HomeMy WebLinkAbout2018-023 Fiber Optic Cable Space Use Agreement with Noel Communications, Inc.ORDINANCE NO. 2018-023
AN ORDINANCE authorizing the City to enter into an agreement specified in the
Ordinance with Noel Communications, Inc. ("Noel") for the purpose of
leasing to Noel access to and space in the conduit within the conduit
system owned by the City of Yakima that is located under the
sidewalks along Yakima Avenue from Ninth Street to Seventh Avenue
in the City of Yakima, Washington, for the purpose of Noel's installing,
operating and maintaining Noel's fiber optic cable, in exchange for
consideration as described in the Ordinance; and setting forth
provisions, terms and conditions accompanying the access to and
space in the conduit; and setting an effective date.
BE IT ORDAINED BY THE CITY OF YAKIMA that this Ordinance hereby authorizes the City
to enter into an agreement specified in the Ordinance with Noel Communications, Inc.
("Noel") for the purpose of leasing to Noel access to and space in the conduit within the
conduit system owned by the City of Yakima that is located under the sidewalks along
Yakima Avenue from Ninth Street to Seventh Avenue in the City of Yakima, Washington, for
the purpose of Noel's installing, operating and maintaining Noel's fiber optic cable, in
exchange for consideration as described in the Ordinance, upon the following express terms
and conditions:
SECTION 1 - DEFINITIONS
1.1 (A) Captions. Throughout this Ordinance, captions to sections are intended
solely to facilitate reading and to reference the sections and provisions of this Ordinance.
The captions shall not affect the meaning and interpretation of this Ordinance.
1.1 (B) Definitions. For the purposes of this Ordinance the following terms, phrases,
words and their derivations shall have the meaning given herein. When not inconsistent with
the context, words used in the present tense include the future, words in the plural number
include the singular number, words in the singular number include the plural number and the
use of any gender shall be applicable to all genders whenever the sense requires. The
words "shall" and "will" are mandatory and the word "may" is permissive. Where a term in
this Ordinance is not defined in this Section and there exists a definition for the term in the
Telecommunications Act of 1996, Pub. Law No. 104-104, 110 Stat. 56 (1996) (the
"Telecommunications Act"), the Telecommunications Act definition shall apply. Other terms
in this Ordinance that are not defined in this Section shall be given their common or ordinary
meaning.
1.2 "City" shall mean the City of Yakima, Washington.
1.3 "Conduit system" or "Conduit" shall mean the conduit within the conduit
system owned by the City of Yakima that is located under the sidewalks along Yakima
Avenue from Ninth Street to Seventh Avenue in the City of Yakima, Washington.
1.4 "Fiber optic cable" or "cable" shall mean the fiber optic cable owned by
Noel that it will place and maintain in the City's Conduit.
1.5 "Noel" shall refer to, as used herein, Noel Communications, Inc.
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1.6 "Ordinance" shall mean this Ordinance unless otherwise indicated. The
Ordinance granted herein shall be a non-exclusive Ordinance.
1.7 "Permittee" means any person who has been granted a permit by the
assigned permitting authority.
1.8 "Permitting Authority" means the head of the City division or department
authorized to process and grant permits required to perform work in the City's rights-of-way,
or the head of any agency authorized to perform this function on the City's behalf. Unless
otherwise indicated, all references to the Permitting Authority shall include the designee of
the department, division or agency head.
1.9 "Person" means any individual, sole proprietorship, corporation, partnership,
association, joint venture or other form of organization of any kind and the lawful trustee,
successor, assignee, transferee or personal representative thereof.
1.10 "Right -of -Way" or "Rights -of -Way" shall mean the surface of and the space
above and below any public street, road, highway, freeway, easement, lane, path, alley,
court, sidewalk, parkway or driveway now or hereafter existing as such within all
incorporated areas of the City.
1.11 "Street" or "Streets" shall mean the surface of and the space above and
below the right-of-way of any public street, road, highway, freeway, easement, lane, path,
alley, court, sidewalk, parkway or driveway now or hereafter existing as such within all
incorporated areas of the City.
SECTION 2 - ORDINANCE
1. Location. The City hereby permits Noel Communications, Inc., subject to the
terms of the Ordinance, to install and maintain Noel's fiber optic cable within the City's
existing Conduit.
