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HomeMy WebLinkAbout06-19-2024 Public-Private Partnership Agreement with Astound Broadband, LLC for Broadband Services PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 1 City of San Luis Obispo / Astound Broadband, LLC PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES This PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES (the “Agreement”) is entered into as of the date of last signature below (the “Effective Date”), by and between the CITY OF SAN LUIS OBISPO, a California municipal corporation (the “City”), and ASTOUND BROADBAND, LLC, a Washington limited liability company, acting on behalf of itself and as agent for its Affiliates, d/b/a Astound Business Solutions (collectively, “Astound”). Each of the City and Astound may be referred to in this Agreement as a “Party,” and collectively as the “Parties.” With respect to either Party, the term “Affiliate” shall mean any person who directly or indirectly controls, is controlled by, or is under common control with that Party. Affiliates of Digital West Networks, Inc. include, but are not limited to (i) Wave Business Solutions, LLC, (ii) WaveDivision Holdings, LLC, and (iii) Astound Business Solutions, LLC. RECITALS A. The City and Digital West Networks, Inc. are the parties to that certain Agreement for Installation of Conduit and Conduit Use Agreement dated September 20, 2011, as subsequently amended by that certain First Amendment to Agreement for Installation of Conduit and Conduit Use dated April 15, 2015, and as amended by that certain Second Amendment to Agreement for Installation of Conduit and Conduit Use dated February 10, 2016 (as amended, the “Old Contract”). B. Pursuant to the Old Contract, the City granted Digital West Networks, Inc. (“Digital West”, an Affiliate of Astound Broadband, LLC) a non-exclusive license to use portions of the City’s communications conduit for the installation of Digital West’s fiber optic cables and related network facilities. In exchange, Digital West provided the City with a variety of consideration, including, but not limited to, the performance of installation, maintenance and repair work related to the City’s conduit, the right to use certain fiber belonging to Digital West, the provision of certain hosted services to the City, and the payment of annual license fees, all as more fully described in the Old Contract. C. In January of 2021, Digital West was acquired by the family of companies whose ultimate parent is Radiate Holdings, LP, and which does business under the name “Astound”. D. Astound owns, operates, or otherwise has rights in and to a fiber optic and HFC communications network, which Astound uses to provide communications services, including Internet access, Ethernet transport, hosted voice, VoIP, IP transit, wavelengths, dark fiber, video and related services to its commercial, governmental and residential customers. E. Astound is in the process of expanding its network infrastructure within the City and nearby communities. In connection with and to facilitate that network expansion, Astound and the City now desire to terminate the Old Contract and replace it with this Agreement. F. Pertinent to this Agreement, the City owns approximately 35 miles of installed communications conduit together with associated vaults, manholes, hand holds and related facilities (collectively, the “Main City Conduit”). The approximate location of the City Conduit is depicted on Exhibit A to this Agreement. G. Also pertinent to this Agreement, the City is the owner, by Easement Deed recorded May 17, 2024 (San Luis Obispo County Clerk Recorder Document No. 2024013311) (the “Easement Deed”) of certain communications conduit (the “Prado Road Conduit”) that is installed on the real property located at 600 Hopkins Lane, San Luis Obispo, California 93401, having San Luis Obispo County Assessor’s Parcel Nos. 053-431-002 and 053-431-003. Astound has communications facilities installed within the Prado Road Conduit, pursuant to the Old Contract. The City now wishes to grant to Astound a non-exclusive license to use the Prado Road Conduit in common with the City, for the purpose of installing, operating, maintaining, repairing, replacing and using Astound’s communications cables and related networking facilities and equipment pursuant to this Agreement, subject to all terms, conditions, and limitations of the Easement Deed. (The Main City Conduit and the Prado Road Conduit are referred to collectively as the “City Conduit”, and except where or to the extent the Agreement treats either the Main City Conduit or the Prado Road Conduit differently, the Parties’ right and obligations under this Agreement with respect to both the Main City Conduit and the Prado Road Conduit will be the same.) H. As of the Effective Date of this Agreement, and pursuant to the rights granted to Astound under the Old Contract, Astound has installed within portions of the City Conduit fiber optic cable and related networking facilities belonging to Astound (the “Existing Astound Fiber”). The approximate locations in which the Existing Astound Fiber is installed are shown on Exhibit B to this Agreement. I. As of the Effective Date of this Agreement, and pursuant to the rights granted to the City under the Old Contract, the City is using certain dark fiber strands that constitute part of the Existing Astound Fiber to connect nine (9) City service sites along the routes DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 2 City of San Luis Obispo / Astound Broadband, LLC set forth on Exhibit C to this Agreement (the “Licensed Dark Fibers”). The Licensed Dark Fibers form a part of the City’s internal communications network. J. The City now desires to grant Astound a non-exclusive license to use the City Conduit in common with the City and any other persons authorized by the City (the “Authorized Users”), for the purposes of installing, maintaining, repairing, replacing, operating Astound’s network facilities, including, but not limited to, the Existing Astound Fiber. K. In exchange for the conduit license, Astound now desires to provide the following to the City: (i) The continued right to use the Licensed Dark Fiber; (ii) The right, in the future, as and when desired by the City, to expand the scope of the Licensed Dark Fibers to include additional fiber strands belonging to Astound that are located within the City Conduit; (iii) The performance of certain maintenance and repair activities with respect to City Conduit and Licensed Dark Fibers; and (iv) Whenever Astound installs new, replacement or additional fiber within any portion of the City Conduit, Astound will, if desired by the City and at no charge to the City provide up to 24 fiber strands, unless the Parties agree otherwise in writing. (v) A 10 gigabit Internet connection, terminated at 990 Palm St (“City Hall”) and 1135 Roundhouse (“Emergency Communications Center”). These terminations shall use geographically redundant paths. L. The City and Astound now desire to enter into this Agreement to accomplish the foregoing, all as more fully described and in accordance with the terms and conditions set forth below. AGREEMENT Now, therefore, in consideration of the mutual promises set forth below and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: ARTICLE 1: TERMINATION OF THE OLD CONTRACT As of the Effective Date of this Agreement, the Old Contract shall terminate and have no further force or effect. The Old Contract is replaced in all respects by the terms and conditions set forth in this Agreement. ARTICLE 2: EQUIPMENT 2.1 Definition of Equipment. For purposes of this Agreement, the term “Equipment” means network infrastructure and components including, but not limited to, gateway or edge electronic device, antenna, node, concentrator, bridge, receiver, transmitter, transceiver, router, switch, hub, communications lines, cables and related facilities and software. 2.2 Astound Equipment. Any Equipment that is owned by or otherwise comprises a part of the Astound communications network, including any Equipment supplied by Astound in connection with using the City Conduit, shall be referred to as the “Astound Equipment.” Throughout the Term, the Astound Equipment shall remain the property of Astound and Astound shall be responsible for all maintenance and repair of the Astound Equipment. Neither City nor any third party acting under City’s authority will relocate, modify, tamper with, attempt to repair or otherwise interfere with the Astound Equipment. 