APPENDIX

ORDINANCE NO. 2011-06

AN ORDINANCE GRANTING A FRANCHISE AGREEMENT TO NORTHWEST OPEN ACCESS NETWORK (NoaNet)

AN ORDINANCE of the City of Castle Rock, Washington, granting the Northwest Open Access Network (“NoaNet”), a Washington non-profit mutual corporation, its successors and assigns, the right, privilege, authority and franchise to set, erect, lay, construct, support, attach, connect, maintain, repair, replace, operate and use Communication System or Facilities in, upon, over, under, along, across, and through the Franchise Area to provide for the transmission, distribution and sale of Communication Service(s) and Telecommunication Service(s) and any other purpose for which NoaNet’s Communication System or Facilities may be used, provided that such rights, privileges, authorities and franchises are in accordance with city requirements.

WHEREAS, the City Council of the City of Castle Rock finds it desirable for the welfare of the City and that the general public health, safety, welfare, necessity and convenience require that Facilities to provide for Communication Service and Telecommunication Service and other purposes for which Communication Systems and Facilities may be used, be constructed, maintained and repaired in an orderly manner when such Facilities are located in, under, on or along City rights-of-way.

AND WHEREAS, there is hereby granted subject to NoaNet’s acceptance of the terms of this franchise as provided herein, for a term as described below, unless otherwise terminated as provided for herein, to NoaNet, its successors and assigns, the non-exclusive rights, privilege, authority and franchise to own, operate and maintain an overhead or underground Communication System along and across the franchise area. This franchise is conditioned upon the terms and conditions contained herein and NoaNet compliance with any federal or state regulatory agencies with jurisdiction over NoaNet. By granting this franchise, the City is not assuming any risks or liabilities by way of NoaNet activities therefrom: Now Therefore,

THE CITY COUNCIL OF THE CITY OF CASTLE ROCK, WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:

SECTION 1 DEFINITIONS

1.1 Where used in this franchise (the “Franchise”) the following terms shall mean:

1.1.1 “NoaNet” means Northwest Open Access Network, a Washington non-profit mutual corporation, and its successors and assigns.

1.1.2 “City” means the City of Castle Rock, Washington, and its successors and assigns.

1.1.3 “Franchise” means the grant of rights, privileges and authority embodied in this Ordinance.

1.1.4 “Franchise Area” means all of the roads, streets, avenues, alleys, highways, paths, trails and other public rights-of-way controlled by the City as now laid out, platted, dedicated or improved; and all roads, streets, avenues, alleys, highways and public rights-of-way controlled by the City as presently laid out, platted, dedicated or improved within the present limits as shown by Cowlitz County.

1.1.5 “Communication System” or “Facilities” means, collectively, NoaNet’s system of cables, wires, conduits, ducts, pedestals, and any associated converter, equipment, or facilities within the Franchise Area designed or constructed for the purpose of providing Communication Service or Telecommunication Service, whether the same be located overhead or underground. A general description of the Facilities currently planned by NoaNet is set forth in Exhibit A, attached hereto and incorporated by this reference.

1.1.6 “Communication Service and Telecommunication Service” shall mean any telecommunication services provided by NoaNet over its Communication System, either directly or as a carrier for its subsidiaries, Affiliates, or any other person engaged in Communication Services, including, but not limited to, transmission of voice, data or other electronic information, facsimile reproduction or other subsequently developed technology which carries and electronic signal over fiber optic cable, including, but not limited to, those definitions of telecommunication services included in Chapter 35.99 RCW.

1.1.7 “Ordinance” means this Ordinance No. 2011-06 which sets forth the terms and conditions of this Franchise.

1.1.8 “Public Improvement” means any capital improvement or repair within the Franchise Area that is undertaken by or on behalf of the City and is funded by the City (either directly with its own funds or with other public monies obtained by the City). For clarity, the term “Public Improvement” shall include any public work capital improvement or repair undertaken by the City which requires the relocation of NoaNet’s Facilities that conflict with said Public Improvement within the Franchise Area, even if a portion of the public work capital improvement or repair includes work performed for a third party county or municipality under a valid interlocal agreement between the City and such county or municipality (except to the extent the request to relocate NoaNet’s Facilities is caused entirely by work done for such governmental third party). Public Improvement shall not include, any improvements or repairs undertaken by any third party private entities, or undertaken by the City by agreement with, or for the benefit of third party private entities. Any improvement in the existing right-of-way shall be a public improvement.

