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05/01/2012 04F Charter Cable Agreement re: Contact with Yakima Valley Trolley System Hardware Ftli7 1 77 BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. For Meeting of: May 1, 2012 ITEM TITLE: Resolution authorizing the City Manager to execute an agreement allowing Charter Cable to contact Yakima Valley Trolley system hardware. SUBMITTED BY: Joan Davenport, Acting Director Community & Economic Development CONTACT Douglas Mayo, PE, City Engineer, 576 -6678 PERSON /TELEPHONE: SUMMARY EXPLANATION: In August, 2010, Charter Cable Company approached staff regarding their company contacting YVT poles and system hardware that are owned by the City of Yakima. While the City has a franchise agreement with Charter, the franchise does not address contacting the YVT system hardware within Yakima city limits. The City Attorney and staff have worked with Charter representatives to develop the attached agreement addressing compensation, contact methods, types of and amounts of insurance, etcetera. Resolution X Ordinance Other (specify) Contract: Mail to: Contract Term: Amount: Expiration Date: Insurance Required? No Funding Source: Phone: APPROVED FOR City Manager SUBMITTAL: STAFF RECOMMENDATION: Authorize the City Manager to execute the agreement. BOARD /COMMISSION RECOMMENDATION: ATTACHMENTS: Click to download ❑ Resolution C Agreement (Proposed) RESOLUTION NO. 2012 - A RESOLUTION authorizing the City Manager to execute an agreement between the City of Yakima and Charter Cable (Charter) allowing Charter to contact Yakima Valley Trolley (YVT) system hardware within the city limits of Yakima. WHEREAS, the City has determined that it is desirable to work with this Utility for providing cable services to residents and businesses of Yakima; and, WHEREAS, the City and Charter recognize that allowing contact to the City's YVT system eliminates redundant utility poles and other sight clutter /pollution; and, WHEREAS, the City is being compensated annually by Charter for contacts to the YVT system; and, WHEREAS, upon approval the agreement will be listed on the City's website in accord with RCW 39.34.040; and, WHEREAS, the City Council deems it to be in the best interests of the City to enter into this agreement with Charter for the purpose of allowing Charter contact on the YVT pole system while providing residential and business services via cable lines; Now Therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized to execute an agreement with Charter Cable for the purpose of contacting existing YVT system hardware to facilitate providing residential and business cable services to residents and businesses in the City. ADOPTED BY THE CITY COUNCIL this 1 day of May, 2012. Micah Cawley, Mayor ATTEST: Sony Claar -Tee, City Clerk City of Yakima Charter Cable Connections to YVT Facilities Effective _ Table of Contents SECTION 1. DEFINITIONS. 2 1.1 City 2 1.2 Contact Fee 2 1.3 Facility 2 1.4 YVT 2 SECTION 2. AGREEMENT. 3 2.1 Agreement. 3 2.2 Agreement Term 3 2.3 Agreement Area 3 2.4 Agreement Renewal or New Agreement 3 2.5 Transfer of Ownership 3 2.6 Expiration. 4 2.7 Other Codes or Ordinances 4 SECTION 3. OPERATION ON YVT FACITLITES 5 3.1 Use of YVT Facilities. 5 3.2 Construction or Alteration. 6 3.3 Restoration. 6 3.4 Relocation. 7 SECTION 4. COMPENSATION AND FINANCIAL PROVISIONS.... 8 4.1 Contact Application & Agreement Fees 8 4.2 Indemnification by Charter ....8 4.3 Charter Insurance 9 4.4 Separability 10 4.5 Effective Date 11 4.6 Jurisdiction and Venue .11 page 1 DWT 19117570v1 0108600 - 000028 AN AGREEMENT granting permission to Falcon Video Communications, L.P., d/b /a Charter Communications (Charter) to contact Yakima Valley Trolleys (YVT) facilities in the City of Yakima upon the following express terms and conditions except as otherwise provided by this Agreement. SECTION 1., DEFINITIONS. For the purposes of this Agreement 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. 1.1 "City" shall mean City of Yakima of the State of Washington and all the incorporated territory within its present and future boundaries. 1.2 "Contact Fee" shall mean the annual dollar amount assessed by the City to Charter , in consideration of Charter 's right to contact to and operate on YVT's facilities. 1.3 "Facility" shall mean all YVT buildings, poles and appurtenances existing as such within all incorporated areas of the City. 1.4 "YVT" shall mean Yakima Valley Trolleys, a Washington Corporation, and its agents, successors and assignees. page 2 DWT 19117570v1 0108600- 000028 SECTION 2. AGREEMENT. Language in this Agreement is not intended to diminish regulations already set between the City of Yakima & Charter. 