HomeMy WebLinkAbout12/08/2015 05H Telecommunications System Franchise with Noel Communications, Inc.BUSINESS OF THE CITY COUNCIL
YAKIMA, WASHINGTON
AGENDA STATEMENT
Item No. 5. H.
For Meeting of. December 8, 2015
ITEM TITLE: Ordinance granting a non - exclusive franchise to Noel
Communications, Inc., a Washington corporation, which authorizes
Noel Communications, Inc. to occupy City of Yakima rights -of -way in
order to construct, operate, and maintain a telecommunications system
SUBMITTED BY: Randy Beehler, Communications & Public Affairs Director
SUMMARY EXPLANATION:
In 2001, the City granted a telecommunications system franchise to Northwest Microwave, Inc., which today
does business as Noel Communications, Inc. The 2001 franchise granted to Northwest Microwave, Inc. has
expired. The City Council is being asked to consider granting a telecommunications system franchise to Noel
Communications, Inc., said franchise being nearly identical to that previously granted to Northwest
Microwave, Inc. excluding the update of language due to a change in law or other applicable circumstance.
The City receives a 6% utility tax from telecommunications system franchise holders.
Resolution:
Other (Specify):
Contract: X
Start Date:
Item Budgeted: NA
Funding Source/Fiscal Impact:
Strategic Priority:
Insurance Required? No
Mail to:
Phone:
Ordinance: X
Contract Term: 10 years
End Date:
Amount:
N/A
Economic Development
APPROVED FOR
SUBMITTAL: City Manager
RECOMMENDATION:
The Communications & Public Affairs Director has prepared and reviewed the franchise. The City Council is
being asked to consider and recommend its approval.
ATTACHMENTS:
Description
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Upload Date
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Type
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CITY OF YAKIMA
Telecommunications System
Franchise Ordinance and
Franchise with
Noel Communications, Inc.
No. 2015-
2015
1.14
TABLE OF CONTENTS
1.15
" Person" .............................................................. ............................... 3
1.16
Page
SECTION 1
DEFINITIONS
1.18
1.1(A)
Captions .............................................................. ..............................1
"Telecommunications Services" ...................... ..............................3
1.1(B)
Definitions .......................................................... ..............................1
1.21
1.2
" City" .................................................................... ..............................1
"Year ", "Annual" or "Annually " 4
..................... ...............................
1.3
"City Council" .................................................... ..............................1
2.1
1.4
"Customer" ......................................................... ..............................1
Franchise Term ................................................... ..............................4
1.5
" Days" .................................................................. ..............................1
2.4
1.6
" Facility( ies).. ..................................................... ...............................
2
1.7
" FCC" ................................................................... ...............................
2
1.8
"Franchise" ......................................................... ...............................
2
1.9
"Franchise Service Area" .................................. ..............................2
1.10
"Grantee" ............................................................ ...............................
2
1.11
"Gross Operating Revenues" ........................... ..............................2
1.12
"Network Telephone Service" ......................... ..............................2
1.13
"Permittee" ......................................................... ...............................
2
1.14
"Permitting Authority ...................................... ............................... 2
1.15
" Person" .............................................................. ............................... 3
1.16
"Penalties" .......................................................... ............................... 3
1.17
"Right -of -Way" or " Rights -of- Way" ............... ............................... 3
1.18
"Street" or " Streets" ............................................ ..............................3
1.19
"Telecommunications Services" ...................... ..............................3
1.20
"Telecommunications System" ....................... ..............................4
1.21
"WUTC" .............................................................. ............................... 4
1.22
"Year ", "Annual" or "Annually " 4
..................... ...............................
SECTION 2
FRANCHISE
2.1
Grant of Franchise ............................................ ............................... 4
2.2
Franchise Term ................................................... ..............................4
2.3
Franchise Non - Exclusive .................................. ..............................4
2.4
Authority Granted ............................................. ..............................5
2.5
Limits on Permission ........................................ ..............................6
2.6
Franchise Service Area .................................... ............................... 6
2.7
Periodic Public Review of Franchise ............ ............................... 6
2.8
Franchise Renewal or New Franchise ........... ............................... 7
2.9
Renegotiation .................................................... ............................... 7
2.10
Revocation ......................................................... ...............................
7
2.11
Receivership ...................................................... ...............................
8
2.12
Expiration ........................................................... ...............................
9
2.13
Transfer of Ownership .................................... ...............................
9
2.14
Change in Control ............................................. .............................10
2.15
No Stock to be Issued ....................................... .............................10
2.16
Other Codes and Ordinances .......................... .............................11
2.17
Survival of Terms .............................................. .............................11
SECTION 3
3.1
3.2
3.3
3.4
3.5
ENFORCEMENT AND ADMINISTRATION BY CITY
City Jurisdiction and Supervision .................. .............................11
Grantee to Have No Recourse ......................... .............................12
Acceptance of Power and Authority of City . .............................11
Acts Discretionary, Reservation of Authority ...........................12
Delegation of Authority to Regulate ............. .............................12
SECTION 4 OPERATION IN STREETS AND RIGHTS -OF -WAY
4.1
Use of Streets ...................................................... .............................12
4.2
21
Construction or Alteration ............................... .............................12
21
Complaints......................................................... .............................21
4.2.1
Permits ................................................................ .............................12
22
7.2
4.2.2
Schedule and Maps ........................................... .............................12
22
7.3
4.2.3
Good Engineering ............................................. .............................13
23
4.3
Facilities Placement .......................................... .............................13
23
7.5
4.3.1
General Standards ............................................. .............................13
24
4.3.2
Limited Access ................................................... .............................13
4.3.3
Consistency with Designated Use .................. .............................13
25
4.3.4
Non - Interference ............................................... .............................13
4.3.5
Undergrounding ................................................ .............................14
26
4.4
Coordination with Other Users ...................... .............................14
26
4.5
Relocation ........................................................... .............................15
4.6
Movement of Buildings ................................... .............................16
4.7
Tree Trimming ................................................... .............................16
4.8
Restoration .......................................................... .............................16
4.9
City Right to Require Removal of Property . .............................17
4.10
Emergency Repairs ............................................ .............................18
4.11
City Right of Inspection ................................... .............................18
4.12
After - Acquired Facilities ................................. .............................19
4.13
Information ......................................................... .............................19
SECTION 5
5.1
5.1.1
5.1.2
5.2
5.3
SECTION 6
6.1
6.2
6.3
6.4
6.5
6.6
SYSTEM DESIGN AND STANDARDS
Initial Telecommunications System Construction ................... 20
Construction Schedule ................................... ............................... 20
Construction Timeline .................................... ............................... 20
Technical Standards .......................................... .............................20
Performance Testing ......................................... .............................20
CUSTOMER SERVICE POLICIES
City Reservation of Rights ............................... .............................20
Response to Customers .................................... .............................20
City Franchise Contact Identified ................ ...............................
21
Notice of Change in Services .......................... .............................21
21
Complaints......................................................... .............................21
7.1.2
Regulation of Rates and Charges ................... .............................21
22
SECTION 7 COMPENSATION AND FINANCIAL PROVISIONS
7.1
Taxes and Fees ................................................... .............................21
7.1.1
City Occupation Tax on Utilities .................. ...............................
21
7.1.2
Other Fees ......................................................... ...............................
22
7.2
Payments ........................................................... ...............................
22
7.3
Financial Records ............................................ ...............................
23
7.4
Auditing ............................................................ ...............................
23
7.5
Insurance ........................................................... ...............................
24
7.5.1
Coverages ............................................................ .............................24
7.5.2
Proof of Insurance ........................................... ...............................
25
7.5.3
Alteration of Insurance ..................................... .............................25
7.5.4
Failure to Procure ............................................ ...............................
26
7.6
Performance Bond ........................................... ...............................
26
7.7 Indemnity, No Estoppel, No Duty ............... ............................... 26
11
SECTION 8 REPORTING REOUIREMENTS
8.1
Monthly Reports ................................................ .............................27
31
8.2
Annual Reports .................................................. .............................28
8.3
Monitoring and Compliance Reports .......... ...............................
28
8.4
Additional Reports ............................................ .............................28
32
8.5
Communication with Regulatory Agencies ..............................
29
8.6
Preservation of Confidential Information .... .............................29
30
SECTION 9 REMEDIES AND PROCEDURE FOR REMEDYING
SECTION 10 MISCELLANEOUS PROVISIONS
10.1
FRANCHISE VIOLATIONS
31
9.1
Remedies for Franchise Violations ................ .............................29
9.2
Procedure for Remedying Franchise Violations .......................30
9.2.1
Notice of Violation ............................................ .............................30
32
9.2.2
NWM's Right to Cure or Respond ................ ...............................
30
9.2.3
Public Hearing ................................................. ...............................
30
9.3
Enforcement ...................................................... ...............................
30
9.4
Failure to Enforce .............................................. .............................30
9.5
Acts of Nature .................................................... .............................30
9.6
Alternative Remedies ....................................... .............................31
SECTION 10 MISCELLANEOUS PROVISIONS
10.1
Posting and Publication ................................. ...............................
31
10.2
Service of Notice ................................................ .............................31
10.3
Compliance with Laws ..................................... .............................32
10.4
Governing Law and Venue ............................ ...............................
32
10.5
Severability ....................................................... ...............................
32
10.6
Guarantee of Performance ............................. ...............................
32
10.7
Force Majeure ..................................................... .............................32
10.8
City Right of Intervention ............................... .............................33
10.9
Consent ................................................................ .............................33
10.10
No Third Party Beneficiaries ........................... .............................33
10.11
Franchise Ordinance Acceptance ................... .............................33
10.12
Previous Rights Abandoned ........................... .............................33
10.13
Effective Date ..................................................... .............................33
iii
ORDINANCE NO. 2015 -
AN ORDINANCE granting a non - exclusive franchise to Noel Communications, Inc.
