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Ordinance 15-014 Fatbeam Franchise Ordinance CITY OF SPOKANE VALLEY SPOKANE COUNTY,WASHINGTON ORDINANCE NO. 15-014 AN ORDINANCE OF THE CITY OF SPOKANE VALLEY, SPOKANE COUNTY, WASHINGTON, GRANTING A NON-EXCLUSIVE FRANCHISE TO FATBEAM TO CONSTRUCT,MAINTAIN AND OPERATE TELECOMMUNICATIONS FACILITIES WITHIN THE PUBLIC RIGHTS-OF-WAY OF THE CITY OF SPOKANE VALLEY,AND OTHER MATTERS RELATING THERETO. WHEREAS, RCW 35A.47.040 authorizes the City to grant, permit, and regulate "nonexclusive franchises for the use of public streets, bridges or other public ways, structures or places above or below the surface of the ground for railroads and other routes and facilities for public conveyances, for poles, conduits, tunnels, towers and structures, pipes and wires and appurtenances thereof for transmission and distribution of electrical energy, signals and other methods of communication, for gas, steam and liquid fuels, for water, sewer and other private and publicly owned and operated facilities for public service;" and WHEREAS, RCW 35A.47.040 further requires that "no ordinance or resolution granting any franchise in a code city for any purpose shall be adopted or passed by the city's legislative body on the day of its introduction nor for five days thereafter, nor at any other than a regular meeting nor without first being submitted to the city attorney, nor without having been granted by the approving vote of at least a majority of the entire legislative body, nor without being published at least once in a newspaper of general circulation in the city before becoming effective;"and WHEREAS, this Ordinance has been submitted to the City Attorney prior to its passage;and WHEREAS,the Council finds that the grant of the Franchise contained in this Ordinance, subject to its terms and conditions, is in the best interests of the public, and protects the health, safety, and welfare of the citizens of this City. NOW, THEREFORE, the City Council of the City of Spokane Valley, Spokane County, Washington, ordains as follows: Section 1. Definitions. For the purpose of this Ordinance,the following words and terms shall have the meaning set forth below: "City Manager"means the City Manager or designee. "construction" or "construct" shall mean constructing, digging, excavating, laying, testing, operating, extending, upgrading, renewing, removing, replacing, and repairing a facility. "day" shall mean a 24-hour period beginning at 12:01 AM. If a thing or act is to be done in less than seven days, intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation of time. "franchise area" shall mean the entire geographic area within the City as it is now constituted or may in the future be constituted. Ordinance 15-014 Fatbeam Telecommunications Franchise Page 1 of 14 "hazardous substances" shall have the same meaning as RCW 70.105D.020(10). "maintenance, maintaining or maintain"shall mean the work involved in the replacement and/or repair of facilities, including constructing, relaying, repairing, replacing, examining, testing, inspecting, removing, digging and excavating, and restoring operations incidental thereto. "overbuilding" shall mean adding additional fiber capacity to an existing conduit housing fiber optic cable. "overlashing" shall mean the act of lashing new fiber optic cable to an existing aerial fiber optic cable. "permittee" shall mean a person or entity who has been granted a permit by the permitting authority. "permitting authority" shall mean the City Manager or designee authorized to process and grant permits required to perform work in the rights-of-way. "product" shall refer to the item,thing or use provided by the Grantee. "public property"shall mean any real estate or any facility owned by the City. "Public Works Director"shall mean the Spokane Valley Public Works Director or his/her designee. "relocation" shall mean any required move or relocation of an existing installation or equipment owned by Grantee whereby such move or relocation is necessitated by installation, improvement, renovation or repair of another entity's facilities in the rights- of-way, including Grantor's facilities. "right-of-way" shall refer to the surface of and the space along, above, and below any street, road, highway, freeway, lane, sidewalk, alley, court, boulevard, parkway, drive, Grantee easement, and/or public way now or hereafter held or administered by the City. "streets" or "highways" shall mean the surface of, and the space above and below, any public street, road, alley or highway, within the City used or intended to be used by the general public,to the extent the City has the right to allow the Grantee to use them. "telecommunications facilities" shall mean any of the plant, equipment, fixtures, appurtenances, antennas, and other facilities necessary to furnish and deliver telecommunications services, including but not limited to poles with crossarms, poles without crossarms, wires, lines, conduits, cables, communication and signal lines and equipment, braces, guys, anchors, vaults, and all attachments, appurtenances, and appliances necessary or incidental to the distribution and use of telecommunications services. The abandonment by Grantee of any telecommunications facilities as defined herein shall not act to remove the same from this definition. Section 2. Grant of Franchise. The City of Spokane Valley, a Washington municipal corporation (hereinafter as"City" or"the City"), hereby grants unto Fatbeam (hereinafter"Grantee"), a franchise for a period of 10 years, beginning on the effective date of this Ordinance, to install, construct, operate, Ordinance 15-014 Fatbeam Telecommunications Franchise Page 2 of 14 maintain, replace and use all necessary equipment and facilities to place telecommunications facilities in, under, on, across, over, through, along or below the public rights-of-way and public places located in the City of Spokane Valley, as approved under City permits issued pursuant to this franchise (hereinafter the "franchise"). This franchise does not permit Grantee to use such facilities to provide cable services as defined by 47 C.F.R. § 76.5(ff). Section 3. Fee. No right-of-way use fee is imposed for the term of this franchise. Any such right-of-way use or franchise fee that may be imposed by subsequent ordinance would apply to any subsequent franchise, if any, between the parties. Section 4. City Use. The following provisions shall apply regarding City use. A) Grantee agrees to reserve to the City the right to access four dark fiber strands (two pair) along the route identified in Exhibit A as adopted or amended, within the boundaries of the City, for sole and exclusive municipal, non-commercial use or designation (the "City Reserved Fibers"). Grantee can currently only reserve one pair of dark fiber for City use due to capacity limitations • in its legacy system. Grantee anticipates installing additional capacity through overlashing in the future, and shall affirmatively notify the City when a second pair of dark fiber is available for potential use as City Reserved Fiber in any portion of the franchise area where any such overlashing has occurred. City agrees that it shall not use the City Reserved Fibers as a public utility provider of telecommunications business service to the public. B) The City has the right to access by connection to the City Reserved Fibers at existing Grantee splice points or reasonably established access points within the City limits; provided that all splicing shall be the sole responsibility of Grantee. The City shall provide at least 30 days' written notice of intent to access the City Reserved Fibers. Upon any access or use of the City Reserved Fibers, City shall pay Grantee a recurring monthly charge of$20.00 per fiber pair per mile in use by the City (the "City Fiber Rate") unless otherwise specifically agreed by both the parties in writing and shall negotiate and enter into a "Fiber License Agreement" which shall govern the terms and conditions for use of the City Reserved Fibers, except cost, which is set forth herein. Said recurring monthly charge shall not be imposed until such time as the fiber is put into use by the City. C) In the event the City Reserved Fibers are the last fibers remaining in Grantee's fiber bundle, then the following shall apply: 1) If the City is using the fibers,then the rate the City shall pay Grantee will change from the City Fiber Rate to Grantee's standard commercial rate. 2) If the City is not using the fibers,the City shall have the option of abandoning the City Reserved Fibers in lieu of paying Grantee's standard commercial rate. If Grantee installs additional fiber capacity, the City's right to use four dark fiber stands as set forth in subsections 1 and 2, immediately above, shall again be in effect. D) All access, interconnection and maintenance to and on the City Reserved Fibers shall be performed by Grantee. The City shall pay all costs associated with such work to the City Reserved Fibers. The City Reserved Fibers shall have a term that matches the duration of this franchise Ordinance. Ordinance 15-014 Fatbeam Telecommunications Franchise Page 3 of 14 E) Consistent with and subject to RCW 35.99.070, at such time when Grantee is constructing, relocating, or placing ducts or conduits in public rights-of-way, the Public Works Director may require Grantee to provide the City with additional duct or conduit and related structures, at incremental cost, necessary to access the conduit at mutually convenient locations. Any ducts or conduits provided by Grantee under this section shall only be used for City municipal, non- commercial purposes. 