1.1.9 “Force Majeure” shall mean delays due to acts of God, war, civil disturbances, fire, unavoidable casualty, construction delays due to weather, failure of supplier(s), labor dispute, or for other similar causes beyond the control of NoaNet or City.

1.1.10 “Mayor” means the Mayor of the City of Castle Rock or his or her designee.

1.1.11 “Public Works Director” means the duly appointed incumbent of the office of Public Works Director of the City of Castle Rock or his or her designee.

SECTION 2. GRANT AND RENEWAL OF FRANCHISE

2.1 Pursuant to the laws of the State of Washington, the City hereby grants to NoaNet, subject to the terms and conditions as set forth herein, a Franchise for a period of ten (10) years commencing upon the effective date of this Ordinance and subsequent acceptance of such ordinance and Franchise by NoaNet. This Franchise is granted upon the express condition that NoaNet, within thirty (30) days after the adoption of this Ordinance, shall file with the clerk of the City a written acceptance of the same.

2.2 This franchise may be renewed for additional ten (10) year terms pursuant to the following process: If NoaNet desires to renew, NoaNet shall notify the City not later than 180 days prior to the expiration of the franchise of its desire to renew and its desire, if any, to renegotiate any of the terms set forth within this franchise or desire to add or delete any such terms. The City shall respond to the request not later than 120 days prior to the expiration date, and may request renegotiation of any term, or the addition or deletion of any term at that time. If NoaNet does not request renewal, this franchise shall be deemed terminated. If NoaNet requests renewal, and either party requests renegotiation, or addition or deletion of any term or terms, this franchise shall not renew unless and until the City and NoaNet reach agreement and said agreement is approved by ordinance of the City Council. The City will not unreasonably withhold renewal of additional periods. The City will not unreasonably withhold renewal of additional periods. Nothing in this section prevents the parties from reaching agreement on renewal prior to the expiration of the previous ten (10) year period.

2.3 NoaNet specifically agrees to comply with the provisions of any applicable City codes, ordinances, regulations, standards, procedures, permits or approvals, as from time to time amended. The express terms and conditions of the Franchise constitute a valid and enforceable contract between the Parties.

SECTION 3 FACILITIES WITHIN FRANCHISE AREA

3.1 The City does hereby grant to NoaNet the right, privilege, authority and franchise to set, erect, lay, construct, support, attach, connect, maintain, repair, replace, operate and use Facilities in, upon, over, under, across and through the Franchise Area, provided that such placement complies with all city requirements, to provide for the transmission, distribution and sale of voice, data or other electronic information, facsimile reproduction or other subsequently developed technology which carries and electronic signal over fiber optic optic cable, including, but not limited to, those definitions of telecommunication services included in Chapter 35.99 RCW.

3.2 This Franchise shall not convey any right to NoaNet to install new Facilities outside the Franchise Area; provided, however, that NoaNet shall retain the right to maintain, repair and operate Facilities installed (if in ownership of the City) prior to this franchise agreement with the City if said Facilities are outside the Franchise Area, but such right shall be subject to the provisions of Section 3.3. Further, restrictions to overhead lines repairs, upgrades or replacement, as per city standards and codes, shall apply.

3.3 Except as provided for in section nine, existing Facilities installed or maintained by NoaNet on public grounds and places within the City (which Facilities are not within the Franchise Area as defined in this Franchise) may continue to be maintained, repaired and operated by NoaNet at the location such Facilities exist until replaced at the end of their useful life. Such facilities shall be moved within franchise limits as poles and utilities are replaced at the end of their useful life and as per section nine and defined in section 1.1.8.