2. Installation Requirements.
A. Before commencing any work under this Ordinance, Noel will first file with the
City an application for a permit for construction within City rights-of-way. Noel must provide
drawings showing the position and location of all fiber, and any equipment, including depth
or height, that it proposes to place within the Conduit.
B. Noel must obtain construction permits from the City prior to performing any
installation work within the City rights-of-way. Noel must install all fiber optic cable in
accordance with federal, state, and local requirements. Noel must also comply with
applicable City ordinances and the current version of the WSDOT Standard Specifications
for Road, Bridge and Municipal Construction. Before commencing any construction in the
City's rights-of-way, Noel must comply with all applicable requirements of Chapter 19.122
RCW, the One Number Locator Service.
C. Noel may not locate or maintain its fiber optic cable so as to interfere with the use
of the City rights-of-way by the general public, or other persons authorized to use or be
present in or upon the City rights-of-way. All Noel equipment causing such interference
must be moved by Noel at its expense to a location approved by the City Engineer.
3. Relocation Requirements.
A. Noel will relocate the fiber optic cable installed under the Ordinance within the
Conduit at its own expense, to accommodate future changes in street grade, street
standards, and improvements within the rights-of-way, utility construction or maintenance by
the City.
B. The City shall be responsible for all relocation costs associated with the relocation
of the Conduit and manholes/pull boxes.
C. Noel may not permanently occupy or use the City rights-of-way. This Ordinance
conveys to Noel no title or interest in the City rights-of-way. Upon expiration or termination
of this Ordinance by the City Council, Noel must, at the sole discretion of the City, either:
(1) remove its fiber optic cable from the City rights-of-way and the Conduit at its own
expense; or (2) disconnect (un -light) its fiber and deed the same to the City at no expense to
the City. The City's exercise of discretion will be made in writing, by notice to Noel, provided
pursuant to Section 10 herein.
4. Limitations of Use.
A. This Ordinance does not grant Noel any right to exclude others from the City
rights-of-way or from the Conduit. The City has the exclusive right to grant ordinances,
permits, licenses, leases, contracts, agreements or franchises to other persons or entities to
use the City rights-of-way or the Conduit for similar or different purposes. Noel may install 2
fiber optic cable(s) in the Conduit, cables must be no more than one inch (1") in diameter
and in total may not occupy more than 20% of any single conduit.
5. Maintenance and Repair.
A. Noel may maintain or repair its fiber optic cable, but must comply with all City
rules and regulations, and obtain the required City permits prior to any work within City
rights-of-way, which approval of such permits by the City shall not be unreasonably withheld
or denied. For emergency after hour's repairs, permits will not be required; however, Noel
shall inform the City as soon as possible of any emergency work performed, and shall
provide all relevant information such as, but not limited to, the nature of the emergency, the
locations where repairs were performed, and whether continuing work is required.
B. Noel will at all times employ ordinary care and install and maintain and use
commonly accepted methods and devices for preventing failures and accidents that are
likely to cause damage, injury, or nuisance to the public or workers. All structures and all
lines, equipment and connections in, over, under, and upon City rights-of-way will at all times
be kept and maintained in a safe, suitable condition, and in good order and repair. The City
reserves the right to see that Noel equipment is constructed and maintained in a safe
condition. If a violation of the National Electrical Safety Code or other regulation is
discovered by the City, the City will discuss the matter with Noel and establish a reasonable
time for Noel to make necessary repairs. If the repairs are not made within the established
time, the City may make the repairs itself or have them made and collect all actual costs for
such repair from Noel.
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C. Noel must cooperate with the City and all permittees, grantees, and users of the
City rights-of-way to coordinate construction in the City rights-of-way. Noel agrees to meet
with City officials to coordinate construction and minimize disruption to the public.
D. Before either party performs any work on or within the Conduit, it will give notice
to the other party under Section 10. Either party doing work on or within the Conduit will do
so with due care in accordance with established practices and only use trained personnel.
Hours of operation for normal construction and maintenance will comply with the City
ordinances and regulations, or as specified on the City permit. The City may have a
representative observing Noel's work.