( "NOEL ") to construct, operate and maintain a Telecommunications
System, with all necessary facilities, within the City of Yakima,
Washington (the "City "); setting forth provisions, terms and conditions
accompanying the grant of this Franchise; providing for City regulation
of construction, operation, maintenance and use of the
Telecommunications System; prescribing penalties for the violations of
its provisions; and setting an effective date.
BE IT ORDAINED BY THE CITY OF YAKIMA that a franchise is hereby granted to
Noel Communications, Inc., to operate and maintain a Telecommunications System in the
City of Yakima, Washington, upon the following express terms and conditions:
SECTION 1 - DEFINITIONS
1.1 (A) Captions. Throughout this Franchise, captions to sections are intended solely
to facilitate reading and to reference the sections and provisions of this Franchise. The
captions shall not affect the meaning and interpretation of this Franchise.
1.1 (B) Definitions. For the purposes of this Franchise the following terms, phrases,
words and their derivations shall have the meaning given herein. When not inconsistent with
the context, words used in the present tense include the future, words in the plural number
include the singular number, words in the singular number include the plural number and the
use of any gender shall be applicable to all genders whenever the sense requires. The words
"shall" and "will" are mandatory and the word "may" is permissive. Where a term in this
Franchise is not defined in this Section and there exists a definition for the term in the
Telecommunications Act of 1996, Pub. Law No. 104 -104, 110 Stat. 56 (1996) (the
"Telecommunications Act "), the Telecommunications Act definition shall apply. Other terms
in this Franchise that are not defined in this Section shall be given their common or ordinary
meaning.
1.2 "City" shall mean City of Yakima, Washington, and all the incorporated
territory within as of the effective date of this Franchise and any other areas later added
thereto by annexation or other means.
1.3 "City Council" shall mean the City Council of the City of Yakima,
Washington.
1.4 "Customer" means any person(s) who legally receives any one or more of the
services provided by NOEL utilizing the Telecommunications System.
1.5 "Days" shall mean calendar days.
1
1.6 "Facility(ies)" means all wires, lines, cables, conduits, equipment and
supporting structures, and /or any other tangible component of NOEL's Telecommunications
System, located in the City's rights -of -way, utilized by NOEL in the operation of activities
authorized by this Franchise. The abandonment by NOEL of any Facilities as defined herein
shall not act to remove the same from this definition.
1.7 "FCC" shall mean the Federal Communications Commission.
1.8 "Franchise" shall mean the right granted by the Franchise Ordinance and
conditioned as set forth herein by which the City authorizes NOEL to erect, construct,
reconstruct, operate, dismantle, test, use and maintain a Telecommunications System in the
City. The franchise granted herein shall be a non - exclusive franchise.
1.9 "Franchise Service Area" shall mean that area within the incorporated City
limits in which NOEL shall extend its services.
1.10 "Grantee" shall refer to, as incorporated or used herein, Noel
Communications, Inc.
1.11 "Gross Operating Revenues" shall have a meaning consistent with any
existing or future City Code. Gross Operating Revenues shall include any and all
compensation in whatever form, from any source, directly earned by NOEL or any affiliate of
NOEL or any other person who would constitute an operator of NOEL's Telecommunications
System under applicable local, state and /or federal law, derived from the provision of
Telecommunications Services originating or terminating in the City and /or charged to a circuit
location in the City regardless of where the circuit is billed or paid.
1.12 "Network Telephone Service" means the provision of access to the local
telephone network, local telephone switching service, toll service, or otherwise providing
telephonic, data, video conferencing or similar communication or transmission services for
hire via a local network, line, channel or similar communication or transmission system.
Network Telephone Service includes intrastate or interstate services and specifically excludes
cable television or open video system service, broadcast services or other multi - channel video
services.
1.13 " Permittee" means any person who has been granted a permit by the assigned
permitting authority.
1.14 "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.
2
1.15 "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.
1.16 "Penalties" means any and all monetary penalties provided for in this
Franchise.
1.17 "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.
1.18 "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.
1.19 "Telecommunications Services" shall mean:
A. Services interconnecting interexchange carriers, competitive carriers,
and /or wholesale telecommunications providers for the purpose of voice, video or data
transmission;
B. Services connecting interexchange carriers and /or competitive carriers
to telephone companies providing local exchange services for the purpose of voice, video or
data transmission;
C. Services connecting interexchange carriers or competitive carriers to
any entity, other than another interexchange carrier, competitive carriers, or telephone
company providing local exchange services for the purpose of voice, video or data
transmission;
D. Services interconnecting any entities, other than interexchange carriers,
competitive carriers, or telephone companies providing local exchange services for the
purpose of voice, video or data transmission;
E. Other telecommunications services as authorized by the Federal
Communications Commission or the Washington Utilities and Transportation Commission;
and
F. Telecommunications Services include intrastate and interstate services
and specifically exclude cable television or open video system services, broadcast services or
other multi - channel video services.
3
1.20 "Telecommunications System" means all wires, cables, ducts, conduits,
vaults, poles and other necessary Facilities owned or used by NOEL for the purpose of
providing Telecommunications Services and located in, under and above the City streets
and /or rights -of -way, excluding ducts, conduits and vaults leased from another City
franchisee, licensee or permittee.
1.21 "WUTC" shall mean the Washington Utilities and Transportation
Commission.
1.22 "Year ", "Annual" or "Annually" means the period consisting of a full
calendar year, beginning January 1 and ending December 31, unless otherwise provided for in
this Franchise.
SECTION 2 - FRANCHISE
2.1 Grant of Franchise. The City hereby grants to Noel Communications, Inc., a
non - exclusive franchise which authorizes NOEL, subject to the terms of the Franchise
Ordinance, to construct a Telecommunications System and offer Telecommunications
Services in, along, among, upon, across, above, over, under or in any matter connected with
the rights -of -way located in the City and for that purpose to erect, install, construct, repair,
replace, reconstruct, maintain or retain in, on, over, under, upon, across or along any rights -of-
way or extensions thereof and additions thereto, such poles, wires, cables, conductors, ducts,
conduits, vaults, utility access covers, pedestals, amplifiers, appliances, attachments and other
related property or equipment as may be necessary or appurtenant to the Telecommunications
System. Said franchise shall constitute both a right and an obligation to provide the services
of a Telecommunications System as required by the provisions of this Ordinance.
2.2 Franchise Term. The term of this Franchise shall be ten (10) years from the
effective date unless terminated sooner in accordance with this Franchise. This provision
does not affect the City's right to revoke this Franchise for cause, because of a breach of any
promise, condition or stipulation stated herein.
2.3 Franchise Non - Exclusive. The franchise granted herein shall be non-
exclusive. The City specifically reserves the right to grant, at any time, such additional
franchises for a Telecommunications System as it deems appropriate provided, however, such
additional grants shall not operate to materially modify, revoke or terminate any rights
previously granted to NOEL. The grant of any additional franchise shall not of itself be
deemed to constitute a modification, revocation or termination of rights previously granted to
NOEL. Any franchise granted pursuant to this Franchise shall confer and impose substantially
similar rights and obligations. In establishing the rights and obligations pursuant to a
franchise, consideration shall be given to the services to be provided, the area to be served, the
commitments made by the applicant to the City, the regulatory authority of the City and the
investment proposed by such applicant. In no event will the City impose discriminatory rights
or obligations on any franchise applicant.
11
2.4 Authority Granted.
A. Subject to local, state and federal law, this Franchise grants the
authority, right and privilege to NOEL to operate and maintain a Telecommunications System
including the towers, antenna, satellite dishes, lines and other appurtenances necessary for the
provision of Network Telephone Service, as defined in Section 1.12 of this Franchise and in
RCW 82.04.065, and other Telecommunications Services as defined herein, in, upon, along,
above, over and under the streets and rights -of -way in the City.
B. NOEL's right to operate and maintain its Telecommunications System
is subject to the terms, conditions and requirements of the Franchise Ordinance, this Franchise
and the City Charter and NOEL's right to construct, erect, install or modify its
Telecommunications System is specifically subject to the requirement that NOEL obtain
permits as set forth in this Franchise.
C. NOEL expressly acknowledges and agrees, by acceptance of this
Franchise, that its rights under this Franchise are subject to the police power of the City to
adopt and enforce general ordinances necessary to the safety, health and welfare of the public
and NOEL agrees to comply with all such applicable general laws and ordinances enacted by
the City pursuant to such police power. The City, by the granting of this Franchise, does not
render or to any extent lose, waive, impair or lessen the lawful powers and rights now or
hereafter vested in the City to regulate the use of its rights -of -way and tax, regulate or license
the use thereof, and NOEL, by its acceptance of this Franchise, acknowledges and agrees that
all lawful powers and rights, whether regulatory or otherwise, as are or may be from time to
time vested in or reserved to the City, shall be in full force and effect and NOEL shall be
subject to the exercise thereof by the City at any time.
D. NOEL expressly acknowledges and agrees, by acceptance of this
Franchise, that lines, equipment, conduits and other facilities and appurtenance in the City
rights -of -way which are subsequently acquired by NOEL and which, if acquired prior to this
original franchise grant, would have been subject to this Franchise and the permitting
authority related thereto, shall be subject to the provisions of this Franchise and all permits
related thereto.
E. In return for promises made and subject to the stipulations and
conditions stated herein, the City grants to NOEL permission to use the City's rights -of -way to
provide Telecommunications Services to persons within the Franchise Service Area. To the
extent of the City's interests, permission is similarly granted to NOEL to use areas outside the
City's rights -of -way which are reserved by regulation, practice or dedication for public
telephone utilities, but in such areas, NOEL's use is also subject to conditions now or
hereafter recognized by the City as generally applicable to telecommunications or
underground conduit utilities.
5
2.5 Limits on Permission.
A. As used in Section 2.4, E, "Telecommunications Services" means such
services as those defined in Section 1.19 of this Franchise provided by NOEL to persons
within the City. Permission is not granted to use the City rights -of -way for any other purpose,
including but not limited to providing cable television service as defined in 47 USC § 522 or
distribution of multi - channel video programming or any other video programming. NOEL
stipulates that this Franchise extends no such rights or privileges.