2.3 City Equipment. Any Equipment that is owned by or otherwise comprises a part of the City communications network, including any Equipment supplied by the City in connection with using the Licensed Dark Fibers shall be referred to as the “City Equipment.” Throughout the Term, the City Equipment shall remain the property of the City and the City shall be responsible for all maintenance and repair of the City Equipment. Neither Astound nor any third party acting under Astound’s authority will relocate, modify, tamper with, attempt to repair or otherwise interfere with the City Equipment without City’s express authorization. ARTICLE 3: CITY CONDUIT LICENSE 3.1 Grant of License. DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 3 City of San Luis Obispo / Astound Broadband, LLC (a) Grant of License (Main City Conduit). Beginning on the Effective Date and continuing through the expiration or earlier termination of the Term (Main City Conduit) specified in Article 8.1, the City grants to Astound a non-exclusive license to use the Main City Conduit in common with the City and other Authorized Users (the “Conduit License (Main City Conduit)”) for purposes of installing Astound’s fiber optic cable and related networking facilities and Equipment (collectively, the “Astound Fiber”). While the term Astound Fiber includes the Existing Astound Fiber, the Parties expressly intend for the term to have a broader meaning that shall include any and all additional, substitute and/or replacement fiber optic cable and related networking facilities and Equipment that Astound installs within the City Conduit during the Term. (b) Grant of License (Prado Road Conduit). Beginning on the Effective Date and continuing through the expiration or earlier termination of the Term (Prado Road Conduit) specified in Article 8.2, the City grants to Astound a non- exclusive license to use the Prado Road Conduit in common with the City (the “Conduit License (Prado Road Conduit)”) for the purpose of installing, operating, maintaining, repairing, replacing and using Astound Fiber, subject to all terms, conditions, and limitations of the Easement Deed. Astound covenants to the City that, in using the Prado Road Conduit, Astound shall coordinate and cooperate with the City to avoid disturbing the City Equipment or any of the communications facilities. The City covenants to Astound that the City shall not disturb the Astound Fiber installed within Prado Road Conduit. 3.2 Additional Access Points. Astound shall have the right, at any time and from time to time during the Term, to establish additional break-out points along the route of any segment of the Main City Conduit, at which Astound will then be able to access the Astound Fiber located within the City Conduit at issue. This right includes the right to install Astound-owned vaults, manholes, hand- holes and/or splice boxes at said break-out points, and to establish intersection points (using wye splitters or other similar means) at which Astound may interconnect the City Conduit with other communications conduit owned, operated or used by Astound so that Astound may splice other fiber strands into any one or more of the cables containing the Astound Fiber. Demarcation of ownership of break-out points shall be at the sidewalk, handhole, or pole attachment location (as is applicable). Astound shall provide the City with reasonable advance notice of Astound’s desire to establish a new break-out or interconnection point. The Parties shall cooperate in good faith to agree upon a design and implementation schedule for Astound’s new break-out or interconnection point that is acceptable to both Parties with the objective of reasonably minimizing any disruption to the City’s and other Authorized Parties’ use of the City Conduit at issue. Astound shall be responsible for obtaining, at Astound’s expense, any and all licenses, permits and/or other approvals needed in connection with Astound’s activities described in this Section 3.2. 3.3 Joint Use. Astound understands that there are no innerducts installed within the City Conduit. Thus, Astound is not receiving from the City the exclusive right to use a specific innerduct. Instead, Astound’s right to use the City Conduit is a right to use the City Conduit in common with the City and the other Authorized Users. Astound covenants to the City that, in using the City Conduit, Astound shall coordinate and cooperate with the City and any other Authorized Users to avoid disturbing any of the communications facilities belonging to the City or the Authorized Users. The City covenants to Astound that neither the City nor any of the Authorized Users shall disturb the Astound Fiber installed within the City Conduit. ARTICLE 4: DARK FIBER LICENSE TO CITY 4.1 Grant of License. Beginning on the Effective Date and continuing through the expiration or earlier termination of the Term, Astound grants to the City an exclusive license to use the Licensed Dark Fibers specified on Exhibit C (the “Dark Fiber License”) by accessing same at the A Location and Z Location end points, as well as at any additional access points that may be specified in Exhibit C (collectively, the “Dark Fiber Access Points”). The City is not permitted to access the Licensed Dark Fibers at any location other than the Dark Fiber Access Points. 4.2 Additional Dark Fibers. At any time during the Term, the City shall have the right to add additional fibers to the Dark Fiber License. Specifically, the City may use up to four (4) strands of the Astound Fiber that is installed within any segment of the City Conduit for the purpose of connecting City service sites. If any lateral extension is required to connect the nearest access point of the Astound Fiber to any City service site, Astound shall install such lateral extension; provided that if the cost of installing any such lateral extension is in excess of Three Thousand and No/100 Dollars ($3,000.00), then the City shall reimburse Astound for its costs incurred in performing the installation work. To exercise its right to add new fibers to the Dark Fiber License, the City shall provide Astound with reasonable advance written notice of the service sites the City desires to connect using the Astound Fiber. The Parties shall work cooperatively to agree upon installation plans and an implementation timeline pursuant to which the new fiber(s) will be installed at the City’s service sites. Astound shall perform all splicing of the Astound Fibers at issue. Once the new fiber(s) have been delivered DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 4 City of San Luis Obispo / Astound Broadband, LLC to the City by Astound, said fiber(s) shall constitute a part of the Licensed Dark Fibers, and the Parties shall amend Exhibit C to include the new fiber routes and the Dark Fiber Access Points for same. 4.3 Equipment. Astound shall have no obligation to provide the City with any optronics, electronics, cabling or other Equipment in connection with the Dark Fiber License. Instead, the City shall be responsible for providing, installing, operating and maintaining any and all Equipment needed in order for the City to make use of the Licensed Dark Fibers. 4.4 Use of Licensed Dark Fibers. The City may use the Licensed Dark Fibers as a part of the City’s internal communications network and for other governmental purposes. The Licensed Dark Fibers may not be used for any non-governmental purpose or use whatsoever, and in particular may not be leased, licensed, or otherwise in any form conveyed or permitted to be used by entities that provide communications services or facilities in competition with Astound. The City’s use of the Licensed Dark Fibers shall at all times comply with applicable law. Should the City violate the provisions of this Section 4.4, Astound shall give the City written notice it has done so and reasonable opportunity to cure (no less than thirty (30) days), and if the City fails to cure in that period, Astound shall have the right to immediately terminate the Dark Fiber License. 4.5 No Transfer or Sub-Licensing. The Licensed Dark Fibers provided to the City pursuant to this Agreement are for the sole benefit of the City. The City shall not grant to any third party the right to use any of the Licensed Dark Fibers, regardless of whether such grant were to take the form of a license, sublicense, lease, sublease, shared use agreement, services swap, or any other form. Instead, the right to use the Licensed Dark Fibers is personal to the City and is not assignable, delegable, divisible or transferable. Should the City violate the restrictions contained in this Section 4.5, Astound shall give the City written notice it has done so and reasonable opportunity to cure (no less than thirty (30) days), and if the City fails to cure in that period, Astound shall have the right to immediately terminate the Dark Fiber License. 4.6 Availability. At all times during the Term, Astound shall use commercially reasonable efforts in keeping with normal industry standards to ensure that the Licensed Dark Fibers are available to the City twenty-four (24) hours per day, seven (7) days per week, three hundred and sixty five (365) days a year. It is possible, however, that there will be interruptions in the availability of the Licensed Dark Fibers. The City understands and agrees that some or all of the Licensed Dark Fibers, may be unavailable from time to time either for scheduled or unscheduled maintenance, due to fiber cuts or other reasons beyond Astound’s reasonable control. Temporary interruptions in the availability of the Licensed Dark Fibers for such reasons, as well as interruptions or outages caused by the City, its agents and employees, or by Force Majeure Events, will not constitute failures by Astound to perform its obligations under this Agreement. ARTICLE 4A: DARK FIBER LICENSE TO ASTOUND 4A.1 Grant of License. Beginning on the Effective Date and continuing through the expiration or earlier termination of the Term, the City grants to Astound the option to obtain an exclusive license to use City-owned Dark Fiber existing on the Effective Date (the “Existing City Dark Fiber License”) at no cost, as available, for non-wholesale subscribers. Should Astound sell to wholesale users, Astound shall pay to the City $65/strand mile MRC, or a price otherwise agreed upon in writing. Exhibit C shall be amended at such time or times as Astound leases from the City any City-owned Dark Fiber pursuant to this Section 4A.1. 