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1 WIRED TELECOMMUNICATIONS LICENSE AGREEMENT AND RIGHT-OF-WAY USE AGREEMENT BETWEEN THE CITY OF GLENDALE AND BAM BROADBAND OPCO LLC This Wired Telecommunications License (“License”) and Right-of-Way Use Agreement (“Agreement”) is effective as of this ____ day of _________, 2025, by and between the City of Glendale, an Arizona municipal corporation (“City”) and BAM BROADBAND OPCO LLC, a Delaware limited liability company (“Licensee”). RECITALS WHEREAS, City owns public street and alley right-of-way and public utility easements within the boundaries of the City of Glendale; and WHEREAS, BAM BROADBAND OPCO will not be providing pay telephone service and are therefore exempt from obtaining from the Arizona Corporation Commission a certificate of convenience and necessity (CC&N) by Decision No. 63262 dated December 14, 2000 (the "CC&N"); Should BAM BROADBAND OPCO ever decide to offer pay telephone service in any manner they agree to obtain and provide a CC&N certificate to the City of Glendale; and WHEREAS, BAM BROADBAND OPCO LLC desires the ability to able to install future Facilities withing the right-of-way and operate, maintain and repair existing Facilities within a portion of the right-of-way, subject to the requirements of this License and Agreement: and WHEREAS, BAM BROADBAND OPCO LLC has applied to City for permission to continue using the right-of-way to maintain its existing Fiber Optic Networks and provide Telecommunications Services; and WHEREAS, city is authorized to regulate its streets, alley and public utility easements, and to grant, renew, deny , amend and terminate licenses for and otherwise regulate the installation, operation and maintenance of such Facilities within the City’s boundaries pursuant to City Charter, Glendale City code, and by virtue of federal (47 U.S.C. § 253) and state statutes (including, but not limited to A.R.S §§ 9-581, 9-582, and 9- 583), by the city’s police powers, its authority over public right-of-way, and its other governmental powers and authority; and WHEREAS, City wants to reserve rights to construct and use and allow others to construct and use all manner of additional improvements in the right-of-way; and WHEREAS, BAM BROADBAND OPCO LLC agrees to provide and maintain accurate maps showing the location of all Facilitates owned by BAM BROADBAND OPCO LLC on public property including public utility easements within City, and to comply with such other mapping requirements as City may establish from time to time; and WHEREAS, BAM BROADBAND OPCO LLC will secure the appropriate licenses, encroachment and other permits acquired by the City Code for the placement of its Facilities placed in the City’s boundaries; and WHEREAS, BAM BROADBAND OPCO LLC has agreed to comply with the public property use requirements that City has established and may establish from time to time; and 2 NOW THEREFORE, for and in consideration of the foregoing, the amounts hereinafter to be paid by BAM BROADBAND OPCO LLC and the covenants and agreements contained herein to be kept and performed by BAM BROADBAND OPCO LLC, and for other good and valuable considering, the City herby grants to BAM BROADBAND OPCO LLC a telecommunication license (“License”) and permission to use the public right-of-way pursuant to the terms and conditions set forth herein. SECTION 1. Definitions ACC means the Arizona Corporation Commission. A.R.S means Arizona Revised Statutes. Backbone means a high-speed network that interconnects smaller, independent networks and is the through-portion of a transmission network (not the spurs that branch off). Cable Services and Cable System shall have the same meaning as defined in Chapter 10 of the Glendale City code. Call means the operations required to set up or establish, maintain, and terminate or release a connection through a telephone network in support of a communication between two or more stations. A call comprises a sequence of events that begins when an end user at an originating station initiates a call request to a switch that may work in conjunction with other switches to establish a connection to an end user at a destination station and concludes when one party (user) terminates the connection. Claim(s) means and includes losses, claims, damages, suits, actions, payments, judgements, demands, reasonable expenses and costs, including, but not limited to, reasonable attorney’s fees incurred through all appeals. Coarse Wavelength Division Multiplexing (“CWDM”) is a variation of WDM that carries four to eight wavelengths per fiber or more that is designed for short to medium-haul networks (regional and metropolitan areas). Commercial Mobile Radio Services means two-way voice commercial mobile radio service as defined by the FCC in 47 U.S.C § 157. Common Carrier means a private company offering interstate or foreign communication by wire or radio or the interstate of foreign transmission of energy to the general public on a non-discriminatory basis. Conduit means a pipe of either metal, ceramic or plastic that is designed to protect buried cables. Conduit System means any combination of Ducts, Conduits, manholes and handholes joined to form an integrated whole. Contractor means any person, firm, partnership, corporation, association or other organization, or a combination of any of them, that performs services or provides goods relating to this Agreement. Contractor shall include any subcontractor hired and/or used by BAM BROADBAND OPCO LLC Contractors for the performance of services or provision of goods relation to this Agreement. Dark Fiber means fiber optic strands that are not connected to the transmission equipment. Dense Wavelength Division Mulitplex: (“DWDM”) is a variation of WDM but with much higher bandwidth and density. Using DWDM, up to 80 or more separate wavelengths or channels of data 3 can be multiplexed on a single optical fiber. Each channel carries a time division multiplexed (TOM) signal. Since each channel can carry up to 2.5 Gbps, up to 200 billion bits per second can be delivered by the optical fiber simultaneously. Duct means a single enclosed tube, pipe or channel for enclosing and carrying cables, wires, and other facilities. Equipment means any tangible asset used to install, repair, or maintain Facilities in any ROW. Facilities means the plant, equipment, and property used int eh provision communication and telecommunication services and not owned by the city, including but not limited to poles, wires, pipe, conduits, pedestals, antenna, and other appurtenances placed in, on, or under Public Highways. FCC means the Federal Communications Commission. Fiber Optic Network is a communication system consisting of an optical transmitter to convert an electrical signal into an optical signal to send into the optical fiber, a cable containing bundles of multiple optical fibers that is routed through underground conduits and buildings, multiple kinds of amplifiers, and an optical receiver to recover the signal as an electrical signal. Information Service means the offering of a capability for generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information via telecommunications. Inner-Duct means a pathway created by subdividing a Duct into smaller channels. Intrastate Call means a call that originates and terminates in a single state. Interstate Call means a call that originates in one state and terminates in a different state (or country). Interstate Telecommunications Services Provider means a Telecommunications Corporation that places underground or above ground Facilities in the Public Highway for