HomeMy WebLinkAbout4057 Ordinance - Franchise Agr - LightSpeeed Networks, Inc. ORDINANCE NO. L/657
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AN ORDINANCE of the City of Pasco, Washington, Approving the
LightSpeed Networks, Inc., (dba LS Networks) Franchise and Authorizing the
Mayor to sign the Franchise Agreement
WHEREAS,the City of Pasco, Washington ("City") and LightSpeed Networks, Inc., dba
LS Networks ("Franchisee"), are parties to the Franchise Agreement attached hereto as Exhibit
A; and
WHEREAS, the City has authority to regulate telecommunication franchises pursuant to
RCW 35A.47.040 and Pasco Municipal Code Chapter 15.10; and
WHEREAS, the City has reviewed Franchisee's application for a franchise and
determined that the Franchisee possesses the legal, technical and financial capability to operate
within the City's rights-of-way; and that the grant of a franchise will meet the standards set forth
in Pasco Municipal Code Section 15.10.050; and
WHEREAS, the City and Franchisee have mutually negotiated a Franchise Agreement
containing the Franchisee's obligations and responsibilities while operating within the City's
rights -of-way; and
WHEREAS, the City has provided opportunities to the public for participation in the
application process by publishing this Ordinance and by conducting a public hearing on May 7,
2012; NOW, THEREFORE,
THE CITY COUNCIL OF THE CITY OF PASCO, WASHINGTON, DO ORDAIN
AS FOLLOWS:
Section 1. That Franchisee is hereby granted a franchise subject to the terms and
conditions of the Franchise Agreement attached hereto as Exhibit A; and furthermore, the Mayor
of the City of Pasco, Washington, is hereby authorized to execute said Franchise Agreement.
Section 2. This Ordinance shall take full force and effect five (5) days after its approval,
passage, and publication as required by law.
PASSED by the City Council of the City of Pasco, Washington, and approved as
provided by law this 2- day of 11.0. , 2012.
Matt Watkins, Mayor
AT ES • APP OVED AS TO FORM:
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Debra lark, City Clerk Le and B. ={err, City ttor4iey
FRANCHISE AGREEMENT
THIS FRANCHISE AGREEMENT entered into this Z day of
, 2012, by and between the City of Pasco, Washington, a Washington
Municipal Cokporation (hereinafter referred to as "City", and LightSpeed Networks Inc., dba LS
Networks, an Oregon Corporation (hereinafter referred to as "Franchisee").
WHEREAS, Section 35A.47.040 and Chapter 35.99 of the Revised Code of Washington
authorize the City to grant, permit, and regulate non-exclusive franchises for the use of public
ways; and
WHEREAS, Franchisee has applied to the City for a non-exclusive franchise to enter,
occupy, and use public ways to construct, install, operate, maintain, and repair fiber optic
facilities to offer and provide telecommunications service for hire, sale, or resale in the City of
Pasco; and
WHEREAS, a franchise is a legislatively approved master permit granting general
permission to a service provider to enter, use, and occupy the public ways for the purpose of
locating facilities subject to requirements that a franchisee must also obtain separate use permits
from the City for use of each and every specific location in the public ways in which the
franchisee intends to construct, install, operate, maintain, repair or remove identified facilities;
and
WHEREAS, a franchise does not include, and is not a substitute for any other permit,
agreement, or other authorization required by the City, including without limitation, permits
required in connection with construction activities in public ways which must be administratively
approved by the City after review of specific plans; and
WHEREAS, the City has conducted a public hearing and reviewed the application based
upon the standards set forth in Pasco Municipal Code Section 15.10.050 (A); and
WHEREAS, the City approved this Franchise Agreement pursuant to RCW 35A.47.040
at the next regularly scheduled Council meeting following the public hearing pursuant to
Ordinance No. ; and
WHEREAS, the City finds that the franchise terms and conditions contained in this
Agreement are in the public interest.
NOW,THEREFORE,the Parties do agree as follows:
1. DEFINITIONS. For the purposes of this Agreement, all terms shall have the meaning as
defined in PMC 15.10.020. Terms not specifically defined therein shall be given their
ordinary meaning. The following additional definitions shall apply:
A. "Conduit" means optical cable housing, jackets, or casing, and pipes, tubes, or
tiles used for receiving and protecting wires, lines, cables, and communication and
signal lines.
B. "Dark Fiber" means properly functioning optical cable which is not used or
available for use by Franchisee or the general public.