1) The City shall not require that the additional duct or conduit space be connected to the access structures and vaults of the Grantee. 2) This section shall not affect the provision of an institutional network by a cable television provider under federal law. 3) Grantee shall notify the Public Works Director at least 14 days' prior to opening a trench at any location to allow the City to exercise its options as provided herein. Section 5. Recovery of Costs. Grantee shall reimburse the City for all costs of one publication of this franchise in a local newspaper,and required legal notices prior to any public hearing regarding this franchise, contemporaneous with its acceptance of this franchise. Grantee shall be subject to all permit and inspection fees associated with activities undertaken through the authority granted in this franchise or under City Code. Section 6. Non-Exclusivity. This franchise is granted upon the express condition that it shall not in any manner prevent the City from granting other or further franchises or permits in any rights-of-way. This and other franchises shall, in no way, prevent or prohibit the City from using any of its rights-of-way or affect its jurisdiction over them or any part of them. Section 7. Non-Interference with Existing Facilities. The City shall have prior and superior right to the use of its rights-of-way and public properties for installation and maintenance of its facilities and other governmental purposes. The City hereby retains full power to make all changes, relocations, repairs, maintenance, establishments, improvements, dedications or vacation of same as the City may deem fit, including the dedication, establishment, maintenance, and improvement of all new rights-of-way, streets, avenues, thoroughfares and other public properties of every type and description. Any and all such removal or replacement shall be at the sole expense of Grantee, unless RCW 35.99.060 provides otherwise. Should Grantee fail to remove, adjust or relocate its telecommunications facilities by the date established by the Public Works Director's written notice to Grantee and in accordance with RCW 35.99.060, the City may cause and/or effect such removal, adjustment or relocation, and the expense thereof shall be paid by Grantee. The owners of all utilities, public or private, installed in or on such public properties prior to the installation of the telecommunications facilities of Grantee, shall have preference as to the positioning and location of such utilities so installed with respect to Grantee. Such preference shall continue in the event of the necessity of relocating or changing the grade of any such public properties. Grantee's telecommunications facilities shall be constructed and maintained in such manner as not to interfere with any public use, or with any other pipes, wires, conduits or other facilities that may have been laid in the rights-of-way by or under the City's authority. If the work done under this franchise damages or interferes in any way with the public use or other facilities, Grantee shall wholly and at its own expense make such provisions necessary to eliminate the interference or damage to the satisfaction of the Public Works Director. Ordinance 15-014 Fatbeam Telecommunications Franchise Page 4 of 14 Section 8. Construction Standards. All work authorized and required hereunder shall comply with all generally applicable City Codes and regulations. Grantee shall also comply with all applicable federal and state regulations, laws and practices. Grantee is responsible for the supervision, condition, and quality of the work done, whether it is by itself or by contractors, assigns or agencies. Application of said federal, state, and City Codes and regulations shall be for the purposes of fulfilling the City's public trustee role in administering the primary use and purpose of public properties, and not for relieving the Grantee of any duty, obligation, or responsibility for the competent design, construction, maintenance, and operation of its telecommunications facilities. Grantee is responsible for the supervision, condition, and quality of the work done, whether it is by itself or by contractors, assigns or agencies. If Grantee shall at any time be required, or plan, to excavate trenches in any area covered by this franchise,the Grantee shall afford the City an opportunity to permit other franchisees and utilities to share such excavated trenches, provided that: (1) such joint use shall not unreasonably delay the work of the Grantee; and(2) such joint use shall not adversely affect Grantee's telecommunications facilities or safety thereof. Joint users will be required to contribute to the costs of excavation and filling on a pro-rata basis. Section 9. Protection of Monuments. Grantee shall comply with applicable state laws relating to protection of monuments. Section 10. Tree Trimming. Grantee shall have the authority to conduct pruning and trimming for access to Grantee's telecommunications facilities in the rights-of-way subject to compliance with the City Code. All such trimming shall be done at Grantee's sole cost and expense. Section 11. Emergency Response. Grantee shall, within 30 days' of the execution of this franchise, designate one or more responsible people and an emergency 24-hour on-call personnel, and the procedures to be followed when responding to an emergency. After being notified of an emergency, Grantee shall cooperate with the City to immediately respond with action to aid in the protection of the health and safety of the public. In the event Grantee refuses to promptly take the directed action or fails to fully comply with such direction, or if emergency conditions exist which require immediate action to prevent imminent injury or damages to persons or property, the City may take such actions as it believes are necessary to protect persons or property, and Grantee shall be responsible to reimburse the City for its costs and any expenses. Section 12. One-Call System. Pursuant to RCW 19.122, Grantee is responsible for becoming familiar with, and understanding, the provisions of Washington's One-Call statutes. Grantee shall comply with the terms and conditions set forth in the One-Call statutes. Section 13. Safety. All of Grantee's telecommunications facilities in the rights-of-way shall be constructed and maintained in a safe and operational condition. Grantee shall follow all safety codes and other applicable regulations in the installation, operation, and maintenance of the telecommunications facilities. Section 14. Movement of Grantee's Telecommunications Facilities for Others. Whenever any third party shall have obtained permission from the City to use any right—of-way for the purpose of moving any building or other oversized structure, Grantee, upon at least 14 days' written notice from the City, shall move, at the expense of the third party desiring to move the building or structure, any of Grantee's telecommunications facilities that may obstruct the movement thereof; provided,that the path for moving such building or structure is the path of least interference to Grantee's telecommunications facilities, as determined by the City. Upon good cause shown by Grantee, the City may require more than 14 days' notice to Grantee to move its telecommunications facilities. Ordinance 15-014 Fatbeam Telecommunications Franchise Page 5 of 14 Section 15. Acquiring New Telecommunications Facilities. Upon Grantee's acquisition of any new telecommunications facilities in the rights-of-way, or upon any addition or annexation to the City of any area in which Grantee retains any such telecommunications facilities in the rights-of-way, Grantee shall submit to the City a written statement describing all telecommunications facilities involved, whether authorized by franchise or any other form of prior right, and specifying the location of all such facilities. Such facilities shall immediately be subject to the terms of this franchise. Section 16. Dangerous Conditions - Authority of City to Abate. Whenever excavation, installation, construction, repair, maintenance, or relocation of telecommunications facilities authorized by this franchise has caused or contributed to a condition that substantially impairs the lateral support of the adjoining right-of-way, road, street or other public place, or endangers the public, adjoining public or private property or street utilities, the