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HomeMy WebLinkAbout2008-032 Noel Communications Fiber Optics AgreementORDINANCE NO. 2008-32 AN ORDINANCE authorizmg 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 m 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, terns 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 foilowing terns phrases words and their derivations shall have the meaning given herein When not nuonsistent with the context, words used in the present tense include the future, words in the plural number include the singular number, words in the singular number include the plural number and the use of any gender shall be applicable to all genders whenever the sense requires The words "shall" and "will" are mandatory and the word "may" is permissive Where a term in this Ordinance is not defined in this Section and there exists a definition for the term in the Telecommunications Act of 1996, Pub Law No 104-104, 110 Stat. 56 (1996) (the "Telecommunications Act"), the Telecommunications Act definition shall apply Other terms in this Ordinance that are not defined in this Section shall be given their common or ordinary meaning. 1 2 "City" shall mean the City of Yakima, Washington 1.3 "Conduit system" or "Conduit" shall mean the conduit within the conduit system owned by the City of Yakima that is located under the sidewalks along Yakima Avenue from Ninth Street to Seventh Avenue in the City of Yakima, Washington. 1 4 "Fiber optic cable" or "cable" shall mean the fiber optic cable owned by Noel that it will place and maintain in the City's Conduit 1.5 "Noel" shall refer to, as used herein, Noel Communications, Inc 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 2 e. City an application for a permit for construction within City rights-of-way Noel must provide drawings showing the position and location of all fiber, and any equipment, including depth or height, that it proposes to place within the Conduit. B Noel must obtain construction permits from the City prior to performing any installation work within the City rights-of-way Noel must install all fiber optic cable in accordance with federal, state, and local requirements. Noel must also comply with applicable City ordinances and the current version of the WSDOT Standard Specifications for Road, Bridge and Municipal Construction. Before commencing any construction in the City's rights-of-way, Noel must comply with all applicable requirements of Chapter 19 122 RCW, the One Number Locator Service C Noel may not locate or maintain its fiber optic cable so as to interfere with the use of the City rights-of-way by the general public, or other persons authorized to use or be present in or upon the City rights-of-way All Noel equipment causing such interference must be moved by Noel at its expense to a location approved by the City Engineer 3 Relocation Requirements. A. Noel will relocate the fiber optic cable installed under the Ordinance within the Conduit at its own expense, in order 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/pullboxes 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 (unlight) 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 only one fiber optic cable in the Conduit, which cable must be no more than one inch (1") in diameter 3 5 Maintenance and Repair A. Noel may maintain or repair its fiber optic cable, but must comply with all City rules and regulations, and obtain the required City permits prior to any work within City rights-of-way, which approval of such permits by the City shall not be unreasonably withheld or denied For emergency after hour's repairs, permits will not be required, however, Noel shall inform the City as soon as possible of any emergency work performed, and shall provide all relevant information such as, but not limited to, the nature of the emergency, the locations where repairs were performed, and whether continuing work is required. B Noel will at all times employ ordinary care and install and maintain and use commonly accepted methods and devices for preventing failures and accidents that are likely to cause damage, injury, or nuisance to the public or workers All structures and all lines, equipment and connections in, over, under, and upon City rights-of-way will at all times be kept and maintained in a safe, suitable condition, and in good order and repair The City reserves the right to see that Noel equipment is constructed and maintained in a safe condition. If a violation of the National Electrical Safety