B. Permission does not extend to areas outside those listed in Section 2.4,
E of this Franchise, or otherwise to any area outside the authority of the City to extend
franchised -use permission, such as buildings or private areas not reserved for utilities. NOEL
is solely responsible to make its own arrangements for any access to such places.
C. This Franchise does not extend permission to municipal buildings or
other municipally owned or controlled structures. For such locations, NOEL shall make
specific arrangements directly with the municipal department or division controlling such
building or other structure.
D. Permission granted by this Franchise is non - exclusive. NOEL
stipulates the City may grant similar permission to others.
E. NOEL shall not permit installations by others in the Franchise Service
Area without written approval of the City. Such approval shall not be in lieu of a franchise or
other requirements of the City. Whether or not permitted, NOEL remains responsible for all
third party users of the Telecommunications System for compliance with this Franchise.
F. No privilege or exemption is granted or conferred by this Franchise
except as may be specifically prescribed.
G. Any privilege claimed under this Franchise in any street or right -of -way
shall be subordinate to any prior lawful occupancy or any subsequent exercise of City police
power. The grant of this Franchise shall not impart to NOEL any fee title property rights in or
on any public or private property to which NOEL does not otherwise have title.
2.6 Franchise Service Area. The Franchise Service Area shall be that area within
the present or future city limits of the City of Yakima, Washington.
2.7 Public Review of Franchise. The field of requirements and conditions
applicable to this franchise continue to evolve. Therefore, in order to provide for a maximum
degree of flexibility in this Franchise, and the help achieve a continued advanced and modern
Telecommunications System, the following evaluation provision will apply:
A. Following year five (5) of this Franchise, and only upon the request of
either party, a public review may be held, should there be a material change to law, technology
or services that may have an effect on the terms and conditions of this Franchise.
31
B. As a result of such public review, either party may request a change or
amendment in the terms of this Franchise. Parties will, in good faith, review and negotiate the
terms of the change and any amendment required to this Franchise. Based on such public
review and adoption of such a change or new requirement through a mutually acceptable
Franchise amendment, such change will become effective.
2.8 Franchise Renewal or New Franchise.
A. The City may establish appropriate requirements for new franchises or
franchise renewals consistent with federal, state and local law.
B. Nothing in this Franchise shall be construed to require renewal of this
Franchise.
2.9 Renegotiation. In the event that any provision of this Franchise becomes
invalid or unenforceable and the City or NOEL expressly finds that such provision constituted
a consideration material to entering into this Franchise, or in the event of significant change in
the law regulating this Franchise or change in municipal authority to act under the terms of
this Franchise, or in the event of significant change or advancement in technology governing
NOEL's functions, the City and NOEL may mutually agree to renegotiate any or all of the
terms of this Franchise. The party seeking renegotiation shall serve on the other party written
notice of an offer to renegotiate. In the event the other party accepts the offer to renegotiate,
the parties shall have one hundred twenty (120) days to conduct and complete the
renegotiation. Nothing in this Franchise shall be construed to require acceptance by either the
City or NOEL of an offer to renegotiate.
2.10 Revocation.
A. In addition to any rights set out elsewhere in this Franchise, the City
reserves the right to declare a forfeiture or otherwise revoke this Franchise and all rights and
privileges pertaining thereto in the event that:
(1) The City determines NOEL is in violation of any material provision of
this Franchise and fails to correct the violation after written notice of the violation and
proposed forfeiture and a reasonable opportunity thereafter to correct the violation as
noted in Section 9.2 of this Franchise; or
(2) NOEL is found by a court of competent jurisdiction to have engaged in
any actual or attempted fraud or deceit upon the City, persons or customers; or
(3) NOEL becomes insolvent, unable or unwilling to pay its debts as they
become due, or is adjudged a bankrupt; or
7
(4) NOEL fails, refuses, neglects or is otherwise unable to obtain and /or
maintain any permit required by any federal or state regulatory body regarding
NOEL's construction, maintenance and operation of its Telecommunications System.
B. For purposes of this Section, the following are material provisions of
this Franchise, allowing the City, without limitation, to exercise its rights under this Section or
as set forth elsewhere in this Franchise:
(1) The invalidation, failure to pay or any suspension of NOEL's payment
of any fees or taxes due the City under this Franchise;
(2) Any failure by NOEL to submit timely reports regarding the calculation
of any gross revenue -based fees or taxes due the City under this Franchise;
(3) Any failure by NOEL to maintain the liability insurance required under
this Franchise;
(4) Any failure by NOEL to maintain and provide the City a copy of a
Performance Bond as required under this Franchise;
(5) Any failure by NOEL to otherwise fully comply with the requirements
of this Franchise.
C. Upon occurrence of one or more of the events set out above, following
sixty (60) days written notice to NOEL of the occurrence and the proposed forfeiture and an
opportunity for NOEL to be heard, the City may, by ordinance or other appropriate document,
declare a forfeiture. In a hearing of NOEL, NOEL shall be afforded due process rights as if
the hearing were a contested case hearing subject to Washington law, including the right to
cross - examine witnesses and to require that all testimony be on the record. Findings from the
hearing shall be written and shall stipulate the reasons for the City's decision. If a forfeiture is
lawfully declared, all rights of NOEL under this Franchise shall immediately be divested
without a further act upon the part of the City.
2.11 Receivership. The City shall have the right to declare a forfeiture or otherwise
revoke this Franchise one hundred eighty (180) days after the appointment of a receiver, or
trustee, to take over and conduct the business of NOEL, whether in receivership,
reorganization, bankruptcy or other action or proceeding, unless such receivership or
trusteeship shall have vacated prior to the expiration of said one hundred eighty (180) days, or
unless:
(1) Within one hundred eighty (180) days after his /her election or
appointment, such receiver or trustee shall have been approved by the City and shall
fully have complied with all the provisions of this Franchise and remedied all defaults
thereunder; and
(2) Such receiver or trustee, within said one hundred eighty (180) days,
shall have executed an agreement, duly approved by the City as well as the court
having jurisdiction in the premises, whereby such receiver or trustee assumes and
agrees to be bound by each and every provision of this Franchise.
2.12 Expiration. Upon expiration of this Franchise, the City shall have the right, at
its own election, to:
(1) Renew this Franchise, in accordance with applicable valid law;
(2) Invite additional franchise applications or proposals;
(3) Terminate this Franchise without further action; and
(4) Take such other action as the City deems appropriate.
2.13 Transfer of Ownership.
A. This Franchise shall not be sold, leased, mortgaged, assigned or
otherwise transferred, nor shall any of the rights or privileges herein granted or authorized be
sold, leased, mortgaged, assigned or otherwise transferred, either in whole or in part, nor shall
title hereto, either legal or equitable, or any right, interest or property herein, pass to or vest in
any person, except NOEL, either by act of NOEL or operation of law, without the prior
consent of the City, expressed in writing. The granting of such prior consent in one instance
shall not render unnecessary any subsequent prior consent in another instance. Any transfer of
ownership shall make this Franchise subject to revocation unless and until the City shall have
given written prior consent.
B. Upon any transfer as heretofore described, NOEL shall, within sixty
(60) days thereafter, file with the City a copy of the deed, agreement, mortgage, lease or other
written instrument evidencing such sale, lease, mortgage, assignment or transfer, certified and
sworn as correct by NOEL.
C. Every such transfer as heretofore described, whether voluntary or
involuntary, shall be deemed void and of no effect unless NOEL shall, within sixty (60) days
after such transfer has been made, file such certified copy as is required.
D. The requirements of this Section shall not be deemed to prohibit the use
of NOEL's property as collateral for security in financing the construction or acquisition of all
or part of the Telecommunications System franchised hereunder. However, such financing
shall be subject to the provisions of this Franchise.
E. The City reserves the right to invoke any or all provisions of this
Franchise upon NOEL's successors or assigns, judgment creditors or distributees of facilities
or property used in enjoyment of privileges conferred herein, whether or not stated elsewhere,
all without waiver of the right to withhold consent not expressly given of any such transfer
and /or require a new franchise.
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2.14 Change in Control. NOEL shall promptly notify the City through the City
Council of any proposed change in, transfer of or acquisition by any other party of control of
NOEL. If beneficial ownership of thirty percent (30 %) or more of the stock of NOEL, or any
parent company of NOEL immediate or otherwise, or of any entity now owning or later
acquiring such a beneficial interest is acquired by a single entity or by several entities under
common control, and if such entity or agent of common control is other than an organization
a) whose primary business is telecommunications system operation, and b) is more than fifty
percent (50 %) owned by NOEL or a parent of NOEL, then a change in control will be deemed
to have taken place unless the City, upon request of NOEL, finds otherwise. Such a change in
control shall make this Franchise subject to revocation unless and until the City shall have
given written consent thereto. For the purpose of determining whether it will consent to such
change, transfer or acquisition of control, the City may inquire into the qualifications of the
prospective controlling party to perform the obligations of NOEL under this Franchise.
NOEL shall assist the City in any such inquiry. The City may condition its consent upon such
terms and conditions as it deems appropriate. Consent to the transfer shall not be
unreasonably withheld.
2.15 No Stock to be Issued. NOEL promises never to issue any capital stock on
account of this Franchise or any permission granted under the terms of this Franchise, or the
value thereof. NOEL further agrees it will not have any right to receive, upon a condemnation
proceeding or other negotiation by the City to acquire the properties of NOEL, any payment or
award on account of this Franchise or permission or its value. NOEL waives all such claims
against the City and also any claims for any municipal revision, action, inaction, curtailment,
suspension, revocation or change in municipal policy or regulation relating to NOEL's
franchised activities. The City shall have no obligation to make any payment to NOEL or
award in condemnation for any other asset or interest of NOEL, except as required under the
State of Washington Constitution and United States Constitution or as state or federal laws
may preemptively require.