6. Consideration. As consideration for access to and space in the Conduit,
Noel agrees:
A. The consideration for the grant of the lease in the Conduit consists of an
exchange of services. The exchange of services shall remain in effect during the term of the
Ordinance. In consideration for the City providing Noel access to and space in the Conduit,
Noel shall provide 1Gb/s (Gigabits per second) of DIA (Direct Internet Access) to the City.
This will include BGP routing. The DIA delivery location will be at the interconnect point
described as follows: the communications room in the basement of City Hall at 129 North
Second Street, Yakima, Washington. To access the delivery location, Noel will install and
maintain its fiber at its expense from Yakima Avenue to the basement of City Hall utilizing
City conduit. The current 5 -year term value of DIA service is valued at $32,500 a year, or a
total of $162,500.
B. Perform periodic/as-needed maintenance, and make repairs to the fiber optic
cable installed in the Conduit.
7. Term.
A. The term of this Ordinance shall commence as described in the effective date
Section 22 of the Ordinance, and shall terminate five (5) years from the commencement date.
At the end of this term, the parties may extend this Ordinance under terms and conditions
then agreed. The five-year term authorized by the Ordinance is subject up to three (3), five
(5) year extensions thereafter if the City and Noel can reach a mutually satisfactory
agreement on the value of the services for the additional five-year (5 year) periods. Any
extension(s) will be presented to the City Council for its consideration as an amendment to
this Ordinance. If this Ordinance is not extended, Noel must, at the sole discretion of the City,
either: (1) remove its fiber optic cable from the Conduit within thirty (30) days of the end of the
term at its own expense; or (2) disconnect (un -light) its fiber and deed the same to the City at
no expense to the City.
8. Insurance.
A. Coverages. Noel shall maintain, throughout the term of this Ordinance, liability
insurance insuring Noel, its officers, employees and agents in the minimum amounts as
follows:
(1) Commercial Liability Insurance. On or before the date this
Ordinance is fully executed by the parties, Noel shall provide the City with a certificate of
insurance as proof of commercial liability insurance written on an occurrence basis, with a
minimum liability limit of One Million Dollars ($1,000,000) combined single limit bodily injury
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and property damage. This coverage will have a per job aggregate endorsement and
Washington stop gap coverage. Said certificate of insurance shall clearly state who the
provider is, the amount of coverage, the policy number, and when the policy and provisions
provided are in effect. Said policy shall be in effect for the duration of this Ordinance. The
policy shall name the City, its elected and appointed officials, officers, agents and employees
as additional insureds, and shall contain a clause that the insurer will not cancel or change
the insurance without first giving the City thirty (30) calendar days prior written notice. The
insurance shall be with an insurance company or companies rated A -VII or higher in Best's
Guide and admitted in the State of Washington. If Noel uses any contractors and/or
subcontractors to perform any of the work referenced in this Ordinance, such contractors
and/or subcontractors shall maintain the same minimum limits of liability and comply with all
other provisions discussed above in this subsection entitled "Commercial Liability Insurance."
(2) Commercial Automobile Liability Insurance. On or before the date
this Ordinance is fully executed by the parties, Noel shall provide the City with a certificate of
insurance as proof of commercial automobile liability insurance with a minimum liability limit
of One Million Dollars ($1,000,000) combined single limit bodily injury and property damage
and shall include coverage for "Any Auto". Said certificate of insurance shall clearly state
who the provider is, the amount of coverage, the policy number, and when the policy and
provisions provided are in effect. Said policy shall be in effect for the duration of this
Ordinance. The policy shall name the City, its elected and appointed officials, officers,
agents and employees as additional insureds, and shall contain a clause that the insurer will
not cancel or change the insurance without first giving the City thirty (30) calendar days prior
written notice. The insurance shall be with an insurance company or companies rated A -VII
or higher in Best's Guide and admitted in the State of Washington. If Noel uses any
contractors and/or subcontractors to perform any of the work referenced in this Ordinance,
such contractors and/or subcontractors shall maintain the same minimum limits of liability
and comply with all other provisions discussed above in this subsection entitled "Commercial
Automobile Liability Insurance."
