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1001 Astound Franchise (2)NOW, THEREFORE, in consideration of the City's approval of the transfer, subject to the terms and conditions of this Agreement, THE PARTIES DO HEREBY AGREE as follows: 2. TRANSFER. Transfer of the Franchise shall be effective upon the following conditions precedent: 2.1 Receipt by the City of the fully executed acceptance of Franchise attached hereto as Exhibit B -1 together with all required certificates of insurance, security fund and performance bond; 2.2 Payment to the City of the Transfer fees; and 2.3 The date of closing of the sale /conveyance of the property benefited by this Franchise and/or the Facilities located in the Franchise Area or upon a date as mutually agreed to by the City, Franchisee and Transferee as follows: 3. ACCEPTANCE OF FRANCHISE OBLIGATIONS. 3.1 The Franchisee and Transferee hereby accept, acknowledge, and agree that neither the proposed transaction between Franchisee and Transferee nor the City's approval of this Agreement shall diminish or affect the existing and continuing commitments, duties, or obligations, present, continuing, and future, of the Franchisee and Transferee embodied in the Franchise. 3.2 Transferee and Franchisee agree that neither the transfer nor the City's approval of this Agreement and the resulting transfer shall in any respect relieve Franchisee, or any of its successors in interest, of any obligation or liability arising from acts or omissions occurring prior to the transfer of the Franchise, whether known or unknown, or the consequences thereof. 3.3 The transfer is not intended and shall not be construed to authorize the Franchisee to take any position or exercise any right that could not have been exercised prior to the Transfer. 3.4 Notwithstanding anything to the contrary herein, Transferee shall not be responsible for any of Franchisee's financial liabilities and obligations under the Franchise or pursuant to the City code, rules, and regulations that accrued before the Transfer of the Franchise, and Franchisee shall not be responsible for any financial liabilities and obligations under the Franchise or pursuant to the City code, rules, and regulations that accrue on or after the Transfer of the Franchise. 3.5 The City waives none of its rights with respect to the Franchisee's or Transferee's compliance with the terms, conditions, requirements, and obligations set forth in the Franchise. The City's approval of this Agreement shall in no way be deemed M a representation by the City that Franchisee is in compliance with all of Franchisee's obligations under the Franchise. 3.6 Franchisee and Transferee acknowledge and agree that the City's approval and acceptance of this Agreement and the resulting transfer is made in reliance upon the representations, documents, and information provided by the Franchisee and Transferee in connection with the request for Transfer. 4. MISCELLANEOUS PROVISIONS. 4.1 Conditions Precedent. The Agreement shall be effective and binding upon the signatories once it has been signed by all signatories; provided that, within 30 days of execution of the Agreement by all of the signatories, Transferee has provided to the City the following: (1) all fees required for this Transfer, (2) its acceptance of the Franchise in substantially the form of the document attached hereto as Exhibit B -1; (3) its insurance certificate in conformance with the requirements of the Franchise; (4) a performance bond or cash deposit in conformance with the requirements of the Franchise. 4.2 Entire Agreement. The Agreement constitutes the entire agreement of the Parties with respect to the matters addressed herein. No statements, promises, or inducements inconsistent with the Agreement made by any Party shall be valid or binding, unless in writing and executed by all Parties. 4.3 Binding Acceptance. The Agreement shall bind and benefit the Parties hereto and their respective heirs, beneficiaries, administrators, executors, receivers, trustees, successors, and assigns, and the promises and obligations herein shall survive the expiration date hereof. Any purported transfer of the Agreement is void without the express written consent of the signatories. 4.4 Severability. In the event that any provision of the Agreement shall, to any extent, be held to be invalid, preempted, or unenforceable, the remainder hereof shall be valid in all other respects and continue to be effective. 4.5 Defined Terms. Terms not defined in this Agreement shall have the same meaning as given in the Franchise. 4.6 Governing Law. The Agreement shall be governed in all respects by the laws of the state of Washington. 4.7 Notice. Pursuant to Section 8.13 of the Franchise, Notices to Transferee shall be delivered to: Transferee's address: ** .$ And to: IN WITNESS WHEREOF the Parties hereto have executed this Agreement as of the day and year first written above. CITY: FRANCHISEE: By: Shelly Badger, City Administrator By: Title: TRANSFEREE: By: _ Title: Tax Id. No. 41 TRANSFER EXHIBIT B -1 Acceptance of Franchise Franchise issued pursuant to Ordinance No. and accepted , 20 ; Transfer authorized pursuant to Resolution No. , effective , 20 I, , am the , and am the authorized representative to accept the above - referenced Franchise on behalf of In my capacity as and not individually, I certify that this Franchise and all terms and conditions thereof are accepted by , without qualification or reservation and that unconditionally guarantee(s) performance of all such terms and conditions. DATED this day of , 20 STATE OF ss. CITY OF By Its Tax Payer ID# I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknowledged that said person signed this instrument, on oath stated that said person was authorized to execute the instrument and acknowledged it (as the of , a corporation,) to be the free and voluntary act of such corporation/individual for the uses and purposes mentioned in the instrument. Dated this day of (Signature of Notary) 42 Print Name Notary public in and for the state of , residing at My appointment expires: 43 EXHIBIT "C" (Description of Franchise Area) The area within the jurisdictional boundaries of the City of Yelm, Washington, and such additional areas as may be included in the jurisdictional boundaries of the City of Yelm, Washington, during the term of this Franchise. .. EXHIBIT "D" (Insurance Requirements) 1. General Requirement. Franchisee shall have adequate insurance at all times while Franchisee owns or operates Facilities in the Public Rights -of -Way, to protect the City against claims for death or injuries to Persons or damages to property or equipment which in any way relate to, arise from or are connected with the Work, the Facilities, or the activities of Franchisee, its employees, agents, representatives, contractors, subcontractors and their employees, within the Franchise Area. 2. Minimum Insurance Limits. The Franchisee shall maintain the following minimum insurance coverages and limits: 2.1 Commercial General Liability: insurance to cover liability, bodily injury, and property damage. The Commercial General Liability insurance shall be written on an occurrence basis, and shall provide coverage for any and all costs, including reasonable defense costs, and losses and damages resulting from personal injury, bodily injury and death, property damage, products liability and completed operations. Such insurance shall include broad form and blanket contractual coverage, including coverage for the Franchise as now or hereafter amended. Coverage must be written with the following limits of liability: $2,000,000 per occurrence, $4,000,000 general aggregate and $1,000,000 products /completed operations aggregate. 2.2 Automobile Liability: shall include owned, hired, and non -owned vehicles on an occurrence basis with coverage of at least $2,000,000 per occurrence. 2.3 Workers Compensation Insurance: shall be maintained during the life of this Franchise to comply with statutory limits for all employees, and in the case any work is sublet; the Franchisee shall require its contractors and subcontractors similarly to provide workers' compensation insurance for all the employees. The Franchisee shall also maintain, during the life of this policy, employer's liability insurance with limits of $1,000,000 each occurrence. 2.4 Excess or Umbrella Liability: $5,000,000 each occurrence and $5,000,000 policy limit. 3. Endorsements. Franchisee Commercial General Liability insurance policies are to contain, or be endorsed to contain, the following: 3.1 The Franchisee's insurance coverage shall be primary insurance with respect to the City. Any insurance, self - insurance, or insurance pool coverage maintained by the City shall be in excess of the Franchisee's insurance and shall not contribute to it. KI 3.2 Franchisee, through policy endorsement, shall waive its rights of subrogation against the City for all claims and suits. 3.3 That the coverage shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. 3.4 The Franchisee's insurance shall name the City as an additional insured, to protect or insure as an additional insured, from and against Liabilities arising out of work performed in the Public Rights -of -Way under a grant of authority of the City. 3.5 The Franchisee's insurance shall include a requirement that the "railroad exclusion" be deleted or may include, in the alternative, ISO endorsement CG 24 17 or the equivalent. 3.6 The insurance coverages and limits provided herein shall not be canceled without thirty (30) days' prior written notice first being given to the City, with the exception that ten (10) days' notice shall be required for cancellation resulting from non - payment of premium. If the insurance is canceled or reduced in coverage, Franchisee shall provide a replacement policy. 4. Acceptability of Insurers. Each insurance policy obtained pursuant to this Franchise shall be issued by financially sound insurers who may lawfully do business in the State of Washington with a financial strength rating at all times during coverage of no less than an "A-" and in a financial size category of no less than "VII ", in the latest edition of "Best's Rating Guide" published by A.M. Best Company. In the event that at any time during coverage, the insurer does not meet the foregoing standards, Franchisee shall give prompt notice to the City and shall seek coverage from an insurer that meets the foregoing standards. The City reserves the right to change the rating or the rating guide depending upon the changed risks or availability of other suitable and reliable rating guides. 5. Verification of Coverage. The Franchisee shall furnish the City with signed certificates of insurance and a copy of the amendatory endorsements, including, but not necessarily limited to, the additional insured endorsement, evidencing the Automobile Liability, Commercial General Liability and Umbrella or Excess insurance of the Franchisee upon acceptance of this Franchise. The certificate for each insurance policy is to be signed by a Person authorized by that insurer to bind coverage on its behalf. The certificate for each insurance policy must be on standard forms or on such forms as are consistent with standard industry practices. The Franchisee hereby warrants that its insurance policies satisfy the requirements of this Franchise. 6. Deductible. Commercial General Liability Insurance policies and coverage required herein may include a deductible; provided, however, that if Franchisee elects to include any deductible, Franchisee shall itself directly cover, in lieu of insurance, any and all City Liabilities that would otherwise in accordance with the 46 provisions of this Franchise be covered by Franchisee insurance if Franchisee elected not to include a deductible. Such direct coverage by Franchisee shall be in an amount equal to the amount of Franchisee's actual deductible. 7. No Limitation. Franchisee's maintenance of insurance policies required by this Franchise shall not be construed to excuse unfaithful performance by Franchisee or limit the liability of Franchisee to the coverage provided in the insurance policies, or otherwise limit the City's recourse to any other remedy available at law or in equity. 47 rt:e.,rtt• 47aan11 WAVEDHOI ACORD. CERTIFICATE OF LIABILITY INSURANCE DATE (MM/DDNYYY) 1 6/24/2015 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Kibbfe 8� Prentice, a USI Co NAMEA T Camden Heis PHONE 206 441 -6300 A/C No:610- 362 -8518 A/C, No, E, t): Camden.Heis @kpcom.com 601 Union Street, Suite 1000 Seattle, WA 98101 -ADDRESS: INSURER(S) AFFORDING COVERAGE NAIC # INSURER A: Travelers Property Cas. Co. of 25674 12/31/2015 INSURED WaveDivision Holdings, LLC 401 Parkpiace Center, Ste #500 Kirkland, WA 98033 INSURER 8: Travelers Indemnity Company 25658 INSURER C INSURER D INSURER E INSURER F: MED EXP (Any one person) rnv9=0Af -_9=C rFRTIFIrATE NLIMRER! REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. LTR TYPE OF INSURANCE NSR WVD POLICY NUMBER MMIDDY� MMIDDY EXP LIMITS A GENERAL LIABILITY 6305C934379 12/31 /2014 12/31/2015 EACH OCCURRENCE $1,000,000 PREMISES EaEoNCaurrrance $1 OOO,OOO X COMMERCIAL GENERAL LIABILITY MED EXP (Any one person) $10,000 CLAIMS -MADE 7 OCCUR PERSONAL & ADV INJURY $1,000,000 GENERAL AGGREGATE $2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS - COMP /OP AGG $ 2,000,000 $ POLICY JECT I X I LOC B AUTOMOBILE LIABILITY 8105C805601 12/31/2014 12/31/201 CMBINED EaaccidentSINGLELIMIT $1,000,000 BODILY INJURY (Per person) $ ANY AUTO BODILY INJURY (Per accident) $ ALL OWNED SCHEDULED AUTOS AUTOS NON -OWNED HIRED AUTOS X AUTOS Ix PROPERTY DAMAGE Per accident $ A X UMBRELLA LIAB X OCCUR CUP5C934379 12/31/2014 12/31/2015 EACH OCCURRENCE $20 000 000 AGGREGATE $20:000:000 EXCESS LIAB CLAIMS -MADE DED I X RETENTION $10000 $ A WORKERS COMPENSATION AND EMPLOYERS' LIABILITY ANY PROPRIETOR/PARTNER/EXECUTIVE YIN OFFICER/MEMBER EXCLUDED? N (Mandatory in NH) N/A HJU65C82497714 WA Stop Gap 12/31/2014 12/31 /201 WCYTAM'- OTH- E.L. EACH ACCIDENT $1,000,000 E.L. DISEASE - EA EMPLOYEE $1,000,000 E.L. DISEASE - POLICY LIMIT $1,000,000 If yes, describe under DESCRIPTION OF OPERATIONS below DESCRIPTION OF OPERATIONS I LOCATIONS / VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) RE: 105 Yelm Avenue West, Yelm, WA 98597. The General Liability, Automobile Liability and Umbrella Liability policies include an automatic Additional Insured endorsement that provides Additional Insured status to the Certificate Holder, its officers, agents, and employees, only when there is a written contract that requires such status, and only with regard to work performed on behalf of the named insured. The General Liability and Automobile Liability (See Attached Descriptions) City of Yelm SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN 105 Yelm Avenue West ACCORDANCE WITH THE POLICY PROVISIONS. Yelm, WA 98597 AUTHORIZED REPRESENTATIVE ©1988 -2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010/05) 1 of 2 The ACORD name and logo are registered marks of ACORD #S15625528/M13995607 KZMZP F DESCRIPTIONS (Continued from Page 1) policies contain a special endorsement with Primary and Noncontributory wording, when required by written contract. The General Liability policy includes a Waiver of Subrogation endorsement in favor of the Certificate Holder as referenced above. 