2.16 Other Codes and Ordinances. Nothing in this Franchise shall be deemed to
waive the requirements of the other lawful codes and ordinances of the City regarding permits,
fees to be paid or manner of construction.
2.17 Survival of Terms. Sections 4.9, 6.3, 7 and 10 of this Franchise shall continue
in effect as to NOEL notwithstanding any expiration, forfeiture or revocation of this
Franchise.
SECTION 3 - ENFORCEMENT AND ADMINISTRATION BY THE CITY
3.1 City Jurisdiction and Supervision. The City, through its Community
Relations office (or its successor(s)), shall have continuing regulatory jurisdiction and
supervision over the operation and enforcement of this Franchise and may from time to time
adopt such reasonable rules and regulations as it may deem necessary for the conduct of the
business contemplated herein. All questions of application, interpretation, conflict or
ambiguity arising out of or in connection with this Franchise are to be determined by the
manager of the Community Relations office (or his /her successor(s)), except only where
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otherwise specifically stated, or in the event that a different person or body may be designated
by the City through written notice to NOEL.
3.2 Grantee to Have No Recourse. Subject to state and federal law, NOEL shall
have no recourse other than non - monetary declaratory or injunctive relief against the City and
shall be awarded no monetary recovery whatsoever for any incidental or consequential
damages, including but not limited to lost profits, arising out of any provision or requirement
of this Franchise, nor from the City's regulation under this Franchise, nor from the City's
exercise of its authority to grant additional franchises.
3.3 Acceptance of Power and Authority of City. NOEL expressly acknowledges
by acceptance of this Franchise that:
(1) It has relied upon its own investigation and understanding of the power
and authority of the City to grant and enforce this Franchise and that it has no
objection to the exercise of the City's power and authority therein;
(2) It has not been induced to enter into this Franchise arrangement by any
understanding or promise or other statement, whether verbal or written, by or on
behalf of the City concerning any term or condition of this Franchise that is not
specifically included herein;
(3) It has carefully read the terms and conditions contained herein and
NOEL is willing to and does accept all the obligations of such terms and conditions to
the extent not inconsistent with state or federal law and further agrees that it will not
set up as against the City any claim that any provision of this Franchise is
unreasonable, arbitrary, invalid or void subject to its rights herein; and
(4) The matters contained in NOEL's application and all subsequent
applications or proposals for renewals of this Franchise, and as stated in any and all
other presentations to the City, except as inconsistent with law, regulations or local
ordinance, are incorporated into this Franchise as though set out verbatim.
3.4 Acts Discretionary, Reservation of Authority. All City acts undertaken
pursuant to this Franchise shall be deemed discretionary, guided by the provisions of this
Franchise and considerations of the public health, safety, aesthetics and convenience. NOEL
stipulates and agrees that this Franchise is subject to the City Charter of the City of Yakima.
NOEL understands the Charter's provisions are incorporated herein, where applicable. NOEL
agrees that the City reserves all municipal powers now or hereafter granted by law, including
without limitation, the power to tax and license, regulate activities of land use, protect the
public health and safety and regulate and control use of the public right -of -way.
3.5 Delegation of Authority to Regulate. The City reserves the right to delegate
its regulatory authority wholly or in part to the federal government, state government and /or to
agents of the City, including but not limited to an agency which may be formed to regulate
several City franchises.
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SECTION 4 - OPERATION IN STREETS AND RIGHTS- OF-WAY
4.1 Use of Streets. NOEL may, subject to terms of this Franchise, erect, install,
construct, repair, replace, reconstruct and retain in, on, over, under, upon, across and along the
City streets and rights -of -way such lines, cables, conductors, ducts, conduits, vaults, utility
access covers, amplifiers, appliances, pedestals, attachments and other property and
equipment as are necessary and appurtenant to the operation of a Telecommunications System
within the City. All installation, construction, alteration and /or maintenance of any and all
Telecommunications System Facilities within City streets and rights -of -way incident to
NOEL's provision of Telecommunications Services shall, regardless of who performs
installation, construction, alteration and /or maintenance, be and remain the responsibility of
NOEL.
4.2 Construction or Alteration.
4.2.1 Permits. NOEL shall in all cases comply with all lawful City
ordinances and regulations regarding the acquisition of permits and other such items as may
be reasonably required in order to install, construct, alter and maintain the
Telecommunications System. NOEL shall apply for and obtain all permits necessary for
installation, construction, alteration and /or maintenance of any such Facilities, and for
excavation and laying of any Telecommunications System Facilities within City streets and
rights -of -way. NOEL shall pay all applicable fees due for any such permits.
4.2.2 Schedule and Maps.
A. Prior to beginning installation, construction, alteration or maintenance
of the Telecommunications System, NOEL shall provide the City with an initial work
schedule for work to be conducted in City streets and rights -of -way and the estimated total
cost of such work. NOEL shall, upon request, provide information to the City regarding its
progress in completing or altering the Telecommunications System.
B. Upon completion of construction or alteration of the
Telecommunications System, NOEL shall provide the City with a map showing the location
of its installed Telecommunications System, as built. Such "as- built" maps shall be in a form
acceptable to the City.
C. NOEL shall provide a map to the City showing the location of NOEL's
optical fibers in City streets and rights -of -way on a scale of 3500 feet per inch or in whatever
standard scale the City adopts for general use:
(1) One year after the effective date of this Franchise; and
(2) Annually thereafter.
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4.2.3 Good Engineering.
A. NOEL promises all of its property and facilities shall be constructed,
operated and maintained in good order and condition in accordance with good engineering
practice. In connection with the civil works of NOEL's Telecommunications System, such as,
but not limited to, trenching, paving, compaction and locations, NOEL promises to comply
with the edition of the American Public Works Association Standard Specifications which is
in current or future use by the City, together with the City's Supplemental Specifications
thereto, all as now or hereafter amended.
B. NOEL promises that the Telecommunications System shall comply
with the applicable federal, state and local laws, the National Electric Safety Code and the
Washington Electrical Construction Code, where applicable.
4.3 Facilities Placement.
4.3.1 General Standards. The Telecommunications System shall be
constructed and maintained in such manner as not to obstruct, hinder, damage or otherwise
interfere with sewers, water pipes, other utility fixtures or any other property of the City, or
any other pipes, wires, conduits or other facilities that may have been installed in City streets
or rights -of -way by or under the City's authority. NOEL shall maintain a minimum
underground horizontal separation of five (5) feet from City water facilities and ten (10) feet
from above - ground City water facilities; PROVIDED, that for development in new areas, the
City, together with NOEL and other utility purveyors or authorized users of City streets or
rights -of -way, will develop and follow the City's determination of a consensus for guidelines
and procedures for determining specific utility locations, subject additionally to this Franchise.
4.3.2 Limited Access. NOEL must follow the City's requirements for the
placement of facilities in City streets and rights -of -way, including City requirements for
location of facilities in specific City streets and rights -of -way, and must in any event install
facilities in a manner that minimizes interference with the use of City streets and rights -of-
way by others, including others that may have or may install telecommunications facilities in
City streets and rights -of -way. The City may require that NOEL install facilities at a
particular time, at a specific place and /or in a particular manner as a condition of access to a
particular City street or right -of -way and the City may exclude NOEL's access to a particular
street or right -of -way in accordance with City requirements for placement of facilities.
4.3.3 Consistency with Designated Use. Notwithstanding the grant to use
City streets and rights -of -way contained in this Franchise, no street or right -of -way shall be
used by NOEL if the City, in its sole opinion, determines that such use is inconsistent with the
terms, conditions or provisions by which such street or rights -of -way were created or
dedicated or presently used under state and local laws.
4.3.4 Non - Interference. NOEL shall exert its best efforts to construct and
maintain the Telecommunications System so as not to interfere with other uses of City streets
or rights -of -way. NOEL shall, where possible in the case of aboveground lines, make use of
existing poles and other facilities available to NOEL. NOEL shall individually notify all
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residents affected by any proposed installation, construction, alteration or maintenance of the
Telecommunications System of such work where and when such notification is reasonably
possible.
4.3.5 Undergrounding. The City finds that overhead lines and aboveground
wire facilities and installations in the streets or rights -of -way and other franchised areas
adversely impact upon the public use and enjoyment of property in the City, including an
aesthetic impact. Therefore, NOEL shall place underground all of its transmission lines that
are located or are to be located above or within City streets or rights -of -way in the following
cases where:
(1) All existing utilities are located underground;
(2) Transmission or distribution facilities of the local exchange carrier
and /or the electric utility are underground or hereafter placed underground;
(3) Statute, ordinance, policy or other regulation of the City requires
utilities to be placed underground;
(4) NOEL is unable to obtain pole clearance;
(5) Underground easements are obtained from developers of new
residential areas; or
(6) Utilities are overhead but residents prefer same to be located
underground (such undergrounding to be provided at residents' expense).
NOEL hereby states it is familiar with RCW Ch. 19.122, Washington State's
"Underground Utilities" statute, and understands local procedures, custom and practice
relating to the one - number locator service program. Consistent with any general municipal
undergrounding policy or program now or hereafter developed, the City may require NOEL's
participation in municipally imposed undergrounding or related requirements as a condition of
NOEL's installation or continued maintenance of overhead facilities authorized under this
Franchise. NOEL hereby agrees to coordinate its underground installation and planning
activities with the City's underground plan and policies.
4.4 Coordination with Other Users. NOEL shall coordinate its activities with
other utilities and users of City streets and rights -of -way scrupulously to avoid unnecessary
cutting, damage or disturbance of such streets and rights -of -way and shall conduct its
planning, design, installation, construction, alteration and maintenance of the
Telecommunications System at all times so as to maximize the life and usefulness of the
paving and municipal infrastructure. In addition, the City may determine with respect to
franchised uses, in the exercise of reasonable discretion, when and where reasonable
accommodation shall be made by NOEL to the City for public needs or, where requested,
other third party needs, how such accommodation should be made and a reasonable
apportionment of any expenses of same; PROVIDED, that this Franchise creates no third
party beneficial interests or accommodation. Notwithstanding the foregoing, it remains the
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responsibility of NOEL to anticipate and avoid conflicts with other City streets or rights -of-
way occupants or users, other utilities, franchisees or permittees. The City assumes no
responsibility for such conflicts. Further, NOEL shall give appropriate notices to any other
City streets or rights -of -way occupants or users, other utilities, franchisees, permittees,
divisions of the City or other units of government owning or maintaining facilities which may
be affected by NOEL's planning, design, installation, construction, alteration or maintenance
of the Telecommunications System.