City may direct Grantee, at Grantee's sole expense, to take all necessary actions to protect the public and property. The City may require that such action be completed within a prescribed time. In the event that Grantee 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 enter upon the property and take such actions as are necessary to protect the public, adjacent public or private property, or street utilities, or to maintain the lateral support thereof, and all other actions deemed by the City to be necessary to preserve the public safety and welfare; and Grantee shall be liable to the City for all costs and expenses thereof to the extent caused by Grantee. Section 17. Hazardous Substances. Grantee shall comply with all applicable federal, state and local laws, statutes, regulations and orders concerning hazardous substances relating to Grantee's telecommunications facilities in the rights—of-way. Grantee agrees to indemnify the City against any claims, costs, and expenses, of any kind, whether direct or indirect, incurred by the City arising out of the release or threat of release of hazardous substances caused by Grantee's ownership or operation of its telecommunications facilities within the City's rights-of-way. Section 18. Environmental. Grantee shall comply with all environmental protection laws, rules, recommendations, and regulations of the United States and the State of Washington, and their various subdivisions and agencies as they presently exist or may hereafter be enacted, promulgated, or amended, and shall indemnify and hold the City harmless from any and all damages arising, or which may arise, or be caused by, or result from the failure of Grantee fully to comply with any such laws, rules, recommendations, or regulations, whether or not Grantee's acts or activities were intentional or unintentional. Grantee shall further indemnify the City against all losses, costs, and expenses (including legal expenses) which the City may incur as a result of the requirement of any government or governmental subdivision or agency to clean and/or remove any pollution caused or permitted by Grantee,whether said requirement is during the term of the franchise or subsequent to its termination. Section 19. Relocation of Telecommunications Facilities. Grantee agrees and covenants, at its sole cost and expense, to protect, support, temporarily disconnect, relocate or remove from any street any of its telecommunications facilities when so required by the City in accordance with the provisions of RCW 35.99.060, provided that Grantee shall in all such cases have the privilege to temporarily bypass, in the authorized portion of the same street upon approval by the City, any section of its telecommunications facilities required to be temporarily disconnected or removed. If the City determines that the project necessitates the relocation of Grantee's then- existing telecommunications facilities,the City shall: Ordinance 15-014 Fatbeam Telecommunications Franchise Page 6 of 14 A) At least 60 days' prior to the commencement of such improvement project, provide Grantee with written notice requiring such relocation; and B) Provide Grantee with copies of pertinent portions of the plans and specifications for such improvement project and a proposed location for Grantee's telecommunications facilities so that Grantee may relocate its telecommunications facilities in other City rights-of-way in order to accommodate such improvement project. C) After receipt of such notice and such plans and specifications, Grantee shall complete relocation of its telecommunications facilities at no charge or expense to the City so as to accommodate the improvement project in accordance with RCW 35.99.060 (2). Grantee may, after receipt of written notice requesting a relocation of its telecommunications facilities, submit to the City written alternatives to such relocation. The City shall evaluate such alternatives and advise Grantee in writing if one or more of the alternatives are suitable to accommodate the work which would otherwise necessitate relocation of the telecommunications facilities. If so requested by the City, Grantee shall submit additional information to assist the City in making such evaluation. The City shall give each alternative proposed by Grantee full and fair consideration. In the event the City ultimately determines that there is no other reasonable alternative, Grantee shall relocate its telecommunications facilities as otherwise provided in this section. The provisions of this section shall in no manner preclude or restrict Grantee from making any arrangements it may deem appropriate when responding to a request for relocation of its telecommunications facilities by any person or entity other than the City, where the telecommunications facilities to be constructed by said person or entity are not or will not become City owned, operated or maintained facilities, provided that such arrangements do not unduly delay a City construction project. If the City or a contractor for the City is delayed at any time in the progress of the work by an act or neglect of the Grantee or those acting for or on behalf of Grantee, then Grantee shall indemnify, defend and hold the City, its officers, officials, employees and volunteers harmless from any and all claims, injuries, damages, losses or suits including attorney fees to the extent arising out of or in connection with such delays, except for delays and damages caused by the City. This provision may not be waived by the parties except in writing. Section 20. Abandonment of Grantee's Telecommunications Facilities. No facility constructed or owned by Grantee may be abandoned without the express written consent of the City, which consent shall not be unreasonably withheld. The City has discretion and authority to direct Grantee to remove a facility abandoned by Grantee (whether or not the entity had permission to abandon the facility) and restore the rights-of-way to their pre-removal condition when: (a) a City project involves digging that will encounter the abandoned facility; (b) the abandoned facility poses a hazard to the health, safety, or welfare of the public; (c) the abandoned facility is 24 inches or less below the surface of the rights-of-way and the City is reconstructing or resurfacing a street over the rights-of-way; or(d)the abandoned facility has collapsed, broke, or otherwise failed. Grantee may, upon written approval by the City, delay removal of the abandoned facility until such time as the City commences a construction project in the rights-of-way unless (b) or (d) above applies. When (b) or (d) applies, Grantee shall remove the abandoned facility from the rights-of-way as soon as weather conditions allow, unless the City expressly allows otherwise in writing. The expense of the removal, and restoration of improvements in the rights-of-way that were damaged by the facility or by the removal process, shall be the sole responsibility of the Grantee. If Grantee fails to Ordinance 15-014 Fatbeam Telecommunications Franchise Page 7 of 14 remove the abandoned facilities in accordance with the above, then the City may incur costs to remove the abandoned facilities and restore the rights-of-way, and is entitled to reimbursement from Grantee for such costs, including reasonable attorney's fees and costs. Section 21. Maps and Records Required. Grantee shall provide the City,at no cost to the City: A) A route map that depicts the general location of the Grantee's telecommunications facilities placed in the rights-of-way. The route map shall identify telecommunications facilities as aerial or underground and is not required to depict cable types, number of fibers or cables, electronic equipment, and service lines to individual subscribers. Grantee shall also provide an electronic map of the aerial/underground telecommunications facilities in relation to the right-of-way centerline reference to allow the City to add this information to the City's Geographic Information System ("GIS") program. The information in this subsection shall be delivered to the City by December 1, annually. B) In connection with the construction of any City project, Grantee shall provide to the City, upon the City's reasonable request, copies of available drawings in use by Grantee showing the location of such telecommunications facilities. Grantee shall field locate its telecommunications facilities in order to facilitate design and planning of City improvement projects. C) Upon written request of the City, Grantee shall provide the City with the most recent update available of any plan of potential improvements to its telecommunications facilities within the franchise area; provided, however, any such plan so submitted shall be deemed confidential and for informational purposes only, and shall not obligate Grantee to undertake any specific improvements within the franchise area. The information in this subsection shall be delivered to the City by December 1, annually. D) In addition to the requirements of subsection 1 of this