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HomeMy Public PortalAboutC-20-057 - American Dark Fiber, LLC License Agreement, Shared Duct and Installation of Fiber CableAGREEMENT FOR LICENSE OF SHARED DUCT AND INSTALLATION OF FIBER CABLE BETWEEN CITY OF CARSON AND AMERICAN DARK FIBER, LLC THIS AGREEMENT FOR LICENSE OF SgARED DUCT AND INSTALLATION OF FIBER CABLE ("Agreement") dated as of �,� 1-7 f , , 2020 ("Effective Date"), is made by and between the City of Carson, a municipal corporation (_'Licensor" or "City"), and American Dark Fiber, LLC, v a Delaware limited liability company ("Licensee"). Licensor and Licensee are sometimes hereinafter C� individually referred to as "Party" and collectively referred to as the "Parties." RECITALS WHEREAS, in June of 2019, Licensee, a telecommunications services provider, was selected and awarded a contract by the South Bay Cities Council of Governments ("SBCCOG") to undertake the planning, permitting, construction, and servicing of the South Bay Fiber Network project, to build, own, and operate a high-speed fiber network for South Bay municipal facilities, with future opportunities to connect area anchor institutions, businesses, and potentially residents as well; and WHEREAS, as part of the completed Carson Street Master Plan Project, Licensor installed approximately two (2) miles of underground conduit on East Carson Street stretching from approximately 0.2 mile west of the 405 Freeway to Figueroa Street (excepting the Gap Intersection, as defined below), and approximately 1,595 feet of underground conduit on Community Center Road from the intersection at East Carson Street stretching in a northwesterly direction which underground conduit is inclusive of the building - serving lateral conduits at City Hall and the Community Center (together, "Existing City Conduit"), as depicted in Exhibit "A," attached hereto and incorporated herein by this reference. The Existing City Conduit is situated underground within public rights of way and other real property owned by Licensor identified by Assessor's Parcel Numbers 7337-006-922 and 7337-006-922 (the "Land") which Licensor is authorized to license out; and WHEREAS, when Licensor installed the Existing City Conduit, Licensor was unable to install the conduit for an approximately 100 foot portion of the conduit at the East Carson Street and Main Street intersection ("Gap Intersection"), as depicted in Exhibit `B," attached hereto and incorporated herein by this reference, due to the complexities involved as well as funding constraints, and as a result, there currently exists a gap in the Existing City Conduit at the Gap Intersection; and WHEREAS, Licensee has agreed to install the missing conduit at the Gap Intersection in accordance with the City's Public Works Standards at its sole expense upon receipt of additional funding from SBCCOG so that there will thereafter no longer be a break in the Existing City Conduit along East Carson Street; and WHEREAS, the Existing City Conduit is approximately three (3) inches in diameter; and WHEREAS, Licensee is interested in licensing from Licensor, and Licensor is interested in licensing to Licensee, a one-half (1/2) inch diameter portion ("Licensed Area") of the Existing City Conduit and the Gap Intersection (together, "City Conduit") once the conduit is installed in the Gap Intersection for the purpose of installing fiber optics cables within the Licensed Area, as part of its efforts to create a fiber communication ring throughout the South Bay. Licensee anticipates deployment of a one-half inch diameter single -mode fiber cable with nylon pull rope or an acceptable space -preserving inner -duct; and 01007.0001/652653.1 WHEREAS, while the Parties intend for Licensee to license the entirety of the Licensed Area as of the Effective Date, Licensee will take immediate possession only of the portion of the Licensed Area depicted by solid lines in Exhibit "C" attached hereto and incorporated herein by this reference ("Phase I Area"), and will take possession of the remainder of the Licensed Area depicted by dotted lines ("Phase 2 Area") as illustrated in Exhibit "C" only after installing the missing conduit at the Gap Intersection; and WHEREAS, whenever Licensee takes possession of any portion of the Licensed Area, Licensee shall also install a second fiber cable for the City's exclusive use, which will be a minimum of a 48 count cable located outside the Licensed Area but within the City Conduit, as illustrated by a depiction of a cross- section of the City Conduit, attached hereto and incorporated herein by this reference as Exhibit "D." For clarification, once Licensee takes possession of the Phase I Area, Licensee shall extend the minimum 48 count cable within the City Conduit and just outside the Phase 1 Area and when eventually Licensee takes possession of the Phase 2 Area, Licensee shall extend the 48 count cable within the City Conduit and just outside the Phase 2 Area. Additionally, upon Licensee taking possession of the Phase I Area, Licensee shall also extend a minimum of a 48 count cable for Licensor between City Hall and the Community Center (where there is no Existing City fiber). Licensee shall complete all extension work at its sole expense for Licensor's use as it deems appropriate. THEREFORE, in consideration of the covenants and agreements contained herein, and incorporating the recitals and all exhibits hereto, the Parties, intending to be legally bound, agree as follows: 1. Grant of License. Licensor hereby licenses to Licensee the Licensed Area for Licensee's proposed use described in Section 2. Licensee will take immediate possession of the Phase I Area, and will take possession of the Phase 2 Area only after installing the missing conduit at the Gap Intersection. 2. Permitted Uses. The Licensed Area may be used by Licensee for the purpose of installing fiber optics cables ("Licensee's Facilities") within the Licensed Area, as part of its efforts to create a fiber communication ring through the City and throughout the South Bay. Licensee anticipates it will complete its fiber communication installation contemplated under this Agreement before August, 2020. Further, Licensee may perform construction, maintenance, repairs, and replacement of Licensee's Facilities as necessary and appropriate for its ongoing business and has the right to do all work necessary to prepare, modify and maintain the Licensed Area to accommodate Licensee's Facilities and as required for Licensee's operations within the Licensed Area. All the activities shall be subject to the Licensor's prior approval to be given by Licensor in its regulatory capacity, and/or Licensor's permit process, which approval shall not be unreasonably conditioned, withheld or delayed. 3. Conditions Precedent: Prior Approvals. This Agreement is conditioned upon Licensee obtaining all governmental licenses, permits and approvals enabling Licensee to construct and operate Licensee's Facilities within the Licensed Area. Licensor agrees to cooperate with Licensee's reasonable requests for Licensor's signatures on permit applications, for allowing site inspections by governmental agencies required in connection with reviewing permit applications, and to cooperate in obtaining such necessary approvals, provided that such cooperation shall be at no expense to Licensor. 4. Term. The term of this Agreement shall be five (5) years ("Initial Term") commencing on the Effective Date, with ongoing automatic renewal terms of five (5) years each (each a "Renewal Term") unless Licensor or Licensee notifies the other in writing of its intention not to extend the Agreement at least thirty (30) days prior to the expiration of the Initial Term or any Renewal Term. The terms and conditions for each Renewal Term shall be pursuant to the same terms and conditions operable during the Initial Term, 01007.0001/652653.1 except that the rent shall be increased as set forth herein below. Notwithstanding anything else to the contrary, this Agreement shall expire when Licensee is no longer able to use Licensee's Facilities for their intended purpose (due to natural deterioration or otherwise). 5. Rent. (a) Payment. Licensee shall pay Licensor, as rent, the sum of 0.42 cents per linear foot of the Licensed Area licensed to Licensee; provided, however, that Licensee will only pay rent for the Licensed Area portions over which Licensee takes possession or is permitted to take possession under this Agreement. Therefore, Licensee will pay rent for the Phase I Area as of the Effective Date, and will pay rent for the Phase 2 Area only after it takes possession of that area once installation of the missing conduit at the Gap Intersection is completed. The annual rent for the Phase 1 Area shall be Six Hundred and Seventy Dollars per annum ($670.00), calculated at 0.42 cents per linear foot at 1,595 feet, which is an annual rent to be paid in advance starting on the Effective Date and on each anniversary thereafter. Once Licensee completes installation of the missing conduit at the Gap Intersection and Licensor indicates its acceptance of such installation, as determined by written notice thereof provided by Licensor, Licensee shall pay rent for Phase 2 Area in advance on an annual basis, commencing as of the date Licensee takes possession of the Phase 2 Area and continuing thereafter on each anniversary. The annual rent for the Phase 2 Area shall be Three Thousand Three Hundred and Twenty -Six Dollars per annum ($3,326.00), calculated at 0.42 cents per linear foot at 7,292 linear feet. Rent payments for any fractional year at the end of the Initial Term or Renewal Term shall be prorated. Rent shall be payable to the "City of Carson" mailed to the attention of the "City Treasurer" to the address indicated in Section 17 of this Agreement. (b) Escalation. On each anniversary of the date rent is first paid with respect to the Phase 1 Area and Phase 2 Area, the respective rent amounts shall be adjusted and calculated as follows: Licensee anticipates potential market rate adjustments that could increase its per foot use rate. Accordingly, the rent shall be the higher of either (i) the rent for the 12 -month period immediately preceding the period in which the escalator is to take effect plus two percent (2%) or (ii) the federally mandated access rates of the Incumbent Local Exchange Carrier ("ILEC") duct as published through publicly available ILEC tariff filings. 