4.5 Relocation.
A. The City shall have the right during the term of this Franchise, as it may
be extended, renewed or otherwise altered in accordance with this Franchise, to require NOEL
to change the location of its Telecommunications System within City streets and rights -of -way
when the public convenience and necessity requires such change. If the City or any
government entity elects or requires a third party to alter, repair, realign, abandon, improve,
vacate, reroute or change the grade of any street, public way or other public property; or to
construct, maintain or repair any public improvement; or to replace, repair, install, maintain or
otherwise alter any cable, wire, wire conduit, pipe, line, pole, wireholding structure, structure
or other facility, including a facility used for the provision of utility or other services or
transportation of drainage, sewage or other liquids, NOEL shall, upon request, except as
otherwise hereinafter provided, at no expense 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.
B. If the City requires NOEL to remove or relocate its facilities located
within City streets or rights -of -way, the City will make a reasonable effort to provide NOEL
with an alternate location for its facilities within City streets or rights -of -way.
C. The City shall provide NOEL with the standard notice given under the
circumstances to other franchisees, licensees or permittees.
D. If during the term of this Franchise, as it may be extended, renewed or
otherwise altered in accordance with this Franchise, another entity which holds a franchise or
any utility requests NOEL to remove or relocate its Telecommunications System Facilities to
accommodate the construction, maintenance or repair of the requesting party's facilities, or the
more efficient use of such facilities, or to "make ready" the requesting party's facilities for use
by others, or because NOEL is using a facility which the requesting party has a right or duty to
remove, NOEL shall do so. The parties involved may decide among themselves who is to
bear the cost of removal or relocation; PROVIDED, that the City shall not be liable for any
such cost(s).
E. Any person requesting NOEL to remove or relocate its facilities shall
give NOEL no less than forty -five (45) days advance written notice advising NOEL of the
date or dates removal or relocation is to be undertaken; PROVIDED, that no advance written
notice shall be required in emergencies or in cases where public health and /or safety or
property is endangered.
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F. If NOEL fails, neglects or refuses to remove or relocate its facilities as
directed by the City, or in emergencies or where public health and /or safety or property is
endangered, the City may do such work or cause it to be done and the cost, including all
direct, indirect and /or consequential costs and expenses incurred by the City due to NOEL's
failure, neglect or refusal thereof shall be paid solely by NOEL. If NOEL 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 NOEL would have been
liable for the cost of performing such work, the cost, including all direct, indirect and /or
consequential costs and expenses incurred by such franchisee or utility thereof to the party
performing the work or having the work performed shall be paid solely by NOEL.
G. If NOEL causes any damage to private property or public property in
the process of removing or relocating its facilities, NOEL shall pay the owner of the property
for such damage.
H. NOEL does hereby promise to protect and save harmless the City, its
officers, agents and employees from any customer or third party claims for service
interruption or other losses in connection with any removal or relocation of NOEL's
Telecommunications System Facilities.
4.6 Movement of Buildings. NOEL shall, upon request by any person holding a
building permit, franchise or other approval issued by the City, temporarily remove, raise or
lower its transmission or other wires appurtenant to the Telecommunications System to permit
the movement of buildings. The expense for such removal, raising or lowering shall be paid
by the person requesting the same and NOEL shall be authorized to require such payment in
advance. The City shall require all building movers to provide not less than three (3) business
day's notice to NOEL for such temporary wire changes.
4.7 Tree Trimming. NOEL, with twenty -four (24) hour notice to the property
owner, shall have the authority to trim or cause to have trimmed trees upon and overhanging
streets, alleys, sidewalks and rights -of -way so as to prevent the branches of such trees from
coming in contact or otherwise interfering with the Telecommunications System;
PROVIDED, that the cost for such trimming of trees shall be paid solely by NOEL.
4.8 Restoration.
A. Whenever NOEL damages or disturbs any area in or near City streets,
rights -of -way, paved area or public improvement, NOEL shall, at its sole cost, expense and
liability, restore such area in or near City streets, rights -of -way, paved area or public
improvement to at least its prior condition, or the City standard, whichever is greater, to the
satisfaction of the City.
B. Whenever any opening is made by NOEL in a hard surface pavement in
any City street or right -of -way, NOEL shall refill, restore, patch and repave entirely all
surfaces opened as determined necessary by the City in order to maintain and preserve the
useful life thereof.
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C. For pavement restorations, any patch or restoration shall be thereafter
properly maintained in good condition and repair by NOEL until such time as the area is
resurfaced or reconstructed.
D. The City hereby reserves the right, after providing reasonable notice to
NOEL, to remove and /or repair any work done by NOEL which, in the determination of the
City, is inadequate. The cost thereof, including the cost of inspection and supervision, shall
be paid solely by NOEL.
E. Should NOEL fail, neglect, refuse or delay in performing any obligation
here or elsewhere stated, or where the City deems necessary to protect the public right -of -way
or to avoid liability, risk or injury to the public or the City, the City may proceed to perform or
cause to have performed such obligation, including any remedial or preventative action
deemed necessary, at NOEL's sole expense and liability, but no action or inaction by the City
shall relieve NOEL of its obligation to hold the City harmless as set forth in Section 7.7 of this
Franchise. Prior to undertaking corrective effort, the City shall make a reasonable effort to
notify NOEL, except no notice is needed if the City declares an emergency or determines a
need for expedient action. This remedy is supplemental and not alternative to any other
municipal right.
F. Whenever NOEL damages or disturbs any area in or near City streets,
rights -of -way, paved area or public improvement, NOEL stipulates that the City may, without
limitation:
(1) Require NOEL to repave an entire lane or greater affected area within
any cut or disturbed location; and /or
(2) Require NOEL to common trench with any other underground
installation in City streets or rights -of -way, with cost sharing to be
negotiated between the parties involved, or in the absence of agreement,
as directed by the City in a non - discriminatory manner.
G. All requirements of this Section pertaining to public property shall also
apply to the restoration of private easements and other private property.
H. If NOEL causes any damage to private property in the process of
restoring facilities, NOEL shall pay the owner of the property for such damage.
I. All of NOEL's work under this Section shall be done in strict
compliance with all applicable rules, regulations and ordinances of the City.
J. NOEL shall perform all restoration work promptly.
4.9 City Right to Require Removal of Property.
A. At the expiration of the term for which this Franchise is granted,
providing no extension or renewal is granted by the City, or upon the forfeiture or revocation
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of this Franchise, as provided for in this Franchise, the City shall have the right to require
NOEL to remove, at NOEL's sole expense, all or any part of the Telecommunications System
from all City streets and rights -of -way within the Franchise Service Area, where the
abandoned Facilities interfere with reasonable uses of City streets and rights -of -way. If NOEL
fails to do so, the City may perform the work and collect the cost thereof from NOEL. The
actual cost thereof, including direct and indirect administrative costs, shall be a lien upon all
plant and property of NOEL effective upon filing of the lien with the Yakima County Auditor.
B. Any order by the City Council to remove any of NOEL's
Telecommunications System Facilities shall be mailed to NOEL not later than thirty (30)
calendar days following the date of expiration of this Franchise. NOEL shall file written
notice with the Clerk of the City Council not later than thirty (30) calendar days following the
date of expiration or termination of this Franchise of its intention to remove any
Telecommunications System Facilities intended to be removed and a schedule for removal by
location. The schedule and timing of removal shall be subject to approval and regulation by
the City. Removal shall be completed not later than twelve (12) months following the date of
expiration of this Franchise.
C. NOEL shall not remove any underground Facilities which require
trenching or other opening of City streets or rights -of -way along the extension of the Facilities
to be removed, except as hereinafter provided. NOEL may voluntarily remove any
underground Facilities from City streets and rights -of -way which have been installed in such a
manner that they can be removed without trenching or other opening of City streets and rights -
of -way along the extension of the Facilities to be removed.
D. Subject to applicable law, NOEL shall remove, at its sole cost and
expense, any underground Facilities by trenching or opening City streets and rights -of -way
along the extension thereof or otherwise which is ordered to be removed by the City Council
based upon a determination, in the sole discretion of said Council, that removal is required in
order to eliminate or prevent a hazardous condition. Underground Facilities in City streets
and rights -of -way that are not removed shall be deemed abandoned and title thereto shall be
vested in the City.
4.10 Emergency Repairs. In the event that emergency repairs to the
Telecommunications System are necessary, NOEL shall notify the City of the need for such
repairs. NOEL may immediately initiate such emergency repairs and shall apply for
appropriate permits the next business day following discovery of the emergency.
4.11 City Right of Inspection. The City shall have the right to inspect and approve
all installation, construction, alteration or maintenance work performed by NOEL within the
Franchise Service Area and to make such tests as it deems necessary to ensure compliance
with the terms and conditions of this Franchise and other pertinent provisions of law, the cost
thereof to be paid solely by NOEL, but no action or inaction by the City shall create any duty
or obligation by the City to inspect, test or approve any installation, construction, alteration or
maintenance work performed by NOEL. In addition, the City may require NOEL to furnish
certification from a qualified independent engineer that NOEL's Facilities are constructed in
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accordance with good engineering practice and are reasonably protected from damage and
injury.