30 days notice of cancellation and 10 days notice for non payment of premium applies. SAGITTA 25.3 (2010/05) 2 of 2 #Sl56255281M13995607 WaveDivision Holdings, LLC Named Insured Insurance included in this portfolio will provide protection for the following individuals and /or business entities subject to terms and conditions of the actual policies. All Lines of Coverage WaveDivision Holdings, LLC, a Delaware limited liability company Cedar Communications, LLC, a Washington limited liability company WaveDivision I, LLC, a Washington limited liability company WaveDivision Il, LLC, a Washington limited liability company WaveDivision III, LLC, a Washington limited liability company WaveDivision IV, LLC, a Washington limited liability company Wave Broadband, LLC, a Washington limited liability company (Inactive as of 2009) Astound Broadband, LLC Wave /Powers Acquisition, LLC Wave Business Solutions, LLC WaveDivision VI, LLC, a Washington limited liability company WaveDivision VII, LLC, a Washington limited liability company Michigan Broadband, LLC (Not listed on the Workers Compensation policy) OH WDH Holdco, LLC WDH Black Rock, LLC Seattle's Best Internet, LLC, A Washington limited liability company Vanoppen.biz LLC, a Washington limited liability company WDH Canada, LLC, a Washington limited liability company SNI Networks Canada ULC, a British Columbia unlimited liability company Wave Data Centers, LLC COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. TECHNOLOGY XTEND ENDORSEMENT This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART GENERAL DESCRIPTION OF COVERAGE — This endorsement broadens coverage. However, coverage for any injury, damage or medical expenses described in any of the provisions of this endorsement may be excluded or limited by another endorsement to this Coverage Part, and these coverage broadening provisions do not apply to the extent that coverage is excluded or limited by such an endorsement. The following listing is a general cover- age description only. Limitations and exclusions may apply to these coverages. Read all the provisions of this en- dorsement and the rest of your policy carefully to determine rights, duties, and what is and is not covered. A. Reasonable Force Property Damage — Ex- ception To Expected Or Intended Injury Ex- clusion B. Non -Owned Watercraft Less Than 75 Feet C. Aircraft Chartered With Pilot D. Damage To Premises Rented To You E. Increased Supplementary Payments F. Who Is An Insured — Employees And Volun- teer Workers — First Aid G. Who Is An Insured — Employees — Supervi- sory Positions H. Who Is An Insured — Newly Acquired Or Formed Organizations I. Blanket Additional Insured — Owners, Manag- ers Or Lessors Of Premises J. Blanket Additional Insured — Lessors Of Leased Equipment PROVISIONS A. REASONABLE FORCE PROPERTY DAMAGE — EXCEPTION TO EXPECTED OR INTENDED IN- JURY EXCLUSION The following replaces Exclusion a., Expected Or Intended Injury, in Paragraph 2., of SECTION I — COVERAGES — COVERAGE A BODILY IN- JURY AND PROPERTY DAMAGE LIABILITY: K. Blanket Additional Insured — Persons Or Or- ganizations For Your Ongoing Operations As Required By Written Contract Or Agreement L. Blanket Additional Insured — Broad Form Vendors M. Who Is An Insured — Unnamed Subsidiaries N. Who Is An Insured — Liability For Conduct Of Unnamed Partnerships Or Joint Ventures O. Medical Payments — Increased Limits P. Contractual Liability — Railroads 0. Knowledge And Notice Of Occurrence Or Of- fense R. Unintentional Omission S. Blanket Waiver Of Subrogation B. NON -OWNED WATERCRAFT LESS THAN 75 FEET The following replaces Paragraph (2) of Exclusion g., Aircraft, Auto Or Watercraft, in Paragraph 2. of SECTION I — COVERAGES — COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY: (2) A watercraft you do not own that is: a. Expected Or Intended Injury Or Damage (a) Less than 75 feet long; and "Bodily injury" or "property damage" expected or (b) Not being used to carry any person or intended from the standpoint of the insured. This property for a charge. exclusion does not apply to "bodily injury" or C. AIRCRAFT CHARTERED WITH PILOT "property damage" resulting from the use of rea- sonable force to protect any person or property. The following is added to Exclusion g., Aircraft, Auto Or Watercraft, in Paragraph 2. of SECTION CG D417 01 12 © 2012 The Travelers Indemnity Company. All rights reserved. Page 1 of 6 Includes copyrighted material of Insurance Services Office, Inc. with its permission. COMMERCIAL GENERAL LIABILITY 1 — COVERAGES — COVERAGE A BODILY IN- JURY AND PROPERTY DAMAGE LIABILITY: This exclusion does not apply to an aircraft that is: (a) Chartered with a pilot to any insured; (b) Not owned by any insured; and (c) Not being used to carry any person or prop- erty for a charge. D. DAMAGE TO PREMISES RENTED TO YOU 1. The first paragraph of the exceptions in Ex- clusion j., Damage To Property, in Para- graph 2. of SECTION I — COVERAGES — COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY is deleted. 2. The following replaces the last paragraph of Paragraph 2., Exclusions, of SECTION 1 — COVERAGES — COVERAGE A BODILY IN- JURY AND PROPERTY DAMAGE LIABIL- ITY: Exclusions c., g. and h., and Paragraphs (1), (3) and (4) of Exclusion j., do not apply to "premises damage ". Exclusion f.(1)(a) does not apply to "premises damage" caused by fire unless Exclusion f. of Section I — Cover- age A — Bodily Injury And Property Damage Liability is replaced by another endorsement to this Coverage Part that has Exclusion - All Pollution Injury Or Damage or Total Pollution Exclusion in its title. A separate limit of insur- ance applies to "premises damage" as de- scribed in Paragraph 6. of Section III — Limits Of Insurance. 3. The following replaces Paragraph 6. of SEC- TION III — LIMITS OF INSURANCE: 6. Subject to 5. above, the Damage To Premises Rented To You Limit is the most we will pay under Coverage A for damages because of "premises damage" to any one premises. The Damage To Premises Rented To You Limit will be: a. The amount shown for the Damage To Premises Rented To You Limit on the Declarations of this Coverage Part; or b. $300,000 if no amount is shown for the Damage To Premises Rented To You Limit on the Declarations of this Coverage Part. 4. The following replaces Paragraph a. of the definition of "insured contract" in the DEFINI- TIONS Section: a. A contract for a lease of premises. How- ever, that portion of the contract for a lease of premises that indemnifies any person or organization for "premises damage" is not an "insured contract'; 5. The following is added to the DEFINITIONS Section: "Premises damage" means "property dam- age" to: a. Any premises while rented to you or tem- porarily occupied by you with permission of the owner; or b. The contents of any premises while such premises is rented to you, if you rent such premises for a period of seven or fewer consecutive days. 6. The following replaces Paragraph 4.b.(1)(b) of SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS: (b) That is insurance for "premises damage' or 7. Paragraph 4.b.(1)(c) of SECTION IV — COMMERCIAL GENERAL LIABILITY CON- DITIONS is deleted. E. INCREASED SUPPLEMENTARY PAYMENTS 1. The following replaces Paragraph 1.b. of SUPPLEMENTARY PAYMENTS — COVER- AGES A AND B of SECTION I — COVER- AGES: b. Up to $2,500 for cost of bail bonds re- quired because of accidents or traffic law violations arising out of the use of any vehicle to which the Bodily Injury Liability Coverage applies. We do not have to fur- nish these bonds. 2. The following replaces Paragraph 1.d. of SUPPLEMENTARY PAYMENTS — COVER- AGES A AND B of SECTION I — COVER- AGES: d. All reasonable expenses incurred by the insured at our request to assist us in the investigation or defense of the claim or "suit", including actual loss of earnings up to $500 a day because of time off from work. Page 2 of 6 © 2012 The Travelers Indemnity Company. All rights reserved. CG D4 17 01 12 Includes copyrighted material of Insurance Services Office, Inc. with its permission. F. WHO IS AN INSURED — EMPLOYEES AND VOLUNTEER WORKERS — FIRST AID 1. The following is added to the definition of "oc- currence" in the DEFINITIONS Section: Unless you are in the business or occupation of providing professional health care services, "occurrence" also means an act or omission committed by any of your "employees" or "volunteer workers ", other than an employed or volunteer doctor, in providing or failing to provide first aid or "Good Samaritan services" to a person. 2. The following is added to Paragraph 2.a.(1) of SECTION II — WHO IS AN INSURED: Unless you are in the business or occupation of providing professional health care services, Paragraphs (1 )(a), (b), (c) and (d) above do not apply to "bodily injury" arising out of pro- viding or failing to provide first aid or "Good Samaritan services" by any of your "employ- ees" or "volunteer workers ", other than an employed or volunteer doctor. Any of your "employees" or "volunteer workers" providing or failing to provide first aid or "Good Samari- tan services" during their work hours for you will be deemed to be acting within the scope of their employment by you or performing du- ties related to the conduct of your business. The following is added to Paragraph 5. of SECTION 111 — LIMITS OF INSURANCE: For the purposes of determining the applica- ble Each Occurrence Limit, all related acts or omissions committed by any of your "employ- ees" or "volunteer workers" in providing or failing to provide first aid or "Good Samaritan services" to any one person will be deemed to be one "occurrence ". 4. The following is added to the DEFINITIONS Section: "Good Samaritan services" means any emer- gency medical services for which no compen- sation is demanded or received. G. WHO IS AN INSURED — EMPLOYEES — SU- PERVISORY POSITIONS COMMERCIAL GENERAL LIABILITY your "employees" who hold a supervisory posi- tion. H. WHO IS AN INSURED — NEWLY ACQUIRED OR FORMED ORGANIZATIONS The following replaces Paragraph 4. of SECTION 11 — WHO IS AN INSURED of the Commercial General Liability Coverage Form, and Paragraph 3. of SECTION II — WHO IS AN INSURED of the Global Companion Commercial General Liability Coverage Form, to the extent such coverage forms are part of your policy: Any organization you newly acquire or form, other than a partnership or joint venture, of which you are the sole owner or in which you maintain the majority ownership interest, will qualify as a Named Insured if there is no other insurance which provides similar coverage to that organiza- tion. However: a. Coverage under this provision is afforded only: (1) Until the 180th day after you acquire or form the organization or the end of the policy period, whichever is earlier, if you do not report such organization in writing to us within 180 days after you acquire or form it; or (2) Until the end of the policy period, when that date is later than 180 days after you acquire or form such organization, if you report such organization in writing to us within 180 days after you acquire or form it, and we agree in writing that it will con- tinue to be a Named Insured until the end of the policy period; b. Coverage A does not apply to "bodily injury" or "property damage" that occurred before you acquired or formed the organization; and c. Coverage B does not apply to "personal in- jury" or "advertising injury" arising out of an offense committed before you acquired or formed the organization. I. BLANKET ADDITIONAL INSURED — OWNERS, MANAGERS OR LESSORS OF PREMISES The following is added to SECTION II — WHO IS AN INSURED: The following is added to Paragraph 2.a.(1) of Any person or organization that is a premises SECTION 11— WHO IS AN INSURED: owner, manager or lessor is an insured, but only with respect to liability arising out of the owner - Paragraphs (1)(a), (b) and (c) above do not apply ship, maintenance or use of that part of any prem- to "bodily injury" or "personal injury" to a co- ises leased to you. "employee" in the course of the co- "employee's" The insurance provided to such premises owner, employment by you arising out of work by any of manager or lessor does not apply to: CG D4 17 01 12 © 2012 The Travelers Indemnity Company. All rights reserved. Page 3 of 6 Includes copyrighted material of Insurance Services Office, Inc. with its permission. COMMERCIAL GENERAL LIABILITY a. Any "bodily injury" or "property damage" caused by an "occurrence" that takes place, or "personal injury" or "advertising injury" caused by an offense that is committed, after you cease to be a tenant in that premises; or b. Structural alterations, new construction or demolition operations performed by or on be- half of such premises owner, manager or les- sor. J. BLANKET ADDITIONAL INSURED — LESSORS OF LEASED EQUIPMENT The following is added to SECTION II — WHO IS AN INSURED: Any person or organization that is an equipment lessor is an insured, but only with respect to liabil- ity for "bodily injury", "property damage ", "per- sonal injury" or "advertising injury" caused, in whole or in part, by your acts or omissions in the maintenance, operation or use by you of equip- ment leased to you by such equipment lessor. The insurance provided to such equipment lessor does not apply to any "bodily injury" or "property damage" caused by an "occurrence" that takes place, or "personal injury" or "advertising injury" caused by an offense that is committed, after the equipment lease expires. K. BLANKET ADDITIONAL INSURED — PERSONS OR ORGANIZATIONS FOR YOUR ONGOING OPERATIONS AS REQUIRED BY WRITTEN CONTRACT OR AGREEMENT The following is added to SECTION II — WHO IS AN INSURED: Any person or organization that is not otherwise an insured under this Coverage Part and that you have agreed in a written contract or agreement to include as an additional insured on this Coverage Part is an insured, but only with respect to liability for "bodily injury" or "property damage" that: a. Is caused by an "occurrence" that takes place after you have signed and executed that con- tract or agreement; and b. Is caused, in whole or in part, by your acts or omissions in the performance of your ongoing operations to which that contract or agree- ment applies or the acts or omissions of any person or organization performing such op- erations on your behalf. The limits of insurance provided to such insured will be the limits which you agreed to provide in the written contract or agreement, or the limits shown in the Declarations, whichever are less. L. BLANKET ADDITIONAL INSURED — BROAD FORM VENDORS The following is added to SECTION 11 — WHO IS AN INSURED: Any person or organization that is a vendor and that you have agreed in a written contract or agreement to include as an additional insured on this Coverage Part is an insured, but only with re- spect to liability for "bodily injury" or "property damage" that: a. Is caused by an "occurrence" that takes place after you have signed and executed that con- tract or agreement; and b. Arises out of "your products" which are dis- tributed or sold in the regular course of such vendor's business. The insurance provided to such vendor is subject to the following provisions: a. The limits of insurance provided to such ven- dor will be the limits which you agreed to pro- vide in the written contract or agreement, or the limits shown in the Declarations, which- ever are less. b. The insurance provided to such vendor does not apply to: (1) Any express warranty not authorized by you; (2) Any change in "your products" made by such vendor; (3) Repackaging, unless unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instructions from the manufacturer, and then repackaged in the original container; (4) Any failure to make such inspections, ad- justments, tests or servicing as vendors agree to perform or normally undertake to perform in the regular course of business, in connection with the distribution or sale of "your products "; (5) Demonstration, installation, servicing or repair operations, except such operations performed at such vendor's premises in connection with the sale of "your prod- ucts'; or (6) "Your products" which, after distribution