4A.2 Use of Existing City Dark Fibers. Astound may use the Existing City Dark Fibers as a part of Astound’s backbone and/or internal communications network(s). Astound may convey use of the Existing City Dark Fibers according to the terms set forth in Section 4A.1 above. Astound’s use of the Existing City Dark Fibers shall at all times comply with applicable law. Should Astound violate the provisions of this Article 4A, the City shall give Astound written notice it has done so and reasonable opportunity to cure (no less than thirty (30) days), and if Astound fails to cure in that period, City shall have the right to immediately terminate the Existing City Dark Fiber License. 4A.3 Grant-Funded Dark Fibers. If at any time during the Term the City obtains grant-funded dark fiber (“Grant-Funded Fiber”), Astound shall (unless otherwise agreed upon by the Parties in connection with the grant request) be issued an IRU on 48 strands of the Grant-Funded Fiber for the full Term of the Agreement, including any extensions (the “Grant-Funded Fiber License.”) Astound’s use of Grant-Funded Fiber shall be in furtherance the purposes of the grant and shall comply with all terms, conditions, and limitations imposed by the grantor. The Grant-Funded Fibers provided to Astound pursuant to this Article 4A are for the sole use of fulfilling the grant purpose. Astound shall not grant to any third party the right to use any of the Grant-Funded Fiber, regardless of whether such grant were to take the form of a license, sublicense, lease, sublease, shared use agreement, services swap, or any other form. Instead, the right to use the Grant-Funded Fiber is personal to Astound and conditional upon compliance with this section 4A.3. Should Astound violate the restrictions contained in this Section 4A.3, the City shall give Astound written notice it has done so and reasonable DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 5 City of San Luis Obispo / Astound Broadband, LLC opportunity to cure (no less than thirty (30) days), and if Astound fails to cure in that period, City shall have the right to immediately terminate the Grant-Funded Fiber License. ARTICLE 5: ASTOUND’S MAINTENANCE AND REPAIR OBLIGATIONS 5.1 In General. During the Term, Astound shall be responsible for performing both routine scheduled maintenance and emergency maintenance with respect to: (i) City Conduit identified in Exhibit A (provided that Astound shall not be responsible for routine scheduled maintenance and emergency maintenance with respect to Fiber that has been licensed to or authorized by the City for use by any non-governmental agency); and (ii) the Licensed Dark Fibers. 5.2 Routine Scheduled Maintenance. During the Term, Astound shall perform the same type, frequency and quality of regular, routine scheduled maintenance and repair with respect to the City Conduit that Astound performs with respect to Astound’s own communications conduit systems, which shall not materially deviate from industry standards. Such routine maintenance shall include maintenance of a “call-before-you-dig” program and performance of all related locates associated with same. 5.3 Emergency Repairs. During the Term, Astound shall perform any necessary emergency or other unscheduled repairs with respect to the City Conduit and/or the Licensed Dark Fibers and/or Unlicensed Dark Fibers (see definition in Section 5.3(c) below). Astound’s network operations center is staffed twenty-four (24) hours per day, seven (7) days per week to accept notifications from the City regarding any problems with the City Conduit and/or the Licensed Dark Fibers. (a) Emergency Repair of City Conduit. The Parties agree that Astound’s priority in the event of damage to the City Conduit is the repair of signal discontinuity in damaged or cut active fibers. Accordingly, if the City Conduit is damaged, but the fiber within the City Conduit is not damaged and is not in immediate danger of becoming damaged, Astound shall use commercially reasonable efforts to repair or replace the damaged City Conduit as soon as reasonably feasible, but such work may be performed during normal business hours and will receive a lower priority than maintenance or repair involving signal discontinuity. (b) Emergency Repair of Licensed Dark Fibers. If any one or more of the Licensed Dark Fibers is damaged or in imminent danger of suffering damage, Astound shall immediately commence repair and restoration of same and complete said repair and restoration as soon as possible. In the event of damage to the Licensed Dark Fibers, Astound shall use reasonable efforts to have its personnel at the site requiring emergency maintenance within four (4) hours after Astound becomes aware of the need for emergency maintenance. Astound shall use reasonable efforts to repair traffic-affecting fiber discontinuity within eight (8) hours after Astound’s maintenance personnel arrive at the problem site. Periods of Excused Outage shall be excluded from the timelines set forth above. The term “Excused Outage” means any disruption to or unavailability of the Licensed Dark Fibers that is caused by or due to any one or more of the following: (i) Force Majeure Events, (ii) the acts or omissions of City personnel or the City’s agents, contractors, or end users, (iii) the failure or malfunction of Equipment not belonging to Astound, (iv) Astound’s inability, due to no fault on the part of Astound, to access the location of the fiber cut, or (v) other causes beyond the reasonable control of Astound. Astound shall provide the City with regular status updates during the restoration process. Restoration of inactive fibers not immediately required for service shall be completed on a mutually agreed-upon schedule. Astound’s representatives that are responsible for initial restoration of a cut fiber optic cable shall carry on their vehicles the typical appropriate equipment that would enable a temporary splice, with the objective of restoring operating capability in as little time as possible. (c) Repair of Dark Fiber that is not Licensed Fiber. If any one or more of the dark fibers that is not a Licensed Dark Fiber (each an “Unlicensed Dark Fiber”) is damaged or in imminent danger of suffering damage, Astound shall, immediately after receipt of notification from the City of the same, commence repair and restoration of same and complete said repair and restoration as soon as possible. In the event of damage to the Unlicensed Dark Fibers, Astound shall use reasonable efforts to have its personnel at the site requiring emergency maintenance within four (4) hours after Astound becomes aware of the need for emergency maintenance. Astound shall use reasonable efforts to repair traffic-affecting fiber discontinuity within eight (8) hours after Astound’s maintenance personnel arrive at the problem site. Periods of Excused Outage shall be excluded from the timelines set forth above. The term “Excused Outage” means any disruption to or unavailability of the Unlicensed Dark Fibers that is caused by or due to any one or more of the following: (i) Force Majeure Events, (ii) the acts or omissions of City personnel or the City’s agents, contractors, or end users, (iii) the failure or malfunction of Equipment not belonging to Astound, (iv) Astound’s inability, due to no fault on the part of Astound, to access the location of the fiber cut, or (v) other causes beyond the reasonable control of Astound. Astound shall provide the City with regular status updates during the restoration process. Restoration of inactive fibers not immediately required for service shall be completed on a mutually agreed-upon schedule. Astound’s representatives that are responsible for initial restoration of a cut fiber optic cable shall carry on their vehicles the typical appropriate equipment that would enable a temporary splice, with the objective of restoring operating capability in as little time as possible. The City acknowledges and agrees that the obligations on Astound as set forth in this Section 5(c) will apply only to Unlicensed Dark Fiber that Astound has been able to inventory. The City will provide an DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 6 City of San Luis Obispo / Astound Broadband, LLC inventory of existing Unlicensed Dark Fiber and a list of known faults or issues with the Unlicensed Dark Fiber. 5.4 Allocation of Repair Costs. (a) Costs of Routine Scheduled Maintenance (City Conduit). Except for routine maintenance or repairs necessitated due to the City’s or another Authorized User’s negligence or intentional misconduct, for which the City shall reimburse Astound, the costs of routine, scheduled maintenance and repair (as described in Section 5.2 above) performed pursuant to this Article 5 shall be borne by Astound. (b) Costs of Repairs (City Conduit). Except for the costs of repairs necessitated due to the negligence or intentional misconduct of a Party, for which that Party shall be solely responsible, the costs of repairs performed pursuant to Sections 5.3(a) will be divided evenly between Astound and the City. (c) Costs of Repairs (Unlicensed Fiber). Except for the costs of repairs necessitated due to the negligence or intentional misconduct of a Party, for which that Party shall be solely responsible, the costs of repairs performed by Astound on Unlicensed Dark Fiber (regardless of the reason for the repair) will be borne solely by the City. 5.5 Manner of Performance. Astound will perform all construction, installation, maintenance and repair work under this Agreement in a safe manner consistent with generally accepted standards in the communications industry, and in such a way as to reasonably minimize interference with the operation and use of the property on which the City Conduit at issue is installed. Astound shall not allow any materialman’s or mechanic’s liens to attach to the City Conduit, any City Equipment, or any other property belonging to the City. Astound shall provide and install suitable safeguards, consistent with applicable industry practice and approved by the City, to protect City property from injury or damage. After completing any maintenance or repair work on the City Conduit, Astound shall repair and restore any damage caused by Astound to the property, street, sidewalk, curbs, landscaping or other impacted areas, to the condition existing immediately prior to Astound's maintenance or repair work, reasonable wear and tear excepted. 