019 of 2021 - Google Fiber Utah Amended and Restated Broadband Services FranchiseSALT LAKE CITY ORDINANCE
No. __ of 2021
(Approving an Amended and Restated Broadband Services Franchise
to Google Fiber Utah, LLC)
WHEREAS, pursuant to Ordinance 11 of 2015 adopted by the City County on
March 3, 2015, Google Fiber Utah, LLC, a Utah limited liability company (the
“Company”) provides certain video and broadband services within Salt Lake City, Utah
(the “City”), and in connection therewith has establish a network in, under, along, over,
and across present and future streets, alleys and rights-of-way of the City, consisting of
fiber optic cable, together with all necessary and desirable appurtenances; and
WHEREAS, the Company will continue to provide broadband services but will
no longer provide video services within the City and the City and the City, in the exercise
of its police power, ownership, use or rights over and in the public rights-of-way, and
pursuant to its other regulatory authority, believes it is in the best interest of the public to
amend the franchise provided to the Company; and
WHEREAS, the City and the Company propose to enter into an Amended and
Restated Franchise Agreement, the substantially final form of which has been presented
to the City Council at the meeting at which this Ordinance is being considered for
adoption; and
WHEREAS, the City desires to approve the execution and delivery of such
Amended and Restated Franchise Agreement and to otherwise take all actions necessary
to amend the referenced franchise to the Company; and
WHEREAS, the City believes this Ordinance to be in the best interest of the
citizens of the City,
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NOW, THEREFORE, be it ordained by the City Council of Salt Lake City, Utah,
as follows:
SECTION 1. Purpose. The purpose of this Ordinance is to amend the franchise
granted to the Company pursuant to Ordinance 11 of 2015, and its successors and
assigns, for the non-exclusive right to use the present and future streets, alleys, viaducts,
bridges, roads, lanes and public way within and under control of the City for its business
purposes, under the constraints and for the compensation enumerated in the Amended
and Restated Franchise Agreement attached hereto as Exhibit A, and by this reference
incorporated herein, as if fully set forth herein (the “Franchise Agreement”).
SECTION 2. Short Title. This Ordinance shall constitute the Google Fiber
Amended Franchise Ordinance.
SECTION 3. Amendment of Franchise. The right, privilege, and franchise
(collectively, the “Franchise”) granted to the Company is hereby amended and restated as
more particularly described in the Franchise Agreement.
SECTION 4. Term. The term of the Franchise is for a period of fifteen (15)
years from and after the effective date of the Franchise Agreement. The Company shall
pay all costs of publishing this Ordinance.
SECTION 5. Acceptance by Company. Within thirty (30) days after the
effective date of this Ordinance, the Company shall execute the Franchise Agreement and
return it to the City, otherwise, this Ordinance and the rights granted hereunder shall be
null and void.
SECTION 6. No Franchise revocation or termination may be effected until the
City Council shall first adopt an ordinance terminating the Franchise and setting forth the
reasons therefor, following not less than thirty (30) days prior written notice to the
Company of the proposed date of the ordinance adoption. The Company shall have an
opportunity on said ordinance adoption date to be heard upon the proposed termination.
SECTION 7. This Ordinance shall take effect immediately upon publication.
Passed by the City Council of Salt Lake City, Utah, this ____ day of _______,
2021.
______________________________
CHAIRPERSON
ATTEST:
______________________________
CHIEF DEPUTY CITY RECORDER
Transmitted to Mayor on _______________________.
Mayor’s Action: _______Approved. _______Vetoed.
______________________________
MAYOR
ATTEST:
______________________________
CHIEF DEPUTY CITY RECORDER
(SEAL)
Bill No. ________ of 2021.
Published: _______________.
Salt Lake City Attorney’s Office
Approved As To Form
By: __________________________
Kimberly K. Chytraus
Date: ________________________ April 1, 2021
18 May
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Amy Fowler (Jul 1, 2021 10:47 PDT)
Lisa Shaffer (Jul 2, 2021 13:31 MDT)
07/02/2021
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Cindy Trishman (Jul 2, 2021 17:08 MDT)
Cindy Trishman (Jul 2, 2021 17:08 MDT)
July 15, 2021
EXHIBIT A
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AMENDED AND RESTATED BROADBAND SERVICES FRANCHISE
AGREEMENT
By and Between
SALT LAKE CITY CORPORATION
and
GOOGLE FIBER UTAH, LLC
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THIS AMENDED AND RESTATED BROADBAND SERVICE FRANCHISE
AGREEMENT, dated as of the Effective Date set forth in Section 1.6 hereof, is by and between
SALT LAKE CITY CORPORATION, a municipal corporation of the State of Utah (hereinafter
called “Municipality”), and GOOGLE FIBER UTAH, LLC, a Utah limited liability company with
its principal place of business at 1600 Amphitheatre Parkway, Mountain View, CA 94043
(hereinafter called “Company”).
WITNESSETH
A. Company provides Broadband Services and Video Services in Municipality pursuant
to a franchise for such purpose granted by Municipality adopted by the Salt Lake City Council as
Ordinance 11 of 2015 and recorded with the Salt Lake City Recorder on March 20, 2015 (the
“Original Franchise Agreement”).
B. Company intends to cease offering Video Services and, together with Municipality,
desires to amend, restate, and replace the Original Franchise Agreement with this amended and
restated agreement, clarifying the terms and conditions upon which Company is granted a non-
exclusive franchise by Municipality to provide Broadband Services within Municipality.
C. Municipality has determined that granting the requested franchise on the terms set forth
herein is in the best interests of Municipality and its residents and other potential users of the
proposed Broadband Services within Municipality, and will assist in meeting the broadband needs
and interests of the community.
D. In recognition of the separation of powers inherent in Municipality’s Council—Mayor
optional form of government, the Mayor has negotiated this Agreement for legislative and policy
approval by Municipality’s legislative body.
NOW, THEREFORE, in consideration of the mutual covenants and promises herein
contained, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1 Affiliate (and its variants) shall mean any entity controlling, controlled by or under
common control with the entity in question.
1.2 Agreement shall mean this Broadband Service Franchise Agreement and, unless
the context clearly indicates otherwise, the Ordinance.
1.3 Authorized Area shall mean the entire area from time to time situated within the
corporate limits of Municipality.
1.4 Broadband and Broadband Services means existing and future broadband
Internet access service offerings, as defined in 47 C.F.R. § 8.1(b), delivered to Subscribers using
Company’s Network.
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1.5 City Council shall mean Municipality’s legislative body consisting of seven
elected council members.
1.6 Effective Date shall mean the latest of (a) the date on which the Ordinance becomes
effective in accordance with its terms and State law, (b) the date on which this Agreement, having
been fully executed by both parties, is recorded in the office of the Salt Lake City Recorder, and
(c) the date Company discontinues offering Video Service within the Municipality, provided that
Company notifies Municipality at least one (1) week prior to the date of discontinuance for Video
Service.
1.7 Emergency shall mean any disaster, including earthquakes, fires, and floods, or
other publicly and officially declared emergency or unforeseen situation that presents an imminent
threat to life or property.