Code or other regulation is discovered by the City, the City will discuss the matter with Noel and establish a reasonable time for Noel to make necessary repairs If the repairs are not made within the established time, the City may make the repairs itself or have them made and collect all actual costs for such repair from Noel 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 dunng the term of the Ordinance In consideration for the City providing Noel access to and space in the Conduit, Noel shall provide 50Mb (Megabits per second) of DIA (Direct Internet Access) to the City 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 initial 10 -year term value of DIA service is valued at $39,000 a year, or a total of $390,000 4 B Perform periodic/as-needed maintenance, and make repairs to the fiber optic cable installed in the Conduit. 7 Term. A The tern of this Ordinance shall commence as described in the effective date Section 22 of the Ordinance, and shall terminate ten (10) years from the commencement date At the end of this term, the parties may extend this Ordinance under terms and conditions then agreed. The ten-year term authorized by the Ordinance is subject to an option to extend for ten (10) additional years if the City and Noel can reach a mutually satisfactory agreement on the value of the services for the additional ten-year (10 year) period. 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 (unlight) its fiber and deed the same to the City at no expense to the City 8 Insurance. A Coverages. Noel shall maintain, throughout the tern 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 m 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 5 cancel or change the insurance without first giving the City thirty (30) calendar days prior written notice The insurance shall be with an insurance company or companies rated A -VII or higher in Best's Guide and admitted in the State of Washington. If Noel uses any contractors and/or subcontractors to perform any of the work referenced in this Ordinance, such contractors and/or subcontractors shall maintain the same minimum limits of liability and comply with all other provisions discussed above in this subsection entitled "Commercial Automobile Liability Insurance " (3) Umbrella Liability Insurance. Noel and its contractors and/or subcontractors shall maintain umbrella liability insurance coverage, in an occurrence form, over underlying commercial liability and automobile liability On or before the date this Ordinance is fully executed by the parties, Noel shall provide the City with a certificate of insurance as proof of umbrella coverage with a minimum liability limit of Four Million Dollars ($4,000,000) The insurance shall be with an insurance company or companies rated A -VII or higher in Best's Guide and admitted in the State of Washington Providing coverage in the amounts as set forth above shall not be construed to relieve Noel from liability in excess of those limits B Proof of Insurance. Noel shall file with the City copies of all certificates of insurance showing up-to-date coverages, additional insured coverages and evidence of payment of premiums as set forth above, and pursuant to the notice specified in Section 10 of this Ordinance Noel shall file and maintain a certificate of insurance along with written evidence of payment of the required premiums pursuant to the notice specified in Section 10 of this Ordinance C Alteration of Insurance. Insurance coverages, as required by this Ordinance, shall not be changed, cancelled or otherwise altered without approval of the City Noel shall provide the City no less than thirty (30) days prior written notice of any such proposed change, cancellation or other alteration. The City may, at its option, review all 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 tern 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. 