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ORDINANCE NO. 2012-02
AN ORDINANCE granting a non - exclusive franchise to Northwest Open Access Network,
( "NoaNet "), a non - profit mutual corporation, to construct, operate and
maintain a Telecommunications System, with all necessary facilities,
within the City of Yakima, Washington (the "City "); setting forth
provisions, terms and conditions accompanying the grant of this Franchise;
providing for City regulation of construction, operation, maintenance and
use of the Telecommunications System; prescribing penalties for the
violations of its provisions; and setting an effective date.
BE IT ORDAINED BY THE CITY OF YAKIMA that a franchise is hereby granted to
Northwest Open Access Network, to operate and maintain a Telecommunications System in the
City of Yakima, Washington upon the following express terms and conditions:
SECTION 1- DEFINITIONS
1.1 (A) Captions. Throughout this Franchise, captions to sections are intended solely to
facilitate reading and to reference the sections and provisions of this Franchise. The captions
shall not affect the meaning and interpretation of this Franchise.
1.1 (B) Definitions. For the purposes of this Franchise 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 Franchise 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 Franchise that are not
defined in this Section shall be given their common or ordinary meaning.
1.2 "City" shall mean City of Yakima, Washington, and all the incorporated territory
within as of the effective date of this Franchise and any other areas later added thereto by
annexation or other means.
1.3 "City Council' shall mean the City Council of the City of Yakima, Washington.
1.4 "Customer" means any person(s) who legally receives any one or more of the
services provided by NoaNet utilizing the Telecommunications System.
1.5 "Days" shall mean calendar days.
1.6 "Facility(ies)" means all wires, lines, cables, conduits, towers, antenna,
equipment and supporting structures, and/or any other tangible component of NoaNet's
Telecommunications System, located in the City's rights -of -way, utilized by NoaNet in the
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operation of activities authorized by this Franchise. The abandonment by NoaNet of any
Facilities as defined herein shall not act to remove the same from this definition.
1.7 "FCC" shall mean the Federal Communications Commission.
1.8 "Franchise" ' shall mean the right granted by the Franchise Ordinance and
conditioned as set forth herein by which the City authorizes NoaNet to erect, construct,
reconstruct, operate, dismantle, test, use and maintain a Telecommunications System in the City.
The franchise granted herein shall be a non - exclusive franchise.
1.9 "Franchise Service Area" shall mean that area within the incorporated City
limits in which NoaNet shall extend its services.
1.10 "Grantee" shall refer to, as incorporated or used herein, Northwest Open Access
Network.
1.11 "Gross Operating Revenues" shall have a meaning consistent with any existing
or future City Code. Gross Operating Revenues shall include any and all compensation in
whatever form, from any source, directly earned by NoaNet or any affiliate of NoaNet or any
other person who would constitute an operator of NoaNet's Telecommunications System under
applicable local, state and/or federal law, derived from the provision of Telecommunications
Services originating or terminating in the City and/or charged to a circuit location in the City
regardless of where the circuit is billed or paid.
1.12 " Permittee" means any person who has been granted a permit by the assigned
permitting authority.
1.13 "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.
1.14 "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.
1.15 "Penalties" means any and all monetary penalties provided for in this Franchise.
1.16 "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.
1.17 "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,
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sidewalk, parkway or driveway now or hereafter existing as such within all incorporated areas of
the City.
1.18 "Telecommunications Services" shall mean the electronic transmission,
conveyance, or routing of voice, data, audio, video, or any other information or signals to a point,
or between and among points. Telecommunications Services include such transmission,
conveyance, or routing in which computer processing applications are used to act on the form,
code, or protocol of the content for purposes of transmission, conveyance, or routing without
regard to whether such service is referred to as voice over internet protocol services or is
classified by the Federal Communications Commission as enhanced or value added.
Telecommunications Services do not include:
A. Data processing and information services that allow data to be generated,
acquired, stored, processed, or retrieved and delivered by an electronic transmission to a
purchaser where such purchaser's primary purpose for the underlying transaction is the processed
data or information;
premises;
B. Installation or maintenance of wiring or equipment on a customer's
C. Tangible personal property;
D. Advertising, including but not limited to directory advertising;
E. Billing and collection services provided to third parties;
F. Internet access service;
G. Radio and television audio and video programming services, regardless of
the medium, including the furnishing of transmission, conveyance, and routing of such services
by the programming service provider. Radio and television audio and video programming
services include but are not limited to cable service as defined in 47 U.S.C. Sec. 522(6) and
audio and video programming services delivered by commercial mobile radio service providers,
as defined in section 20.3, Title 47 C.F.R.;
H. Ancillary services;
I. Digital products delivered electronically, including but not limited to
music, video, reading materials, or ring tones; or
J. Software delivered electronically
1.19 "Telecommunications System" means all wires, cables, ducts, conduits, vaults,
poles and other necessary Facilities owned or used by NoaNet for the purpose of providing
Telecommunications Services and located in, under and above the City streets and/or rights -of-
way, excluding ducts, conduits and vaults leased from another City franchisee, licensee or
permittee.
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1.20 "WUTC" shall mean the Washington Utilities and Transportation Commission.
1.21 "Year" or "Annual" or "Annually" means the period consisting of a full
calendar year, beginning January 1 and ending December 31, unless otherwise provided for in
this Franchise.
SECTION 2 - FRANCHISE
2.1 Grant of Franchise. The City hereby grants to Northwest Open Access Network,
a non - profit mutual corporation, a non - exclusive franchise which authorizes NoaNet, subject to
the terms of the Franchise Ordinance, to construct a Telecommunications System and offer
Telecommunications Services in, along, among, upon, across, above, over, under, or in any
matter connected with, the rights -of -way located in the City and for that purpose to erect, install,
construct, repair, replace, reconstruct, maintain or retain in, on, over, under, upon, across or along
any rights -of -way or extensions thereof and additions thereto, such poles, wires, cables,
conductors, ducts, conduits, vaults, utility access covers, pedestals, amplifiers, appliances,
attachments and other related property or equipment as may be necessary or appurtenant to the
Telecommunications System. Said franchise shall constitute both a right and an obligation to
provide the services of a Telecommunications System as required by the provisions of this
Ordinance.
2.2 Franchise Term. The term of this Franchise shall be ten (10) years from the
effective date unless extended in accordance with the provisions in Section 2.12 of this Franchise
or terminated sooner in accordance with this Franchise. This provision does not affect the City's
right to revoke this Franchise for cause, because of a breach of any promise, condition or
stipulation stated herein.
2.3 Franchise Non - Exclusive. The franchise granted herein shall be non - exclusive.
The City specifically reserves the right to grant, at any time, such additional franchises for a
Telecommunications System as it deems appropriate provided, however, such additional grants
shall not operate to materially modify, revoke or terminate any rights previously granted to
NoaNet. The grant of any additional franchise shall not of itself be deemed to constitute a
modification, revocation or termination of rights previously granted to NoaNet. Any franchise
granted pursuant to this Franchise shall confer and impose substantially similar rights and
obligations. In establishing the rights and obligations pursuant to a franchise, consideration shall
be given to the services to be provided, the area to be served, the commitments made by the
applicant to the City, the regulatory authority of the City and the investment proposed by such
applicant. In no event will the City impose discriminatory rights or obligations on any franchise
applicant.
2.4 Authority Granted.
A. Subject to local, state and federal law, this Franchise grants the authority,
right and privilege to NoaNet to operate and maintain a Telecommunications System including
the lines, equipment, conduit, antenna, towers, and other appurtenances and facilities necessary
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for the provision of Telecommunications Services as defined herein, in, upon, along, above, over
and under the streets and rights -of -way in the City.
B. NoaNet's right to operate and maintain its Telecommunications System is
subject to the terms, conditions and requirements of the Franchise Ordinance, this Franchise and
the City Charter and NoaNet's right to construct, erect, install or modify its Telecommunications
System is specifically subject to the requirement that NoaNet obtain permits as set forth in this
Franchise.
