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22-234.00 Coeur D'Alene Tribe of Indians: Telecommunications FranchiseCITY OF SPOKANE VALLEY SPOKANE COUNTY, WASHINGTON ORDINANCE NO.22-025 AN ORDINANCE OF THE CITY OF SPOKANE VALLEY, SPOKANE COUNTY, WASHINGTON, GRANTING A NON-EXLUSIVE FRANCHISE TO THE COEUR WALENE TRIBE OF INDIANS 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 fianchises 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. "Community and Public Works Director" shall mean the Spokane Valley Community and Public Works Director or his/her designee. "construction" or "construct" shall mean constructing, digging, excavating, laying, testing, operating, extending, upgrading, renewing, removing, replacing, and repairing a facility. Ordinance 22-025, Coeur d'Alene Tribe Franchise Page 1 of 16 "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" (sometimes referred to as Ordinance) shall mean the legal document issued by the City which grants rights to Grantee to construct and operate its telecommunication facilities as set forth herein. "franchise area" shall mean the entire geographic area within the City as it is now constituted or may in the future be constituted. "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. "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. "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 sheet, 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. Ordinance 22-025, Coeur d'Alene Tribe Franchise Page 2 of 16 Section 2. Grant of Franchise. The City of Spokane Valley, a Washington municipal corporation (hereinafter the "City"), hereby grants unto the Coeur d'Alene Tribe of Indians (hereinafter "Grantee"), a franchise for a period of 10 years, beginning on the effective date of this Ordinance, to install, construct, operate, 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(f ). 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 (2 pair) along the route identified in Exhibit A as adopted or amended, within the boundaries of the City, for sole and exclusive municipal use or designation (the "City Reserved Fibers"). 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 shall have 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. 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 enter into Grantee's standard "Fiber License Agreement" which shall govern the terms and conditions for use of the City Reserved Fibers. 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. 3. If Grantee installs additional fiber capacity, the City's right to use four dark fiber strands as set forth in subsections A and B, immediately above, shall again be in effect. D. The City shall pay all costs associated with constructing any connection to the City Reserved Fibers. The City Reserved Fibers shall have a term that matches the duration of this Franchise Ordinance ("Reserved Fiber Term"). Ordinance 22-025, Coeur d'Alene Tribe Franchise Page 3 of 16 E. Consistent with RCW 35.99.070, at such time when Grantee is constructing, relocating, or placing ducts or conduits in public rights -of -way, the Community and 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 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 Community and 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. 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 the 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 Community and 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 the Grantee, shall have preference as to the positioning and location of such utilities so installed with respect to the 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 Ordinance 22-025, Coeur d'Alene Tribe Franchise Page 4 of 16 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, the Grantee shall wholly and at its own expense make such provisions necessary to eliminate the interference or damage to the satisfaction of the Community and Public Works Director. 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. The 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 the Grantee's sole cost and expense. Section 11. Emergency Response. The 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 the health and safety of the public. In the event the 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 the Grantee shall be responsible to reimburse the City for its costs and any expenses. Section 12. One -Call System. Pursuant to chapter 19.122 RCW, 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. Safely. 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 Ordinance 22-025, Coeur d'Alene Tribe Franchise Page 5 of 16 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. 