6 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, hens, liabilities, penalties, fines, judgments, awards, costs and expenses arising directly or indirectly from or out of, relating to or in any way connected with the performance or non-performance, by reason of any intentional or negligent act, occurrence or omission of Noel, whether singularly or jointly with others, its representatives, permittees, employees, contractors or subcontractors, whether or not such acts or omissions were authorized or contemplated by this Ordinance or applicable law, including but not limited to the construction, installation, maintenance, alteration or modification of the fiber optic cable in the Conduit; arising from actual or alleged injury to persons or property, including the 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, finin 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, hen, 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 mdenmrtee 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 7 10. Service of Notice. Except as otherwise specifically provided herein, any notice required or permitted to be given under this Ordinance shall be deemed sufficient if provided in writing and when (1) delivered personally to the following addressee(s), or deposited with the United States Postal Service, postage paid, certified or registered mail, (2) sent by overnight or commercial air courier; or (3) sent by facsimile transmission addressed as follows, or to such other address as the receiving party hereafter shall specify in writing Notices to the City shall be addressed to each of the following. City of Yakima Information Systems Attention Rick Pettyjohn, 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 P 0 Box 2965 Yakima, WA 98907 Facsimile Number (509) 457-5008 Noel Communications, Inc Attention Toni Thomas 901 E Pitcher Street P 0 Box 2965 Yakima, WA 98907 Facsimile Number. (509) 457-5008 When notice to Noel is sent by U S Mail, Noel's P 0 Box 2965 number shall be used rather than Noel's street address. 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 8 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 1'awful code or resolution of the City regarding permits, fees to be paid or manner of installation or construction. 12. Taxes. Noel will be responsible for and pay all taxes related to or arising from the placement and operation of its fiber optic cable in the Conduit. 13 Governing Law and Venue. This Ordinance shall be governed by and construed in accordance with the laws of the State of Washington, and venue for any litigation arising out of or in connection with privileges extended herein is stipulated to be m 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 9 17 Ordinance Acceptance. Noel shall execute and return to the City, within sixty (60) days after the date of passage of the Ordinance by the Yakima City Council, two (2) original Agreements, by which Noel acknowledges that it has carefully read the terms and conditions of the Ordinance and accepts all of the terms and conditions of this Ordinance and agrees to abide by the same The executed Ordinance shall be returned to the City as required in Section 10 of this Ordinance, and evidence of insurance shall be returned to the City as required in Sections 8 and 10 of this Ordinance In the event Noel fails to submit an Ordinance as provided for herein, or fails to provide the required accompanying documents, this Ordinance shall be null and void 18. Previous Ordinance(s) in Effect. This Ordinance does not supersede or amend other Ordmance(s) or Yakima Municipal Code provisions of the City, including but not limited to City of Yakima Ordinance No 2001-20, 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 2001-20 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 (unlight) 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 a 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 m 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 10 (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, (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 11 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. PASSED BY THE CITY COUNCIL, signed and approved this 10th day of June, 2008 CITY OF YAKIMA NOEL COMMUNICATIO ,,aW%'5 %i 5chul+er avi`rdler, Mayor Its Op 5 Mg r Attest City Clerk Ordinance No Publication Date 2008-32 June 13, 2008 Effective Date: July 13, 2008 12 State of Washington County of ,4,k//-7/3 )ss I hereby certify that I know or have satisfactory evidence that , An6 5 o�CC//2/G 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 thet,Dz,p t/J /�,g, 6-,e 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 /7 77/day of June, 200( Print /)7,9x7—i-/,9 .Cf�"94/ OTARY PUBLIC in and for the State of ashington, esiding at My commission expires 13 1106 CONTRACTS Contract Title Ordinance 2008-32 Contracting Party Noel Communications Purpose Lease access to conduit under Yakima Avenue for Noel Communications to install, operate and maintain their fiber optic cable. Originating Division Legal Staff Liaison Helen Harvey Amendments Effective Date 07/13/2008 Eff. Date Explanation Expiration Date 07/12/2018 