1.8 Event of Default shall have the meaning set forth in Section 10.1.
1.9 Franchise shall have the meaning set forth in Section 2.2.
1.10 Franchise Fee shall have the meaning set forth in Section 7.
1.11 Gross Revenues shall mean all revenues of Company received from Subscribers
for Broadband Services within the Municipality, without regard to the billing address of the
Subscriber, and to the extent such Broadband Services utilize the System described in this
Franchise. “Gross Revenues” do not include: (i) revenue from sources excluded by law;
(ii) revenue received from the sale of Broadband Services for resale in which the purchaser is
required to collect and remit similar fees from the purchaser’s customers (iii) charges for non-
Broadband Services that are aggregated or bundled with amounts billed to Subscribers; (iv)
revenue not actually received, even if billed, such as bad debt; (v) refunds, rebates, or discounts
made to Subscribers or Municipality; (vi) any tax of general applicability imposed on Company
or its Subscribers by Municipality or by any state, federal or any other governmental entity, and
required to be collected by Company and remitted to the taxing entity (including but not limited
to sales and use tax, gross receipts tax, excise tax, utility user tax, public service tax,
communications taxes, and fees not imposed by this Agreement); and (vii) any foregone revenue
from Company’s provision, in Company’s discretion or otherwise, of free or reduced cost
Broadband Services to any person, provided, however, that any foregone revenue which Company
chooses not to receive in exchange for trades, barters, services, or other items of value will be
included in Gross Revenues. Gross Revenues shall include the revenue collected from a Subscriber
to recover the Franchise Fee, if applicable.
1.12 Municipality shall have the meaning set forth in the introduction to this
Agreement, and unless expressly stated to the contrary herein, where actions are permitted or
allowed by Municipality and for the administration of this Agreement, shall mean the City
Representative (as defined in Section 13.15).
1.13 Normal Business Hours shall mean 9:00 a.m. to 5:00 p.m. Mountain Time,
Monday to Friday, excluding state and federal holidays.
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1.14 Ordinance means the Google Fiber Broadband Franchise Ordinance, Salt Lake
City Ordinance No. ___ of 2021, adopted by the City Council on __________, 2021, granting the
Franchise and authorizing this Agreement.
1.15 Public Ways shall mean any present and future public rights-of-way, streets,
highways, alleys, viaducts, bridges, roads, sidewalks, and lanes within Municipality (including the
surface, subsurface and airspace), which are owned by Municipality, or which have been dedicated
to public use and which are controlled and operated by Municipality. “Public Ways” shall also
include public rights-of-way, streets, highways, alleys, viaducts, bridges, roads, sidewalks, and
lanes within Municipality (including the surface, subsurface and airspace) which are not owned by
Municipality and have not been dedicated to the public to the extent that despite such non-
dedication Municipality has the ability to grant the rights set forth herein.
1.16 Subscriber shall mean a person or entity lawfully receiving Broadband Services
from Company in the Authorized Area.
1.17 System shall mean Company’s network (and all associated equipment and
facilities) used to provide Broadband Services to Subscribers.
1.18 Uncured Event of Default shall have the meaning set forth in Section 10.2.1.
ARTICLE II
FRANCHISE DESCRIPTION;
REQUIREMENTS
2.1 Ordinance. The City Council has adopted the Ordinance. Execution of this
Agreement constitutes the unqualified acceptance of the Ordinance by Company. Such Ordinance
is incorporated herein by reference and made an integral part of this Agreement.
2.2 Franchise Description.
2.2.1 The Ordinance confers upon Company, subject to all of the terms and
conditions of this Agreement, and applicable State law and Municipality ordinances in
effect from time to time, the right, privilege and franchise (collectively, the “Franchise”),
to erect, construct, install, maintain and operate in, under, along, over, across and through
portions of the Public Ways, a System to provide Broadband Services and/or other lawful
services in the Authorized Area. Notwithstanding the foregoing, this Franchise does not
authorize Company to offer a service other than Broadband Service if such additional
service is subject to regulation under Title II of the Communications Act of 1934, as
amended, or the Utah Municipal Telecommunications Tax, without first obtaining a
separate franchise from Municipality. Upon the annexation of any territory to
Municipality, all rights hereby granted, and the Franchise, shall automatically extend to the
territory so annexed, to the extent Municipality has authority to so extend the Franchise.
All facilities owned, maintained, or operated by Company within such annexed territory
shall thereafter be subject to all of the terms and conditions of this Agreement.
2.2.2 The Franchise and all rights granted hereunder are nonexclusive.
Municipality reserves the right to grant such other and future franchises as it deems
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appropriate. This Agreement does not establish any priority for the use of the Public Ways
by Company or by any present or future franchisees or other permit holders. In the event
of any dispute as to the priority of use of the Public Ways, the first priority shall be to the
public generally, the second priority to Municipality in the performance of its various
functions, and thereafter, as between Company and other franchisees and permit holders,
as determined by Municipality in the exercise of its powers, including the police power and
other powers reserved to and conferred on it by the State of Utah.
2.3 [RESERVED].
2.4 Compliance with Applicable Law and Regulations.
2.4.1. In constructing, maintaining, and operating the System, Company shall
comply with all applicable Federal, State, and local laws, regulations, and ordinances. Company
shall comply in all respects with all applicable codes, including the National Electrical Safety Code
(latest edition) and National Electric Code (latest edition). Nothing in this Agreement shall be
construed as a waiver by Municipality of its general police powers, and Municipality has the right
to amend its local rules and regulations related to its general police powers in management of the
Public Ways. Except in connection with the exercise of its general police powers, Municipality
may not enact an ordinance, or amend the Ordinance, where such amendment unilaterally alters a
material provision of this Agreement.
2.5 Other Permits. Neither the Franchise nor this Agreement relieves Company of the
obligation to obtain permits, licenses and other approvals from Municipality necessary for the
construction, repair or maintenance of the System, and to pay the standard cost or charges therefor,
or compliance with other Municipality codes, ordinances and permissions relating to construction,
repair or maintenance, such as compliance with necessary right-of-way permits, building permits
and the like.
2.6 Backup Power. Company shall not use a permanent or semi-permanent internal
combustion engine (such as a gasoline or natural gas-powered electric generator) to provide
backup power at any point or points on the System without Municipality’s prior written approval.
Such approval may be granted subject to conditions, such as relating to testing times (e.g., not in
the middle of the night), screening, noise levels, and temperature and safe discharge of hot exhaust
gases. Municipality hereby grants Company approval to use backup power generating devices,
including devices with permanent or semi-permanent internal combustion engines, at its network
hut sites and inside buildings or on land owned by Company subject to the specific conditions
provided for in the network hut leases entered into between Company and Municipality for the use
of land owned by Municipality, and any applicable building code requirements.