section,the parties agree to periodically share GIS files upon written request, provided Grantee's GIS files are to be used solely by the City for governmental purposes. Any files provided to Grantee shall be restricted to information required for Grantee's engineering needs for construction or maintenance of telecommunications facilities that are the subject of this franchise. Grantee is prohibited from selling any GIS information obtained from City to any third parties. E) Public Disclosure Act. Grantee acknowledges that information submitted to the City may be subject to inspection and copying under the Washington Public Disclosure Act codified in chapter 42.56 RCW. Grantee shall mark as "PROPRIETARY/CONFIDENTIAL" each page or portion thereof of any documentation/information which it submits to the City and which it believes is exempt from public inspection or copying. The City agrees to timely provide Grantee with a copy of any public disclosure request to inspect or copy documentation/information which the Grantee has provided to the City and marked as "PROPRIETARY/CONFIDENTIAL" prior to allowing any inspection and/or copying as well as provide the Grantee with a time frame, consistent with RCW 42.56.520, to provide the City with its written basis for non-disclosure of the requested documentation/information. In the event the City disagrees with the Grantee's basis for non-disclosure, the City agrees to withhold release of the requested documentation/ information in dispute for a reasonable amount of time to allow Grantee an opportunity to file a legal action under RCW 42.56.540. Section 22. Limitation on Future Work. In the event that the City constructs a new street or reconstructs an existing street, Grantee shall not be permitted to excavate such street except as set forth in the City's then-adopted regulations relating to street cuts and excavations. Ordinance 15-014 Fatbeam Telecommunications Franchise Page 8 of 14 Section 23. Reservation of Rights by City. The City reserves the right to refuse any request for a permit to extend telecommunications facilities. Any such refusal shall be supported by a written statement from the Public Works Director that extending the telecommunications facilities, as proposed, would interfere with the public health, safety or welfare. Section 24. Remedies to Enforce Compliance. In addition to any other remedy provided herein,the City reserves the right to pursue any remedy to compel or force Grantee and/or its successors and assigns to comply with the terms hereof, and the pursuit of any right or remedy by the City shall not prevent the City from thereafter declaring a forfeiture or revocation for breach of the conditions herein. Section 25. City Ordinances and Regulations. Nothing herein shall be deemed to direct or restrict the City's ability to adopt and enforce all necessary and appropriate ordinances regulating the performance of the conditions of this franchise, including any reasonable ordinances made in the exercise of its police powers in the interest of public safety and for the welfare of the public. The City shall have the authority at all times to control by appropriate regulations the location, elevation, and manner of construction and maintenance of any telecommunications facilities by Grantee, and Grantee shall promptly conform with all such regulations, unless compliance would cause Grantee to violate other requirements of law. In the event of a conflict between the Municipal Code and this franchise,City Code shall control. Section 26. Vacation. The City may vacate any City road, right-of-way or other City property which is subject to rights granted by this franchise in accordance with state and local law. Any relocation of telecommunications facilities resulting from a street vacation shall require a minimum of 180 days' notice as provided in section 37. In the event of a street vacation, the City shall include in the vacation ordinance a reserved easement for the continued location of Grantee's facilities. Section 27. Indemnification. A) Grantee hereby covenants not to bring suit and agrees to indemnify, defend and hold harmless the City, its officers, employees, agents and representatives from any and all claims, costs, judgments, awards or liability to any person arising from injury, sickness or death of any person or damage to property of any nature whatsoever relating to or arising out of this franchise agreement; except for injuries and damages caused solely by the negligence of the City. This includes but is not limited to injury: 1) For which the negligent acts or omissions of Grantee, its agents, servants, officers or employees in performing the activities authorized by a franchise are a proximate cause; 2) By virtue of Grantee's exercise of the rights granted herein; 3) By virtue of the City permitting Grantee's use of the City's rights-of-ways or other public property; 4) Based upon the City's inspection or lack of inspection of work performed by Grantee, its agents and servants, officers or employees in connection with work authorized on the facility or property over which the City has control, pursuant to a franchise or pursuant to any other permit or approval issued in connection with a franchise; 5) Arising as a result of the negligent acts or omissions of Grantee, its agents, servants, officers or employees in barricading, instituting trench safety systems or providing other Ordinance 15-014 Fatbeam Telecommunications Franchise Page 9 of 14 adequate warnings of any excavation, construction or work upon the facility, in any right- of-way, or other public place in performance of work or services permitted under a franchise; or 6) Based upon radio frequency emissions or radiation emitted from Grantee's equipment located upon the facility, regardless of whether Grantee's equipment complies with applicable federal statutes and/or FCC regulations related thereto. B) Grantee's indemnification obligations pursuant to subsection 1 of this section shall include assuming liability for actions brought by Grantee's own employees and the employees of Grantee's agents, representatives, contractors and subcontractors even though Grantee might be immune under RCW Title 51 from direct suit brought by such an employee. It is expressly agreed and understood that this assumption of potential liability for actions brought by the aforementioned employees is limited solely to claims against the City arising by virtue of Grantee's exercise of the rights set forth in a franchise. The obligations of Grantee under this subsection have been mutually negotiated by the parties, and Grantee acknowledges that the City would not enter into a franchise without Grantee's waiver. To the extent required to provide this indemnification and this indemnification only, Grantee waives its immunity under RCW Title 51. C) Inspection or acceptance by the City of any work performed by Grantee at the time of completion of construction shall not be grounds for avoidance of any of these covenants of indemnification. Provided, that Grantee has been given prompt written notice by the City of any such claim, said indemnification obligations shall extend to claims which are not reduced to a suit and any claims which may be compromised prior to the culmination of any litigation or the institution of any litigation. The City has the right to defend or participate in the defense of any such claim, and has the right to approve any settlement or other compromise of any such claim. D) In the event that Grantee refuses the tender of defense in any suit or any claim, said tender having been made pursuant to this section, and said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties shall agree to decide the matter), to have been a wrongful refusal on the part of Grantee, then Grantee shall pay all of the City's costs for defense of the action, including all reasonable expert witness fees, reasonable attorney fees, the reasonable costs of the City of recovering under this subsection. E) Grantee's duty to defend, indemnify and hold harmless City against liability for damages caused by the concurrent negligence of(a) City or City's agents, employees, or contractors, and (b) Grantee or Grantee's agents, employees, or contractors, shall apply only to the extent of the negligence of Grantee or Grantee's agents, employees, or contractors. In the event that a court of competent jurisdiction determines that a franchise is subject to the provisions of RCW 4.24.115, the parties agree that the indemnity provisions hereunder shall be deemed amended to conform to said statute and liability shall be allocated as provided herein. F)Notwithstanding any other provisions of this section, Grantee assumes the risk of damage to its telecommunication facilities located in the rights-of-way and upon City-owned property from activities conducted by the City, its officers, agents, employees and contractors, except to the extent any such damage or destruction is caused by or arises from any willful or malicious action or gross negligence on the