C. NoaNet expressly acknowledges and agrees, by acceptance of this
Franchise, that its rights under this Franchise are subject to the police power of the City to adopt
and enforce general ordinances necessary to the safety, health and welfare of the public and
NoaNet agrees to comply with all such applicable general laws and ordinances enacted by the
City pursuant to such police power. The City, by the granting of this Franchise, does not render
or to any extent lose, waive, impair or lessen the lawful powers and rights now or hereafter
vested in the City to regulate the use of its rights -of -way and tax, regulate or license the use
thereof, and NoaNet, by its acceptance of this Franchise, acknowledges and agrees that all lawful
powers and rights, whether regulatory or otherwise, as are or may be from time to time vested in
or reserved to the City, shall be in full force and effect and NoaNet shall be subject to the
exercise thereof by the City at any time.
D. NoaNet expressly acknowledges and agrees, by acceptance of this
Franchise, that lines, equipment, conduits and other facilities and appurtenance in the City rights -
of -way which are subsequently acquired by NoaNet and which, if acquired prior to this original
franchise grant, would have been subject to this Franchise and the permitting authority related
thereto, shall be subject to the provisions of this Franchise and all permits related thereto.
E. In return for promises made and subject to the stipulations and conditions
stated herein, the City grants to NoaNet permission to use the City's rights -of -way to provide
Telecommunications Services to persons within the Franchise Service Area. To the extent of the
City's interests, permission is similarly granted to NoaNet to use areas outside the City's rights -
of -way which are reserved by regulation, practice or dedication for public telephone utilities, but
in such areas, NoaNet's use is also subject to conditions now or hereafter recognized by the City
as generally applicable to telecommunications or underground conduit utilities.
2.5 Limits on Permission.
A. As used in Section 2.4, E, "Telecommunications Services" means such
services as those defined in Section 1.19 of this Franchise provided by NoaNet to persons within
the City. Permission is not granted to use the City rights -of -way for any other purpose, including
but not limited to providing Network Telephone Service as defined in RCW 82.16.010(7)(b)(ii) or
cable television service as defined in 47 USC § 522 or distribution of multi - channel video
programming or any other video programming. NoaNet stipulates that this Franchise extends no
such rights or privileges.
B. Permission does not extend to areas outside those listed in Section 2.4, E
of this Franchise, or otherwise to any area outside the authority of the City to extend franchised-
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use permission, such as buildings or private areas not reserved for utilities. NoaNet is solely
responsible to make its own arrangements for any access to such places.
C. This Franchise does not extend permission to municipal buildings or other
municipally owned or controlled structures. For such locations, NoaNet shall make specific
arrangements directly with the municipal department or division controlling such building or
other structure.
D. Permission granted by this Franchise is non - exclusive. NoaNet stipulates
the City may grant similar permission to others.
E. NoaNet shall not permit installations by others in the Franchise Service
Area without written approval of the City. Such approval shall not be in lieu of a franchise or
other requirements of the City. Whether or not permitted, NoaNet remains responsible for all
third party users of the Telecommunications System for compliance with this Franchise.
F. No privilege or exemption is granted or conferred by this Franchise except
as may be specifically prescribed.
G. Any privilege claimed under this Franchise in any street or right -of -way
shall be subordinate to any prior lawful occupancy or any subsequent exercise of City police
power. The grant of this Franchise shall not impart to NoaNet any fee title property rights in or
on any public or private property to which NoaNet does not otherwise have title.
2.6 Franchise Service Area. The Franchise Service Area shall be that area within
the present or future city limits of the City of Yakima, Washington.
2.7 Periodic Public Review of Franchise.
A. The City may, at three -year intervals, conduct a comprehensive, public
review of this Franchise. One purpose of such reviews shall be to ensure that this Franchise
continues to effectively serve the public in light of new developments in telecommunications law
and regulation, telecommunications technology, local regulatory environment and community
needs and interests. Another purpose of such reviews shall be to accurately and completely
evaluate compliance by NoaNet with this Franchise and to identify any violations by NoaNet of
any provision(s) of this Franchise. Both the City and NoaNet agree to make a full and good faith
effort to participate in such reviews in a manner that accomplishes the goals stated.
B. During such reviews, the City may require NoaNet to make available
records, documents and other information necessary for the effective completion of such reviews
and may inquire in particular whether NoaNet is supplying a level and variety of services
equivalent to those proposed by NoaNet during the process leading to the granting of this
Franchise.
C. The periodic reviews described in this Section may be, but need not be,
made coincident with reviews involved in the consideration of NoaNet requests for Franchise
renewal, Franchise extension or approval of transfer of ownership of the Telecommunications
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System. Nothing in this Section shall be construed to prohibit the City and NoaNet from
engaging in a continuous review of the performance of NoaNet. The City may also, at any time,
conduct a public hearing on any issue related to compliance by NoaNet with this Franchise or any
permit related thereto.
2.8 Franchise Renewal or New Franchise.
A. The City may establish appropriate requirements for new franchises or
franchise renewals consistent with federal, state and local law.
B. Nothing in this Franchise shall be construed to require renewal of this
Franchise.
2.9 Renegotiation. In the event that any provision of this Franchise becomes invalid
or unenforceable and the City or NoaNet expressly finds that such provision constituted a
consideration material to entering into this Franchise, or in the event of significant change in the
law regulating this Franchise or change in municipal authority to act under the terms of this
Franchise, or in the event of significant change or advancement in technology governing
NoaNet's functions, the City and NoaNet may mutually agree to renegotiate any or all of the
terms of this Franchise. The party seeking renegotiation shall serve on the other party written
notice of an offer to renegotiate. In the event the other party accepts the offer to renegotiate, the
parties shall have one hundred twenty (120) days to conduct and complete the renegotiation.
Nothing in this Franchise shall be construed to require acceptance by either the City or NoaNet of
an offer to renegotiate.
2.10 Revocation.
A. In addition to any rights set out elsewhere in this Franchise, the City
reserves the right to declare a forfeiture or otherwise revoke this Franchise and all rights and
privileges pertaining thereto in the event that:
(1) The City determines NoaNet is in violation of any material provision of
this Franchise and fails to correct the violation after written notice of the violation and
proposed forfeiture and a reasonable opportunity thereafter to correct the violation as
noted in Section 9.2 of this Franchise; or
(2) NoaNet is found by a court competent jurisdiction to have engaged in
any actual or attempted fraud or deceit upon the City, persons or customers; or
(3) NoaNet becomes insolvent, unable or unwilling to pay its debts as they
become due, or is adjudged a bankrupt; or
(4) NoaNet fails, refuses, neglects or is otherwise unable to obtain and/or
maintain any permit required by any federal or state regulatory body regarding NoaNet's
construction, maintenance and operation of its Telecommunications System.
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B. For purposes of this Section, the following are material provisions of this
Franchise, allowing the City, without limitation, to exercise its rights under this Section or as set
forth elsewhere in this Franchise:
(1) The invalidation, failure to pay or any suspension of NoaNet's payment of
any fees or taxes due the City under this Franchise;
(2) Any failure by NoaNet to submit timely reports regarding the calculation
of any gross revenue -based fees or taxes due the City under this Franchise;
(3) Any failure by NoaNet to maintain the liability insurance required under
this Franchise;
(4) Any failure by NoaNet to maintain and provide the City a copy of a
Performance Bond as required under this Franchise;
(5) Any failure by NoaNet to otherwise fully comply with the requirements of
this Franchise.
C. Upon occurrence of one or more of the events set out above, following
sixty (60) days written notice to NoaNet of the occurrence and the proposed forfeiture and an
opportunity for NoaNet to be heard, the City may, by ordinance or other appropriate document,
declare a forfeiture. In a hearing of NoaNet, NoaNet shall be afforded due process rights as if the
hearing were a contested case hearing subject to Washington law, including the right to cross -
examine witnesses and to require that all testimony be on the record. Findings from the hearing
shall be written and shall stipulate the reasons for the City's decision. If a forfeiture is lawfully
declared, all rights of NoaNet under this Franchise shall immediately be divested without a
further act upon the part of the City.
