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Ordinance 18-027 Level 3 Telecom Franchise CITY OF SPOKANE VALLEY SPOKANE COUNTY,WASHINGTON ORDINANCE NO. 18-027 AN ORDINANCE OF THE CITY OF SPOKANE VALLEY,SPOKANE COUNTY, WASHINGTON, GRANTING A NON-EXCLUSIVE FRANCHISE TO LEVEL 3 TELECOM OF WASHINGTON, LLC,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. "hazardous substances" shall have the same meaning as RCW 70.105D.020(10). Ordinance 18-027-Level 3 Telecom of Washington, LLC Page 1 of 13 "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. "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, fiber optics, 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 the "City"), hereby grants unto Level 3 Telecom of Washington, LLC formerly known as tw telecom of washington llc, formerly known as Time Warner Telecom of Washington LLC, as established in Ordinance No. 06-016 (hereinafter "Grantee"), a franchise for a period of 10 years, beginning on the effective date of this Ordinance, to install, construct, operate, maintain, replace, upgrade 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 Ordinance 18-027-Level 3 Telecom of Washington, LLC Page 2 of 13 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,subject to RCW 35.21.860,would apply to any subsequent franchise, if any, between the parties. Section 4. City Use. The following provisions shall apply regarding City use. A) City may request that Grantee provide one or more strands (two pair) of dark fiber for City to use solely for City government administration purposes. Upon receipt of such request, City and Grantee shall meet as soon as practicable to determine whether Grantee has dark fiber available in the locations requested by City, and if Grantee has dark fiber available, City and Grantee will engage in good faith discussions to develop mutually agreeable terms for acquisition of such dark fiber. B) 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 City Manager may require Grantee to provide the City with additional duct or conduit and related structures, at incremental cost(such costs to include the material costs,as well as changes in the costs of labor,materials,and engineering attributable solely to the City's request), 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 and City agrees further: 1) The City shall not require that the additional duct or conduit space be connected to the access structures and/or 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 City Manager at least 14 days prior to opening a trench in the public right-of-way to allow the City to exercise its options as provided herein and if City does not agree within such time to inclusion of ducts or conduits pursuant to this section, its right to same shall be waived. Section 5. Recovery of Costs. Grantee shall reimburse the City for all costs of one publication ofthis 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 lawful 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. Subject at all times to applicable federal and state law, including chapter 35.99 RCW, 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, including 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, Ordinance 18-027-Level 3 Telecom of Washington, LLC Page 3 of 13 maintenance, and improvement of all new rights-of-way, streets, avenues, thoroughfares and other public properties of every type and description. The costs for any and all such removal or replacement of the telecommunications facilities shall generally be without cost to the City, except to the extent required by federal or state law, including RCW 35.99.060. City shall give Grantee sufficient advance written notice, commensurate to the complexity of the project but in no event less than 60 days, of a request to remove, adjust or relocate its facilities from the public rights-of-way. Should Grantee fail to remove, adjust or relocate its telecommunications facilities by the date established by written notice from the City to Grantee, the City may cause and/or effect such removal, adjustment or relocation, and the actual, documented expense thereof shall be paid by Grantee. This shall not apply to delay caused by the City, its contractors, or third parties. 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 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 reasonable satisfaction of the City. Section S. 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 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, Grantee shall afford the City an opportunity to permit other franchisees and utilities to share such excavated trenches, provided that: (I) 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 shall 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. Ordinance 18-027 -Level 3 Telecom of Washington, LLC Page 4 of 13 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 actual, documented costs and 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. 