6. Installation of Second Fiber Cable for Exclusive City Use; Gap Intersection. Whenever Licensee takes possession of any portion of the Licensed Area, Licensee shall also concurrently install a second fiber cable for the City's exclusive use, which will be a minimum of a 48 count cable within the City Conduit, as illustrated by a depiction of a cross-section of the City Conduit and shown in Exhibit "D." For clarification, once Licensee takes possession of the Phase I Area, Licensee shall install the minimum 48 count cable adjacent to the Phase 1 Area within the City Conduit area and when eventually Licensee takes possession of the Phase 2 Area, Licensee shall extend the 48 count cable adjacent to the Phase 2 Area within the City Conduit area, as depicted in Exhibit "D." Additionally, concurrent with Licensee taking possession of the Phase I Area, Licensee shall extend a minimum of a 48 count cable for Licensor between City Hall and the Community Center (where there is no Existing City fiber) by creating a drop at City Hall that would then extend over to the Community Center creating a new and redundant fiber optics network that will benefit Licensor. Licensee shall complete all extension work at its sole expense for Licensor's use as it deems appropriate. Licensee shall also install the missing conduit at the Gap Intersection at its sole expense upon receipt of additional funding from SBCCOG so that there will thereafter no longer be a break in the City Conduit along East Carson Street. All fiber cable installed by Licensee for Licensor's benefit, including conduit installed at the Gap Intersection, is hereafter referred to as "City's Fiber Cable." The installed conduit at the Gap Intersection and City's Fiber Cable become Licensor's property after installation and Licensor accepts them pursuant to Section 7(g) of this Agreement. Licensee shall not be obligated to 01007.0001/652653.1 terminate, maintain, or operate City's Fiber Cable or any Licensor -owned conduit unless otherwise agreed to by the Parties using a separate written agreement. 7. Licensee's Tests and Construction. Maintenance and Repairs. (a) Tests and Construction. Licensee shall have the right at any time following the full execution of this Agreement and obtaining all permits and regulatory approvals to enter upon the Land for the purpose of making appropriate engineering and boundary surveys, inspections, and other reasonably necessary tests in connection with construction of Licensee's Facilities. During construction, Licensee shall be responsible for the overall condition of the City Conduit and shall be liable for all damage to it including for any direct and indirect damages. Licensee shall be liable for any and all damage to the Land, City Conduit or other conduits that may be later installed by Licensor, and City's Fiber Cable caused by any pre - construction or construction activities. Said liability provision shall survive the expiration or sooner termination of this Agreement. During construction and while performing maintenance or repairs, Licensee and its contractors shall follow all Licensor's construction requirements. Before the start of construction, Licensee and its contractors, if any, will submit to Licensor's Public Works Department a traffic control and work schedule plans and shall perform all work and activities in accordance with such plans. Upon the completion of construction Licensee shall submit to Licensor a complete set of as -built drawings in electronic format detailing the precise placement of Licensee's Facilities and conduit segments along with the exact locations of City's Fiber Cable. Licensee shall also file with the Southern California Underground Service Alert ("USA") the placement of all Licensee's Facilities and City's Fiber Cable so that all installed cables are monitored in a manner that meets industry -accepted standards. (b) Schedule and Notice. Licensee will notify Licensor and obtain prior approval of any proposed tests, measurements or construction work and will coordinate the scheduling of such activities with Licensor. Licensor shall submit to Licensor an accurate construction schedule for work, construction or pre -construction. In the event that Licensee seeks to deviate from said schedule, Licensee shall notify City at least forty-eight (48) hours in advance and coordinate activities with Licensor's staff if necessary. (c) Cost. All of Licensee's construction work in connection with installation of Licensee's Facilities and City's Fiber Cable shall be performed at Licensee's sole cost and expense. Licensee shall also reimburse Licensor for the reasonable cost associated with Licensor's required and conducted construction inspections; Licensee shall reimburse Licensor for all reasonable costs, including overtime wages, related to staff and similar resources expended by Licensor to facilitate Licensee's construction or pre -construction activities. (d) Planned Maintenance and Repairs. Licensee shall be responsible for the maintenance and repair of Licensee's Facilities and the Licensed Area in a neat and safe condition in compliance with all applicable codes and governmental regulations. Access to the City Conduit shall be granted to Licensee for the planned repair and planned maintenance of Licensee's Facilities. Licensee will notify City 72 hours in advance and must pull the necessary encroachment permits to work within City right- of-way. In the event that Licensee's Facilities fall into disrepair, Licensee shall repair or take other required actions within thirty (30) days of written notice from Licensor. Other than the repairs required herein, Licensee shall not be required to make any repairs except for damages to the Land, City Conduit or other conduits that may be later installed by Licensor, and City's Fiber Cable caused by Licensee, its employees, agents, contractors or subcontractors. Upon the expiration, cancellation or termination of this Agreement, Licensee shall surrender the Licensed Area in good condition, less ordinary wear and tear, and remove Licensee's Facilities pursuant to a duly issued encroachment permit issued by City unless Licensor otherwise agrees in writing. 01007.0001/652653.1 (e) Emergency Repairs and Restoration. Notwithstanding the notice requirement described in Section 7(d), Licensee shall be permitted to pursue remedies to repair and restore a system outage that impacts the functionality of any cable deployed within the City Conduit. Licensee shall provide best efforts to notify Licensor in advance of making the repairs necessitated by a system -impacting event along the conduit path utilized that require immediate resolution but if advanced notice is not practicable, then Licensee shall notify Licensor as soon as possible after addressing the emergency. Any necessary permits may be issued after the emergency has been addressed. Additionally, in the event repairs or restoration is needed to both Licensor and Licensee cables, Licensee shall repair Licensor's cables at the direction of Licensor's Contract Officer (as defined in Section 20), at Licensor's cost. (f) Relocation. Should local, State, Federal or private projects require the relocation of the City Conduit or Licensee's Facilities, Licensee shall be responsible for the relocation of Licensee's Facilities at no cost to Licensor. (g) Acceptance. Licensor may inspect and accept or reject any of Licensee's work under this Agreement, either during performance or when completed. Licensor shall reject or finally accept Licensee's work within forty-five (45) days after submitted to Licensor. Licensor shall accept work by a timely written acceptance, otherwise work shall be deemed to have been rejected. Licensor's acceptance shall be conclusive as to such work except with respect to latent defects, fraud and such gross mistakes as to amount to fraud. Acceptance of any work by Licensor shall not constitute a waiver of any of the provisions of this Agreement including, but not limited to, those pertaining to indemnification and insurance. 