4.12 After - Acquired Facilities. NOEL expressly acknowledges and agrees, by
acceptance of this Franchise, that any Telecommunications System Facilities located within
City streets or rights -of -way which are subsequently acquired by NOEL or upon addition or
annexation to the City of any area in which NOEL retains or acquires any such Facilities (if
acquired prior to this original Franchise grant) and which would have been subject to this
Franchise and the permitting authority related thereto shall immediately be subject to the
provisions of this Franchise and all permits related thereto.
4.13 Information. NOEL hereby promises to maintain and supply to the City, at
NOEL's sole expense, any information requested by the City to coordinate municipal
functions with NOEL's activities within City streets and rights -of -way. NOEL shall provide
such information, upon request, either in hard copy and /or electronic format compatible with
the City's data base system, as now or hereafter existing, including the City's geographic
information service (GIS) data base. NOEL shall keep the City informed of its long -range
plans so as to allow coordination with the City's long -range plans.
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SECTION 5 - SYSTEM DESIGN AND STANDARDS
5.1 Initial Telecommunications System Construction.
5.1.1 Construction Schedule. A detailed construction schedule, which shall
be subject to City approval, shall be submitted by NOEL to the City no later than forty -five
(45) days prior to the commencement of construction. For the purposes of this Franchise,
"commencement of construction," as finally determined by the City if necessary, shall mean
the beginning of installation of any part of the Telecommunications System including, but not
limited to, strand mapping, system design, the construction of any facility, building or
structure, or the stringing of any wire or the laying of any conduit, or the installation of any
active or passive electronic equipment to facilitate the activation of the Telecommunications
System.
5.1.2 Construction Timeline. NOEL shall commence construction of the
Telecommunications System during the calendar year 2001 and shall complete initial
activation procedures within six (6) months of the effective date of this Franchise.
5.2 Technical Standards. The technical standards used in the design,
construction, alteration, maintenance and operation of the Telecommunications System shall
comply, at a minimum, with the applicable technical standards promulgated by the Federal
Communications Commission ( "FCC ") or the Washington Utilities and Transportation
Commission ( "WUTC "), as now or hereafter constituted or amended, and any and all other
applicable federal, state or local law, regulations or technical standards which may currently
or may subsequently concern any services which NOEL provides or may provide using the
Telecommunications System. The City may establish reasonable technical standards for the
performance of the Telecommunications System if the FCC or WUTC permit it to do so or if
the FCC or WUTC standards are repealed in whole or in part.
5.3 Performance Testing. NOEL shall perform all tests of the
Telecommunications System as required by and at the intervals as required by the FCC and /or
any and all federal, state and local law or regulations, and all other tests reasonably necessary
to determine compliance with technical standards required by this Franchise.
SECTION 6 - CUSTOMER SERVICE POLICIES
6.1 City Reservation of Rights. The City reserves the right to enforce any and all
customer service and consumer protection standards at any time that such standards are
established by state or federal law or regulation as applicable to telecommunications system
operations should such right be granted to the City by such state or federal law or regulation.
6.2 Response to Customers. NOEL shall promptly respond to all requests from
customers of the Telecommunications System for service, repair, installation, information or
any other such reasonable and appropriate requests and shall render effective service, make
repairs promptly and interrupt service only for good cause and for the shortest time possible as
required by state and /or federal law or regulation. NOEL shall promptly respond to
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complaints from customers of the Telecommunications System and shall attempt to promptly
resolve such complaints as required by state and /or federal law or regulation.
6.3 City Franchise Contact Identified. NOEL shall provide all appropriate and
pertinent contact information for the person identified by the City as responsible for handling
questions and complaints for the City regarding NOEL's operation in City streets and rights -
of -way to any and all customers of the Telecommunications System and any interested
persons. Said information shall be provided to such customers in a format acceptable to the
City.
6.4 Notice of Change in Services. Throughout the term of this Franchise, NOEL
shall provide the City written notice of any intended deletions, additions or other
modifications to the Telecommunications Services authorized by this Franchise to be provided
by NOEL.
6.5 Complaints. NOEL hereby acknowledges the City's interest in the prompt
resolution of all complaints made to the City regarding NOEL's operation in City streets and
rights -of -way and NOEL shall work in close cooperation with the City to resolve such
complaints.
6.6 Regulation of Rates and Charges. The City expressly reserves the right to
regulate rates and charges for Telecommunications Services and equipment in accordance
with and to the extent provided by applicable federal or state laws, rules or regulations.
SECTION 7 - COMPENSATION AND FINANCIAL PROVISIONS
7.1 Taxes and Fees.
7.1.1 City Occupation Tax on Utilities.
A. NOEL and the City understand that RCW 35.21.860, as of the effective
date of this Franchise, prohibits imposition of a municipal franchise fee applicable to revenues
from telephone business activities. NOEL agrees that if this statutory prohibition is removed,
and the City obtains the explicit authority from the State to impose a municipal franchise fee
applicable to revenue from telephone business activities, and if the City imposes such a fee on
all other entities engaged in telephone business activities within the City, then NOEL's Gross
Receipts for telephone business activities will be included in the Gross Receipts from its
business activities and subject to a franchise fee. Further, if, during the term of this Franchise,
NOEL should add to or modify the services it offers in such a way so that the aforementioned
prohibition against imposition of a municipal franchise fee did not apply, the City may assess
a reasonable franchise fee. NOEL and the City agree that a reasonable franchise fee would be
no less than five percent (5 %) of NOEL's Gross Receipts for telephone business activities
within the City. NOEL and the City agree that nothing in this Section limits the right of
NOEL to challenge imposition of a municipal franchise fee pursuant to 47 USC § 253.
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B. NOEL and the City further understand and agree that RCW 35.21.870,
as of the effective date of this Franchise, limits the rate of City tax upon telephone business
activities as defined in Yakima Municipal Code ( "YMC ") Section 5.50.050 to six percent
(6 %) of gross receipts, unless a higher rate is approved by a vote of the people. However,
NOEL and the City agree that nothing in this Franchise shall limit the City's power of
taxation, as may now or hereafter exist.
C. NOEL hereby stipulates that all of its business activities in the City as
identified in Section 1.19, A through F, Section 2.4, and Section 2.5, A of this Franchise are
taxable activities subject to the six percent (6 %) rate to be included in gross receipts received,
as imposed under the City's occupation taxes on utilities, adopted in Yakima Municipal Code
Section 5.50.050. Therefore, throughout the term of this Franchise, NOEL shall include all
revenue received from all of its business activities within the City as taxable activities, subject
to the six percent (6 %) rate imposed under the City's occupation taxes on utilities as adopted
in Yakima Municipal Code Section 5.50.050.
7.1.2 Other Fees.
A. NOEL shall pay the City all reasonable costs of granting, enforcing or
reviewing the provisions of this Franchise as ordered by the City manager or designee,
whether as a result of accrued in -house staff time or out -of- pocket expenses or administrative
costs. Such obligation further includes municipal fees related to receiving and approving
permits, licenses or other required approvals, inspecting plans and construction, or relating to
the preparation of a detailed statement pursuant to RCW 43.21C.
B. Upon request of NOEL, the City will submit proof of any charges or
expenses incurred as defined in Section 7.1.2, A of this Franchise. Said charges or expenses
shall be paid by NOEL no later than thirty (30) days after NOEL's receipt of the City's billing
thereof.
C. NOEL shall pay all other taxes and fees applicable to its operations and
activities within the City, all such obligations also being a condition of this Franchise. Such
payments shall not be deemed franchise fees or payments in lieu thereof.
7.2 Payments.
A. NOEL shall make all required payments in the form, intervals and
manner requested by the City director of budget and finance and shall furnish the City any and
all information related to the City's revenue collection functions reasonably requested.
B. As provided for in Section 5.50.090 of the Yakima Municipal Code,
City occupation tax on utilities payments shall be transmitted by NOEL monthly by electronic
funds transfer to such City of Yakima bank account as may be designated by the City director
of budget and finance. Said payments shall be received by the City no later than the 25th of
each month for the preceding calendar month. Not later than the date of each payment, NOEL
shall file with the City a written statement signed by the Telecommunication System manager
of NOEL which identifies in detail the sources and amounts of gross revenues earned by
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NOEL during the month for which payment is made, in accordance with Section 8.1 of this
Franchise. No acceptance of any payment by the City shall be construed as an accord that the
amount paid is, in fact, the correct amount, nor shall such acceptance of payment be construed
as a release of any claim which the City may have for further or additional sums payable under
the provisions of this Franchise.
C. Neither current nor previously paid utility taxes may be subtracted from
the gross revenue amount upon which utility tax payments are calculated and due for any
period. Nor shall any license fee(s) paid by NOEL be subtracted from gross revenues for
purposes of calculating utility tax payments.
D. Any utility taxes owing pursuant to this Franchise which remain unpaid
for more than ten (10) days after the dates specified herein shall be delinquent and shall
thereafter accrue interest at twelve percent (12 %) per annum or two percent (2 %) above prime
lending rate as quoted by major Seattle banks, whichever is greater.
7.3 Financial Records.
A. NOEL shall manage all of its operations in accordance with a policy of
keeping books and records open and accessible to the City. The City shall have the right, as
necessary or desirable for effectively administering and enforcing this Franchise, to inspect at
any time during normal business hours upon thirty (30) days prior written notice, all books,
records, maps, plans, financial statements, service complaint logs, performance test results,
records required to be kept by NOEL and /or any parent company of NOEL pursuant to the
rules and regulations of the FCC, WUTC and other regulatory agencies, and other like
materials NOEL and /or any parent company of NOEL which directly relate to the operation of
this Franchise.
B. Access to the aforementioned records referenced in Section 7.3, A shall
not be denied by NOEL to representatives of the City on the basis that said records contain
"proprietary" information. However, to the extent allowed by Washington law, the City shall
protect the trade secrets and other confidential information of NOEL and /or any parent
company of NOEL.
C. NOEL hereby agrees to meet with a representative of the City upon
request to review its methodology of record keeping, financial reporting, computing utility tax
payments and other procedures, the understanding of which the City deems necessary for
understanding the meaning of such reports and records.