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. Such or similar disclosure in this franchise shall occur subject to any and all applicable privacy laws, including 47 U.S.C. § 222. 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 pursuant to this section, 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 actual,documented 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, Ordinance 18-027-Level 3 Telecom of Washington, LLC Page 5 of 13 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, excepting any claim, cost, or expenses of any kind arising out of the release caused by the City or its employees, agents, contractors, or subcontractors. 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: (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; and (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 except as otherwise set forth in RCW 35.99. 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 Ordinance 18-027-Level 3 Telecom of Washington,LLC Page 6 of 13 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 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 wholly outside of Grantee's control, including those caused by the City or its contractor. 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 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 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 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,subscribers, and service lines to individual subscribers. (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. (D) Public Record Act. Grantee acknowledges that information submitted to the City may be subject to inspection and copying by the public pursuant to chapter 42.56 RCW. Grantee shall Ordinance ]8-027 -Level 3 Telecom of Washington,LLC Page 7 of 13 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 record request to inspect or copy documentation which Grantee has provided to the City and marked as "PROPRIETARY/CONFIDENTIAL" prior to allowing any inspection and/or copying as well as provide 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. In the event the City disagrees with Grantee's basis for non-disclosure, the City agrees to withhold release of the requested documentation in dispute for a reasonable amount of time to allow Grantee an opportunity to file a legal action precluding disclosure by the City pursuant to chapter 42.56 RCW. 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. Section 23. Reservation of Rights by City. Subject to RCW 35.99.040,the City reserves the right to refuse any request for a permit to extend telecommunications facilities so long as such refusal does not conflict with this franchise. Any such refusal shall be supported by a written statement from the City 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, appropriate and lawful 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 Spokane Valley Municipal Code and this franchise,the Spokane Valley Municipal 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 the acts or omissions of Grantee under this franchise agreement; except for injuries and damages caused by the negligence of the City. This includes but is not limited to injury: Ordinance 18-027-Level 3 Telecom of Washington, LLC Page 8 of 13 (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)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; (4) 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 (5) 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. (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 Ordinance 18-027-Level 3 Telecom of Washington, LLC Page 9 of 13 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 negligence, 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, subcontractors 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 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 insurable contractual;products/completed operations;broad form property;explosion,collapse and underground (XCU); and Employer's Liability,which can be a separate policy, The insurance policies are to contain, or be endorsed to contain, the following provisions for Commercial General Liability insurance: Ordinance 18-027-Level 3 Telecom of Washington,LLC Page 10 of 13 (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 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, 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 materially 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, not to be less than 30 days, 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 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. Ordinance 18-027-LeveI 3 Telecom of Washington, LLC Page 11 of 13 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. 