8. Interference with Communications. Licensee's Facilities and operations shall not interfere with the communications configurations, frequencies or operating equipment which exist on or within the Land, including the Licensed Area, on the Effective Date of this Agreement ("Pre -Existing Facilities"), and Licensee's Facilities and operations shall comply with all non-interference rules of the Federal Communications Commission ("FCC"). Upon written notice from Licensor of apparent interference by Licensee with Pre -Existing Facilities, Licensee shall have the responsibility to promptly terminate such interference or demonstrate to Licensor with competent information that the apparent interference in fact is not caused by Licensee's Facilities or operations. Licensor shall not, nor shall Licensor permit any other tenant or occupant of any portion of the Land, including the City Conduit, to engage in any activities or operations which interfere with the communications operations of Licensee described in Section 2, above. Upon written notice from Licensee of apparent interference by Licensor or its agents with Licensee's Facilities, Licensor shall have the responsibility to promptly notify the offending party and request termination of such interference or demonstrate to Licensee with competent information that the apparent interference in fact is not caused by Licensor's or its agents' facilities or operations. In the event any such interference does not cease promptly, the Parties acknowledge that continuing interference will cause irreparable injury, and therefore shall have the right to bring a court action to enjoin such interference or to terminate this Agreement upon notice. 9. Taxes. Licensee shall pay when due personal property taxes assessed against Licensee's Facilities and Licensed Area. 10. Default; Termination. This Agreement may be terminated without further liability on thirty (30) days prior written notice as follows: (i) by either Party upon a default of any covenant or term hereof by the other Party which default is not cured within sixty (60) days of receipt of written notice of default, provided that the grace period for any monetary default is ten (10) days from receipt of notice; or 01007.0001/652653.1 (ii) by Licensee if it does not obtain or maintain any license, permit or other approval necessary for the construction and operation of Licensee's Facilities; or (iii) at any time during the third (3) or fourth (41) Renewal Terms, Licensor may terminate this Agreement for any reason or no reason upon providing Licensee no less than twelve (12) months prior written notice. Examples of defaults include but are not limited to, Licensee's insolvency or bankruptcy, Licensee's failure to maintain Licensee's Facilities or cause USA to monitor Licensee's Facilities, Licensee's failure to properly construct Licensee's Facilities in accordance with plans submitted to Licensor and failure to adequately complete construction of Licensee's Facilities. Licensee must remove Licensee's Facilities from the Licensed Area within thirty (30) days of the expiration or earlier termination of this Agreement. Failing this, Licensor may remove and store Licensee's Facilities at Licensee's sole cost and expense. If Licensee does not claim Licensee's Facilities within thirty (30) days of the expiration or earlier termination of this Agreement, Licensee's Facilities will be deemed abandoned and Licensor can thereafter dispose of Licensee's Facilities as it sees fit at Licensee's sole cost and expense. Notwithstanding the foregoing, if a non -monetary default cannot be cured within a sixty (60) day period, the defaulting Party shall not be in default as long as it does each of the following: (i) Notifies the non -defaulting Party in writing with a reasonable explanation as to the reasons the asserted default is not curable within the sixty (60) day period, including for any force majeure event; (ii) Notifies the non -defaulting Party of the defaulting Party's proposed course of action to cure the default; (iii) Promptly commences to cure the default within the sixty (60) day period; (iv) Makes periodic reports to the non -defaulting Party as to the progress of the program of cure; and (v) Diligently prosecutes such cure to completion. 11. Condemnation. If a condemning authority takes all of Licensor's interest in the Land, or a portion which in Licensee's reasonable opinion is sufficient to render the Licensed Area unsuitable for Licensee's ongoing operation as contemplated in Section 2, then this Agreement shall terminate without further liability of Licensee as of the date when possession is delivered to the condemning authority. In any condemnation proceeding each Party shall be entitled to make a claim against the condemning authority for just compensation recoverable under applicable condemnation law. 12. Insurance. (a) Coverages. Licensee shall provide and maintain and agrees to require all contractors and subcontractors to provide and maintain the following insurance coverages at the expense of Licensee and its contractors and subcontractors for the term of this Agreement. 01007.0001/652653.1 Coverage General Liability Fire Legal Medical Expense Commercial Automobile Liability Combined Single Limit per Accident for bodily injury and property damage Workers Compensation Employer's Liability each accident/employee bodily injury by disease Professional Liability LIMITS Per Occurrence Aggregate $2,000,000 $5,000,000 $300,000 Minimum Limits $10,000 Minimum Limits $5,000,000 None $5,000,000 Statutory Limits $1,000,000 $1,000,000 $5,000,000 $5,000,000 (b) Additional Coverages; Certificates of Insurance and Endorsements. All of the above policies of insurance shall be primary insurance and shall name Licensor, its elected and appointed officers, employees and agents as additional insureds and any insurance maintained by Licensor or its officers, employees or agents may apply in excess of, and not contribute with Licensee's or its contractor's or subcontractor's insurance. The insurer is deemed hereof to waive all rights of subrogation and contribution it may have against Licensor, its officers, employees and agents and their respective insurers. The insurance policy must specify that where the primary insured does not satisfy the self-insured retention, any additional insured may satisfy the self-insured retention. All of said policies of insurance shall provide that said insurance may not be amended or cancelled by the insurer or any party hereto without providing thirty (30) days prior written notice by certified mail return receipt requested to Licensor. In the event any of said policies of insurance are cancelled, Licensee shall, prior to the cancellation date, submit new evidence of insurance in conformance with this Section 12 to Licensor. No work under this Agreement shall commence until Licensee has provided Licensor with Certificates of Insurance and original endorsements evidencing the above insurance coverages and said Certificates of Insurance and original endorsements have been approved by Licensor. The certificates and endorsements for each insurance policy are to be signed by a person authorized by that insurer to bind coverage on its behalf. Licensor reserves the right to inspect complete, certified copies of and endorsements to all required insurance policies at any time. Any failure to comply with the reporting or other provisions of the policies including breaches or warranties shall not affect coverage provided to Licensor. (c) Ratings. The insurance required by this Agreement shall be satisfactory only if issued by companies qualified to do business in California, rated "A" or better in the most recent edition of Best Rating Guide, The Key Rating Guide or in the Federal Register, and only if they are of a financial category Class VII or better, unless such requirements are waived by the Licensor's Risk Manager or other designee of Licensor due to unique circumstances. 13. Assignments. Transfers or Sublicenses. After written notice to Licensee, Licensor may assign or transfer this Agreement to any person or entity without any requirement for prior approval by Licensee, provided that such assignee or transferee agrees in writing to fulfill the duties and obligations of Licensor in this Agreement, including the obligation with respect to Licensee's rights to nondisturbance and quiet enjoyment of the Licensed Area during the Initial Term and any Renewal Term hereof. After 01007.0001/652653.1 written notice to Licensor, Licensee may assign or transfer this Agreement without prior approval by Licensor to any entity in which Licensee holds a majority ownership interest, or to a person or entity acquiring by purchase, merger or operation of law a majority of the value of the assets of Licensee. Licensee shall not assign, transfer or sublicense this Agreement or all or a portion of the Licensed Area or Licensee's Facilities to any other person or entity without the prior written approval of Licensor, which approval may be withheld for any or no reason in Licensor's unfettered discretion. Any assignment of this Agreement by Licensee shall require any assignee to expressly assume Licensee's obligations under this Agreement pursuant to an Assignment and Assumption Agreement, provide Licensor a proposed draft of the Assignment and Assumption Agreement in a form acceptable to the City Attorney and City Manager, and provide Licensor with evidence regarding the proposed assignee's qualifications and experience and its financial commitments and resources in sufficient detail to enable Licensor to evaluate the proposed assignee's ability to assume Licensee's obligations under this Agreement and operate a high-speed fiber network . Notwithstanding anything to the contrary contained in this Agreement, Licensee may assign, mortgage, pledge, hypothecate or otherwise transfer without consent its interest in this Agreement to any financing entity, or agent on behalf of any financing entity to whom Licensee (i) has obligations for borrowed money or in respect of guaranties thereof, (ii) has obligations evidenced by loans, bonds, debentures, notes or similar instruments, or (iii) has obligations under or with respect to letters of credit, bankers acceptances and similar facilities or in respect of guaranties thereof. 