or sale by you, have been labeled or re- labeled or used as a container, part or in- gredient of any other thing or substance by or on behalf of such vendor. Page 4 Of 6 © 2012 The Travelers Indemnity Company. All rights reserved. CG D4 17 01 12 Includes copyrighted material of Insurance Services Office, Inc. with its permission. Coverage under this provision does not apply to: a. Any person or organization from whom you have acquired "your products ", or any ingre- dient, part or container entering into, accom- panying or containing such products; or b. Any vendor for which coverage as an addi- tional insured specifically is scheduled by en- dorsement. M. WHO IS AN INSURED — UNNAMED SUBSIDI- ARIES The following is added to SECTION II — WHO IS AN INSURED: Any of your subsidiaries, other than a partnership or joint venture, that is not shown as a Named In- sured in the Declarations is a Named Insured if: a. You maintain an ownership interest of more than 50% in such subsidiary on the first day of the policy period; and b. Such subsidiary is not an insured under simi- lar other insurance. No such subsidiary is an insured for "bodily injury" or "property damage" that occurred, or "personal injury" or "advertising injury" caused by an of- fense committed: a. Before you maintained an ownership interest of more than 50% in such subsidiary; or b. After the date, if any, during the policy period that you no longer maintain an ownership in- terest of more than 50% in such subsidiary. N. WHO IS AN INSURED — LIABILITY FOR COW DUCT OF UNNAMED PARTNERSHIPS OR JOINT VENTURES The following replaces the last paragraph of SECTION II — WHO IS AN INSURED: No person or organization is an insured with re- spect to the conduct of any current or past part- nership or joint venture that is not shown as a Named Insured in the Declarations. This para- graph does not apply to any such partnership or joint venture that otherwise qualifies as an in- sured under Section II — Who Is An Insured. O. MEDICAL PAYMENTS — INCREASED LIMITS The following replaces Paragraph 7. of SECTION III — LIMITS OF INSURANCE: COMMERCIAL GENERAL LIABILITY (b) The amount shown on the Declarations of this Coverage Part for Medical Expense Limit. P. CONTRACTUAL LIABILITY — RAILROADS 1. The following replaces Paragraph c. of the definition of "insured contract" in the DEFINI- TIONS Section: c. Any easement or license agreement; 2. Paragraph f.(1) of the definition of "insured contract" in the DEFINITIONS Section is de- leted. Q. KNOWLEDGE AND NOTICE OF OCCUR- RENCE OR OFFENSE The following is added to Paragraph 2., Duties In The Event of Occurrence, Offense, Claim or Suit, of SECTION IV — COMMERCIAL GEN- ERAL LIABILITY CONDITIONS: e. The following provisions apply to Paragraph a. above, but only for the purposes of the in- surance provided under this Coverage Part to you or any insured listed in Paragraph 1. or 2. of Section II — Who Is An Insured: (1) Notice to us of such 'occurrence" or of- fense must be given as soon as practica- ble only after the 'occurrence" or offense is known to you (if you are an individual), any of your partners or members who is an individual (if you are a partnership or joint venture), any of your managers who is an individual (if you are a limited liability company), any of your trustees who is an individual (if you are a trust), any of your "executive officers" or directors (if you are an organization other than a partnership, joint venture, limited liability company or trust) or any "employee" authorized by you to give notice of an 'occurrence" or offense. (2) If you are a partnership, joint venture, lim- ited liability company or trust, and none of your partners, joint venture members, managers or trustees are individuals, no- tice to us of such 'occurrence" or offense must be given as soon as practicable only after the 'occurrence" or offense is known by: 7. Subject to 5. above, the Medical Expense (a) Any individual who is: Limit is the most we will pay under Coverage (i) A partner or member of any part- C for all medical expenses because of "bodily nership or joint venture; injury" sustained by any one person, and will be the higher of: (ii) A manager of any limited liability (a) $10,000; or company; CG D417 01 12 © 2012 The Travelers Indemnity Company. All rights reserved. Page 5 of 6 Includes copyrighted material of Insurance Services Office, Inc. with its permission. COMMERCIAL GENERAL LIABILITY (iii) A trustee of any trust; or (iv) An executive officer or director of any other organization; that is your partner, joint venture member, manager or trustee; or (b) Any "employee" authorized by such partnership, joint venture, limited li- ability company, trust or other organi- zation to give notice of an "occur- rence" or offense. (3) Notice to us of such "occurrence" or of- fense will be deemed to be given as soon as practicable if it is given in good faith as soon as practicable to your workers' compensation insurer. This applies only if you subsequently give notice to us of the "occurrence" or offense as soon as prac- ticable after any of the persons described in Paragraphs e. (1) or (2) above discov- ers that the "occurrence" or offense may result in sums to which the insurance provided under this Coverage Part may apply. However, if this policy includes an endorse- ment that provides limited coverage for "bod- ily injury" or "property damage" or pollution costs arising out of a discharge, release or escape of "pollutants" which contains a re- quirement that the discharge, release or es- cape of "pollutants" must be reported to us within a specific number of days after its abrupt commencement, this Paragraph e. does not affect that requirement. R. UNINTENTIONAL OMISSION The following is added to Paragraph 6., Repre- sentations, of SECTION IV — COMMERCIAL GENERAL LIABILITY CONDITIONS: The unintentional omission of, or unintentional er- ror in, any information provided by you which we relied upon in issuing this policy will not prejudice your rights under this insurance. However, this provision does not affect our right to collect addi- tional premium or to exercise our rights of cancel- lation or nonrenewal in accordance with applica- ble insurance laws or regulations. S. BLANKET WAIVER OF SUBROGATION The following is added to Paragraph 8., Transfer Of Rights Of Recovery Against Others To Us, of SECTION IV — COMMERCIAL GENERAL LI- ABILITY CONDITIONS: If the insured has agreed in a contract or agree- ment to waive that insured's right of recovery against any person or organization, we waive our right of recovery against such person or organiza- tion, but only for payments we make because of: a. "Bodily injury" or "property damage" caused by an "occurrence" that takes place; or b. "Personal injury" or "advertising injury" caused by an offense that is committed; subsequent to the execution of the contract or agreement. Page 6 of 6 © 2012 The Travelers Indemnity Company. All rights reserved. CG D4 17 01 12 Includes copyrighted material of Insurance Services Office, Inc. with its permission. COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. OTHER INSURANCE - ADDITIONAL PRIMARY AND NON-CONTRIBUTORY RESPECT TO CERTAIN OTHER INSURANCE This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART The following is added to Paragraph 4. a., Primary Insurance, of SECTION IV — COMMERCIAL GEN- ERAL LIABILITY CONDITIONS: However, if you specifically agree in a written contract or agreement that the insurance afforded to an addi- tional insured under this Coverage Part must apply on a primary basis, or a primary and non - contributory basis, this insurance is primary to other insurance that is available to such additional insured which covers such additional insured as a named insured, and we will not share with that other insurance, provided that: (1) The "bodily injury" or "property damage" for which coverage is sought is caused by an 'occurrence" that takes place; and (2) The "personal injury" or "advertising injury" for which coverage is sought arises out of an offense that is committed; subsequent to the signing and execution of that con- tract or agreement by you. CG D4 25 07 08 C 2008 The Travelers Companies, Inc. Page 1 of 1 COMMERCIAL AUTO THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BUSINESS AUTO EXTENSION ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modi- fied by the endorsement. GENERAL DESCRIPTION OF COVERAGE — This endorsement broadens coverage. However, coverage for any injury, damage or medical expenses described in any of the provisions of this endorsement may be excluded or limited by another endorsement to the Coverage Part, and these coverage broadening provisions do not apply to the extent that coverage is excluded or limited by such an endorsement. The following listing is a general cover- age description only. Limitations and exclusions may apply to these coverages_ Read all the provisions of this en- dorsement and the rest of your policy carefully to determine rights, duties, and what is and is not covered. A. BROAD FORM NAMED INSURED B. BLANKET ADDITIONAL INSURED C. EMPLOYEE HIRED AUTO D. EMPLOYEES AS INSURED E. SUPPLEMENTARY PAYMENTS — INCREASED LIMITS F. HIRED AUTO — LIMITED WORLDWIDE COVERAGE — INDEMNITY BASIS G. WAIVER OF DEDUCTIBLE — GLASS PROVISIONS A. BROAD FORM NAMED INSURED The following is added to Paragraph A.1., Who Is An Insured, of SECTION II — LIABILITY COV- ERAGE: Any organization you newly acquire or form dur- ing the policy period over which you maintain 50% or more ownership interest and that is not separately insured for Business Auto Coverage. Coverage under this provision is afforded only un- til the 180th day after you acquire or form the or- ganization or the end of the policy period, which- ever is earlier. B. BLANKET ADDITIONAL INSURED H. HIRED AUTO PHYSICAL DAMAGE — LOSS OF USE — INCREASED LIMIT I. PHYSICAL DAMAGE — TRANSPORTATION EXPENSES — INCREASED LIMIT J. PERSONAL EFFECTS K. AIRBAGS L. NOTICE AND KNOWLEDGE OF ACCIDENT OR LOSS M. BLANKET WAIVER OF SUBROGATION N. UNINTENTIONAL ERRORS OR OMISSIONS executed by you before the "bodily injury" or "property damage" occurs and that is in effect during the policy period, to be named as an addi- tional insured is an "insured" for Liability Cover- age, but only for damages to which this insurance applies and only to the extent that person or or- ganization qualifies as an "insured" under the Who Is An Insured provision contained in Section II. C. EMPLOYEE HIRED AUTO 1. The following is added to Paragraph A.1., Who Is An Insured, of SECTION II — LI- ABILITY COVERAGE: The following is added to Paragraph c. in A.1., An "employee" of yours is an "insured" while Who Is An Insured, of SECTION II — LIABILITY operating an "auto" hired or rented under a COVERAGE: contract or agreement in that "employee's" name, with your permission, while performing Any person or organization who is required under duties related to the conduct of your busi- a written contract or agreement between you and ness. that person or organization, that is signed and CA T3 53 03 10 © 2010 The Travelers Indemnity Company. Page 1 of 4 Includes copyrighted material of Insurance Services Office, Inc. with its permission. ry- m o� o� o= a� m a. a 002822 COMMERCIAL AUTO 2. The following replaces Paragraph b. in B.5., Other Insurance, of SECTION IV — BUSI- NESS AUTO CONDITIONS: b. For Hired Auto Physical Damage Cover- age, the following are deemed to be cov- ered "autos" you own: (1) Any covered "auto" you lease, hire, rent or borrow; and (2) Any covered "auto" hired or rented by your "employee" under a contract in that individual "employee's" name, with your permission, while perform- ing duties related to the conduct of your business. However, any "auto" that is leased, hired, rented or borrowed with a driver is not a covered "auto ". D. EMPLOYEES AS INSURED The following is added to Paragraph A.1., Who Is An Insured, of SECTION II — LIABILITY COV- ERAGE: Any "employee" of yours is an "insured" while us- ing a covered "auto" you don't own, hire or borrow in your business or your personal affairs. E. SUPPLEMENTARY PAYMENTS — INCREASED LIMITS 1. The following replaces Paragraph A.2.a.(2), of SECTION II — LIABILITY COVERAGE: (2) Up to $3,000 for cost of bail bonds (in- cluding bonds for related traffic law viola- tions) required because of an "accident" we cover. We do not have to furnish these bonds. 2. The following replaces Paragraph A.2.a.(4), of SECTION 11— LIABILITY COVERAGE: (4) All reasonable expenses incurred by the "insured" at our request, including actual loss of earnings up to $500 a day be- cause of time off from work. F. HIRED AUTO — LIMITED WORLDWIDE COV- ERAGE — INDEMNITY BASIS The following replaces Subparagraph (5) in Para- graph 0.7., Policy Period, Coverage Territory, of SECTION IV — BUSINESS AUTO CONDI- TIONS: (5) Anywhere in the world, except any country or jurisdiction while any trade sanction, em- bargo, or similar regulation imposed by the United States of America applies to and pro- hibits the transaction of business with or within such country or jurisdiction, for Liability Coverage for any covered "auto" that you lease, hire, rent or borrow without a driver for a period of 30 days or less and that is not an "auto" you lease, hire, rent or borrow from any of your "employees ", partners (if you are a partnership), members (if you are a limited liability company) or members of their house- holds. (a) With respect to any claim made or "suit" brought outside the United States of America, the territories and possessions of the United States of America, Puerto Rico and Canada: (i) You must arrange to defend the "in- sured" against, and investigate orset- tie any such claim or "suit" and keep us advised of all proceedings and ac- tions. (ii) Neither you nor any other involved "insured" will make any settlement without our consent. (iii) We may, at our discretion, participate in defending the "insured" against, or in the settlement of, any claim or "suit ". (iv) We will reimburse the "insured" for sums that the "insured" legally must pay as damages because of "bodily injury" or "property damage" to which this insurance applies, that the "in- sured" pays with our consent, but only up to the limit described in Para- graph C., Limit Of Insurance, of SEC- TION it — LIABILITY COVERAGE. (v) We will reimburse the "insured" for the reasonable expenses incurred with our consent for your investiga- tion of such claims and your defense of the "insured" against any such "suit ", but only up to and included within the limit described in Para- graph C., Limit Of Insurance, of SECTION II — LIABILITY COVER- AGE, and not in addition to such limit. Our duty to make such payments ends when we have used up the ap- plicable limit of insurance in pay- ments for damages, settlements or defense expenses_ (b) This insurance is excess over any valid and collectible other insurance available Page 2 of 4 02010 The Travelers Indemnity Company, CA T3 53 03 10 Includes copyrighted material of Insurance Services Office, Inc. with its permission. to the "insured" whether primary, excess contingent or on any other basis. (c) This insurance is not a substitute for re- quired or compulsory insurance in any country outside the United States, its ter- ritories and possessions, Puerto Rico and Canada. You agree to maintain all required or compulsory insurance in any such coun- try up to the minimum limits required by local law. Your failure to comply with compulsory insurance requirements will not invalidate the coverage afforded by this policy, but we will only be liable to the same extent we would have been liable had you complied with the compulsory in- surance requirements. (d) It is understood that we are not an admit- ted or authorized insurer