(3) Umbrella Liability Insurance. Noel and its contractors and/or
subcontractors shall maintain umbrella liability insurance coverage, in an occurrence form,
over underlying commercial liability and automobile liability. On or before the date this
Ordinance is fully executed by the parties, Noel shall provide the City with a certificate of
insurance as proof of umbrella coverage with a minimum liability limit of Four Million Dollars
($4,000,000). The insurance shall be with an insurance company or companies rated A -VII
or higher in Best's Guide and admitted in the State of Washington.
Providing coverage in the amounts as set forth above shall not be construed to
relieve Noel from liability in excess of those limits.
B. Proof of Insurance. Noel shall file with the City copies of all certificates of
insurance showing up-to-date coverages, additional insured coverages and evidence of
payment of premiums as set forth above, and pursuant to the notice specified in Section 10
of this Ordinance. Noel shall file and maintain a certificate of insurance along with written
evidence of payment of the required premiums pursuant to the notice specified in Section 10
of this Ordinance.
C. Alteration of Insurance. Insurance coverages, as required by this
Ordinance, shall not be changed, cancelled or otherwise altered without approval of the City.
Noel shall provide the City no less than thirty (30) days prior written notice of any such
proposed change, cancellation or other alteration. The City may, at its option, review all
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insurance coverages. If it is determined by the City that circumstances require and that it is
reasonable and necessary to increase insurance coverage and liability limits above such
coverage and limits as are set forth in this Ordinance, in order to adequately cover the risks
of the City, Noel and the City's and Noel's officers, agents and employees, the City may
require additional insurance to be acquired by Noel. Should the City exercise its right to
require additional insurance, the City will provide Noel with written notice.
D. Failure to Procure. Noel acknowledges and agrees, by acceptance of
this Ordinance, that failure to procure and maintain the insurance coverages shall constitute
a material term that is a breach of this Ordinance, as provided for in Section 19 of this
Ordinance. In the event of such failure to procure and maintain the referenced insurance
coverages, the City may immediately suspend Noel's operations under this Ordinance,
terminate or otherwise revoke this Ordinance and/or, at its discretion, procure or renew such
insurance in order to protect the City's interests and be reimbursed by Noel for all premiums
in connection therewith.
9. Indemnity, No Estoppel, No Duty.
A. Noel shall, at its sole expense, protect, defend, indemnify and hold harmless
the City, its elected officials, and in their capacity as such, the officials, agents, officers and
employees of the City from any and all claims, lawsuits, demands, actions, accidents,
damages, losses, liens, liabilities, penalties, fines, judgments, awards, costs and expenses
arising directly or indirectly from or out of, relating to or in any way connected with the
performance or non-performance, by reason of any intentional or negligent act, occurrence
or omission of Noel, whether singularly or jointly with others, its representatives, permittees,
employees, contractors or subcontractors, whether or not such acts or omissions were
authorized or contemplated by this Ordinance or applicable law, including but not limited to
the construction, installation, maintenance, alteration or modification of the fiber optic cable
in the Conduit; arising from actual or alleged injury to persons or property, including the Toss
of use of property due to an occurrence, whether or not such property is physically damaged
or destroyed; arising out of or alleged to arise out of any claim for damages for Noel's
invasion of privacy, defamation of any person, firm or corporation, or the violation or
infringement of any copyright, trademark, trade name, service mark or patent, or of any
other right of any person, firm or corporation; arising out of or alleged to arise out of Noel's
failure to comply with any and all provisions of any statute, regulation or resolution of the
United States, State of Washington or any local agency applicable to Noel and its business.
Nothing herein shall be deemed to prevent the parties indemnified and held harmless herein
from participating in the defense of any litigation by their own counsel at such parties'
expense. Such participation shall not under any circumstances relieve Noel from its duty of
defense against liability or of paying any judgment entered against such party.
Notwithstanding any provision of this Section to the contrary, Noel shall not be obligated to
indemnify, defend or hold the City harmless to the extent any claim, demand, lien, damage
or liability arises out of or in connection with negligent acts or omissions of the City.
B. Noel hereby waives immunity under Title 51 RCW and affirms that the City
and Noel have specifically negotiated these provisions, as required by RCW 4.24.115, to the
extent that it may apply.