14. Nondisturbance and Ouiet Enioyment; Subordination; Estoppel Certificates. (a) Quiet Enioyment. So long as Licensee or Licensor is not in default under this Agreement, Licensee shall be entitled to quiet enjoyment of the Licensed Area during the Initial Term or any Renewal Term, and Licensee shall not be disturbed in its occupancy and use of the Licensed Area. (b) Subordination. This Agreement shall be subordinate to each and every deed of trust, mortgage or other security instrument which may now or hereafter affect the Land and to any renewals, extensions, supplements, amendments, modifications or replacements thereof. In confirmation of such subordination, Licensee shall execute and deliver promptly any certificate of subordination that Licensor may reasonably request, provided that such certificate acknowledges that this Agreement remains in full force and effect, recognizes Licensee's right to nondisturbance and quiet enjoyment of the Licensed Area so long as Licensee is not in default under this Agreement, only contains true and accurate statements and Licensee's liability shall be capped at the remaining rent under this Agreement. If any mortgagee or lender succeeds to Licensor's interest in the Land through a foreclosure proceeding or by a deed in lieu of foreclosure, Licensee shall attorn to and recognize such successor as Licensor under this Agreement. (c) Estoppel Certificates. At any time upon not less than ten (10) days' prior written notice by Licensor, Licensee shall execute, acknowledge and deliver to Licensor or any other party specified by Licensor a statement in writing certifying that this Agreement is in full force and effect, if true, and the status of any continuing defaults under this Agreement. 15. Indemnification. (a) Indemnity. Licensee hereby agrees to indemnify and hold Licensor and Licensor's officers, directors, partners, shareholders, employees, agents, contractors or subcontractors harmless from and against any and all losses, claims, liabilities, damages, costs and expenses (including reasonable attorney's fees and costs) and injuries (including personal injuries or death) arising from or in connection with Licensee's construction, use, operation, maintenance or repair of Licensee's Facilities within the Licensed Area or access over the Licensed Area, due diligence activities, pre -construction activities, except 01007.0001/652653.1 those resulting from the negligence or willful misconduct of Licensor or Licensor's officers, directors, partners, shareholders, employees, agents, contractors or subcontractors. (b) Survival. The indemnity provision of this section shall survive the termination, cancellation or expiration of this Agreement. (c) Limitation of Liability. In the event Licensor, its employees, agents, contractors or subcontractors, should damage Licensee's Facilities in the process of pulling cables, whether based on a theory or contract or tort, including negligence and strict liability, Licensor's liability shall be limited to Licensee's actual direct damages, not to exceed the amount of rent paid during the twelve (12) months preceding the date of damage. 16. Hazardous Materials. Licensee agrees that it will not use, generate, store or dispose of any Hazardous Material on, under, about or within the Licensed Area or within the real property in which the Licensed Area is located. Licensor represents, warrants and agrees (1) that neither Licensor nor, to Licensor's knowledge, any third party has used, generated, stored or disposed of, or permitted the use, generation, storage or disposal of, any Hazardous Material (defined below) on, under, about or within the Licensed Area, and (2) that Licensor will not, and will not permit any third party to use, generate, store or dispose of any Hazardous Material on, under, about or within the Licensed Area. Licensor and Licensee each agree to defend, indemnify and hold harmless the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and/or costs (including reasonable attorneys' fees and costs) arising from any breach of any representation, warranty or agreement contained in this paragraph. As used in this paragraph, "Hazardous Material" shall mean any petroleum, petroleum product, asbestos, or any substance known by the state in which the Licensed Area is located to cause cancer and/or reproductive toxicity, and/or any substance, chemical or waste that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law or regulation. 17. Notices and Deliveries. Any notice or demand required to be given herein shall be made by certified or registered mail, return receipt requested, or reliable overnight delivery service to the address of the respective Parties set forth below: Licensor: City of Carson 701 East Carson Carson, California 90745 Attn: Director of Public Works Telephone: (310) 952-1700 Licensee: American Dark Fiber, LLC 1110 Ohio Avenue, Suite #111 Los Angeles, CA 90025 Attn: David Daigle Telephone: (310) 312-1818 Email: ddaigle@americandarkfiber.com Licensor or Licensee may from time to time designate any other address for notices or deliveries by written notice to the other party. 18. Independent Contractor. Licensee, and all of Licensee's contractors and subcontractors, shall have no power or authority to incur any debt, obligation or liability on behalf of 01007.0001/652653.1 Licensor. It is expressly understood between the Parties that no employee/employer relationship is intended, and that Licensee is an independent contractor. 19. Possessory Interest Taxes. Pursuant to Section 107.6 of the Revenue and Taxation Code, Licensee is advised that the property interest vested in Licensee by virtue of this Agreement may be subject to payment of possessory interest taxes levied on such interest. 20. Contract Officer. The Contract Officer shall be the City's Director of Public Works or such other person as may be designated by the City Manager. It shall be Licensee's responsibility to assure that the Contract Officer is kept informed of all relevant issues and Licensee shall refer any decisions which must be made by Licensor to the Contract Officer. Unless otherwise specified herein, any approval of Licensor required hereunder shall mean the approval of the Contract Officer. The Contract Officer shall have authority, if specified in writing by the City Manager, to sign all documents on behalf of Licensor required hereunder to carry out the terms of this Agreement. 21. Miscellaneous. (a) Non -Discrimination and Equal Employment Opportunity. In the performance of this Agreement, Licensee shall not discriminate against any employee, subcontractor, or applicant for employment because of race, color, religion, ancestry, sex, national origin, physical or mental disability or age. Licensee will take affirmative action to ensure that contractors, subcontractors and applicants are employed, and that employees are treated during employment without regard to their race, color, religion, ancestry, sex, national origin, physical or mental disability or age. Affirmative action relating to employment shall include, but not be limited to the following: employment, upgrading, demotion or transfer; recruitment; layoff or termination; rates of pay or other forms of compensation; and selection for training including apprenticeship. The provisions detailed above shall be included in all solicitations or advertisements placed by or on behalf of Licensee for personnel to perform any services under this Agreement. Licensor shall have access to all documents, data and records of Licensee and its contractors and subcontractors for purposes of determining compliance with the equal employment opportunity and non-discrimination provisions of this Section. (b) Severability. If any provision of the Agreement is held to be invalid or unenforceable by a court of competent jurisdiction with respect to any Party, the remainder of this Agreement or the application of such provision to persons other than those as to whom it is held invalid or unenforceable shall not be affected, each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law, and the Parties shall negotiate in good faith to amend this Agreement to retain the economic effect of the invalid or unenforceable provisions. (c) Binding Effect. Each Party represents and warrants that said Party has full power and authority, and the person(s) executing this Agreement have full power and authority, to execute and deliver this Agreement, and that this Agreement constitutes a valid and binding obligation of each Party, enforceable in accordance with its terms, except as enforceability may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or other laws affecting the enforcement of creditor's rights generally and by general equitable principles (whether enforcement is sought in proceedings in equity or at law). This Agreement shall be binding on and inure to the benefit of the successors and permitted assignees of the respective Parties. (d) Waivers. No provision of this Agreement shall be deemed to have been waived by a Party unless the waiver is in writing and signed by the Party against whom enforcement of the waiver 01007.0001/652653.1 is attempted. No custom or practice which may develop between the Parties in the implementation or administration of the terms of this Agreement shall be construed to waive or lessen any right to insist upon strict performance of the terms of this Agreement. (e) Governing Law and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Legal actions concerning any dispute, claim