2.11 Receivership. The City shall have the right to declare a forfeiture or otherwise
revoke this Franchise one hundred eighty (180) days after the appointment of a receiver or trustee
to take over and conduct the business of NoaNet, whether in receivership, reorganization,
bankruptcy or other action or proceeding, unless such receivership or trusteeship shall have
vacated prior to the expiration of said one hundred eighty (180) days, or unless:
(1) Within one hundred eighty (180) days after his/her election or
appointment, such receiver or trustee shall have been approved by the City and shall fully
have complied with all the provisions of this Franchise and remedied all defaults
thereunder; and
(2) Such receiver or trustee, within said one hundred eighty (180) days, shall
have executed an agreement, duly approved by the City as well as the court having
jurisdiction in the premises, whereby such receiver or trustee assumes and agrees to be
bound by each and every provision of this Franchise.
2.12 Expiration. Upon expiration of this Franchise, the City shall have the right, at its
own election, to:
(1) Extend this Franchise, as provided for herein, though nothing in this
provision shall be construed to require such extension;
(2) Renew this Franchise, in accordance with applicable valid law;
(3) Invite additional franchise applications or proposals;
(4) Terminate this Franchise without further action; and
(5) Take such other action as the City deems appropriate.
2.13 Transfer of Ownership.
A. This Franchise shall not be sold, leased, mortgaged, assigned or otherwise
transferred, nor shall any of the rights or privileges herein granted or authorized be sold, leased,
mortgaged, assigned or otherwise transferred, either in whole or in part, nor shall title hereto,
either legal or equitable, or any right, interest or property herein, pass to or vest in any person,
except NoaNet, either by act of NoaNet or operation of law, without the prior consent of the City,
which shall not be unreasonably withheld, and expressed in writing. The granting of such prior
consent in one instance shall not render unnecessary any subsequent prior consent in another
instance. Any transfer of ownership shall make this Franchise subject to revocation unless and
until the City shall have given written prior consent.
B. Upon any transfer as heretofore described, NoaNet shall, within sixty (60)
days thereafter, file with the City a copy of the deed, agreement, mortgage, lease or other written
instrument evidencing such sale, lease, mortgage, assignment or transfer, certified and sworn as
correct by NoaNet.
C. Every such transfer as heretofore described, whether voluntary or
involuntary, shall be deemed void and of no effect unless NoaNet shall, within sixty (60) days
after such transfer has been made, file such certified copy as is required.
D. The requirements of this Section shall not be deemed to prohibit the use of
NoaNet's property as collateral for security in financing the construction or acquisition of all or
part of the Telecommunications System franchised hereunder. However, such financing shall be
subject to the provisions of this Franchise.
E. The City reserves the right to invoke any or all provisions of this Franchise
upon NoaNet's successors or assigns, judgment creditors or distributees of facilities or property
used in enjoyment of privileges conferred herein, whether or not stated elsewhere, all without
waiver of the right to withhold consent not expressly given of any such transfer and/or require a
new franchise.
F. The City understands that NoaNet will be using funds under a Federal
Grant under the Broadband Technology Opportunities Program (`STOP ") to finance the
construction, purchase and/or installation of broadband facilities and equipment to be located in
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the City of rights -of -way. Pursuant to BTOP, as trustee for Federal Agency administering that
program, specifically, the National Telecommunications and Information Administration
( "NTIA "). In light of the foregoing, the parties hereto agree that Grantee may assign its interest in
the Franchise to NTIA if required to do so under the rules and regulations of BTOP.
2.14 No Stock to be Issued. NoaNet promises never to issue any capital stock on
account of this Franchise or any permission granted under the terms of this Franchise or the value
thereof. NoaNet further agrees it will not have any right to receive, upon a condemnation
proceeding or other negotiation by the City to acquire the properties of NoaNet, any payment or
award on account of this Franchise or permission or its value. NoaNet waives all such claims
against the City and also any claims for any municipal revision, action, inaction, curtailment,
suspension, revocation or change in municipal policy or regulation relating to NoaNet's
franchised activities. The City shall have no obligation to make any payment to NoaNet or award
in condemnation for any other asset or interest of NoaNet, except as required under the State of
Washington Constitution and the United States Constitution or as state or federal laws may
preemptively require.
2.15 Other Codes and Ordinances. Nothing in this Franchise shall be deemed to
waive the requirements of the other lawful codes and ordinances of the City regarding permits,
fees to be paid, or manner of construction.
2.16 Survival of Terms. Sections 4.9, 6, and 9 of this Franchise shall continue in
effect as to NoaNet notwithstanding any expiration, forfeiture or revocation of this Franchise.
SECTION 3 - ENFORCEMENT AND ADMINISTRATION BY THE CITY
3.1 City Jurisdiction and Supervision. The City, through its Community Relations
Division (or its successor(s)), shall have continuing regulatory jurisdiction and supervision over
the operation and enforcement of this Franchise and may from time to time adopt such
reasonable rules and regulations as it may deem necessary for the conduct of the business
contemplated herein. All questions of application, interpretation, conflict or ambiguity arising
out of or in connection with this Franchise are to be determined by the manager of the
Community Relations Division (or his/her successor(s)), except only where otherwise
specifically stated, or in the event that a different person or body may be designated by the City
through written notice to NoaNet.
3.2 Grantee to Have No Recourse. Subject to state and federal law, NoaNet shall
have no recourse and be awarded no monetary recovery whatsoever other than non - monetary
declaratory or injunctive relief against the City for any loss, cost, expense or damage arising out
of any provision or requirement of this Franchise, nor from the City's regulation under this
Franchise, nor from the City's exercise of its authority to grant additional franchises.
3.3 Acceptance of Power and Authority of City. NoaNet expressly acknowledges
by acceptance of this Franchise that:
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(1) It has relied upon its own investigation and understanding of the power
and authority of the City to grant and enforce this Franchise and that it has no objection to
the exercise of the City's power and authority therein;
(2) It has not been induced to enter into this Franchise arrangement by any
understanding or promise or other statement, whether verbal or written, by or on behalf of
the City concerning any term or condition of this Franchise that is not specifically
included herein;
(3) It has carefully read the terms and conditions contained herein and NoaNet
is willing to and does accept all the obligations of such terms and conditions to the extent
not inconsistent with state or federal law; and
(4) The matters contained in NoaNet's application and all subsequent
applications or proposals for renewals of this Franchise, and as stated in any and all other
presentations to the City, except as inconsistent with law, regulations or local ordinance,
are incorporated into this Franchise as though set out verbatim.
3.4 Acts Discretionary, Reservation of Authority. All City acts undertaken
pursuant to this Franchise shall be deemed discretionary, guided by the provisions of this
Franchise and considerations of the public health, safety, aesthetics and convenience. NoaNet
stipulates and agrees that this Franchise is subject to any lawful provisions contained within the
City Charter of the City of Yakima. NoaNet understands the Charter's provisions are
incorporated herein, where applicable. NoaNet agrees that the City reserves all municipal powers
now or hereafter granted by law, including without limitation, the power to tax and license,
regulate activities of land use, protect the public health and safety, and regulate and control use of
public rights -of -way.
3.5 Delegation of Authority to Regulate. The City reserves the right to delegate its
regulatory authority wholly or in part to the federal government, state government, and/or to
agents of the City, including but not limited to an agency which may be formed to regulate
several City franchises.
SECTION 4 - OPERATION IN STREETS AND RIGHTS -OF -WAY
4.1 Use of Streets. NoaNet may, subject to terms of this Franchise, erect, install,
construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the
City streets and rights -of -way such lines, cables, conductors, ducts, conduits, vaults, utility access
covers, amplifiers, appliances, pedestals, attachments and other property and equipment as are
necessary and appurtenant to the operation of a Telecommunications System within the City. All
installation, construction, alteration and/or maintenance of any and all Telecommunications
System Facilities within City streets and rights -of -way incident to NoaNet's provision of
Telecommunications Services shall, regardless of who performs installation, construction,
alteration and/or maintenance, be and remain the responsibility of NoaNet.