5.6 Use of Contractors. The City expressly understands and agrees that Astound may use contractors to perform some or all of the work described in this Agreement. Astound shall be fully liable for the actions of its contractors, and Astound shall require its contractors to agree to and abide by obligations substantially similar to those set forth in Section 5.5 above. ARTICLE 6: CITY FIBER ALLOCATION At all times during the Term, if Astound is planning to install fiber within a new portion of the City Conduit, Astound shall inform the City of the planned installation work. Astound may exercise its rights under this Article 6 in all City Conduit, and when doing so, Astound shall (unless Astound and the City have agreed otherwise with respect to specific installation or construction of new fiber) allocate to the City up to 24 fiber strands in every new conduit-span pull. The City and Astound will mutually agree to the fiber count to be allocated to the City up to 24 fibers prior to the installation of the Astound fiber cable. After completion of the installation of City-allocated fiber, Astound will ensure the fiber conforms to its applicable specifications as of the turn-up date of services Astound agrees to provide to the City. ARTICLE 7: RELOCATION The Parties recognize that, at one or more times during the Term, one or more portions of the City Conduit (as that term is defined in Section 5.1 above) may need to be relocated, under any of the following circumstances: (i) the City is required to relocate the conduit by a third party with the legal authority to so require; (ii) in the City’s reasonable judgment, relocation will be beneficial to the City or its citizens; or (iii) Astound and the City jointly desire to relocate. Should any of the foregoing occur with respect to City Conduit, Astound shall, unless otherwise directed by the City, perform the desired or required relocation. In the event of any such relocation, Astound and the City shall cooperate in good faith to minimize any service interruptions by or to either Party. In the event of relocation due to (i) or (iii) above, the City shall reimburse Astound for fifty percent (50%) of Astound’s costs incurred in performing the relocation. In the event of relocation due to (ii) above, the City shall reimburse Astound one hundred percent (100%) of Astound’s costs incurred in performing the relocation. ARTICLE 7A: COMPLIANCE WITH LAW; PERMITTING 7A.1 Astound’s Compliance with Applicable Law. When performing its obligations under Articles 3, 5, 6, and 7 of this Agreement, Astound shall comply with all governmental laws, rules, regulations, codes, and ordinances applicable to such obligations, and shall obtain from the City any permits or permissions required from the City and applicable to such obligations (collectively, “City Permits”). At all times during the term of this Agreement, Astound shall have in full force and effect, all licenses required of it by law for the DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 7 City of San Luis Obispo / Astound Broadband, LLC performance of this Agreement. Astound’s failure to comply with applicable law, rules, regulations, codes, ordinances, and/or licensing requirements may constitute Default as defined in Section 9.1 below. 7A.2 City’s Cooperation in Permitting Process. In recognition of the benefits to both the City and Astound of Astound’s ability to perform its obligations under Articles 3, 5, 6, and 7 of this Agreement as quickly as possible and at the lowest cost, the City agrees that at all times during the Term, it shall: (i) use reasonable efforts to streamline the processes and procedures applicable to requesting and obtaining City Permits (and in particular to reduce the time and cost of obtaining City Permits); and (ii) cooperate with Astound during the process of Astound’s requesting and obtaining City Permits where necessary for performance of Astound’s obligations under Articles 3, 5, 6, and 7. 7A.3 Prevailing Wage. Where Applicable Law requires Astound to pay prevailing wage when performing its obligations under Articles 3, 5, 6, and 7 of this Agreement, Astound will do so. 7A.4 Payment of Taxes and Fees. Astound shall be responsible for payment of any applicable taxes and fees for Astound assets and Astound’s performance under this Agreement. ARTICLE 7B: ASTOUND’S SERVICES; MARKETING 7B.1 VOIP Services. Astound affirms that its VOIP phone services that residents of the City may (but are not obliged) to purchase from Astound comply with requirements imposed on such services by the State of California and the FCC, including requirements for e911 calls. 7B.2 Marketing of Astound’s Services. Astound is solely responsible for marketing its services available to residential and business customers in the City (the “Astound Services”). In materials advertising or promoting the Astound Services, Astound may use the City’s name only where the City expressly gives Astound advance written permission to do so, and only in the manner authorized by the City. The City retains the right to modify or require withdrawal of any marketing campaign or message made or sent on behalf of the City. 7B.3 Community Benefit. For Astound Services available to residential customers in the City, Astound agrees to honor its pricing commitments outlined in the Last Mile FFA Grant application as set forth on Exhibit D of this Agreement. 7B.4 Broadband Expansion. The Parties recognize that, as of the Effective Date, it is infeasible to set metrics by which Astound must expand broadband availability within the City. However, because expansion of broadband availability is a material policy objective adopted by the City’s legislative body in approving this Agreement, the Parties agree to meet and confer in good faith one (1) year after the Effective Date, and every two (2) years thereafter for the duration of the Term, to evaluate Astound’s performance in expanding broadband availability. Should the City determine, in its reasonable discretion, that Astound is failing to meaningfully expand broadband availability within the City, the Parties will work together in good faith to agree upon metrics by which Astound must expand broadband availability (the “Broadband Expansion Metrics”). Astound will have one (1) year (or any other period agreed upon by the Parties) after the date the Broadband Expansion Metrics are agreed, to complete the broadband expansion, and if Astound fails to do so, the City may terminate this Agreement. Upon Assignment pursuant to Article 16, Successor and the City shall meet and confer in good faith pursuant to this Section 7B.4 within six (6) months of Successor’s assumption of the Agreement, regardless of the date of the most recent conference between the Parties pursuant to this Section. ARTICLE 7C: RESIDENTIAL NETWORK Should the City and Astound submit a request for grant funding and should the City receive any grant funding that requires the City to partner with a private entity with experience in operating residential and/or business broadband networks, Astound shall be responsible for such operations for the City. Astound shall operate all grant-built facilities and shall be responsible for constructing any additional Central Office Facilities necessary to serve end-user customers as required by this Article 7C. (The obligations in this Article 7C will only apply where Astound and the City have partnered for the submission of the grant request.) DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 8 City of San Luis Obispo / Astound Broadband, LLC ARTICLE 8: TERM OF AGREEMENT 8.1 Term (Main City Conduit). (a) Initial Term (Main City Conduit). The initial term of this Agreement with respect to the Main City Conduit (the “Initial Term (Main City Conduit)”) shall be for twenty (20) years, beginning on the Effective Date and expiring on the date that is one day prior to the twentieth (20th) anniversary of the Effective Date (the “Initial Term Expiration Date (Main City Conduit)”). (b) Renewal Terms. There shall be two (2) renewal options for this Agreement with respect to the Main City Conduit, each of which is for a renewal term of five (5) years (respectively, the “First Renewal Term (Main City Conduit)” and the “Second Renewal Term (Main City Conduit)”). Upon expiration of the Initial Term (Main City Conduit), unless either Party elects to forgo the First Renewal Term by delivering written notice of termination to the other Party no later than one hundred eighty (180) days prior to the Initial Term Expiration Date, this Agreement shall automatically renew for the First Renewal Term. The First Renewal Term (if any) shall expire on the date that is one day prior to the twenty-fifth (25th) anniversary of the Effective Date (the “First Renewal Term Expiration Date (Main City Conduit)”). Upon expiration of the First Renewal Term (Main City Conduit) (if any), unless either Party elects to forgo the Second Renewal Term by delivering written notice of termination to the other Party no later than one hundred eighty (180) days prior to the First Renewal Term Expiration Date (Main City Conduit), this Agreement shall automatically renew for the Second Renewal Term (Main City Conduit). This Agreement shall automatically expire on the date that is one day prior to the thirtieth (30th) anniversary of the Effective Date. The total period of time this Agreement is in effect with respect to the Main City Conduit shall be referred to as the “Term (Main City Conduit)”. 