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 10210 East Sprague Avenue Spokane Valley,WA 99206 Grantee: Level 3 Telecom of Washington, LLC ROW/NIS 1025 Eldorado Blvd. Broomfield, CO 80021 With a copy to: Level 3 Telecom of Washington,LLC 1025 Eldorado Blvd. Broomfield, CO 80021 Attention: General counsel 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 Ordinance 18-027 -Level 3 Telecom of Washington, LLC Page 12 of 13 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,or its affiliate,Level 3 Communications,LLC 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 j j 'L day of 4) ki 4 ,20 iy9'. 1 1 L.R. Higgins, ATT4S 1 I Al -iwv�T /2 ristine Bainbridge, City Clerk Ap�rved / ',{ Office; he City orney v \ Date of Publication: / -,?6 -,7U/ Effective Date: / - 3d -7 if J Accepted Level 3 Tele om of Washington, LLC: By: G'x at/ i-?- � /2'j4in a5 6,-- Name and p icial capaci The Grantee, Level 3 Telecom of Washington, LLC, for itself, and for its successors and assigns, does accept all of the terms and conditions of the foregoing franchise. IN WITNESS WHEREOF, ,%4A k t has signed this FS41"- day of Tcirioa.,�41 2019. Subscribed and sworn before me this fr'1-da of .Jo..w..+0.!'-) ,2019. J i ear_.. TINA BETH SHOEMAKER Notary Public in and for the State of C tora..c1-© NOTARY PUBLIC residing in 'B rtlow+,0e.0 STATE OF COLORADO My commission expires ,]rsn.a. VI , ,pia. NOTARY ID 20144024290 MY COMMISSION EXPIRES JUNE 18,2022 Ordinance 18-027 - Level 3 Telecom of Washington, LLC Page 13 of 13 ACC C0R12, CERTIFICATE OF LIABILITY INSURANCE D01/05/201r9OQlvYYY) 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 palicy(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 CONTACT Marsh USA Inc. NAME: PHONE FAX CA License#0437153 (NC,No,Eat): (A/C,No): 1301 5th Avenue,Suite 1900 E-MAIL Seattle,WA 98101-2682 ADDRESS: Attn:Seattle.certrequest@marsh.com 1 Fax:212-948-4326 INSURERfS)AFFORDING COVERAGE NAIC# CN102197661-STND-ALL-18-19 kbh cont none INSURER A:Greenwich Insurance Company 22322 INSURED 37885 CenturyLink,inc.and ail subsidiaries, INSURER a r XL Specialty Insurance Co. including but not limited to:Owest Communications International Inc.;Embarq Corporation; INSURER c:Allianz Underwriters Ins Co 36420 Level 3 Parent,LLC and Level 3 Communications,LLC INSURER D: 100 CenturyLink Drive;Mailstop 5TS154 Monroe,LA 71203 INSURER E: _ r INSURER F: COVERAGES CERTIFICATE NUMBER: SEA-003476556-40 REVISION NUMBER: 16 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 AQQL SUER POLICY NUMBER POLICY EFF POLICY EXP LIMITS LTR INSR WVQ IMMrD01YYYYI IMMIDDIYYYY) A X COMMERCIAL GENERAL LIABILITY RGD500033306 09/01/2018 0910112419 EACH OCCURRENCE $ 3,000,000 DAMAGE TO Ftrara3 CLAIMS-MADE X OCCUR PREMISES(Ea occurrence} $ 500,000 X CONTRACTUAL LIABILITY MED EXP(Any one person) $ 10,000 PERSONAL&ADV INJURY $ 3,000,040 GEN'L AGGREGATE LIMIT APPLIES PER: _GENERAL AGGREGATE $ 15,000,000 X POLICY I 1 PRO-JECT I LOC PRODUCTS-COMP/OP AGG $ 15,000,000 OTHER: $ A AUTOMOBILE LIABILITY RAD500033406 09/01/2018 09/01/2019 COMBINED SINGLE LIMIT $ 2,000,000 (Ea accident}__ X ANY AUTO Auto Physical Damage-Self Insured BODILY INJURY(Per person) $ x OWNED SCHEDULED BODILY INJURY(Per accident) $ AUTOS ONLY AUTOS x HIRED x NON-OWNED PROPERTY DAMAGE $ AUTOS ONLY AUTOS ONLY (Per accident) C X UMBRELLA LIAB X OCCUR ART3016558 09/01/2018 09/0112019 EACH OCCURRENCE $ 10,000,000 EXCESS LIAB CLAIMS-MADE AGGREGATE $ 10,000,000 DED RETENTION$ , $ 8 WORKERS COMPENSATION RWD500032906 AOS 09/01/2018 09/01/2019 x PER OTH- AND EMPLOYERS'LIABILITY STATUTE ER B ANYPROPRIETORIPARTNER/EXECUTIVE Y 1 N RWR500033006 WI 09101/2018 09101l2019 EL.EACH ACCIDENT $ 1,000,000 B OFFICER/MEMBER EXCLUDED? N N IA RWE500033106-WA 0910112018 49141I2019 (Mandatory in NH) E.L.DISEASE_-EA EMPLOYEE $ 1,000,040 B If yes,describe under RWE500033206-OH 09101/2018 09101/2019 1,000,000 DESCRIPTION OF OPERATIONS below ET_DISEASE-POLICY LIMIT $ C Technology E&O incl. ART3016558 09/01/2018 09/01/2019 Each ClaimlAggregate 10,000,000 CyberlPrivacy Liability Retention 5,000,000 DESCRIPTION OF OPERATIONS 1 LOCATIONS!VEHICLES (ACORD 101,Additional Remarks Schedule,may he attached If more space Is required) XCU/Contractual Liability:This policy insures all operations,premises and activilies of the Named Insured,including operations by independent contractors,conlraclual liability,and XCU Hazards. CERTIFICATE HOLDER CANCELLATION _ CITY OF SPOKANE VALLEY SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE 10210 E SPRAGUE AVE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN SPOKANE VALLEY,WA 99206 ACCORDANCE WITH THE POLICY PROVISIONS. AUTHORIZED REPRESENTATIVE of Marsh USA Inc, Cheryl)L. Koch , sey ,gyp , ©1988-2016 ACORD CORPORATION. All rights reserved. ACORD 25(2016/03) The ACORD name and logo are registered marks of ACORD AGENCY CUSTOMER ID: CN102197661 LOC#: Seattle ACORL ADDITIONAL REMARKS SCHEDULE Page 2 of 2 AGENCY NAMED INSURED Marsh USA Inc. Centuryl ink,Inc.and all subsidiaries, including but not limited to:Qwesl Communications International Inc.;Embarq Corporation; POLICY NUMBER Level 3 