outside the United States of America, its territories and possessions, Puerto Rico and Can- ada. We assume no responsibility for the furnishing of certificates of insurance, or for compliance in any way with the laws of other countries relating to insurance. G. WAIVER OF DEDUCTIBLE — GLASS The following is added to Paragraph D., Deducti- ble, of SECTION III — PHYSICAL DAMAGE COVERAGE: No deductible for a covered "auto" will apply to glass damage if the glass is repaired rather than replaced. H. HIRED AUTO PHYSICAL DAMAGE — LOSS OF USE — INCREASED LIMIT The following replaces the last sentence of Para- graph AA.b., Loss Of Use Expenses, of SEC- TION III — PHYSICAL DAMAGE COVERAGE: However, the most we will pay for any expenses for loss of use is $65 per day, to a maximum of $750 for any one "accident ". I. PHYSICAL DAMAGE — TRANSPORTATION EXPENSES —INCREASED LIMIT The following replaces the first sentence in Para- graph A.4.a., Transportation Expenses, of SECTION III — PHYSICAL DAMAGE COVER- AGE: We will pay up to $50 per day to a maximum of $1,500 for temporary transportation expense in- curred by you because of the total theft of a cov- ered "auto" of the private passenger type. COMMERCIAL AUTO J. PERSONAL EFFECTS The following is added to Paragraph AA., Cover- age Extensions, of SECTION III — PHYSICAL DAMAGE COVERAGE: Personal Effects We will pay up to $400 for "loss" to wearing ap- parel and other personal effects which are: (1) Owned by an "insured "; and (2) In or on your covered "auto ". This coverage applies only in the event of a total theft of your covered "auto ". No deductibles apply to this Personal Effects coverage. K. AIRBAGS The following is added to Paragraph B.3., Exclu- sions, of SECTION III — PHYSICAL DAMAGE COVERAGE: Exclusion 3.a. does not apply to "loss" to one or more airbags in a covered "auto" you own that in- flate due to a cause other than a cause of "loss" set forth in Paragraphs A.1.b. and A.1.c., but only: a. If that "auto" is a covered "auto" for Compre- hensive Coverage under this policy; b. The airbags are not covered under any war- ranty; and c. The airbags were not intentionally inflated. We will pay up to a maximum of $1,000 for any one "loss ". L. NOTICE AND KNOWLEDGE OF ACCIDENT OR LOSS The following is added to Paragraph A.2.a., of SECTION IV — BUSINESS AUTO CONDITIONS: Your duty to give us or our authorized representa- tive prompt notice of the "accident" or "loss" ap- plies only when the "accident" or "loss" is known to: (a) You (if you are an individual); (b) A partner (if you are a partnership); (c) A member (if you are a limited liability com- pany); (d) An executive officer, director or insurance manager (if you are a corporation or other or- ganization); or (e) Any "employee" authorized by you to give no- tice of the "accident" or "loss ". CA T3 53 03 10 m 2010 The Travelers Indemnity Company. Page 3 of 4 Includes copyrighted material of Insurance Services Office, Inc. with its permission. COMMERCIAL. AUTO M. BLANKET WAIVER OF SUBROGATION The following replaces Paragraph A.S., Transfer Of Rights Of Recovery Against Others To Us, of SECTION IV — BUSINESS AUTO CONDI- TIONS: S. Transfer Of Rights Of Recovery Against Others To Us We waive any right of recovery we may have against any person or organization to the ex- tent required of you by a written contract signed and executed prior to any "accident" or "loss ", provided that the "accident" or "loss" arises out of operations contemplated by �i a� P�- I\ .rte 0� Nr� w O� s s� G� Q� •r Page 4of4 002623 such contract. The waiver applies only to the person or organization designated in such contract. N. UNINTENTIONAL ERRORS OR OMISSIONS The following is added to Paragraph B.2., Con- cealment, Misrepresentation, Or Fraud, of SECTION IV — BUSINESS AUTO CONDITIONS: The unintentional omission of, or unintentional error in, any information given by you shall not prejudice your rights under this insurance. How- ever this provision does not affect our right to col- lect additional premium or exercise our right of cancellation or non - renewal. ® 2010 The Travelers Indemnity Company. CA T3 53 03 10 Includes copyrighted material of Insurance Services Office, Inc. with its permission. POLICY NUMBER: 81050805601 COMMERCIAL AUTO ISSUE DATE: 06 -23 -15 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - PRIMARY AND NON - CONTRIBUTORY WITH OTHER INSURANCE This endorsement modifies insurance provided by the following: BUSINESS AUTO COVERAGE FORM With respect to coverage provided by this endorsement, the provisions of the Coverage Form apply unless modi- fied by this endorsement. SCHEDULED PERSONS OR ORGANIZATIONS City of Yelm PROVISIONS A. The following is added to Paragraph c. in A. 1., Who Is An Insured, of SECTION 11- LIABILITY COVERAGE: Any person or organization shown above who is required under a written contract or agreement between you and that person or organization, that is signed and executed by you before the "bodily injury" or "property damage" occurs and that is in effect during the policy period, to be named as an additional insured is an "insured" for Liability Cov- erage, but only for damages to which this insur- ance applies and only to the extent that person or organization qualifies as an "insured" under the Who Is An Insured provision contained in Section 11. B. The following is added to Paragraph 5., Other Insurance, in B. General Conditions of SEC- TION IV — BUSINESS AUTO CONDITIONS: Regardless of the provisions of paragraph a. and paragraph d. of this part 5. Other Insurance, if the scheduled person or organization shown above has other insurance under which it is the first named insured and that insurance also ap- plies, then this insurance is primary to and non- contributory with that other insurance when the written contract or agreement between you and that scheduled person or organization, that is signed and executed by you before the "bodily in- jury" or "property damage" occurs and that is in effect during the policy period, requires this insur- ance to be primary and non - contributory. CA T4 42 04 09 © 2008 The Travelers Companies, Inc. Page 1 of 1 POLICY NUMBER: H- 630- 5C934379- TIL -14 ISSUE DATE: 01 -19 -15 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED ENTITY - EARLIER NOTICE OF CANCELLATIONMONRENEWAL PROVIDED BY US This endorsement modifies insurance provided under the following: ALL COVERAGE PARTS INCLUDED IN THIS POLICY SCHEDULE CANCELLATION: Number of Days Notice: 90 WHEN WE DO NOT RENEW (Nonrenewal): Number of Days Notice: 90 NAME: ANY PERSON OR ORGANIZATION TO WHOM (CONTINUED ON IL T8 04) ADDRESS: CONTINUED ON IL T8 04 A. KIRKLAND NA 98033 For any statutorily permitted reason other than nonpayment of premium, the number of days re- quired for notice of cancellation, as provided in the CONDITIONS Section of this insurance, or as amended by any applicable state cancellation endorsement applicable to this insurance, is in- creased to the number of days shown in the SCHEDULE above. For any statutorily permitted reason other than nonpayment of premium, the number of days re- quired for notice of When We Do Not Renew (Nonrenewal), as provided in the CONDITIONS Section of this insurance, or as amended by any applicable state When We Do Not Renew (Nonrenewal) endorsement applicable to this in- surance, is increased to the number of days shown in the SCHEDULE above. C. We will mail notice of cancellation or nonrenewal or material limitation of those coverage forms to the person or organization shown in the schedule above. We will mail the notice at least the Num- ber of Days indicated above before the effective date to our action. IL T3 54 03 98 Copyright, The Travelers Indemnity Company, 1998 Page 1 of 1 POLICY NUMBER: H- 630- 5C934379- TIL -14 GENERAL PURPOSE ENDORSEMENT THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. DESIGNATED ENTITY - NOTICE OF CANCELLATION /NONRENEWAL PROVIDED BY US (IL T3 54 03 98) THIS ENDORSEMENT MODIFIES INSURANCE PROVIDED UNDER THE FOLLOWING: ALL COVERAGE PARTS INCLUDED IN THIS POLICY 4;c 10 it CANCELLATION: NUMBER OF DAYS NOTICE OF CANCELLATION: 90 NONRENEWAL: NUMBER OF DAYS NOTICE OF NONRENEWAL: 90 ANY PERSON OR ORGANIZATION TO WHOM YOU HAVE AGREED IN A WRITTEN CONTRACT THAT NOTICE OF CANCELLATION OF THIS POLICY WILL BE GIVEN, BUT ONLY IF: 1. YOU SEND US A WRITTEN REQUEST TO PROVIDE SUCH NOTICE, INCLUDING THE NAME AND ADDRESS OF SUCH PERSON OR ORGANIZATION, AFTER THE FIRST NAMED INSURED RECEIVES NOTICE FROM US OF THE CANCELLATION OF THIS POLICY; AND 2. WE RECEIVE SUCH WRITTEN REQUEST AT LEAST 14 DAYS BEFORE THE BEGINNING OF THE APPLICABLE NUMBER OF DAYS SHOWN IN THIS SCHEDULE. ADDRESS: THE ADDRESS FOR THAT PERSON OR ORGANIZATION INCLUDED IN SUCH WRITTEN REQUEST FROM YOU TO US. IL TS 04 Page 1 EXHIBIT "E" (Financial Security) 1. Performance Bond. 1.1 Franchisee shall provide to the City a faithful performance and payment bond in the initial amount of $50,000 to ensure the full and faithful performance of all of its responsibilities under this Franchise and applicable Laws, including, by way of example and not limitation, its obligations to relocate and remove its Facilities, to restore the Public Rights -of -Way and other property when damaged or disturbed, to reimburse the City for its Direct Costs and keeping Franchisee's insurance in full force. 1.2 The performance bond shall be in a form with terms and conditions reasonably acceptable to the City and reviewed and approved by the City Attorney. 1.3 The performance bond shall be with a surety with a rating no less than "A- VII" in the latest edition of "Bests Rating Guide," published by A.M. Best Company. 1.4 The Franchisee shall pay all premiums or costs associated with maintaining the performance and payment bond, and shall keep the same in full force and effect at all times. If Franchisee fails to provide or maintain the bond, then the City, in its sole discretion, may require Franchisee to substitute an equivalent cash deposit as described below in lieu of the bond. 1.5 Franchisee's maintenance of the bond(s) shall not be construed to excuse unfaithful performance by Franchisee, or limit the liability of Franchisee to the amount of the bond(s), or otherwise limit the City's recourse to any other remedy available at law or in equity. 1.6 The amount of the bond may, in the reasonable discretion of the City, be adjusted by the City to take into account (1) cumulative inflation, (2) increased risk to the City, (3) the experiences of the Parties regarding Franchisee compliance with its obligations under the Franchise, and (4) issuance of Site Specific Permits for installation of new Facilities. Prior to adjusting the amount of the bond, the City shall provide reasonable notice to the Franchisee and an opportunity to provide comments, and the City shall review and consider such comments that are timely made. 2. Cash Deposit/Irrevocable Letter of Credit in Lieu of Bond. Franchisee may, at its election substitute an equivalent cash deposit with an escrow agent approved by the City or an irrevocable letter of credit in form and content reasonably approved by the City Attorney, instead of a performance and payment bond. This cash deposit or irrevocable letter of credit shall ensure the full and faithful performance of all of Franchisee's responsibilities hereto under this Franchise and all 48 applicable Laws. This includes but, is not limited to, its obligations to relocate or remove its facilities, restore the Public Rights -of -Way and other property to their original condition, reimbursing the City for its costs, and keeping Franchisee's insurance in full force. In the event that the Franchisee fails to cure a Default as provided in Section 6 of the Franchise, the City may, at its option, draw upon the cash deposit or letter of credit up to the amount of the City's costs incurred to cure Franchisee's default. Upon the City's cure of Franchisee's default, the City shall notify Franchisee in writing of such cure. In the event that the City draws upon the cash deposit or letter of credit, Franchisee shall thereupon replenish the cash deposit or letter of credit to the full amount as specified herein or provide a replacement performance and payment bond. . . FRANCHISE BOND Bond No. 52BSBGZ0670 Premium: $500.00 KNOW ALL MEN BY THESE PRESENTS, That we Astound Broadband, LLC , as Principal, and Hartford Fire Insurance Company , a corporation of the State of Connecticut, as Surety, are held and firmly bound unto City of Yelm, 105 Yelm Avenue West, Yelm, WA 98597 as Obligee, in the sum of Fifty Thousand and 00 /100th's- - - - - -- Dollars, ( $50,000.00— ) lawful money of the United States of America, to be paid unto said Obligee, its successors and assigns, jointly and severally, firmly, by these presents. WHEREAS, The above bound Principal has entered into a written agreement, dated with the Obligee which grants a Franchise to the Principal for Telecommunications Franchise Agreement within the City of Yelm right of way for the purpose of installing, constructing, operating, maintaining, repairing, replacing, relocating and removing fiber optic telecommunications facilities . Principal has agreed to faithfully perform and observe and fulfill all terms and conditions of said Franchise agreement referred to above and said agreement is hereby made a part of this bond with like force and effect as if herein set forth in length. NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION IS SUCH, that if the above named Principal, its successors or assigns, does and shall well and truly observe, perform and fulfill its obligation as set forth in the above mentioned Franchise agreement, for which a bond must be posted, then the above obligation to be void; otherwise to remain in full force and effect. The bond is subject, however, to the following express conditions: FIRST: That in the event of a default on the part of the Principal, its successors or assigns, a written statement of such default with full details thereof shall be given to Surety promptly, and in any event, within thirty (30) days after the Obligee shall learn of such default, such notice to be delivered to Surety at its Home Office in Hartford, Connecticut by registered mail. SECOND: That no claim, suit or action under this bond by reason of any such default shall be brought against Surety unless asserted or commenced within (12) twelve months after the effective date of any termination or cancellation of this bond. THIRD: That this bond may be terminated of cancelled by Surety by Thirty ( 30 days prior notice in writing to Principal and to Obligee, such notice to be given by certified mail. Such termination or cancellation shall not affect any liability incurred or accrued under this bond prior to the effective date of such termination or cancellation. The liability of the Surety shall be limited to the amount set forth above and is not cumulative. FOURTH: That no right of action shall accrue under this bond to or for the use of any person other than the Obligee, and its successors and assigns. IN WITNESS WHEREOF, The above bound Principal and the above bound Surety have hereunto set their hands and seals on the 23rd day of June 1 2015 By: By: S -2403 (8 -99) Astound Broadband, LLC Hartford Fire Insurrapnce Cyo�mpajn{y� Roxana Palacios Attorney -in -fact Direct Inquiries /Claims to: POWER OF ATTORNEY THE HARTFORD Bond T-4 One Hartford Plaza Hartford, Connecticut 06155 call: 888 - 266 -3488 or fax: 860 - 757 -5835) KNOW ALL PERSONS BY THESE PRESENTS THAT: Agency Code: 52- 810246 © Hartford Fire Insurance Company, a corporation duly organized under the laws of the State of Connecticut 0 Hartford Casualty Insurance Company, a corporation duly organized under the laws of the State of Indiana © Hartford Accident and Indemnity Company, a corporation duly organized under the laws of the State of Connecticut OHartford underwriters Insurance Company, a corporation duly organized under the laws of the State of Connecticut Twin City Fire Insurance Company, a corporation duly organized under the laws of the State of Indiana Hartford Insurance Company of Illinois, a corporation duly organized under the laws of the State of Illinois Hartford insurance Company of the Midwest, a corporation duly organized under the laws of the State of Indiana Hartford Insurance Company of the Southeast, a corporation duly organized under the laws of the State of Florida having their home office in Hartford, Connecticut (hereinafter collectively referred to as the "Companies') do hereby make, constitute and appoint, uptotheamountof Unlimited Nancy N. Hill, Heather Allen, Roxana Palacios, Steven W. Palmer, Katie Snider, Angela D. Tonnon, Holly E. Ulfers of SEATTLE, Washington their true and lawful Attorney(s) -in -Fact, each in their separate capacity if more than one is named above, to sign its name as surety(ies) only as delineated above by ®, and to execute, seal and acknowledge any and all bonds, undertakings, contracts and other written instruments in the nature thereof, on behalf of the Companies in their business of guaranteeing the fidelity of persons, guaranteeing the performance of contracts and executing or guaranteeing bonds and undertakings required or permitted in any actions or proceedings allowed by law. In Witness Whereof, and as authorized by a Resolution of the Board of Directors of the Companies on August 1, 2009, the Companies have caused these presents to be signed by its Vice President and its corporate seals to be hereto affixed, duly attested by its Assistant Secretary. Further, pursuant to Resolution of the Board of Directors of the Companies, the Companies hereby unambiguously affirm that they are and will be bound by any mechanically applied signatures applied to this Power of Attorney. s +•.r ...:'+ .. [ r$e� i ' • 7 14 a s • a � +� _. a:tyr�c t�cr� +v �/arMli► ixa� 1p0 4° 4Y 97�"�'' �`S I44• • i�r ,+Yp ._..A4�/ • � whc HVYS• 'q►1Y0. '*.