interstate telecommunications services. Interstate Traffic means a communication or transmission that originates in any state, territory, possession of the United States, or the District of Columbia and terminates in another state, territory, possession, or the District of Columbia. Manhole means an enclosure, usually below ground level and entered through a hole on the surface covered with a cast iron or concrete manhole cover, which personnel may enter and use for the purpose of installing, operating and maintaining cable and fiber in a Conduit. Multichannel Video System includes; a) A “cable system”, as the term is defined in title VI of the Federal Communications Act of 1934, providing service within the City: b) An “Open Video System”, as the term as defined in title VI of the Federal Communications Act of 1934, 47 U.S.C § 573 and implementing regulations (47 CFR § 76.1500), providing services within the City: c) Any other system providing Multichannel Video Programming Services within the City where the service is transmitted in whole or in part via wires or lines that are in or cross any ROW within the City. The preceding sentence shall apply whether the provider owns, leases or otherwise obtains 4 the right to use the wires or lines, including wires or lines of telecommunications provide used pursuant to tariff or other for that purpose; d) Any other system providing Multichannel Video Programming Services within the City where a license or similar permission or approval from the City is required under applicable law. For purposes of this License, “Multichannel Video Programming Services” means multiple channels of video programming where some o all of the video programming is generally considered comparable to programming provided by a television broadcast station or by a direct to home satellite service. Multichannel Video Programming Services specifically includes, but is not limited to, “cable service” as the term is used in Title VI of the Federal Communications Act of 1934. Parties shall collectively mean the City of Glendale and BAM BROADBAND OPCO LLC of Delaware. Point of Presence (POP) means a telecommunications facility where network equipment is located to be used to connect customers to a network backbone. Provider means a Telecommunications Corporation that constructs, installs, operates or maintains telecommunications Facilities in the City Public highways. Public Emergency means any condition which, in the opinion of City officials, poses an immediate threat to the lives or property of the citizens of Glendale or others caused by any natural or man- made disaster, including but not limited to, storms, floods, fire, accidents, explosions, major water main breaks, hazardous material spills, etc. Public Highway means the roads, streets and alleys and all other dedicated public ROW and public utility easements of the City. Public Service Corporation means a corporation engaged in furnishing gas, oil, or electricity for light, fuel, or power; or in furnishing water for irrigation, fire protection, or other purposes; or in furnishing, for profit, hot or cold air or steam for heating or cooling purposes; or engaged in collecting, transporting, treating, purifying and disposing of sewage through a system, for profit; or in transmitting messages or furnishing public telegraph or telephone service, and all corporations other than municipal, operating as common carriers. However, a message transmitting company is only a public service corporation if it is a common carrier. Right-of-Way (“ROW”) shall have the same meaning as Public Highway. Service Lateral means an underground facility that is used to transmit, distribute, or furnish communications from a common source to an end-use customer. Telecommunications Services means the offering of telecommunications for a fee directly to the public, or to such users as to be effectively available directly to the public, regardless of the facilities used. Wavelength Division Multiplexer (“WDM”) means a device that combines optical signals from multiple different single-wavelength end devices onto a single fiber. WDM carries two to four wavelengths per fiber. 5 SECTION 2. Permission to Use Right-of Way 2.1 Subject to the provisions of this Agreement, the Glendale City Code, the City Glendale Charter, and Arizona and federal law, City hereby grants BAM BROADBAND OPCO LLC permission to use the designated portions of the right-of-way (“ROW”) pursuant to the terms and conditions of the License and Agreement. 2.2 BAM BROADBAND OPCO LLC’s use and occupation of the ROW shall in all respects conform to all and each of the following provisions: 2.2.1 Permitted Uses. BAM BROADBAND OPCO LLC shall use the portions of the ROW solely of the uses allowed under this License and Agreement and shall conduct no other activity at or from those designated portions of the ROW as described on Exhibit A. The permitted uses are limited to the following: 2.2.1.1 Constructing, maintaining, repairing and operating the Facilities as described in this Agreement. 2.2.1.2 To the extent that any Fiber Optic Networks within the route within the City carry intrastate and/or intestate Calls as referenced by A.R.S. §§ 9-582 and 9-583, the City hereby grants BAM BROADBAND OPCO LLC a revocable and nonexclusive Telecommunications License (“License”) to run concurrently with the term of this Agreement. 2.2.1.3 BAM BROADBAND OPCO LLC may locate its Fiber Optic Network in the ROW at the locations shown on the maps submitted to and approved by the City as part of the City’s permitting process and should be deemed Critical Infrastructure. 2.2.1.4 Such additional related uses for which City may give or retract consent from time to time. Such additional uses may only be conducted following City’s sole and absolute discretion. 2.3 All other uses of the ROW are prohibited. BAM BROADBAND OPCO LLC may not allow third parties to use the Facilities for any use that BAM BROADBAND OPCO LLC itself does not have the authority under this License and Agreement to use the Facilities for. 2.3.1 The Telecommunications License granted by this Agreement does not allow BAM BROADBAND OPCO LLC to provide one-way transmissions by anyone directly to customers or any other type of video programming to other programming or transmission that may be subject to a cable television license or franchise. This License does not allow a Multichannel Video System and/or the providing of Multichannel Video Programming Services. 2.3.2 If BAM BROADBAND OPCO LLC ever obtains or seeks federal, state or local approval to provide a cable system or open video system (“Video Services”) over the Fiber Optic Networks, this License and Agreement shall remain in effect according to its terms and BAM BROADBAND OPCO LLC shall continue to pay any fee required by this Agreement, regardless of any legal or regulatory provisions, permits or other processes or rules that might now or hereafter provide otherwise. 2.3.3 Without limiting the other amendment or waiver provisions of this License and Agreement, no change to or waiver of this Agreement’s provisions regarding Video Services is effective without a formal amendment to this Agreement executed by City after approval by the City 6 Council. City has not promised any such amendment or waiver. This agreement does not prohibit the parties from entering into other agreements regarding the Fiber Optic networks or Conduit Systems, should bot parties desire to do so in their sole and absolute discretion. 