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07/17/2018 06N Fiber Optic Cable Space Use Agreement with Noel Communications, Inc.BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT 1 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 2 ORDINANCE NO. 2018- 3 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 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. 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 2 5 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. 3 6 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. 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 4 7 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 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." 5 8 (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 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, 6 9 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 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 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. 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: 7 10 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@noelcomm.com. 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. 8 11 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. 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. 9 12 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 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; 10 13 (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. 11 PASSED BY THE CITY COUNCIL, signed and approved this day of July, 2018. CITY OF YAKIMA NOEL COMMUNICATIONS, INC. By: Kathy Coffey, Mayor Its: Attest: City Clerk Ordinance No.: Publication Date: State of Washington County of )ss. 14 I hereby certify that I know or have satisfactory evidence that 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 Noel Communications, Inc., and acknowledged it as the of Noel Communications, Inc., to be the free and voluntary act of such party for the uses and purposes mentioned in this instrument. Dated this day of July, 2018. Print Name: NOTARY PUBLIC in and for the State of Washington, residing at 12 15 My commission expires: 13