HomeMy WebLinkAbout4145AN ORDINANCE of the city council of the
city of Kent, Washington, acknowledging the
merger of tw telecom inc., and Level 3
Communications, Inc., and approving the resulting
indirect change of control of the tw telecom of
washington LLC, telecommunications franchise
with conditions and establishing an effective date.
RECITALS
A. On May 20, 2014, the City of Kent (the "City") adopted
Ordinance No. 4112, granting a nonexclusive telecommunications franchise
to tw telecom of washington Ilc (the "Franchisee") to operate a
telecommunications system (the "System") within the city limits of the City
of Kent, with an effective date of May 28, 2014 (the "Franchise").
B. On June 15, 2014, tw telecom inc. ("TWTC"), the Franchisee's
indirect parent company, entered into an Agreement and Plan of Merger
(the "Merger Agreement") with Level 3 Communications, Inc. ("Level 3").
C, As a result of this Merger Agreement, Level 3 acquired direct
ownershiP
of TWTC and indirect control of the Franchisee.
I tw telecom
Ordinance Acknow/edging
Merger and Indirect Change of Control
D. Section 28 of the Franchise requires that Level 3 and TWTC
receive the consent of the City for the indirect transfer of control of the
Franchisee to Level 3.
E. Both Level 3 and TWTC have jointly requested that the City
Council consent to the indirect change of control.
F. The consent of the City to the indirect change of control shall
not constitute a waiver or release of any rights the City may have under
the Franchise.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF KENT,
WASHINGTON, DOES HEREBY ORDAIN AS FOLLOWS:
ORDINANCE
SECTION 1. Consent. The City hereby consents to the indirect
change of control in accordance with the terms of applicable law, subject
to and contingent upon the following conditions:
i. The City's consent to the indirect change of control shall not be
construed to constitute a waiver or release of any rights the City may have
now or in the future under federal, state or local law, the Franchise, or any
separate written agreements with the Franchisee that relate to the
Franchise. Level 3 shall acknowledge in writing that the Franchisee remains
responsible for any and all non-compliance issues, if any, that may have
arisen prior to and after the effective date of the Merger Agreement and
any and all obligations under the Franchise that existed prior to and after
the effective date of the Merger Agreement.
2 tw telecom
Ordinance Acknow/edging
Merger and Indirect Change of Control
2. Level 3 has represented that substantially all of the tangible and
intangible assets of the Franchisee acquired by Level 3 as a consequence
of the Merger Agreement with TWTC remain in the Franchisee.
3. Following the indirect change of control and receipt of written
acknowledgement of the Franchise from Level 3, the Franchise shall
remain in full effect through May 28, 2024.
4. By consenting to this indirect change of control, the City does not
waive or release any rights of the City in and to the rights-of-way as
provided by state law and the Kent Municipal Code, nor does the City
waive or release any claim or issue of non-compliance it may have, known
or unknown, now or in the future related to the Franchise.
5. Written acknowledgement shall be filed by Level 3 with the City
Clerk, with copies to the City Attorney, within sixty (60) days after the
enactment of this ordinance. Such written acceptance shall be
accompanied by construction and completion bonds, security funds, and
evidence of insurance all as may be required pursuant to the Franchise, if
any such construction and completion bonds, security funds or insurance
change as a result of this indirect change of control.
SECTION 2. - To the best of the City's knowledge and belief, there
are no existing facts or circumstances that with or without the giving of
notice or the passage of time, or both, would constitute a default of any
term or condition of the Franchise.
SECTl'ON 3. -Effective Date. This ordinance or a summary thereof
consisting of the title shall be published in the official newspaper of the
3 tw tolecom
Ordinance Acknow/edging
Merger and Indirect Change of Control
City, and shall take effect and be in full force five (5) days after
publication.
ATTEST:
P�
APPROVED AS TO FORM
BRUBAKER, CITY ATTORNEY
APPROVED: day of 2015.
�
m.641
day of 2015.
I hereby certify that this is a true copy of Ordinance No. �'�
passed by the city council of the city of Kent, Washington, and approved
by the Mayor of the city of Kent as hereon indicated
P:\civil\Ordinance\Kent Level 3 by merger ardlnance.doa
(SEAL)
4 tw tolecom
Ordinance Acknowledging
Merger and Indirect Change of Control
STATEMENT OF ACKNOWLEDGEMENT
WHEREAS, the City Council of the City of Kent, Washington, has acknowledged the
consummation of the merger of tw telecom me, ("TWTC") and Level 3 Communications, Inc.
("Level 3") and has consented to the resulting indirect change of control of tw telecom of
washington LLC (the "Franchisee") the holder of the telecommunications franchise (the
"Franchise") issued by the City to the Franchisee as Ordinance No. 4112 and the resulting
indirect change in control pursuant to the conditions set forth in Ordinance No. �y'/i,�, bearing the
date of ,��.,/ 01,5
("Ordinance").
NOW, THEREFORE, Leve13, hereby acknowledges said Ordinance and all the terms
and conditions thereof, and files this, its written acknowledgement, and all written instrument(s)
evidencing such indirect change of control of the Franchisee.
Leve13 hereby acknowledges that the indirect change of control will not affect, diminish,
impair or supersede the binding nature of the Franchise and any other valid ordinances,
resolutions, and agreements applicable to the operation of the telecommunications system in the
City. Level 3 represents that substantially all of the tangible and intangible assets of the
Franchisee acquired by Level 3 as a consequence of the merger with TWTC remain in the
Franchisee. Level 3 hereby agrees that subject to the Franchise, tw telecom of washington llc
will comply with the Kent Municipal Code, all related applicable federal and state laws, lawful
orders, contracts, agreements, commitments, and regulatory actions.
IN TESTIMONY WHEROF, Level 3, has caused this written Statement of
Acknowledgement to be executed in its name by its duly authorized officer on this day
of i , , , 2015.
LEVEL 3 COIYIMUNICATIONS, INC.
If cwe, 25 C 20159
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STATE OF COLORADO )
)ss.
COUNTY OF
I certify that I know or have satisfactory evidence thats ;]] UA t is the
person who appeared before me, and said person acknowledged that he signed this instrument,
on oath stated that he was authorized to execute the instrument and acknowledged it as the
of c'�-. � - � ,-� � ' � . , to be the free and voluntary act of such party for the
uses and purposes mentioned in the instrument.
NOTARY
STATE OF COLORADO
NOTARY R 20124071845
I IT
Received by the City
By:
City
r
Notary Public in and for
My appointment expires:
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