C. Whenever any judgment is recovered against the City or any other indemnitee
for any such liability, costs, or expenses, such judgment shall be conclusive against Noel,
not only as to the amount of such damage, but as to its liability, provided Noel has
reasonable notice or actually knew, or should have known, of the pendency of such suit.
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Under such circumstances, Noel may also request the opportunity to defend or participate in
the suit with legal counsel of its choice, at its expense, said request not to be unreasonably
denied.
D. No action, error or omission, or failure to act by the City, its agents, officers,
officials or employees, in connection with administering its rights, duties or regulatory
functions related to this Ordinance shall be asserted by Noel, directly, indirectly or by way of
seeking indemnification or as an assertion that the City has waived or is estopped to assert
any municipal right hereunder, against the City, its boards, departments, divisions, officers,
officials or employees.
10. Service of Notice. Except as otherwise specifically provided herein, any
notice required or permitted to be given under this Ordinance shall be deemed sufficient if
provided in writing and when (1) delivered personally to the following addressee(s), or
deposited with the United States Postal Service, postage paid, certified or registered mail;
(2) sent by overnight or commercial air courier; or (3) sent by facsimile transmission
addressed as follows, or to such other address as the receiving party hereafter shall specify
in writing:
Notices to the City shall be addressed to each of the following:
City of Yakima Information Systems
Attention: John Carney, Information Systems Manager
129 North 2nd Street
Yakima, WA 98901
Facsimile Number: (509) 249-6835
City of Yakima Community Relations
Attention: Randy Beehler, Community Relations Manager
124 South 2nd Street
Yakima, WA 98901
Facsimile Number: (509) 576-6380
Notices to Noel shall be addressed to each of the following:
Noel Communications, Inc.
Attention: Jym Schuler, Operations Manager
901 E. Pitcher Street
Yakima, WA 98907
Facsimile Number: (509) 457-5008
Noel Communications, Inc.
Attention: Toni Thomas
901 E. Pitcher Street
Yakima, WA 98907
Facsimile Number: (509) 457-5008
When notice to Noel is sent by U.S. Mail, please also send a notification email that a
letter has been sent to noc(c�noelcomm.com.
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11. Compliance with Laws. Noel shall comply with all federal and state laws
and regulations, including regulations of any administrative agency thereof, as well as the
general ordinances, resolutions, rules and regulations of the City, pursuant to the City's
lawful authority, heretofore or hereafter adopted or established during the entire term of this
Ordinance. In the event any valid and superior law, rule or regulation of any governing
authority or agency having jurisdiction contravenes the provisions of this Ordinance
subsequent to its adoption, then the provisions of this Ordinance shall be superseded only to
the limited extent that the provisions hereof are in conflict and contrary to any such law, rule
or regulation. Nothing in this Ordinance shall limit the City's right of eminent domain under
state law. Nothing in this Ordinance shall be deemed to waive the requirements of any
lawful code or resolution of the City regarding permits, fees to be paid or manner of
installation or construction.
12. Taxes. Noel will be responsible for and pay all taxes related to or arising from
the placement and operation of its fiber optic cable in the Conduit.
13. Governing Law and Venue. This Ordinance shall be governed by and
construed in accordance with the laws of the State of Washington, and venue for any
litigation arising out of or in connection with privileges extended herein is stipulated to be in
Yakima County.
14. Severability. If any section, subsection, sentence, clause, phrase or portion
of this Ordinance is for any reason declared by a court of competent jurisdiction to be void,
invalid or unenforceable, such portion shall be deemed a separate, distinct and independent
provision and such declaration shall not affect the validity of the remaining portions thereof.
In such event, the City and Noel shall negotiate in good faith to modify this Ordinance as
may be necessary to meet the requirements of the law and/or to effectuate the intention of
this Ordinance. In the event that such modifications are barred by any legal requirements
governing any party, the City and Noel shall use their best efforts to otherwise avoid
prejudice to the respective parties' interests and to implement changes to effectuate the
intent in entering into this Ordinance.