part of the City, its officers, agents, employees or contractors. Grantee releases and waives any and all such claims against the City, its officers, agents, employees or contractors. Grantee further agrees to indemnify, hold harmless and defend the City against any claims for damages, including, but not limited to, business interruption damages and lost profits, brought by or under users of Grantee's facilities as the result of any interruption of service due to Ordinance 15-014 Fatbeam Telecommunications Franchise Page 10 of 14 damage or destruction of Grantee's facilities caused by or arising out of activities conducted by the City, its officers, agents, employees or contractors, except to the extent any such damage or destruction is caused by or arises from the sole negligence or any willful or malicious actions on the part of the City, its officers, agents, employees or contractors. G) The provisions of this section shall survive the expiration, revocation or termination of this franchise. Section 28. Insurance. Grantee shall procure and maintain for the duration of the franchise, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the exercise of the rights, privileges and authority granted hereunder to Grantee, its agents, representatives or employees. Grantee's maintenance of insurance as required by this franchise shall not be construed to limit the liability of the Grantee to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or in equity. A) Automobile Liability insurance with limits no less than $1,000,000 Combined Single Limit per accident for bodily injury and property damage. This insurance shall cover all owned, non- owned, hired or leased vehicles used in relation to this franchise. Coverage shall be written on Insurance Services Office (ISO) form CA 00 01 or a substitute form providing equivalent liability coverage. If necessary,the policy shall be endorsed to provide contractual liability coverage; and B) Commercial General Liability insurance shall be written on Insurance Services Office (ISO) occurrence form CG 00 01, or a substitute form providing equivalent liability coverage acceptable to the City, and shall cover products liability. The City shall be named as an insured under Grantee's Commercial General Liability insurance policy using ISO Additional Insured-State or Political Subdivisions-Permits CG 20 12 or a substitute endorsement acceptable to the City providing equivalent coverage. Coverage shall be written on an occurrence basis with limits no less than $1,000,000 Combined Single Limit per occurrence and $2,000,000 general aggregate for personal injury, bodily injury and property damage. Coverage shall include but not be limited to: blanket contractual; products/completed operations; broad form property; explosion, collapse and underground(XCU); and Employer's Liability. The insurance policies are to contain, or be endorsed to contain,the following provisions for Commercial General Liability insurance: A) Grantee's insurance coverage shall be primary insurance with respect to the City as outlined in the Indemnification section of this franchise. Any insurance, self-insurance, or insurance pool coverage maintained by the City shall be in excess of Grantee's insurance and shall not contribute with it. B)Grantee's insurance shall be endorsed to state that coverage shall not be cancelled, except after 30 days' prior written notice has been given to the City. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A:VII. Grantee shall furnish the City with original certificates and a copy of any amendatory endorsements, including the additional insured endorsement, evidencing the insurance requirements of the Grantee prior to the adoption of this Ordinance. Ordinance 15-014 Fatbeam Telecommunications Franchise Page 11 of 14 Any failure to comply with the reporting provisions of the policies required herein shall not affect coverage provided to the City, its officers, officials, employees or volunteers. Section 29. Performance Bond Relating to Construction Activity. Before undertaking any of the work, installation, improvements, construction, repair, relocation or maintenance authorized by this franchise, Grantee, or any parties Grantee contracts with to perform labor in the performance of this franchise, shall, upon the request of the City, furnish a bond executed by Grantee or Grantee's contractors and a corporate surety authorized to operate a surety business in the State of Washington, in such sum as may be set and approved by the City, not to exceed $25,000, as sufficient to ensure performance of Grantee's obligations under this franchise. The bond shall be conditioned so that Grantee shall observe all the covenants, terms and conditions and shall faithfully perform all of the obligations of this franchise, and to repair or replace any defective work or materials discovered in the City's road, streets, or property. Said bond shall remain in effect for the life of this franchise. In the event Grantee proposes to construct a project for which the above-mentioned bond would not ensure performance of Grantee's obligations under this franchise, the City is entitled to require such larger bond as may be appropriate under the circumstances. Section 30. Modification. The City and Grantee hereby reserve the right to alter, amend or modify the terms and conditions of this franchise upon written agreement of both parties to such alteration, amendment or modification. Section 31. Forfeiture and Revocation. If Grantee willfully violates or fails to comply with any of the provisions of this franchise, or through willful or unreasonable negligence fails to heed or comply with any notice given Grantee by the City under the provisions of this franchise, and an adequate opportunity to cure the violation or non-compliance has been given in writing to Grantee, then Grantee shall, at the election of the City, forfeit all rights conferred hereunder and this franchise may be revoked or annulled by the City after a hearing held upon reasonable notice to Grantee. The City may elect, in lieu of the above and without any prejudice to any of its other legal rights and remedies, to obtain an order from the Spokane County Superior Court compelling Grantee to comply with the provisions of this franchise and to recover damages and costs incurred by the City by reason of Grantee's failure to comply. Section 32. Assignment. This franchise may not be assigned or transferred without the written approval of the City, except that Grantee can assign this franchise without approval of, but upon notice to the City from any parent, affiliate or subsidiary of Grantee or to any entity that acquires all or substantially all the assets or equity of Grantee, by merger, sale, consolidation or otherwise. Section 33. Acceptance. Not later than 60 days after passage of this Ordinance, Grantee shall accept the franchise herein by filing with the City Clerk an unconditional written acceptance thereof. Failure of Grantee to so accept this franchise within said period of time shall be deemed a rejection thereof by Grantee, and the rights and privileges herein granted shall, after the expiration of the 60-day period, absolutely cease, unless the time period is extended by ordinance duly passed for that purpose. Section 34. Survival. All of the provisions, conditions and requirements of sections: 5, 6, 7, 13, 16, 17, 18, 19, 20, 27, 28, 29, 37, 38 and 39 of this franchise shall be in addition to any and all other obligations and liabilities Grantee may have to the City at common law, by statute, by ordinance, or by contract, and shall survive termination of this franchise, and any renewals or extensions hereof. All of the provisions, conditions, regulations and requirements contained in this franchise shall further be binding upon the heirs, successors, executors, administrators, legal representatives and assigns of Grantee and City and all privileges, as well as all obligations and liabilities of Grantee shall inure to their respective heirs, successors and assigns equally as if they were specifically mentioned herein. Ordinance 15-014 Fatbeam Telecommunications Franchise Page 12 of 14 Section 35. Severability. If any section, sentence, clause or phrase of this Ordinance should be held to be invalid or unconstitutional by a court of competent jurisdiction, such invalidity or unconstitutionality shall not affect the validity or constitutionality of any other section, sentence, clause or phrase of this Ordinance. In the event that any of the provisions of the franchise are held to be invalid by a court of competent jurisdiction, the City reserves the right to reconsider the grant of the franchise and may amend, repeal, add, replace or modify any other provision of the franchise, or may terminate the franchise. Section 36. Renewal. Application for extension or renewal of the term of this franchise shall be made no later than 180 days of the expiration thereof. In the event the time period granted by this franchise expires without being renewed by the City, the terms