8.2 Term (Prado Road Conduit). The initial term (“Initial Term (Prado Road Conduit)”) of this Agreement with respect to the (Prado Road Conduit) shall be for thirty (30) years, beginning on the Effective Date. Upon the expiration of the Initial Term (Prado Road Conduit), with respect to the Prado Road Conduit, the Agreement will begin to renew automatically for successive periods of one (1) year (each, a “Renewal Term (Prado Road Conduit)”). During any Renewal Term (Prado Road Conduit), either Party may terminate the Agreement with respect to the Prado Road Conduit at the end of the then-current Renewal Term (Prado Road Conduit) by giving written notice of termination to the other Party not less than one-hundred-eighty (180) days prior to the end of the then- current Renewal Term (Prado Road Conduit). The total period of time this Agreement is in effect with respect to the Prado Road Conduit shall be referred to as the “Term (Prado Road Conduit)”). 8.3 Effect of Expiration. The total period of time this Agreement is in effect, comprising both the Term (Main City Conduit) and the Term (Prado Road Conduit), shall be referred to as the “Term” of this Agreement. Upon expiration or earlier termination of the Term, the Conduit License, the Dark Fiber License, the Existing City Dark Fiber License, and the Grant-Funded Fiber License shall automatically terminate. Astound shall have a period of one-hundred-eighty (180) days following the expiration or earlier termination of the Term (other than for default by Astound) in which Astound may remove all or any portion of the Astound Fiber and any associated Astound Equipment from the City Conduit. Any personal property belonging to Astound that remains in the City Conduit after that one-hundred-eighty (180) days period shall be deemed abandoned by Astound and title to same shall automatically transfer to and vest in the City. Upon expiration or earlier termination of the Term, where the City and Astound have partnered in the application for and receipt of grant funds to install conduit and/or fiber pursuant to this Agreement, title to all grant-built assets, if not already property of the City, shall automatically transfer to and vest in the City. 8.4 No Termination for Convenience. Neither Party may unilaterally terminate this Agreement, other than for Default as discussed in Article 9 below, with respect to the Main City Conduit or Prado Road Conduit during its respective initial term. ARTICLE 9: DEFAULT 9.1 Definition. A “Default” shall be deemed to have occurred under this Agreement under the following circumstances: (a) in the case of a failure to pay any amount when due under this Agreement, a Party fails to pay such amount within fifteen (15) days after written notice from the other Party specifying such breach; or (b) in the case of any other material breach of this Agreement, a Party fails to cure such breach within thirty (30) days after written notice from the other Party specifying such breach, provided that if the breach is of a nature that cannot reasonably be cured within said thirty (30) day time period, a Default shall not have occurred so long as the breaching Party has commenced cure within said thirty (30) day time period and thereafter diligently pursues cure to completion within ninety (90) days of receiving the original written notice regarding the breach. DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 9 City of San Luis Obispo / Astound Broadband, LLC 9.2 Remedies. In the event of any Default hereunder, the non-Defaulting Party may do any one or more of the following: (i) take such actions as it deems reasonably necessary to correct the Default and charge the costs to the Defaulting Party; (ii) terminate this Agreement by delivering written notice of termination to the Defaulting Party; and/or (iii) pursue any other remedies available to it under this Agreement, at law or in equity. 9.3 Disposition of Property Upon Default. (a) Upon termination of the Agreement because of default by Astound, all Astound fiber cables within City conduit shall automatically become property of the City. (b) Upon termination of the Agreement because of default by the City, Astound shall retain an IRU as to all existing dark fiber licenses and conduit occupancy rights granted to Astound pursuant to this Agreement, for the full Term of the Agreement. 9.4 No Waiver. A waiver by either Party at any time of any of its rights regarding a particular breach or Default of the other Party under this Agreement shall not be deemed a permanent waiver of such rights, nor shall any such waiver be deemed a waiver of any subsequent breach or Default. ARTICLE 10: DISCLAIMER OF WARRANTIES EXCEPT FOR ANY COVENANTS, REPRESENTATIONS OR WARRANTIES EXPRESSLY SET FORTH IN THIS AGREEMENT AND/OR ANY EXHIBIT(S) ATTACHED HERETO, NEITHER PARTY MAKES ANY WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE DESCRIPTION, QUALITY, MERCHANTABILITY, COMPLETENESS, FITNESS FOR A PARTICULAR PURPOSE OR USE OF ANY OF THE SERVICES OR THE CONDUIT OR RELATED FACILITIES PROVIDED PURSUANT TO THIS AGREEMENT, AND ALL SUCH WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. ARTICLE 11: INDEMNIFICATION BY ASTOUND To the fullest extent permitted by law (including, but not limited to California Civil Code Sections 2782 and 2782.8), Astound shall indemnify, defend, and hold harmless the City, and its elected officials, officers, employees, volunteers, and agents (“City Indemnitees”) from and against any and all causes of action, claims, liabilities, obligations, judgments, or damages, including reasonable legal counsels’ fees and costs of litigation (collectively, “Claims”), to the extent arising out of (i) Astound’s failure to perform its obligations under this Agreement or (ii) Astound’s negligence or willful misconduct in the performance of its obligations or the conduct of its operations under this Agreement. In the event of a Claim, Astound shall provide a defense of and against such Claim to the City Indemnitees, or at the City’s option, reimburse the City Indemnitees their costs of defense, including reasonable legal fees, as reasonably documented and actually incurred by the City in defense of such Claim. ARTICLE 12: INSURANCE 12.1 Required Insurance. During the Term, each Party shall procure and maintain in force, at its own expense, insurance coverage in amounts that a reasonably prudent business person would maintain considering the obligations of the Parties hereunder, but in no event less than coverage of the types and limits detailed in Exhibit E: 12.2 Insurance Providers. Each Party shall maintain the required insurance coverage with insurers authorized to conduct business in the applicable jurisdiction(s) and having an AM Best Rating of A – /VII, or equivalent from another recognized rating agency, and each Party shall, upon request, provide the other Party with an insurance certificate confirming compliance with the requirements of this Article. 12.3 Failure to Carry. In the event either Party fails to maintain the required insurance coverage and a claim is made or suffered, such Party shall defend, indemnify and hold harmless the other Party from any and all claims for which the required insurance would have provided coverage. ARTICLE 13: FORCE MAJEURE EVENTS Neither Party shall be liable for any delay in or failure of performance hereunder due to causes beyond such Party’s reasonable control including, but not limited to, acts of God, fire, flood, earthquake, ice storms, wind storms, or other sever weather events, explosion, vandalism, cable cut, terrorist acts, insurrection, riots or other civil unrest, national or regional emergency, unavailability of rights-of-way, a governmental authority’s failure to timely act, inability to obtain equipment, material or other supplies due to strike, lockout or work stoppage, or any law, order, regulation, direction, action or request of any civil or military DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 10 City of San Luis Obispo / Astound Broadband, LLC governmental authority (each, a “Force Majeure Event”). This Article shall only excuse delay in or failure of performance if the Party seeking excuse provides a showing of impossibility of timely performance and the other Party agrees that such obligation can be excused or delayed because of a Force Majeure Event. The excused Party shall resume performance of the obligation at the conclusion of the Force Majeure Event. ARTICLE 14: CONFIDENTIALITY 14.1 Definition of Confidential Information. “Confidential Information” shall mean all information