C. Gross Revenue" means Any and all revenue, of any kind, nature, or form, without
deduction for expense in the City and as further defined in Section 10. All such
revenue remains subject to applicable FCC rules and regulations.
D. "Information" means knowledge or intelligence represented by any form of
writing, signs, signals, pictures, sounds, or any other symbols.
E. "Optical Cable" means wires, lines, cables and communication and signal lines
used to convey communications by fiber optics.
2. FRANCHISE.
A. The City grants to Franchisee, subject to the terms and conditions of this
Agreement and PMC Title 15, a non-exclusive franchise to enter, occupy, and use
public ways for constructing, installing, operating, maintaining, repairing, and
removing wireline facilities necessary to provide telecommunications services.
Franchisee shall construct, install, operate, maintain, repair, and remove its
facilities at its expense.
B. Any rights, privileges, and authority granted to Franchisee under this Franchise
are subject to the legitimate rights of the police power of the City to adopt and
enforce general ordinances necessary to protect the safety and welfare of the
public, and nothing in this Franchise excuses Franchisee from its obligation to
comply with all applicable general laws enacted by the City pursuant to such
power. Any conflict between the terms or conditions of this Franchise and any
other present or future exercise of the City's police powers will be resolved in
favor of the exercise of the City's police power.
C. Nothing in this Franchise excuses Franchisee of its obligation to identify its
facilities and proposed facilities and their location or proposed location in the
public ways and to obtain use and/or development authorization and permits from
the City before entering, occupying, or using public ways to construct, install,
operate, maintain, repair, or remove such facilities.
D. Nothing in this Franchise excuses Franchisee of its obligation to comply with
applicable codes, rules, regulations, and standards subject to verification by the
City of such compliance.
LS Networks Franchise Agreement - Page 2
E. Nothing in this Franchise shall be construed to create a duty upon the City to be
responsible for construction of facilities or to modify public ways to accommodate
Franchisee's facilities.
F. Nothing in this Franchise grants authority to Franchisee to provide or offer cable
television service.
G. Nothing in this Franchise shall be construed to create, expand, or extend any
liability to the City or to any third party user of Franchisee's facilities or to
otherwise recognize or create third party beneficiaries to this Franchise.
3. TERM. Authorization granted under this Franchise shall be for a period of ten(10)years
from the effective date of this Franchise. The Franchise may be renewed as provided in
PMC Chapter 15.20. This Agreement shall be effective five (5) days following the
passage of an authorizing Ordinance and publication of this Franchise, or a summary
thereof, occurs in a newspaper of general circulation in the City pursuant to RCW
35A.47.040, or upon execution by all parties hereto whichever occurs later.
4. LOCATION OF FACILITIES. Franchisee will locate its facilities consistent with the
requirements of PMC Title 15 and as directed by the City Engineer. Prior to installation
of any facilities, Franchisee shall obtain all required City permits.
5. COORDINATION OF CONSTRUCTION AND INSTALLATION ACTIVITIES
AND OTHER WORK. All construction or installation locations, activities and
schedules shall be coordinated, as ordered by the City consistent with PMC Chapter 15.70
and as directed by the City Engineer, to minimize public inconvenience, disruption or
damages.
6. HOLD HARMLESS AND ASSUMPTION OF RISK.
A. Hold Harmless.
(1) Franchisee hereby releases, covenants not to bring suit and agrees to
indemnify, defend and hold harmless the City, its elected officials,
officers, employees, servants, agents, and representatives against any and
all claims, costs, damages, judgments, awards, or liability, of any kind
whatsoever, to any person, including claims by Franchisee's own
employees to which Franchisee might otherwise be immune under Title 51
RCW, arising from injury or death of any person or damage to property
arising out of the acts or omissions of Franchisee, its officers, employees,
servants, agents or representatives.
(2) Franchisee further releases, covenants not to bring suit and agrees to
indemnify, defend and hold harmless the City, its elected officials,
officers, employees, servants, agents, and representatives from any and all
LS Networks Franchise Agreement - Page 3
claims, costs, damages, judgments, awards, or liability to any person,
including claims by Franchisee's own employees, including those claims
to which Franchisee might otherwise have immunity under Title 51 RCW,
arising out of Franchisee's exercise of the rights, privileges, or authority
granted by this Franchise which are made against the City, in whole or in
part, due to the City's ownership or control of the public ways or other
City property, by virtue of the City permitting the Franchisee's entry,
occupancy or use of the public ways, or based upon the City's inspection
or lack of inspection of work performed by Franchisee, its officers,
employees, servants, agents or representatives.