and conditions hereof shall continue in effect until this franchise is either renewed or terminated by the City. Section 37. Notice. Any notice or information required or permitted to be given by or to the parties under this franchise may be sent to the following addresses unless otherwise specified, in writing: The City: City of Spokane Valley Attn: City Clerk 11707 East Sprague Avenue, Suite 106 Spokane Valley, WA 99206 Grantee: Fatbeam Attn: Kim Devlin 2065 West Riverstone Drive, Suite 105 Coeur d'Alene, ID 83814 Phone: (509) 344-1008 Facsimile: (509) 344-1009 Section 38. Choice of Law. Any litigation between the City and Grantee arising under or regarding this franchise shall occur, if in the state courts, in the Spokane County Superior Court, and if in the federal courts, in the United States District Court for the Eastern District of Washington. Section 39. Non-Waiver. The City shall be vested with the power and authority to reasonably regulate the exercise of the privileges permitted by this franchise in the public interest. Grantee shall not be relieved of its obligations to comply with any of the provisions of this franchise by reason of any failure of the City to enforce prompt compliance, nor does the City waive or limit any of its rights under this franchise by reason of such failure or neglect. Section 40. Entire Agreement. This franchise constitutes the entire understanding and agreement between the parties as to the subject matter herein and no other agreements or understandings, written or otherwise, shall be binding upon the parties upon execution and acceptance hereof This franchise shall also supersede and cancel any previous right or claim of Grantee to occupy the City roads as herein described. Section 41. Effective Date. This Ordinance shall be in full force and effect five days after publication of the Ordinance or a summary thereof occurs in the official newspaper of the City of Spokane Valley as provided by law. Ordinance 15-014 Fatbeam Telecommunications Franchise Page 13 of 14 PASSED by the City Council this 28`''day of July,2015. Dean Grafos,Mayor S 1 1i(/�TlLn �a Christine Bainbridge, City Clerk Approved a. + Form: P‘ 40-4V‘ Office o the Ci rney Date of Publication: August 7, 2015 Effective Date: August 12,2015 Accepted by Fatb-.411030 -- By: . ' Name and o'4 'all'h'..lacity _p/se„, The Grantee, Fatbeam, for itself, and for its successors and assigns, does accept all of the terms and conditions of the foregoing franchise. IN WITNESS WHEREOF, G c-4,-) has signed this S day of S T , 2015. z( Subscribed and sworn before me this day of /Liui ,2015. 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Es. xF ir -:.....,,r,?'..,:,:-, e^ .y c� .A:,:7,,-.•. s, ,- b.`. •`+ra .?_ r, Goc Ie east c `4'' YEP { i4 a 3 }y. ry�;► FATBLLC-01 JKLEIN ACORO DATE(MM/DD/YYYY) CERTIFICATE OF LIABILITY INSURANCE 7/31/2015 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 NAME:CONTACT Kim Johanson,CIC Moloney O'Neill/Alliant Insurance Services Inc. PHONE 509 325-3024 FAX 818 W.Riverside,Ste 800 AWN&Ext): ) (a/c,No): Spokane,WA 99201 ADDRESS: INSURER(S)AFFORDING COVERAGE NAIC# INSURER A:Travelers Property Casualty Co of Amer 25674 INSURED INSURER B:Travelers Indemnity Company 25658 Fatbeam LLC INSURER C: 2065 W Riverside#105 INSURER D: Coeur D Alene,ID 83814 INSURER E: INSURER F: COVERAGES CERTIFICATE NUMBER: 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. INSR TYPE OF INSURANCE 'ADDL SUBR POLICY EFF POLICY EXP LIMITS LIR INSD WVD. POLICY NUMBER (MM/DD/YYYY) (MMIDDIYYYY) A X COMMERCIAL GENERAL UABIUTY EACH OCCURRENCE $ 1,000,000 CLAIMS-MADE X OCCUR X ZLP91M139821415 09/01/2014 09/01/2015 pREMISES(EaENT rrence) $ 300,000 MED EXP(Any one person) $ 10,000 PERSONAL 8 ADV INJURY $ 1,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: GENERAL AGGREGATE $ 2,000,000 POLICY X jEo- LOC PRODUCTS-COMP/OPAGG S 2,000,000 OTHER: $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT $. 1,000,000 (Ea accident) B X ANYAUTO BA9E81338014 09/01/2014 09/01/2015 BODILYINJURY(Perperson) $ X ALL OWNED SCHEDULED BODILY INJURY(Per accident) S AUTOSAUTOS X NON OWNED PROPERTY DAMAGE HIRED AUTOS AUTOS (Per accident) _ X Auto Enhancemen xCAT 530310 Al $ UMBRELLA LIAB _WO OCCUR EACH OCCURRENCE $ EXCESS LIAB CLAIMS-MADE AGGREGATE $ DED RETENTION $ WORKERS COMPENSATION OTH- AND EMPLOYERS'LIABILITY Y/N STATUTE ER ANY PROPRIETOR/PARTNER/EXECUTIVEN/A E.L.EACH ACCIDENT $ OFFICER/MEMBER EXCLUDED? (Mandatory in NH) E.L.DISEASE-EA EMPLOYEE$ If yes,describe under DESCRIPTION OF OPERATIONS below E.L DISEASE-POLICY LIMIT S DESCRIPTION OF OPERATIONS/LOCATIONS I VEHICLES (ACORD 101,Additional Remarks Schedule,may be attached if more space is required) RE:Ordinance#15-014 City of Spokane Valley is Additional Insured with respect to General Liability for the Ongoing Operations of the Named Insured. Coverage is Primary/Non-Contributory. See forms attached. CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE Cityof Spokane ValleyTHE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN P ACCORDANCE WITH THE POLICY PROVISIONS. 11707 E Sprague Ave,Suite 106 Spokane Valley,WA 99206 AUTHORIZED REPRESENTATIVE ©1988-2014 ACORD CORPORATION. All rights reserved. ACORD 25(2014/01) The ACORD name and logo are registered marks of ACORD 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, cover- age 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 coverage description only. Limitations and exclusions may apply to these coverages. Read all the provisions of this endorsement and the rest of your policy carefully to determine rights, duties, and what is and is not covered. A. Reasonable Force Property Damage - J. Blanket Additional Insured - Lessors Of Exception To Expected Or Intended In- Leased Equipment jury Exclusion B. Non-Owned Watercraft Less Than 75 K. Blanket Additional Insured - Persons Or Feet Organizations For Your Ongoing Opera- tions As Required By Written Contract Or Agreement C. Aircraft Chartered With Pilot L. Blanket Additional Insured - Broad Form Vendors D. Damage To Premises Rented To You M. Who is An Insured - Unnamed Subsidi- aries E. Increased Supplementary Payments N. Who Is An Insured - Liability For Con- duct Of Unnamed Partnerships Or Joint Ventures F. Who Is An Insured - Employees And 0. Medical Payments - Increased limits Volunteer Workers - First Aid G. Who Is An Insured - Employees - Su- p, Contractual Liability - Railroads pervisory Positions H. Who Is An Insured - Newly Acquired Or D, Knowledge And Notice Of Occurrence Formed Organizations Or Offense I. Blanket Additional Insured - Owners, R. Unintentional Omission Managers Or Lessors Of Premises S, Blanket Waiver Of Subrogation PROVISIONS age" expected or intended from the A. REASONABLE FORCE PROPERTY DAMAGE — standpointiosof the insured.oThis nexcy- EXCEPTION TO EXPECTED OR INTENDED or does not apply to "bodily injury" or "property damage" resulting from INJURY EXCLUSION the use of reasonable force to protect The following replaces Exclusion a., Ex— any person or property. pected Or Intended Injury, in Paragraph 2., B. NON—OWNED WATERCRAFT LESS THAN 75 of SECTION I — COVERAGES — COVERAGE FEET A BODILY INJURY AND PROPERTY DAMAGE The following replaces Paragraph (2) of LIABILITY: Exclusion g„ Aircraft, Auto Or Watercraft, in a. Expected Or Intended Injury Or Damage Paragraph 2. of SECTION I — COVERAGES — "Bodily injury" or "property dam- COVERAGE A BODILY INJURY AND PROPERTY DAMAGE LIABILITY: CG D4 17 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. (2) A watercraft you do not own that a The amount shown for the is: Damage To Premises Rented To (a) Less than 75 feet long; and You Limit on the Declarations of this Coverage Part; or (b) Not being used to carry any per- b. $300,000 if no amount is shown son or property for a charge. for the Damage To Premises C. AIRCRAFT CHARTERED WITH PILOT Rented To You Limit on the Declarations of this Coverage The following is added to Exclusion g., Part. Aircraft, Auto Or Watercraft, in Paragraph 4. The following replaces Paragraph a. of COVERAGE A BODILY INJURY AND C. of SECTION I - COVRAGES the definition of "insured contract" in PROPERTY DAMAGE LIABILITY: the DEFINITIONS Section: This exclusion does not apply to an a A contract for a lease of premises. aircraft that is: However, that portion of the con- tract for a lease of premises that (a) Chartered with a pilot to any in- indemnifies any person or organiza- sured; tion for "premises damage" is not (b) Not owned by any insured; and an "insured contract"; carryany person5. DEFINITIONS Section:The s added to the (c) Not beingused to or property for a charge. D. DAMAGE TO PREMISES RENTED TO YOU "Premises damage" means "property damage" to: 1. The first paragraph of the excep- a. Any premises while rented to you tions in Exclusion j., Damage To or temporarily occupied by you Property, in Paragraph 2 of SECTION I with permission of the owner; or - COVERAGES - COVERAGE A BODILY INJURY AND PROPERTY DAMAGE b. The contents of any premises while LIABILITY is deleted. such premises is rented to you, if you rent such premises for a pe- 2. The following replaces the last riod of seven or fewer consecutive paragraph of Paragraph 2, Exclu- days. sb us, of SECTION I - COVERAGES - 6. The following replaces Paragraph COVERAGE A BODILY INJURY AND 4.b.