SECTION 4 NON-INTERFERENCE AND MAINTENANCE OF FACILITIES

4.1 NoaNet Facilities shall be constructed, installed, maintained and repaired within the Franchise Area as per applicable City standards and codes so as not to unreasonably interfere with the free passage of traffic and in accordance with the laws of the State of Washington, and the ordinances, rules and regulations of the City which are not inconsistent with the terms of this Franchise. NoaNet shall exercise its rights within the Franchise Area in accordance with applicable City codes and ordinances governing use and occupancy of the Franchise Area.

4.2 Any repair of NoaNet’s Facilities within the Franchise Area shall be made within the time and in a manner which conforms with generally accepted customs, practices and standards in the industry and as agreed to by the City.

4.3 Whenever Public Utility District No. 1 of Cowlitz County, Washington, permanently discontinues use of any above ground or at grade District-owned Facilities within the Franchise Area, such as poles, braces, guys, and anchors, due to modifications or upgrades to District’s Facilities within the Franchise Area, the relocation or removal of NoaNet’s Facilities shall be the responsibility of NoaNet. The relocation or removal of such facilities shall occur within ninety (90) calendar days after NoaNet’s receipt of notice from the City demanding relocation or removal. The City will expeditiously review any NoaNet requests to move its Facilities.

SECTION 5 TERMS AND CONDITIONS

The following terms and conditions shall be subject to the Constitution and laws of the United States of America and the State of Washington, and shall apply and be deemed to be terms and conditions of this franchise to use the Franchise Area hereafter granted by the City to NoaNet, unless and except to the extent that such ordinance or resolution granting such franchise expressly provides terms or conditions contrary to those herein contained.

SECTION 6 GRANTEE – SCOPE OF OBLIGATIONS

The obligations imposed upon NoaNet by the express terms of the Ordinance granting such franchise or implied by the terms of this section or any other ordinance affecting the same, shall be deemed to include every employee, nominee or independent contractor of NoaNet performing work in the Franchise Area under contract, direction, request or authority of NoaNet under this franchise, and NoaNet, its agents, employees or independent contractors, severally, shall be responsible to the City for any injury or damage to City property or the expense incurred or suffered by the City in correcting defects in work replacing City streets or other improvements damaged by the acts or neglect of such agents, employees, or independent contractors of NoaNet.

SECTION 7 SAFETY REQUIREMENTS

NoaNet, in accordance with applicable national, state and local safety requirements, shall at all times employ ordinary care and shall install and maintain and use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public. All structures and all lines, cables, equipment and connections in, over, under and upon the Franchise Area, wherever situated or located, shall at all times be kept and maintained in a safe, suitable condition, and in good order and repair. If a violation of the National Electric Safety Code or other applicable regulation is found to exist, the City may, after discussion with NoaNet, establish a reasonable time for NoaNet to make necessary repairs. If the repairs are not made within the established time frame, the City may make the repairs itself or have them made and collect all reasonable and applicable costs thereof from NoaNet. NoaNet shall be solely and completely responsible for workplace safety and safe working practices on its job sites within the Franchise Area, including safety of all persons and property during the performance of any work therein.

SECTION 8. PERMITS; RESTORATION

8.1 Whenever it shall be necessary for NoaNet to engage in any work within the Franchise Area, NoaNet shall apply for all necessary City permits to do such work, and shall, except to the extent inconsistent with the terms and conditions of this Franchise or where expressly provided otherwise herein, comply with all requirements and conditions of such permits, including but not limited to location and pole height restrictions, traffic control, and restoration, repair or other work to restore the surface of the Franchise Area, as nearly as practicable, to its condition immediately prior to the work, or as otherwise specified in the permit issued by the City in connection with the work. All restoration shall be completed in accordance with the current City requirements, including Development Guidelines and Public Works Standards. This shall not be construed that NoaNet shall change and/or upgrade the layout or configuration of existing City facilities. It is further provided that in the event that NoaNet has any work in the Franchise Area completed by any of its authorized agents or subcontractors, NoaNet shall remain fully responsible for the permit, permitted work and any other permit requirements, notwithstanding any provisions of this Franchise to the contrary. Failure of NoaNet to notify the City of work mobilization and demobilization will result in revocation of the permit and any applicable penalty set by City resolution.