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, the 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 right-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 Ordinance 22-025, Coeur d'Alene Tribe Franchise Page 6 of 16 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 fianchise 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: 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 specification, Grantee shall complete relocation of its telecommunications facilities at no charge or expense to the City in order 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 Ordinance 22-025, Coeur d'Alene Tribe Franchise Page 7 of 16 all claims, injuries, damages, losses or suits including attorneys' 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. A. Underground facilities: Grantee shall remove any facilities which have not been used to provide telecommunications services for a period of at least 90 days 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. B. Aboveground facilities: Grantee shall remove any facilities which have not been used to provide telecommunications services for a period of at least 90 days. C. 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 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. The Grantee shall also provide an electronic format 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 addition to subsection A of this section, the City may request that Grantee provide the information described in subsection A of this section as needed for specific projects to avoid harm to Grantee's facilities. To the extent such requests are limited to specific telecommunications facilities at a given location within the franchise area 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 Ordinance 22-025, Coeur d'Alene Tribe Franchise Page 8 of 16 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. D. In addition to the requirements of subsection A 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 the 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, the 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. 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 Community and 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. Ordinance 22-025, Coeur d'Alene Tribe Franchise Page 9 of 16 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 for in section 37. 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 the 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 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 A 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. Ordinance 22-025, Coeur d'Alene Tribe Franchise Page 10 of 16 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 attorneys' fees, the reasonable costs of the City, and reasonable attorneys' fees 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 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. Applicant'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 Ordinance 22-025, Coeur d'Alene Tribe Franchise Page 11 of 16 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 a named as an insured under the Applicant'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 $2,000,000 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/cornpleted 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: 1. The 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 the Grantee's insurance and shall not contribute with it. 2. The 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 ANN. 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. 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, in the amount of $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 Ordinance 22-025, Coeur d'Alene Tribe Franchise Page 12 of 16 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 fianchise without approval of, but upon notice to the City to, 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, the Grantee must 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, 8, 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. 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. Ordinance 22-025, Coeur d'Alene Tribe Franchise Page 13 of 16 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 10210 East Sprague Spokane Valley, WA 99206 Grantee: Coeur d'Alene Tribe of Indians Attn: IT Director 850 A Street Plummer, ID 83851 Phone: (208) 659-4578 Facsimile: (208) 686-5059 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. PASSED by the City Council this 131h day of December, 2022 AT F `+tot= r f Pam Haley, Mayor Christine Bainbridge, City Cle if��. Ordinance 22-025, Coeur d'Alene Tribe Franchise Page 14 of 16 Approved as to Form: Office of the Cio Atto ey Date of Publication: Effective Date: Ordinance 22-025, Coeur d'Alene Tribe Franchise Page 15 of 16 Accepted b`yj� Coeur d'Alene Tribe of Indians: By:�C The Grantee, Coeur d'Alene Tribe of Indians, for itself, and for its successors and assigns, does accept all of the terms and conditions of the foregoing franchise. 