2.4 The authority to install and construct any Conduit System and/or Fiber Optic Networks on City property granted herein authorizes BAM BROADBAND OPCO LLC only to install such Fiber as is necessary to construct and operate the infrastructure described in this Agreement in order to provide the authorized Services and does not authorize BAM BROADBAND OPCO LLC to install or construct any Facilities not expressly provided or in this Agreement. 2.5 To the extent that BAM BROADBAND OPCO LLC uses the City’s ROW to provide services other than the telecommunications services as defined by A.R.S. § 9-581, such use and/or occupation of the ROW is subject to the terms and conditions of this Agreement and any applicable fees, permits and laws. 2.6 BAM BROADBAND OPCO LLC shall comply with all applicable laws as amended from time to time, including but not limited to, the Glendale City Code and the City Charter and Arizona and federal law in the exercise and performance of its rights and obligations under this Agreement. If it is necessary for BAM BROADBAND OPCO LLC to comply with any law or regulation of the FCC or the ACC to engage in the business activities anticipated by this Agreement, BAM BROADBAND OPCO LLC shall comply with such laws or regulation as a condition precedent to exercising any rights granted by this Agreement. Provided, however, no such law or regulation of the FCC or ACC shall enlarge or modify any of the rights or duties granted by this Agreement without a written medication to this Agreement. SECTION 3. Non-Exclusive Rights/Priority Rights 3.1 This grant is not exclusive and nothing herein contained shall be construed to prevent City from granting other like or similar grants or privileges to any other person, firm or corporation, or to deny to or lessen the powers and privileges granted City under the Constitution and laws of the State of Arizona. 3.2 Any and all rights granted to BAM BROADBAND OPCO LLC shall be subject to the prior and continuing right of City to use the ROW exclusively or concurrently, with any other person or persons, and to manage City’s own Facilities. Any and all rights granted to BAM BROADBAND OPCO LLC shall also be subject to all deeds, easements, dedications, conditions, covenants, restrictions, encumbrances, and claims to title which may affect public property. Nothing in this License shall be construed to grant, convey, create or vest a perpetual real property interest in land to BAM BROADBAND OPCO LLC, including any fee or leasehold interest, easement, or any franchise rights. 3.3 Any right or privilege claimed pursuant to this Agreement by BAM BROADBAND OPCO LLC for any use of any public ROW shall be subordinate to: A) any prior or subsequent lawful occupancy or use thereof by the City or any other governmental entity; B) any prior lawful occupancy or use thereof by any other person; C)and to any prior easements therein, provided however, that nothing herein shall extinguish or otherwise interfere with property rights established independently of this Agreement. 3.4 There is hereby reserved to City every right and power required pursuant to this Agreement to be herein reserved or provided by any lawful ordinance or the Charter of the City, and BAM BROADBAND OPCO LLC by its execution of this Agreement agrees to be bound thereby and to comply with any lawful action of lawful requirements of the City in its exercise of such rights or power, heretofore or hereinafter enacted or established. Neither the granting of any Agreement nor any provision hereof shall constitute a waiver or bar to the exercise of any lawful governmental right or power of City. 7 3.5 By executing this Agreement, City does not waive any rights that it may have against any public utility or other property owner to require that such owners obtain prior approval from the City for such uses of their property or facilitates, or that revenues received by any public utility or other property owner from BAM BROADBAND OPCO LLC, by virtue of BAM BROADBAND OPCO LLC’s use of their property or facilities be included in the computation of any use agreement fees owed by such parties to the City. 3.6 Nothing in this Agreement shall be construed to prevent the City from abandoning, altering, improving, repairing, or maintaining its Facilitates and/or the ROW, and for the purpose to require BAM BROADBAND OPCO LLC, at no expense to the City, to remove, relocate or abandon in place BAM BROADBAND OPCO LLC’s Facilities in order to accommodate the activities of the City. Such decision to ask BAM BROADBAND OPCO LLC to remove, relocate or abandon in place BAM BROADBAND OPCO LLC’s Facilities in order to accommodate the activities of the City shall be thoughtfully considered and the City shall use reasonable efforts to avoid repeated impact on BAM BROADBAND OPCO LLC’s Facilitates. The City shall not be liable for lost revenues sustained by BAM BROADBAND OPCO LLC, however caused, because of damage, modification, alteration, or destruction of its Facilitates in the ROW, when such costs or lost revenues result from the construction, operation, and/or maintenance of city Facilities and/or the ROW, provided that the activities resulting in such costs or lost revenues are conducted in accordance with applicable laws and regulations. SECTION 4. Notice of Other Users 4.1 BAM BROADBAND OPCO LLC may enter into contracts with unrelated third parties (“Users”) in the ordinary course of BAM BROADBAND OPCO LLC’s business for use of the Conduit Systems and/or Fiber Optic Networks within the portions of the ROW subject to this Agreement. Such contracts (“User Contracts”) shall be subject to all requirements and provisions of the Agreement and the following: 4.1.1 Such Users shall not perform any construction, maintenance, repair or other work of any kind in the ROW related to the Fiber Optic Networks or Conduit System(s) and the identity of such Users must be disclosed to the City upon request, but such information will be considered Confidential and Proprietary under Section 31.2.3. All User Contracts shall prohibit such Users from performing any construction, maintenance, repair or other work of any description in the ROW related to the Fiber Optic Networks or Conduit System(s), unless such Users have an agreement with the City. 4.1.2 In the event the Uder Contract provides for the User to construct, install, operate or maintain any portion of the Fiber Optic Networks or Conduit System(s) within the route in the ROW, no such arrangement shall proceed until the User enters into an Agreement with the City for use of the City’s ROW. 4.2 BAM BROADBAND OPCO LLC shall cause to comply with this Agreement all persons using the ROW through or under BAM BROADBAND OPCO LLC or this Agreement. BAM BROADBAND OPCO LLC is responsible for any violations of this Agreement by persons using the ROW through or under BAM BROADBAND OPCO LLC or this Agreement. SECTION 5. Description of the Services and Routes 5.1 BAM BROADBAND OPCO LLC uses its Fiber Optic Network to offer voice, data, and internet services over fiber. 