(3) These hold harmless covenants include, but are not limited to claims
against the City arising as a result of the acts or omissions of Franchisee,
its officers, employees, servants, agents or representatives in barricading,
instituting trench safety systems or providing other adequate warnings of
any excavation, construction, or work in any public way or other public
place in performance of work or services permitted under this Franchise.
(4) Franchisee further agrees to indemnify, hold harmless and defend the City,
its elected officials, officers, employees, servants, agents, and
representatives against any claims for damages, including, but not limited
to, business interruption damages and lost profits, brought by or under
users of the Franchisee's facilities as the result of any interruption of
service due to damage or destruction of the user's facilities caused by or
arising out of damage or destruction of Franchisee's facilities, except to
the extent any such damage or destruction is caused by or arises from the
active sole negligence or willful misconduct of the City.
(5) In the event of liability for damages arising out of bodily injury to persons
or damages to property caused by or resulting from the concurrent
negligence of Franchisee and the City, Franchisee's liability hereunder
shall be only to the extent of Franchisee's negligence.
(6) It is further specifically and expressly understood that the hold harmless
covenants provided herein constitutes the Franchisee's waiver of immunity
under Title 51 RCW. This waiver has been mutually negotiated by the
parties.
(7) Inspection or acceptance by the City of any work performed by Franchisee
at the time of completion of construction or installation shall not be
grounds for avoidance of any of these hold harmless covenants. Said hold
harmless obligations shall extend to claims which are not reduced to a suit
and any claims which may be compromised prior to the culmination of any
litigation or the institution of any litigation.
LS Networks Franchise Agreement- Page 4
(8) In the event that Franchisee refuses the tender of defense in any suit or any
claim, said tender having been made pursuant to the hold harmless
covenants contained herein, and said refusal is subsequently determined by
a court having jurisdiction (or such other tribunal that the parties shall
agree to decide the matter), to have been a wrongful refusal on the part of
Franchisee, then Franchisee shall pay and be responsible for all of the
City's costs for defense of the action, including all reasonable expert
witness fees and reasonable attorneys' fees and the reasonable costs of the
City, including reasonable attorneys' fees of recovering under this hold
harmless clause.
B. Assumption of Risk.
(1) Franchisee assumes the risk of damage to its facilities located in the City's
public ways from activities conducted by third parties or the City, its
elected officials, officers, employees, servants, agents, or representatives.
Franchisee releases and waives any and all claims against the City, its
elected officials, officers, employees, servants, agents, and representatives
for damage to or destruction of the Franchisee's facilities except to the
extent any such damage or destruction is caused by or arises from active
sole negligence or willful misconduct of the City.
(2) Franchisee bears sole responsibility to insure its property. Franchisee shall
ensure that its insurance contracts waive subrogation claims against the
City, its elected officials, officers, employees, servants, agents, and
representatives, and Franchisee shall indemnify, defend and hold harmless
the City, its elected officials, officers, employees, servants, agents, and
representatives against any and all subrogation claims if it fails to do so.
7. INSURANCE. Franchisee shall obtain and maintain, at its cost, worker's compensation
insurance and the following liability insurance policies insuring both Franchisee and the
City, and its elected and appointed officers, officials, agents, employees, representatives,
engineers, consultants, and volunteers as additional insureds against claims for injuries to
persons or damages to property which may arise from or in connection with the exercise
of the rights, privileges, and authority granted to Franchisee:
A. Comprehensive general liability insurance, written on an occurrence basis, with
limits not less than:
(1) $1,000,000.00 for bodily injury or death to each person;
(2) $1,000,000.00 for property damage resulting from any one accident; and
(3) Franchisee and its contractors and/or subcontractors shall maintain
umbrella liability insurance coverage, in an occurrence form, over
underlying commercial liability and automobile liability of$5,000,000.
LS Networks Franchise Agreement - Page 5
B. Automobile liability for owned, non-owned and hired vehicles with a limit of
$1,000,000.00 per occurrence.