Exp. Date Explanation Dollar Amount Dollar Amt Explanation Contract ID 2008-086 Resolution ID Insurance (yes/no) Insurance Expires Insurance Name File Location No. Archive Info Comments ORDINANCE 2008-32 • oel Communications Inc: Fiber Optic & Microwave Network June 5t, 2008 Rick Pettyjohn Information Systems Manager City of Yakima 129 N. Second Street Yakima, WA 98901 Mr. Pettyjohn, This letter is to provide you information regarding the valuation of the services that Noel Communications, Inc. will be providing to the City of Yakima pursuant to the proposed Ordinance agreement. Noel Communications will be providing 50Mbps (Mega Bit Per Second) of DIA (Direct Internet Access) to the City and in return the City will grant Noel Communications access to the conduit system running from 9th Street to 7th Ave in the City of Yakima. Following is the breakdown of the charges that Noel Communications would charge for service to a Wholesale customer. 50Mbps @ $40 MRC (Monthly recurring charges) per Meg Transport @ $1,250 MRC Total MRC is $3,250 Total per Year $39,000 per year Total over the 10Year Term $390,000 Please feel free to contact me if you have any questions. Gabrielle Springer Network Manager, Customer Relations Noel Communications, Inc. 901 E. Pitcher St. Yakima, WA 98901 901 East Pitcher Street * Yakima, Washington 98901 * (509) 575-4780 * Fax (509) 457-5008 • ad Communications Inc: Fiber Optic & Microwave Network Services What We Offer Noel Communications, Inc. provides long-haul, point-to-point telecommunication circuits for commercial businesses, telecom and wireless carriers, Internet service providers, state and local govemments, hospitals, libraries and schools Additionally, Noel Communications offers T-1 and larger connections to the Internet with BGP, which allows us to switch between our available connections without any downtime for our clients Noel Communications digital fiber optic and microwave services, including DS -1 (T-1), DS -3 (T-3), Ethernet, and OC -N products Noel Communications system provides service to and from Seattle, Everett, Mt Vernon, Wenatchee, Ellensburg, Yakima, Sunnyside, Tri -Cities, Walla Walla, Pullman, Spokane, Washington, as well as, Boise, Lewiston and Coeur d"Alene, Idaho, Vancouver BC and Portland Oregon. Additionally, service in other locations may be available according to customer needs on Noel Communications owned or leased fiber Noel Communications has an optical Unidirectional Path Switched Ring (UPSR) that allows the customer to transmit digital content via a fiber infrastructure that runs throughout our network. This circular system ensures that the customer will have a redundant backup in the rare instance of a segment failure Noel Communications Partners Noel Communications partners with national telecom carriers to provide customers with service across the country, which is a great competitive solution for those looking to expand nationwide Noel Communications also provides services to these same carriers. ingDh sjon r>f The Noe/ Cotpr)rat rrn • bel CommunicationsInc: Fiber Optic & Microwave Network Quality and Reliability Noel Communications circuits allow customers to transmit voice, data, fax, and video All transmissions are digital, ensuring the highest quality and reliability In addition, Noel Communications provides a high level service for all customers and offers an experienced staff of professionals who are available 24 hours a day Service Terms All services provided by Noel Communications based on contract lengths of one, three or five years. The customer's specific needs are taken into consideration when establishing the terms and conditions that fit the customer's profile Going the Last mile for You Noel Communications has considerable experience and knowledge in making local connections to our long-haul, point-to-point circuits Often, Noel Communications will manage the customer's entire circuit by interfacing with the local telephone companies. We are willing to step back, however, if the customer would prefer to handle the local connections -by other means, such as 'last mile' microwave or 'last mile' fiber connections Quality Service Noel Communications provides 100% digital service There is no clearer way to transmit information That is why some of America's most prominent long distance and cellular networks rely on Noel Communications What's in it for you? :If you have dispersed operations around the Northwest (or the nation) and transfer large amount of data, video, voice or digital