8 5.2 BAM BROADBAND OPCO LLC’s current initial planned routes for its Conduit Systems and Fiber Optic Networks are shown on Exhibit A. BAM BROADBAND OPCO LLC has 0 Linear Feet of owned conduit in the ROW within the City. SECTION 6. Regulatory Conditions Relating to the Right-of-Way Usage For purposes of the Agreement, whenever work is done in the ROW relating to any of the Facilities, BAM BROADBAND OPCO LLC agrees that is solely responsible for the acts, errors, omissions, and any negligence of any or all of its Contractors and the obligations of Sections 6 and 7 are imposed on both BAM BROADBAND OPCO LLC and any of its Contractors, for whom BAM BROADBAND OPCO LLC will be responsible. BAM BROADBAND OPCO LLC will ensure that BAM BROADBAND OPCO LLC and it Contractors comply with Public ROW use requirements as follows: 6.1 Registration. BAM BROADBAND OPCO LLC agrees to register with the City by completing an application or renewal application form and paying the application fee. 6.2 Notice of Changes. BAM BROADBAND OPCO LLC shall file a proposed amendment to the registration before it makes any change that would render the registration information incomplete or inaccurate. A change of BAM BROADBAND OPCO LLC’s name or address must be filed at least sixty (60) days prior to the date the change becomes effective; a change in the telephone number must be filed ten (10) days before the change becomes effective; and in the case of a change in the Facilities (by addition, subtraction or modification or movement), the change in Facilities must be filed at least sixty (60) days before work commences on the Facilitates unless the relocation was ordered ty the City. In the case of a change in the category of services offered, the change must be noticed thirty (30) days before the earlier of the date the service commences, or BAM BROADBAND OPCO LLC begins marketing the service. 6.3 BAM BROADBAND OPCO LLC is completely responsible for ensuring that its Facilities are constructed, installed, operated and/or maintained in accordance with the City of Glendale City Code and established practices with respect to such public ROW and easements such as the proper permits being applied for prior to commencing any work and that the terms and conditions of such permits are strictly followed. 6.4 BAM BROADBAND OPCO LLC’s use of the public ROW and easements under the control of the City shall be according to plans approved by the City Engineer, provided that such approval shall not be unreasonably withheld or delayed. 6.5 The facilities to be constructed, installed, operated, maintained, upgraded and removed hereunder, shall be so located or relocated as to interfere as little as possible with traffic or other authorized uses within said public ROW and easements. Any phases of construction and/or installation relating to traffic control, backfilling, compaction and paving, as well as the location or relocation of said Facilities shall be subject to regulation by the City Engineer. 6.6 BAM BROADBAND OPCO LLC and its agents shall be subject to the City’s exercise of such police, regulatory and other powers as it now has or may later obtain, and BAM BROADBAND OPCO LLC may not waive the application of the same. City shall have continuing jurisdiction and supervision over any Facilities located within or on public ROW. Daily administrative, supervisory, and enforcement responsibilities shall be delegated and entrusted to the City Manager or designee to interpret, administer and enforce the provisions of this License Agreement. 9 SECTION 7. Plan Approval, Permits and Inspection 7.1 No Facilities shall be changed, installed, constructed, located on, or attached to any property within the City ROW, public utility easements and any other easements dedicated to the City until BAM BROADBAND OPCO LLC has applied for and received approval for permits from the City Engineer. BAM BROADBAND OPCO LLC shall be solely responsible for any and all acts, errors, omissions and negligence of its Contractor(s) who are involved in the installation, construction, maintenance, repair, location, relocation and any other activity involving BAM BROADBAND OPCO LLC’s Facilities subject to this License and Agreement. Additionally, BAM BROADBAND OPCO LLC and it Contractor(s) shall comply with all other provisions of the Glendale City Code, including but not limited to Chapter 28 regarding off-site construction, Chapter 30 regarding street and sidewalks, and other applicable City and/or Maricopa County regulations. All rights hereunder are granted under the express condition that the City shall have the power at any time to impose lawful restrictions and limitations upon, and to make regulations as to BAM BROADBAND OPCO LLC’s use of the public ROW as may deemed best for the public interest, safety, or welfare to the same extent that such restrictions and limitations are applied to all non- governmental users of the public ROW. 7.2 BAM BROADBAND OPCO LLC shall submit the applicable Permit Application(s) together with the details, plans and specifications for City review and approval, and pay all applicable application, review and inspection fees prior to any and all construction work performed pursuant to the rights granted under this Agreement. BAM BROADBAND OPCO LLC and/or its Contractor(s) shall abide by all stipulations of all licenses and permits issued. If BAM BROADBAND OPCO LLC desires to change the location of any portion of the Conduit System(s) and/or Fiber Optic Network(s), including any related Facilities or equipment, from the set forth in the initial Permit Application BAM BROADBAND OPCO LLC shall apply for and obtain approval for an amendment to the permit prior to installation or construction. 7.3 The City may issue reasonable policy guidelines to all licensees/users to establish procedures for determining how to control issuance of engineering permits to multiple licensees/users for the same one- mile segments of their Facilities. BAM BROADBAND OPCO LLC agrees to cooperate with the City in establishing such policy and comply with the procedures established by the City Engineer or designee to coordinate the issuance of multiple engineering permits in the same one-mile segments. 7.4 City will approve or deny such applications based on the availability of space at the location sought by BAM BROADBAND OPCO LLC, safety and other considerations in accordance with the City’s Code, applicable ROW construction regulations and other appliable law. BAM BROADBAND OPCO LLC and/or its Contractor(s) agree to comply with the terms of any City-issued licenses and permits. 7.5 Any new conduit or other Facilities placed in the ROW will be constructed using industry standard horizontal directional drilling, directional drilling, and trenching construction methods. Other material placed in the ground may include concrete manholes, generally 4x4x4, pull boxes/handholes, utility boxes, and HDPE couplings and elbow, fiber optic cable, splice cases, tracer wire, grounding material, mule tape, jet string and conduit plugs. BAM BROADBAND OPCO LLC and/or its Contractor(s) will install any new Conduit and access points (manholes/pull boxes) using industry standard practices and in full compliance with Uniform Standard Specifications and Details for Public Works Construction sponsored and distributed by the Maricopa Association of Governments as amended hereinafter referred to as “MAG”, the City’s supplements to MAG, and the City of Glendale Utility Permit and Construction Manual. 7.6 The City shall have the right to inspect all construction or installation work performed subject to the provisions of this License and to make such tests as it shall find necessary to meet City standards as set forth in the City of Glendale Utility Permit and Construction Manal and the MAG Uniform Standard 10 Specifications and Details for Public Works Construction and the City of City Supplements thereto and to ensure compliance with the terms of this License and other pertinent provisions of law. 7.7 Any new Conduit system(s) and/or Fiber Optic Network(s) shall be installed in multiple phases as agreed upon by BAM BROADBAND OPCO LLC and the City. If portions of this project will take place on the major arterial streets in City, BAM BROADBAND OPCO LLC and City will work to minimize the inconvenience to the citizens of City and others who use those major arterial streets impacted by the project by developing segments of the project to be completed in sequence. 