15. Force Majeure.
A. For the purposes of this Section, the term "Force Majeure" shall mean acts of
God, landslides, earthquakes, lightning, fires, hurricanes, volcanic activity, storms, floods,
washouts, droughts, civil disturbances, acts of terrorism or of the public enemy, partial or
entire failure of utilities, strikes, explosions, lockouts or other industrial disturbances,
insurrections, public riots or other similar events which are not reasonably within in the
control of the parties hereto.
B. If Noel or the City is wholly or partially unable to carry out its obligations under
this Ordinance as a result of a Force Majeure, Noel or the City shall provide to the other
prompt notice of such Force Majeure, describing the same in reasonable detail, and Noel's
or the City's obligations under this Ordinance, other than for payment of moneys due, shall
not be deemed in violation or default for the duration of the Force Majeure. Each party
agrees to use its best efforts to remedy as soon as possible, under the circumstances, its
inability, by reason of Force Majeure, to carry out its responsibilities and duties under this
Ordinance.
16. No Third -Party Beneficiaries. There shall be no third -party beneficiaries of
this Ordinance.
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17. Ordinance Acceptance. Noel shall execute and return to the City, within
sixty (60) days after the date of passage of the Ordinance by the Yakima City Council, two
(2) original Agreements, by which Noel acknowledges that it has carefully read the terms
and conditions of the Ordinance and accepts all of the terms and conditions of this
Ordinance and agrees to abide by the same. The executed Ordinance shall be returned to
the City as required in Section 10 of this Ordinance, and evidence of insurance shall be
returned to the City as required in Sections 8 and 10 of this Ordinance. In the event Noel
fails to submit an Ordinance as provided for herein, or fails to provide the required
accompanying documents, this Ordinance shall be null and void.
18. Previous Ordinance(s) in Effect. This Ordinance does not supersede or
amend other Ordinance(s) or Yakima Municipal Code provisions of the City, including but not
limited to City of Yakima Ordinance No. 2015-045, the "Telecommunications System
Franchise Ordinance and Franchise" with Noel Communications, Inc. (previously named
"Northwest Microwave, Inc.") and any prior or subsequent amendments to City of Yakima
Ordinance No. 2015-045.
19. Termination.
If this Ordinance is terminated by either party, at the sole discretion of the City, Noel
must either: (1) remove its fiber optic cable from the Conduit at Noel's expense; or (2)
disconnect (un -light) its fiber and deed the same to the City at no expense to the City.
A. Termination by the City:
This Ordinance may be terminated by the City for the following reasons:
(1) Construction or operation within City rights-of-way without specific City
approval and the necessary permit;
(2) Construction or operation at a location without specific authorization;
(3) Misrepresentation by Noel in any application or written or oral statement
relied on by the City in making a decision to grant, review or amend any
authorization under the City Code;
(4) Abandonment by Noel of Noel -owned equipment or fiber optic cable in the
Conduit within the City rights-of-way;
(5) Failure by Noel to relocate Noel -owned equipment or fiber optic cable in
the Conduit as required by this Ordinance;
(6) Failure by Noel to provide the services referred to in Section 6 of this
Ordinance;
(7) Violation by Noel of any material provision of the City Code applicable to
the work performed or services provided under this Ordinance; and
(8) Violation by Noel of any material term of this Ordinance.
B. If the City believes that grounds exist for termination of this Ordinance, Noel will
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be given written notice of the apparent violation or noncompliance. It will be a short and
concise statement of the nature and general facts of the violation or noncompliance. Noel
will have a reasonable time not exceeding thirty (30) days to provide evidence:
(1) That corrective action has been, or is being actively and expeditiously
pursued, to remedy the violation or noncompliance;
(2) That rebuts the alleged violation or noncompliance; or
(3) That it would be in the public interest to impose some penalty or sanction
less than termination.
C. If Noel fails to provide evidence satisfactory to the City, the apparent violation or
non-compliance will be considered by the City Council. The City Council will provide Noel
with notice and a reasonable opportunity to be heard on the matter.
D. If the City Council determines that Noel willfully violated or failed to comply with
any of the provision of this Ordinance or failed to comply with any notice given Noel by the
City, then at its discretion the City Council may terminate this Ordinance. The City Council
may use the following factors in analyzing the nature, circumstances, extent, and gravity of
the violation and in making its determination under this Section:
(1) Whether the misconduct was egregious;
(2) Whether substantial harm resulted;
(3) Whether the violation was intentional;
(4) Whether there is a history of prior violations of the same or other
requirements;
(5) Whether there is a history of overall compliance; and
(6) Whether the violation was voluntarily disclosed, admitted or cured.