4.2 Construction or Alteration.
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4.2.1 Permits. NoaNet shall in all cases comply with all lawful City ordinances
and regulations regarding the acquisition of permits and other such items as may be reasonably
required in order to install, construct, alter and maintain the Telecommunications System.
NoaNet shall apply for and obtain all permits necessary for installation, construction, alteration
and/or maintenance of any such Facilities, and for excavation and laying of any
Telecommunications System Facilities within City streets and rights -of -way. NoaNet shall pay
all applicable fees due for any such permits.
4.2.2 Schedule and Maps.
A. Prior to beginning installation, construction, alteration or maintenance of
the Telecommunications System, NoaNet shall provide the City with an initial work schedule for
work to be conducted in City streets and rights -of -way and the estimated total cost of such work.
NoaNet shall, upon request, provide information to the City regarding its progress in completing
or altering the Telecommunications System.
B. Upon completion of construction or alteration of the Telecommunications
System, NoaNet shall provide the City with a map showing the location of its installed
Telecommunications System, as built. Such "as- built" maps shall be in a form acceptable to the
City.
C. NoaNet shall provide a map to the City's Community Relations Division,
or its successor, showing the location of NoaNet's optical fibers in City streets and rights -of -way
on a scale of 3500 feet per inch or in whatever standard scale the City adopts for general use:
(1) One year after the effective date of this Franchise; and
(2) Annually thereafter, provided alterations have been made to the
Telecommunications System since the most recent submission.
4.2.3 Good Engineering.
A. NoaNet promises all of its property and facilities shall be constructed,
operated and maintained in good order and condition in accordance with good engineering
practice. In connection with the civil works of NoaNet's Telecommunications System, such as,
but not limited to, trenching, paving, compaction and locations, NoaNet promises to comply with
the edition of the American Public Works Association Standard Specifications which is in
current or future use by the City, together with the City's Supplemental Specifications thereto, all
as now or hereafter amended.
B. NoaNet promises that the Telecommunications System shall comply with
the applicable federal, state and local laws, the National Electric Safety Code and the Washington
Electrical Construction Code, where applicable.
4.3 Facilities Placement.
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4.3.1 General Standards. The Telecommunications System shall be
constructed and maintained in such manner as not to obstruct, hinder, damage or otherwise
interfere with sewers, water pipes, other utility fixtures or any other property of the City, or any
other pipes, wires, conduits or other facilities that may have been installed in City streets or
rights -of -way by or under the City's authority. NoaNet shall maintain a minimum underground
horizontal separation of five (5) feet from City water facilities and ten (10) feet from above-
ground City water facilities; PROVIDED, that for development in new areas, the City, together
with NoaNet and other utility purveyors or authorized users of City streets or rights -of -way, will
develop and follow the City's determination of a consensus for guidelines and procedures for
determining specific utility locations, subject additionally to this Franchise.
4.3.2 Limited Access. The City reserves the right to limit or exclude NoaNet's
access to a specific route, right -of -way or other location when there is inadequate space, a
pavement cutting moratorium, potential for unnecessary damage to public property, public
expense, inconvenience, interference with City utilities, or for any other reason determined by the
City.
4.3.3 Consistency with Designated Use. Notwithstanding the grant to use City
streets and rights -of -way contained in this Franchise, no street or rights -of -way shall be used by
NoaNet if the City, in its sole opinion, determines that such use is inconsistent with the terms,
conditions or provisions by which such street or rights -of -way were created or dedicated or
presently used under state and local laws.
4.3.4 Non- Interference. NoaNet shall exert its best efforts to construct and
maintain the Telecommunications System so as not to interfere with other uses of City streets or
rights -of -way. NoaNet shall, where possible. in the case of aboveground lines, make use of
existing poles and other facilities available to NoaNet. NoaNet shall individually notify all
residents affected by any proposed installation, construction, alteration or maintenance of the
Telecommunications System of such work where and when such notification is reasonably
possible.
. 4.3.5 Undergrounding. The City finds that overhead lines and aboveground
wire facilities and installations in the streets or rights -of -way and other franchised areas adversely
impact upon the public use and enjoyment of property in the City, including an aesthetic impact.
Therefore, NoaNet shall place underground all of its transmission lines that are located or are to
be located above or within City streets or rights -of -way in the following cases where:
(1) All existing utilities are located underground;
(2) Transmission or distribution facilities of the local exchange carrier and/or
the electric utility are underground or hereafter placed underground;
(3) Statute, ordinance, policy or other regulation of the City requires utilities
to be placed underground;
(4) NoaNet is unable to obtain pole clearance;
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(5) Underground easements are obtained from developers of new residential
areas; or
(6) Utilities are overhead but residents prefer same to be located underground
(such undergrounding to be provided at residents' expense).
NoaNet hereby states it is familiar with RCW Ch. 19.122, Washington State's
"Underground Utilities" statute, and understands local procedures, custom and practice relating
to the one - number locator service program. Consistent with any general municipal
undergrounding policy or program now or hereafter developed, the City may require NoaNet's
participation in municipally imposed undergrounding or related requirements as a condition of
NoaNet's installation or continued maintenance of overhead facilities authorized under this
Franchise. NoaNet hereby agrees to coordinate its underground installation and planning
activities with the City's underground plan and policies.
4.4 Coordination with Other Users. NoaNet shall coordinate its activities with
other utilities and users of City streets and rights -of -way scrupulously to avoid unnecessary
cutting, damage or disturbance of such streets and rights -of -way and shall conduct its planning,
design, installation, construction, alteration and maintenance of the Telecommunications System
at all times so as to maximize the life and usefulness of the paving and municipal infrastructure.
In addition, the City may determine with respect to franchised uses, in the exercise of reasonable
discretion, when and where reasonable accommodation shall be made by NoaNet to the City for
public needs or, where requested, other third party needs, how such accommodation should be
made and a reasonable apportionment of any expenses of same; PROVIDED, that this Franchise
creates no third party beneficial interests or accommodation. Notwithstanding the foregoing, it
remains the responsibility of NoaNet to anticipate and avoid conflicts with other City streets or
rights -of -way occupants or users, other utilities, franchisees or permittees. The City assumes no
responsibility for such conflicts. Further, NoaNet shall give appropriate notices to any other City
streets or rights -of -way occupants or users, other utilities, franchisees, permittees, divisions of
the City or other units of government owning or maintaining facilities which may be affected by
NoaNet's planning, design, installation, construction, alteration or maintenance of the
Telecommunications System.
4.5 Relocation.
A. The City shall have the right during the term of this Franchise, as it may be
extended, renewed or otherwise altered in accordance with this Franchise, to require NoaNet to
change the location of its Telecommunications System within City streets and rights -of -way
when the public convenience requires such change. If the City or any government entity elects or
requires a third party to alter, repair, realign, abandon, improve, vacate, reroute or change the
grade of any street, public way or other public property; or to construct, maintain or repair any
public improvement; or to replace, repair, install, maintain or otherwise alter any cable, wire,
wire conduit, towers, antenna, pipe, line, pole, wireholding structure, structure or other facility,
including a facility used for the provision of utility or other services or transportation of
drainage, sewage or other liquids, NoaNet shall, upon request, except as otherwise hereinafter
provided, at no expense to the City, remove or relocate as necessary its poles, wires, cables,
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underground conduits, vaults, pedestals, utility access covers and any other facilities which it has
installed.
B. If the City requires NoaNet to remove or relocate its facilities located
within City streets or rights -of -way, the City will make a reasonable effort to provide NoaNet
with an alternate location for its facilities within City streets or rights -of -way.
C. The City shall provide NoaNet with the standard notice given under the
circumstances to other franchisees, licensees or permittees.
D. If during the term of this Franchise, as it may be extended, renewed or
otherwise altered in accordance with this Franchise, another entity which holds a franchise or any
utility requests NoaNet to remove or relocate its Telecommunications System Facilities to
accommodate the construction, maintenance or repair of the requesting party's facilities, or the
more efficient use of such facilities, or to "make ready" the requesting parry's facilities for use by
others, or because NoaNet is using a facility which the requesting party has a right or duty to
remove, and the City has determined that such removal or relocation serves the best interests of
the City in the management of its rights -of -way, then NoaNet shall remove or relocate its
Telecommunications System Facilities at the requesting party's sole expense. NoaNet may
request payment in advance from such third party prior to any preparation for any removal or
relocation. The City shall not be liable for any such cost(s).