8.2 In the event of an emergency situation in which NoaNet’s Facilities within the Franchise Area are in such a condition so as to necessitate service restoration or immediately endanger the property, life, health or safety of any individual, NoaNet may take immediate action to make repairs and/or restore service without first obtaining any required permit, provided that NoaNet shall notify the City telephonically or in person within seventy-two (72) hours of the event, and provided that NoaNet applies for any necessary permit(s) from the City for such work as soon as reasonably practicable thereafter. For the purposes hereof, “as soon as reasonably practicable” means that the permit application shall be submitted to the City not later than ten (10) business days after the date of the commencement of the action that requires such permit.

8.3 NoaNet shall leave all Franchise Areas, after doing construction work, making repairs to equipment etc., in as good and safe condition in all respect as they were before the commencement of such work by NoaNet, its agents or contractors, and all recorded monuments which have been disturbed or displaced by the work shall be reset to the specifications and approval of the City Engineer.

8.4 In case of any damage caused by NoaNet to said Franchise Area, or to paved or surfaced roadways, turn-outs, gutters, ditches, wood or concrete walks, drainpipes, hand or embankment rails, bridges, trestles, wharves, landings or monuments, said NoaNet agrees to immediately repair said damage to City standards at its own sole cost and expense.

8.5 When the Public Works Director determines that an emergency situation does exist, he/she may order and have done any and all work considered necessary to restore to a safe condition any such Franchise Area left by NoaNet or agents in a condition dangerous to life or property. The Public Works Director may cause to be replaced or reset recorded monuments of NoaNet fails to replace or reset same within 30 days after completion of construction. NoaNet, upon demand, shall pay to the City all applicable, actual, and reasonable costs of doing such work.

8.6 When the PUD changes its method of transmission, such as changing from overhead transmission to underground transmission, NoaNet shall, within a reasonable period, remove or relocate all Facilities.

SECTION 9 RELOCATION & READJUSTMENT OF FACILITIES

9.1 Whenever the City causes a Public Improvement to be undertaken within the Franchise Area, and such Public Improvement requires the relocation of NoaNet’s then existing Facilities within the Franchise Area (for purposes other than those described in Section 9.2 below), the City shall:

9.1.1 Provide NoaNet with reasonable advance written notice, but in any event not less than ninety (90) days, requesting such relocation; and after receipt, NoaNet will review the scope of work to determine if it can be completed. If not, NoaNet will notify the Public Works Director to work cooperatively to resolve any scheduling issues.

9.1.2 Promptly provide NoaNet with all existing plans and specifications for such Public Improvement as may be requested by NoaNet.

After receipt of such notice and such plans and specifications, NoaNet shall relocate such Facilities within the Franchise Area at no charge to the City. If the City requires the subsequent relocation of any Facilities within ten (10) years from the date of relocation of such Facilities pursuant to this Section 9.1, the City shall bear the entire cost of such subsequent relocation.

The City and NoaNet will work cooperatively to come to a mutually agreed plan to accommodate Public Improvements.

9.2 Whenever (i) any private development within the Franchise Area, other than a Public Improvement, requires the relocation of NoaNet’s Facilities within the Franchise Area to accommodate such development, then in such event, NoaNet shall have the right as a condition of such relocation, to require such developer, person or entity to make payment to NoaNet at a reasonable time and terms acceptable to NoaNet, for any and all costs and expenses incurred by NoaNet in the relocation of its Facilities.

9.3 Any condition or requirement imposed by the City upon any person or entity, other than NoaNet, that requires the relocation of NoaNet’s Facilities shall be a required relocation for purposes of Section 9.2 above (including, without limitation, any condition or requirement imposed pursuant to any contract or in conjunction with approvals or permits for zoning, land use, construction or development).