2.7 Bond.
2.7.1 Company has provided Municipality with, and shall maintain, a
performance bond from a surety company meeting the standards of Section 6.8 in the
amount of Fifty Thousand Dollars ($50,000), and in a form reasonably acceptable to
Municipality, as security for the faithful performance by Company of the provisions of this
Agreement, and compliance with all orders, permits and directions of any agency of
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Municipality having jurisdiction over its acts or defaults under this Agreement, and the
payment by Company of any claims, liquidated damages, liens or taxes due Municipality
which arise by reason of the construction, operation, maintenance or repair of the System
or provision of Broadband Services.
2.7.2 The condition of such bond shall be that if Company (a) fails to make timely
payment to Municipality or its designee of any undisputed amount or sum due under this
Agreement, (b) fails to make timely payment to Municipality of any taxes due, or (c) fails
to repay to Municipality within ten (10) days of written notification that such repayment is
due, any undisputed damages, costs or expenses which Municipality shall be compelled to
pay by reason of any act or default of Company in connection with this Agreement.
2.7.3 The rights provided Municipality by this Section and its bond are in addition
to all other rights of Municipality whether reserved by this Agreement or authorized by
law, and no action, proceeding or exercise of a right with respect to such bond or guarantee
shall affect any other rights Municipality may have, except that Municipality shall not be
entitled to multiple remedies for the same violation.
2.8 Municipality Use Rights.
2.8.1 Use of Trenches. Whenever Company proposes to install new
underground conduits or replace existing underground conduits within or under the Public
Ways, it shall notify the City Representative as soon as practical and shall allow
Municipality, at its own expense, and without charge, to utilize any such trench opened by
Company to lay Municipality’s facilities therein; provided that such action will not
unreasonably interfere with System facilities or delay the accomplishment of Company’s
project; and provided further that Company may require Municipality to agree to
reasonable terms and conditions of such use.
2.8.2 Limitation on Use Rights. Nothing in this Section 2.8 shall be construed
as requiring Company to alter the manner in which Company attaches equipment to the
poles or alter the manner in which it operates and maintains its equipment. Municipality
may attach to or otherwise utilize System facilities only after written approval by
Company. Such approval may include requirements regarding maintenance of such
Municipality facilities, either to be done for a reasonable fee by Company or by a qualified
party who shall fully indemnify and hold Company harmless from any liability and whose
service would not materially prejudice Company’s interests in safety and insulation from
liability.
ARTICLE III
PUBLIC WAYS
3.1 No Burden on Public Ways; Minimum Interference. Company shall not erect,
install, construct, repair, replace or maintain the System in such a fashion as to unduly burden the
present or future use of the Public Ways. The System shall be erected and maintained by Company
so as to cause the minimum interference with the use of the Public Ways and with the rights or
reasonable convenience of property owners who adjoin any of the Public Ways. Except for the
stringing of overhead lines on existing poles, the location of System facilities within, on, over,
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under, across or through the Public Ways shall, in all cases, be subject to prior Municipality
approval through the permitting process.
3.2 Limitation on Franchise Rights. The rights granted to Company herein do not
include the right to (i) excavate in, occupy or use any Municipality park, recreational areas or other
property owned by Municipality other than Public Ways, or (ii) attach or locate any System
facilities to or on, or otherwise utilize any of, any Municipality-owned property or facilities or
structures other than Public Ways, including without limitation light poles, towers, buildings and
trees. The use of such Municipality-owned property or facilities by Company shall be considered
by Municipality on a case-by-case basis and shall be subject to payment of additional
compensation to Municipality. Similarly, the rights granted herein by Municipality to Company
do not include the right to situate any System facilities on poles or other property owned by entities
other than Municipality and situated in the Public Ways. It shall be the responsibility of Company
to negotiate any pole-attachment agreements or similar agreements with the owners of such poles
or facilities, and to pay to such owners any required compensation.
3.3 Preconstruction Meetings. Company shall attend all preconstruction meetings as
mutually agreed with Municipality.
3.4 Restoration of Property. Company shall restore and replace at its sole cost and
expense, in a manner approved by Municipality, any public or private property, real or personal,
or portion of the Public Ways, that is in any way disturbed, damaged or injured by the construction,
operation, maintenance or removal of the System to at least as good condition as that which existed
prior to the disturbance. Company’s obligation in this subsection shall be limited by, and
consistent with, any applicable seasonal or other restrictions on construction or restoration work.
Company’s restoration work shall start promptly but not more than 30 days from Company being
notified of the problem in question. Upon the failure of Company to effect such repair or
restoration, Municipality may effect the same, and Company shall promptly reimburse
Municipality for Municipality’s actual, reasonable, and documented costs in connection with such
repair or restoration.
3.5 Company Duty to Relocate.
3.5.1 Municipality may require the relocation of any System facilities for any
lawful purpose, including, without limitation, the resolution of existing or anticipated
conflicts or the accommodation of any conflicting uses or proposed uses of the Public
Ways, regardless of whether such conflicts arise in connection with a Municipality project
or a project undertaken by some other person or entity, public or private. Whenever
Municipality shall require the relocation of any System facilities situated within the Public
Ways, it shall be the obligation of Company, upon notice of such requirement and written
demand made of Company, to commence the relocation within a reasonable time, but no
more than thirty (30) days after the date of notice. In the event City permits for such work
are required, “commencement” of relocation will mean a good faith application for such
permits and the beginning of work promptly after issuance of the permits by City.
Company shall complete such relocation within a reasonable period of time, but no more
than one hundred twenty (120) days from the date of permit issuance (if applicable) or the
beginning of work, whichever is sooner, unless such time is extended by the City Engineer
exercising his reasonable discretion in light of the circumstances. Municipality agrees to
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cooperate with Company to provide alternate space where available, within the Public
Ways, at no additional cost to Company.
3.5.2 Except as otherwise provided in this Section 3.5.2, any relocation required
by subsection 3.5.1 shall be accomplished by Company at the expense of Company.
Company shall not be required to pay for the relocation of System facilities, and may
require advance payment for costs and expense, to the extent such removal or relocation is
requested solely for aesthetic purposes, in cases where the original location of the facilities
was approved by Municipality through the permitting process. In the event the relocation
is required by Municipality to accommodate facilities owned by an entity other than
Municipality or Company, the cost and expense of such relocation shall be borne by such
other entity, and Company may require advance payment of such costs and expenses. Any
money and all rights to reimbursement from the State of Utah or the Federal government
to which Company may be entitled for work done by Company pursuant to this paragraph,
shall be the property of Company. Municipality shall assign or otherwise transfer to
Company all rights it may have to recover costs for such work performed by Company and
shall reasonably cooperate with Company’s efforts to obtain reimbursement.
3.5.3 Upon the failure of Company to relocate any System facilities within a
reasonable period of time in accordance with subsection 3.5.1 above, Municipality may
effect such relocation, and Company shall promptly reimburse Municipality for all actual,
reasonable, and documented costs and expenses incurred by Municipality in connection
with such relocation.
3.6 Emergency Notification. Company shall provide Municipality with a twenty-four
(24) hour emergency telephone number at which a representative of Company (not voicemail or a
recording) can be accessed in the event of an Emergency.