2.1 Agreement. The City agrees to authorize Charter to contact YVT facilities to install, construct, repair, replace, reconstruct, maintain, or retain in, on, over, under, upon, across or along any YVT facility, such poles, wires, cables, conductors, ducts, conduits, amplifiers, appliances, attachments, and other related property or equipment as may be necessary or appurtenant to the cable system. 2.2 Agreement Term. The term of the Agreement shall be fifteen (15) years from the date of execution, unless extended in accordance with the provisions in Sections 2.5 or 2.6 or terminated sooner in accordance with the terms of this Agreement. 2.3 Agreement Area. The Agreement Area shall be that area within the corporate limits of the City as of the time of execution of this Agreement and as may be amended from time to time during the term of this Agreement. 2.4 Agreement Renewal or New Agreement. The City may, in its sole discretion, agree to extend this Agreement beyond its initial term and in so doing may establish appropriate requirements for any new Agreement or Agreement renewal consistent with federal, state and local law. 2.5 Transfer of Ownership. This Agreement shall not be sold, leased, mortgaged, assigned or otherwise transferred, nor shall any of the rights or privileges herein granted or authorized be leased, assigned, mortgaged, sold or transferred, either in whole or in part, nor shall title hereto, either legal or equitable, or any right, interest or page 3 DWT 19117570v1 0108600- 000028 property herein, pass to or vest in any person or entity except Charter, either by act of Charter or by operation of law, without the prior written consent of the City. The granting of such prior written consent in one instance shall not eliminate the required prior written consent in another instance. Any transfer of ownership by Charter shall make the Agreement subject to revocation unless and until the City shall have given written prior consent to continue the Agreement. Upon any transfer of ownership by Charter as heretofore described, Charter 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 by Charter to be correct. Every such transfer as heretofore described, whether voluntary or involuntary, shall be deemed to void this agreement unless Charter shall within sixty (60) days after said transfer file such certified copy of the transfer with the City. 2.6 Expiration. Upon expiration of the Agreement, the Agreement shall terminate without further action; at that time the City may take such other action as the City deems appropriate with regard to requiring removal of Charter property or entering into any additional Agreement with Charter. 2.7 Other Codes or Ordinances. Nothing in this Agreement 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 to be followed. page 4 DWT 19117570v1 0108600- 000028 SECTION 3. OPERATION ON YVT FACITLITIES. 3.1 Use of YVT Facilities. Charter may, subject to the terms of this Agreement, erect, install, construct, repair, replace, reconstruct, on, under, upon, across and along the YVT facility with such lines, cables, conductors, ducts, conduits, amplifiers, appliances, attachments and other property and equipment as are necessary and appurtenant to the operation of a Cable Communications System within the City pursuant to the following: In locations where YVT tracks are located to the side of the roadway (i.e. North 6th Avenue) or in a separate right -of -way, (i.e. Selah Gap north of theNaches River), maintaining a "historic look" is important to our century -old trolley system. In these vicinities Charter's equipment must be "historic- looking" in nature in so far as contact boxes shall be black or dark brown in color, not galvanized or "new- looking ". This and other equipment such as wires, insulators, hangers, etcetera shall be utilized such that the look will not detract from the "old- look" and "historic feel" of the Historic Yakima Valley Trolley System. The final determination of what equipment will satisfy this visual requirement will be made by the City Engineer of the City of Yakima or his designee. Notwithstanding this Agreement to use the YVT Facilities, no YVT facility shall be used by Charter if the City Engineer, in his sole discretion, determines that such use is inconsistent with maintaining the historic appearance of the trolley system. Where YVT tracks are located near the center of the roadway, (i.e. South 6 Avenue or West Pine Street), Charter may propose to contact YVT poles utilizing "standard" Charter contact hardware. page 5 DWT 19117570v1 0108600- 000028 Prior to beginning any work under this Agreement Charter must first have submitted in writing their planned work, including design, materials, identified proposed attachment poles, attachment heights and shall attend a pre - construction meeting with the City Engineering Division. Charter may not begin work under this Agreement until the work plan and proposed equipment ( "historic- looking" equipment where applicable) has been approved by the City Engineer. Construction equipment and installed equipment shall not interfere with the operation of the trolleys and the trolley system. 