20. No Joint Venture. It is not intended by this Ordinance to, and nothing
contained in this Ordinance shall, create any partnership, joint venture, or other arrangement
between Noel and the City. No term or provision of this Ordinance is intended to be, or shall
be, for the benefit of any person, firm, organization, or corporation not a party hereto, and no
such other person, firm, organization, or corporation shall have any right or cause of action
hereunder.
21. Authorized Signatures. The undersigned acknowledges that they are
authorized to execute this Ordinance and bind their respective city and/or corporation to the
obligations set forth herein.
22. Effective Date. This ordinance shall be in full force and effect 30 days after
its passage, approval, and publication as provided by law and by the City Charter; Provided,
however, that if Noel does not accept this Ordinance pursuant to Section 17 of this
Ordinance and comply with all conditions for such acceptance set forth herein within sixty
(60) days after the adoption of the Ordinance, this Ordinance shall be null and void.
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PASSED BY THE CITY COUNCIL, signed and approved this 17th day of July, 2018.
CITY OF YAKIMA
Kathy ffey, Ma
Attest:
NOEL COMMUNICATIONS, INC.
By:
Its: cihiips 194,
City Clerk
Ordinance No.: 2018-023 •
Publication Date: August 19, 2018
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State of Washington )
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County of is 16•►�(� )
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me, ID nd said person acknowledged that he/she signed this instrument, and on oath stated
that he/she was authorized to execute tilpa.instyupient on b h If of Noel Communications,
Inc., and acknowledged it as the 0_1 1t4('' S i of Noel
Communications, Inc., to be the free and voluntary act of s h party for the uses and
purposes mentioned in this instrument.
Dated this
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BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
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Item No. 6.N.
For Meeting of: July 17, 2018
ITEM TITLE: Ordinance approving lease with Noel Communications, Inc.
("Noel") to access and use space in the conduit system owned by
the City for the purpose of installing, operating and maintaining fiber
optic cable
SUBMITTED BY: John Carney, IT Services Manager
SUMMARY EXPLANATION:
The attached Ordinance (the "Ordinance") authorizes the City of Yakima ("City") to lease to Noel
Communications, Inc. ("Noel") access to, and space in, the conduit system owned by the City of
Yakima that is located under Yakima Avenue from Ninth Street to Seventh Avenue in the City of
Yakima, in exchange for consideration as described in the Ordinance. Pursuant to Ordinance No.
2008-32, the City has had an agreement with Noel to lease space in the conduit for ten years
expiring in 2018. This Ordinance extends the lease of space in the conduit. Some lease
changes include: a 20 fold increase to the City in Internet access speed from 50
megabits/second to 1000 megabits per second (1 Gbps); an increase in the number of fiber
cables that can be installed from one to two; the imposition of a fill limit on the conduit of 20%;
and the initial term of the agreement is from the effective date of the Ordinance in 2018 until 5
years later in 2023.
The City provides Noel access to, and space in, the leased conduit, and Noel installs, operates
and maintains Noel's fiber optic cable in the conduit. In exchange, Noel shall provide 1 Gb/s
(Gigabits per second) of DIA (Direct Internet Access) to the City. The DIA delivery location is
specified in the Ordinance. The initial 5 -year term value of DIA service is valued at $32,500 a
year, or a total of $162,500. The term authorized by the Ordinance is for a period of five years,
subject to an option to extend for three additional 5 -year periods if the City and Noel can reach a
mutually satisfactory agreement on the value. The Ordinance benefits the City because it will
provide high speed Internet access for the City. Staff respectfully requests that the Ordinance is
passed.
ITEM BUDGETED: NA
STRATEGIC PRIORITY: Economic Development
APPROVED FOR
SUBMITTAL:
Acting City Manager
STAFF RECOMMENDATION:
Pass Ordinance.
BOARD/COMMITTEE RECOMMENDATION:
ATTACHMENTS:
Description Upload Date
Ordinance 7/9/2018
Type
Odinance
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