3.7 Duty to Underground. It is the policy of Municipality to have lines and cables
placed underground to the greatest extent reasonably practicable. In furtherance of this policy,
Company agrees as follows:
3.7.1 Company shall place newly constructed lines and cables underground in (a)
new residential subdivision areas, if required by subdivision regulations adopted by
Municipality, and (b) within the Central Business District of Municipality, to the extent
there are no available existing aerial facilities.
3.7.2 In any area of Municipality in which there are no aerial facilities other than
antennas or other facilities required to remain above ground in order to be functional, or in
any portion of the Public Ways in which all telephone, electric power wires and cables
reasonably capable of undergrounding have been placed underground, Company shall not
be permitted to erect poles or to run or suspend wires, cables, or other facilities thereon,
but shall lay such wires, cables, or other facilities underground in the manner required by
Municipality.
3.8 Temporary Relocation. Company shall, at the request of any person holding a
building moving permit issued by Municipality, temporarily raise, or lower its wires to permit the
moving of such building. The expense of such temporary removal or raising or lowering of the
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wires shall be paid by the person requesting the same, and Company shall have the authority to
require such payment in advance. Municipality agrees to cause prior written notice of the necessity
to move wires to be given as far in advance as possible, provided that in no event shall less than
forty-eight (48) hours advance notice be given.
3.9 Vacation. If a street or Public Way where Company has facilities is vacated,
eliminated, discontinued, or closed, Company shall be notified of same. At that time, the Company
shall have the right to continue using such Public Way until Municipality, or other governing body,
requires that Company remove its facilities. Company shall be responsible for the actual,
reasonable, and documented cost of removing and relocating such facilities in the event
Municipality retains ownership of the vacated street. In all other cases, Company shall not be
responsible for the cost of removing and relocating such facilities. In cases where Company is not
responsible for the cost, Company may require an advance payment prior to removing and
relocating such facilities. When Company is required to relocate its facilities, Company shall
promptly remove the System from such street or Public Way unless Company obtains all necessary
easements from the affected property owners to use the former street or Public Way or a court
orders the provision of such easements.
3.10 Discontinuance and Removal of the System. Upon the revocation, termination,
or expiration of this Agreement, unless an extension is granted, Company shall (subject to the
notice provision of Section 13.2) discontinue the provision of Services and all rights of Company
to use the Public Ways for the provision of Services shall cease. Company, at the direction of
Municipality, shall remove any portion of the System, including all supporting structures, poles,
transmission and distribution system and other appurtenances, fixtures or property from the Public
Ways, in, over, under, along, or through which they are installed within six (6) months of the
revocation, termination, or expiration of this Agreement. This provision shall not apply to facilities
constructed and owned by an Affiliated entity of Company, where such facilities are used by such
Affiliated entity to lawfully provide other services. Company shall also restore any property,
public or private, to the condition in which it existed prior to the installation, erection, or
construction of its System, including any improvements made to such property subsequent to the
construction of the System. Restoration of municipal property including but not limited to the
Public Ways shall be in accordance with the directions and specifications of Municipality, and all
applicable laws, ordinances, and regulations, at Company’s sole expense. If such removal and
restoration is not completed within six (6) months after the revocation, termination, or expiration
of this Agreement, all of Company’s property remaining in the affected Public Ways shall, at the
option of Municipality, be deemed abandoned and shall, at the option of Municipality, become its
property or Municipality may obtain a court order compelling Company to remove same. In the
event Company fails or refuses to remove the System or to satisfactorily restore all areas to the
condition in which they existed prior to the original construction of the System, Municipality, at
its option, may perform such work and collect the actual, reasonable, and documented costs thereof
from Company. No surety on any performance bond nor any letter of credit shall be discharged
until Municipality has certified to Company in writing that the System has been dismantled,
removed, and all other property restored, to the satisfaction of Municipality.
3.11 Tree Trimming. Company may trim trees upon and overhanging the Public Ways
so as to prevent the branches of such trees from coming into contact with the System. Company
shall minimize the trimming of trees to trimming only those trees that are essential to maintain the
integrity of the System. Except in Emergencies, (i) all trimming of trees in the Public Way or on
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Municipal property shall have the prior approval of Municipality and shall be done under the
direction of the Municipality’s Urban Forester, and (ii) all trimming of trees on private property
shall require the consent of the property owner. All trimming shall be done at the expense of
Company.
3.12 Location of Facilities. Company shall keep accurate, complete, and current maps
and records of the System and all Company facilities and, subject to applicable confidentiality
provisions, shall make available electronic copies of such maps and records to Municipality, as set
forth below.
3.12.1 Company shall furnish “as-built” maps and records to Municipality in
electronic, ESRI-compatible format (or in another mapping format mutually agreed to by
the Parties). Company shall provide Municipality copies of any new or revised “as-built”
or comparable drawings as and if they are generated for portions of the System facilities
located within Municipality and in no event later than ninety (90) days after construction
(or reconstruction) and activation of any portion of the System. Upon request by
Municipality in an Emergency, Company as soon as reasonably possible shall inform
Municipality of any changes from such maps and records previously supplied and shall
mark up any maps provided by Municipality so as to show the location of the System.
3.12.2 The “as built” maps shall include at a minimum all System and facility
routings and shall be drawn to scale.
3.12.3 Municipality agrees that Company may provide route maps rather than the
as-built maps specified above. “Route maps” means “as-built” maps with only the
following information removed: information on the number of lines, whether the lines are
copper or fiber and the nature of any electronics. Concrete pads for pedestals and
enclosures for equipment or pedestals shall be shown on route maps.
3.13 Municipality Duty to Obtain Approval to Move Company Property;
Emergency Exception. Except as otherwise provided herein, Municipality shall not, without the
prior written approval of Company, intentionally alter, remove, relocate, or otherwise interfere
with any portion of the System. Any written approval required shall be promptly reviewed and
processed by Company and approval shall not be unreasonably withheld. However, if it becomes
necessary, in the judgment of Municipality, to cut or move any System facilities because of an
Emergency, such reasonable acts may be done without prior written approval of Company and the
repairs thereby rendered necessary shall be made by Company, without charge to Municipality,
and neither Municipality nor any agent, contractor or employee thereof shall be liable to Company
or its customers or third parties for any damages caused to Company or the System.
3.14 Common Use of Facilities. In order to minimize the adverse impact to the Public
Ways and to Municipality facilities, and inconvenience to the public, caused by construction,
repair and maintenance activities of multiple utility franchisees, it is the policy of Municipality to
encourage and require the shared use of utility and utility type facilities by Municipality
franchisees and permittees whenever practicable. Company shall use good faith efforts to
determine the location and existence of excess capacity on existing poles or existing conduit and
utilize such capacity to the extent possible under such terms and conditions as Company may
negotiate with the owners of such poles or conduits. Municipality shall cooperate with Company
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in locating, negotiating, and obtaining permission to use such facilities. Company further agrees
to use good faith efforts to provide access to its own excess conduit, if any, to another franchisee
or permittee on mutually acceptable terms and conditions.
3.15 Identification of the System. Portions of the System installed after the Effective
Date that are located in conduit, including conduit of others used by Company, shall be marked at
the entrance into and exit from each manhole and handhole with Company’s name and toll-free
telephone number to call for assistance.