images, you can gain cost savings and critical competitive advantages from our 100% all-digital private networking service Division of The Wel !'at por at. on • 'oel Communications Inc: Fiber Optic & Microwave Network Monitoring Noel Communications maintains an aggressive monitoring system (24 Hours a day, 365 days a year) to ensure high quality links for our customers With this monitoring system, Noel Communications can locate and correct any possible problems long before customers are aware Maintenance -Noel Communications technicians, with an average 15 years of field - engineering experience, are equipped with the latest in test and monitoring equipment to ensure prompt and accurate repairs Remote site access is achieved year-round with 4x4 vehicles, snowmobiles, snow -cat, helicopter and company plane Reliability Noel Communications sites utilize commercial power In case of a commercial power outage, all sites are equipped with automatic emergency generators which are positioned at strategic locations along the system. -Toll Free 800 800 5347 :Fax: 509 457 5008 901E Pitcher Street Yakima, Washington 98901 -or -PO Box 2965 Yakima, Washington 98907 ni.Division gine Noel Corporation • • /moel Inc" Fiber Optic & Microwave Network 80O 80Q•5347 , • New Products Noel Communications Inc. has upgraded to a state-of-the-art system! The Cisco® ONS 15454 Multiservice Transport Platform (MSTP) is the industry benchmark for dense wavelength -division multiplexing (DWDM) solutions, offering a comprehensive approach for designing, provisioning, and maintaining an optical network with the help of the Cisco MetroPlanner network design tool and the complete flexibility of reconfigurable optical add/drop multiplexer (ROADM) technology • Bandwidth can be turned up on demand without the need for accurate, long-term forecasts. • More intelligence, automated discovery, automated signaling, and power conditioning functions are used in a ROADM network. • Circuit provisioning and activation time is significantly faster in a ROADM network. • Maintenance and network care are improved. • There is a more efficient deployment of line cards due to any -to -any connectivity • Bandwidth can be deployed much more quickly than with fixed DWDM technology • With a ROADM network, technicians are only needed at origin and destination points to install line cards all other provisioning is automatic. In the fixed system, more experienced engineers are needed at each intermediate site (multiple truck rolls) to install wavelength add/drop multiplexers to prepare for uncertain future demand and to manually readjust tuning for power and signal variants resulting from configuration changes. • Adding additional wavelength channels in Fixed OADM networks is intrusive and service -affecting, and therefore must be done during scheduled maintenance windows. NTP -A334 Bridge and Roll Traffic Purpose This procedure reroutes live traffic without interrupting service. You can use the Bridge and Roll wizard for maintenance functions such as card replacement or load balancing. A circuit consists of a source facility, destination facility(s), and intermediate facilities (path). Tools/Equipment None Prerequisite Procedures • Circuits must exist on the network. See Chapter 6, "Create Circuits and VT Tunnels" for circuit creation procedures. • To route circuits on protected ports, you must create a protection group using the "DLP -A73 Create a 1+1 Protection Group" task on page 17-83 or the "A126 Create a BLSR' procedure. When a roll involves two circuits, a data communications channel (DCC) connection must exist. See the "DLP -A377 Provision Section DCC Terminations' task on page 20-69. • Use the "A329 Locate and View Circuits" procedure to verify that the planned Roll To paths are in service. Verify that the planned Roll To and Roll From paths are not in the Roll Pending status, used in test access, or used in a Ioopback. Refer to the Cisco ONS 15454 Troubleshooting Guide to clear any alarms. Required/As Needed As needed Onsite/Remote Onsite or remote Security Level Provisioning and higher Note: Using the bridge and roll feature, you can upgrade an unprotected circuit to a fully protected circuit or downgrade a fully protected circuit to an unprotected circuit. Caution: Performing bridge and roll on an STS192C might cause a traffic hit up to and including 50 ms. • • • STATE OF WASHINGTON DEPARTMENT OF INFORMATION SERVICES Olympia, Washington 98504-2445 December 5, 2007 Noel Communications Attn: Diane Bennett P 0 Box 