regarding the telecommunications systems and business operations of the Parties which is disclosed by one Party (“Disclosing Party”) to the other Party (“Receiving Party”), to the extent that such information is marked or identified as confidential or proprietary or would be reasonably deemed confidential or proprietary given the circumstances surrounding its disclosure. Notwithstanding the foregoing, all written or oral negotiations between the Parties shall be deemed Confidential Information, whether or not so designated. Information shall not be deemed Confidential Information if (i) it is independently developed by or for the Receiving Party, (ii) it is lawfully received by the Receiving Party free of any obligation to keep it confidential, (iii) it becomes generally available to the public other than by breach of this Agreement, or (iv) it was known to the Receiving Party prior to the Disclosing Party’s disclosure of same. 14.2 Protection of Confidential Information. Confidential Information is the property of the Disclosing Party and shall be returned to the Disclosing Party upon request. Receiving Party, including its officers, directors, employees, partners, affiliates, agents and representatives, shall hold all Confidential Information in confidence. The Receiving Party: (i) shall use such Confidential Information only for the purposes of performing its obligations and/or enforcing its rights under this Agreement; (ii) shall reproduce such Confidential Information only to the extent necessary for such purposes; (iii) shall restrict disclosure of such Confidential Information to employees or contractors that have a need to know for such purposes (with disclosure to contractors being limited to contractors that have signed a non-disclosure agreement to protect the Confidential Information of third parties); (iv) shall not disclose Confidential Information to any third party without prior written approval of the Disclosing Party except as expressly provided in this Agreement or as required by law, by court order, by administrative order of an agency having jurisdiction, or in the enforcement of its rights under this Agreement; and (v) shall use at least the same degree of care (in no event less than reasonable care) as it uses with regard to its own proprietary or confidential information to prevent the disclosure, unauthorized use or publication of Confidential Information. Neither Party shall take any action, including intentional memorization of the other Party’s Confidential Information, with the intent or purpose of evading obligations contained in this Article 14. In the event a Receiving Party is required to disclose Confidential Information of the Disclosing Party pursuant to law, court order or administrative order of an agency having jurisdiction, the Receiving Party will, if such notice is permitted by law, notify the Disclosing Party of the required disclosure with sufficient time for the Disclosing Party to seek judicial relief from the required disclosure, and reasonably cooperate with the Disclosing Party in any efforts the Disclosing Party may take to obtain protective measures in respect to the required disclosure. The Parties agree that breach of this Article 14 may cause irreparable injury for which monetary damages are not an adequate remedy; accordingly, each Party may seek injunctive relief and any other available equitable remedies to enforce the provisions of this Article 14. 14.3 California Public Records Act. Notwithstanding anything to the contrary contained elsewhere in this Article 14, the Parties understand and acknowledge that the City is a governmental entity, and that California law limits the ability of the City to shield from public disclosure any information given to the City. In the event that the City receives a request pursuant to the Public Records Act (or other similar law) to disclose Confidential Information belonging to Astound, the City’s sole obligations to Astound shall be: (i) to promptly notify Astound; and (ii) to refrain from disclosing such records for a period of up to ten (10) business days to allow Astound an opportunity to seek legal protection against disclosure from a court of competent jurisdiction. The City will not be required to withhold requested records beyond the ten (10) business days unless it may do so based on good faith reliance upon an exception to disclosure under the Public Records Act, or unless the City is ordered to withhold disclosure by the order of a court having competent jurisdiction. The City may, but shall not be required, to join in any legal proceedings relating to the requested disclosure. In the event that Astound initiates legal proceedings, or the City initiates legal proceedings or withholds requested records at Astound’s request, Astound shall indemnify and hold the City harmless from and against all costs, attorneys’ fees, expenses, liabilities, damages or other liabilities the City may incur due to the legal proceedings initiated at and/or the City’s withholding of records at Astound’s request. The City shall not be liable to Astound for any loss, cost or expense relating to the disclosure of requested records if Astound fails to obtain legal protection against disclosure and the City releases the records in good faith. ARTICLE 15: DISPUTE RESOLUTION 15.1 Good Faith Negotiations. Except for actions seeking a temporary restraining order or injunction, in the event any controversy, disagreement or dispute (each, a “Dispute”) arises between the Parties in connection with this Agreement, the Parties shall use good DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 11 City of San Luis Obispo / Astound Broadband, LLC faith efforts to resolve the Dispute through negotiation. In the event of a Dispute, either Party may give the other Party written notice of the Dispute (each, a “Dispute Notice”). The parties will meet and attempt to resolve the Dispute within ninety (90) days of the date on which the Dispute Notice is delivered. All discussions occurring and documents exchanged during negotiations under this Section are confidential and inadmissible for any purpose in any legal proceeding involving the Parties; provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation process. If the Parties do not resolve the Dispute within the ninety (90) day period, either of the Parties may pursue any remedy available to it under this Agreement, at law or in equity. 15.2 Governing Law. Any action arising out of this Agreement shall be brought in the Superior Court of San Luis Obispo County, California, regardless of where else venue may lie. The validity, interpretation, construction and performance of this Agreement, and all acts and transactions pursuant hereto and the rights and obligations of the Parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of California, without giving effect to principles of conflicts of law. ARTICLE 16: ASSIGNMENT Neither Party shall assign its rights under this Agreement; provided, however, that Astound may, after providing notice to the City, assign its interest in and to this Agreement to any entity acquiring Astound, either in whole or in part (a “Successor”) or to an Affiliate of Astound that has the rights and powers necessary to carry out Astound’s obligations under the Agreement or in the event of a change in control. Any Successor will be required to assume in writing all terms of this Agreement. ARTICLE 17: REPRESENTATIONS AND COVENANTS Each Party represents and covenants to the other Party as follows: (i) the execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized; (ii) this Agreement is a valid and legal agreement binding on such Party and enforceable in accordance with its terms; (iii) it has the power and authority to grant the rights it purports to grant and perform the obligations it undertakes to perform pursuant to this Agreement; (iv) to the best of its knowledge and belief, it is in material compliance with all laws, rules and regulations and court and governmental orders related to its operations; and (v) it shall comply with all applicable laws and regulations when exercising its rights and performing its obligations under this Agreement. ARTICLE 18: NOTICES Notices under this Agreement shall be in writing and transmitted to the Party’s addresses specified below, or such other addresses as the Party may specify by written notice, and will be considered given (i) when delivered in person to the recipient; (ii) five (5) days after being deposited in either registered or certified U.S. Mail, return receipt requested, postage prepaid; (iii) when delivered by a nationally recognized courier service; or (iv) when receipt of email delivery is confirmed by the recipient: If to the City: City of San Luis Obispo 990 Palm Street San Luis Obispo, CA 93401 ATTN: Information Technology Manager Email: jerquia@slocity.org If to Astound: Astound Broadband, LLC 650 College Road East, Suite 3100 Princeton, NJ 08540 ATTN: Business Solutions With a Copy to: ATTN: Email: With a Copy to: Astound Broadband, LLC 650 College Road East, Suite 3100 Princeton, NJ 08540 ATTN: Legal Department A Party may change its address and point of contact by notifying the other Party in writing in accordance with this Article. ARTICLE 19: GENERAL PROVISIONS 19.1 Warranty of Authority. Each of the signatories hereto warrants and represents that he or she has been duly authorized to execute this Agreement on behalf of the Party for whom he or she purports to sign this Agreement, and that this Agreement is binding DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 12 City of San Luis Obispo / Astound Broadband, LLC on such Party in accordance with its terms. 