D. The City agrees to request access to only those books and records, in
exercising its rights under this Franchise, which it deems reasonably necessary for the
enforcement and administration of this Franchise.
7.4 Auditing.
A. The City or its authorized agent may at any time conduct an
independent audit of the revenues of NOEL in order to verify the accuracy of utility tax
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payments made to the City. NOEL and each parent company of NOEL shall cooperate fully in
the conduct of such audit. In case of audit, the City director of budget and finance may
require NOEL to furnish a verified statement of compliance with NOEL's obligations or in
response to any questions. Said certificate may be required from an independent certified
public accountant at NOEL's sole expense. All audits will take place on NOEL's premises or
at offices furnished by NOEL, which shall be a location within the City of Yakima. NOEL
agrees, upon request of the City director of budget and finance, to provide copies of all
documents filed with any federal, state or local regulatory agency, to mail to the City on the
same day as filed, postage prepaid, affecting any of NOEL's facilities or business operations
in City.
B. In the event it is determined, as a result of an audit conducted by the
City or its authorized agent, that NOEL has underpaid City utility taxes by five percent (5 %)
or more than was due the City for any given period, then NOEL shall reimburse the City for
the entire cost of such audit and any back utility taxes with interest accrued at twelve percent
(12 %) per annum or two percent (2 %) above prime lending rate as quoted by major Seattle
banks, whichever is greater, within thirty (30) days of the completion and acceptance of the
audit by the City.
7.5 Insurance.
7.5.1 Coverages. NOEL shall maintain, throughout the term of this
Franchise, liability insurance insuring NOEL, its officers, employees and agents, with regard
to all claims and damages specified in Section 7.5 herein, in the minimum amounts as
follows:
(1) Commercial Liability Insurance.
On or before the date this Franchise is fully executed by the parties, NOEL
shall provide the City with a certificate of insurance as proof of commercial liability
insurance with a minimum liability limit of One Million Dollars ($1,000,000)
combined single limit bodily injury and property damage. 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 Franchise. 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 (any
language in the clause to the effect of "but failure to mail such notice shall impose no
obligation or liability of any kind upon the company" shall be crossed out and initialed
by the insurance agent). 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 Franchise, such contractors and /or subcontractors shall
maintain the same minimum limits of liability and comply with all other provisions
discussed above in this subsection entitled "Commercial Liability Insurance."
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(2) Commercial Automobile Liability Insurance.
On or before the date this Franchise 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. 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 Franchise. 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
(any language in the clause to the effect of "but failure to mail such notice shall impose
no obligation or liability of any kind upon the company" shall be crossed out and
initialed by the insurance agent). 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 Franchise, such contractors and /or subcontractors shall
maintain the same minimum limits of liability and comply with all other provisions
discussed above in this subsection entitled "Commercial 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 Franchise 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 Three Million Dollars
($3,000,000). 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.
7.5.2 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. NOEL shall file and maintain a
certificate of insurance along with written evidence of payment of the required premiums with
the manager of the City Community Relations office, or his or her designee.
7.5.3 Alteration of Insurance. Insurance coverages, as required by this
Franchise, 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 Franchise, in order to adequately cover the risks of
the City, NOEL and NOEL's officers, agents and employees, the City may require additional
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insurance to be acquired by NOEL. Should the City exercise its right to require additional
insurance, the City will provide NOEL with written notice.
7.5.4 Failure to Procure. NOEL acknowledges and agrees, by acceptance of
this Franchise, that failure to procure and maintain the insurance coverages as detailed in
Section 7.5.1 of this Franchise shall constitute a material breach of this Franchise, as provided
for in Section 2.10, B, 3) of this Franchise. In the event of such failure to procure and
maintain the referenced insurance coverages, the City may immediately suspend NOEL's
operations under this Franchise, terminate or otherwise revoke this Franchise and /or, at its
discretion, procure or renew such insurance in order to protect the City's interests and be
reimbursed by NOEL for all premiums in connection therewith.
7.6 Performance Bond. Prior to the effective date of this Franchise, NOEL shall
furnish to the City proof of the posting of a performance bond running to the City, with good
and sufficient surety approved by the City, in the penal sum of One Hundred Thousand
Dollars ($100,000), conditioned that NOEL shall well and truly observe, fulfill and perform
each term and condition of this Franchise. NOEL shall pay all premiums charged for said
bond. Said bond shall be effective to continue obligation for the term of this Franchise,
including any extensions, and thereafter until NOEL or any successor or assign of NOEL has
liquidated all of its obligations with the City that may have arisen from the acceptance of this
Franchise by NOEL or from its exercise of any privilege herein granted. Said bond shall
contain a provision stating that said bond shall not be terminated or otherwise allowed to
expire without thirty (30) days prior written notice having been provided to the City. The
form and content of said bond and any associated documents shall be approved in advance by
the City Attorney, or his or her designee. NOEL shall provide a duplicate copy of said bond
to the City and said duplicate copy shall be kept on file at the City Community Relations
office or its successor(s). Neither the provisions of this Section nor any performance bond
accepted by the City pursuant thereto, nor any damages or other amounts recovered by the
City thereunder, shall be construed to excuse faithful performance by NOEL or to limit
liability of NOEL under this Franchise either to the full amount of the performance bond or
otherwise, except as otherwise provided herein.
7.7 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, employees, contractors or subcontractors, whether or not such acts or omissions
were authorized or contemplated by this Franchise or applicable law, including by not limited
to the construction, installation, maintenance, alteration or modification of the
Telecommunication System; arising from actual or alleged injury to persons or property,
including the loss of use of property due to an occurrence, whether or not such property is
physically damaged or destroyed; arising out of or alleged to arise out of any claim for
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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 Franchise 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.
E. It is not the intent of this Franchise to acknowledge, create, imply or
expand any duty or liability of the City with respect to its role as a franchising authority, in the
exercise of its police powers or for any other purpose. Any City duty nonetheless deemed
created shall be a duty to the general public and not to any specific party, group or entity.
SECTION 8 — REPORTING REQUIREMENTS
All reports required under Section 8 of this Franchise may be requested by the City to be
provided by NOEL in hard copy and /or electronic format compatible with City databases,
including, but not limited to, the GIS system.
8.1 Monthly Reports. As provided for in Section 5.50.090 of the Yakima
Municipal Code, within twenty -five (25) calendar days after the end of the previous month,
NOEL shall submit to the City a completed form reporting any and all revenues for the
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previous month. Said reports shall be verified by an officer or other authorized representative
of NOEL. Said reports shall contain an accurate statement in summarized form, as well as in
detail, of NOEL's gross revenues and the computation basis and method. These reports shall
be in a form reasonably required by the City. The City may, from time to time, make such
reasonable amendments to the forms as are required to ensure that all gross revenues are
reported clearly and accurately.
8.2 Annual Reports. Not later than sixty (60) days following the end of NOEL's
fiscal year each year, NOEL shall present, at its sole expense, a written report to the City
which shall include:
(1) Full financial statements for the previous year, including income
statement, balance sheet, cash flow statement, and appropriate explanatory footnotes,
for Noel Communications, Inc., and a full income statement with appropriate
explanatory footnotes for the Telecommunications System with specific breakouts for
the System within the corporate limits of the City of Yakima. All financial statements
shall be certified by an officer or other authorized representative of NOEL to be an
accurate reflection of NOEL's books and records. In the event any audited financial
report has not been published by the date due under this Section, then the audited
financial report shall be deemed presented on time if presented within thirty (30) days
after publication.
(2) A current list of all of NOEL's officers and directors or partners, if any,
including postal addresses, telephone numbers and, where applicable, electronic mail
addresses.
(3) The names and business postal addresses, telephone numbers and,
where applicable, the electronic mail addresses of the Telecommunications System's
local manager and engineer.
(4) Complete and accurate maps of the Telecommunications System
including the location of Facilities.
(5) A description of future plans by NOEL to expand or alter the
Telecommunications System and /or expand or alter services provided over the
Telecommunications System.
8.3 Monitoring and Compliance Reports. Only upon request of the City, but no
more than once per year, NOEL shall provide a written report of any and all technical
performance tests for the Telecommunications System required by the FCC, WUTC or any
other governmental agency having jurisdiction over the Telecommunications System.
8.4 Additional Reports. NOEL shall prepare and furnish to the City or any other
entity exercising lawful regulatory authority in connection with this Franchise, at the times
and in the form prescribed by the City or such other regulatory entity, such additional reports
with respect to NOEL's operations, affairs, transactions or property, as may be reasonably
necessary and appropriate to the performance of the rights, functions or duties of the City or
such other regulatory entity in connection with this Franchise.
8.5 Communication with Regulatory Agencies. NOEL shall simultaneously file
with the City a copy of each petition, application, tariff, report or any other communication
related to the Telecommunications System transmitted by NOEL to, or received by NOEL
from, any federal, state or other regulatory commissions or agencies having competent
jurisdiction to regulate the construction or operation of the Telecommunications System,
including, specifically, the FCC and the WUTC. In addition, NOEL and its affiliates shall
within ten (10) days of any communication transmitted by NOEL to, or received by NOEL
from, any judicial or regulatory agency regarding any alleged or actual violation of a law,
regulation or other requirement related to the Telecommunications System, provide the City a
copy of the communication, whether specifically requested by the City to do so or not.
8.6 Preservation of Confidential Information. The City shall protect
information provided to the City by NOEL designated as confidential or proprietary by NOEL,
given such information had been so designated at the time it was provided to the City, to the
maximum extent permissible under Chapter 42.17 RCW, or as provided by other state law as
it may now or hereafter exist.