Parent,LLC and Level 3 Communications,LLC 100 CenturyUnk Drive;Mailslop 5TS154 Monroe,LA 71203 CARRIER NAIC CODE EFFECTIVE DATE: ADDITIONAL REMARKS THIS ADDITIONAL REMARKS FORM IS A SCHEDULE TO ACORD FORM, FORM NUMBER: 25 FORM TITLE: Certificate of Liability Insurance — ---GENERAL LIABILITY---- Automatic Additional Insured's Primary Coverage Additional Insured as respects your interest in the operations of the Named Insured as required by contract or agreement. Coverage provided by the above General Liability policy shall be primary and is limited to liability arising out of Named Insured's ownership and/or operations.Any insurance carried by the additional insured shall not be contributory insurance.Waiverof Transfer of Rights of Recovery Against Others to Us(Waiver of Subrogation)-Any person or organization with wham you have entered into a contract or agreement,but only to the extent required by such contract or agreement.Separation of Insureds Applies.Insurance covers incidents that occur within 50'of railroad property,any railroad exclusions have been deleted per endorsement CG2417. ---------- AUTOMOBILE LIABILITY----------------- Additional Insured as respects your interest in the operations of the Named Insured as required by written contract.Any coverage provided hereunder shall be excess over any other valid and collectible insurance available to the additional insured whether such insurance is primary,excess,contingent or on any other basis unless the contract specifically requires that this policy be primary. Lessor-Additional Insured and Loss Payee-All Lessors Waiver of Transfer of Rights of Recovery Against Others to Us(Waiver of Subrogation)-Any person or organization with whom you have entered into a contract or agreement,but only to the extent required by such contract or agreement.Separation of Insureds Applies. ---WORKERS'COMPENSATION AND EMPLOYERS LIABILITY AND EXCESS WORKERS'COMPENSATION AND EMPLOYERS LIABILITY(OH&WA-SELF-INSURED- $1,000,000 RETENTION) -- Waiver of Our Right to Recover from Others(Waiver of Subrogation)-Any person or organization with whom you have entered into a contract or agreement,but only to the extent required by such contract or agreement. EXCESS/UMBRELLA----------- Coverage applies per occurrence.Additional Insured as respects your interest in the operations of the Named Insured as required by contract or agreement.Waiver of Transfer of Rights of Recovery Against Others to Us(Waiver of Subrogation)-Any person or organization with whom you have entered into a contract or agreement,but only to the extent required by such contract or agreement Separation of Insureds Applies. ------------ COMMERCIAL CRIME-FIDELITY BOND----------- Carrier:ACE American Insurance Company Policy Number:DONG23680075 005 Effective Dates:03/01/201 B-0 310112 0 1 9 Each Occurrence:$10,000,000 ---U.S.PROPERTY-------- Carrier:Allianz Underwriters Insurance Company Policy Number:ART 301655E Effective Dates:03/15/201B-03/15/2019 Limit:$25,000,000 Deductible:$25,000,000 Property Coverage:'All Risk"of Direct Physical Loss or Damage to All Real and Personal Property,including Boiler&Machinery,Earthquake,Flood and Wind-Replacement Cost Basis,and Business Interruption-Actual Loss Sustained. Loss Payee or mortgagee as required by written contract/loan agreement to the the extent of your Insurable interest Waiver of Subrogation-Any person or organization wham you have entered Into a contract or agreement,but only to the extent required by such contract or agreement.Other deductibles may apply as per policy terms and conditions. ACORD 101 (2008101) ©2008 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD ENDORSEMENT 025 This endorsement, effective 12:01 a.m., 09-01-2018, forms a part of Policy No. RGD5000333-06 by Greenwich Insurance Company issued to CenturyLink, Inc. ADDITIONAL INSURED OWNER, MANAGER OR LESSOR SCHEDULED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s) Location(s) Of Covered Operations Any person or organization that is a premises Various. owner, manager or lessor, where you require access to such premises due to a written contract or agreement with lessee, but only with respect to liability arising out of the ownership, maintenance or use of that premises. Information required to complete this Schedule, if not shown above, will be shown in the Declarations. A. Section II — Who Is An Insured is amended to 3. With respect to the insurance afforded to the include as an additional insured the person(s) or owner of a leased premises, this insurance does not organization(s) shown in the Schedule, but only apply to any "occurrence" or offense which takes with respect to liability for "bodily injury", "property place after the lease expires; damage" or "personal and advertising injury" caused, in whole or in part, by: 4. The owner's status as an additional insured under 1. Your acts or omissions; or this endorsement ends