C. The liability insurance policies required by this section shall be maintained by
Franchisee throughout the term of this Franchise, such other periods of time
during which Franchisee's facilities occupy public ways, and while Franchisee is
engaged in the removal of its facilities. Franchisee shall provide an insurance
certificate, together with an endorsement naming the City, and its elected and
appointed officers, officials, agents, employees, representatives, engineers,
consultants, and volunteers as additional insureds, to the City prior to the
commencement of any construction or installation of any facilities pursuant to this
Franchise or other work in a public way. Any deductibles or self-insured
retentions must be declared to and approved by the City. Payment of deductibles
and self-insured retentions shall be the sole responsibility of Franchisee. The
insurance certificate required by this section shall contain a clause stating that
coverage shall apply separately to each insured against whom claim is made or
suit is brought, except with respect to the limits of the insurer's liability.
Franchisee's insurance shall be primary insurance with respect to the City, its
officers, officials, employees, agents, consultants, and volunteers. Any insurance
maintained by the City, its officers, officials, employees, consultants, agents, and
volunteers shall be in excess of the Franchisee's insurance and shall not contribute
with it.
D. In addition to the coverage requirements set forth in this section, each such
insurance policy shall contain an endorsement in a form which substantially
complies with the following:
"It is hereby understood and agreed that this policy may not be canceled
nor the intention not to renew be stated until 10 days after receipt by the
City, by registered mail, of a written notice addressed to the Pasco City
Manager of intent to cancel or not to renew for reason of nonpayment of
premium and until 30 days after receipt by the City, by registered mail, of
a written notice addressed to the Pasco City Manager of intent to cancel or
not to renew for reason for any other reason."
E. At least ten (10) days prior to said cancellation or non-renewal, Franchisee shall
obtain and furnish to the City replacement insurance policies meeting the
requirements of this section.
8. SECURITY FUND. The fund described herein shall be considered an additional security
and protection above, beyond and in addition to those rights and remedies already
provided by other law including, but not limited to, PMC Title 15. Franchisee shall
establish and maintain a security fund in the amount of ten thousand dollars ($10,000), at
its cost, with the City by depositing such monies, bonds, letters of credit, or other
instruments in such form and amount acceptable to the City. No sums may be withdrawn
LS Networks Franchise Agreement - Page 6
from the fund by Franchisee without consent of the City. The security fund shall be
maintained at the sole expense of Franchisee so long as any of the Franchisee's facilities
occupy a public way.
A. The fund shall serve as security for the full and complete performance of this
Franchise, including any claims, costs, damages, judgments, awards, or liability,
of any kind whatsoever, the City pays or incurs, including civil penalties, because
of any failure attributable to Franchisee to comply with the provisions of this
Franchise or the codes, ordinances, rules, regulations, standards, or permits of the
City.
B. Before any sums are withdrawn from the security fund, the City shall give written
notice to Franchisee:
(1) Describing the act, default or failure to be remedied, or the claims, costs,
damages, judgments, awards, or liability which the City has incurred or
may pay by reason of Franchisee's act or default;
(2) Providing a reasonable opportunity for Franchisee to first remedy the
existing or ongoing default or failure, if applicable;
(3) Providing a reasonable opportunity for Franchisee to pay any monies due
the City before the City withdraws the amount thereof from the security
fund, if applicable; and
(4) Franchisee will be given an opportunity to review the act, default or failure
described in the notice with the City or his or her designee.
C. Franchisee shall replenish the security fund within fourteen (14) days after written
notice from the City that there is a deficiency in the amount of the fund.
D. Insufficiency of the security fund shall not release or relieve Franchisee of any
obligation or financial responsibility.
9. TAXES, CHARGES,AND FEES.
A. Franchisee shall pay and be responsible for all charges and fees imposed to
recover actual administrative expenses incurred by the City that are directly
related to receiving and approving this Franchise, any use and/or development
authorizations which may be required, or any permit which may be required, to
inspect plans and construction, or to the preparation of a detailed statement
pursuant to RCW Ch. 43.21C. Regular application and processing charges and
fees imposed by the City shall be deemed to be attributable to actual
administrative expenses incurred by the City but shall not excuse Franchisee from
paying and being responsible for other actual administrative expenses incurred by
LS Networks Franchise Agreement - Page 7
the City. Following the execution of this Franchise Agreement, Franchisee shall
pay to the City, within thirty (30) days of the date of its billing, reimbursement for
actual expenses for meeting notice and ordinance publications required in
connection with the franchise approval.