9.4 If at any time the City deems it advisable to improve any of its streets, avenues, sidewalks, paths, alleys, roads, highways, rights-of-way or other city properties as hereinbefore designated, by grading, re-grading, surfacing or paving same, or altering, changing, repairing or improving same, NoaNet upon written notice by the City shall, at its own expense, as soon as reasonably practicable, to raise, lower, or move its overhead lines, NoaNet Facilities or improvements to conform to such new grades as may be established, or place said property in such locations or positions as shall cause the least interference with any such improvements or work thereon as contemplated by the City and said City shall in no way be held liable for any damage to NoaNet that may occur by reason of the City improvements, repairs or maintenance performed in a reasonably careful and prudent manner, or by the exercise of any rights so reserved in this section or grant. If the City shall improve such streets, avenues, sidewalks, paths, alleys, roads, highways, rights-of-way or other city properties, NoaNet shall on written notice by city officials, at its own expense, replace its lines or system as may be in or through the improved sub-grade of such improvement, with such materials as shall conform to or exceed the applicable standards of the city and industry for use in such streets, avenues, sidewalks, alleys, roads, highways, rights-of-way or other City properties; PROVIDED, that if a readjustment or relocation is necessitated for a reason other than the above enumerated City purposes, the person, firm or private corporation or entity requesting such readjustment or relocation shall pay NoaNet the actual costs; PROVIDED further, that in the event the City should require such readjustment or relocation in connection with any improvement of project funded, wholly or in part by state or federal funds, the City shall make an effort to include the costs for relocation in its funding applications where it meets funding agency requirements, and if successful, the City will reimburse NoaNet for invoice costs eligible under funding program as funds are available.

9.5 The parties agree that “relocation” refers to a permanent movement of facilities required of NoaNet, and not a temporary or incidental movement of facilities, such as raising of lines to accommodate house moving and the like, solely for aesthetic purposes, or other revisions NoaNet would accomplish without regard to municipal request. The City will work with NoaNet to minimize the need for temporary work to accommodate permanent moves.

SECTION 10 INDEMNIFICATION

10.1 NoaNet shall indemnify, defend and hold harmless the City, its elected and appointed officials, officers, employees, agents, representatives, engineers, and consultants from any and all claims, costs, judgments, awards, or liability to any person arising from injury or death of any person or damage to property to the extent the same is caused by the negligent acts or omissions of NoaNet, its agents, servants, officers, or employees in performing under this Franchise. This covenant of indemnification shall include, but not be limited by this reference, to claims against the City arising as a result of the negligent acts or omissions of NoaNet, its agents, servants, officers, or employees in barricading, instituting trench safety systems or providing other adequate warnings of any excavation, construction, or work in the Franchise Area or in any other public place in performance of work or services permitted under this Franchise. Provided, however, such indemnification shall not extend to that portion of any claims, demands, liability, loss, cost, damage or expense of any nature whatsoever including all costs and attorneys’ fees caused by the negligence of the City, its agents, employees, officers, contractors or subcontractors.

10.2 In the event any claim or demand for which indemnification is provided under Section 10.1 is presented to, or suit or action is commenced against, the City based upon any such claim or demand, the City shall promptly notify NoaNet thereof, and NoaNet may elect, at its sole cost and expense, to settle and compromise such suit or action, or defend the same with attorneys of its choice. In the event that NoaNet refuses the tender of defense in any suit or any claim for which indemnification is provided under Section 10.1, said tender having been made pursuant to this indemnification clause, 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 NoaNet, then NoaNet shall pay 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 recovery of attorneys’ fees under this indemnification clause.

10.3 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 NoaNet and the City, its officers, employees and agents, NoaNet’s liability hereunder shall be only to the extent of NoaNet’s negligence. It is further specifically and expressly understood that, solely to the extent required to enforce the indemnification provided herein, NoaNet waives its immunity under RCW Title 51; provided, however, the foregoing waiver shall not in any way preclude NoaNet from raising such immunity as a defense against any claim brought against NoaNet by any of its employees. This waiver has been mutually negotiated by the parties.

10.4 In the event it is determined that RCW 4.24.115 applies to this Franchise, NoaNet’s indemnification obligations under Section 10.1 shall apply to the maximum extent permitted thereunder, to the full extent of NoaNet’s negligence. Further, in any such action, the City shall have the right to participate, at its sole cost and expense, through its own attorney in any suit or action which arises pursuant to this Franchise when the City determines that such participation is in the City’s best interest.