3.16 Utility Notification Program. Company shall participate in and be a member of
the State’s utility notification program, whether provided for by statute or otherwise.
3.17 Inspection by Municipality. System facilities shall be subject to inspection by
Municipality to the extent reasonably necessary to assure compliance by Company with the terms
of this Agreement. Municipality shall inspect System facilities at reasonable times and upon
reasonable notice to Company; provided, however, the inspection shall not interrupt or interfere
with any services provided by Company.
ARTICLE IV
PROVISION OF SERVICES
4.1 Access to Service. Company shall not deny service, deny access, or otherwise
discriminate on the availability, rates, terms or conditions of Broadband Services provided to
residential Subscribers on the basis of race, color, creed, religion, ancestry, national origin, gender,
sexual orientation, disability, age, familial status, marital status, or status with regard to public
assistance. Company shall comply at all times with all applicable Federal, State and local laws
and regulations relating to nondiscrimination. Company shall not deny or discriminate against any
group of actual or potential residential Subscribers in Municipality on access to or the rates, terms
and conditions of Broadband Services because of the income level or other demographics of the
local area in which such group may be located.
4.2 Network Design. Nothing in Section 4.1 requires Company to build to all areas of
the Municipality. Company retains the discretion to determine the scope, location, and timing of
the design and construction of its network, as well as the windows during which residential
Subscribers may enroll for Broadband Services, so long as such decisions are consistent with
Section 4.1. Company, at its sole discretion, may determine separately defined geographic areas
within the Franchise Area where its System will be deployed, and Municipality will be available
to consult with Company regarding the boundaries of the Municipality’s recognized neighborhood
associations and the Municipality’s goals of equity and inclusion.
4.3 Public Benefits. Company agrees to engage in initiatives designed to benefit the
public based on an assessment of the particular needs of the community. Such initiatives may
focus on increasing access to Broadband Services, improving digital literacy, and bridging the
digital divide. Company further agrees to use good faith efforts to consult with Municipality in
designing and implementing such initiatives. Nothing in this subsection 4.3 shall modify, offset,
or otherwise affect Company’s obligation to pay franchise fees as provided for in this Franchise.
12
ARTICLE V
[RESERVED]
ARTICLE VI
INDEMNITY AND INSURANCE
6.1 Indemnification. Company shall indemnify, defend, and hold harmless
Municipality and all associated, Affiliated, allied and subsidiary entities of Municipality, now
existing or hereinafter created, and their respective officers, boards, commissions, attorneys,
agents, and employees (hereinafter referred to as “Indemnitees”), from and against any and all
liability, obligation, damages, penalties, claims, costs, charges, losses and expenses (including,
without limitation, reasonable fees and expenses of attorneys) arising from any third-party claim
of personal injury or property damage that may be imposed upon, incurred by or be asserted against
the Indemnitees by reason of any act or omission of Company, its personnel, employees, agents,
contractors, subcontractors or Affiliates, which may arise out of or be in any way connected with
(i) the construction, installation, operation, maintenance or condition of the System, or (ii) the
Company’s failure to comply with any Federal, State or local statute, ordinance or regulation.
Company’s indemnification obligation shall not extend to liability to the extent caused by the
negligence or willful misconduct by any Indemnitee or any other third party.
6.2 Assumption of Risk. Company undertakes and assumes for its officers, agents,
contractors and subcontractors and employees, all risk of dangerous conditions, if any, on or about
any Municipality-owned or controlled property, including Public Ways.
6.3 Defense of Indemnitees. In the event any action or proceeding shall be brought
against the Indemnitees by reason of any matter for which the Indemnitees are indemnified
hereunder, Company shall upon notice from any of the Indemnitees, at Company’s sole cost and
expense, resist and defend the same with legal counsel reasonably acceptable to Municipality;
provided, however, that Company shall not admit liability in any matter on behalf of the
Indemnitees without the written consent of Municipality. If Municipality elects to defend such
action or proceeding itself, and does not call upon Company to provide a defense pursuant to this
provision, then Municipality shall be required to obtain consent from Company with regard to
Municipality’s engagement of counsel, experts, accountants or other consultants, such consent not
be unreasonably withheld, in order for Company to be responsible for reasonable fees and expenses
pursuant to Section 6.1 herein.
6.4 Notice, Cooperation and Expenses. Municipality shall give Company prompt
notice of the making of any claim or the commencement of any action, suit or other proceeding
covered by the provisions of this Section. Nothing herein shall be deemed to prevent Municipality
from cooperating with Company and participating in the defense of any litigation by
Municipality’s own counsel.
6.5 Insurance. At all times during the term of this Agreement, plus any time after the
term is over during which removal of facilities or restoration is occurring, Company shall obtain,
maintain, and pay all premiums for, all insurance policies described in this Section, so as to protect
the public. Simultaneous with the execution of this Agreement, Company shall provide
Municipality with certificates of insurance evidencing such coverage. In the event Company
13
anticipates a significant delay between the execution of this Agreement and its initial construction
of the System, Company shall notify Municipality and may instead provide the certificates of
insurance prior to applying for its first permit. Failure to obtain and maintain any insurance policy
required by this Section shall be deemed a material breach of this Agreement and may be grounds
for termination of this Agreement and the Franchise.
6.5.1 Commercial General Liability. Commercial general liability insurance,
including premises operations liability, completed operations liability, Independent
Contractors Liability, Contractual Liability coverage, railroad protective coverage and
coverage for property damage from perils of explosion, collapse or damage to underground
utilities, commonly known as XCU coverage, in an amount not less than Two Million
Dollars ($2,000,000) per occurrence, with a Five Million Dollar ($5,000,000) aggregate
and a Five Million Dollar ($5,000,000) products completed operations aggregate.
6.5.2 Comprehensive Automobile Liability. Commercial automobile liability
insurance that provides coverage for owned, hired, and non-owned automobiles, with the
Municipality as an additional insured, in the minimum amount of a combined single limit
of $2,000,000 per occurrence, or $1,000,000 liability per person, $2,000,000 liability per
occurrence, and $250,000 property damage.
6.5.3 Workers’ Compensation. Workers’ compensation and employer’s
liability insurance sufficient to cover all of the Company’s employees pursuant to Utah
law. This requirement includes those who are doing business as an individual and/or as a
sole proprietor as well as corporations and partnerships. In the event any work is
subcontracted, the Company shall require its subcontractor(s) similarly to provide worker’s
compensation insurance for all of the latter’s employees, unless a waiver of coverage is
allowed and acquired pursuant to Utah law.
6.5.4 Umbrella Policies. The coverage amounts set forth above may be met by
a combination of underlying (primary) and umbrella policies so long as in combination the
limits equal or exceed those stated. If more than one insurance policy is purchased to
provide the coverage amounts set forth above, then all policies providing coverage limits
excess to the primary policy shall provide drop down coverage to the first dollar of
coverage and other contractual obligations of the primary policy, should the primary policy
carrier not be able to perform any of its contractual obligations or not be collectible for any
of its coverages for any reason during the term of this Agreement, or (when longer) for as
long as coverage could have been available pursuant to the terms and conditions of the
primary policy.