B. Franchisee shall pay and be responsible for taxes permitted by law.
10. COMPENSATION FRANCHISE FEE.
A. Franchisee warrants that it is not engaged in any of the activities of a "Telephone
Business" as used in RCW 35.21.860 and defined in RCW 82.16.010. Franchisee
warrants that it is not engaged in any of the activities of a "Service Provider" as
used in RCW 35.21.860 and defined in RCW 35.99.010. In consideration of
permission to use the streets and Rights-of-Way of the City for the construction,
operation, and maintenance of a Telecommunications system within the Franchise
area, and to compensate the City for actual costs incurred in administration of the
Franchise and as a result of Franchisee's occupancy of City Rights-of-Way, the
Franchise shall pay to City during the term of this Franchise an amount equal to
seven percent (7%) of the Franchisee's Gross Revenues ("Franchise Fee"). Any
net uncollectibles, bad debts or other accrued amounts deducted from Gross
Revenues shall be included in Gross Receipts at such time as they are actually
collected. Revenue from point to point services is based on the pro-rata share of
the revenue from those services.
B. Modification Resulting from Action by Law. Upon thirty days' notice and in the
event any law or valid rule or regulation applicable to this Franchise limits the
Franchise Fee below the amount provided herein, or as subsequently modified,the
Franchisee agrees to and shall pay the maximum permissible amount and, if such
law or valid rule or regulation is later repealed or amended to allow a higher
permissible amount, then Franchisee shall pay the higher amount commencing
from the date of such repeal or amendment, up to the maximum allowable by law.
C. Payment of Franchise Fees. Payments due under this provision shall be computed
and paid quarterly for the preceding quarter, as of March 31, June 30, September
30, and December 31, each quarterly payment due and payable no later than 45
days after such dates. Not later than the date of each payment, the Franchisee
shall file with the City a written statement, in a form satisfactory to the City and
signed under penalty of perjury by an officer of the Franchisee, identifying in
detail the amount of gross revenue received by the Franchisee, the computation
basis and method, for the quarter for which payment is made.
D. The Franchise Fee shall not be deemed to be in lieu of or a waiver of any ad
valorem property tax which the City may now or hereafter be entitled to, or to
participate in, or to levy upon the property of Franchisee.
LS Networks Franchise Agreement- Page 8
E. The regulatory fees and costs provided for in this Franchise, and any
compensation charged and paid for the use of City property, are separate from,
and additional to, any and all federal, state, local and City taxes as may be levied,
imposed or due. Fees are intended to compensate the City as a reasonable estimate
of actual costs that will be incurred in administering the Franchise and as a result
of Franchisee's occupancy of City Rights-of-Way. To mitigate impacts to City
Rights-of-Way Franchise fees paid to the City shall be allocated first to the Street
Fund.
11. VACATION OF PUBLIC WAYS. The City reserves the right to vacate any public way
which is subject to rights, privileges, and authority granted by this Franchise. If
Franchisee has facilities in such public way, the City shall reserve an easement for
Franchisee. Franchisee acknowledges its responsibility to provide the City with
information on its system/facilities, pursuant to PMC sections 15.70.100 and 15.70.310.
12. Competitively Neutral Application. The City shall impose, on a competitively neutral
and nondiscriminatory basis, similar terms and conditions upon other similarly situated
providers of Telecommunications services operating within the City. Any requirement
imposed on Franchisee that is determined by a court of competent jurisdiction not in
compliance with this Section 12 shall be unenforceable against Franchisee, and shall be
subject to renegotiation pursuant to the same procedure as described in Section 20..
13. RECORDS.
A. Franchisee will manage all of its operations in accordance with a policy of
keeping its documents and records open and accessible to the City. The City will
have access to, and the right to inspect, any documents and records of Franchisee
and its affiliates that are reasonably necessary for the enforcement of this
Franchise or to verify Franchisee's compliance with terms or conditions of this
Franchise. Franchisee will not deny the City access to any of Franchisee's records
on the basis that Franchisee's documents or records are under the control of any
affiliate or a third party. Franchisee will take all steps necessary to assist the City
in complying with the Public Records Act, RCW Chapter 42.56, including
providing the City with a written statement identifying how long it will take to
produce records not immediately available, and for any records that are not
disclosed in whole or in part, a written statement from Franchisee's legal counsel
stating the authority upon which the documents are withheld
B. All documents and records maintained by Franchisee shall be made available for
inspection by the City at reasonable times and intervals; provided, however, that
nothing in this section shall be construed to require Franchisee to violate state or
federal law regarding subscriber privacy, nor shall this section be construed to
require Franchisee to disclose proprietary or confidential information without
adequate safeguards for its confidential or proprietary nature. The City agrees that
such information is confidential and that the City will use such information only
LS Networks Franchise Agreement - Page 9
for the purpose of managing its Rights-of-Way, determining compliance with the
terms of this Franchise, and verifying the adequacy of Franchisee's fee payments.
