permits and authorizations prior to the construction, installation and operation of its telecommunications system in that certain right of way specified in Attachment A referenced in paragraph A above.
Section 2. Installation of Equipment. All facilities shall be installed and maintained at such locations shown in Attachment A, and subsequent amendments to Attachment A, as may be approved by the City so as to least interfere with existing and planned utilities and with the free passage of traffic, in accordance with the laws of the State of Washington and the ordinances and standards of the City regulating such construction. For purposes of this Section 2, "planned" shall mean utilities which the City intends to construct in the future, which intent is evidenced by the inclusion of said utility project in the Capital Investment Program Plan, a comprehensive utility plan or other written construction or planning schedule. No permit condition shall conflict with or waive any requirement of the Bellevue City Code for the construction of said facilities.
Section 3. Relocation. Whenever the City undertakes or approves the construction of any sewer or storm drainage line (8" inside diameter or larger) or other street improvement project (including, without limitation, installation of traffic signals, street lights, sidewalks and pedestrian amenities wherein the facility so constructed or approved is or shall become, by gift, transfer, dedication or otherwise, a public facility owned, maintained or operated by the City) and such project necessitates the relocation of COMPANY's then existing facilities, the City shall:
3.1.1 Provide COMPANY at least one hundred eighty 180 days prior to the commencement of such improvement project, written notice requiring such relocation; and
3.1.2 Provide COMPANY with copies of pertinent portions of the plans and specifications for such street improvement project so that COMPANY may relocate its facilities to accommodate such street improvement project.
3.1.3 No later than one hundred seventy (170)days after receipt of such notice and such plans and specifications COMPANY shall complete the relocation of such facilities at no charge or expense to the City so as to accommodate such improvement project at least ten (10) days prior to commencement of such improvement.
3.2 If the City requires the subsequent relocation of any facility within five years of the date of relocation of such facility pursuant to subsection 3.1 above, the City shall bear the entire cost of such relocation.
3.3 As to any relocation of facilities wherein the cost and expense thereof is to be borne by COMPANY in whole or in part, in accordance with this Section 3, the COMPANY may, within 45 days, after receipt of written notice requesting such relocation, submit to the City written alternatives to such relocation. Upon receipt, the City shall evaluate such alternatives and shall advise COMPANY in writing if one or more of the proposed alternatives is suitable to accommodate the work which would otherwise necessitate relocation of COMPANY's facilities. The City shall give each alternative proposed by COMPANY, full and fair consideration. In no case shall the City arbitrarily reject any reasonable alternative. In the event that the City is satisfied, after due consideration, that there is no other reasonable alternative, COMPANY shall relocate its facilities as otherwise provided in this Section 3. The City's determination shall be conclusive and not subject to any review.
3.4 The provisions of this Section 3 shall in no manner preclude or restrict COMPANY from making any arrangements it may deem appropriate when responding to a request for relocation of its facilities by any person or entity other than the City where the facilities to be constructed by said person or entity are not or will not become City owned, operated or maintained facilities.
3.5 Should COMPANY elect to relocate all of its facilities to non-City owned facilities, the subject Right of Way Use Agreement shall be terminated and be of no further force and effect, effective as of the date COMPANY provides written notice that it has fully relocated said facilities.
Section 4. Repairs. If the City requires the relocation (temporary or permanent) of COMPANY's facilities for the purpose of repairing or maintaining any City owned, operated or maintained facility, COMPANY shall make such relocation at no cost to the City.
COMPANY shall have the right to propose alternatives to such relocation to the same extent and subject to the same limitations as set forth in this section 3. The provisions of this Section 4 shall not preclude or restrict COMPANY from making any arrangements it may deem appropriate when responding to a request for relocation of its facilities by any person or entity other than the City where the facilities to be repaired or maintained by said person or entity are not or will not become City owned, operated or maintained facilities. Should COMPANY elect to relocate its facilities to non-City owned facilities, the subject Right of Way Use Agreement shall be terminated and be of no further force and effect effective the date COMPANY relocates said facilities.