7.8 Any Conduit systems and/or Fiber Optic Network(s) to be constructed, installed, operated and maintained under this Agreement shall be located or relocated so as to interfere as little as possible with traffic, existing utilities or other authorized uses over, under or through said streets and public ways. BAM BROADBAND OPCO LLC shall not install, operate, or allow the use of equipment, methodology or technology that may or would interfere with the optimum effective use or operation of City’s existing or future fire, emergency or other communications equipment, methodology or technology (i.e., voice or other data carrying receiving or transmitting equipment). If such interference should occur, BAM BROADBAND OPCO LLC shall immediately discontinue using the equipment, methodology or technology that causes the interference. Any such corrective measures shall be made at no cost to City. BAM BROADBAND OPCO LLC shall be responsible to ensure compliance with this Agreement by all persons using the ROW through or under BAM BROADBAND OPCO LLC or this Agreement. 7.9 Co-location. BAM BROADBAND OPCO LLC’s installation of the Facilities shall be reasonably coordinated with other utilities and City to accommodate opportunities for common installation along with BAM BROADBAND OPCO LLC’s route as set forth in this Agreement. All installations of cable and/or fiber shall be in Conduit or innerduct as reasonably approved by the City Engineer. Provided, however, nothing herein shall require BAM BROADBAND OPCO LLC to incur any material additional expense to accommodate common installations. 7.10 Although the exact placement and location of any additional Facilities shall be determined by City through the permit process, BAM BROADBAND OPCO LLC has expressed its intent and City has expressed its desire to have any Facilities installed outside of the paved street areas whenever such location is feasible and reasonable. Further, if it is the intent and desire of BAM BROADBAND OPCO LLC for the Conduit System to be placed by horizontal directional drilling under such streets when feasible and reasonable, bore profiles based on vacuum pothole information shall be part of the engineered plans submitted to the City. Arterial streets shall not be bored unless approved by the City Engineer. In the event that a street opening in new pavement or resurfaced pavement cannot be avoided, BAM BROADBAND OPCO LLC agrees to pay a surcharge fee to cover damages and early deterioration will be assessed for cutting new or resurfaced pavements less than seven years old. 7.11 BAM BROADBAND OPCO LLC shall also provide and identify a representative, such as a project manager, who shall be the contact person for the City during any construction periods. 7.12 Prior to the start of any construction work, BAM BROADBAND OPCO LLC shall provide written notice to all adjacent or affected residents or businesses at least for-eight (48) hours in advance of any street, alley, sidewalk, and driveway closures and make suitable arrangements to have all vehicles moved to a satisfactory location outside the closed area. 7.12.1 If an emergency requires activity without such written notice, BAM BROADBAND OPCO LLC shall use reasonable best efforts to provide timely actual notice to the owners or other persons having lawful control of the adjoining property. Upon request, BAM BROADBAND OPCO LLC 11 shall promptly furnish to City documentation of such permission from such other affected property owner or tenant. 7.13 Whenever BAM BROADBAND OPCO LLC or its Contractors shall cause any opening or alteration to be made for any purpose in any public streets, or public places, the opening or alteration shall be completed and restored with due diligence within seven (7) business days. BAM BROADBAND OPCO LLC shall upon the completion of the opening or alteration, restore the property, improvements or landscaping disturbed by BAM BROADBAND OPCO LLC or its Contractors to a condition substantially comparable to the condition before the opening or alteration and the restoration shall be performed with due diligence within a reasonably prompt time. 7.14 Traffic Control. 7.14.1 All Traffic shall be regulated in accordance with MAG; the City of Phoenix Barricade Manual, latest edition, available through the City of Phoenix Traffic Engineering; the Manal on Unform Traffic Control Devices (MUTCD); any Special Provisions included herein. 7.14.2 At the time of the pre-construction conference, BAM BROADBAND OPCO LLC shall designate an American Traffic Safety Services Association (ATSSA) certified individual who is well qualified and experienced in construction traffic control and safety, to be responsible for implementing, monitoring, and altering traffic control measures as necessary to require that traffic is carried through the work area in an effective manner and that motorists, pedestrians, bicyclists, and workers are protected from hazard and accidents. At the same time, the City shall designate a representative who will be responsible to see that all traffic control and traffic control alterations are implemented per these traffic control specifications. 7.14.3 BAM BROADBAND OPCO LLC shall have the full responsibility and liability for traffic control for work performed by BAM BROADBAND OPCO LLC or their Contractors. BAM BROADBAND OPCO LLC shall submit a Traffic Control Plan to Traffic Engineering for approval one week prior to beginning work under this Agreement. It shall be noted Traffic under this Agreement shall include all motor vehicles, bicyclists, and pedestrians. BAM BROADBAND OPCO LLC shall not begin construction until the Traffic Control Plan is approved by the City. An approved Traffic Control Plan shall be maintained onsite during all phases of construction, otherwise construction will cease until the Traffic Control Plan is approved. 7.14.4 During construction it may be necessary to alter traffic control as approved by Traffic Engineering. Alterations to traffic control shall be in accordance with the latest edition of Part VI of the Manual on Uniform Traffic Control Devices: “Traffic Control for Streets and Highway Construction and Maintenance Operations”; the latest edition of the City of Phoenix Traffic Control Manual, latest edition. The most restrictive manual shall apply. BAM BROADBAND OPCO LLC shall pay any and all applicable barricade fees. 7.14.5 City will make no payment for traffic control. The cost for any fees shall be BAM BROADBAND OPCO LLC’s responsibility. 7.14.6 In the event BAM BROADBAND OPCO LLC or its Contractor(s) damages any traffic signal equipment, traffic signal conduit, loop detectors and/or circuits, it shall have them repaired immediately at its expense by an electrical Contractor that has had traffic signal experience which is pre-approved by the City. Any damage caused by BAM BROADBAND OPCO LLC or its 12 Contractor(s) that is repaired by the City will be billed to BAM BROADBAND OPCO LLC at cost. 7.14.7 Pedestrian access shall be maintained along the length of the project at all times per the requirements of the ADA and as approved by Traffic Engineering. 7.14.8 Speed limits shall be strictly enforced. 7.14.9 For more information, please contact the City of Glendale Traffic Engineering. 7.15 Clean Up. BAM BROADBAND OPCO LLC and/or its Contactor(s) shall, during construction and upon completion of work, remove all temporary construction facilities, debris, and unused materials provided for in the work, and put the works site of the work and public ROW in a safe, neat and clean condition. 