The City further agrees to protect such information from disclosure to third parties
to the maximum extent allowed by Washington law, except that the City shall not
be required to seek injunctive relief under RCW Chapter 42.56 or otherwise..
C. Right to Perform Franchise Fee Audit or Review; Default. In addition to all
rights granted under Section 13, the City shall have the right to have performed, a
formal audit or a professional review of the Franchisee's books and records by an
independent private auditor, for the sole purpose of determining the Gross
Receipts of the Franchisee generated through the provision of
Telecommunications Services under this Franchise and the accuracy of amounts
paid as Franchise fees to the City by the Franchisee; provided, however, that any
audit or review must be commenced not later than 3 years after the date on which
Franchise fees for any period being audited or reviewed were due. The cost of any
such audit or review shall be borne by the City, but if the audit determines that
Franchisee has failed to pay fees in the amount required by this Agreement, then
Franchisee shall bear the cost of the audit. The City agrees to protect from
disclosure to third parties, to the maximum extent allowed by State law, any
information obtained as a result of its rights pursuant to this Section, or any
compilation or other derivative works created using information obtained pursuant
to the exercise of its rights.
14. NOTICES.
A. Any regular notice or information required or permitted to be given to the parties
under this Franchise may be sent to the following addresses unless otherwise
specified:
The City: City of Pasco
Attn: City Manager
525 North 3rd
Pasco WA 99301
Phone: (509) 545-3404
Franchisee: Contracts Administration
LS Networks
921 SW Washington St., STE 370
Portland, OR 97205 99362
Phone: (503) 294-5300
Fax: (503) 227-8585
LS Networks Franchise Agreement - Page 10
B. Franchisee shall additionally provide a phone number and designated responsible
officials to respond to emergencies. After being notified of an emergency,
Franchisee shall cooperate with the City and make best efforts to immediately
respond to minimize damage, protect the health and safety of the public and repair
facilities to restore them to proper working order.
15. NON-WAIVER. The failure of the City to exercise any rights or remedies under this
Franchise or to insist upon compliance with any terms or conditions of this Franchise
shall not be a waiver of any such rights, remedies, terms or conditions of this Franchise
by the City and shall not prevent the City from demanding compliance with such terms or
conditions at any future time or pursuing its rights or remedies.
16. EMINENT DOMAIN. This Franchise is subject to the power of eminent domain and
the right of the City Council to repeal, amend or modify the Franchise in the interest of
the public. In any proceeding under eminent domain, the Franchise itself shall have no
value.
17. DAMAGE TO FACILITIES. Unless directly and proximately caused by the active sole
negligence or willful misconduct COMPENSATIONof the City, the City shall not be
liable for any damage to or loss of any facilities as a result of or in connection with any
public works, public improvements, construction, excavation, grading, filling, or work of
any kind on, in, under, over, across, or within a public way done by or on behalf of the
City.
18. GOVERNING LAW AND VENUE. This Franchise and use of the applicable public
ways will be governed by the laws of the State of Washington, unless preempted by
federal law. Franchisee agrees to be bound by the laws of the State of Washington, unless
preempted by federal law, and subject to the jurisdiction of the courts of the State of
Washington. Any action relating to this Franchise must be brought in the Superior Court
of Washington for Franklin County, or in the case of a Federal action, the United States
District Court for the Eastern District of Washington at Richland, Washington, unless an
administrative agency has primary jurisdiction. Prior to initiating any litigation under this
Agreement, the parties shall meet in a good faith effort to mutually resolve disputes.
19. SEVERABILITY. If any section, sentence, clause or phrase of this Franchise or its
application to any person or entity should be held to be invalid or unconstitutional by a
court of competent jurisdiction, such invalidity or unconstitutionality will not affect the
validity or constitutionality of any other section, sentence, clause or phrase of this
Franchise nor its application to any other person or entity.