19.2 Entire Agreement; Amendment. This Agreement constitutes the entire agreement between the Parties regarding the subject matter hereof, and supersedes any and all prior oral or written agreements between the Parties regarding the subject matter contained herein. Any amendment, modification, or variation from the terms of this Agreement and/or to Exhibit C shall be in writing and shall be effective only upon mutual, written agreement of the parties. The City Manager shall have authority to approve such amendments on behalf of the City. 19.3 Interpretation. This Agreement and each of the terms and provisions of it are deemed to have been explicitly negotiated by the Parties, and the language in all parts of this Agreement shall, in all cases, be construed according to its fair meaning and not strictly for or against either of the Parties hereto. The captions and headings in this Agreement are used only for convenience and are not intended to affect the interpretation of the provisions of this Agreement. This Agreement shall be construed so that wherever applicable the use of the singular number shall include the plural number, and vice versa, and the use of any gender shall be applicable to all genders. 19.4 Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall, for any reason and to any extent, be found invalid or unenforceable, the remainder of this Agreement and the application of that provision to other persons or circumstances shall not be affected thereby, but shall instead continue in full force and effect, to the extent permitted by law. 19.5 No Joint Venture. The relationship between Astound and the City shall not be that of partners, agents, or joint venturers for one another, and nothing contained in this Agreement shall be deemed to constitute a partnership or agency agreement between them for any purposes, including, but not limited to federal income tax purposes. The personnel performing this Agreement on behalf of Astound shall at all times be under Astound’s exclusive direction and control and shall at no time be considered an employee of the City. Neither Party shall incur nor have the power to incur any debt, obligation, or liability whatsoever against the other Party, or bind the other Party in any manner. 19.6 No Third Party Beneficiaries. This Agreement is made and entered into for the sole benefit of Astound and the City. No third party shall be deemed to have any rights under this Agreement; there are no third party beneficiaries to this Agreement. 19.7 Survival. Those provisions of this Agreement that by their nature and import must survive the expiration or earlier termination of this Agreement in order to be given their full force and effect shall so survive. 19.8 Standard of Performance. All actions, activities, consents, approvals and other undertakings of the Parties in this Agreement shall be performed in a reasonable and timely manner. Except as specifically set forth herein, for the purpose of this Agreement the standards and practices of performance within the telecommunications industry in the relevant market shall be the measure of a Party’s performance. 19.9 Exhibits. The following Exhibits are attached to this Agreement and incorporated herein by this reference: EXHIBIT A - Map Depicting Approximate Location of City Conduit EXHIBIT B - Map Depicting Approximate Location of Existing Astound Fiber EXHIBIT C - Description of Licensed Dark Fibers EXHIBIT D - Last Mile FFA Grant Application EXHIBIT E - Insurance Requirements 19.10 Execution in Counterparts; Electronic Signatures. This Agreement may be executed in multiple counterparts, each of which shall constitute an original, and all of which shall constitute one and the same instrument. Any executed documents sent to the other Parties in portable document format (pdf) images via email will be considered the same as an original document. The Parties consent to the use of electronic signatures 19.11 Nondiscrimination. In the performance of this Agreement, Astound agrees that it will not engage in, nor permit such contractors as it may employ, to engage in discrimination in employment or in services offered against persons because of age, race, color, sex, national origin or ancestry, sexual orientation, or religion of such persons. DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 13 City of San Luis Obispo / Astound Broadband, LLC IN WITNESS WHEREOF, the City and Astound, intending to be legally bound hereby, have duly executed this Agreement as of the dates set forth below. CITY: City of San Luis Obispo, a California municipal corporation By Name: Title: Date: ASTOUND: Astound Broadband, LLC, a Washington limited liability company By Name: Title: Date: [The remainder of this page is intentionally left blank.] Matthew Updenkelder VP - Infrastructure Development Whitney McDonald Interim City Manager DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 6/19/2024 | 2:40 PM PDT6/19/2024 | 2:41 PM PDT PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 14 City of San Luis Obispo / Astound Broadband, LLC EXHIBIT A to PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Map Depicting Approximate Location of City Conduit [The remainder of this page is intentionally left blank.] DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 15 City of San Luis Obispo / Astound Broadband, LLC EXHIBIT B to PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Map Depicting Approximate Location of Existing Astound Fiber within City Conduit [The remainder of this page is intentionally left blank.] DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 16 City of San Luis Obispo / Astound Broadband, LLC EXHIBIT C to PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Description of Licensed Dark Fibers As of the Effective Date, the Licensed Dark Fibers consist of the following fiber routes: Name of Segment A Location End Point Z Location End Point Description of Fiber Approx. Distance Segment 1 [NAME OF BUILDING] [STREET ADDRESS 1] [STREET ADDRESS 2] [CITY, STATE ZIP] Lat: Long: Police Station 1042 Walnut SLO, CA 93401 Lat: 35.28603572971857 Long: -120.66338778923841 2 strands single mode dark fiber approx. ___ km Segment 2 [NAME OF BUILDING] [STREET ADDRESS 1] [STREET ADDRESS 2] [CITY, STATE ZIP] Lat: Long: Senior Center 1455 Santa Rosa SLO, CA 93401 Lat: 35.27914120054818 Long: -120.65702747342957 2 strands single mode dark fiber approx. ___ km Segment 3 [NAME OF BUILDING] [STREET ADDRESS 1] [STREET ADDRESS 2] [CITY, STATE ZIP] Lat: Long: Fire Station 4 1395 Madonna SLO, CA 93401 Lat: 35.25738850802565 Long: -120.69020788833546 2 strands single mode dark fiber approx. ___ km Segment 4 [NAME OF BUILDING] [STREET ADDRESS 1] [STREET ADDRESS 2] [CITY, STATE ZIP] Lat: Long: Fire Station 3 1280 Laurel Lane SLO, CA 93401 Lat: 35.266943295627414 Long: -120.63979881575827 2 strands single mode dark fiber approx. ___ km Segment 5 SLO Swim Center 900 Southwood Drive SLO, CA 93401 Lat: 35.26672143468056 Long: -120.64523990677016 Fire Station 3 1280 Laurel Lane SLO, CA 93401 Lat: 35.266943295627414 Long: -120.63979881575827 2 strands single mode dark fiber approx. 1.5 km Segment 6 [NAME OF BUILDING] [STREET ADDRESS 1] [STREET ADDRESS 2] [CITY, STATE ZIP] Lat: Long: City Hall Annex 880 Palm Street SLO, CA 93401 Lat: 35.28267295102646 Long: -120.66313229802573 2 strands single mode dark fiber approx. ___ km Segment 7 [NAME OF BUILDING] [STREET ADDRESS 1] [STREET ADDRESS 2] [CITY, STATE ZIP] Lat: Long: City Hall 990 Palm St SLO, CA 93401 Lat: 35.28302327349759 Long: -120.66276751760837 2 strands single mode dark fiber approx. ___ km Segment 8 [NAME OF BUILDING] Human Resources 2 strands single approx. ___ km DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 17 City of San Luis Obispo / Astound Broadband, LLC [STREET ADDRESS 1] [STREET ADDRESS 2] [CITY, STATE ZIP] Lat: Long: 994 Mill Street Ste 200 SLO, CA 93401 Lat: 35.28380706670408 Long: -120.66319947569666 mode dark fiber Segment 9 Parking Offices 1260 Chorro Street SLO, CA 93401 Lat: 35.27870613353161 Long: -120.66152847336923 County Datacenter 976 Osos St Fourth Floor SLO, CA 93401 Lat: 35.28328297282323 Long: -120.66245931575781 24 strands single mode dark fiber approx. 