6.6 Additional Insured/Claims Made Basis. Municipality shall be named as an
additional insured on all policies (other than policies for workers’ compensation and employer’s
liability), to the extent such coverage is commercially reasonably available. Any notice of
cancellation of coverage will be delivered to Municipality in accordance with policy provisions,
which shall include an endorsement indicating that the policy may not be canceled or modified
without providing thirty (30) days prior written notice to Municipality. Company shall annually
provide Municipality with a certificate of insurance evidencing such coverage. All insurance
policies (other than workers’ compensation and employer’s liability insurance) shall be written on
14
an occurrence basis and not on a claims-made basis, to the extent such coverage is commercially
reasonably available.
6.7 No Limitation of Liability. No recovery by Municipality of any sum by reason of
any insurance policy required by this Agreement shall be any limitation upon the liability of
Company to Municipality or to other persons.
6.8 Qualified Carriers. All insurance shall be effected under valid and enforceable
policies insured by insurance carriers licensed to do business in the State of Utah or by surplus line
carriers on the State Insurance Commissioner’s approved list of companies qualified to do business
in the State of Utah. All insurance carriers and surplus line carriers shall be rated A- or better by
A.M. Best Company.
6.9 Contractors. Company’s contractors and subcontractors working in the Public
Ways shall carry in full force and effect commercial general liability, automobile liability and
workers’ compensation and employer’s liability insurance commensurate with the scope of their
work. In the alternative, Company, at its expense, may provide such coverages for any or all its
contractors or subcontractors (such as by adding them to Company policies).
6.10 Insurance Primary. Company’s insurance coverage shall be primary insurance
with respect to Municipality, its officers, agents, employees, elected and appointed officials,
departments, boards, and commissions (collectively “them”), but only for actions of Company and
for whom Company is responsible. Any insurance or self-insurance maintained by any of them
shall be in excess of Company’s insurance and shall not contribute to it (where “insurance or self-
insurance maintained by any of them” includes any contract or agreement providing any type of
indemnification or defense obligation provided to, or for the benefit of them, from any source, and
includes any self-insurance program or policy, or self-insured retention or deductible by, for or on
behalf of them).
6.11 Changes to Limits. In the event that governmental immunity limits are
subsequently altered by legislation or judicial opinion, the Company shall provide a new certificate
of insurance within thirty (30) days after being notified thereof in writing by Municipality,
certifying coverage in compliance with the modified limits or, if no new limits are specified, in an
amount reasonably acceptable to Municipality, and commercially available.
ARTICLE VII
FEES AND PAYMENTS
7.1 Franchise Fee. For and in consideration of the Franchise, and as fair and
reasonable compensation to Municipality for the use by Company of the Public Ways, Company
shall pay Municipality throughout the term of this Agreement an annual amount equal to two
percent (2%) of Company’s Gross Revenues (“Franchise Fee”). Such payments shall be made
quarterly and are due within forty-five (45) days after the end of each calendar quarter.
7.1.1 Each Franchise Fee payment shall be accompanied by a written report to
Municipality containing an accurate statement in summarized form of Company’s Gross
Revenues and the computation of the payment amount.
15
7.1.2 Subject to Section 12.1, Municipality may review Company books and
records on an annual basis that are reasonably necessary to verify the accuracy of Franchise
Fees paid Municipality. After such review, any additional undisputed amount due
Municipality shall be paid within forty-five (45) days of Municipality’s submitting an
invoice for such sum.
7.1.3 In addition to the Franchise Fee, Company is required to pay any additional
fees, taxes, or similar charges for services provided by Company as required by applicable
state or local law, including compliance with the Municipal Telecommunications License
Tax Act in Utah Code Section 10-1-4.
7.2 Allocation of Fees. Company shall not intentionally allocate revenue between
Services subject to the Franchise Fee and services not subject to the Franchise Fee for the purpose
of evading or reducing Company’s Franchise Fee obligations to the Municipality.
7.3 Other Payments. The Franchise Fee payable pursuant to Section 7.1 is in addition
to all sums which may be due Municipality under this Agreement. In addition to the Franchise
Fee, Company shall pay:
7.3.1 Municipality’s actual, reasonable, and documented cost of newspaper
publication associated with adoption of the Ordinance; and
7.3.2 An administrative fee of $10,000 (“Administrative Fee”) to reimburse
Municipality for all costs and expenses associated with the preparation and
adoption of the Ordinance and this Agreement. The Administrative Fee shall be
paid to Municipality within sixty (60) days of adoption of the Ordinance.
7.4 Interest. All sums not paid when due shall bear interest at the rate of ten percent
(10%) per annum computed monthly or the highest lawful rate, whichever is less, and if so paid
with interest within thirty (30) days of the due date, shall not constitute an Event of Default under
Article 10.
ARTICLE VIII
TERM
8.1 Term. The term of this Agreement, and the Franchise, shall be from the Effective
Date for a period of fifteen (15) years.
8.2 Termination. This Agreement and the Franchise, and all rights of Company
hereunder and under the Ordinance, shall automatically terminate on the expiration of the term
described in Section 8.1, unless renewed or otherwise extended by Municipality. Subject to
Section 3.10, Company may terminate this Agreement after providing written notice to City at
least ninety (90) days prior to termination.
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ARTICLE IX
TRANSFERS, OWNERSHIP AND CONTROL
9.1 Management of the System. Company or its Affiliate shall manage the System
and the provision of Broadband Services within Municipality.
9.2 Assignment. This Agreement shall not be assigned by Company, except to an
Affiliate, without the prior written consent of Municipality. Municipality shall not unreasonably
withhold such consent and shall respond to any request for consent as promptly as reasonably
possible. If Municipality fails to respond to a request for consent within 30 days, such consent
will be deemed granted.
9.3 Company shall pay Municipality for all actual, reasonable, and documented costs
incurred by Municipality due to any proposed sale, assignment, or transfer of the System.
ARTICLE X
DEFAULTS
10.1 Events of Default. The occurrence at any time during the term of the Franchise of
any one or more of the following events shall constitute an Event of Default by Company under
this Agreement.
10.1.1 The failure of Company to pay the Franchise Fee (and, in the case of
delinquent payments, all required interest thereon) within thirty (30) days after the due
dates specified herein.
10.1.2 Company’s material breach or violation of any of the terms, covenants,
representations, or warranties contained herein or Company’s material failure to perform
any obligation contained herein.
10.1.3 Company’s failure to pay or cause to be paid any governmentally imposed
taxes of any kind whatsoever, including but not limited to real estate taxes, income taxes,
and personal property taxes on or before the due date for same; provided, however,
Company shall not be in default hereunder with respect to the non-payment of taxes which
are being disputed in good faith in accordance with applicable law.
10.1.5 The dissolution or termination, as a matter of law, of Company.
10.1.6 If Company files a voluntary petition in bankruptcy; is adjudicated
insolvent; obtains an order for relief under Section 301 of the Bankruptcy Code (11 U.S.C.