LS Networks Franchise Agreement - Page 11
20. CHANGES IN LAW. If, during the term of this Franchise, there becomes effective any
change in Federal or State law, and such change specifically requires the City to enact a
code or ordinance which conflicts or is inconsistent with any provision of this Franchise,
or creates additional rights or responsibilities which would materially alter the terms of
this Franchise, or if the circumstances described in Section 12 become operative, then in
such event either party may within one hundred and twenty (120) days of the effective
date of such change, notify the other party in writing of such party's desire to commence
negotiations to amend this Franchise. Such negotiations shall only encompass the
specific term or condition affected by such change in Federal or State law, and neither
party shall be obligated to re-open negotiations on any other term or condition of this
Franchise, although the parties may voluntarily choose to do so.
If no agreement is reached within ninety (90) days of reopening the negotiations, either
party may declare its intent to terminate the Franchise, which termination shall become
effective one hundred and eighty (180) days thereafter.
Notwithstanding any other provision in this Franchise to the contrary, the right of either
party to terminate the Agreement pursuant to material changes in Federal and State law
and unsuccessful renegotiation of the Franchise shall be an independent right not subject
to the administrative requirements for termination of the Franchise contained in PMC
Title 15, or this Franchise Agreement.
21. MISCELLANEOUS.
A. Equal Employment and Nondiscrimination. Throughout the term of this
Franchise, Franchisee will fully comply with all equal employment and
nondiscrimination provisions and requirements of federal, state, and local laws,
and in particular, FCC rules and regulations relating thereto.
B. Local Employment Efforts and Contractor Qualifications. Franchisee will use
reasonable efforts to utilize qualified local contractors, including minority
business enterprises and woman business enterprises, whenever the Franchisee
employs contractors to perform work under this Franchise. Franchisee's
contractors and subcontractors must be licensed and bonded in accordance with
the City's ordinances, rules, and regulations. Work by contractors and
subcontractors is subject to the same restrictions, limitations and conditions as if
the work were performed by Franchisee.
C. Descriptive Headings. The headings and titles of the sections and subsections of
this Franchise are for reference purposes only and do not affect the meaning or
interpretation of the text herein.
LS Networks Franchise Agreement- Page 12
D. Costs and Attorneys' Fees. If any action or suit arises in connection with this
Franchise, the substantially prevailing party will be entitled to recover all of its
reasonable costs, including attorneys' fees, as well as costs and reasonable
attorneys' fees on appeal, in addition to such other relief as the court may deem
proper.
E. No Joint Venture. Nothing herein will be deemed to create a joint venture or
principal-agent relationship between the parties, and neither party is authorized to,
nor shall either party act toward third persons or the public in any manner that
would indicate any such relationship with the other.
F. Mutual Negotiation. This Franchise was mutually negotiated by the Franchisee
and the City and has been reviewed by the legal counsel for both parties. Neither
party will be deemed to be the drafter of this Franchise.
G. Third-Party Beneficiaries. There are no third-party beneficiaries to this Franchise.
Franchisee is prohibited from subleasing any of its facilities operated by this
Franchise. This shall include a prohibition against any sharing of facilities on a
voluntary or compensated basis by Franchisee with third parties.
H. Actions of the City or Franchisee. In performing their respective obligations under
this Franchise, the City and Franchisee will act in a reasonable, expeditious, and
timely manner. Whenever this Franchise sets forth a time for any act to be
performed by Franchisee, such time shall be deemed to be of the essence, and any
failure of Franchisee to perform within the allotted time may be considered a
material breach of this Franchise, and sufficient grounds for the City to invoke any
relevant remedy.
Entire Agreement. This Franchise represents the entire understanding and
agreement between the parties with respect to the subject matter and supersedes
all prior oral and written negotiations between the parties.
J. Modification. The parties may alter, amend or modify the terms and conditions of
this Franchise upon written agreement of both parties to such alteration,
amendment or modification. Nothing in this subsection shall impair the City's
exercise of authority reserved to it under this Franchise.
K. Non-exclusivity. This Franchise does not confer any exclusive right, privilege, or
authority to enter, occupy or use public ways for delivery of telecommunications
services or any other purposes. This Franchise is granted upon the express
condition that it will not in any manner prevent the City from granting other or
further franchises in, on, across, over, along, under or through any public way.
LS Networks Franchise Agreement- Page 13
L. Rights Granted. This Franchise does not convey any right, title or interest in
public ways, but shall be deemed only as authorization to enter, occupy, or use
public ways for the limited purposes and term stated in this Franchise. Further,
this Franchise shall not be construed as any warranty of title nor shall it grant any
right to enter, occupy or use public property.
