HomeMy WebLinkAbout05/01/2012 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
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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.
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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
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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.
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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.
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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,
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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
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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
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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;
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(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.
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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:
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