E. Any person requesting NoaNet to remove or relocate its facilities shall
give NoaNet no less than one hundred eighty (180) days advance written notice advising NoaNet
of the date or dates removal or relocation is to be undertaken.
F. If NoaNet fails, neglects or refuses to remove or relocate its facilities as
directed by the City, the City may do such work or cause it. to be done and the cost, including all
direct, indirect and/or consequential costs and expenses icurred by the City due to NoaNet's
failure, neglect or refusal thereof, shall be paid solely by NoaNet.
G. If NoaNet causes any damage to private property or public property in the
process of removing or relocating its facilities, NoaNet shall pay the owner of the property for
such damage.
H. NoaNet does hereby promise to protect and save harmless the City, its
officers, agents and employees from any customer or third party claims for service interruption or
other losses in connection with any removal or relocation of NoaNet's Telecommunications
System Facilities.
4.6 Movement of Buildings. NoaNet shall, upon request by any person holding a
building permit, franchise or other approval issued by the City, temporarily remove, raise or
lower its transmission or other wires appurtenant to the Telecommunications System to permit
the movement of buildings. The expense for such removal, raising or lowering shall be paid by
the person requesting the same and NoaNet shall be authorized to require such payment in
advance. The City shall require all building movers to provide not less than thirty (30) business
days notice to NoaNet for such temporary wire changes.
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4.7 Tree Trimming. NoaNet, with twenty -four (24) hour notice to the property
owner, shall have the authority to trim or cause to have trimmed trees upon and overhanging
streets, alleys, sidewalks and rights -of -way so as to prevent the branches of such trees from
coming in contact or otherwise interfering with the Telecommunications System; PROVIDED,
that the cost for such trimming of trees shall be paid solely by NoaNet.
4.8 Restoration.
A. Whenever NoaNet damages or disturbs any area in or near City streets,
rights -of -way, paved area or public improvement, NoaNet shall, at its sole cost, expense and
liability, restore such area in or near City streets, rights -of -way, paved area or public
improvement to at least its prior condition to the satisfaction of the City.
B. Whenever any opening is made by NoaNet in a hard surface pavement in
any City street or rights -of -way, NoaNet shall refill, restore, patch and repave entirely all surfaces
opened as determined necessary by the City in order to maintain and preserve the useful life
thereof.
C. For pavement restorations, any patch or restoration shall be thereafter
properly maintained in good condition and repair by NoaNet until such time as the area is
resurfaced or reconstructed.
D. The City hereby reserves the right, after providing reasonable notice to
NoaNet, to remove and/or repair any work done by NoaNet which, in the determination of the
City, is inadequate. The cost thereof, including the cost of inspection and supervision, shall be
paid solely by NoaNet.
E. Should NoaNet fail, neglect, refuse or delay in performing any obligation
here or elsewhere stated, or where the City deems necessary to protect public rights -of -way or to
avoid liability, risk or injury to the public or the City, the City may proceed to perform or cause
to have performed such obligation, including any remedial or preventative action deemed
necessary, at NoaNet's sole expense. Prior to undertaking corrective effort, the City shall make a
reasonable effort to notify NoaNet, except no notice is needed if the City declares an emergency
or determines a need for expedient action. This remedy is supplemental and not alternative to
any other municipal right.
F. Whenever NoaNet damages or disturbs, any area in or near City streets,
rights -of -way, paved area or public improvement, NoaNet stipulates that the City may, without
limitation:
(1) Require NoaNet to repave an entire lane or greater affected area within any
cut or disturbed location; and/or
(2) Require NoaNet to common trench with any other underground
installation in City streets or rights -of -way, with cost sharing to be
negotiated between the parties involved, or in the absence of agreement, as
directed by the City.
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G. All requirements of this Section pertaining to public property shall also
apply to the restoration of private easements and other private property.
H. If NoaNet causes any damage to private property in the process of
restoring facilities, NoaNet shall pay the owner of the property for such damage.
I. All of NoaNet's work under this Section shall be done in strict compliance
with all applicable rules, regulations and ordinances of the City.
NoaNet shall perform all restoration work promptly.
4.9 City Right to Require Removal of Property.
A. At the expiration of the term for which this Franchise is granted, providing
no extension or renewal is granted by the City, or upon the forfeiture or revocation of this
Franchise, as provided for in this Franchise, the City shall have the right to require NoaNet to
remove, at NoaNet's sole expense, all or any part of the Telecommunications System from all
City streets and rights -of -way within the Franchise Service Area, where the abandoned Facilities
interfere with reasonable uses of City streets and rights -of -way. If NoaNet fails to do so, the City
may perform the work or cause such work to be performed and collect the cost thereof from
NoaNet. The actual cost thereof, including direct and indirect administrative costs, shall be a lien
upon all plant and property of NoaNet effective upon filing of the lien with the Yakima County
Auditor.
B. Any order by the City Council to remove any of NoaNet's
Telecommunications System Facilities shall be mailed to NoaNet not later than thirty (30)
calendar days following the date of expiration of this Franchise. NoaNet shall file written notice
with the Clerk of the City Council not later than thirty (30) calendar days following the date of
expiration or termination of this Franchise of its intention to remove any Telecommunications
System Facilities intended to be removed and a schedule for removal by location. The schedule
and timing of removal shall be subject to approval and regulation by the City. Removal shall be
completed not later than twelve (12) months following the date of expiration of this Franchise.
C. NoaNet shall not remove any underground Facilities which require
trenching or other opening of City streets or rights -of -way along the extension of the Facilities to
be removed, except as hereinafter provided. NoaNet may voluntarily remove any underground
Facilities from City streets and rights -of -way which have been installed in such a manner that
they can be removed without trenching or other opening of City streets and rights -of -way along
the extension of the Facilities to be removed.
D. Subject to applicable law, NoaNet shall remove, at its sole cost and
expense, any underground Facilities by trenching or opening City streets and rights -of -way along
the extension thereof or otherwise which is ordered to be removed by the City Council based
upon a determination, in the sole discretion of said Council, that removal is required in order to
eliminate or prevent a hazardous condition. Underground Facilities in City streets and rights -of-
way that are not removed shall be deemed abandoned and title thereto shall be vested in the City.
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4.10 Emergency Repairs. In the event that emergency repairs to the
Telecommunications System are necessary, NoaNet shall notify the City of the need for such
repairs. NoaNet may immediately initiate such emergency repairs and shall apply for appropriate
permits the next business day following discovery of the emergency.
4.11 City Right of Inspection. The City shall have the right to inspect and approve all
installation, construction, alteration or maintenance work performed by NoaNet within the
Franchise Service Area and to make such tests as it deems necessary to ensure compliance with
the terms and conditions of this Franchise and other pertinent provisions of law, the cost thereof
to be paid solely by NoaNet, but no action or inaction by the City shall create any duty or
obligation by the City to inspect, test or approve any installation, construction, alteration or
maintenance work performed by NoaNet. In addition, the City may require NoaNet to furnish
certification from a qualified independent engineer that NoaNet's Facilities are constructed in
accordance with good engineering practice and are reasonably protected from damage and injury.
4.12 After - Acquired Facilities. NoaNet expressly acknowledges and agrees, by
acceptance of this Franchise, that any Telecommunications System Facilities located within City
streets or rights -of -way which are subsequently acquired by NoaNet or upon addition or
annexation to the City of any area in which NoaNet retains or acquires any such Facilities (if
acquired prior to this original Franchise grant) and which would have been subject to this
Franchise and the permitting authority related thereto shall immediately be subject to the
provisions of this Franchise and all permits related thereto.