1N JLTNESS WHEREOF, C' % i r r Y A [ Ie, Vj has signed this Co day of j , 2622. Subscribed and sworn before me this 25't� day of.344 n c,✓ , 2023 20z3 otary PublielliAnd for the State of 1r_�6111, ��`••`,`,� �����a'%,,� residing in o .• My commission expires 0 2 Lf . s 64 Ordinance 22-025, Coeur d'Alene Tribe Franchise Page 16 of 16 COEUDAL-11 KPHILLIPS1 ACORO CERTIFICATE OF LIABILITY INSURANCE DATE(MM/DD/YYYY) 9/28/2023 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 have ADDITIONAL INSURED provisions or 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 Alliant Insurance Services, Inc. 818 W Riverside Ave Ste 800 Spokane, WA 99201 NAMEACT Debbie Johnston, CRM, CPCU, CIWCS, CPIW, ARM, AMIM, AINS PHONE FAX A/cNo, Ext): (208) 770-3844 (AIC, No):(509) 325-1803 (,CON n oRIE s: debbie.johnston@aliiant.com INSURERS AFFORDING COVERAGE NAIC # INSURERA:Hudson Insurance Company 25054 INSURED INSURER B : INSURER C : Coeur d'Alene Tribe P O Box 408 850 A Street INSURER D: Plummer, ID 83851-0408 INSURER E: INSURER F : r•n�i�ow��c t-MDTICir ATG nlllnn RI=R• REVISION NUMBER: —v 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 NUMBER POLICY EFF POLICY EXP LIMITS A X COMMERCIAL GENERAL LIABILITY EACH OCCURRENCE $ 10,000,000 CLAIMS -MADE � OCCUR X NACL0088310 10/1/2023 10/1/2024 DAMAGEPREM S(ED DAMAGE Ea occurrence 105,000 $ MED EXP An one person)$ ,000 PERSONAL & ADV INJURY $ 10,0000,000 GEN'L X AGGREGATE LIMIT APPLIES PER: POLICY D PRO ❑ JECT LOC GENERAL AGGREGATE $ 12,000,000 PRODUCTS-COMP/OPAGG $ 10,000,000 OTHER: A AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT Ea accident 10,000,000 $ BODILY INJURY Per person)$ X ANY AUTO NACL0088310 10/1/2023 10/1/2024 BODILY INJURY Per accident $ OWNED SCHEDULED AUTOS ONLY AUTOS HIRED NON -OWNED AUTOS ONLY AUTOS ONLY PROPERTY DAMAGE Per accident $ $ UMBRELLA LIAR OCCUR EACH OCCURRENCE $ AGGREGATE $ EXCESS LIAB CLAIMS -MADE DED RETENTION $ $ WORKERS COMPENSATION EMPLOYERS' LIABILITY YIN ANY PROPRIETOR/PARTNER/EXECUTIVE STAT TE ER PTA E.L. EACH ACCIDENT $ E.L. DISEASE -EA EMPLOYE $ OFFICER/MEMBER EXCLUDED? ❑ (Mandatory In NH) N / A E.L. DISEASE -POLICY LIMIT $ If yes, describe under DESCRIPTION OF OPERATIONS below DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached If more space is required) Certificate holder is Additional Insured with respect to the General Liability per forms attached. City of Spokane Valley 10210 E Sprague Ave Spokane Valley, WA 99206 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE ACORD 25 (2016/03) U 1988-2015 AGURU GUKNUKA I IUIV. All rlgnrs reserves. The ACORD name and logo are registered marks of ACORD CONDITIONS APPLICABLE TO COVERAGE PARTS I AND II The conditions listed herein are applicable to Coverage Parts I and II unless specifically stated otherwise. A. NOTICE OF "OCCURRENCE": As respects Coverage Part I, whenever the "Assured" has information from which the "Assured" may reasonably conclude that an "occurrence" has taken place that caused "bodily injury", "injury", "property damage" or "personal injury", notice shall be given to the "Service Organization" as soon as practicable. "Hudson" shall not be prejudiced if the "Assured", through clerical oversight or clerical error, fails to notify the Service Organization of any "occurrence" provided that such clerical oversight or clerical error is rectified immediately upon discovery of same. B. SALVAGE AND RECOVERY CLAUSE: All salvages, recoveries and payments recovered or received subsequent to a loss settlement under this policy shall be applied as if recovered or received prior to the said settlement and all necessary adjustments shall be made by the parties hereto. C. CLAIMS MADE AND REPORTED: As respects Coverage Part II - Claims Made Coverages, in order for coverage to apply under any Insuring Agreement, the following conditions must be met: (i) the "wrongful act" or "wrongful employment practice" must take place or have been committed on or after the retroactive date and prior to the end of the "policy period"; (ii) the "claim" is first made against the "Assured" during the "policy period" or during any applicable Extended Reporting Period; and has been reported to the "Assured's" Risk Manager or other officer of the "Assured; and (iii) the "claim" is reported in writing to "Hudson" or the "Services Organization" during the "policy period" or within 60 days following the end of the "policy period" or during any applicable Extended Reporting Period. Two or more "claims" for, arising out of, in consequence of, in connection with or in any way involving or resulting from a single "wrongful act" or "wrongful employment practice" or series of related "wrongful acts" or "wrongful employment practices" shall be deemed to have been first made at the time