or matter arising out of or in relation to this Agreement shall be instituted in the Superior Court of the County of Los Angeles, State of California. In the event of litigation in a U.S. District Court, venue shall lie exclusively in the Central District of California, in the County of Los Angeles, State of California. (f) Mediation, Litigation, Attorneys' Fees and Costs. Should any good faith dispute arise with respect to a default notice issued pursuant to Section 10 of this Agreement, either Party may initiate dispute resolution procedures by sending a notice of dispute ("Notice of Dispute") to the other Party within five (5) days of receipt of the default notice. Upon receipt of a timely Notice of Dispute, the cure period in the default notice is tolled to allow for the dispute resolution procedure in this section. The Parties will attempt to resolve the dispute promptly through good faith negotiations initially by the Parties' respective project managers. If the dispute has not been resolved within fifteen (15) days from the Notice of Dispute, either Party may escalate the dispute to executive officers of the Parties. If the dispute has not been resolved within thirty (30) days from the Notice of Dispute, then either Party may give written notice to commence mediation ("Notice of Mediation"). Within thirty (30) days of receiving a Notice of Mediation, the Parties will choose an independent mediator through Judicial Arbitration and Mediation Services ("JAMS"). Neither Party may unreasonably withhold consent to the selection of a mediator. If the Parties are unable to agree upon a mediator, either Party may request that JAMS select the mediator. Each Party will bear its own costs of mediation, but the Parties will share the cost of the mediator equally. Each Party will participate in the non-binding mediation in good faith and will be represented at the mediation by an executive with authority to settle the dispute. If a dispute remains unresolved for sixty (60) days after receipt of the Notice of Mediation, either Party may then submit the dispute to a court of competent jurisdiction in the State of California. In the event litigation occurs, the prevailing party in any legal action arising hereunder shall be entitled to its reasonable attorneys' fees and court costs. (g) Survival. Terms and conditions of this Agreement which by their sense and context survive the termination, cancellation or expiration of this Agreement will so survive. (h) Force Maieure. Neither Party shall be deemed to be in default where failure or delay in performance of any of its obligations under this Agreement is caused by earthquakes, other acts of God, fires, wars, terrorism, riots or similar hostilities, strikes, and other labor difficulties beyond the Party's control, government regulations, pandemics, court actions (such as restraining orders or injunctions), or other causes beyond the Party's reasonable control. (i) Entire Agreement; Amendments. This Agreement constitutes the entire agreement and understanding between the Parties regarding Licensee's license of the Licensed Area and supersedes all prior and contemporaneous offers, negotiations and other agreements concerning the subject matter contained herein. There are no representations or understandings of any kind not set forth herein. Any amendments to this Agreement must be in writing and executed by duly authorized representatives of both Parties. (j) No Presumptions Regarding Preparation of Agreement. The Parties acknowledge and agree that each of the Parties has been represented by counsel or has had full opportunity to consult with counsel and that each of the Parties has participated in the negotiation and drafting of this 01007.0001/652653.1 Agreement. Accordingly it is the intention and agreement of the Parties that the language, terms and conditions of this Agreement are not to be construed in any way against or in favor of any Party hereto by reason of the roles and responsibilities of the Parties or their counsel in connection with the preparation of this Agreement. [SIGNATURE PAGE FOLLOWS] 01007.0001/652653.1 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives on the dates set forth below and acknowledge that this Agreement is effective as of full execution. A Cleric: APPROVED AS TO FORM: ALESHIRE & WYNDER, LLP Sunny Y, Soltani, City Attorney InIJ CITY: CONSULTANT: AMERICAN DARK FIBER, LLC, a Delaware limited liabili com By: Title: 1 By: Name: Title: Two corporate officer signatures required schen Consultant is a corporation, with one signature required from each of the following groups: l) Chairman of the Board, President or any Vice President; and 3) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONSULTANT'S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT'S BUSINESS ENTITY. RRXIMA&T�M IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their duly authorized representatives on the dates set forth below and acknowledge that this Agreement is effective as of full execution. ATTEST: Donesia Gause-Aldana, City Clerk APPROVED AS TO FORM: ALESHIRE & WYNDER, LLP Sunny K. Soltani, City Attorney [rjl] CITY: CITY OF CARSON, a municipal corporation Albert Robles, Mayor CONSULTANT: AMERICAN DARK FIBER, LLC, a Delaware limited liability corn a By: /Q Title: Name: Title: Two corporate officer signatures required when Consultant is a corporation, with one signature required from each of the following groups: 1) Chairman of the Board, President or any Vice President; and 2) Secretary, any Assistant Secretary, Chief Financial Officer or any Assistant Treasurer. CONSULTANT'S SIGNATURES SHALL BE DULY NOTARIZED, AND APPROPRIATE ATTESTATIONS SHALL BE INCLUDED AS MAY BE REQUIRED BY THE BYLAWS, ARTICLES OF INCORPORATION, OR OTHER RULES OR REGULATIONS APPLICABLE TO CONSULTANT'S BUSINESS ENTITY. 01007.0001/652653.1 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document. STATE OF CALIFORNIA COUNTY OF LOS ANGELES On , 2020 before me, , personally appeared , proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL ❑ CORPORATE OFFICER 01007.0001/652653.1 DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT OTHER THAN NAMED ABOVE TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER SIGNER IS REPRESENTING: (NAME OF PERSON(S) OR ENTITY(IES)) 01007.0001/652653.1 DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT OTHER THAN NAMED ABOVE CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT A notary public or other officer completing this certificate verifies only the identity of the individual who signed the document to which this certificate is attached, and not the truthfulness, accuracy or validity of that document. STATE OF CALIFORNIA COUNTY OF LOS ANGELES On , 2020 before me, , personally appeared , proved to me on the basis of satisfactory evidence to be the person(s) whose names(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature: OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form CAPACITY CLAIMED BY SIGNER ❑ INDIVIDUAL ❑ CORPORATE OFFICER 01007.0001/652653.1 DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT [GNER(S) OTHER THAN NAMED ABOVE TITLE(S) ❑ PARTNER(S) ❑ LIMITED ❑ GENERAL ❑ ATTORNEY-IN-FACT ❑ TRUSTEE(S) ❑ GUARDIAN/CONSERVATOR ❑ OTHER SIGNER IS REPRESENTING: (NAME OF PERSON(S) OR ENTITY(IES)) 01007.0001/652653.1 DESCRIPTION OF ATTACHED DOCUMENT TITLE OR TYPE OF DOCUMENT NUMBER OF PAGES DATE OF DOCUMENT [GNER(S) OTHER THAN NAMED ABOVE 111111— --ME ME ME EXHIBIT "V' EXISTING CITY CONDUIT Hill ME Ila, I gilt fill till fill 1 -6 :1111111111111111111111 111111111111��INMIMENI N. 0zz WINoil011,11111,...... llltll =mn �..III...n ,MM00 011111111111111 ,0"s9WNIIIIm EXHIBIT "B" 'GAP" SECTION, DEPICTED INSIDE BOX BELOW, IS LOCATED KEY NOTES AT THE INTERSECTION OF MAIN ST d CARSON ST CD MALL NEW M0. i PI JAM WIN DUMM (JOE KUJW. SEE DLTNL CN SW Mi. ( MSULL WN (t) 3' CA. INC SOW WM 1/4' NMN PUL CIM 0 MT4LL NEW SPLICE *AT. aeurx Yrfr�e NlfMOM{ Q MAL SEW W WUQ SIM N 45 EWE, SEE MT& ON WE ESDI. SO #WALL NDP (3) 3' CA. PVC SOW WITH 1/4' NMN KILL CM V,," The boxed area depicts the "Gap" Section at the intersection of Main Street and Carson Street 01007.0001/652653.1 oNNPRT aAP x11W4NW�4eN 2 -O EXHIBIT "C" PHASE 1 AREA AND PHASE 2 AREA EXHIBIT "D" CROSS-SECTION OF EXISTING CITY CONDUIT CROSS-SECTION VIEW OF ADF AND CITY FIBER IN CARSON CONDUIT VIEWDONE TO SCALE (3- CONDUIT DIAMETER AND TWO 0.5" CABLES) iWTM MTAsl ............ 