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HomeMy WebLinkAboutCAG1999-0362 - Original - Level 3 Communications, LLC - Limited Street License to Extend Fiber Optic Telecommunications System - 11/17/1999 LIMITED STREET LICENSE BETWEEN THE CITY OF DENT AND LEVEL 3 COMMUNICATIONS, LLC THIS LIMITED STREET LICENSE ("License") is entered into between the CITY OF KENT, a Washington Municipal Corporation ("City"), and LEVEL 3 COMMUNICATIONS, LLC, a Delaware Limited Liability Company("Level 3"). RECITALS WHEREAS, Level 3 seeks to extend a fiber optic telecommunications system in the City of Kent; and WHEREAS, Level 3 has requested that the City grant a franchise to use City right-of-way to extend these two transmission lines to the connection facility; and WHEREAS, at this time the City is developing a policy that will establish procedures and regulations for the franchise and use of its right-of-ways by telephone companies for the extension and development of wired telephone systems; and WHEREAS,the City cannot issue a franchise for a wired telephone system until this policy has been fully developed and issued; and WHEREAS,Level 3 wishes to proceed with the construction of these two transmission lines before the City issues either its policy or a franchise to Level 3 for that purpose; and WHEREAS, the City is willing to enter into this License under the terms and conditions set forth in this License so that Level 3 can commence construction of its planned transmission lines; NOW, THEREFORE, THE CITY AND LEVEL 3 AGREE AS FOLLOWS: LICENSE 1. License Granted. The City grants Level 3 this Limited Street License for a period of five (5) years from the effective date of this License to install, construct, operate, maintain, remove, repair, reconstruct, replace, use and inspect a fiber optic telecommunications system and all related equipment("Telecommunications System")within the Union Pacific Railway mainline right-of-way in the City of Kent. In order to complete installation of this Telecommunications System, Level 3 must also install its system across, along, in, upon, and under the City's right-of- ways that cross the Union Pacific mainline system. The City streets that cross the Union Pacific Railway mainline right-of-way are described in Exhibit A, which is attached and incorporated by this reference. A map indicating the general route of the Telecommunications System is attached UVET n LICENSE--Page 1 of 7 September 28, 1999 as Exhibit B. This License is subject to all the terms and conditions established below. 2. City Owned Facilities. In order to obtain this License, Level 3 would typically provide and install a four inch(4") conduit with pullboxes for and on behalf of the City, at no cost to the City in the affected City right-of-ways. However, since Level 3's interference with City right- of-ways is minimal at this time, the City will waive this condition. 3. Revocation and Termination. The intent of this License is to authorize Level 3 to operate its Telecommunications System on the designated City right-of-ways, which right-of- ways constitute a valuable property interest owned by the City. This License does not grant an estate in the land described in Exhibit A; it is not an easement; it is not a franchise; it is not exclusive; and, it does not exclude the City from full possession of the property described in Exhibit A. As a license upon real property, it is revocable at the will of the City. However,prior to termination or revocation by the City, the City shall provide Level 3 with at least sixty(60)calendar days written notice of that termination or revocation. Upon the effective date of the City's termination or revocation,the City may require Level 3 to remove the Telecommunications System within thirty(30)calendar days; if Level 3 fails to remove the Telecommunications System within the allotted time, the City may remove all or part of the Telecommunications System and Level 3 waives any right it may have to any claim for damages of any kind incurred as a result of the City's removal of all or part of the Telecommunications System. 4. Permits Required. The City s grant of this License does not release Level 3 from any of its obligations to obtain applicable local, state, and federal permits necessary to install, construct, operate, maintain, remove, repair, reconstruct, replace, use and inspect the Telecommunications System. Level 3's failure to comply with this Section 4 shall constitute grounds for immediate revocation by the City. 5. Relocation. Level 3 shall, at its sole cost and expense,protect,support,temporarily disconnect, relocate or remove, all or a part of its Telecommunications System when required by the City for reasons of traffic conditions or public safety,widening or improvement of existing right-of- ways, change or establishment of street grade, or the construction of any public improvement or structure by any governmental agency acting in a governmental capacity,provided that Level 3 shall, upon receiving approval and obtaining the necessary permits from the City,have the right to bypass in the authorized portion of the same right-of-way, any section of cable required to be temporarily disconnected or removed. 