the first such "claim" was made. A series of related "wrongful acts" or "wrongful employment practices" are those that arise out of, are based on, relate to or are in consequence of the same facts, circumstances or situations. If an "Assured" becomes aware of circumstances which could give rise to a "claim" and gives written notice of such circumstance(s) to "Hudson" during the "policy period", then any "claim" subsequently arising from such circumstances shall be considered to have been made during the "policy period" in which the circumstances were first reported to "Hudson" . D. EXTENDED REPORTING PERIOD: As respects Coverage Part II, in the event of non -renewal or termination of this policy, this policy shall extend to apply to "claims" made against the "Assured" during the twelve (12) calendar months following immediately upon such expiration or termination date, but only for "wrongful acts" or "wrongful employment practices", committed or alleged to have been committed between the "retroactive date" and the expiration or termination date of this policy. In the event of termination or non -renewal of this policy, the twelve (12) month period granted to the "Assured" within which to report "claims", shall not be deemed to increase any of the applicable limits of insurance (or any remaining limits of insurance) that apply to the coverage provided by this policy. E. INSPECTIONS, AUDIT AND VERIFICATION OF VALUES: "Hudson" or its duly authorized representatives shall be permitted at all reasonable times during continuance of this policy to inspect the premises used by the "Assured" and to examine the "Assured's" books or records so far as they relate to coverage afforded by this policy at any time 22 SN 7/2016 during the "policy period" and up to the final resolution of all claims under this policy or three years after the end of the "policy period", whichever is later. F. CANCELLATION/NON-RENEWAL: In the event of non-payment of premium by the "Assured," "Hudson" will give ten (10) days' notice of cancellation, in writing, sent certified mail to the "Assured" and all coverage afforded by this policy will terminate ten (10) days after the mailing of such notice. Notwithstanding the aforementioned, "Hudson" may elect to cancel this policy at any time upon ninety (90) days' written notice to the "Named Assured", otherwise this policy automatically expires at the end of the "policy period". G. If this policy is by canceled by "Hudson," for any reason other than non-payment of premium, Hudson will refund premium on a pro-rata basis. If the "Assured" cancels the policy, the refund will be on a short rate basis.,CURRENCY: The premium, "losses" and/or "expenses" under this policy are payable in United States currency, H. BANKRUPTCY AND INSOLVENCY: In the event of the bankruptcy or insolvency of the "Named Assured" or any entity comprising the "Named Assured", "Hudson" shall not be relieved of the payment of any claims hereunder because of such bankruptcy or insolvency. The Bankruptcy or insolvency of the "Assured", or any refusal or inability of the "Assured" to satisfy its obligation pursuant to this Policy will not reduce the "retained limit" as set forth on the Declarations nor will it require "Hudson" to pay any amounts within the "retained limit". I. OTHER INSURANCE: If the "Assured" has other insurance, from an insurer other than "Hudson" or any other company within the Hudson Insurance Group, which provides coverage against "loss" and "expense" that is also covered by this policy, "Hudson" shall be liable, under the terms of this policy, only in excess of that coverage provided by such other insurance and no monies payable or collectible from such other insurance shall accrue to the "retained limit". If the "Assured" has other insurance from "Hudson" or any other company within the Hudson Insurance Group which provides coverage against "loss" and "expense" that is also covered by this policy, "Hudson" shall be liable only under the terms of this policy. This provision does not apply to coverage which is specifically written as excess over coverage provided by this policy. J. ADDITIONAL ASSURED CLAUSE: The interest of any additional "Assured" with respect to liability covered hereunder is included as if a separate Insuring Agreement were attached hereto to the extent of their interest as of the date of loss subject to the limits of insurance set forth in this policy. K. LOSS PAYMENTS: When it has been determined by the "Service Organization" that "Hudson" is liable under this policy, "Hudson" shall thereafter promptly make payment(s) up to the applicable limit of insurance, as stated in Item 4. of the Declarations. The "Assured" will be responsible for reimbursement of the "retained limit" upon request from the "Service Organization". All