(1)(b) of SECTION IV - COMMERCIAL PROPERTY DAMAGE LIABILITY: GENERAL LIABILITY CONDITIONS: Exclusions C., g. and h., and Para- (b) That is insurance for "premises graphs (1), (3) and (4) of Exclusion j., damage"; or do not apply to "premises damage". Exclusion f.(1)(a) does not apply to 7. Paragraph 4.b.(1)(C) of SECTION IV - "premises damage" caused by fire COMMERCIAL GENERAL LIABILITY unless Exclusion f. of Section I - CONDITIONS is deleted. Coverage A - Bodily Injury And E. INCREASED SUPPLEMENTARY PAYMENTS Property Damage Liability is re- placed by another endorsement to 1. The following replaces Paragraph 1.b. this Coverage Part that has Exclu- of SUPPLEMENTARY PAYMENTS - sion - All Pollution Injury Or Dam- COVERAGES A AND B of SECTION I - age or Total Pollution Exclusion in COVERAGES: its title. A separate limit of insur- ance applies to "premises damage" b. Up to $2,500 for cost of bail as described in Paragraph 6. of Sec- bonds required because of acci- tion III - Limits Of Insurance. dents or traffic law violations aris- 3. Theifollown replaces Para rh u. ing out of the use of any vehicle of SECTIOg III - LIMITS OF to which the Bodily Injury Liability Coverage applies. We do not have INSURANCE: to furnish these bonds. b. Subject to 5. above, the Damage 2. The following replaces Paragraph 1.d. To Premises Rented To You of SUPPLEMENTARY PAYMENTS - Limit is the most we will pay COVERAGES A AND B of SECTION I - under Coverage A for damages COVERAGES: because of "premises damage" to any one premises. d. All reasonable expenses incurred by The Damage To Premises Rented the insured at our request to assist g us in the investigation or defense To You Limit will be: Page 2 of 6 e 2012 The Travelers Indemnity Company. All riots reserved. CG D4 17 01 12 of the claim or "suit", including G. WHO IS AN INSURED - EMPLOYEES - actual loss of earnings up to SUPERVISORY POSITIONS $500 a day because of time off from work. The following is added to Paragraph 2.a(1) of SECTION II - WHO IS AN INSURED: F. WHO IS AN INSURED - EMPLOYEES AND VOLUNTEER WORKERS - FIRST AID Paragraphs (1)(a), (b) and (c) above do not apply to "bodily injury" or "personal in- 1. The following is added to the defi- jury" to a co-"employee" in the course of nition of "occurrence" in the the co-"employee's" employment by you DEFINITIONS Section: arising out of work by any of your "em- Unless you are in the business or ployees" who hold a supervisory position. occupation of providing professional H. WHO IS AN INSURED - NEWLY ACQUIRED OR health care services, "occurrence" FORMED ORGANIZATIONS also means an act or omission committed by any of your "em- The following replaces Paragraph 4. of ployees" or "volunteer workers", SECTION II - WHO IS AN INSURED of the other than an employed or volunteer Commercial General Liability Coverage doctor, in providing or failing to Form, and Paragraph 3. of SECTION II - provide first aid or "Good Samari- WHO IS AN INSURED of the Global Corn- tan services" to a person. panion Commercial General Liability Cov- erage The following is added to Paragraph Form, to the extent such coverage 2.a.(1) of SECTION II - WHO IS AN forms are part of your policy: INSURED: Any organization you newly acquire or form, other than a partnership or joint Unless you are in the business or venture, of which you are the sole owner occupation of providing professional or in which you maintain the majority health care services, Paragraphs (1 ownership interest, will qualify as a )(a), (b), (c) and (d) above do not ap- Named Insured if there is no other insur- ply to "bodily injury" arising out of ance which provides similar coverage to providing or failing to provide first that organization. However: aid or "Good Samaritan services" by any of your "employees" or a. Coverage under this provision is af- "volunteer workers", other than an forded only: employed or volunteer doctor. Any (1) Until the 180th day after you ac- of your "employees" or "volunteer quire or form the organization or workers" providing or failing to the end of the policy period, provide first aid or "Good Samari- whichever is earlier, if you do not tan services" during their work report such organization in writing hours for you will be deemed to be to us within 180 days after you acting within the scope of their acquire or form it; or employment by you or performing duties related to the conduct of (2) Until the end of the policy period, your business. when that date is later than 180 3. The following is added to Paragraph days after you acquire or form 5. of SECTION III - LIMITS OF such organization, if you report INSURANCE such organization in writing toous within 180 days after you acquire For the purposes of determining the or form it, and we agree in writing applicable Each Occurrence Limit, all that it will continue to be a Named related acts or omissions commit- Insured until the end of the policy ted by any of your "employees" or period; "volunteer workers" in providing or b. Coverage A does not apply to "bodily failing to provide first aid or "Good injury" or "property damage" that oc- Samaritan services" to any one per- curred before you acquired or formed son will be deemed to be one "oc- the organization; and currence". 4. The followingis added to the c. Coverage B does not apply to "per- sonal injury" or "advertising injury" DEFINITIONS Section: arising out of an offense committed "Good Samaritan services" means before you acquired or formed the or- any emergency medical services for ganization. which no compensation is demanded or received. CG D4 17 01 12 tEl 2012 The Travelers Indemnity Company. All rights reserved. Page 3 of 6 i....i...1..., ......,..�.......a ..,,,..,...,i ..c i.,,,....,...,., c,........,.. ncs..... ..,.. ..,,k ;... I. BLANKET ADDITIONAL INSURED - OWNERS, and executed that contract or agree- MANAGERS OR LESSORS OF PREMISES ment; and The following is added to SECTION II - b. Is caused, in whole or in part, by your WHO IS AN INSURED: acts or omissions in the performance or organization that is a of your ongoing operations to which Any person9 that contract or agreement applies or premises owner, manager or lessor is the acts or omissions of any person an insured, but only with respect to li- or organization performing such opera- ability arising out of the ownership, tions on your behalf. maintenance or use of that part of any premises leased to you. The limits of insurance provided to such The insurance provided to such prem- insured will be the limits which you ises owner, manager or lessor does greed to provide in the written contract not apply to: or agreement, or the limits shown in the Declarations, whichever are less. a. Any "bodily injury" or "property I. BLANKET ADDITIONAL INSURED - BROAD damage" caused by an "occurrence" FORM VENDORS that takes place, or "personal in- jury" or "advertising injury" caused The following is added to SECTION II - by an offense that is committed, WHO IS AN INSURED: after you cease to be a tenant in that premises; or Any person or organization that is a ven- dort Structural alterations, new construe- and that you have agreed in a written tion or demolition operations per- contract or agreement to include as an formed byor on behalfa of such additional insured on this Coverage Part is an insured, but only with respect to li- premises owner, manager or lessor. ability for "bodily injury" or "property J. BLANKET ADDITIONAL INSURED - LESSORS damage" that: OF LEASED EQUIPMENT a. Is caused by an "occurrence" that takes The following is added to SECTION II - place after you have signed and exe- WHO IS AN INSURED: cuted that contract or agreement; and Any person or organization that is an b. Arises out of "your products" which equipment lessor is an insured, but only are distributed or sold in the regular with respect to liability for "bodily in- course of such vendor's business. jury", "property damage", "personal in- The insurance provided to such vendor is jury" or "advertising injury" caused, in subject to the following provisions: whole or in part, by your acts or omis- sions in the maintenance, operation or a. The limits of insurance provided to use by you of equipment leased to you such vendor will be the limits which by such equipment lessor. you agreed to provide in the written The insurance provided to such equipment contract or agreement, or the limits lessor does not apply to any "bodily in- shown in the Declarations, whichever jury" or "property damage" caused by an are less. "occurrence" that takes place, or "per- b. The insurance provided to such vendor sonal injury" or "advertising injury" does not apply to: caused by an offense that is committed, after the equipment lease expires. (1) Any express warranty not author- K. BLANKET ADDITIONAL INSURED - PERSONS ized by you; OR ORGANIZATIONS FOR