10.5 The provisions in this Section 10 shall survive the expiration or termination of this Franchise with respect to any claim, demand, suit or action for which indemnification is provided under Section 10.1 and which is based on an act or omission that occurred during the term of this Franchise.

SECTION 11 MOVING BUILDINGS WITHIN THE FRANCHISE AREA

If any person or entity obtains permission from the City to use the Franchise Area for the movement or removal of any building or other object, the City shall, prior to granting such permission, require such person or entity to arrange with NoaNet for the temporary adjustment of NoaNet’s overhead wires necessary to accommodate the movement, removal, or placement/erection of such building or other object, where the movement or removal of such building or other object will pass under NoaNet’s overhead wires or where the movement or removal of such building or other object will otherwise require the temporary adjustment of NoaNet’s overhead wires. The City shall require such person or entity to complete such arrangements, upon terms and conditions acceptable to NoaNet, not less than ten (10) calendar days prior to the movement or removal of such building or other object. In such event, NoaNet shall, at the sole cost and expense of the person or entity desiring to move or remove such building or other object, adjust any of its overhead wires which may facilitate safe placement or the movement or removal of such building or object.

SECTION 12 RECOVERY OF COSTS; PERMIT FEES

As specifically provided by RCW 35.21.860, the City may not impose a franchise fee or any other fee or charge of whatever nature or description upon NoaNet as a result of this Franchise. However, as provided in RCW 35.21.860, the City may recover from NoaNet actual administrative expenses incurred by the City that are directly related to: (i) receiving and approving a permit, license or this Franchise, (ii) inspecting plans and construction, or (iii) preparing a detailed statement pursuant to RCW 43.21C. In consideration of such administrative expenses, the City shall charge NoaNet a permit fee which specify the amounts due. NoaNet shall make payment to the City of such expenses prior to permit issuance. Failure by NoaNet to acquire permit and pay such amount shall constitute a failure to comply with the Franchise. Additionally, failure by NoaNet to timely pay said amounts shall be grounds for the City to preclude the processing of any applications and/or issuing permits until payment has been fully made.

SECTION 13 NONEXCLUSIVE FRANCHISE

13.1 This Franchise is not, and shall not be deemed to be, an exclusive Franchise. This Franchise shall not in any manner prohibit the City from granting other and further franchises over, upon, and along the Franchise Area that do not interfere with NoaNet’s rights under this Franchise. This Franchise shall not prohibit or prevent the City from using the Franchise Area or affect the jurisdiction of the City over the same or any part thereof.

13.2 NoaNet will not share this franchise with any third party without the prior written approval of the City. This agreement may not be assigned or transferred without the written approval of the City, which approval shall not be unreasonably withheld or delayed. However, the City understands that NoaNet will be using funds under a Federal Grant under the Broadband Technology Opportunities Program (“BTOP”) to finance acquisition of this Franchise and/or the construction, purchase and/or installation of broadband facilities and equipment to be located in the City Right of Way. Pursuant to BTOP, NoaNet holds its interest in the Franchise and the broadband facilities and equipment located in the City Right of Way as trustee for the Federal Agency administrating that program, specifically, the National Telecommunications and Information Administration (“NTIA”), and Franchisee may record a public notice of such federal interest. NoaNet may freely assign its interest in the Franchise to NTIA if required to do so under the rules and regulations of BTOP and permission to assign or transfer interest in the Franchise shall not be withheld, if it is determined that permission is required under NTIA rules.

SECTION 14 FORCE MAJEURE

In the event that either party is prevented or delayed in the performance of any of its obligations under this Franchise by any event beyond its reasonable control (a Force Majeure event), then that party’s performance shall be excused during the Force Majeure event. The time within which NoaNet or City shall be required to perform any act under the Franchise shall be extended by a period of time equal to the number of days performance is delayed due to a Force Majeure. NoaNet or City shall not be subject to any penalty hereunder because of acts or failure to act due to Force Majeure.