•.. Wesley W. Cowling, Assistant Secretary M. Ross Fisher, Vice President STATE OF CONNECTICUT SS. Hartford COUNTY OF HARTFORD On this 12th day of July, 2012, before me personally came M. Ross Fisher, to me known, who being by me duly sworn, did depose and say: that he resides in the County of Hartford, State of Connecticut; that he is the Vice President of the Companies, the corporations described in and which executed the above instrument; that he knows the seals of the said corporations; that the seals affixed to the said instrument are such corporate seals; that they were so affixed by authority of the Boards of Directors of said corporations and that he signed his name thereto by like authority. rr _ haddeen T. Maynard CERTIFICATE Notary Public My Corwnission Expires July 31, 2016 1, the undersigned, Vice President of the Companies, DO HEREBY CERTIFY that the above and foregoing is a true and correct copy of the Power of Attorney executed by said Companies, which is still in full force effective as of June 23rd 2015 Signed and sealed at the City of Hartford. �Y I•� tl 9x0. ^ifps.: yrr ��try- ��.���,-,^•�.."' py � 6 { + t e.Sf�•iy '�t� gw w+worrv.rrsi. � b40i" 8 _� .f�• 14 � ��'f"'�:% ; • e461MM x'}91974 .t �1074 r� 3 I T! Gary W. Stumper, Vice President POA 2012 EXHIBIT "F" (Contractor /Subcontractor Insurance Requirements) 1. General Requirement. Prior to commencing and during the period of Work performed within the Franchise Area, Franchisee contractors and subcontractors (hereafter the "Contractors ") must have in place adequate insurance to protect the City against claims for death or injuries to Persons or damages to property or equipment which in any way relate to, arise from or are connected with this such Work. 2. Minimum Insurance Limits. The Contractors shall maintain the following minimum insurance coverages and limits: 2.1 Commercial General Liability: insurance to cover liability, bodily injury, and property damage. The Commercial General Liability insurance shall be written on an occurrence basis, , and shall provide coverage for any and all costs, including reasonable defense costs, and losses and damages resulting from personal injury, bodily injury and death, property damage, products liability and completed operations. Coverage must be written with the following limits of liability: $1,000,000 per occurrence, $2,000,000 general aggregate and $1,000,000 products /completed operations aggregate. 2.2 Automobile Liability: shall include owned, hired, and non -owned vehicles on an occurrence basis with coverage of at least $1,000,000 per occurrence. 2.3 Workers Compensation Insurance: shall be maintained during the period of such Work to comply with statutory limits for all employees. 3. Endorsements. Commercial General Liability insurance policies are to contain, or be endorsed to contain, the following: 3.1 The Contractor's insurance coverage shall be primary insurance with respect to the City. Any insurance, self - insurance, or insurance pool coverage maintained by the City shall be in excess of the Contractor's insurance and shall not contribute to it. 3.2 Contractor, through policy endorsement, shall waive its rights of subrogation against the City for all claims and suits. 3.3 That the coverage shall apply separately to each insured against whom a claim is made or suit is brought, except with respect to the limits of the insurer's liability. 50 3.4 The Contractor's insurance shall name the City as an additional insured, to protect or insure as an additional insured, from and against Liabilities arising out of Work performed in the Public Rights -of -Way under a grant of authority of the City. 3.5 The Contractor's insurance shall include a requirement that the "railroad exclusion" be deleted or may include, in the alternative, ISO endorsement CG 24 17 or equivalent. 3.6 The insurance coverages and limits provided herein shall not be canceled without thirty (30) days written notice first being given to the City, with the exception that ten (10) days' notice shall be required for cancellation resulting from non- payment of premium. If the insurance is canceled or reduced in coverage, Franchisee shall provide a replacement policy. 4. Acceptability of Insurers. Each insurance policy required herein shall be issued by financially sound insurers who may lawfully do business in the State of Washington with a financial strength rating at all times during coverage of no less than an "A - "and in a financial size category of no less than "VII ", in the latest edition of "Best's Rating Guide" published by A.M. Best Company. In the event that at any time during coverage, the insurer does not meet the foregoing standards, Contractor shall give prompt notice to the City and shall seek coverage from an insurer that meets the foregoing standards. The City reserves the right to change the rating or the rating guide depending upon the changed risks or availability of other suitable and reliable rating guides. 5. Verification of Coverage. The Franchisee shall furnish the City with Contractors' signed certificates of insurance and a copy of the amendatory endorsements, including, but not necessarily limited to, the additional insured endorsement, evidencing the Automobile Liability, and Commercial General Liability policies of the Contractors. The certificate for each insurance policy is to be signed by a Person authorized by that insurer to bind coverage on its behalf. The certificate for each insurance policy must be on standard forms or on such forms as are consistent with standard industry practices. 6. No Limitation. Contractor's maintenance of insurance policies required herein shall not be construed to excuse unfaithful performance by Franchisee or limit the liability of Franchisee or contractor to the coverage provided in the insurance policies, or otherwise limit the City's recourse to any other remedy available at law or in equity. 51 and scope of the work required to cure the Default, whether the Default has created or will allow to continue an unsafe condition, the extent to which delay in implementing a cure will result in adverse financial consequences or other harm to the Party giving notice, and whether delay in implementing a cure will result in a violation of Law or Default of contract. 6.3.3 Failure to Cure. If the Noticed Party fails to promptly commence and diligently pursue cure of a Default to completion to the reasonable satisfaction of the Party giving notice and in accordance with the agreed upon time line or the time provided for in the Notice of Default, then the parties may pursue any remedies available to them. 6.4 Termination/Revocation. In addition to the remedies available to the City as provided at Law, in equity or in this Franchise, upon a Default without cure, the City may revoke this Franchise and rescind all rights and privileges associated with this Franchise in accordance with the following: 6.4.1 Notice. Prior to termination of the Franchise, the City shall give written notice to the Franchisee of its intent to revoke the Franchise. The notice shall set forth the exact nature of the Default. If Franchisee objects to such termination, Franchisee shall object in writing and state its reasons for such objection and provide any explanation. 6.4.2 Hearing. The City may then seek a termination/revocation of the Franchise in accordance with this Subsection. 6.4.2.1 The City Council, or its designee, shall conduct a public hearing to determine if termination/revocation of the Franchise is warranted. 6.4.2.2 At least fourteen (14) days prior to the public hearing, the City shall issue a public hearing notice that shall establish the issue(s) to be addressed in the public hearing; provide the time, date and location of the hearing; provide that the Hearing Body /Officer shall hear any Persons interested therein; and provide that the Franchisee shall be afforded fair opportunity for full participation, including the right to introduce evidence, to require the production of evidence, to be represented by counsel and to question witnesses. The public hearing notice shall be provided to Franchisee in accordance with Section 8.13 hereof and public notice of the hearing shall be provided in the same manner as notice is provided for regular meetings of the City Council. 6.4.2.3 Within sixty (60) days after the close of the hearing, the City Council shall issue a written decision regarding the termination/revocation of the Franchise. If the City Council has designated another hearing body /officer to conduct the public hearing, such hearing body /officer shall make a recommendation to the City Council within thirty (30) days following the close of the public hearing, and the City Council shall make a decision upon the recommendation of the Hearing Body /Officer after a closed record hearing and within sixty (60) days following receipt of the recommendation of the Hearing Body /Officer. The decision of the City Council shall be final. The Parties recognize that a decision to terminate /revoke a Franchise is not a land use decision that is subject to appeal 19 pursuant to the Land Use Petition Act (Chapter 36.70C RCW). Failure to render a decision within the required time period shall not be a basis for invalidation of the decision that is made. Any appeal to which the Franchisee may be entitled (e.g., constitutional or statutory writ of review) shall be filed within 30 calendar days of issuance of the final decision of the City Council. 6.4.3 Decision to Terminate. The City Council may consider one or more of the following when determining whether or not to terminate /revoke the Franchise based upon the material Default: 6.4.3.1 The history of repeated non - compliance by Franchisee with material terms and conditions of this Franchise; Franchise; 6.4.3.2 Whether other remedies will achieve compliance with this 6.4.3.3 Whether the Franchisee has acted in good faith; 6.4.3.4 Whether the acts or omissions that gave rise to the Default were willful or indifferent to the requirements that gave rise to the Default; 6.4.3.5 Whether the type of services provided by the Franchisee will be available to the general public through other providers; 6.4.3.6 Whether services provided by the Franchisee are essential public services or regulated utilities; 6.4.3.7 The impact or potential impact of the Default upon the public health, safety and welfare; 6.4.3.8 The economic risk the City is exposed to as a result of the Default; 6.4.3.9 Whether consent, permission, adjudication, an order or other authorization of a governmental agency or body, is required as a condition precedent to the City ordering the Franchisee to abandon or remove Facilities from the Public Rights -of -Way or to cease operations (temporarily or otherwise) of the Facilities. 6.4.3.10 Such other facts and circumstances that are relevant to the controversy that gave rise to the Default and/or to whether or not the continued presence and operation of the Franchisee Facilities with the Franchise Area will be harmful to the public health, safety or welfare. 6.5 Receivership. At the option of the City, subject to applicable law and lawful orders of courts of competent jurisdiction, this Franchise may be revoked after the 20 appointment of a receiver or trustee to take over and conduct the business of Franchisee whether in a receivership, reorganization, bankruptcy or other action or proceeding, unless: 6.5.1 The receivership or trusteeship is timely vacated; or 6.5.2 The receiver or trustee has timely and fully complied with all the terms and provisions of this Franchise, and has remedied all defaults under the Franchise. Additionally, the receiver or trustee shall have executed an agreement duly approved by the court having jurisdiction, by which the receiver or trustee assumes and agrees to be bound by each and every term, provision and limitation of this Franchise. ARTICLE 7. CONDITIONS UPON USE OF PUBLIC RIGHTS -OF -WAY. 7.1 Regulatory Permit. If Franchisee has submitted an application for a Regulatory Permit to perform work in the Public Rights -of -Way, the City shall, to the extent practicable, consider such application contemporaneously with the design review requirements hereunder. 7.2 Submission/Approval of Design Documents. 7.2.1 Submission. At the time of application for a Regulatory Permit, or in the event that Franchisee seeks to alter or change the location of Facilities in a Franchise Area, Franchisee shall submit its Design Documents to the City for review and approval in accordance with the City's plan review process. 7.2.2 Use of Public Rights -of -Way. Within parameters reasonably related to the City's role in protecting the public health, safety and welfare and except as may be otherwise preempted by Law, the City may require that Facilities be installed at a particular time, at a specific place or in a particular manner as a condition of access to the proposed Franchise Area and may deny access if Franchisee is not willing to comply with such requirements; and, may require removal of any Facility that is not installed in compliance with the Standards (defined in Section 7.3 below) or which is installed without prior City approval of the time, place, or manner of installation. 