M. Limitation on Liability. Nothing in this Franchise shall be construed to create,
expand, or extend any liability of the City to any third party user of Franchisee's
facilities or to otherwise recognize or create third party beneficiaries to this
Franchise.
N. This Franchise shall not be sold, leased, assigned or otherwise transferred, nor
shall any of the rights or privileges herein granted or authorized be leased,
assigned, mortgaged, sold or transferred, either in whole or in part, nor shall title
hereto, either legal or equitable, or any right, interest or property herein, pass to or
vest in any person, except the Franchisee, either by act of the Franchisee or by
operation of law, without the consent of the City, expressed in writing, such
consent not to be unreasonably withheld. Consent may be withheld if the City
determines that the transfer is to a person or entity which does not possess the
legal, technical, or financial qualifications necessary to properly manage the
Franchise. If the Franchisee wishes to transfer this Franchise, the Franchisee shall
give City written notice of the proposed transfer, and shall request consent of the
transfer by the City.
(1) Any transfer of ownership affected without the written consent of the City
shall render this Franchise subject to revocation. The City shall have 60
days to act upon any request for approval of a transfer. If the City fails to
render a final decision on the request within said 60 days, the request shall
be deemed granted unless the Franchisee and the City agree to an
extension of time.
(2) The Franchisee, upon any transfer, shall within 60 days thereafter file with
the City a certified statement evidencing the transfer and an
acknowledgment of the transferee that it agrees to be bound by the terms
and conditions contained in this Franchise.
(3) The requirements of this section shall not be deemed to prohibit the use of
the Franchisee's property as collateral for security in financing the
construction or acquisition of all or part of a Telecommunications System
of the Franchisee or any affiliate of the Franchisee. However, the
Telecommunications System franchised hereunder, including portions
thereof used as collateral, shall at all times continue to be subject to the
provisions of this Franchise.
LS Networks Franchise Agreement - Page 14
(4) The requirements of this section shall not be deemed to prohibit sale of
tangible assets of the Franchisee in the ordinary conduct of the
Franchisee's business without the consent of the City. The requirements
of this section shall not be deemed to prohibit, without the consent of the
City, a transfer to a transferee whose primary business is
Telecommunications System operation and having a majority of its
beneficial ownership held by the Franchisee, a parent of the Franchisee, or
an affiliate, a majority of whose beneficial ownership is held by a parent of
the Franchisee.
22. INCORPORATION BY REFERENCE. This Agreement, specifically by this
reference, incorporates PMC Title 15.
23. PUBLICATION. The City Clerk is authorized and directed to publish a summary hereof
in accordance with Revised Code of Washington §§ 35A.13.200 and 35A.12.160.
24. EFFECTIVE DATE. This agreement shall take effect five (5) days following the
passage of an authorizing ordinance and publication of this Franchise, or a summary
thereof, occurs in a newspaper of general circulation in the City pursuant to RCW
35A.47.040, or upon execution by all parties hereto, whichever occurs later.
DATED this 2. ( day of a j , 2012.
CITY OF PASCO LIGHTSPEED NETWORKS, INC.
Matt Watkins, Mayor Michael Weidman, President and CEO
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Att t:
Debra Clark, City Clerk
Appro d as to Form:
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Lelandtjeirr,‘'Cilty Att ey
LS Networks Franchise Agreement - Page 15
STATE OF WASHINGTON )
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County of Franklin )
On this day personally appeared before me MATT WATKINS,Mayor of the City of Pasco,to
me known to be the individual described in and who executed the within and foregoing instrument,
and acknowledged that he signed the same as his free and voluntary deed for the uses and purposes
therein mentioned.
SUBSCRIBED and sworn to before me this Z1 da of ,2012.
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L. KF — r
MZss� N �'�. Notary Public an for the Sta e of Washington
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: My Commission Expires
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STATE OF OREGON)
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County of )
On this day personally appeared before me MICHAEL WEIDMAN, President and CEO of
LightSpeed Networks, Inc., to me known to be the individual described in and who executed the
within and foregoing instrument, and acknowledged that he signed the same as his free and voluntary
deed for the uses and purposes therein mentioned.
SUBSCRIBED and sworn to before me this day of ,2012.
Notary Public in and for the State of Oregon
Residing at
My Commission Expires
LS Networks Franchise Agreement - Page 16