2965 Yakima, WA 98907 (425) 576-9490 Dear Ms. Bennett: The Department of Information Services (DIS) has completed the evaluation of vendor responses to the Request for Quotations and Qualifications (RFQQ) for Secondary Transport Ethernet Services (RFQQ Number T08-RFQQ-009). We are pleased to inform you that Noel Communications was selected as an Apparently Successful Vendor. DIS appreciates your firm's interest and participation in this RFQQ. Within the next few weeks a member of the DIS Contracts Staff will contact your firm to finalize the Contract. If you have any questions about this process that requires immediate attention, you may contact me at (360) 902-3492. In the event that Noel Communications is interested in an optional debriefing conference, please contact me to schedule a debriefing as soon as possible. The request must be made in writing and may be submitted via facsimile to 360 (586-1414) or via email to abrahamr@dis.wa.gov DIS will schedule debriefing sessions on December 11-12, 2007 When requesting a debriefing, please provide at least two time preferences. The rules governing the scope of the debriefing conferences are covered in Section 2.27 of the RFQQ. Sincerely, dZ_ Abraham L. Rocha Contracts Manager & Attorney Office of Legal Services Management Services Division • • • Vancouver Belling) am .Bo%rafis Qlone,y Bremerto Y + Seattle Sp""okane Coeur d.'Alei e.. nr �.;dAlene 0liYan � esexJetlut ` Pullman . ongview Sunnyside Kennewick Walla. Walla Portland MINN = IN IIINI 0 14 28 42 56 70 mi • • BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No 1` 2-5- For 5 For Meeting Of June 10, 2008 ITEM TITLE 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 SUBMITTED BY Chris Waarvick, Director of Public Works, 575-6005 Rick Pettyjohn, Information Systems Manager, 575-6098 CONTACT PERSON/TELEPHONE Chris Waarvick, 575-6005 and Rick Pettyjohn, 575-6098 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 conduit within 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, Washington, in exchange for consideration as described in the Ordinance The consideration for the grant of the lease in the leased conduit consists of an exchange of services The exchange of services shall remain in effect for the term of the agreement. The City shall provide Noel access to and space in the leased conduit, and Noel will install, operate and maintain Noel's fiber optic cable in the conduit. Noel shall provide 50Mb (Megabits per second) of DIA (Direct Internet Access) to the City The DIA delivery location will be specified in the Ordinance The initial 10 -year term value of DIA service is valued at $39,000 a year, or a total of $390,000 The term authorized by the Ordinance is for a period of ten (10) years, subject to an option to extend for ten (10) additional years if the City and Noel can reach a mutually satisfactory agreement on the value of the services for the additional ten-year (10) period Resolution Ordinance X Other (Specify) Contract Mail to (name and address) Funding Source Phone APPROVED FOR SUBMITTAL. --'j- City Manager STAFF RECOMMENDATION Pass Ordinance BOARD/COMMISSION/COMMITTEE RECOMMENDATION COUNCIL ACTION C OI Y LEGAL DEPARTMENT 200 Smith Third Street, Yakima, Washington 98901 (509)575-6030 Fax (509)575-6160 PRIVILEGED AND CONFIDENTIAL COVERED BY THE ATTORNEY-CLIENT AND ATTORNEY WORK PRODUCT PRIVILEGES MEMORANDUM June 20, 2008 TO: Linda Watkins, Deputy City Clerk FROM: Helen A. Harvey,Senior Assistant City Attorney SUBJ: Ordinance No. 2008-32 re Noel Communications, Inc. — Noel's Fiber Optic Cable in the City's Conduit Attached are the two signed originals of Ordinance No. 2008-32 signed by Mayor David Edler on behalf of the City of Yakima, and by James A. Schuler on behalf of Noel Communications, Inc. for the Clerk's Office file. The third signed original was retained by Noel Communications. The Ordinance was passed by the City Council on June 10, 2008, and signed by Noel Communications on June 17, 2008. The effective date of this Ordinance is July 13, 2008, as stated on page 12. Please calendar the date for the expiration of the ten-year term, which is July 13, 2018. Paragraph 7 of the Ordinance entitled "Term," provides in part: "The ten-year term authorized by the Ordinance is subject to an option to extend for ten additional years if the City and Noel can reach a mutually satisfactory agreement on the value of the services for the additional ten- year period." Such an extension would need to be negotiated and agreed upon prior to the