7.2.3 Approval of Plans. Work may not commence without prior approval by the City of the Design Documents submitted by the Franchisee, which approval will not be unreasonably withheld, conditioned or delayed. The City may review and approve the Franchisee's Design Documents with respect to: traffic; 7.2.3.1 Location /Alignment/Depth; 7.2.3.2 The manner in which the Facility is to be installed; 7.2.3.3 Measures to be taken to preserve safe and free flow of 21 7.2.3.4 Structural integrity, functionality, appearance, compatibility with and impact upon roadways, bridges, sidewalks, planting strips, signals, traffic control signs, intersections, or other facilities and structures in the Public Rights - of -Way; 7.2.3.5 Ease of future road maintenance, and appearance of the roadway; 7.2.3.6 Compliance with applicable Standards (as defined below) and codes; and 7.2.3.7 Compliance and compatibility with the City's comprehensive plan, six -year transportation plan, capital improvements plan, and regional transportation improvement plans. 7.3 Compliance with Standards /Codes. Except as may be'preempted by federal or state Laws, all Facilities shall conform to and all Work shall be performed in compliance with the following "Standards" as now or may be hereafter revised, updated, amended or re- adopted: 7.3.1 Standards for Public Works Engineering and Construction. The most current edition of the City Standards for Public Works Engineering and Construction as adopted from time to time by the City. This document includes the City Design Standards Manual, Design Standards Detail, and appendixes, and the most recently City adopted edition of the Standard Specifications for Road, Bridge and Municipal Construction as prepared by the Washington State Department of Transportation ( "WSDOT ") and the Washington State Chapter of American Public Works Association ( "APWA" ); 7.3.2 MUTCD. The Washington State Department of Transportation Manual of Uniform Traffic Control Devices ( "MUTCD "); 7.3.3 Special Conditions. Requirements and standards set forth as additional conditions in a Regulatory Permit. 7.3.4 City Regulations. City ordinances, codes, and regulations establishing standards for placement of Facilities in Public Rights -of -Way, including by way of example and not limitation, the specific location of Facilities in the Public Rights -of -Way. 7.3.5 Other Regulatory Requirements. Applicable requirements of federal or state governmental authorities that have regulatory authority over the placement, construction, or design of Franchisee Facilities; 7.3.6 Industry Standards. All Facilities shall be durable and Constructed in accordance with good ^ engineering practices and standards promulgated by the 22 government and industry for placement, Construction, design, type of materials and operation of Franchisee Facilities; 7.3.7 Safety Codes and Regulations. Franchisee Facilities and Work shall comply with all applicable federal, State and City safety requirements, rules, regulations, Laws and practices. By way of illustration and not limitation, Franchisee shall comply with the National Electrical Safety Code and the Occupational Safety and Health Administration (OSHA) Standards; and 7.3.8 Building Codes. Franchisee Facilities and Work shall comply with all applicable City Building Codes. 7.4 Conditions Precedent to Work. Except as may be otherwise required by applicable City code, rule, regulation or Standard, Franchisee shall comply with the following as a condition precedent to Work: 7.4.1 Regulatory Permits Required. Except in the event of an Emergency, prior to performing any Work in the Public Right -of -Way requiring a Regulatory Permit, Franchisee shall apply for, and obtain, in advance, such appropriate Regulatory Permits from the City as are required by ordinance or rule. Franchisee shall pay all generally applicable and lawful fees for the requisite City Regulatory Permits. 7.4.2 Compliance with Franchise. Franchisee shall be in material compliance with the Franchise. 7.5 Work in the Public Rights -of -Way. 7.5.1 Least Interference. Work in the Public Rights -of -Way shall be done in a manner that does not unnecessarily hinder or obstruct the free use of the Public Rights - of -Way or other public property and which causes the least interference with the rights and reasonable convenience of property owners, businesses and residents along the Public Rights -of -Way. Franchisee Facilities shall be designed, located, aligned and Constructed so as not to disturb or impair the use or operation of any street improvements, utilities, and related facilities of City or City's existing lessees, licensees, permitees, franchisees, easement beneficiaries or lien holders, without prior written consent of City or the Parties whose improvements are interfered with and whose consent is required pursuant to agreements with the City existing prior to the Effective Date. 7.5.2 Work Subiect to Inspection. The City may observe or inspect the Construction Work, or any portion thereof, at any time to ensure compliance with applicable Regulatory Permits, this Franchise, applicable Law, the applicable approved Design Documents, the Standards, and to ensure the Work is not being performed in an unsafe or dangerous manner. 7.5.4 Notice to the Public. Except in the case of an Emergency, City retains the right to require the Franchisee to notify the public prior to commencing any 23 significant planned Construction that Franchisee reasonably anticipates will materially disturb or disrupt public property or have the potential to present a danger or affect the safety of the public generally. 7.5.5 Work of Contractors and Subcontractors. Franchisee's contractors and subcontractors performing Work in the Franchise Area shall be licensed and bonded in accordance with the City's and State's applicable regulations and requirements. Any contractors or subcontractors performing Work within the Public Rights -of -Way on behalf of the Franchisee shall be deemed servants and agents of the Franchisee for the purposes of this Franchise and are subject to the same restrictions, limitations and conditions as if the Work were performed by Franchisee. Franchisee shall be responsible for all Work performed by its contractors and subcontractors and others performing Work on its behalf as if the Work were performed by it, and shall ensure that all such Work is performed in compliance with this Franchise and other applicable laws, and shall be jointly and severally liable for all damages and correcting all damage caused by them. It is Franchisee's responsibility to ensure that contractors, subcontractors or other Persons performing Work on Franchisee's behalf are familiar with the requirements of this Franchise and other applicable Laws governing the Work performed by them. 7.5.6 Emergency Permits. In the event that Emergency repairs are necessary, Franchisee shall perform such Work, provide such notices, and obtain Regulatory Permits in conformance with applicable Standards. 7.5.7 Stop Work. On notice from the City that any Work does not comply with the Franchise, the approved Design Documents for the Work, the Standards, or other applicable Law, or is being performed in an unsafe or dangerous manner as reasonably determined by the City, the non - compliant Work may immediately be stopped by the City. The stop work order shall be in writing, given to the Person doing the Work and be posted on the Work site, indicate the nature of the alleged violation or unsafe condition; and establish conditions under which Work may be resumed. If so ordered, Franchisee shall cease and shall cause its contractors and subcontractors to cease such activity until the City is reasonably satisfied that Franchisee is in compliance. If an unsafe condition is found to exist, the City, in addition to taking any other action permitted under applicable Law, may order Franchisee to make the necessary repairs and alterations specified therein forthwith to correct the unsafe condition by a time the City establishes in its reasonable discretion. The City has the right to inspect, repair and correct the unsafe condition if Franchisee fails to do so, and to reasonably charge Franchisee for the costs incurred to perform such inspection, repair or correction. Payment by Franchisee will be made in accordance with Section 5.6.9. The authority and remedy set forth herein in this section is in addition to, and not a substitute for, any authority the City may otherwise have to take enforcement action for violation of City Codes or Standards. 7.5.8 Discovery of Hazardous Sub stances/Indemnity. In the event that the Work of the Franchisee in, on, and upon the Franchise Area results in the discovery of the presence of Hazardous Substances ( "Discovered Matters ") in, on or upon the areas excavated or otherwise opened or exposed by Franchisee within the Franchise Area (the ► A' "Excavated Areas "), the Franchisee shall immediately notify the City and, take whatever other reporting action is required by applicable Environmental Law as it relates to the Discovered Matters in the Excavated Areas. In the event the Franchisee's Work, in, on or upon the Franchise Area within the Excavated Areas results in a release (as determined under applicable Environmental Laws) of Hazardous Substances which were, before such activities, confined to areas within the Excavated Areas, but which after such activities by Franchisee are released beyond the Excavated Areas, and if the release is caused in whole or in part by the Franchisee, then the Franchisee shall indemnify, defend and hold the City harmless from the costs of all necessary Remedial Actions which are required under the applicable Environmental Laws, to the extent of Franchisee's share of the liability for the release. Franchisee's liability for the release may, inter alia, be determined by a final non - appealable decision by a court of competent jurisdiction, or as provided in a final non - appealable administrative order issued by the Environmental Authority, or by a consent decree entered by Franchisee and the Environmental Authority. 7.6 Alterations. Except as may be shown in the Design Documents or Regulatory Permits approved by the City or the record drawings, or as may be necessary to respond to an Emergency, Franchisee, and Franchisee's contractors and subcontractors, may not make any material alterations to the Franchise Area, or permanently affix anything to the Franchise Area, without the City's prior written consent. Material alteration shall include by way of example and not limitation, a change in the dimension or height of the above ground Facilities. If Franchisee desires to change either the location of any Facilities or otherwise materially deviates from the approved design of any of the Facilities, Franchisee shall submit such change to the City in writing for its approval pursuant to Section 7.2 of this Franchise. Franchisee shall have no right to commence any such alteration change until after Franchisee has received the City's approval of such change in writing. 7.7 General Conditions. 7.7.1 Right -of -Way Meetings. Subject to receiving advance notice, Franchisee will make reasonable efforts to attend and participate in meetings of the City regarding Right -of -Way issues that may impact the Telecommunications System. 7.7.2 Compliance Inspection. Franchisee's Facilities shall be subject to the City's right of periodic inspection upon at least seventy -two (72) hours' notice, or, in case of an emergency, upon demand without prior notice, to determine compliance with the provisions of this Franchise or other applicable Law over which the City has jurisdiction. Franchisee shall respond to reasonable requests for information regarding its Telecommunications System as the City may from time to time issue in writing to determine compliance with this Franchise, including requests for information regarding the Franchisee's plans for Construction and the purposes for which the Facility is being Constructed. 25 7.7.3 One Call. If Franchisee places Facilities underground, Franchisee shall, at its own expense, continuously be a member of the State of Washington one number locator service under Chapter 19.122 RCW, or an approved equivalent, and shall comply with all such applicable rules and regulations. The Franchisee shall locate and field mark its Facilities for the City at no charge. 7.7.4 Graffiti Removal. Within 5 business days after notice from the City, Franchisee shall remove any graffiti on any part of its Telecommunications System, including, by way of example and not limitation, equipment cabinets. If either the Franchisee fails to do so within 5 business days or in the City's discretion and subject to advance communication with the Franchisee, the City may remove the graffiti and bill the Franchisee for the reasonable cost thereof. 7.7.5 Dangerous Conditions Authority for City to Abate. Whenever Construction of Facilities has caused or contributed to a condition that in the reasonable opinion of the City Engineer, substantially impairs the lateral support of the adjoining Public Right -of -Way, street, or public place, or endangers the public, any utilities, or City -owned property, the City may reasonably require the Franchisee to take action to protect the Public Right -of -Way, the public, adjacent public places, City -owned property, streets, and utilities. Such action may include compliance within a prescribed time. In the event that the Franchisee fails or refuses to promptly take the actions directed by the City, or fails to fully comply with such directions, or if Emergency conditions exist which require immediate action, the City may, to the extent it may lawfully do so, take such actions as are necessary to protect the Public Right -of -Way, the public, adjacent public places, City -owned property, streets, and utilities, to maintain the lateral support thereof, or actions regarded as necessary safety precautions; and the Franchisee shall be liable to the City for the reasonable costs thereof to the extent Franchisee is determined to be the proximate cause of such condition. 7.7.6 No Du . Notwithstanding the right of the City to inspect the Work, issue a stop work order, and order or make repairs or alterations, the City has no duty or obligation to observe or inspect, or to halt Work on, the applicable Facilities, it being solely Franchisee's responsibility to ensure that the Facilities are Constructed and operated in strict accordance with this Franchise, the approved Design Documents, the Standards, and applicable Law. Neither the exercise nor the failure by the City to exercise any right set forth in this Article 7 shall alter the liability allocation set forth in this Franchise. 7.7.7 Roadside Hazard. All of Franchisee's Facilities shall be kept by Franchisee at all times in a safe and hazard -free condition. Franchisee shall ensure that Facilities within the Public Rights -of -Way do not become or constitute an unacceptable roadside obstacle and do not interfere with or create a hazard to maintenance of and along the Public Rights -of -Way. In such event, the Franchisee shall take corrective action. In the event that the City determines that a Facility within the Public Rights -of -Way has become or constitutes an unacceptable roadside obstacle or may interfere with or create a hazard to maintenance of and along the Public Rights -of -Way, following written notice explaining with reasonable specificity the nature of any such matter and a reasonable opportunity to cure of not less than thirty (30) days, the Franchisee shall take corrective action; provided that, nothing herein shall relieve the Franchisee from keeping its Facilities at all times in safe and hazard -free condition. Franchisee, at all times, shall employ the standard of care attendant to the risks involved and shall install and maintain in use commonly accepted methods and devices for preventing failures and accidents which are likely to cause damage, injury, or nuisance to the public or to Franchisee's agents or employees. Franchisee, at its own expense, shall repair, renew, change, and improve its Facilities from time to time as may be necessary to accomplish this purpose. Franchisee shall use suitable barricades, flags, flaggers, lights, flares and other measures as required for the safety of all members of the general public and to prevent injury or damage to any person, vehicle or property by reason of such Work in or affecting such Public Rights -of -Way or property. All excavations made by Franchisee in the Public Rights -of -Way shall be properly safeguarded for the prevention of accidents. 