when your operations for the lessee are completed; and 2. The acts or omissions of those acting on your behalf; 5. The "occurrence" or offense must occur in the performance of your ongoing operations for subsequent to the execution of the contract or the additional insured(s) or for the lessee at the agreement. location(s) designated above. However: 1. The insurance afforded to such additional insured only applies to the extent permitted by law; 2. The insurance afforded to such additional insured for property access will not be broader than that which you are required by the contract or agreement with the lessee; MANUS ©2018 X.L.America,Inc. All Rights Reserved. Page 1 of 2 May not be copied without permission. B. With respect to the insurance afforded to these additional insureds, the following is added to Section III Limits Of Insurance: The most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement with the lessee or 2. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. All other terms and conditions remain unchanged. (Authorized Representative) MANUS ©2018 X.L.America,lnc.All RightsReserved. page 2 of 2 May not be copied without permission. BOND NO. K15773236 Franchise Bond KNOW ALL BY THESE PRESENTS THAT Level 3 Telecom of Washington, LLC as Principal, and Westchester Fire Insurance Company, an Illinois corporation with executive offices at 9025 N. Lindbergh Drive, Peoria, IL 61615 as Surety, are held and firmly bound unto City of Spokane Valley, WA, as Obligee, in the sum of Twenty Five Thousand and 00/100 Dollars ($25,000.00) for the payment which sum, well and truly to be made, we bind ourselves, our heirs, executors, administrators, successors and assigns, jointly and severally, firmly by these presents, the liability of the Surety being limited to said penal sum regardless of the number of years this bond remains in force or is renewed, or of the number of premiums that shall be payable or paid, the number of customers to the system and/or legal fees which may be required and incurred. WHEREAS, the above bound Principal has entered into a written agreement with the Obligee which grants a Franchise to the Principal. Principal has agreed to faithfully perform and observe and fulfill all terms and conditions of said Franchise agreement referred to above and said agreement is hereby made a part of this bond with like force and effect as if herein set forth in length. NOW, THEREFORE, the condition of this obligation is such, that if the above bound Principal shall faithfully perform, well and truly observe and fulfill the terms and conditions of the franchise, then this obligation shall be void, otherwise to remain in full force and effect unless cancelled or terminated. PROVIDED, HOWEVER, it shall be a condition precedent to any right of recovery hereunder, that in the event of any default on the part of the Principal, a written statement of the particular facts showing the date and nature of such default shall be immediately delivered to the Surety by certified mail at 436 Walnut Street, Philadelphia, PA 19106. AND PROVIDED FURTHER that no action, suit or proceeding shall be had or maintained against the Surety on this instrument unless same be brought or instituted and process served upon the Surety within twelve months after the act of breach or cancellation of this bond or termination of said franchise, whichever occurs first. The bond may be terminated or cancelled by Surety giving of thirty (30) days prior notice in writing to Principal and said Obligee, such notice to be given by certified mail. Such termination or cancellation shall not affect any liability incurred or accrued under this bond prior to the effective date of such termination or cancellation. IN WITNESS WHEREOF, the said Principal and Surety have signed and sealed this instrument this 4th day of January, 2019 . Level 3 Te 'o1om of Washington, LLC BY ./.46/.. l ( 1 Westchester Fire Insurance Company BY Stacy Killebrew, Attorney-in-Fact CHUBB Power of Attorney Westchester Fire Insurance Company I ACE American Insurance Company Know All by These Presents, that WESTCHESTER FIRE INSURANCE COMPANY and ACE AMERICAN INSURANCE COMPANY corporations of the Commonwealth of Pennsylvania,do each hereby constitute and appoint Kathleen K.Freund and Stacy Killebrew of Denver,Colorado each as their true and lawful Attorney-in-Fact to execute under such designation in their names and to affix their corporate seals to and deliver for and on their behalf as surety thereon or otherwise,bonds and undertakings and other writings obligatory in the nature thereof(other than bail bonds)given or executed in the course of business,and any instruments amending or altering the same,and consents to the modification or alteration of any instrument referred to in said bonds or obligations. In Witness Whereof,WESTCHESTER FIRE INSURANCE COMPANY and ACE AMERICAN INSURANCE COMPANY have each