Section 5. Record of Installations.
5.1 As a condition of this Right of Way Use Agreement, COMPANY shall provide to the City upon request and at no cost, a copy of all as-built plans, maps and records, including revealing the final location and condition of its facilities within the Rights-of-ways. Such records shall be provided in a format acceptable to the City. With respect to excavations by COMPANY near any other facilities in the Rights-of Way, COMPANY and the City shall each comply with its respective obligations pursuant to Chapter 19.122 RCW and any other applicable state law.
5.2 Upon written request of the City, COMPANY shall provide the City with the most recent update available of any plan of potential improvements to its facilities that are subject to this Right of Way Use Agreement; provided, however, any such plan submitted shall be for informational purposes only and shall not obligate COMPANY to undertake any specific improvements, nor shall such plan be construed as a proposal to undertake any specific improvements. The City agrees not to disclose such information unless required to do so pursuant to chapter 42.17 RCW. In any event, the City agrees to notify COMPANY of the anticipated disclosure of such information at least five (5) days prior to such disclosure.
Section 6. Shared Use of Excavations. If at any time, or from time to time, either COMPANY or the City shall cause excavations to be made near facilities, the party causing such excavation to be made shall afford the other, upon receipt of a written request to do so, an opportunity to use such excavation, provided that: (i) such joint use shall not unreasonably delay the work of the party causing the excavation to be made; and (ii) such joint use shall be arranged and accomplished on terms and conditions satisfactory to both parties.
Section 7. Restoration After Construction. COMPANY shall, after construction, maintenance or repair of facilities, leave the area in as good or better condition in all respects as it was in before the commencement of such construction, maintenance or repairs. All concrete encased recorded monuments which have been disturbed or displaced by such work shall be restored pursuant to City standards and specifications. COMPANY agrees to promptly complete restoration work and to promptly repair any damage caused by such work at its sole cost and expense.
Section 8. Hold Harmless and Indemnity.
8.1 COMPANY shall indemnify, save harmless and defend the City, its elected and appointed officials, employees, and agents (including reimbursing the City for all costs and attorneys' fees) from any and all damages, claims, or demands, of any kind, on account of injury to or death of any and all persons, caused by COMPANY or its use of the Rights-of-way, including, but not limited to, COMPANY, its agents, employees, subcontractors and their successors and assigns as well as the City or the City's employees, elected and appointed officials and agents, contractors and all third parties. COMPANY shall further indemnify, save harmless and defend the City, as provided above, from all property damage of any kind, whether tangible or intangible, including loss of use resulting from such damage, that occurs in connection with any work performed by COMPANY or caused, in whole or in part, by the presence of COMPANY or its officials, employees, agents, contractors, subcontractors, or their property upon or in proximity to City rights-of-way or City utilities. Such indemnification will not extend to damages, claims, or demands that are caused by the negligence or intentional misconduct of the City, its employees, agents or contractors.
8.2 This indemnification, hold harmless, and defense agreement includes the promise that COMPANY shall indemnify, save harmless and defend the City, its elected and appointed officials, employees and agents (including reimbursing the City for all costs and attorneys' fees) from any and all damages, claims, or demands of any kind on account of COMPANY's violation of city, county, state or federal laws relating to environmental health except to the extent caused by the negligence of the City, its employees, agents or contractors.
8.3 COMPANY agrees that its obligations under this section extend to any claim, demand, and/or cause of action brought by, or on behalf of, any of its employees or agents. For this purpose, COMPANY, by mutual negotiation, hereby waives, as respects the City only, any immunity that would otherwise be available against such claims under the Industrial Insurance provisions of Title 51 RCW. In the event the City incurs any judgment, award, and/or cost arising therefrom including attorneys' fees to enforce the provisions of this article, all such fees, expenses, and costs shall be recoverable from COMPANY.