3.2 Construction or Alteration. Prior to commencing any relative work a detailed construction plan and construction schedule, which shall be subject to City approval, shall be submitted to the City no later than 30 days prior to the commencement of construction. Charter shall in all cases comply with all City ordinances and regulations regarding the acquisition of permits and such other items as may be reasonably required in order to construct, alter or maintain the cable system as it contacts YVT Facilities. The current edition of the National Electrical Safety Code (NESC) as published by the Institute of Electrical and Electronics Engineers, (IEEE) shall be used as the construction standard. If there is a determination to be made that might be in conflict with the NESC the City Engineer reserves the right to make the final determination on acceptance of the installation. 3.3 Restoration. If Charter's actions disturb any YVT facility Charter shall, at its own sole cost and expense and in accordance with the requirements of local law, page 6 DWT 19117570v1 0108600 - 000028 restore such YVT facility to substantially the same condition as existed before the work involving, such disturbance took place. Charter shall perform all restoration work promptly. If Charter fails, neglects or refuses to make restorations as required under this Section, then the City may do such work or cause it to be done, and the cost thereof to the City shall be paid by Charter. If Charter causes any damage to private property in the process of restoring facilities, Charter shall pay the owner of the property for such damage. In any dispute over the adequacy of a restoration relative to this Section, the City of Yakima Department of Engineering shall in its sole discretion make the final determination. 3.4 Relocation. If during the term of the Agreement the City or any government entity elects or requires a third party to alter, repair, realign, abandon, improve, reroute or change the YVT Facilities; or to construct, maintain or repair any improvement to YVT Facilities; Charter shall, upon request, except as otherwise hereinafter provided and at no expense whatsoever to the City remove or relocate as necessary its poles, wires, cables, underground conduits, vaults, pedestals, utility access covers and any other facilities which it has installed. If Charter fails, neglects or refuses to remove or relocate its facilities as directed by the City; or in emergencies or where public health and safety or property is endangered, the City may do such work or cause it to be done, and the cost thereof to the City shall be page 7 DWT 19117570v1 0108600 - 000028 paid by Charter. If Charter fails, neglects or refuses to remove or relocate its facilities as directed by another franchisee or utility, that franchisee or utility may do such work or cause it to be done, and if Charter would have been liable for the cost of performing such work, the cost thereof to the party performing the work or having the work performed shall be paid by Charter. If Charter causes any damage to private or public property in the process of removing or relocating its facilities, Charter shall pay the owner of the property for such damage. SECTION 4. COMPENSATION AND FINANCIAL PROVISIONS. 