03" CARSON ClN CONWT O� 48CT 48CT FOC FOC �IGWfilCTMINM Gcm_� 11 4OF 0 4 Client#: 485251 AMERIDARKF ACORDT. CERTIFICATE OF LIABILITY INSURANCEDATE(MM/DD/YYYY) LTRR TYPE OF INSURANCE 6/19/2020 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 any rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT NAME: Gloria Bell Marsh & McLennan Agency LLC PHONE g58-768-4041 AX Marsh & McLennan Ins. Agency LLC A/C, No, Ext): A/C, No): pDDRIESS: gloria.bell@marshmma.com Box 85638 Sa San Diego, CA 92186 INSURER(S) AFFORDING COVERAGE NAIC # INSURER A: Massachusetts Bay Insurance Company 22306 PRODUCTS - COMP/OPAGG $4,000,000 INSURED American Dark Fiber, LLC INSURER B: Kinsale Insurance Company 38920 INSURER C: Old Republic General Insurance Corp 24139 11110 Ohio Avenue, Suite 111 X Los Angeles, CA 90025 INSURER D : 8/10/2019 08/101202C INSURER E: INSURER F: BODILY INJURY (Per accident) $ COVERAGES CERTIFICATE NUMBER: RFV! -ION NIIMRER• 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 CONTRACTOR 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. LTRR TYPE OF INSURANCE NSRL WVD POLICY NUMBER MM/DIDY MM/DD/YYYY LIMITS A X COMMERCIAL GENERAL LIABILITY CLAIMS -MADE FXIOCCUR X X OD3D66514301 8/10/2019 08/10/202 EACH��OEECCURRENCE $ 2 000,000 PREMISES(Eaoccurrrence $1,000,000 MED EXP (Any one person) $10,000 &ADV INJURY $2,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: POLICY JECOT LOC OTHER: -PERSONAL GENERAL AGGREGATE $4,000,000 PRODUCTS - COMP/OPAGG $4,000,000 $ A AUTOMOBILE X LIABILITY ANY AUTO OWNED SCHEDULED AUTOS ONLY AUTOS HIRED NON -OWNED AUTOS ONLY X AUTOS ONLY X OD3D6651430108/10/20191 8/10/2019 08/101202C COMBINED SINGLE LIMIT Ea accident $1,000,000 BODILY INJURY (Per person) $ BODILY INJURY (Per accident) $ PROPERTY DAMAGE Per accident $ B X UMBRELLA LIAB EXCESS LIAB X OCCUR CLAIMS -MADE X 01001003520 11/04/2019 07/15/202 EACH OCCURRENCE s5,000,000 AGGREGATE $5,000,000 DED RETENTION $ $ C WORKERS COMPENSATION AND EMPLOYERS' LIABILITY Y / N ANY PROPRIETOR/PARTNER/EXECUTIVEOOO OFFICER/MEMBER EXCLUDED? � (Mandatory in NH) If yes, describe under DESCRIPTION OF OPERATIONS below N/A X A1CW13931801 7/15/2019 07/15/202 X PER OTH- STATUTE IER E.L. EACH ACCIDENT $1 OOO E.L. DISEASE - EA EMPLOYEE $1,000,000 E.L. DISEASE- POLICY LIMIT $1,000,000 DESCRIPTION OF OPERATIONS / LOCATIONS / VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more space is required) City of Carson is included as additional insured per the attached. Coverage is primary and non contributory. Waiver of subrogation applies. lel li��lrl7�\�y• City of Carson Attn: Director of Public Works 701 East Carson Carson, CA 90745 ACORD 25 (2016/03) 1 of 1 #S4891689/M4806198 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 ©1988-2015 ACORD CORPORATION. All rights reserved. The ACORD name and logo are registered marks of ACORD WSJZH INSURED: American Dark Fiber, LLC POLICY#: OD3D66514301 POLICY PERIOD: 08/10/2019 TO: 08/10/2020 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. BUSINESSOWNERS LIABILITY SPECIAL BROADENING ENDORSEMENT This endorsement modifies insurance provided under the following: BUSINESSOWNERS COVERAGE FORM SUMMARY OF COVERAGES Limits Page 1. Additional Insured by Contract, Agreement or Permit Included 1 2. Additional Insured - Broad Form Vendors Included 2 3. Alienated Premises Included 3 4. Broad Form Property Damage - Borrowed Equipment, Customers Goods and Use of Elevators Included 3 5. Incidental Malpractice (Employed Nurses, EMT's and Paramedics) Included 3 6. Personal and Advertising Injury - Broad Form Included 4 7• Included 4 Product Recall Expense Each Occurrence Limit $25,000 Occurrence 5 Product Recall Expense Aggregate Limit $50,000 Aggregate 5 Product Recall Deductible $500 5 8. Unintentional Failure to Disclose Hazards Included 6 9. Unintentional Failure to Notify Included 6 This endorsement amends coverages provided under the Businessowners Coverage Form through new coverages and broader coverage grants. This coverage is subject to the provisions applicable to the Businessowners Coverage Form, except as provided below. The following changes are made to SECTION II - LIABILITY: 1. Additional Insured by Contract, Agreement or Permit The following is added to SECTION II - LIABILITY, C. Who Is An Insured: Additional Insured by Contract, Agreement or Permit a. Any person or organization with whom you agreed in a written contract, written agreement or permit to add such person or organization as an additional insured on your policy is an additional insured only with respect to liability for "bodily injury", "property damage", or "personal and advertising injury" caused, in whole or in part, by your acts or omissions, or the acts or omissions of those acting on your behalf, but only with respect to: (1) "Your work" for the additional insured(s) designated in the contract, agreement or perm it; (2) Premises you own, rent, lease or occupy; or (3) Your maintenance, operation or use of equipment leased to you. b. The insurance afforded to such additional insured described above: (1) Only applies to the extent permitted by law; and (2) Will not be broader than the insurance which you are required by the contract, agreement or permit to provide for such additional insured. (3) Applies on a primary basis if that is required by the written contract, written agreement or permit. (4) Will not be broader than coverage provided to any other insured. (5) Does not apply if the "bodily injury", "property damage" or "personal and advertising injury'is otherwise excluded from coverage under this Coverage Part, including any endorsements thereto. 391-1006 08 16 Includes copyrighted materials of Insurance Services Offices, Inc., with its permission. Page 1 of 6 c. This provision does not apply: (1) Unless the written contract or written agreement was executed or permit was issued prior to the "bodily injury", "property damage", or "personal injury and advertising injury". (2) To any person or organization included as an insured by another endorsement issued by us and made part of this Coverage Part. (3) To any lessor of equipment: (a) After the equipment lease expires; or (b) If the "bodily injury", "property 2. damage", "personal and advertising injury" arises out of sole negligence of the lessor. (4) To any: (a) Owners or other interests from whom land has been leased if the "occurrence" takes place or the offense is committed after the lease for the land expires; or (b) Managers or lessors of premises if: (i) The "occurrence" takes place or the offense is committed after you cease to be a tenant in that premises; or (ii) The "bodily injury", "property damage", "personal injury" or "advertising injury" arises out of structural alterations, new construction or demolition operations performed by or on behalf of the manager or lessor. (5) To "bodily injury", "property damage" or "personal and advertising injury" arising out of the rendering of or the failure to render any professional services. This exclusion applies even if the claims against any insured allege negligence or other wrongdoing in the supervision, hiring, employment, training or monitoring of others by that insured, if the "occurrence" which caused the "bodily injury" or "property damage" or the offense which caused the "personal and advertising injury" involved the rendering of or failure to render any professional services by or for you. d. With respect to the insurance afforded to these additional insureds, the following is added to SECTION II - LIABILITY, D. Liability and Medical Expense Limits of Insurance: Hanover Insurance Group.. OD3 H007851 1001075 The most we will pay on behalf of the additional insured for a covered claim is the lesser of the amount of insurance: 1. Required by the contract, agreement or permit described in Paragraph a.; or 2. Available under the applicable Limits of Insurance shown in the Declarations. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations e. All other insuring agreements, exclusions, and conditions of the policy apply. Additional Insured - Broad Form Vendors The following is added to SECTION II - LIABILITY, C. Who Is An Insured: Additional Insured - Broad Form Vendors a. Any person or organization that is a vendor with whom you agreed in a written contract additional insured under this Coverage Part is an insured, but only with respect to liability for "bodily injury" or "property damage" arising out of "your products" which are distributed or sold in the regular course of the vendor's business. b. The insurance afforded to such vendor described above: (1) Only applies to the extent permitted by law; (2) Will not be broader than the insurance which you are required by the contract or agreement to provide for such vendor; (3) Will not be broader than coverage provided to any other insured; and (4) Does not apply if the "bodily injury", "property damage" or "personal and advertising injury" is otherwise excluded from coverage under this Coverage Part, including any endorsements thereto c. With respect to insurance afforded to such vendors, the following additional exclusions apply: The insurance afforded to the vendor does not apply to: (1) "Bodily injury" or "property damage" for which the vendor is obligated to pay damages by reasons of the assumption of liability in a contract or agreement. This exclusion does not apply to liability for damages that the insured would have in the absence of the contract or agreement; (2) Any express warranty unauthorized by you; 391-1006 08 16 Includes copyrighted materials of Insurance Services Offices, Inc., with its permission. Page 2 of 6 (3) Any physical or chemical change in the product made intentionally by the vendor; (4) Repackaging, unless unpacked solely for the purpose of inspection, demonstration, testing, or the substitution of parts under instruction from the manufacturer, and then repackaged in the original container; (5) Any failure to make such inspection, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business in connection with the sale of the product; (6) Demonstration, installation, servicing or repair operations, except such operations performed at the vendor's premises in connection with the sale of the product; The most we will pay on behalf of the vendor for a covered claim is the lesser of the amount of insurance: 1. Required by the contract or agreement described in Paragraph a.; or 2. Available under the applicable Limits of Insurance shown in the Declarations; This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. 