SECTION 15 DISPUTE RESOLUTION AND AMENDMENT OF FRANCHISE

15.1 If there is any dispute or alleged default with respect to performance under this Franchise, the City shall notify NoaNet in writing, stating with reasonable specificity the nature of the dispute or alleged default. Within seven (7) days of its receipt of such notice, NoaNet shall provide written response to the City that shall acknowledge receipt of such notice and state NoaNet’s intentions with respect to how NoaNet shall respond to such notice. NoaNet shall further have thirty (30) days (the “cure period”) from its receipt of such notice to:

A. Respond to the City, contesting the City’s assertion(s) as to the dispute or any alleged default and requesting a meeting in accordance with Section 15.2, or;

B. Resolve the dispute or cure the default, or;

C. Notify the City that NoaNet cannot resolve the dispute or cure the default within thirty (30) days, due to the nature of the dispute or alleged default.

Notwithstanding such notice, NoaNet shall promptly take all reasonable steps to begin to resolve the dispute or cure the default and notify the City in writing and in detail as to the actions that will be taken by NoaNet and the projected completion date. In such case, the City may set a meeting in accordance with Section 15.2.

15.2 If any dispute is not resolved or any alleged default is not cured or a meeting is requested or set in accordance with Section 15.1., then the City shall promptly schedule a meeting between the City and NoaNet to discuss the dispute or any alleged default. The City shall notify NoaNet of the meeting in writing and such meeting shall take place not less than ten (10) days after NoaNet’s receipt of notice of the meeting. Each Party shall appoint a representative who shall attend the meeting and be responsible for representing the Party’s interests. The representatives shall exercise good faith efforts to resolve the dispute or reach agreement on any alleged default and/or any corrective action to be taken. Any dispute (including any dispute concerning the existence of or any corrective action to be taken to cure any alleged default) that is not resolved within ten (10) days following the conclusion of the meeting shall be referred by the Parties’ representatives in writing to the senior management of the Parties for resolution. In the event senior management is unable to resolve the dispute within twenty (20) days of such referral (or such other period as the Parties may agree upon), each Party may pursue resolution of the dispute or any alleged default through other legal means. All negotiations pursuant to these procedures for the resolution of disputes shall be confidential and shall be treated as compromise and settlement negotiations for purposes of the state and federal rules of evidence.

15.3 If, at the conclusion of the steps provided for in Section 15.1 and 15.2 above, the City and NoaNet are unable to settle the dispute or agree upon the existence of a default or the corrective action to be taken to cure any alleged default, the City or NoaNet (as NoaNet may have authority to do so) may:

A. Take any enforcement or corrective action provided for in City code, as from time to time amended; provided such action is not otherwise in conflict with the provisions of this Franchise, and/or;

B. By ordinance, declare an immediate forfeiture of this Franchise for a breach of any material obligations under this Franchise and/or;

C. Take such other action to which it is entitled under this Franchise or any applicable law.

15.4 Unless otherwise agreed by the City and NoaNet in writing, the City and NoaNet shall, as may reasonably be practicable, continue to perform their respective obligations under this Franchise during the pendency of any dispute.

15.5 Neither NoaNet’s acceptance of this Franchise, NoaNet’s appearance before the City Council at any public proceeding concerning the proposed termination of this Franchise, nor any action taken by the City Council as a result of any such public proceeding, including a declaration of termination or a finding of grounds to terminate, shall be construed to waive or otherwise affect NoaNet’s right to seek dispute resolution of the rights and responsibilities of the parties under this Franchise.

15.6 This Franchise may be amended only by written instrument, signed by both parties, which specifically states that it is an amendment to this Franchise and is approved and executed in accordance with the laws of the State of Washington. Without limiting the generality of the foregoing, this Franchise shall govern and supersede and shall not be changed, modified, deleted, added to, supplemented or otherwise amended by any permit, approval, license, agreement, or other document required by or obtained from the City in conjunction with the exercise (or failure to exercise) by NoaNet of any and all rights, benefits, privileges, obligations, or duties in and under this Franchise, unless such permit, approval, license, agreement or other document specifically references this Franchise and states that it supersedes this Franchise to the extent it contains terms and conditions that change, modify, delete, add to, supplement or otherwise amend the terms and conditions of this Franchise.