1 km Segment 9 [NAME OF BUILDING] [STREET ADDRESS 1] [STREET ADDRESS 2] [CITY, STATE ZIP] Lat: Long: PD Annex 1106 Walnut St. SLO, CA 93401 Lat: Long: __ strands single mode dark fiber approx. ___ km Additional Access Points: In addition to accessing the accessing the Dark Fiber at the End Points set forth above, the City shall also have the right to access the Licensed Dark Fibers at the additional access points listed below: Name of Segment Additional Access Point #1 Additional Access Point #2 Segment 1 [STREET ADDRESS 1] [STREET ADDRESS 2] [CITY, STATE ZIP] Lat: Long: N/A Segment 2 [STREET ADDRESS 1] [STREET ADDRESS 2] [CITY, STATE ZIP] Lat: Long: N/A Segment 3 [STREET ADDRESS 1] [STREET ADDRESS 2] [CITY, STATE ZIP] Lat: Long: N/A Segment 4 [STREET ADDRESS 1] [STREET ADDRESS 2] [CITY, STATE ZIP] Lat: Long: N/A Segment 5 [STREET ADDRESS 1] [STREET ADDRESS 2] [CITY, STATE ZIP] Lat: N/A DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 18 City of San Luis Obispo / Astound Broadband, LLC Long: [The remainder of this page is intentionally left blank.] DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 19 City of San Luis Obispo / Astound Broadband, LLC EXHIBIT D to PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES City of San Luis Obispo Last Mile Federal Funding Grant Application DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 20 City of San Luis Obispo / Astound Broadband, LLC DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 21 City of San Luis Obispo / Astound Broadband, LLC DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 22 City of San Luis Obispo / Astound Broadband, LLC DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 23 City of San Luis Obispo / Astound Broadband, LLC DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 24 City of San Luis Obispo / Astound Broadband, LLC DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 25 City of San Luis Obispo / Astound Broadband, LLC DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 26 City of San Luis Obispo / Astound Broadband, LLC DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 27 City of San Luis Obispo / Astound Broadband, LLC [The remainder of this page is intentionally left blank.] DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 28 City of San Luis Obispo / Astound Broadband, LLC EXHIBIT E to PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Insurance Requirements Without limiting Astound’s indemnification of City, Astound shall obtain, provide, and maintain at its own expense during the term of this Agreement, policies of insurance of the type, amounts and characteristics described below and in a form satisfactory to the City. Workers’ Compensation Insurance as required by applicable law(s); Astound shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees, and volunteers. Employer’s Liability Insurance with minimum limits of $1,000,000 each accident; Astound shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement in favor of City, its officers, agents, employees, and volunteers. Commercial General Liability Insurance including with coverage at least as broad as Insurance Services Office form CG 00 01, in an amount not less than $1,000,000 per occurrence, $2,000,000 general aggregate, for bodily injury, personal injury, and property damage related to (i) premises/operations, (ii) independent contractors, (iii) products/completed operations, (iv) personal injury, (v) contractual liability, and (vi) explosion, collapse and underground hazards. The policy must include contractual liability that has not been amended. Any endorsement restricting standard ISO “insured contract” language will not be accepted. Automobile Liability Insurance with minimum limits of $1,000,000 each accident; and Excess or Umbrella Liability Insurance, applicable to items (b), (c) and (d), with minimum limits of $5,000,000, per occurrence. Proof of insurance. Astound shall provide certificates of insurance and required endorsements to City as evidence of the insurance coverage required herein. Insurance certificates and endorsements must be approved by City’s Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City for the contract period and any additional length of time required thereafter. City reserves the right to require certificates of insurance as evidence that Astound has in place all required insurance policies, at any time. Duration of coverage. Astound shall procure and maintain for the contract period, and any additional length of time required thereafter, insurance against claims for injuries to persons or damages to property, or financial loss which may arise from or in connection with performance by Astound, their agents, representatives, employees, or subconsultants. Primary/noncontributing. Coverage provided by Astound shall be primary and any insurance or self-insurance procured or maintained by City shall not be required to contribute with it. The limits of insurance required herein may be satisfied by a combination of primary and umbrella or excess insurance. Any umbrella or excess insurance shall contain or be endorsed to contain a provision that such coverage shall also apply on a primary and non-contributory basis for the benefit of City before the City’s own insurance or self- insurance shall be called upon to protect it as a named insured. Acceptable insurers. All insurance policies shall be issued by an insurance company currently authorized by the Insurance Commissioner to transact business of insurance or is on the List of Approved Surplus Line Insurers in the State of California, with an assigned policyholders’ Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best’s Key Rating Guide, unless otherwise approved by the City’s Risk Manager. Requirements not limiting. Requirements of specific coverage features or limits contained in this section are not intended as a limitation on coverage, limits or other requirements, or a waiver of any coverage normally provided by any insurance. Specific reference to a given coverage feature is for purposes of clarification only as it pertains to a given issue and is not intended by any party or insured to be all inclusive, or to the exclusion of other coverage, or a waiver of any type. If Astound maintains higher limits than the minimums shown above, the City requires and shall be entitled to coverage for the higher limits maintained by Astound. Any available insurance proceeds in excess of the specified minimum limits of insurance and coverage shall be available to the City. Notice of cancellation. Astound agrees to oblige its insurance agent or broker and insurers to provide the City with a thirty (30) day notice of cancellation (except for nonpayment for which a ten (10) day notice is required) or nonrenewal of coverage for each required coverage. If any of Astound’s insurers are unwilling to provide such notice, then Astound shall have the DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721 PUBLIC/PRIVATE PARTNERSHIP AGREEMENT FOR BROADBAND SERVICES Page 29 City of San Luis Obispo / Astound Broadband, LLC responsibility of notifying the City immediately in the event of Astound’s failure to renew any of the required insurance coverages or insurer’s cancellation or non-renewal. Additional insured status. General liability, automobile liability, and umbrella/excess liability insurance policies shall provide or be endorsed to provide that City and its officers, officials, employees, agents, and volunteers shall be additional insureds under such policies. Prohibition of undisclosed coverage limitations. None of the coverages required herein will be in compliance with these requirements if they include any limiting endorsement of any kind that has not been first submitted to City and approved of in writing. Separation of insureds. A severability of interests provision must apply for all additional insureds ensuring that Astound’s insurance shall apply separately to each insured against whom claim is made or suit is brought, except with respect to the insurer’s limits of liability. The policy(ies) shall not contain any cross-liability exclusions. Pass-through clause. Astound agrees to ensure that its subconsultants, subcontractors, and any other party who is brought onto or involved in the project/service by Astound (hereinafter collectively “subcontractor”), provide the substantially the same minimum insurance coverage and endorsements required of Astound. Astound agrees to monitor and review all such coverage and assumes all responsibility for ensuring that such coverage is provided in conformity with the requirements of this section. However, in the event Astound’s subcontractor cannot comply with this requirement, which proof must be submitted to the City, Astound shall be required to ensure that its subcontractor provide and maintain insurance coverage and endorsements sufficient to the specific risk of exposure involved with subcontractor’s scope of work and services, with limits less than required of Astound, but in all other terms consistent with Astound’s requirements under this agreement. This provision does not relieve Astound of its contractual obligations under the agreement and/or limit its liability to the amount of insurance coverage provided by its subcontractors. This provision is intended solely to provide Astound with the ability to utilize a subcontractor who may be otherwise qualified to perform the work or services but may not carry the same insurance limits as required of the Astound under this agreement given the limited scope of work or services provided by the subcontractor. Self-insured retentions. Any self-insured retentions must be declared to and approved by City. City reserves the right to require that self-insured retentions be eliminated, lowered, or replaced by a deductible, or require proof of ability to pay losses and related investigations, claim administration, and defense expenses within the retention through confirmation from the underwriter. Timely notice of claims. Astound shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Astound’s performance under this Agreement, and that involve or may involve coverage under any of the required liability policies. Additional insurance. Astound shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection. Astound’s personal property, fixtures, equipment, inventory, and vehicles are not insured by City against loss or damage due to fire, theft, vandalism, rain, water, criminal or negligent acts of others, or any other cause. [The remainder of this page is intentionally left blank.] DocuSign Envelope ID: E8982E61-A050-4905-B2A4-D52A51CA3721