expiration date. Also attached is the Certificate of Liability Insurance adding the City and its employees as additional insureds on Noel's insurance policy for the period of 7/1/2008 to 7/1/2009. Randy and/or Rick will need to obtain a similar Certificate for each subsequent one-year insurance policy period. Thank you for your assistance. HAH/tr Enclosures cc w/ enclosures: Rick Pettyjohn, Information Systems Manager Randy Beehler, Community Relations Manager Ray Yocum, Network Services Engineer Chris Waarvick, Director of Public Works Joel Pearson, Wells Fargo Insurance Services ACORD r. CERTIFICATE OF LIABILITY INSURANCE 6/13/20 8 ' PRODUCER (509) 248-2672 FAX: (866) 332-7487 Argus Insurance Inc . 415 N 2nd Street (98901) PO Box 2945 Yakima WA 98907 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE NAIC # INSURED The Noel Corporation PO BOX 111 Yakima WA 98907-0111 INSURER A: Unigard Insurance Co 025747 INSURER B: GENERAL INSURER C: CM009446 INSURER D: 7/1/2009 INSURER E: $ 1,000,000 THE POLICIES OF INSURANCE LISTED BELOW REQUIREMENT, TERM OR CONDITION OF ANY THE INSURANCE AFFORDED BY THE POLICIES AGGREGATE LIMITS SHOWN MAY HAVE BEEN HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. REDUCED BY PAID CLAIMS. R LTR ADD'L) TYPE OF INSURANCE (NS POLICY NUMBER POI DATE (MM/DD/YY) POLICY (MDD/YY)N M/ LIMITS A GENERAL LIABILITY COMMERCIAL GENERAL LIABILITY CM009446 7/1/2008 7/1/2009 EACH OCCURRENCE $ 1,000,000 X DAMAGE O(Ea occuErrrence) $ 100,000 CLAIMS MADE X OCCUR MEDEXP(Anyoneperson) $ 5,000 PERSONAL & ADV INJURY $ 1,000,000 GENERAL AGGREGATE $ 2,000,000 GGEEN'L AGGREGATE LIMIT APPLIES PER: POLICY 17 JECOT P1 LOC PRODUCTS - COMP/OP AGG $ 2,000,000 TIC A_ AUTOMOBILE LIABILITY ANY AUTO ALL OWNEDAUTOS SCHEDULED AUTOS HIRED AUTOS NON -OWNED AUTOS 61 CM009446 7/1/2008 7/1/2009 COMBINED SINGLE LIMIT (Ea accident) $ 1,000,000 X BODILY INJURY (Per person) $ — BODILY INJURY (Per accident) $ — X PROPERTY DAMAGE (Per accident) $ GARAGE LIABILITY ANY AUTO AUTO ONLY - EA ACCIDENT $ OTHER THAN EA ACC $ AUTO ONLY: AGG $ EXCESS/UMBRELLA LIABILITY FACH OCCURRENCE $ 4,000,000 )71 OCCUR CLAIMS MADE AGGREGATE $ A _JDEDUCTIBLE CU011024 7/1/2008 7/1/2009 $ X RETENTION $ 10, 000 $ A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE OFFICER/MEMBER EXCLUDED? If yes, describe under SPECIAL PROVISIONS below CM09446 STOP GAP 7/1/2008 7/1/2009 }[ WCSTATU- OTH- TORY LIMITS ER E.L. EACH ACCIDENT $ 1,000,000 E.L. DISEASE - EA EMPLOYEE $ 1,000,000 E.L. DISEASE - POLICY LIMIT $ 1,000,000 OTHER DESCRIPTION OF OPERATIONS/LOCATIONSNEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT/SPECIAL PROVISIONS The City of Yakima, its elected and appointed officials, officers, agents and employees as additional insureds. Coverage is on a per job aggregate per policy. CERTIFICATE HOLDER CANCELLATION City of Yakima 200 S 3rd St Yakima, WA 98901-2830 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 30 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILITY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES. AUTHORIZED REPRESENTATIVE D Hargreaves CIC, CRM ACORD 25 (2001/08) 1NS025 (0108).08a © ACORD CORPORATION 1988 Page 1 of 2 IMPORTANT If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). DISCLAIMER The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded by the policies listed thereon. ale iSY�l�Npq �zw ..006 CITY LEGAL ©EPt ACORD 25 (2001/08) INS025 (0108) 08a Page 2 of 2 ADDITIONAL NAMED INSUREDS NAME (First Named & Other Named Insureds) Avenir Developments LLC Central Music & Vending of Kennewick Central Music & Vending of Yakima Justin Noel Noel Canning A Division of The Noel Corp Noel Communications, Inc. Noel Investment Inc A Division of The Noel Corp Noel Properties, LLC Noel Transportation A Division of The Noel Corp Noel Warehouse A Division of The Noel Corp Pepsi Cola Bottling Co of Pasco Inc Pepsi Cola Bottling Co of The Dalles Inc Pepsi Cola Bottling Co of Walla Walla Inc Pepsi Cola Bottling Co of Yakima Inc Rodger Noel Southgate Shopping Center LLC Teresa Noel Valley Advertising A Division of The Noel Corp Insured Multiple Names Insured Multiple Names Insured Multiple Names Individual Insured Multiple Names Insured Multiple Names Insured Multiple Names Insured Multiple Names Insured Multiple Names Insured Multiple Names Insured Multiple Names Insured Multiple Names Insured Multiple Names Insured Multiple Names Individual Insured Multiple Names Individual Insured Multiple Names RECEIVED ;UN 1. 6 2008 CITY LEGAL DEPT. OFAPPINF COPYRIGHT 2000, AMS SERVICES INC