SECTION 9 — REMEDIES AND PROCEDURE FOR REMEDYING
FRANCHISE VIOLATIONS
9.1 Remedies for Franchise Violations.
A. In addition to the remedies set forth elsewhere in this Franchise, the
City shall have the right to assert any or all of the following remedies in the event NOEL
violates or defaults on, as determined by the City, any provision of this Franchise:
(1) Drawing upon or foreclosing all or any part of any security provided
under this Franchise, including without limitation the Faithful Performance Bond
provided for under Section 7.6 herein; PROVIDED, however, such drawing or
foreclosure shall be only in such a manner and in such amount as the City reasonably
determines is necessary to remedy the violation or default. Should the City take such
action as described herein, NOEL shall be responsible for all direct and actual costs
related to such action, including, but not limited to, legal and administrative costs
incurred by the City;
(2) Commence an action at law for monetary damages or seek other
equitable relief,
(3) In the case of substantial violation or default, as determined by the City,
of a material provision of this Franchise, declare this Franchise to be revoked;
(4) Seek specific performance of any provision of this Franchise, which
reasonably lends itself to such remedy, as an alternative to seeking damages.
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B. In determining which remedy or remedies, as set forth herein, are
appropriate, the City shall take into consideration the nature and extent of the violation or
default, the remedy needed to prevent such violations or defaults from occurring in the future,
whether NOEL has a history of previous violations of the same or similar kind and such other
considerations as are appropriate under the circumstances.
9.2 Procedure for Remedying Franchise Violations.
9.2.1 Notice of Violation. In the event the City determines NOEL has not
complied with any term or condition of this Franchise, the City shall notify NOEL of the exact
nature of the alleged noncompliance.
9.2.2 NOEL's Right to Cure or Respond. NOEL shall have thirty (30)
days from receipt of notice by the City of any alleged noncompliance with any term or
condition of this Franchise to:
(1) Respond to the City contesting the assertion of noncompliance; or
(2) Cure such violation or default or, in the event that by the nature of the
violation or default such violation or default cannot be cured within a thirty (30) day
period, initiate reasonable steps to remedy such violation or default and notify the City
of the steps being taken and the projected date such remedy will be completed.
9.2.3 Public Hearing. In the event NOEL fails to respond to a notice, as
described herein, or in the event NOEL fails to cure such violation or default pursuant to the
procedures set forth herein, the City shall schedule a public hearing to investigate any alleged
violation or default. The City shall provide NOEL twenty (20) calendar days notice of the
time and place of such hearing and provide NOEL an opportunity to be heard at such hearing.
9.3 Enforcement. In the event the City, after such hearing as described in
subsection 9.2.3 of this Franchise has been conducted, upholds its determination that NOEL
has violated or defaulted on any provision of this Franchise, the City may impose any of the
remedies set out in Section 9. 1, A of this Franchise.
9.4 Failure to Enforce. NOEL shall not be relieved of any of its obligations to
comply promptly with any provision of this Franchise by reason of any failure of the City to
enforce prompt compliance, and the City's failure to enforce shall not constitute a waiver of
rights or acquiescence in NOEL's conduct.
9.5 Acts of Nature. NOEL shall not be held in violation, default or
noncompliance with the provisions of this Franchise, nor suffer any enforcement or penalty
related thereto, where such violation, default or noncompliance is caused by acts of nature,
power outages or other events reasonably beyond its ability to control. However, NOEL shall
take all reasonable steps necessary to provide service despite such occurrences.
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9.6 Alternative Remedies. Nothing in this Franchise shall be deemed to bar the
right of the City or NOEL to seek or obtain judicial relief from any violation of this Franchise
or any rule, regulation, requirement or directive promulgated thereunder. Neither the
existence of other remedies identified in this Franchise nor the exercise thereof shall be
deemed to bar or otherwise limit the right of the City to recover monetary damages for such
violation by NOEL, or to seek and obtain judicial enforcement of NOEL's obligations under
this Franchise by means of specific performance, injunctive relief or mandate, or any other
judicial remedy at law or in equity.
SECTION 10 — MISCELLANEOUS PROVISIONS
10.1 Posting and Publication. NOEL shall assume the cost of posting and
publication of this Franchise as such posting and publication is required by law, and such is
payable upon NOEL's filing of acceptance of this Franchise.
10.2 Service of Notice. Except as otherwise specifically provided herein, any
notice required or permitted to be given under this Franchise shall be deemed sufficient if
provided in writing and when (1) delivered personally to the following addressee(s) or
deposited with the United States Postal Service, postage paid, certified or registered mail;
(2) sent by overnight or commercial air courier; or (3) sent by facsimile transmission
addressed as follows, or to such other address as the receiving party hereafter shall specify in
writing:
Notices to the City shall be addressed to the following:
Randy Beehler, Communications & Public Affairs Director
City of Yakima Community Relations office
129 N. 2nd Street
Yakima, WA 98901
Notices to NOEL shall be addressed to the following:
Noel Communications, Inc.
901 Pitcher Street
Yakima, Wa. 98901
Attn: Toni Thomas, Contract Administrator
Facsimile Number: 509- 457 -5008
With a copy to:
Noel Communications, Inc.
901 Pitcher Street
Yakima, Wa. 98901
Attn: Operations Manager
Facsimile Number: 509- 457 -5008
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10.3 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
Franchise. In the event any valid and superior law, rule or regulation of any governing
authority or agency having jurisdiction contravenes the provisions of this Franchise
subsequent to its adoption, then the provisions of this Franchise shall be superseded only to
the limited extent that the provisions hereof are in conflict and contrary to any such law, rule
or regulation. Nothing in this Franchise shall limit the City's right of eminent domain under
state law. Nothing in this Franchise shall be deemed to waive the requirements of any lawful
code or resolution of the City regarding permits, fees to be paid or manner of construction.
10.4 Governing Law and Venue. This Franchise shall be governed by and
construed in accordance with the laws of the State of Washington, and venue for any litigation
arising out of or in connection with privileges extended herein is stipulated to be in Yakima
County.
10.5 Severability. If any section, subsection, sentence, clause, phrase or portion of
this Franchise is for any reason declared by a court of competent jurisdiction to be void,
invalid or unenforceable, such portion shall be deemed a separate, distinct and independent
provision and such declaration shall not affect the validity of the remaining portions thereof.
In such event, the City and NOEL shall negotiate in good faith to modify this Franchise as
may be necessary to meet the requirements of the law and /or to effectuate the intention of this
Franchise. In the event that such modifications are barred by any legal requirements
governing any party, the City and 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 Franchise.
10.6 Guarantee of Performance. NOEL hereby agrees that it enters into this
Franchise voluntarily and in order to secure and in consideration of the grant from the City of
a nine -year franchise. Performance pursuant to the terms and conditions of this Franchise is
guaranteed by NOEL.
10.7 Force Majeure.
A. For the purposes of this Section, the term "Force Majeure" shall mean
acts of God, landslides, earthquakes, lightning, fires, hurricanes, volcanic activity, storms,
floods, washouts, droughts, civil disturbances, acts of terrorism or of the public enemy, partial
or entire failure of utilities, strikes, explosions, lockouts or other industrial disturbances,
insurrections, public riots or other similar events which are not reasonably within in the
control of the parties hereto.
B. If NOEL is wholly or partially unable to carry out its obligations under
this Franchise as a result of a Force Majeure, NOEL shall provide the City prompt notice of
such Force Majeure, describing the same in reasonable detail, and NOEL's obligations under
this Franchise, other than for payment of moneys due, shall not be deemed in violation or
default for the duration of the Force Majeure. NOEL agrees to use its best efforts to remedy
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as soon as possible, under the circumstances, NOEL's inability, by reason of Force Majeure,
to carry out its responsibilities and duties under this Franchise.
10.8 City Right of Intervention. If the City otherwise has the right to intervene,
NOEL expressly acknowledges and agrees, by acceptance of this Franchise, not to oppose
such intervention by the City in any suit or proceeding to which NOEL is a party related to
this Franchise.
10.9 Consent. Wherever the consent or approval of either NOEL or the City is
specifically required in this Franchise, such consent or approval shall not be unreasonably
withheld.
10.10 No Third Party Beneficiaries. There shall be no third party beneficiaries of
this Franchise.
10.11 Franchise Ordinance Acceptance. NOEL shall execute and return to the
City, within sixty (60) days after the date of adoption of the Franchise Ordinance by the
Yakima City Council, three (3) original Franchise Agreements, by which NOEL
acknowledges that it has carefully read the terms and conditions of the Franchise Ordinance
and accepts all of the terms and conditions of the Franchise Ordinance and this Franchise and
agrees to abide by the same. In accepting this Franchise, NOEL shall indicate that it has relied
upon its own investigation of all relevant facts, that it has had the assistance of counsel, that it
was not induced to accept this Franchise, that the Franchise Ordinance represents the entire
agreement between NOEL and the City and that NOEL accepts all reasonable risks related to
the interpretation of the Franchise Ordinance and this Franchise. The executed Franchise
Agreements shall be returned to the City accompanied by the Letter of Credit as required in
Section 7.6 of this Franchise and evidence of insurance as required in Sections 7.5.1 and 7.5.2
of this Franchise. In the event NOEL fails to submit a Franchise Agreement as provided for
herein, or fails to provide the required accompanying documents, this Franchise shall be null
and void.
10.12 Previous Rights Abandoned. This Franchise supersedes any and all other
rights, privileges, powers, immunities and authorities owned, possessed, controlled or
exercisable by NOEL pursuant to any previous franchise in the City.
10.13 Effective Date. This Franchise and the Franchise Ordinance shall be effective
thirty (30) days after its adoption; PROVIDED, however, that if NOEL does not accept this
Franchise pursuant to Section 10.11 of this Franchise and comply with all conditions for such
acceptance set forth herein within sixty (60) days after the adoption of the Franchise
Ordinance, this Franchise and the Franchise Ordinance shall be null and void.
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PASSED BY THE CITY COUNCIL, signed and approved this day of , 2015.
CITY OF YAKIMA NOEL COMMUNICATIONS, INC.
Micah Cawley, Mayor
Attest:
City Clerk
City Contract No:
Ordinance No:
State of )
)ss.
County of )
By:
Its:
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 , 2015.
Print Name:
NOTARY PUBLIC in and for the State of
, residing at
My commission expires:
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