5.1. For the purposes of this Section 5, any condition or requirement imposed by the City upon itself or any person or entity acting on the City's behalf, (including without limitation, any condition or requirement imposed pursuant to any contract or in conjunction with approvals for permits for zoning, land use, construction, or development) that reasonably necessitates the relocation of Level 3's facilities within the right-of-ways described in Exhibit A shall be a required relocation for purposes of the previous subsection. UVEL3 LICENSE--Page 2 of 7 September 28, 1999 5.2. If the City,under its authority,causes a required relocation of all or part of the Telecommunications System, the City, at least sixty (60) calendar days prior to the commencement of the project requiring relocation, shall provide written notice to Level 3 of the required relocation and shall provide Level 3 with copies of pertinent portions of the plans and specifications for the project. After receipt of the City's notice, Level 3 must complete the required relocation of its affected facilities at least ten(10)calendar days prior to the commencement of the project requiring relocation. Level 3 will complete this required relocation at no charge or expense to the City. Further, Level 3's relocation shall be accomplished in a manner that accommodates and does not interfere with the project requiring relocation. 5.3. Level 3 may, after receipt of the City's written notice requesting relocation, submit written alternatives to the City. The City will evaluate those alternatives to determine if any of the alternatives can accommodate the work that would otherwise necessitate the relocation of the Telecommunications System. If requested by the City, Level 3 will submit additional information to assist the City in making its determination. The City will give each alternative proposed by Level 3 full and fair consideration. In the event the City ultimately deterrnines that no reasonable or feasible alternative exists,Level 3 shall relocate its facilities as otherwise provided in this Section S. 5.4. In the event that a relocation of any of the Telecommunications System is required by any person or entity other than the City, so long as that person or entity is not acting on the City's behalf in conducting any of the activities described in this Section 5, Level 3 shall make those arrangements, including compensation for Level 3's relocation cost, that it deems appropriate with that person or entity. 5.5. The provisions of this Section 5 shall survive the expiration or termination of this License. 6. Undergrounding. Level 3 shall, wherever possible, underground its Telecommunications System. Level 3 shall not erect poles, run or suspend wires, cables, or other facilities, in any area where there are no aerial facilities, or in any area in which telephone, electric power wires and cables have been placed underground. Nevertheless, if at the time of permit application, the City does not require the undergrounding of all or part of the Telecommunications System,the City may, at any time while this License is in effect, require the conversion of Level 3's aerial facilities to underground installation at Level 3's sole cost and expense. 6.1. Whenever the City requires undergrounding of any aerial utilities in the street right-of-ways, Level 3 shall underground its aerial facilities in the manner specified by the City concurrently with the other affected utilities. When other utilities are present and involved in the undergrounding project,Level 3 shall pay its fair share of common costs born by all utilities in addition to the costs specifically attributable to the undergrounding of Level 3's own facilities. Common costs shall include necessary costs not specifically attributable LEVEL 3 LICENSE--Page 3 of 7 September 28, 1999 to the undergrounding of any particular facility, such as costs for common trenching and utility vaults. "Fair share" shall be determined for a project on the basis of the number and size of Level 3's facilities being undergrounded in comparison to the total number and size of all other utility facilities being undergrounded. 7. Emergency. In the event of any emergency in which any portion of the Telecommunications System breaks,becomes damaged, or in any other way becomes an immediate danger to the property, life, health, or safety of any individual, Level 3 shall immediately take the proper emergency measures to remedy the dangerous condition without first applying for and obtaining a permit as required by this License. However, this emergency work shall not relieve Level 3 from its obligation to obtain all permits necessary for this purpose, and Level 3 shall apply for those permits within the next two succeeding business days. 8. Indemnification. Level 3 shall comply with the following indemnification requirements: 8.1. Level 3 shall defend, indemnify and hold the City, its officers, officials, employees, agents, assigns and volunteers harmless from any and all claims, actions,injuries, damages, losses or suits, including all legal costs,witness fees and attorney fees, arising out of or in connection with the performance of any of Level 3's rights or obligations granted by this License, but only to the extent of the negligence or comparative fault of Level 3, its employees, agents, contractors, subcontractors, consultants, subconsultants or assigns. 8.2. The City s inspection or acceptance of any of Level 3's work when completed shall not be grounds to avoid any of these covenants of indemnification. 8.3. These indemnification obligations shall extend to any claim, action or suit that may be settled by compromise,provided that Level 3 shall not be liable to indemnify the City for any settlement agreed upon without the consent of Level 3; however, if Level 3 consents to the agreed upon settlement, then Level 3 shall indemnify and hold the City harmless as provided for in this Section 8 by reason of that settlement. Moreover, if Level 3 refuses to defend the City against claims by third parties, Level 3 shall indemnify the City regardless of whether the settlement was made with or without Level 3's consent. 