7.7.8 Verification of Alignment/Depth. Upon the reasonable request and prior written notice, in non - Emergency situations at least thirty (30) days' notice by the City and in order to facilitate the location, alignment and design of Public Improvements (defined below), the Franchisee agrees to locate, and if reasonably determined necessary by the City, to excavate and expose portions of its Facilities for inspection so that the location of same may be taken into account in the Public Improvement design; PROVIDED that, Franchisee shall not be required to excavate and expose its Facilities unless the Franchisee's record drawings and maps of its Facilities submitted pursuant to Section 7.11 of this Franchise are reasonably determined by the City to be inadequate for purposes of this paragraph. 7.8 Facility Relocation at Request of the City. 7.8.1 Public Improvement. The City may require Franchisee to alter, adjust, relocate, or protect in place its Facilities within the Public Rights -of -Way when reasonably necessary for construction, alteration, repair, or improvement of any portion of the Public Rights -of -Way for purposes of public welfare, health, or safety ( "Public Improvements "). Such Public Improvements include, by way of example but not limitation, Public Rights -of -Way construction; Public Rights -of -Way repair (including resurfacing or widening); change of Public Rights -of -Way grade; construction, installation or repair of sewers, drains, water pipes, power lines, signal lines, communication lines, or any other type of government -owned communications, utility or public transportation systems, public work, public facility, or improvement of any government -owned utility; Public Rights -of -Way vacation, and the Construction of any public improvement or structure by any governmental agency acting in a governmental capacity for the public benefit. 7.8.2 Alternatives. If the City requires Franchisee to relocate its Facilities, the City shall make a reasonable effort to provide Franchisee with an alternate 27 location within the Public Right -of -Way. The Franchisee may, after receipt of written notice requesting a relocation of its Facilities, propose design alternatives that would mitigate or lessen the impact upon Franchisee's Facilities. The City shall provide a full and fair evaluation of such proposed design alternatives that, in the reasonable judgment of the City, would not impair, interfere with, or materially alter the scope, purpose or functioning of the Public Improvement and would not increase the anticipated public costs of the Public Improvement. If so requested by the City, Franchisee shall submit additional information to assist the City in making such evaluation. In the event that the City reasonably determines that it does not have available resources within the existing Public Improvement budget to fully and fairly evaluate Franchisee's proposal, the City shall not be obligated to further consider such proposal unless and until the Franchisee funds the additional costs to the City to complete its evaluation. 7.8.3 Notice. The City shall notify Franchisee in writing as soon as practicable of the need for relocation and shall specify the date by which relocation shall be completed. Except in case of Emergency such notice shall be no less than one hundred and eighty (180) days. In calculating the date that relocation must be completed, City shall consult with Franchisee and consider the extent of Facilities to be relocated, the service requirements, and the construction sequence for the relocation, within the overall project construction sequence and constraints, to safely complete the relocation. Franchisee shall complete the relocation by the date specified, unless the City, or a reviewing court, establishes a later date for completion, after a showing by the Franchisee that the relocation cannot be completed by the date specified using best efforts and meeting safety and service requirements. 7.8.4 Coordination of Work. Franchisee acknowledges and understands that any delay by Franchisee in performing the Work to alter, adjust, relocate, or protect in place its Facilities within the Public Rights -of -Way may delay, hinder, or interfere with the work performed by the City and its contractors and subcontractors in furtherance of construction, alteration, repair, or improvement of the Public Improvement, and result in damage to the City and/or its contractors, including but not limited to, delay and disruption claims. Franchisee shall cooperate with the City and its contractors and subcontractors to coordinate such Franchisee Work to accommodate the Public Improvement project and project schedules to avoid delay, hindrance, or disruption of such project. 7.8.5 Assignment of Rights. In addition to any other rights of assignment the City may have, the City may from time to time assign or transfer to its contractors or subcontractors its rights under Section 7.10 of this Franchise. 7.8.6 Reimbursement for Costs. Notwithstanding the cost allocation provisions set forth in this Franchise, Franchisee does not waive its right(s) to and shall be entitled to seek reimbursement of its relocation costs as may be otherwise specifically set forth and authorized by Law, including in statute. Further, if the City reimburses or pays the relocation costs of a similarly situated franchisee for a given Public 28 Improvement project, the City shall reimburse or pay Franchisee's relocation costs on the same basis 7.9 Movement of Facilities for Others. 7.9.1 Private Benefit. If any alteration, adjustment, temporary relocation, or protection in place of the Telecommunications System is required solely to accommodate the Construction of facilities or equipment that are not part of a Public Improvement project, Franchisee shall, after at least one hundred eighty (180) days advance written notice, take action to effect the necessary changes requested by the responsible Person; provided that, (a) the Person requesting the same pays for the Franchisee's time, design, engineering and material costs associated with the requested work; (b) the alteration, adjustment, relocation or protection in place is reasonably necessary to accommodate such work; (c) Franchisee's services are not interrupted; and (d) such alteration, adjustment, or relocation is not requested for the purpose of obtaining a competitive advantage over the Franchisee. 7.9.2 Temporary Changes for Other Franchisees. At the request of any Person holding a valid permit and upon reasonable advance notice, Franchisee shall temporarily raise, lower or remove its wires as necessary to permit the moving of a building, vehicle, equipment or other item. The expense of such temporary changes must be paid by the permit holder. Franchisee shall be given not less than thirty (30) days' advance notice to arrange for such temporary wire changes. 7.10 Movement of Facilities During Emergencies. 7.10.1 Immediate Threat. In the event of an unforeseen event, condition or circumstance that creates an immediate threat to the public safety, health, or welfare, the City shall have the right to require Franchisee to shut down, relocate, remove, replace, modify, or temporarily disconnect Franchisee's Facilities located in the Public Rights -of- Way at the expense of the Franchisee without regard to the cause or causes of the immediate threat. 7.10.2 Emergency. In the event of an Emergency, or where a Facility creates or is contributing to an imminent danger to health, safety, or property, the City retains the right and privilege to protect, support, temporarily disconnect, remove, or relocate any or all parts of the Telecommunications System located within the Public Rights -of -Way, as the City may determine to be reasonably necessary, appropriate or useful in response to any public health or safety Emergency and charge the Franchisee for costs incurred. 7.10.3 Notice. During Emergencies the City shall endeavor to, as soon as practicable, provide notice to Franchisee of such Emergency at a designated Emergency response contact number, to allow Franchisee the opportunity to respond and rectify the problem without disrupting Telecommunications Service. If after providing notice, there is no immediate response, the City may protect, support, temporarily disconnect, remove, or W relocate any or all parts of the Telecommunications System located within the Public Rights -of -Way in accordance with this Section 7.10. 7.10.4 Limitation on Liability. The City shall not be liable for any direct, indirect, or any other such damages suffered by any person or entity of any type as a direct or indirect result of the City's actions under this Section. 7.11 Record of Installations. 7.11.1 Map /Record Drawing of Telecommunications System. Upon request by the City, Franchisee shall search for and provide the City with the most accurate and available maps and record drawings in a form and content reasonably prescribed by the City reflecting the horizontal and vertical location and configuration of its Telecommunications System within the Public Rights -of -Way and upon City property in a format reasonably acceptable to the City. Franchisee shall provide the City with updated record drawings and maps within a reasonable period of time following receipt of written request. As to any such record drawings and maps so provided, Franchisee does not warrant the accuracy thereof and to the extent the location of the Telecommunications System is shown, such Telecommunications System is shown in its approximate location. 7.11.2 Maps /Record Drawings of Improvements. After Construction involving the locating or relocating of Facilities, the Franchisee shall provide the City with accurate copies of all record drawings and maps showing the horizontal and vertical location and configuration of all located or relocated Facilities within the Public Rights - of -Way. These record - drawings and maps shall be provided at no cost to the City, and shall include hard copies and digital copies in a format reasonably specified by the City. As to any such record drawings and maps so provided, Franchisee does not warrant the accuracy thereof and to the extent the location of the Telecommunications System is shown, such Telecommunications System is shown in its approximate location. 7.12 Restoration of Public Rights -of -Way, Public and Private Property. 7.12.1 Restoration after Construction. Franchisee shall, after completion of Construction of any part of its Telecommunications System, leave the Public Rights - of -Way and other property disturbed thereby, in as good or better condition in all respects as it was in before the commencement of such Construction. Franchisee agrees to promptly complete restoration work to the reasonable satisfaction of the City and in conformance with City Standards, including by way of example and not limitation, backfilling and restoration requirements as set forth in City Standards. 7.12.2 Notice. If Franchisee's Work causes unplanned, unapproved, or unanticipated disturbance of or alteration or damage to Public Rights -of -Way or other public or private property, the Franchisee shall promptly notify the property owner within twenty - four (24) hours. 30 7.12.3 Duty to Restore. If Franchisee's Work causes unplanned, unapproved, or unanticipated disturbance of or alteration or damage to Public Rights -of- Way or other public property, it shall promptly remove any obstructions therefrom and restore such Public Rights -of -Way and public property to the reasonable satisfaction of the City and in accordance with City Standards. 7.12.4 Temporary Restoration. If weather or other conditions do not allow the complete restoration required by this Section, Franchisee shall temporarily restore the affected Public Right -of -Way or public property. Franchisee shall promptly undertake and complete the required permanent restoration when the weather or other conditions no longer prevent such permanent restoration. 7.12.5 Survey Monuments. All survey monuments which are disturbed or displaced by any Work shall be referenced and restored, as per WAC 332 -120, as the same now exists or may hereafter be amended, and all pertinent federal, state and local standards and specifications. 7.12.6 Approval. The City Engineer, or designee, shall be responsible for observation and final approval of the condition of the Public Rights -of -Way and City property following any restoration activities therein. Franchisee is responsible for all testing and monitoring of restoration activities. 7.12.7 Warranty. Franchisee shall warrant any restoration work performed by Franchisee in the Public Rights -of -Way or on other public property for two (2) years, unless a longer period is required by applicable City Standards. If restoration is not satisfactorily and timely performed by the Franchisee, the City may, after prior notice to the Franchisee, or without notice where the disturbance or damage may create an imminent risk to public health or safety, cause the repairs to be made and recover the reasonable cost of those repairs from the Franchisee. Franchisee shall pay the City for such costs in accordance with Section 5.6.9. 7.12.8 Restoration of Private Property. When Franchisee does any Work in the Public Rights -of -Way that affects, disturbs, alters, or damages any adjacent private property, it shall, at its own expense, be responsible for restoring such private property to the reasonable satisfaction of the private property owner. 7.13 Approvals. Nothing in this Franchise shall be deemed to impose any duty or obligation upon the City to determine the adequacy or sufficiency of Franchisee's Design Documents or to ascertain whether Franchisee's proposed or actual Construction is adequate or sufficient or in conformance with the Design Documents reviewed and approved by the City. No approval given, inspection made, review or supervision performed by the City pursuant to or under authority of this Franchise shall constitute or be construed as a representation or warranty express or implied by the City that such item reviewed, approved, inspected, or supervised, complies with applicable Laws or this Franchise or meets any particular Standard, code or requirement, or is in conformance with the approved Design Documents, and no liability shall attach with respect thereto. 31 City approvals and inspections as provided herein, are for the sole purpose of protecting the City's rights as the owner and/or manager of the Public Rights -of -Way and shall not constitute any representation or warranty, express or implied, as to the adequacy of the design or Construction of the Facilities or Telecommunications System, suitability of the Franchise Area for Construction, or any obligation on the part of the City to insure that Work or materials are in compliance with any requirements imposed by a governmental entity. The City is under no obligation or duty to supervise the design, Construction, or operation of the Telecommunications System. 