3. Alienated Premises (7) Products which, after distribution or sale by you, have been labeled or relabeled or used as a container, part or 4. ingredient of any other thing or substance by or for the vendor; (8) "Bodily injury" or "property damage" arising out of the sole negligence of the vendor for its own acts or omissions or those of its employees or anyone else acting on its behalf. However, this exclusion does not apply to: (a) The exceptions contained within the exclusion in subparagraphs (4) or (6) above;or (b) Such inspections, adjustments, tests or servicing as the vendor has agreed to make or normally undertakes to make in the usual course of business, in connection with the distribution or sale of the products. (9) "Bodily injury" or "property damage" place before you have signed the contract or agreement with the vendor. (10)To any person or organization included as an insured by another endorsement issued by us and made part of this Coverage Part. (11)Any insured person or organization, from whom you have acquired such products, or any ingredient, part or container, entering into, accompanying or containing such products. SECTION II - LIABILITY, B. Exclusions, 1. Applicable To Business Liabilit Coverage k. Damage to Property, paragraph (2� is replaced by the following: (2) Premises you sell, give away or abandon, if the "property damage" arises out of any part of those premises and occurred from hazards that were known by you, or should have reasonably been known by you, at the time the property was transferred or abandoned. Broad Form Property Damage - Borrowed Equipment, Customers Goods, Use of Elevators a. The following is added to SECTION II - LIABILITY, B. Exclusions, 1. Applicable To Business Liability Coverage, k. Damage to Property: Paragraph (4) does not apply to "property damage" to borrowed equipment while at a jobsite and not being used to perform operations. Paragraph (3), (4) and (6) do not apply to "property damage" to "customers goods" while on your premises nor to the use of elevators. b. For the purposes of this endorsement, the following definition is added to SECTION II - LIABILITY, F. Liability and Medical Expenses Definitions: 1. "Customers goods" means property of your customer on your premises for the purpose of being: a. Worked on; or b. Used in your manufacturing process. c. The insurance afforded under this provision is excess over any other valid and collectible property insurance (including deductible) available to the insured whether primary, excess, contingent or on any other basis. 5. Incidental Malpractice - Employed Nurses, EMT's and Paramedics d. With respect to the insurance afforded to SECTION II - LIABILITY, C. Who Is An Insured, these vendors, the following is added to paragraph 2.a.(1)(d) does not apply to a nurse, SECTION II - LIABILITY, D. Liability and Medical Expense Limits of Insurance: 391-1006 08 16 Includes copyrighted materials of Insurance Services Offices, Inc., with its permission. Page 3 of 6 emergency medical technician or paramedic employed by you if you are not engaged in the business or occupation of providing medical, paramedical, surgical, dental, x-ray or nursing services. 6. Personal Injury - Broad Form a. SECTION II - LIABILITY, B. Exclusions, 2. Additional Exclusions Applicable only to "Personal and Advertising Injury", paragraph e. is deleted. b. SECTION II - LIABILITY, F. Liability and Medical Expenses Definitions, 14. "Personal and advertising injury", paragraph b. is replaced by the following: b. Malicious prosecution or abuse of process. c. The following is added to SECTION II - LIABILITY, F. Liability and Medical Expenses Definitions, Definition 14. "Personal and advertising injury": "Discrimination" (unless insurance thereof is prohibited by law) that results in injury to the feelings or reputation of a natural person, but only if such "discrimination" is: (1) Not done intentionally by or at the direction of: (a) The insured; (b) Any officer of the corporation, director, stockholder, partner or member of the insured; and (2) Not directly or indirectly related to an "employee", not to the employment, prospective employment or termination of any person or persons by an insured. d. For purposes of this endorsement, the following definition is added to SECTION II - LIABILITY, F. Liability and Medical Expenses Definitions: 1. "Discrimination" means the unlawful treatment of individuals based upon race, color, ethnic origin, gender, religion, age, or sexual preference. "Discrimination" does not include the unlawful treatment of individuals based upon developmental, physical, cognitive, mental, sensory or emotional impairment or any combination of these. e. This coverage does not apply if liability coverage for "personal and advertising injury" is excluded either by the provisions of the Coverage Form or any endorsement thereto. The Hanover Insurance Group.. OD3 H007851 1001075 o. Recall of Products, Work or Impaired Property is replaced by the following: o. Recall of Products, Work or Impaired Property Damages claimed for any loss, cost or expense incurred by you or others for the loss of use, withdrawal, recall, inspection, repair, replacement, adjustment, removal or disposal of: (1) "Your product"; (2) "Your work"; or (3) "Impaired property"; If such product, work or property is withdrawn or recalled from the market or from use by any person or organization because of a known or suspected defect, deficiency, inadequacy or dangerous condition in it, but this exclusion does not apply to "product recall expenses" that you incur for the "covered recall" of "your product". However, the exception to the exclusion does not apply to "product recall expenses" resulting from: (4) Failure of any products to accomplish their intended purpose; (5) Breach of warranties of fitness, quality, durability or performance; (6) Loss of customer approval, or any cost incurred to regain customer approval; (7) Redistribution or replacement of "your product" which has been recalled by like products or substitutes; (8) Caprice or whim of the insured; (9) A condition likely to cause loss of which any insured knew or had reason to know at the inception of this insurance; (10)Asbestos, including loss, damage or clean up resulting from asbestos or asbestos containing materials; or (11)Recall of "your products" that have no known or suspected defect solely because a known or suspected defect in another of "your products" has been found. b. The following is added to SECTION II - LIABILITY, C. Who Is An Insured, paragraph 3.b.: 7. Product Recall Expense "Product recall expense" arising out of any a. SECTION II - LIABILITY, B. Exclusions, 1. withdrawal or recall that occurred before you Applicable To Business Liability Coverage, acquired or formed the organization. 391-1006 08 16 Includes copyrighted materials of Insurance Services Offices, Inc., with its permission. Page 4 of 6 c. The following is added to SECTION II - LIABILITY, D. Liability and Medical Expenses Limits of Insurance: Product Recall Expense Limits of Insurance a. The Limits of Insurance shown in the SUMMARY OF COVERAGES of this endorsement and the rules stated below fix the most that we will pay under this Product Recall Expense Coverage regardless of the number of: (1) Insureds; (2) "Covered Recalls" initiated; or (3) Number of "your products" withdrawn. b. The Product Recall Expense Aggregate d. Limit is the most that we will reimburse you for the sum of all "product recall expenses" incurred for all "covered recalls" initiated during the policy period. c. The Product Recall Each Occurrence Limit is the most we will pay in connection with any one defect or deficiency. d. All "product recall expenses" in connection with substantially the same general harmful condition will be deemed to arise out of the same defect or deficiency and considered one "occurrence". e. Any amount reimbursed for "product recall expenses" in connection with any one "occurrence" will reduce the amount of the Product Recall Expense Aggregate Limit available for reimbursement of "product recall expenses" in connection with any other defect or deficiency. f. If the Product Recall Expense Aggregate Limit has been reduced by reimbursement of "product recall expenses" to an amount that is less than the Product Recall Expense Each Occurrence Limit, the remaining Aggregate Limit is the most that will be available for reimbursement of "product recall expenses" in connection with any other defect or deficiency. g. Product Recall Deductible We will only pay for the amount of "product recall expenses" which are in excess of the $500 Product Recall Deductible. The Product Recall Deductible applies separately to each "covered recall". The limits of insurance will not be reduced by the amount of this deductible. We may, or will if required by law, pay all or any part of any deductible amount, if applicable. Upon notice of our payment of a deductible amount, you shall promptly reimburse us for the part of the deductible amount we paid. The Product Recall Expense Limits of Insurance apply separately to each consecutive annual period and to any remaining period of less than 12 months, starting with the beginning of the policy period shown in the Declarations, unless the policy period is extended after issuance for an additional period of less than 12 months. In that case, the additional period will be deemed part of the last preceding period for the purposes of determining the Limits of Insurance. The following is added to SECTION II - LIABILITY, E. Liability and Medical Expense General Conditions, 2. Duties in the Event of Occurrence, Offense, Claim or Suit: You must see to it that the following are done in the event of an actual or anticipated "covered recall" that may result in "product recall expense": (1) Give us prompt notice of any discovery or notification that "your product" must be withdrawn or recalled. Include a description of "your product" and the reason for the withdrawal or recall; (2) Cease any further release, shipment, consignment or any other method of distribution of like or similar products until it has been determined that all such products are free from defects that could be a cause of loss under this insurance. e. For the purposs of this endorsement, the following definitions are added to SECTION II - LIABILITY, F. Liability and Medical Expenses Definitions: 1. "Covered recall" means a recall made necessary because you or a government body has determined that a known or suspected defect, deficiency, inadequacy, or dangerous condition in "your product" has resulted or will result in "bodily injury" or "property damage". 