§301); files any petition or fails to contest any petition filed against it seeking any
reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar
relief for itself under any laws relating to bankruptcy, insolvency or other relief for debtors;
seeks or consents to or acquiesces in the appointment of any trustee, receiver, master,
custodian or liquidator of Company, or any of Company’s property and/or the Franchise
and/or of any and all of the revenues, issues, earnings, profits or income thereof; makes an
assignment for the benefit of creditors; or fails to pay Company’s debts generally as they
become due.
17
10.2 Uncured Events of Default. Municipality shall give Company written notice of
any Event of Default and Company shall have the following reasonable time period to cure same:
For an Event of Default which can be cured by the immediate payment of money to Municipality
or a third party, Company shall cure such default within thirty (30) days of written notice from
Municipality to Company of the occurrence of such Event of Default; for an Event of Default by
Company which cannot be cured by the immediate payment of money to Municipality or a third
party, Company shall have the longer of (a) sixty (60) days from written notice from Municipality
to Company of an occurrence of such Event of Default, or (b) if more than sixty (60) days is
reasonably needed to cure the Event of Default, such additional time (not to exceed six (6) months)
from written notice from Municipality to Company which is reasonably needed, as long as
Company has commenced cure within such sixty (60) day period, and diligently pursues such cure
to completion.
10.2.1 If any Event of Default is not cured within the time period allowed for
curing the Event of Default, as provided for herein, such Event of Default shall, without
notice, become an Uncured Event of Default, which shall entitle Municipality to exercise
the remedies provided for in Article 11.
ARTICLE XI
REMEDIES
11.1 Remedies. Upon the occurrence of any Uncured Event of Default as described in
Section 10.2.1, Municipality shall be entitled to exercise any and all of the following cumulative
remedies:
11.1.1 Municipality shall have the right to forfeit and terminate the Franchise and
upon the forfeiture and termination thereof the Franchise, the Ordinance and this
Agreement shall be automatically deemed null and void and have no force or effect;
Company shall remove the System from Municipality as and when requested by
Municipality; and Municipality shall retain any portion of the Franchise Fee and other fees
or payments paid to it, or which are due and payable to it, to the date of the forfeiture and
termination. Municipality’s right to forfeit and terminate the grant of the Franchise
pursuant to this Section is not a limitation on Municipality’s right of revocation.
11.1.2 The commencement of an action against Company at law for monetary
damages.
11.1.3 The commencement of an action in equity seeking injunctive relief or the
specific performance of any of the provisions which, as a matter of equity, are specifically
enforceable.
11.2 Remedies Not Exclusive. The rights and remedies of Municipality set forth in this
Agreement shall be in addition to and not in limitation of, any other rights and remedies provided
by law or in equity. Municipality and Company understand and intend that such remedies shall be
cumulative to the maximum extent permitted by law and the exercise by Municipality of any one
or more of such remedies shall not preclude the exercise by Municipality, at the same or different
times, of any other such remedies for the same Uncured Event of Default.
18
ARTICLE XII
PROVISION OF INFORMATION
12.1 Books and Records. Company shall prepare and maintain any records or reports
that are required of it by federal, state, or local law. Municipality shall have the right to obtain, in
the format kept by Company in the ordinary course of business, copies of such records and reports
as appropriate and reasonable to determine whether Company is in compliance with this
Franchise. Company reserves the right to object to any request made under this Section 12.1 as
unnecessary, unreasonable, or inappropriate under the circumstances and to seek appropriate
confidentiality protections for any information to be produced to Municipality.
12.2 Government Records Access and Management Act. Municipality is subject to
the requirements of the Government Records Access and Management Act, Chapter 2, Title 63G,
Utah Code Annotated, or its successor (“GRAMA”). All materials submitted to Municipality by
Company pursuant to this Agreement are subject to disclosure unless such materials are exempt
from disclosure pursuant to GRAMA. The burden of claiming an exemption from disclosure shall
rest solely with Company, and Company shall comply with the requirements of GRAMA in
asserting any such exemption. Any materials for which Company claims a privilege from
disclosure shall be submitted marked as “Business Confidential” and accompanied by a concise
statement of reasons supporting Company’s claim of business confidentiality. Municipality shall
make reasonable efforts to notify Company of any requests made for disclosure of documents
submitted under a claim of business confidentiality. Company may, at Company’s sole expense,
take any appropriate actions to prevent disclosure of such material. Company specifically waives
any claims against the Municipality related to disclosure of any materials required by GRAMA.
ARTICLE XIII
GENERAL
13.1 Entire Franchise. This Agreement, including the Exhibits attached hereto,
contains the entire agreement between the parties and all prior franchises, negotiations and
agreements relating to the System or provision of Broadband Services are merged herein and
hereby superseded, excluding that certain Installation Release and Indemnification Agreement
between the parties and recorded with the Salt Lake City Recorder’s Office on August 10, 2017,
as may be amended.
13.2 Notices. Except as otherwise specified herein, all notices, consents, approvals,
requests and other communications (herein collectively “Notices”) required or permitted under
this Agreement shall be given in writing and mailed by registered or certified first-class mail,
return receipt requested addressed as follows:
If to Municipality: Property Manager
Salt Lake City Real Estate Services
P.O. Box 145460
Salt Lake City, UT 84114-5460
19
With a copy to: Salt Lake City Attorney
Attn: Franchising
P.O. Box 145478
Salt Lake City UT 84114-5478
If to Company: Google Fiber Utah, LLC
ATTN: General Manager
1600 Amphitheatre Parkway
Mountain View, CA 94043
Fax: (650) 253-0001
Email: googlefibernotices@google.com
With a copy to: Google Fiber Inc.
ATTN: Google Fiber Legal Department
1600 Amphitheatre Parkway
Mountain View, CA 94043
Email: legal-notices@google.com
All Notices shall be deemed given on the day of mailing. Either party to this Agreement may
change its address for the receipt of Notices at any time by giving notice thereof to the other as
provided in this Section. Any notice given by a party hereunder must be signed by an authorized
representative of such party.
13.3 Conferences. The parties hereby agree to meet at reasonable times on reasonable
notice to discuss any aspect of this Agreement, the provision of Broadband Services or the System
during the term hereof.
13.4 Governing Law. This Agreement shall be construed pursuant to the laws of the
State of Utah and the United States of America.
13.5 Waiver of Compliance. No failure by either party to insist upon the strict
performance of any covenant, agreement, term or condition of this Agreement, or to exercise any
right, term or remedy consequent upon a breach thereof shall constitute a waiver of any such breach
or such covenant, agreement, term or condition. No waiver of any breach shall affect or alter this
Agreement, but each and every covenant, agreement, term, or condition of this Agreement shall
continue in full force and effect with respect to any other then existing or subsequent breach
thereof.
13.5.1 Municipality may waive any obligation of Company under this Agreement,
in whole or in part, at any time.
13.6 Independent Contractor Relationship. The relationship of Company to
Municipality is and shall continue to be an independent contractual relationship, and no liability
or benefits, such as worker’s compensation, pension rights or liabilities, insurance rights or
liabilities or other provisions or liabilities, arising out of or related to a contract for hire or
employer/employee relationship, shall arise or accrue to either party or either party’s agents or
20
employees as a result of the performance of this Agreement, unless expressly stated in this
Agreement.