7.16 Safety. BAM BROADBAND OPCO LLC and BAM BROADBAND OPCO LLC’s Contractor(s) shall be solely and completely responsible for the conditions of any job site where the infrastructure is being placed that are related to the work undertaken by BAM BROADBAND OPCO LLC, including safety of all persons (including employees) and property during performance of the work. This requirement shall apply continuously and not be limited to normal working hours. Safety provisions shall conform to all applicable federal (including OSHA), state, county, and local laws, ordinances, codes, and regulations. Where any of these are in conflict, the more stringent requirement shall be followed. BAM BROADBAND OPCO LLC’s failure to thoroughly familiarize itself with the aforementioned safety provisions shall not relieve BAM BROADBAND OPCO LLC from compliance with these provisions. 7.17 Blue Stake. BAM BROADBAND OPCO LLC and its Contractor(s) shall comply with A.R.S. §§ 40-360.21 through 40-360.32 by participating as a member of the Arizona Blue Stake Center with the necessary records and persons to provide the location service of BAM BROADBAND OPCO LLC’s Facilities upon receipt of a locate call or as promptly as possible, but in no event later than two working days. A copy of the Agreement or proof of membership shall be filed with the City Engineer. SECTION 8. Hazardous Substances BAM BROADBAND OPCO LLC’s and its Contractor(s) activities upon or about the ROW shall be subject to the following regarding any hazardous or toxic substances, waste or materials, or any substance now or hereafter subject to regulation under the Comprehensive Environmental Response Compensation and Liability Act 42 U.S.C §§ 9601, et. Seq. or any other federal, state, county or local law pertaining to hazardous substances, waste or toxic substances and their reporting requirements (collectively “Toxic Substances”). 1. BAM BROADBAND OPCO LLC and/or its Contractor(s) shall not produce, dispose, transport, treat, use or store any Toxic Substances upon or about the ROW. The prohibitions of the preceding sentence only shall not apply to: a. Ordinary gasoline, diesel fuel or other fuels or lubricants necessary for ordinary use in motor vehicles and ordinary construction machinery permitted upon the ROW. Such materials must be properly and lawfully contained in ordinary quantities, in ordinary quantities in ordinary tanks and receptacles that are permanently installed in such vehicles and machinery. b. Electric backup batteries. 13 2. BAM BROADBAND OPCO LLC and /or its Contractor(s) shall dispose of any Toxic Substances away from the ROW as required by law and as reasonably required by City. 3. BAM BROADBAND OPCO LLC and/or its Contractor(s) shall not use the ROW in a manner inconsistent with regulations issued by the Arizona Department of Environmental Quality, or in a manner that would require a permit or approval from the Arizona Department of Environmental Quality or any other governmental agency. The preceding sentence does not prohibit ordinary permits for control of dust during construction permitted by this Agreement. 4. In addition to and without limitation of any other indemnities or obligations, BAM BROADBAND OPCO LLC shall pay, indemnify, defend and hold City harmless against any loss or liability incurred by reason of any Toxic Substance on or affecting the portion of the ROW used that is attributable to or caused by BAM BROADBAND OPCO LLC, its Contractor(s) or anyone using the ROW under this Agreement. 5. BAM BROADBAND OPCO LLC and/or its Contractor(s) shall immediately notify City of any Toxic Substance at any time discovered or existing upon the ROW. BAM BROADBAND OPCO LLC is not responsible for Toxic Substances that may exist at the ROW if BAM BROADBAND OPCO LLC’s Contractors and/or any other persons using the ROW under this Agreement do not do any of the following: a. Knowingly participate in the Toxic Material coming to the ROW b. Knowingly fail to immediately report the Toxic Material to City c. Knowingly participate in spreading or otherwise disturbing the Toxic Material d. Knowingly exacerbate the effects of the Toxic Material or the difficulty or cost of dealing with Toxic Material 6. BAM BROADBAND OPCO LLC understands the hazards presented to persons, property and the environment by dealing with Toxic Substances. BAM BROADBAND OPCO LLC acknowledges the possibility that the ROW may contain actual or presumed asbestos and other Toxic Substances containing materials. 7. Within twenty-four (24) hours after any violation by BAM BROADBAND OPCO LLC and/or by its Contractor(s) of this Agreement pertaining to Toxic Substances, BAM BROADBAND OPCO LLC shall give City notice reporting such violation. Section 9. On-Call Assistance BAM BROADBAND OPCO LLC shall be available to staff employees of any City department having jurisdiction over BAM BROADBAND OPCO LLC’s activities twenty-four (24) hours a day, seven (7) days a week, regarding problems or complaints resulting from the installation, operation, maintenance, or removal of its Network. City may contact by telephone the network control center operator at the following phone number 602-318-5092 regarding such problems or complaints and may use that number in order to reach BAM BROADBAND OPCO LLC at any time for emergency matter. BAM BROADBAND OPCO LLC shall use reasonable efforts to respond to any issues within the time frames specified in its service level agreements. BAM BROADBAND OPCO LLC shall make arrangements with a local entity to handle any necessary problems or complaints that require a physical presence. 14 Section 10. Mapping Requirement 10.1 BAM BROADBAND OPCO LLC shall maintain As-Built Drawings of its Facilities located within the ROW and furnish a copy both electronically in an ESRI-compatible mapping format (or in a mapping format compatible with the current City electronic mapping format as specified by the City) and in hard copy form if requested by the City. Upon completion of new or relocation construction of underground Facilities in ROW, BAM BROADBAND OPCO LLC shall create and maintain precise, up-to-date maps of any of its Conduit System and/or Fiber Optic Network routes and any above ground equipment located in the ROW and precise and verifiable horizontal and vertical location information and will make this information available to the city upon the installation of any new Facilities. BAM BROADBAND OPCO LLC will also provide surface-location marking of any of BAM BROADBAND OPCO LLCS’s Facilities that are located underground within any public ROW within 10 (ten) business days of installation. 10.2 If complete updates are not provided in a compatible format, BAM BROADBAND OPCO LLC shall pay the actual, reasonable costs the City incurs to update the city’s electronic mapping format due to the location or relocation of BAM BROADBAND OPCO LLC’Ss Facilities. However, before the City incurs any cost to convert updates provided by BAM BROADBAND OPCO LLC, it will notify BAM BROADBAND OPCO LLC that it cannot access the updates that had been provided. If within fourteen (14) days, BAM BROADBAND OPCO LLC has not either provided compatible updates or provided the city an agreeable date by which such updates will be received by City, City will convert the incompatible updates unilaterally. 