4.13 Information. NoaNet hereby promises to maintain and supply to the City, at
NoaNet's sole expense, any information requested by the City to coordinate municipal functions
with NoaNet's activities within City streets and rights -of -way. NoaNet shall provide such
information, upon request, either in hard copy and/or electronic format compatible with the City's
data base system, as now or hereafter existing, including the City's geographic information
service (GIS) data base. NoaNet shall keep the City informed of its long -range plans so as to
allow coordination with the City's long -range plans.
SECTION 5 - SYSTEM[ DESIGN AND STANDARDS
5.1 Technical Standards. The technical standards used in the design, construction,
alteration, maintenance and operation of the Telecommunications System shall comply, at a
minimum, with the applicable technical standards promulgated by the Federal Communications
Commission ( "FCC ") or the Washington Utilities and Transportation Commission ( "WUTC "), as
now or hereafter constituted or amended, and any and all other applicable federal, state or local
law, regulations or technical standards which may currently or may subsequently concern any
services which NoaNet provides or may provide using the Telecommunications System. The
City may establish reasonable technical standards for the performance of the
Telecommunications System if the FCC or WUTC permit it to do so or if the FCC or WUTC
standards are repealed in whole or in part.
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5.2 General Minimum Standards. NoaNet shall, throughout the term of this
Franchise, at a minimum, make available to all customers all signals and/or services that are
required to be made available as federal, state or local law provides.
5.3 Performance Testing. NoaNet shall perform all tests of the Telecommunications
System as required by and at the intervals as required by the FCC and/or any and all federal, state
and local law or regulations.
SECTION 6 - COMPENSATION AND FINANCIAL PROVISIONS
6.1 Taxes and Fees
A. NoaNet shall pay the City all reasonable costs of granting, enforcing or
reviewing the provisions of this Franchise as ordered by the City manager or designee, whether
as a result of accrued in -house staff time or out -of- pocket expenses or administrative costs, as
well as expenses of retaining independent technical, legal, financial or other consultants or
advisors. Such obligation further includes municipal fees related to receiving and approving
permits, licenses or other required approvals, inspecting plans and construction, or relating to the
preparation of a detailed statement pursuant to RCW 43.21C.
B. Upon request of NoaNet, the City will submit proof of any charges or
expenses incurred as defined in Section 6.1.2, A of this Franchise. Said charges or expenses
shall be paid by NoaNet no later than thirty (30) days after NoaNet's receipt of the City's billing
thereof.
C. NoaNet shall pay all other taxes and fees applicable to its operations and
activities within the City, all such obligations also being a condition of this Franchise. Such
payments shall not be deemed franchise fees or payments in lieu thereof.
6.2 Payments. NoaNet shall make all required payments in the form, intervals and
manner requested by the City director of budget and finance and shall furnish the City any and all
information related to the City's revenue collection functions reasonably requested.
6.3 Financial Records.
A. NoaNet shall manage all of its operations in accordance with a policy of
keeping books and records open and accessible to the City. The City shall have the right, as
necessary or desirable for effectively administering and enforcing this Franchise, to inspect at any
time during normal business hours upon reasonable notice, all books, records, maps, plans,
financial statements, service complaint logs, performance test results, records required to be kept
by NoaNet and/or any parent company of NoaNet pursuant to the rules and regulations of the
FCC, WUTC and other regulatory agencies, and other like materials NoaNet and/or any parent
company of NoaNet which directly relate to the operation of this Franchise.
B. Access to the aforementioned records referenced in Section 6.3 A shall not
be denied by NoaNet to representatives of the City on the basis that said records contain
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"proprietary" information. However, to the extent allowed by Washington law, the City shall
protect the trade secrets and other confidential information of NoaNet and /or any parent company
of NoaNet.
C. The City agrees to request access to only those books and records, in
exercising it rights under this Franchise, which it deems reasonably necessary for the
enforcement and administration of this Franchise.
6.4 Insurance.
6.4.1 Coverages. NoaNet shall maintain, throughout the term of this Franchise,
liability insurance insuring NoaNet, its officers, employees and agents, with
regard to all claims and damages specified in Section 6.5 herein, in the minimum
amounts as follows:
(1) Commercial Liability Insurance.
On or before the date this Franchise is fully executed by the parties, NoaNet shall
provide the City with a certificate of insurance as proof of commercial liability insurance
with a minimum liability limit of One Million Dollars ($1,000,000) combined single limit
bodily injury and property damage per occurrence and Two Million Dollars ($2,000,000)
in the aggregate. This coverage will have 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 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. Said policy shall be in effect for the
duration of this Franchise. The policy shall name the City, its elected officials, officers,
agents and employees as additional insureds. The insurance shall be with an insurance
company or companies rated A -VII or higher in Best's Guide and authorized to conduct
business in the State of Washington; provided that NoaNet may obtain the insurance
required in this Section through any combination of self - insurance (through the utility
insurance pool and provided that such self- insurance is in compliance with state
regulations), primary and excess or umbrella liability insurance, subject to the approval of
the City's insurance advisor Wells Fargo Insurance Services. If NoaNet uses any
contractors and/or subcontractors to perform any of the work referenced in this Franchise,
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) Business Automobile Liability Insurance.
On or before the date this Franchise is fully executed by the parties, NoaNet shall
provide the City with a certificate of insurance as proof of business automobile liability
insurance with a minimum liability limit of One Million Dollars ($1,000,000) combined
single limit bodily injury and property damage. 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 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. Said policy shall be in effect for the duration of this Franchise. The
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policy shall name the City, its elected officials, officers, agents and employees as
additional insureds. The insurance shall be with an insurance company or companies
rated A -VII or higher in Best's Guide and authorized to conduct business in the State of
Washington; provided that NoaNet may obtain the insurance required in this Section
through any combination of self - insurance (through the utility insurance pool and
provided that such self - insurance is in compliance with state regulations), primary and
excess or umbrella liability insurance, subject to the approval of the City's insurance
advisor Wells Fargo Insurance Services. If NoaNet uses any contractors and/or
subcontractors to perform any of the work referenced in this Franchise, 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 "Business
Automobile Liability Insurance."
(3) Umbrella Liability Insurance.
NoaNet 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 Franchise is fully executed by the parties,
NoaNet shall provide the City with a certificate of insurance as proof of umbrella
coverage with a minimum liability limit of Five Million Dollars ($5,000,000). The
insurance shall be with an insurance company or companies rated A -VII or higher in
Best's Guide and authorized to conduct business in the State of Washington; provided that
NoaNet may obtain the insurance required in this Section through any combination of
self - insurance (through the utility insurance pool and provided that such self - insurance is
in compliance with state regulations), primary and excess or umbrella liability insurance,
subject to the approval of the City's insurance advisor Wells Fargo Insurance Services.
(4) Professional Liability Insurance.
Before this Franchise is fully executed by the parties, NoaNet shall provide the
City with a certificate of insurance as evidence of Professional Liability Insurance with
coverage of at least One Million Dollars ($1,000,000.00) per occurrence and an annual
aggregate limit of at least One Million Dollars ($1,000,000.00). The certificate shall
clearly state who the provider is, the amount of coverage, the policy number, and when
the policy and provisions provided are in effect. The insurance shall be with an insurance
company rated A -VII or higher in Best's Guide; provided that NoaNet may obtain the
insurance required in this Section through any combination of self - insurance (through the
utility insurance pool and provided that such self - insurance is in compliance with state
regulations), primary and excess or umbrella liability insurance. If the policy is on a
claims made basis, the retroactive date of the insurance policy shall be on or before the
inception date of the Franchise, or shall provide full prior acts. The insurance coverage
shall remain in effect during the term of this Franchise and for a minimum of three (3)
years following the termination of this Franchise.
Providing coverage in the amounts as set forth above shall not be construed to relieve NoaNet
from liability in excess of those limits.
6.4.2 Proof of Insurance. NoaNet shall file with the City copies of all
certificates of insurance showing up -to -date coverages, additional insured coverages and
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evidence of payment of premiums as set forth above. NoaNet shall file a certificate of insurance
along with written evidence of payment of the required premiums with the manager of the City
Community Relations Division or his or her designee.