13.7 Severability. If any section, paragraph, or provision of this Agreement shall be
held to be invalid or unenforceable for any reason, the invalidity or unenforceability of such
section, paragraph, or provision shall not affect any of the remaining provisions of this Agreement.
13.8 Captions. All captions are for convenience of use and have no substantive effect,
except for those captions in the Definitions section of this Agreement.
13.9 Franchise Accepted. Company further acknowledges by execution and delivery
of this Agreement that it has carefully read the terms and conditions of this Agreement and the
Ordinance and accepts the obligations imposed hereby and thereby regardless of whether such
obligations are contained in this Agreement or the Ordinance, or both.
13.10 Binding Agreement. Subject to Section 2.4, the parties agree that this Agreement
complies with State and Federal law as of the Effective Date and agree to be bound by the
provisions hereof during the full term hereof, except that the parties also agree to recognize and be
bound by any change in any State or Federal law, even if such law materially affects the terms of
this Agreement. Notwithstanding the preceding sentence, if any change in law or regulation would
have the effect of limiting, qualifying, or excusing payment by Company of the Franchise Fee
provided for in Article 7 hereof, Company shall continue to pay all or such portion of the Franchise
Fee as permitted by law .In the case of a change in law which requires a reduction in the percentage
of revenue on which any franchise fee for Broadband Service may be based, the percentage of
Gross Revenues on which the Franchise Fee is based will be commensurately reduced.
13.11 Other Covenants. Company for itself and its Affiliates covenants that Company
and its Affiliates shall not bring or support, directly or indirectly, any suit, claim, or proceeding
(judicial or administrative) challenging any term of this Agreement or contending that
Municipality or Company did not have the authority to impose or agree to such terms.
13.12 Non-Waiver, Preemption. Nothing in this Agreement shall be deemed an
agreement by either party as to any claimed preemptive effect, nor shall it be deemed a waiver of
either party’s right to challenge any claimed preemptive effect, of any subsequent Federal law,
regulation, or court ruling alleged to conflict with, alter, limit, or replace terms, requirements or
conditions of this Agreement in effect as of the Effective Date.
13.13 Reserved Rights. Municipality reserves all rights and powers under (i) its police
powers and (ii) powers conferred by Federal, State, or local law of which Municipality may not
legally and contractually divest itself. In particular, Municipality reserves the right to alter, amend
or repeal its municipal code as it determines shall be conducive to the health, safety and welfare
of the public, or otherwise in the public interest; provided that any such alteration, amendment or
repeal shall be applicable to all similarly situated franchisees of the City, in such a manner and to
such an extent so as not to place Company at a material competitive disadvantage. Municipality
agrees that by accepting this Agreement, Company has not waived its right to object to the
application to it of actions by Municipality pursuant to its reserved rights or police powers.
21
13.14 Representation Regarding Ethical Standards for Municipality Officers and
Employees and Former Municipality Officers and Employees. Company represents that to the
best of its knowledge, it has not (1) provided an illegal gift or payoff to a Municipality officer or
employee or former Municipality officer or employee, or his or her relative or business entity; (2)
retained any person to solicit or secure this contract upon an agreement or understanding for a
commission, percentage, brokerage or contingent fee, other than bona fide employees or bona fide
commercial selling agencies for the purpose of securing business; (3) breached any of the ethical
standards set forth in the Municipality’s conflict of interest ordinance, Chapter 2.44, Salt Lake City
Code; or (4) influenced, and hereby promises that it will not knowingly influence, a Municipality
officer or employee or former Municipality officer or employee to breach any of the ethical
standards set forth in the Municipality’s conflict of interest ordinance, Chapter 2.44, Salt Lake City
Code.
13.15 City Representative. The Director of City’s Department of Management Services
(the “City Representative”), or his or her designee, shall be Municipality’s representative for all
purposes of this Agreement. Except where City Council action is required by this Agreement or
by law, all decisions, judgments, approvals, requests, notices or other actions of Municipality
required or permitted under this Agreement shall be made, obtained, issued or delivered or
otherwise effected on behalf of Municipality by the City Representative, or his or her designee.
IN WITNESS WHEREOF, the parties have hereto set their hands as of the Effective
Date.
SALT LAKE CITY CORPORATION
By:
ERIN MENDENHALL, MAYOR
Attest and Countersign:
CITY RECORDER
Approve as to form:
Kimberly K. Chytraus, Senior City Attorney
GOOGLE FIBER UTAH, LLC
By:
Its:
Ordinance 19 of 2021 (Google Fiber franchise
agreement) adopted May 18, 2021
Final Audit Report 2021-07-02
Created:2021-06-14
By:Kory Solorio (kory.solorio@slcgov.com)
Status:Signed
Transaction ID:CBJCHBCAABAANJX1gac-KcyNQmhS50kzhKqQm6FK6BFq
"Ordinance 19 of 2021 (Google Fiber franchise agreement) adop
ted May 18, 2021" History
Document created by Kory Solorio (kory.solorio@slcgov.com)
2021-06-14 - 7:04:38 PM GMT- IP address: 204.124.13.151
Document emailed to Amy Fowler (amy.fowler@slcgov.com) for signature
2021-06-14 - 7:07:06 PM GMT
Email viewed by Amy Fowler (amy.fowler@slcgov.com)
2021-07-01 - 5:47:34 PM GMT- IP address: 166.89.66.190
Document e-signed by Amy Fowler (amy.fowler@slcgov.com)
Signature Date: 2021-07-01 - 5:47:40 PM GMT - Time Source: server- IP address: 166.89.66.190
Document emailed to Erin Mendenhall (erin.mendenhall@slcgov.com) for signature
2021-07-01 - 5:47:42 PM GMT
Kory Solorio (kory.solorio@slcgov.com) replaced signer Erin Mendenhall (erin.mendenhall@slcgov.com) with
Lisa Shaffer (lisa.shaffer@slcgov.com)
2021-07-01 - 10:54:02 PM GMT- IP address: 204.124.13.151
Document emailed to Lisa Shaffer (lisa.shaffer@slcgov.com) for signature
2021-07-01 - 10:54:02 PM GMT
Email viewed by Lisa Shaffer (lisa.shaffer@slcgov.com)
2021-07-02 - 7:31:02 PM GMT- IP address: 204.124.13.222
Document e-signed by Lisa Shaffer (lisa.shaffer@slcgov.com)
Signature Date: 2021-07-02 - 7:31:15 PM GMT - Time Source: server- IP address: 204.124.13.222
Document emailed to Cindy Trishman (cindy.trishman@slcgov.com) for signature
2021-07-02 - 7:31:15 PM GMT
Document e-signed by Cindy Trishman (cindy.trishman@slcgov.com)
Signature Date: 2021-07-02 - 11:08:05 PM GMT - Time Source: server- IP address: 204.124.13.151
Agreement completed.
2021-07-02 - 11:08:05 PM GMT