YOUR ONGOING (2) Any change in "your products" OPERATIONS AS REQUIRED BY WRITTEN made by such vendor; CONTRACT OR AGREEMENT (31 Repackaging, unless unpacked The following is added to SECTION II - solely for the purpose of inspec- WHO IS AN INSURED: tion, demonstration; testinge or the Any person or organization that is not substitution of parts under instruc- tionsotherwise an insured under this Cover- from the manufacturer, and original con- age Part and that you have agreed in a then repackaged in the original written contract or agreement to in- clude tainer; as an additional insured on this (4) Any failure to make such inspec- Coverage Part is an insured, but only tions, adjustments, tests or servic- with respect to liability for "bodily in- ing as vendors agree to perform or jury" or "property damage" that: normally undertake to perform in that the regular course of business, in a. Is caused by an "occurrence" takes place after you have signed connection with the distribution or sale of "your products"; Page 4 of 6 0 2012 The Travelers Indemnity Company. All rights reserved. CG D4 17 01 12 (5) Demonstration, installation, ser- rent or past partnership or joint venture vicing or repair operations, ex- that is not shown as a Named Insured in cept such operations performed the Declarations. This paragraph does not at such vendor's premises in apply to any such partnership or joint connection with the sale of venture that otherwise qualifies as an in- "your products"; or sured under Section II - Who Is An In- (61 "Your products" which, after dis- sured. tribution or sale by you, have 0. MEDICAL PAYMENTS - INCREASED LIMITS been labeled or relabeled or The following replaces Paragraph 7. of gradienntt of anyyother thinnggor in- used a container, part SECTION III - LIMITS OF INSURANCE: substance by or on behalf of 7. Subject to 5. above, the Medical Ex- such vendor. pense Limit is the most we will pay Coverage under this provision does not under Coverage C for alt medical ex- apply to: penses because of "bodily injury"s Anyorganization from sus- tained by any one person, and will be person or the higher of: whom you have acquired "your products", or any ingredient, part or (a) $10,000; or container entering into, accompany- (b) The amount shown on the Declara- ing or containing such products; or tions of this Coverage Part for b. Any vendor for which coverage as Medical Expense Limit. an additional insured specifically is P. CONTRACTUAL LIABILITY - RAILROADS scheduled by endorsement. M. WHO IS AN INSURED - UNNAMED 1. The following replaces Paragraph C. of SUBSIDIARIES the definition of "insured contract" in the DEFINITIONS Section: The following is added to SECTION II - C. Any easement or license agree- WHO IS AN INSURED: ment; Any of your subsidiaries, other than a 2. Paragraph f.41) of the definition of "in- partnership or joint venture, that is not sured contract" in the DEFINITIONS Sec- shown as a Named Insured in the Dec- tion is deleted. larations is a Named Insured if: a. You maintain an ownership interest O. KNOWLEDGE AND NOTICE OF OCCURRENCE OR of more than 50% in such subsidi- OFFENSE ary on the first day of the policy The following is added to Paragraph 2., period; and Duties In The Event of Occurrence, Offense, b. Such subsidiary is not an insured Claim or Suit, of SECTION IV - COMMERCIAL under similar other insurance. GENERAL LIABILITY CONDITIONS: No such subsidiary is an insured for a The following provisions apply to "bodily injury" or "property damage" Paragraph a above, but only for the that occurred, or "personal injury" or purposes of the insurance provided "advertising injury" caused by an of- under this Coverage Part to you or fense committed: any insured listed in Paragraph 1. or 2. a Before you maintained an ownership of Section II - Who Is An Insured: interest of more than 50% in such (1) Notice to us of such "occurrence" subsidiary; or or offense must be given as soon as practicable only after the "oc- b. After the date, if any, during the currence" or offense is known to policy period that you no longer you (if you are an individual), any maintain an ownership interest of of your partners or members who more than 50% in such subsidiary. is an individual (if you are a part- N. WHO IS AN INSURED - LIABILITY FOR nership or joint venture), any of CONDUCT OF UNNAMED PARTNERSHIPS OR your managers who is an individual JOINT VENTURES (if you are a limited liability com- pany), any of your trustees who is The following replaces the last para- an individual (if you are a trust), graph of SECTION II - WHO IS AN any of your "executive officers" or INSURED: directors (if you are an organiza- tionerson or organization is an insured other than a partnership, joint No P 9 venture, limited liability company with respect to the conduct of any cur- or trust) or any "employee" author- CG Dd 17 01 12 b 2012 The Travelers Indemnity Company. All rights reserved. Page 5 of 6 ized by you to give notice of an However, if this policy includes an en- "occurrence" or offense. dorsement that provides limited cover- age(2) If you are a partnership, joint for "bodily injury" or "property venture, limited liabilitydamage" or pollution costs arising out company p y of a discharge, release or escape of or trust, and none of your part- "pollutants" which contains a require- ners, joint venture members, ment that the discharge, release or es- managers or trustees are indi- cape of "pollutants" must be reported viduals, notice to us of such to us within a specific number of "occurrence" or offense must be days after its abrupt commencement, given as soon as practicable this Paragraph e. does not affect that only after the "occurrence" or requirement. offense is known by: (a) Any individual who is: R. UNINTENTIONAL OMISSION The following is added to Paragraph 6., Of A partner or member of Representations, of SECTION IV - any partnership or joint COMMERCIAL GENERAL LIABILITY CONDITIONS: venture; A manager of any limited The unintentional omission of, or uninten- (ii) liabilit tional error in, any information provided Y company;p y; by you which we relied upon in issuing (iii) A trustee of any trust; or this policy will not prejudice your rights under this insurance. However, this pro- (Iv) An executive officer or vision does not affect our right to collect director of any other or- additional premium or to exercise our ganization; rights of cancellation or nonrenewal in that Is your partner, joint accordance with applicable insurance laws venture member, manager or or regulations. trustee; or S. BLANKET WAIVER OF SUBROGATION (b) Any "employee" authorized The following is added to Paragraph 8., by such partnership, joint Transfer Of Rights Of Recovery Against Oth- venture, limited liability corn- ers To Us, of SECTION IV - COMMERCIAL pany, trust or other organize- GENERAL LIABILITY CONDITIONS: tion to give notice of an "occurrence" or offense. If the insured has agreed in a contract or agreement to waive that insured's right of (3) Notice to us of such "occur- recovery against any person or organiza- rence" or offense will be tion, we waive our right of recovery deemed to be given as soon as against such person or organization, but practicable if it is given in good only for payments we make because of: faith as soon as practicable to your workers' compensation in- a "Bodily injury" or "property damage" surer. This applies only if you caused by an "occurrence" that takes subsequently give notice to us place; or of the "occurrence" or offense b. •Personal injury" or "advertising In- as soon as practicable after any of the persons described in jury" caused by an offense that is Paragraphs e. (1) or (2) above committed; discovers that the "occurrence" subsequent to the execution of the con- or offense may result in sums tract or agreement. to which the insurance provided under this Coverage Part may apply. Page 6 of 6 e 2012 The Travelers Indemnity Company. All rights reserved. CG D4 17 01 12 COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. OTHER INSURANCE - ADDITIONAL INSUREDS - PRIMARY AND NON-CONTRIBUTORY WITH 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, named insured, and we will not share with Primary insurance, of SECTION IV — that other insurance, provided that: COMMERCIAL GENERAL LIABILITY CONDITIONS: (1) The "bodily injury" or "property damage" However, if you specifically agree in a writ- for which coverage is sought is caused ten contract or agreement that the insurance by an "occurrence" that takes place; and afforded to an additional insured under this (2) The "personal injury" or "advertising in- Coverage Part must apply on a primary ba- jury" for which coverage is sought arises sis, or a primary and non-contributory basis, out of an offense that is committed; this insurance is primary to other insurance that is available to such additional insured subsequent to the signing and execution of which covers such additional insured as a that contract or agreement by you. CG D4 25 07 08 e 2008 The Travelers Companies, Inc. Page 1 of 1