adjusted claims shall be paid or made good to the "Assured" within thirty (30) days after the presentation to and acceptance by "Hudson" of satisfactory proof of interest and loss. L. APPEALS: In the event the "Assured" and "Hudson" are unable to agree as to the advisability of appealing a judgment, they may, as an alternative to arbitration (Condition S. -- Arbitration), appoint a disinterested attorney, mutually agreeable to "Hudson" and the "Assured", who shall be retained and directed to render a written opinion as to his recommendation concerning such appeal. Such written recommendation shall be binding on both the "Assured" and "Hudson". Fees of such retained attorney shall be borne equally by both parties for the services of rendering his recommendation only. The "Assured's" portion of such fee shall not apply towards the "retained limit". 23 SN 7/2016 M. LITIGATION PROCEEDINGS: No suit to recover under this policy shall be brought until ninety (90) days after the proof of loss shall have been furnished, nor at all unless commenced within twelve (12) months from the date upon which the "claim" is denied by "Hudson". N. SUBROGATION: "Hudson" shall be subrogated to all rights which the "Assured" may have against any person or other entity in respect to any "claim" or payment made under this policy and the "Assured" shall do everything necessary to secure these rights and do nothing to impair them. The "Assured" shall execute any papers required by "Hudson" and shall cooperate with "Hudson" to secure "Hudson's" rights. In the event of any reimbursement obtained or recovery made by the "Assured" or "Hudson" on account of any liability, "loss" and/or "expense" covered by this policy, the net amount of such reimbursement or recovery, after deducting the actual cost of obtaining or making the same, shall be applied in the following order: To the amount of "loss" and "expense" which exceeds the applicable limit of insurance of this policy; To reduce "Hudson's" liability, "loss" and "expense" until "Hudson" is fully reimbursed; and To reduce the "Assured's" liability, "loss" and "expense". 0. WAIVER OF SUBROGATION: This policy shall not be invalidated if the "Assured", by written agreement, has waived or shall waive its right of recovery from any party for "loss" and/or "expense" covered hereunder; provided that any such waiver is made prior to the happening of the "occurrence" giving rise to such "loss" and/or "expense". P. ASSIGNMENT: Assignment of interest under this policy by the "Assured" shall not bind "Hudson" unless and until "Hudson's" consent is endorsed hereon. Q. CHANGES: By acceptance of this policy, the "Assured" agrees that it embodies all agreements existing between the "Assured" and "Hudson" or any of their agents relating to this policy. None of the provisions, conditions or other terms of this policy shall be waived or altered except by endorsement; nor shall notice to any agent or knowledge possessed by any agent or by any other person be held to effect a waiver or change in any part of this policy. R. FRAUDULENT CLAIMS: If the "Assured" shall make any "claim" knowing the same to be false or fraudulent, as regards amount or otherwise, this policy shall become void and all "claims" hereunder shall be forfeited. S. ARBITRATION: All disputes which may arise between "Hudson" and the "Assured" out of or in relation to this policy (including disputes as to its validity, construction or enforceability), or for its breach, shall be finally settled by arbitration based, insofar as possible, upon the rules and procedures of the American Arbitration Association, by which "Hudson" and the "Assured" agree to be bound. In addition to the rules governing such arbitration, the parties shall have at their disposal the broadest pre-trial discovery rights as are then available under the laws and judicial rules of the jurisdiction in which the arbitration is to be held, provided that any dispute between the parties relating to discovery shall be submitted to the arbitration panel for resolution. Unless the parties consent in writing to a lesser number, the arbitration panel shall consist of three (3) arbitrators, the first to be appointed by "Hudson", the second to be appointed by the "Assured" and the third by the two (2) arbitrators so appointed. The arbitration proceedings shall take place in New York, NY, provided that the arbitration panel may, for the convenience of the parties and without changing the status of the arbitration proceeding, take evidence outside New York, NY. The award of the arbitration panel may be, alternatively or cumulatively, for monetary damages, an order requiring the performance of the obligations under this policy, or any other appropriate order or remedy. The award shall assign 24 SN 7/2016