Section 9. Insurance. COMPANY shall maintain in full force and effect throughout the term of this Agreement the following:
9.1 One Million Dollars ($1,000,000) comprehensive general liability insurance for bodily injury or death to any one person; and
9.2 Two Million Dollars ($2,000,000) comprehensive general liability insurance for bodily injury or death resulting from any one accident;
9.3 One Million Dollars ($1,000,000) comprehensive general liability insurance for property damage resulting form any one accident; and
9.4 The City shall be named as an additional insured on any policy for the purposes of any actions performed under this Agreement.
Section 10. Civil Penalties and Additional Relief.
10.1 The COMPANY, and the officers, directors, and employees of the COMPANY or any agent, subcontractor or other person acting on behalf of the COMPANY failing to comply with any of the provisions of this Agreement shall be subject to a civil penalty in the manner and to the extent provided for in Chapter 1.18 BCC. A monetary penalty in an amount not more than $1,000 per day for each day of violation may be assessed and abatement required as provided therein.
10.2 In addition to any penalty which may be imposed by the city, any person violating or failing to comply with any of the provisions of this Agreement shall be liable for any and all damage to city property or rights-of-way arising from such violation, including the cost of restoring the affected area to its condition prior to the violation.
10.3 Notwithstanding any other provision herein, the city may seek legal or equitable relief to enjoin any acts or practices and abate any condition which constitutes or will constitute a violation of the applicable provisions of this Agreement when civil or criminal penalties are inadequate to effect compliance. In addition to the penalties set forth in this section, violation of any provision of this Agreement may also result in the revocation of any rights-of-way use agreement, rights-of-way use permit, facilities lease, or other authorization.
10.4 Nothing in this Section shall be construed as limiting any remedies that the city may have, at law or in equity, for enforcement of this Agreement.
Section 11. Non-Exclusive. The rights and privileges herein granted shall not be deemed exclusive and the right is hereby reserved to the City to grant to any other person, company, corporation or association, including the City, the right to exercise the rights and privileges herein granted; provided that such grant to any other person, company, corporation or association, including the City, does not disturb or affect the rights and privileges herein granted to COMPANY.
Section 12. Police Powers. Nothing contained herein shall be deemed to affect the City's authority to exercise its police powers. COMPANY shall not by this agreement obtain any vested rights to use any portion of the City right of way except for the locations approved by the City and then only subject to the terms and conditions of this Agreement. This Agreement and the permits and authorizations issued thereunder shall be governed by applicable City ordinances in effect at the time of application for such permits and authorizations.
Section 13. Construction Permit Required. Prior to the performance of any work in any public rights-of-way, and in addition to any other permits required by law, COMPANY shall apply for and obtain from the Director of the Transportation Department a Right of Way Use Permit, which application and Permit shall comply with Chapter 14.30 of the Bellevue City Code and any other applicable City ordinances, regulations or standards. Pursuant to Section 14.30.150 BCC, if the City reasonably determines that there is a potential for injury, damage or expense to the City as a result COMPANY's use of the rights-of-way the City may require COMPANY to provide an assurance devise, in a form acceptable to the City, for activities described in the subject permit.
H. Modifications of Terms and Conditions. The City and COMPANY hereby reserve the right to alter, amend or modify the terms and conditions of this Agreement and any permit issued thereunder upon written agreement by both parties to such alteration, amendment or modification.
I. Interference. The City shall not use, nor shall the City permit others to use any portion of the right of way in any way, which unreasonably interferes with the operation of COMPANY's facilities in the locations authorized under this Agreement. COMPANY shall provide notice to the City of such interference and the City and COMPANY shall then cooperatively work to eliminate or substantially mitigate such interference.
J. Abandonment or Non-Use of Facilities. In the event COMPANY discontinues commercial use of any facility located in City right-of-way for a period of one hundred eighty (180) consecutive days or longer, the City may, upon ninety (90) days written notice from the City, require removal of all such facilities from the City right-of-way at COMPANY's sole expense. If COMPANY fails to remove such facilities upon proper notice from the City, the City may remove such facilities and COMPANY shall be responsible for reimbursing the City for the City's cost of removal. Notwithstanding any other provision of this Agreement, the City may permit COMPANY to abandon such facilities in place however, no facilities of any type may be abandoned in place without the express written consent of the City. Upon permanent abandonment the facilities shall become the property of the City, and COMPANY shall submit to the City an instrument in writing, to be approved by the City Attorney, transferring ownership of such facilities to the City. The provisions of this Section shall survive the expiration, revocation or termination of this Agreement.