executed and attested these presents and affixed their corporate seals on this 25d'day of September,2018. C OL9-151'--.T. P_ 92A.Re 746S—tV1--4114.. II;tv,n NI.t;hIt was,Assistant Sceretaty Stephen M.ikincy,Vice President °4 7r no. M16gesr ;" �. d Win% +9 �$royy vn iP ��q�� fti... Ya STATE OF NEWJERSEY County of1unterdon ss On this 25'"day of September,2018,before me,a Notary Public of New Jersey,personally came Dawn M.Chloros,to me known to be Assistant Secretary of WESTCHESTER FIRE INSURANCE COMPANY and ACE AMERICAN INSURANCE COMPANY, the companies which executed the foregoing Power of Attorney.and the said Dawn M.Chloros,being by me duly sworn,did depose and say that she Is Assistant Secretary of WESTCHESTER FIRE INSURANCE COMPANY and ACE AMERICAN INSURANCE COMPANY and knows the corporate seals thereof,that the seals affixed to the foregoing Power of Attorney are such corporate seals and were thereto affixed by authority of said Companies;and that she signed said Power of Attorney as Assistant Secretary of said Companies by like authority;and that she is acquainted with Stephen M.Haney,and knows him to be Vice President of said Companies;and that the signature of Stephen M.Haney,subscribed to said Power of Attorney is in the genuine handwriting of Stephen M.Haney,and was thereto subscribed by authority of said Companies and In deponent's presence. Notarial Seal '. „r KATHERINEJ.ADELAAR /•tY 6TA1)y.`�r NOTARYPUELIOOF NEW JERSEY ) No.2319885 t pUBLII- commission Fxpaes July 46,2019 Notary Puhlle CERI'INICATION Resolutions adopted by the guards of Directors of WESTCHESTER FIRE INSURANCE COMPANY on December II,2006;ACE AMERICAN INSURANCE COMPANY on March 20, 2009: "RESOLVED,that the following authorizations relate to the execution,for and on behalf of the Company,of bonds,undertakings,recognizances,contracts and other written commitments of the Company entered into in the ordinary course of business(each a"Written Commitment"): (I) Each of the Chairman,the President and the Vice Presidents of the Company is hereby authorized to execute any Written Commitment for and on behalf of the Company,under the seal of the Company or otherwise. (2) Each duly appointed attorney-in-fact of the Company Is hereby authorized to execute any Written Commitment for and on behalf of the Company,under the seal of the Company or otherwise,to the extent that such action is authorized by the grant of powers provided for in such person's written appointment as such attorney-in-fact. (3) Each of the Chairman,the President and the Vice Presidents of the Company is hereby authorized,for and on behalf of the Company,to appoint in writing any person the attorney- in-fact of the Company with full power and authority to execute,for and on behalf of the Company,under the seal of the Company or otherwise,such Written Commitments oldie Company as may be specified in such written appointment,which specification may be by general type or class of Written Commitments or by specification of one or more particular Written Corntnitments. (4) Each of the Chairman,the President and the Vice Presidents of the Company is hereby authorized,for and on behalf of the Company,to delegate in writing to any other officer nfthe Company the authority to execute,for and on behalf of the Company,tinder the Company's seal or otherwise, such Written Commitments of the Company as are specified in such Written delegation,which specification may be by general type or class of Written Commitments or by specification of one or more particular Written Commitments. (5) The signature of any officer or other person executing any Written Commitment or appointment or delegation pursuant to this Resolution,and the seal of the Company,may be affixed by facsimile on such Written Commitment or written appointment or delegation. FURTIIER RESOLVED, that the foregoing Resolution shall not he deemed to be an exclusive statement of the powers and authority of officets,employees and other persons to act for and on behalf of the Company,and such Resolution shall not limit or otherwise affect theexercise of any such power or authority otherwise validly granted or vested.' I,Dawn M.Chloros,Assistant Secretary of WESTCHESTER FIRE INSURANCE COMPANY and ACE AMERICAN INSURANCE COMPANY(the"Companies")do hereby certify that (i) the foregoing Resolutions adopted by the Board of Directors(tithe Companies are true,correct and in full force and effect, (ii) the foregoing Power of Attorney is true,correct and in full force and effect. Given under my hand and seals of said Companies at Whitehouse Station,NJ,this till—eiaxl e{ 9An i�t.i"11trl, �p lq• o�° it qi•N�, J:" fit,e'r \m Ru DA A' } •—114'. Dam N1.Chlor'irs,ASsfstztnt Secrcl;ir IN TOE EVENT YOU W ISI1'TO VERIFY TI1E AUTHENTICITY OE'rl tl5 BOND OR NOTIFY US OF ANY oTl lER MATTER,PLEASE CONTACT US AT: Telephone(908)903-3493 Fax(908)903.3656 e•mait:surety@chubb.com WFIC-MCC(rev.08.18)