6.4.3 Alteration of Insurance. Insurance coverages, as required by this
Franchise, shall not be changed, cancelled or otherwise altered without approval of the City.
NoaNet 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
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 Franchise, in order to adequately cover the risks of the City,
NoaNet and NoaNet's officers, agents and employees, the City may require additional insurance
to be acquired by NoaNet. Should the City exercise its right to require additional insurance, the
City will provide NoaNet with no less than thirty (30) days prior written notice.
6.4.4 Failure to Procure. NoaNet acknowledges and agrees, by acceptance of
this Franchise, that failure to procure and maintain the insurance coverages as detailed in Section
6.5.1 of this Franchise shall constitute a material breach of this Franchise, as provided for in
Section 2.10, B, 3) of this Franchise. In the event of such failure to procure the City may
immediately suspend NoaNet's operations under this Franchise, terminate or otherwise revoke
this Franchise and/or, at its discretion, procure or renew such insurance in order to protect the
City's interests and be reimbursed by NoaNet for all premiums in connection therewith.
6.5 Performance Bond. Prior to the effective date of this Franchise, NoaNet shall
furnish to the City proof of the posting of a performance bond running to the City, with surety
rated A -VII or higher in Best' Guide in the penal sum of Fifty Thousand Dollars ($50,000),
conditioned that NoaNet shall well and truly observe, fulfill and perform each term and condition
of this Franchise. NoaNet shall pay all premiums charged for said bond. Said bond shall be
effective to continue obligation for the term of this Franchise, including any extensions, and
thereafter until NoaNet or any successor or assign of NoaNet has liquidated all of its obligations
with the City that may have arisen from the acceptance of this Franchise by NoaNet or from its
exercise of any privilege herein granted. Said bond shall contain a provision stating that said
bond shall not be terminated or otherwise allowed to expire without thirty (30) days prior written
notice having been provided to the City. NoaNet shall provide said bond to the City and said
bond shall be kept on file at the City Community Relations Division office or its successor(s).
Neither the provisions of this Section nor any performance bond accepted by the City pursuant
thereto, nor any damages or other amounts recovered by the City thereunder, shall be construed
to excuse faithful performance by NoaNet or to limit liability of NoaNet under this Franchise
either to the full amount of the performance bond or otherwise, except as otherwise provided
herein.
6.6 Waiver, Indemnity, No Estoppel, No Duty.
A. NoaNet hereby waives all claims, direct or indirect, for loss or liability
against the City arising out of NoaNet's franchised or permitted operations; provided, however,
such indemnification shall not extend to that portion of any claims, liability, expense of any
22
nature whatsoever including all costs and attorneys' fees caused by the negligence of the City, its
agents, employees, officers, contractors, or subcontractors.
B. NoaNet 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
NoaNet, 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 Franchise or applicable law, including but not limited to the construction,
installation, maintenance, alteration or modification of the Telecommunication System; arising
from actual or alleged injury to persons or property, including the loss 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 NoaNet'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 NoaNet'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 NoaNet 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 NoaNet from its duty of defense against liability or of paying any judgment entered
against such party.
C. NoaNet hereby waives immunity under Title 51 RCW and affirms that the
City and NoaNet have specifically negotiated this provision, as required by RCW 4.24.115, to the
extent that it may apply.
D. Whenever any judgment is recovered against the City or any other
indemiifee for any such liability, costs, or expenses, such judgment shall be conclusive against
NoaNet, not only as to the amount of such damage, but as to its liability, provided NoaNet has
reasonable notice or actually knew, or should have known, of the pendency of such suit. Under
such circumstances, NoaNet 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.
E. 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 Franchise shall be asserted by NoaNet, 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.
F. It is not the intent of this Franchise to acknowledge, create, imply or
expand any duty or liability of the City with respect to its role as a franchising authority, in the
exercise of its police powers or for any other purpose. Any City duty nonetheless deemed created
shall be a duty to the general public and not to any specific party, group or entity.
SECTION 7 — REPORTING REQUIREMENTS
All reports required under Section 7 of this Franchise may be requested by the City to be
provided by NoaNet in hard copy and/or electronic format compatible with City databases,
including, but not limited to, the GIS system.
7.1 Additional Reports. NoaNet shall prepare and furnish to the City or any other
entity exercising lawful regulatory authority in connection with this Franchise, at the times and in
the form prescribed by such regulatory authority.
7.2 Preservation of Confidential Information. The City shall protect information
provided to the City by NoaNet designated as confidential or proprietary by NoaNet, given such
information had been so designated at the time it was provided to the City, to the maximum
extent permissible under Chapter 42.17 RCW, or as provided by other state law as it may now or
hereafter exist.
SECTION 8 — REMEDIES AND PROCEDURE FOR REMEDYING
FRANCHISE VIOLATIONS
8.1 Remedies for Franchise Violations.
A. In addition to the remedies set forth elsewhere in this Franchise, the City
shall have the right to assert any or all of the following remedies in the event NoaNet violates or
defaults on, as determined by the City, any provision of this Franchise:
(1) Drawing upon or foreclosing all or any part of any security provided under
this Franchise, including without limitation the Faithful Performance Bond provided for
under Section 6.6 herein; PROVIDED, however, such drawing or foreclosure shall be
only in such a manner and in such amount as the City reasonably determines is necessary
to remedy the violation or default. Should the City take such action as described herein,
NoaNet shall be responsible for all direct and actual costs related to such action,
including, but not limited to, legal and administrative costs incurred by the City;
(2) Commence an action at law for monetary damages or seek other equitable
relief;
(3) In the case of substantial violation or default, as determined by the City, of
a material provision of this Franchise, declare this Franchise to be revoked;
(4) Seek specific performance of any provision of this Franchise, which
reasonably lends itself to such remedy, as an alternative to seeking damages.
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B. In determining which remedy or remedies, as set forth herein, are
appropriate, the City shall take into consideration the nature and extent of the violation or
default, the remedy needed to prevent such violations or defaults from occurring in the future,
whether NoaNet has a history of previous violations of the same or similar kind and such other
considerations as are appropriate under the circumstances.
8.2 Procedure for Remedying Franchise Violations.
8.2.1 Notice of Violation. In the event the City determines NoaNet has not
complied with any term or condition of this Franchise, the City shall notify NoaNet of the exact
nature of the alleged noncompliance.
8.2.2 NoaNet's Right to Cure or Respond. NoaNet shall have thirty (30) days
from receipt of notice by the City of any alleged noncompliance with any term or condition of
this Franchise to:
(1) Respond to the City contesting the assertion of noncompliance; or
(2) Cure such violation or default or, in the event that by the nature of the
violation or default such violation or default cannot be cured within a thirty (30) day
period, initiate reasonable steps to remedy such violation or default and notify the City of
the steps being taken and the projected date such remedy will be completed.
8.2.3 Public Hearing. In the event NoaNet fails to respond to a notice, as
described herein, or in the event NoaNet fails to cure such violation or default pursuant to the
procedures set forth herein, the City shall schedule a public hearing to investigate any alleged
violation or default. The City shall provide NoaNet twenty (20) calendar days notice of the time
and place of such hearing and provide NoaNet an opportunity to be heard at such hearing.
8.3 Enforcement. In the event the City, after such hearing as described in subsection
8.2.3 of this Franchise has been conducted, upholds its determination that NoaNet has violated or
defaulted on any provision of this Franchise, the City may impose any of the remedies set out in
Section 8. 1, A of this Franchise.
8.4 Failure to Enforce. NoaNet shall not be relieved of any of its obligations to
comply promptly with any provision of this Franchise by reason of any failure of the City to
enforce prompt compliance, and the City's failure to enforce shall not constitute a waiver of
rights or acquiescence in NoaNet's conduct.
8.5 Acts of Nature. NoaNet shall not be held in violation, default or noncompliance
with the provisions of this Franchise, nor suffer any enforcement or penalty related thereto,
where such violation, default or noncompliance is caused by acts of nature, power outages or
other events reasonably beyond its ability to control. However, NoaNet shall take all reasonable
steps necessary to provide service despite such occurrences.