2. "Product recall expense(s)" means: a. Necessary and reasonable expenses fo r: (1) Communications, including radio or television announcements or printed advertisements including stationary, envelopes and postage; 391-1006 08 16 Includes copyrighted materials of Insurance Services Offices, Inc., with its permission. Page 6 of 6 (2) Shipping the recalled products from any purchaser, distributor or user to the place or places designated by you; (3) Remuneration paid to your regular "employees" for necessary overtime; (4) Hiring additional persons, other than your regular "employees"; (5) Expenses incurred by "employees" including transportation and accom modations; (6) Expenses to rent additional warehouse or storage space; (7) Disposal of "your product", but only to the extent that specific methods of destruction other than those employed for trash discarding or disposal are required to avoid "bodily injury" or "property damage" as a result of such disposal, you incur exclusively for the purpose of recalling "your product"; and b. Your lost profit resulting from such 'covered recall". f. This Product Recall Expense Coverage does not apply: The Hanover Insurance Group.. OD3 H007851 1001075 (1) If the "products - completed operations hazard" is excluded from coverage under this Coverage Part including any endorsement thereto; or (2) To "product recall expense" arising out of any of "your products" that are otherwise excluded from coverage under this Coverage Part including endorsements thereto. 8. Unintentional Failure to Disclose Hazards The following is added to SECTION II - LIABILITY, E. Liability and Medical Expenses General Conditions: Representations We will not disclaim coverage under this Coverage Part if you fail to disclose all hazards existing as of the inception date of the policy provided such failure is not intentional. 9. Unintentional Failure to Notify The following is added to SECTION II - LIABILITY, E. Liability and Medical Expenses General Conditions, 2. Duties in the Event of Occurrence, Offense, Claim or Suit: Your rights afforded under this Coverage Part shall not be prejudiced if you fail to give us notice of an "occurrence", offense, claim or "suit", solely due to your reasonable and documented belief that the "bodily injury", "property damage" or "personal and advertising injury" is not covered under this Policy. ALL OTHER TERMS, CONDITIONS, AND EXCLUSIONS REMAIN UNCHANGED. 391-1006 08 16 Includes copyrighted materials of Insurance Services Offices, Inc., with its permission. Page 6 of 6 INSURED: American Dark Fiber, LLC POLICY #: OD3D66514301 (2) To any obligation to share damages with or repay someone else who must pay damages because of injury. This exclusion does not apply to: (1) Liability assumed by the insured under an "insured contract'; or (2) 'Bodily injury' arising out of and in the course of domestic employment by the insured unless benefits for such Injury are In whole or In part either payable or required to be provided under any workers' compensation law. b. 'Property damage" to; (1) Property owned or being transported by, or rented or loaned to the insured; or (2) Property In the care, custody or control of the insured. 2, Paragraph C. Who Is An Insured in Section It - Liability is replaced by the following: 1. Each of the following is an insured under this endorsement to the extent set forth below_ a. You; b. Any other person using a '"hired auto" with your permission; c. For a "non -awned auto": (1) Any partner or "executive officer" of yours; or (2) Any "employee" of yours; POLICY PERIOD: 08/10/2019 TO: 08/10/2020 b. Any partner or "executive officer" for any "auto' owned by such partner or officer or a member of his or her household; c. Any person while employed in or otherwise engaged in duties in connection with an "auto business". other than an "auto business" you operate; d. The owner or lessee (of whom you are a sublessee) of a "hired auto' or the owner of a "non -owned auto" or any agent or "employee" of any such owner or lessee; or a. Any person or organization for the conduct of any current or past partnership or joint venture that is not shown as a Named Insured In the Declarations, C. For the purposes of this endorsement only, Paragraph H. Other Insurance in Section III - Common Policy Conditions is replaced by the following: This insurance Is excess over any primary insurance covering the "hired auto" or 'non -owned auto", D. The following additional definitions apply: 1. 2. but only while such "non -owned auto" is being used in your business; and d Any other person or organization, but only for their liability because of acts or omissions of an insured under a., b. 3. or c, above. 2. None of the following Is an Insured: a. Any person engaged In the business of his or her employer for "bodily injury' to any co "employee" of such person injured In the course of employment, or to the spouse, child, parent, brother or sister of that co -'employee' as a consequence of such 'bodily injury", or for any obligation to share damages with or repay someone else who must pay damages because of the injury; "Auto business" means the business or occupation of selling, repairing, servicing, storing or parking "autos". 'Hired auto" means any "auto" you tease, hire, rent or borrow. This does not include any "auto" you lease, hire, rent or borrow from any of your "employees", your partners or your "executive officers' or members of their households, 'Non -owned auto" means any "auto" you do not own, lease, hire, rent or borrow which Is used in connection with your business, This Includes "autos" owned by your 'employees", your partners or your "executive officers', or members of their households, but only while used in your business or your personal affairs. Paye 2 of 2 Copyright Insurance Services Office. Inc., 2016 13P 06 as 0517 INSURED: American Dark Fiber, LLC POLICY#: OD3D66514301 a. Prior to a loss to your Covered Property. b. After a loss to your Covered Property only if, at time of loss, that party is one of the following: (1) Someone insured by this insurance; (2) A business firm: (a) Owned or controlled by you; or (b) That owns or controls you; or (3) Your tenant. You may also accept the usual bills of lading or shipping receipts limiting the liability of carriers. This will not restrict your insurance. 2. Applicable to SECTION II - LIABILITY Coverage: If the insured has rights to recover all or part of any payment we have made under this Coverage Part, those rights are transferred to us. The insured must do nothing after loss to impair such rights. At our request, the insured will bring "suit" or transfer those rights to us and help us enforce them. POLICY PERIOD: 08/10/2019 TO: 08/10/2020 We waive any right of recovery we may have against any person or organization with whom you have a written contract, permit or agreement to waive any rights of recovery against such person or organization because of payments we make for injury or damage arising out of your ongoing operations or "your work" done under a contract with that person or organization and included in the "products -completed operations hazard". This condition does not apply to Medical Expenses Coverage. L. Transfer of Your Rights and Duties Under This Policy Your rights and duties under this policy may not be transferred without our written consent except in the case of death of an individual Named Insured. If you die, your rights and duties will be transferred to your legal representative but only while that legal representative is acting within the scope of their duties as your legal representative. Until your legal representative is appointed, anyone with proper temporary custody of your property will have your rights and duties but only with respect to that property. 391-1003 08 16 Includes copyrighted material of Insurance Services Office, Inc., with its permission. Page 81 of 81 INSURED: American Dark Fiber, LLC POLICY#: AlCW13931801 POLICY PERIOD: 07/15/2019 TO: 07/15/2020 OLD REPUBLIC GENERAL INSURANCE CORPORATION WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDORSEMENT THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. THIS ENDORSEMENT MODIFIES INSURANCE PROVIDED UNDER THE FOLLOWING: WORKERS' COMPENSATION AND EMPLOYERS' LIABILITY INSURANCE We have the right to recover our payments from anyone liable for an injury covered by this policy. We will not enforce our right against the person or organization named in the Schedule. This agreement applies only to the extent that you perform work under a written contract that requires you to obtain this agreement from us. This agreement shall not operate directly or indirectly to benefit anyone not named in the Schedule. Schedule WHEN REQUIRED BY FULLY EXECUTED WRITTEN CONTRACT. WC 99 03 15 (09/06)