10.3 In the event that BAM BROADBAND OPCO LLC fails to supply records in the City specified format, and there is a cost to the City in convert BAM BROADBAND OPCO LLC provided files, BAM BROADBAND OPCO LLC will be responsible for the conversion costs and will pay such costs within thirty (30) days of the date of the bill from the City invoicing the amount due. However, before the City incurs any cost to convert BAM BROADBAND OPCO LLC provided files, it will notify BAM BROADBAND OPCO LLC that it cannot access the records that had been provided. If within fourteen (14) days, BAM BROADBAND OPCO LLC has not either provided compatible records or provided the City an agreeable date by which such updates will be received by the City, City will convert the incompatible updates unilaterally. Section 11. Relocation 11.1 BAM BROADBAND OPCO LLC shall relocate at no expense to the City any Facilities or other encroachment installed or maintained in, on or under any public place or ROW, as may be necessary to facilitate any public purpose any Cit project whenever directed to do so by City. The City will not exercise its right to require BAM BROADBAND OPCO LLC Facilities to be relocated in an unreasonable or arbitrary manner. However, to the extent that the City receives funds from any third parties or government entities for a project that requires the relocation of Facilities owned, operated and/or maintained by the BAM BROADBAND OPCO LLC, the City shall allocate such funds to the relocation of BAM BROADBAND OPCO LLC’s Facilities. If more than one licensee is required to relocate for the same project, and is eligible for reimbursement, any such funds shall be distributed on a pro-rate basis based on the total relocation costs of each of the licensees eligible for such reimbursement. BAM BROADBAND OPCO LLC shall not hold the City liable for failure to request or file a claim for any funds for the relocation of the BAM BROADBAND OPCO LLC’s Facilities. Such relocations shall be accomplished in accordance with the directions from City and shall be pursuant to the same terms and conditions as the initial installation allowed pursuant to this Agreement and any applicable issued permits. BAM BROADBAND OPCO LLC shall comply with any and all requirements of Chapter 10 of the Glendale City Code. Within ninety (90) 15 days after service of notice by the City, BAM BROADBAND OPCO LLC shall remove the designated portions of the Facilities, or in the event that, by the nature of the removal such removal cannot be performed within the ninety-day period, BAM BROADBAND OPCO LLC shall take reasonable steps to remove the Facilities and diligently prosecute the removal to completion, and if requested, restore the sidewalks and other ROW to a condition comparable to the condition before the construction of the public improvement at no cost and expense to the City. 11.2 BAM BROADBAND OPCO LLC agrees to obtain a permit as required by this Agreement prior to removing, abandoning, relocating or reconstructing of any portion of its Conduit System(s) or Fiber Optic Network(s) in the public ROW. Notwithstanding the foregoing, City understands and acknowledges there may be instances when BAM BROADBAND OPCO LLC is required to make repairs that are of an emergency nature or in connection with an unscheduled disruption of the Facilities. BAM BROADBAND OPCO LLC will maintain any annual permits required by the City for such maintenance and emergency repairs. BAM BROADBAND OPCO LLC will notify City before the repairs and will apply for and obtain the necessary permits in a reasonable time after notification. 11.3 If the City needs to perform any part of the necessary relocation or removal work that has not been done within the time required by the City, it shall be entitled to seek payment for such relocation costs by drawing upon the letter of credit or security fund required by this Agreement pursuant to Section 25. Section 12. Expansion or Extension of the Current Use Area 12.1 Any further expansion and/or extension of BAM BROADBAND OPCO LLC’s Fiber Optic Network and or empty Conduit placement outside the current route(s) in the ROW shall require written approval from the City Engineer, who may, refer the matter to the City Council for approval, provided that such consent, by either the City Engineer, or the City Council, shall not be unreasonable withheld or delayed. 12.2 BAM BROADBAND OPCO LLC agrees that such further expansions and/or extensions beyond the current route(s) shall be at all times governed by the terms and conditions of this Agreement. 12.3 Requests for expansions and/or extensions should identify the route, number of conduits, size of conduits, and intended use (including whether there will be dark fiber available for sale or leasing to third parties.) Section 13. Damage to Public Property. 13.1 In addition to any indemnity obligation under this License and Agreement, whenever the installation, use, maintenance, removal, or relocation of any BAM BROADBAND OPCO LLC’s Facilities is required or permitted under this Agreement, and such installation, removal or relocation damages or disturbs the surface or subsurface of any ROW or public property or the public improvement located thereon, therein, or thereunder, however such damage or disturbance was caused. BAM BROADBAND OPCO LLC, at its sole cost and expense, shall promptly restore the surface or subsurface of the ROW or public property and/or repair or replace the surface, subsurface and/or public improvement therein, or thereunder, in as good a condition as before in accordance with applicable laws, normal wear and tear excepted, reasonable satisfactory to the City Engineer. If BAM BROADBAND OPCO LLC does not repair the damage or disturbance as just described, then City shall have the option, upon ten (10) business days of receipt of the invoice for the costs, the City will be entitled to deduct the amount of the invoice from BAM BROADBAND OPCO LLC’s letter of credit. 16 13.2 Notwithstanding the notice provision above, in the event of a Public Emergency, the City shall have the right to immediately perform, without prior written notice to BAM BROADBAND OPCO LLC, such reasonable and necessary work on behalf of BAM BROADBAND OPCO LLC to repair and return public property to a safe and satisfactory condition in accordance with applicable laws, normal wear and tear excepted, reasonably satisfactory to the City Engineer. The City shall provide written notice to BAM BROADBAND OPCO LLC of the repairs as soon as practicable after the work has begun. BAM BROADBAND OPCO LLC agrees that any severed City-owned Conduit and/or fiber must be completely repaired or replaced to the nearest splice point. If the City needs to perform any part of the necessary repairs, relocation and/or removal work, it shall be entitled to seek payment for such repairs, relocation and/or removal costs from BAM BROADBAND OPCO LLC and may draw upon a bond and/or letter of credit or security fund required by this Agreement in full or partial satisfaction of such costs, if payment is not made by BAM BROADBAND OPCO LLC as required by Section 13.3 below. 13.3 Upon the receipt of a demand for payment by City, BAM BROADBAND OPCO LLC shall, within thirty (30) days, reimburse City for any undisputed costs. 