4.1 Contact Application & Agreement Fees. During the term of the Agreement, for each new contact request or contact modification request, Charter shall submit plans, drawings and load calculations for the entire proposal to the City Engineer for review and approval. The cost of engineering review shall be billed to Charter at the reviewing engineer's actual hourly billing rate, together with a Thirty Dollar ($30.00) per pole contact or crossing point inspection fee. In addition to these application review and inspection fees Charter shall pay to the City an amount of Fifteen Dollars ($15.00) per year per YVT facility contact point, whether overhead or underground. Any Fees owing pursuant to this Agreement which remain unpaid more than 30 days after the date specified herein shall be delinquent and shall thereafter accrue interest at twelve (12) percent per annum or two percent (2 %) above prime lending rate as quoted by major Seattle banks, whichever is greater, until said delinquent amount plus all accrued interest shall be paid in full. 4.2 Indemnification by Charter. Charter shall, at its sole expense, fully indemnify, defend and hold harmless the City, and in their capacity as such, the elected page 8 DWT 19117570v1 0108600 - 000028 officials, officers, employees, and agents of the City, members of the Cable Advisory Committee, and Yakima Valley Trolleys, its officers and board of directors, from and against any and all claims, suits, actions, liability and judgments, including attorney fees, for damage or otherwise to the extent not arising from negligence on the part of the City or its employees, Yakima Valley Trolleys or their officers or board members, for actual or alleged injury to persons or property, including loss of use of property due to an occurrence, whether or not such property is physically damaged or destroyed, in any way arising out of or through or alleged to arise out of or through the acts or omissions of Charter or its officers, agents, employees, or contractors, and whether or not such acts or omissions were authorized or contemplated by this Agreement or applicable law; arising out of or alleged to arise out of any claim for damages for Charter's invasion of the right 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 Charter's failure to comply with the provisions of any statute, regulation or Resolution of the United States, State of Washington or any local agency applicable to Charter in 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 Charter from its duty of defense against liability or of paying any judgment entered against such party. 4.3 Charter Insurance. Charter shall maintain, throughout the term of the Agreement, liability insurance for all claims and damages specified in Section 4.3 herein, in the minimum amounts of: (a) $2,000,000 for personal injury or death to any one person; page 9 DWT 19117570v1 0108600- 000028 (b) $2,000,000 for personal injury or death resulting from any one accident, $2,000,000 for property damage resulting from any one accident, and $4,000,000 aggregate. Such certificate of insurance shall specifically name as additional insured the City of Yakima, its elected officials, officers, agents and employees. Charter's insurance carriers shall endeavor to provide thirty (30) days prior written notice of policy cancellation to Property Owner. Cancellation notice will be provided for any reason other than non- payment of premium and requires the Property Owner to provide Charter a valid contact name and e -mail address (with any changes to the contact name or e -mail address being the responsibility of the Property Owner). Charter shall file with the City copies of all certificates of insurance showing up -to -date coverages, and additional insured coverages, as set forth above. Failure to maintain required insurance may be considered cause for the City to revoke the Franchise. If it is determined by the City's Risk Manager that circumstances require and that it is reasonable and necessary to increase insurance coverage and liability limits to adequately cover the risks of the City, Charter, and Charter officers, agents and employees, the City may require additional insurance to be acquired by Charter. The City will provide Charter written notice should the City exercise their right to require additional insurance. 4.4 Separability. If any portion of this Agreement shall be declared by a court of competent jurisdiction to be void or unenforceable, then the City and Charter shall negotiate in good faith to modify the Agreement as may be necessary for the offending portion hereof to meet the requirements of the law. All other provisions shall remain and continue in full effect. page 10 DWT 19117570v1 0108600 - 000028 43 Effective Date. This Agreement shall be effective upon final execution of this agreement by both parties. 4.6 Jurisdiction and Venue. This Agreement shall be construed in accordance with the laws of the state of Washington. The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of Washington for Yakima County, Washington. CITY OF YAKIMA CHARTER COMMUNICATIONS, INC. By: B Michael A. Morales, Interim City Manager ,President Date: Date: ATTEST: ATTEST: City Clerk Secretary City Contract No._ Date: page 11 DWT 19117570v1 0108600- 000028