8.4. In the event that Level 3 refuses to tender defense in any claim, action or suit by a third party pursuant to this Section 8 and if Level Ts refusal is subsequently determined by a court having jurisdiction(or such other tribunal that the parties shall agree to decide the matter)to have been a wrongful refusal, then Level 3 shall pay all the City s costs for defense of the action, including all legal costs,witness fees and attorneys' fees and also including the City's costs, including all legal costs,witness fees and attorneys'fees, for recovery under this indemnification clause (Section 8). UE L3 LICENSE--Page 4 of 7 September 28, 1999 8.5. The provisions of this Section 8 shall survive the expiration or termination of this Agreement. 9. Insurance. Level 3 shall procure and maintain for the duration of this License, insurance of the types and in the amounts described below against claims for injuries to persons or damage to property which may arise from or in connection with the performance of the work by Level 3, its agents, representatives, employees, contractors, subcontractors, consultants, subconsultants or assigns. 9.1. Before beginning work on the project described in this License,Level 3 shall provide a Certificate of Insurance evidencing: 9.1.1. Automobile Liability insurance with limits no less than$1,000,000 combined single limit per accident for bodily injury and property damage; and 9.1.2. Commercial General Liability insurance written on an occurrence basis with limits no less than$2,000,000 combined single limit per occurrence and general aggregate for personal injury,bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations/broad form property damage; explosion, collapse and underground (XCU); and employer's liability. 9.1.3. Excess Liability insurance with limits not less than $2,000,000 per occurrence and aggregate. 9.2.. Any payment of deductible or self-insured retention shall be the sole responsibility of Level 3. 9.3. The City, its officers, officials, employees, agents, assigns and volunteers shall be named as an additional insured on the insurance policy, as respects work performed by or on behalf of the Level 3 and a copy of the endorsement naming the City as additional insured shall be attached to the Certificate of Insurance. 9.4. Level 3's insurance shall contain a clause stating that coverage shall apply separately to each insured against whom claim is made or suit is brought, except with respects to the limits of the insurer's liability. 9.5. Level 3's insurance shall be primary insurance as respects the City, and the City shall be given thirty (30) calendar days prior written notice by certified mail of any cancellation, suspension or material change in coverage. L VEL3 LICENSE--Page 5 of 7 September 28, 1999 10. Modification. This License may not be modified, altered, or amended unless first approved in writing by the City. 11. Assignment. Level 3 may assign all or any portion of its rights, benefits, and privileges, in and under this License subject to and conditioned upon approval of the City, which approval will not be unreasonably withheld or delayed. Level 3 shall, no later than thirty(30) days of the date of any proposed assignment, file written notice of intent to assign the License with the City together with the assignee's written acceptance of all terms and conditions of the License and promise of compliance. Notwithstanding the foregoing, Level 3 shall have the right,without such notice or such written acceptance, to mortgage its rights, benefits, and privileges in and under this License to the Trustee for its bondholders and assign to any subsidiary,parent, affiliate or company having common control with Level 3 so long as notice of same is provided to the City and provided Level 3 remains fully liable to the City for compliance with all terms and conditions hereof until such time as the City shall consent to such assignment as provided above. 12. Dispute Resolution; Venue; Jurisdiction. In the event of any alleged breach or threatened breach of this License by either parry and if the City and Level 3 are unable to cure the breach or otherwise resolve their dispute, then final resolution of this dispute or claim shall occur solely under the jurisdiction or venue of the King County Superior Court located in Kent, Washington. Each party shall also be responsible for its own legal costs and attorney fees incurred in defending or bringing that claim or lawsuit. 13. Notice.All notices,requests, demands,or other communications provided for in this License shall be in writing and shall be deemed to have been given when sent by registered or certified mail,return receipt requested, addressed as the case may be, to the addresses listed below for each party,or to such other person or address as either party shall designate to the other from time to time in writing forwarded in like manner. CITY OF KENT LEVEL 3 COMMUNICATIONS, LLC Attn: City Clerk Attn: Director, Intercity Network 220 Fourth Avenue South Attn: General Counsel Kent, WA 98403 1025 Eldorado Boulevard Broomfield, CO 80021 LEVEL LICENSE--Page 6 of 7 September 28, 1999 14. This License contains the entire agreement between the parties and, in executing it, the City and Level 3 do not rely upon any statement, promise, or representation, whether oral or written, not expressed herein. IN WITNESS, this Limited Street License is executed and shall become effective as of the last date signed below. CITY OF KENT LEVEL 3 COMMUNICATIONS, LLC � p By: By: � JIM E, Mayor Its:�dA ;nr b rCrf�&-- Date: uJ. 17, Date: 0� bew V� ' l l l APPROVED AS TO FORM: By: i4.0 cti " ,_ THOMAS C. BRUBAKER Deputy City Attorney P.\Civil\KR S\OpmFlies\N2lLL eU-Lbre tedSke tlAc e.doc UVEL3 LICENSE--Page 7 of 7 September 28, 1999