8.6 Alternative Remedies. Nothing in this Franchise shall be deemed to bar the right
of the City to seek or obtain judicial relief from any violation of this Franchise or any rule,
25
regulation, requirement or directive promulgated thereunder. Neither the existence of other
remedies identified in this Franchise nor the exercise thereof shall be deemed to bar or otherwise
limit the right of the City to recover monetary damages for such violation by NoaNet, or to seek
and obtain judicial enforcement of NoaNet's obligations under this Franchise by means of
specific performance, injunctive relief or mandate, or any other judicial remedy at law or in
equity.
SECTION 9 — MISCELLANEOUS PROVISIONS
9.1 Posting and Publication. NoaNet shall assume the cost of posting and
publication of this Franchise as such posting and publication is required by law, and such is
payable upon NoaNet's filing of acceptance of this Franchise.
9.2 Service of Notice. Except as otherwise specifically provided herein, any notice
required or permitted to be given under this Franchise 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 the following:
Randy Beehler, Community Relations Manager
City of Yakima Community Relations Division
124 South 2nd Street
Yakima, WA 98901
Notices to NoaNet shall be addressed to the following:
NoaNet
5802 Overlook Avenue
Tacoma, WA 98422
With a copy to:
NoaNet
422 W/ Riverside Suite 408
Spokane, WA 99201
9.3 Compliance with Laws. NoaNet shall comply with all federal and state laws and
regulations, including regulations of any administrative agency thereof, as well as the lawful
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 Franchise.
In the event any valid and superior law, rule or regulation of any governing authority or agency
having jurisdiction contravenes the provisions of this Franchise subsequent to its adoption, then
the provisions of this Franchise 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 Franchise
92
shall limit the City's right of eminent domain under state law. Nothing in this Franchise 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 construction.
9.4 Governing Law and Venue. This Franchise 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. In case
of conflict or ambiguity between this document and NoaNet's Request, this document shall be
controlling. In any action or suit to enforce any right or remedy under this Franchise, the
prevailing party shall be entitled to recover its cost, including without limitation attorney's fees.
9.5 Severalbility. If any section, subsection, sentence, clause, phrase or portion of this
Franchise 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 NoaNet shall negotiate in good faith to modify this Franchise as may be necessary to
meet the requirements of the law and/or to effectuate the intention of this Franchise. In the event
that such modifications are barred by any legal requirements governing any party, the City and
NoaNet 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 Franchise.
9.6 Guarantee of Performance. NoaNet hereby agrees that it enters into this
Franchise voluntarily and in order to secure and in consideration of the grant from the City of a
ten (10) year franchise. Performance pursuant to the terms and conditions of this Franchise is
guaranteed by NoaNet.
9.7 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 NoaNet is wholly or partially unable to carry out its obligations under
this Franchise as a result of a Force Majeure, NoaNet shall provide the City prompt notice of
such Force Majeure, describing the same in reasonable detail, and NoaNet's obligations under
this Franchise, other than for payment of moneys due, shall not be deemed in violation or default
for the duration of the Force Majeure. NoaNet agrees to use its best efforts to remedy as soon as
possible, under the circumstances, NoaNet's inability, by reason of Force Majeure, to carry out
its responsibilities and duties under this Franchise.
9.8 City Right of Intervention. If the City otherwise has the right to intervene,
NoaNet expressly acknowledges and agrees, by acceptance of this Franchise, not to oppose such
intervention by the City in any suit or proceeding to which NoaNet is a party related to this
Franchise.
27
9.9 Consent. Wherever the consent or approval of either NoaNet or the City is
specifically required in this Franchise, such consent or approval shall not be unreasonably
withheld.
9.10 No Third Party Beneficiaries. There shall be no third parry beneficiaries of this
Franchise.
9.11 Franchise Ordinance Acceptance. NoaNet shall execute and return to the City,
within sixty (60) days after the date of adoption of the Franchise Ordinance by the Yakima City
Council, three (3) original Franchise Agreements, by which NoaNet acknowledges that it has
carefully read the terms and conditions of the Franchise Ordinance and accepts all of the terms
and conditions of the Franchise Ordinance and this Franchise and agrees to abide by the same. In
accepting this Franchise, NoaNet shall indicate that it has relied upon its own investigation of all
relevant facts, that it has had the assistance of counsel, that it was not induced to accept this
Franchise, that the Franchise Ordinance represents the entire agreement between NoaNet and the
City and that NoaNet accepts all reasonable risks related to the interpretation of the Franchise
Ordinance and this Franchise. The executed Franchise Agreements shall be returned to the City
accompanied by the Letter of Credit as required in Section 6.6 of this Franchise and evidence of
insurance as required in Sections 6.5.1 and 6.5.2 of this Franchise. In the event NoaNet fails to
submit a Franchise Agreement as provided for herein, or fails to provide the required
accompanying documents, this Franchise shall be null and void.
9.12 Previous Rights Abandoned. This Franchise supersedes any and all other rights,
privileges, powers, immunities and authorities owned, possessed, controlled or exercisable by
NoaNet pursuant to any previous franchise in the City.
9.13 Effective Date. This Franchise and the Franchise Ordinance shall be effective
thirty (30) days after its adoption; PROVIDED, however, that if NoaNet does not accept this
Franchise pursuant to Section 9.11 of this Franchise and comply with all conditions for such
acceptance set forth herein within sixty (60) days after the adoption of the Franchise Ordinance,
this Franchise and the Franchise Ordinance shall be null and void.
&.
PASSED BY THE CITY COUNCIL, signed and approved this IT day of January, 2012.
CITY OF YAKIMA NORTHWEST OPEN ACCESS
VAJ, NETWORK
Micah Cawley, Ma/or By:
Its:
Attest: �tP 00000a_
ty Clerk r �'
gSfifN
City Contract No: a (3 la Q
Ordinance No: 2012 -02
Publication Date: January 20, 2012
Effective Date: February 19, 2012
State of QS )
)ss.
County of )
I hereby certify that I know or have satisfactory evidence that 6zac'
is the person who appeared before me, and said person
acknowledged that he /she signed this instrument, and on oath stated that he /she was authorized to
execute the instrument on behalf of Northwest Open Access Network, and acknowledged it as
the E--ZD of Northwest Open Access Network, to be the free
and voluntary act of such party for the uses and purposes mentioned in this instrument.
Dated this a�_Cj day of , 2012.
Print Name: G-
NOTARY PU IC in arjd for the State of
residing at
My commission expires:
ost--
BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT q C
Item No.
For Meeting of: January 17, 2012
ITEM TITLE: Ordinance granting a non - exclusive franchise to N.W. Open Access Network
( "NoaNet), a non - profit mutual corporation, which authorizes NoaNet to occupy
City of Yakima rights -of -way in order to construct, operate, and maintain a
telecommunications system.
SUBMITTED BY: Randy Beehler, Community Relations Manager
CONTACT PERSON/TELEPHONE: Randy Beehler, Community Relations Manager, 575 -6092
SUMMARY EXPLANATION:
In October 2011, Northwest Open Access Network ( "NoaNet') formally requested the grant of a Telecommunications
System Franchise by the City. The City requested and received all necessary and appropriate documentation from NoaNet
to determine that NoaNet is qualified to be granted a Telecommunications System Franchise. Franchise negotiations were
completed in early January 2012.
The attached Telecommunications System Franchise Ordinance (the "Ordinance') and the franchise it grants allow NoaNet
to occupy City streets and rights -of -way in order to construct, operate, and maintain a telecommunications system. The
franchise authorized by the Ordinance is for a term of ten (10) years. The City will not charge a franchise fee to NoaNet at
this time, pursuant to RCW 35.21.860.
Resolution Ordinance X Other (specify)
Contract: Mail to:
Contract Term: Amount: Expiration Date:
Insurance Required? No
Funding Source: Phone:
APPROVED FOR SUBMITTAL:_ City Manager
STAFF RECOMMENDATION:
Pass ordinance
BOARD /COMMISSION RECOMMENDATION:
N/A
ATTACHMENTS:
Click to download
❑ NoaNet Telecommunications Franchise