K. Severability. If any term, provision, condition, or portion of this Agreement shall be held to be invalid or unconstitutional for any reason, the portion declared invalid shall be severable and the remaining portions of this agreement shall be enforceable unless to do so would be inequitable or would result in a material change in the rights and obligations of the parties hereunder.
L. Transferability. The rights and privileges granted to COMPANY as provided in this Agreement may only be assigned or transferred to another entity with the prior written approval of the City, which shall not be unreasonably withheld, conditioned or delayed. However, COMPANY may assign or transfer the rights and privileges granted herein to any affiliate, parent or subsidiary of COMPANY, or to an entity with or into which COMPANY may merge or consolidate, or to an entity which controls, is controlled by, or is under common control with such entity or to any purchaser of all or substantially all of the assets of COMPANY without the requirement for City approval, so long as the successor provides written notice to the City this it agrees to be fully liable to the City for compliance with all terms and conditions of this Agreement.
M. Reimbursement of City. COMPANY shall reimburse the City, upon submittal by the City of an itemized billing by project costs, for COMPANY's proportionate share of all actual, identifiable and reasonable expenses incurred by the City in planning, designing, constructing, installing, repairing or altering any City facility as the result of the actual or proposed presence in the rights-of-way of COMPANY's facilities. Such costs and expenses shall include but not be limited to the proportionate cost of City personnel utilized to oversee or engage in any work in the rights-of-way as the result of the presence of COMPANY's facility in the rights-of-way. Such costs and expenses shall also include the proportionate share of any time spent reviewing construction plans in order to either accomplish the relocation of facilities or the routing or rerouting of any utilities so as not to interfere with facilities. The time of City employees shall be charged at their respective rate of salary, including overtime if utilized, plus benefits (approximately 22% of salary) and overhead. Any other costs will be billed proportionately on an actual cost bases. All billing will be itemized so as to specifically identify the costs and expenses for each project for which the City claims reimbursement. The billing may be on an annual basis, but the City shall provide COMPANY with the City's itemization of costs at the conclusion of each project for information purposes.
N. Effective Date. This Agreement shall take effect upon execution by both parties to this Agreement.
O. Miscellaneous.
(a) This Agreement constitutes the entire agreement and understanding between the parties, and supersedes all offers, negotiations and other agreements concerning the subject matter contained herein. Any amendments to this Agreement must be in writing and executed by both parties.
(b) If any provision of this Agreement is invalid or unenforceable with respect to any party, the remainder of this Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable, shall not be affected and each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
(c) This Agreement shall be binding on and inure to the benefit of the successors and permitted assignees of the respective parties.
(d) Any notice or demand required to be given herein shall be made by certified or registered mail, return receipt requested, or reliable overnight courier to the address of the respective parties set forth below:
The City: COMPANY:
City of Bellevue Transportation COMPANY
P.O. Box 90012 __________________________
Bellevue, WA 98009-9012 __________________________
Attn: Franchise Manager Attn.: _____________________
The City or COMPANY may from time to time designate any other address for this purpose by written notice to the other party. All notices hereunder shall be deemed received upon actual receipt.
(e) This Agreement shall be governed by the laws of the State of Washington.
(f) In any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this Agreement, such party shall not unreasonably delay or withhold its approval or consent.
(g) All Riders and Exhibits annexed hereto form material parts of this Agreement.
(h) This Agreement may be executed in duplicate counterparts, each of which shall be deemed an original.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above written.
COMPANY CITY OF BELLEVUE,
a _________ corporation a Washington municipal corporation
By____________________ By____________________
Title____________________ Title____________________
Date____________________ Date____________________
Approved as to form:
_____________________