15.7 In the event a dispute arises regarding the interpretation, implementation and/or breach of the terms of this Franchise, the prevailing party is entitled to be awarded costs and reasonable attorney fees incurred in resolution of such dispute pursuant to the terms of this section and in any judicial proceeding.

SECTION 16 RESERVATION OF RIGHTS

In the event the City should vacate, close, or abandon any portion of any public street, avenue, alley, road, highway, right-of-way or other City property which is subject to rights granted by said Franchise, or which contains any portion of NoaNet’s Facilities the City shall, after granting an alternate route in its vacation procedure, reserve and grant an easement to NoaNet for NoaNet’s existing Facilities unless NoaNet determines the easement is unnecessary. Any conveyance of land contained in such closed, abandoned public streets, alley, or right-of-way shall be subject to the rights herein granted. In cases where the City determines that reserving and granting an easement to NoaNet is impracticable, the City will notify NoaNet ninety (90) business days prior to any final vacation action.

SECTION 17 ANNEXATION

Annexation of unincorporated areas within the City’s urban growth area, including City consideration of acquisition of NoaNet facilities, shall comply with RCW 35A.14 (Annexation by Code Cities) and this Franchise between the City and NoaNet.

SECTION 18 SEVERABILITY

18.1 Except as provided below, if any section, subsection, sentence, clause, phrase, term, provision, condition, covenant or portion of this Franchise is for any reason held invalid or unenforceable by any court of competent jurisdiction, or supersede by state or federal legislation, rules, regulations or decision, the remainder of this Franchise shall not be affected thereby but shall be deemed as a separate, distinct and independent provision, and such holding shall not affect the validity of the remaining portions hereof, and each remaining section, subsection, sentence, clause, phrase, provision, condition, covenant and portion of this Franchise shall be valid and enforceable to the fullest extent permitted by law. The headings of sections and paragraphs of this Franchise are for convenience of reference only and are not intended to restrict, affect or be of any weight in the interpretation or construction of the provisions of such sections or paragraphs.

18.2 If any material provision of this Franchise is for any reason held invalid or unenforceable by any court of competent jurisdiction, or superseded by state or federal law, rules, regulations or decision so that the intent of these provisions is frustrated, the parties agree to immediately negotiate a replacement provision to fulfill the purpose and intent of the superseded provisions consistent with applicable law.

SECTION 19 NOTICES

All notices from NoaNet to the City pursuant to this Franchise shall be directed to the Mayor at P. O. Box 370, Castle Rock, Washington 98611, or to such person as designated by the City Manager. All notices from the City to NoaNet pursuant to this Franchise shall be directed to Chief Executive Officer-NoaNet, 5802 Overlook Avenue NE, Tacoma WA 98422, or to such person as designated by the Chief Executive Officer. NoaNet shall maintain, throughout the term of this Franchise, an address for service of notices by mail. NoaNet shall also maintain a telephone number operational during normal business hours for the conduct of matters related to this Franchise. Any change in address or telephone number shall be furnished to the City ten (10) days prior to the change. Any change to City ordinances that affect NoaNet’s compliance with this Franchise shall be furnished to NoaNet ninety (90) days prior to such change.

SECTION 20 EFFECTIVE DATE

20.1 This Franchise shall be in full force and effect five (5) days after publication, subject to acceptance by NoaNet in accordance with the provisions of this Franchise. This Franchise is and shall remain in full force and effect for a period of ten (10) years from and after the effective date of the ordinance.

20.2 This Franchise represents the entire understanding and agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior oral negotiations between the parties.

	INTRODUCED: June 13, 2011
	PASSED: June 27, 2011
	APPROVED:	/x/________________________
		Mayor Paul Helenberg

ATTEST:	APPROVED AS TO FORM:
/x/________________________	/x/________________________
City Clerk	City Attorney

Date: 6/27/2011	Date: 6/27/2011