7.14 Abandonment of Facilities. Except as may be otherwise provided by Law, Franchisee may abandon in place any Facilities in the Public Rights -of -Way upon written notice to the City, which notice shall include a description of the Facilities it intends to abandon, the specific location in the Public Rights -of -Way of such Facilities, and the condition of such Facilities. However, if the City determines within 180 days of the receipt of notice of abandonment from the Franchisee, that the safety, appearance, functioning, or use of the Public Rights -of -Way and other facilities in the Public Rights - of -Way, including without limitation, utilities and related facilities, will be adversely affected, the operator must remove its abandoned Facilities by a date specified by the City and restore the Public Rights -of -Way in accordance with City Standards. Franchisee shall be and remain responsible in perpetuity for any Facilities abandoned in the Public Rights -of -Way. ARTICLE 8. MISCELLANEOUS. 8.1 Headings. Titles to articles and sections of this Franchise are not a part of this Franchise and shall have no effect upon the construction or interpretation of any part hereof. 8.2. Entire Agreement. This Franchise contains all covenants and agreements between the City and the Franchisee relating in any manner to the Franchise, use, and occupancy of the Public Rights -of -Way and other matters set forth in this Franchise. No prior agreements or understanding pertaining to the same, written or oral, shall be valid or of any force or effect and the covenants and agreement of this Franchise shall not be altered, modified, or added to except in writing signed by the City and Franchisee and approved by the City in the same manner as the original Franchise was approved. 8.3 Incorporation of Exhibits. All exhibits annexed hereto at the time of execution of this Franchise or in the future as contemplated herein, are hereby incorporated by reference as though fully set forth herein. 8.4 Calculation of Time. Except where a period of time refers to "business days," all periods of time referred to herein shall include Saturdays, Sundays, and legal holidays in the State of Washington, except that if the last day of any period falls on any Saturday, Sunday, or legal holiday in the State of Washington, the period shall be extended to include the next day which is not a Saturday, Sunday, or legal holiday in the 32 State of Washington; provided that, the Effective Date shall be determined as provided at Section 4.3 of this Franchise. 8.5 Time Limits Strictly Construed. Whenever this Franchise sets forth a time for any act to be performed by Franchisee, such time shall be deemed to be of the essence, and any failure of Franchisee to perform within the allotted time may be considered a Default of this Franchise. 8.6 No Joint Venture. It is not intended by this Franchise to, and nothing contained in this Franchise shall, create any partnership, joint venture, or principal -agent relationship or other arrangement between Franchisee and the City. Neither Party is authorized to, nor shall either Party act toward third Persons or the public in any manner which would indicate any such relationship with the other. The Parties intend that the rights, obligations, and covenants in this Franchise and the collateral instruments shall be exclusively enforceable by the City and Franchisee, their successors, and assigns. No term or provision of this Franchise is intended to be, or shall be, for the benefit of any Person not a Party hereto, and no such Person shall have any right or cause of action hereunder, except as may be otherwise provided herein. Further, the Franchisee is not granted any express or implied right or authority to assume or create any obligation or responsibility on behalf of or in the name of the City. Nothing in this Section 8.6 shall be construed to prevent an assignment as provided for at Sections 2.8 or 7.8.5 of this Franchise. 8.7 Approval Authority. Except as may be otherwise provided by Law or herein, any approval or authorization required to be given by the City, shall be given by the Public Works Director (or its successor), or by the Public Works Director's designee. 8.8 Binding Effect upon Successors and Assigns. All of the provisions, conditions, and requirements contained in this Franchise shall further be binding upon the heirs, successors, executors, administrators, receivers, trustees, legal representatives, transferees and assigns of the Franchisee; and all privileges, as well as all obligations and liabilities of the Franchisee shall inure to its heirs, successors, and assigns equally as if they were specifically mentioned wherever the Franchisee is named herein. 8.9 Waiver. No failure by either Party to insist upon the performance of any of the terms of this Franchise or to exercise any right or remedy consequent upon a Default thereof, shall constitute a waiver of any such Default or of any of the terms of this Franchise. None of the terms of this Franchise to be kept, observed or performed by either Party, and no Default thereof, shall be waived, altered or modified except by a written instrument executed by the injured Party. No waiver of any Default shall affect or alter this Franchise, but each of the terms of this Franchise shall continue in full force and effect with respect to any other then existing or subsequent Default thereof. No waiver of any default of the defaulting Party hereunder shall be implied from any omission by the injured Party to take any action on account of such default if such default persists or is repeated, and no express waiver shall affect any default other than the default specified in the express waiver and then only for the time and to the extent therein 33 stated. One or more waivers by the injured Party shall not be construed as a waiver of a subsequent Default of the same covenant, term or conditions. 8.10 Severability. If any word, article, section, subsection, paragraph, provision, condition, clause, sentence set forth herein, or its application to any person or circumstance (collectively referred to as "Term "), shall be held to be illegal, invalid, or unconstitutional for any reason by any court or agency of competent jurisdiction, such Term declared illegal, invalid or unconstitutional shall be severable and the remaining Terms of the Franchise shall remain in full force and effect unless to do so would be inequitable or would result in a material change in the rights and obligations of the Parties hereunder. 8.11 Suns. No signs or advertising shall be permitted in the Franchise Area except as may be required by Law or as may be required by the City for the protection of the public health, safety and welfare, to the extent it has authority to do so. 8.12 Discriminatory Practices Prohibited. Throughout the term of this Franchise, Franchisee shall fully comply with all equal employment and nondiscrimination provisions of applicable Law. 8.13 Notice. Any notice required or permitted to be given hereunder shall be in writing, unless otherwise expressly permitted or required, and shall be deemed effective either, (i) upon hand delivery to the person then holding the office shown on the attention line of the address below, or, if such office is vacant or no longer exists, to a person holding a comparable office, or (ii) or when delivered by a nationally recognized overnight mail delivery service, to the Party and at the address specified below, or (ii) on the third business day following its deposit with the United States Postal Service, first class and certified or registered mail, return receipt requested, postage prepaid, properly sealed and addressed as follows: Franchisee's address: Astound Broadband, LLC 401 Kirkland Parkplace Suite 500 Kirkland, WA 98033 Attention: Steve Weed, CEO, and Jim Penney, EVP The City's Address: City of Yelm 105 Yelm Avenue West Yelm, WA 98597 Attention: Shelly Badger, City Administrator And to the City Attorney Brent F. Dille Bean Gentry Wheeler Peternell 910 Lakeridge Way SW Olympia, WA 98502 34 The City and Franchisee may designate such other address from time to time by giving written notice to the other, but notice cannot be required to more than two addresses, except by mutual agreement. 8.14 Survival of Terms. Upon the expiration, termination, revocation or forfeiture of the Franchise, the Franchisee shall no longer have the right to occupy the Franchise Area for the purpose of providing services authorized herein. However, the Franchisee's obligations under this Franchise to the City shall survive the expiration, termination, revocation or forfeiture of these rights according to its terms for so long as the Franchisee's Telecommunications System or any part thereof shall remain in whole or in part in the Public Rights -of -Way, or until such time as the Franchisee transfers ownership of all Facilities in the Franchise Area to the City or a third -Party, or until such time as the Franchisee abandons said Facilities in place, all as provided herein. Said obligations include, by way of illustration and not limitation, Franchisee's obligations to indemnify, defend, and protect the City, to provide insurance, to relocate its Facilities, and to reimburse the City for its costs to perform Franchisee's Work. 8.15 Force Majeure. In the event Franchisee is prevented or delayed in the performance of any of its obligations herein due to circumstances beyond its control or by reason of a force majeure occurrence, such as, but not limited to, acts of God, acts of terrorism, war, riots, civil disturbances, natural disasters, floods, tornadoes, earthquakes, severe weather conditions, employee strikes and unforeseen labor conditions not attributable to Franchisee's employees, Franchisee shall not be deemed in Default of provisions of this Franchise. If Franchisee believes that circumstances beyond its control or by reason of a force majeure occurrence have prevented or delayed its compliance with the provisions of this Franchise, Franchisee shall provide documentation as reasonably required by the City to substantiate the Franchisee's claim. Franchisee shall have a reasonable time, under the circumstances, to perform the affected obligation under this Franchise or to procure a substitute for such obligation which is reasonably satisfactory to the City; provided that, the Franchisee shall perform to the maximum extent it is able to perform and shall take reasonable steps within its power to correct such cause(s) in as expeditious a manner as possible, provided that the Franchisee takes prompt and diligent steps to bring itself back into compliance and to comply as soon as possible under the circumstances with the Franchise without unduly endangering the health, safety, and integrity of the Franchisee's employees or property, or the health, safety, and integrity of the public, Public Rights -of- Way, public property, or private property. 8.16 Attorneys' Fees. In the event of a suit, action, arbitration, or other proceeding of any nature whatsoever, whether in contract or in tort or both, is instituted to enforce any word, article, section, subsection, paragraph, provision, condition, clause or sentence of this Franchise or its application to any person or circumstance, the prevailing Party shall be entitled to recover from the losing Party its reasonable attorneys, paralegals, accountants, and other experts fees and all other fees, costs, and expenses actually incurred and reasonably necessary in connection therewith, as allowed by 35 Washington law and as determined by the judge or arbitrator at trial or arbitration, as the case may be, or on any appeal or review, in addition to all other amounts provided by Law. This provision shall cover costs and attorneys' fees related to or with respect to proceedings in Federal Bankruptcy Courts, including those related to issues unique to bankruptcy law. This provision shall not apply to the extent that the suit, action, arbitration or other proceeding is brought to interpret any term, condition, provision, section, article or clause of this Franchise. 8.17 Venue /Choice of Law. This Franchise shall be governed by, and construed in accordance with, the laws of the State of Washington. Any action brought relative to enforcement of this Franchise, or seeking a declaration of rights, duties or obligations herein, shall be initiated in the Superior Court of the County in which the City is located, and shall not be removed to a federal court, except as to claims over which such Superior Court has no jurisdiction. Removal to federal court shall be to the Federal Court of the Western District of Washington. 8.18 Publication. This ordinance, or a summary thereof, shall be published in the official newspaper of the City, the expense of which shall be borne by Franchisee, and shall take effect and be in full force in accordance with Section 4.3 herein. ADOPTED BY THE CITY -COUNCIL AT A REGULAR MEETING THEREOF ON THE 1l � DAY OF , 2015, AND SIGNED IN AUTHENTICATION OF ITS PASSAGE THIS ZJ,,^, DA Y OF , 2015. ATTEST /AUTHENTICATED: nine Schnepf, City Clerk Approved as to form: Brent F. Dille, City Attorney Date of Publication: 36 CITY Of YELLM� Mayor 4�141'bl:t- A 1 Acceptance of Franchise Franchise issued pursuant to Ordinance No. 1001 1, `J M" /4 . �eofi e-/ , am the 6 j(�e- M vl t//"G6 f K- , IP67"_T_ , and am the authorized representative to accept the above - referenced Franchise on behalf of 1416MvND 1 ADSA"D, LL G . In my capacity as GU7tvE cE �R- c�/D�NT and not individually, I certify that this Franchise and all terms and conditions thereof are accepted by A6T&t/N3y �RAA�f�Riy D, LL G without qualification or reservation and that 1-stav+� L unconditionally guarantee(s) performance of all such terms and conditions. DATED this c43 day of STATE OF 1 �atSLriyc�y1 SS. CITY OF _,20 I5 B '�tN -��' �- • f �r�rs'� 4� Its t5<eey-n ye- ✓ P u�� NT' Tax Payer ID# '14.- 36-:F0o-4-8 I certify that I know or have satisfactory evidence that J�ES i • PAN 'Vr--V is the person who appeared before me, and said person acknowledged that said person signed this instrument, on oath stated that said person was authorized to execute the instrument and acknowledged it (as the 6xeevn vc v%c" ?�� 1DN r of A,:rmv S94AD&74ITO, U. G , a 0A_,o4+tA&Th1-j 2,1MITrj> L1J4 911,ITY company,) to be the free and voluntary act of such company for the uses and purposes mentioned in the instrument. DATED this o:�7 day of ;�71;y►E- , !s DAVID JOHANNES VON MORITZ NOTARY PUBLIC STATE OF WASHINGTON COMMISSION EXPIRES SEPTEMBER, 06 2017 Print Name Notary public in and for the state of AAS 1, "L.3 Residing at , my appointment expires 0'3 - 0 4 • 2-tl? -?--. 1. EXHIBIT "B" (Form of Transfer Agreement) THIS TRANSFER AGREEMENT ( "Agreement ") is made this 20_, by and between: PARTIES. day of 1.1 City of Yelm, a legal subdivision of the state of Washington ( "City ") 1.2 ( "Franchisee "). 1.3 ( "Transferee ") RECITALS WHEREAS the City has issued Franchisee, which was authorized on the to Ordinance No. , and a single Franchise (the "Franchise ") to _ day of , 2015, pursuant WHEREAS Franchisee has reached an agreement with Transferee on a (describe transaction, example: conveyance of benefited property) Transferee, to (example Rights -of -Way) with acquire from Franchisee its facilities and equipment located in the Public and WHEREAS Franchisee and Transferee have requested that the City approve a transfer of the Franchise from Franchisee to Transferee, and WHEREAS, as a result of the transfer of the Franchise, Transferee will assume all rights, duties, and obligations that Franchisee has under the Franchise, will be responsible for full compliance with the Franchise, and will meet or exceed all applicable and lawful federal, state, and local requirements, and WHEREAS, relying on the representations made by the Transferee and Franchisee, the City, on the _ day of , 20 , has, pursuant to Resolution No. and the Franchise, approved the transfer upon the terms and conditions as stated herein; 38