13.4 For any pavement cuts by BAM BROADBAND OPCO LLC, BAM BROADBAND OPCO LLC agrees to restore the pavement and to reimburse the City for all costs arising from the reduction in the service life of any public road, in accordance with the provisions of the Glendale City Code and the fees established by the city pursuant thereto. BAM BROADBAND OPCO LLC agrees to pay within thirty (30) days from the date of issuance of an invoice from City. Failure to do so shall entitle City to draw upon the letter of credit or security fund and/or performance bond. SECTION 14. Public Emergency Disruption by City. City shall have the right, because of a Public Emergency, to sever, disrupt, remove, tear out, dig-up or otherwise damage and/or destroy Facilities of BAM BROADBAND OPCO LLC without any prior notice to BAM BROADBAND OPCO LLC, if the action is deemed necessary by either the City Manager, Fire chief, Police Chief, City Engineer, or Public Works Director or designee. In such event, neither the City nor any agent, Contactor or employee of city shall be liable to BAM BROADBAND OPCO LLC, its Contractors or its customers or their parties for any harm so caused to them or the Facilities. When practical and if possible, City will consult with BAM BROADBAND OPCO LLC in advance to assess the necessity of such actions and to minimize to the extent practical under the circumstances damage to and disruption of operation of the Fiber Optic Networks. City shall inform BAM BROADBAND OPCO LLC of any actions taken. BAM BROADBAND OPCO LLC shall be responsible for repair at its sole expense of any of its Facilities damaged pursuant to any such action taken by City. SECTION 15. Public Safety/Public Emergency. 15.1 If any of BAM BROADBAND OPCO LLC’s Facilities or activities present any immediate hazard or impediment to the public, to the City, to other improvements or activities within or outside of the route area(s), or to city’s ability to safely and conveniently operate the ROW or perform Cit’s utility, public safety and/or other public health, safety and welfare functions, then BAM BROADBAND OPCO LLC shall immediately remedy the hazard, comply with city’s request to secure the route area, and otherwise cooperate with City at no expense to City to remove any such hazard or impediment. 15.2 In the event of a Public Emergency, neither the City nor any agent, Contractor or employee of the City shall be liable to BAM BROADBAND OPCO LLC or its Contractors or its customers or other third parties for any harm so caused to them by the reasonable actions of the City or its agents, Contractors or employees in responding to such public emergency. When practical and if possible, City will consult with 17 BAM BROADBAND OPCO LLC in advance to assess the necessity of such actions and to minimize, to the extent practical under the circumstances, damage to and disruption of either the public property involved or the Facilities involved. SECTION 16. Contractors 16.1 The specific independent Contractors identified and used by BAM BROADBAND OPCO LLC for the construction activities to expand and extend BAM BROADBAND OPCO LLC’s Facilities and Service Area will need to be approved by the City Engineer or designee prior to issuance of each construction permit, such approval shall not be unreasonably withheld, delayed, conditioned or denied. Any Contractors performing construction work within the ROW or public easements shall comply with licensing requirements of the Arizona General Contractors. 16.2 All independent Contractors shall provide their own insurance policies or shall furnish separate certificates and endorsements for each. All coverages for independent Contractors shall be subject to all the requirements stated herein for BAM BROADBAND OPCO LLC. SECTION 17. Legal Worker Compliance 17.1 BAM BROADBAND OPCO LLC hereby warrants that it will at all times during the term of this Agreement comply with all federal immigration laws applicable to BAM BROADBAND OPCO LLC’s employment of its employees, and with the requirements of A.R.S. § 23-214(A). SECTION 18. Effective Date and Validity of Agreement 18.1 This Agreement is effective upon signature by BAM BROADBAND OPCO LLC and the execution of it by the Glendale City Council. 18.2 BAM BROADBAND OPCO LLC shall acknowledge that as a condition of acceptance of this Agreement, BAM BROADBAND OPCO LLC was required to be represented throughout the negotiations of the Agreement by its own attorney and BAM BROADBAND OPCO LLC had the opportunity to consult with its own attorneys about its rights and obligations regarding the Agreement. BAM BROADBAND OPCO LLC has reviewed City’s authority to execute and enforce this Agreement and has reviewed all applicable law, both federal and state, and, after considering same, BAM BROADBAND OPCO LLC acknowledges and accepts the right and authority of City to execute this Agreement and to enforce the terms herein. SECTION 19. Term of Agreement 19.1 The original term of this License and Agreement shall terminate 11:59 p.m. on the date prior to the date that is the fifth (5th) annual anniversary of this Agreement, which is the date of approval of this Agreement by the City Council, unless sooner terminated as set forth in this Agreement. SECTION 20. Modification, Renewal, Extension 20.1 If BAM BROADBAND OPCO LLC wishes to renew its License and continue using the ROW, then at least one hundred and eighty (180) days prior to the expiration of this License and Agreement, BAM BROADBAND OPCO LLC shall apply to the city for a new License and Agreement in accordance with the existing federal, state, and local laws. 20.2 BAM BROADBAND OPCO LLC shall pay to City the applicable fee at the time of the submission of the application. 18 20.3 Upon renewal or extension of a telecommunications license with the City, City shall have the right to renegotiate any of the terms from a prior agreement. BAM BROADBAND OPCO LLC understand that the City may adopt future code amendments and/or fee schedules relating to Facilities located within the ROW, which may replace in its entirety the current fees and other costs imposed upon BAM BROADBAND OPCO LLC under this Agreement. BAM BROADBAND OPCO LLC acknowledges the right of the city to adopt and implement lawful code amendments and/or fee schedules. 20.4 If BAM BROADBAND OPCO LLC’s Facilities remain in the ROW, and BAM BROADBAND OPCO LLC continues to use such Facilities beyond the expiration of the license term and pay the annual fees, the License shall be considered to be in a “Holdover Term,” subject to the terms and conditions of this Agreement. Such Holdover Term, however, shall not exceed 60 days beyond the expiration of the term, and no permits will be issued to BAM BROADBAND OPCO LLC by the City until a new License has been approved by the City Council. 20.5 Failure by BAM BROADBAND OPCO LLC to have a valid License and Agreement to use the ROW by the expiration of the holdover Term may result in immediate withdrawal and revocation of any existing permits issued by the City to BAM BROADBAND OPCO LLC. If, however, BAM BROADBAND OPCO LLC has timely filed its application and is in active negotiations with the City prior to the expiration of the License and Agreement, the city may, in its discretion, grant, extend, or take no action on permits issued to BAM BROADBAND OPCO LLC prior to the expiration of the Agreement. SECTION 21. Payments 21.1 By entering into this Agreement, neither party waives any current or future rights reserved under the Telecommunications Act of 1196, including but not limited to, those rights set forth in Sections 253(c), reserving the City’s right to manage the public ROW and to require fair, nondiscriminatory and reasonable compensation from BAM BROADBAND OPCO LLC for use of the public ROW. 21.2 BAM BROADBAND OPCO LLC shall be solely responsible for payment to City as follows: 21.2.1 Application Fee - BAM BROADBAND OPCO LLC shall pay City an application fee for the administrative costs involved in the issuance of a telecommunications license, which shall be due at the time of the submittal of the application. 21.2.2 Transaction Privilege Tax – BAM BROADBAND OPCO LLC shall pay transaction privilege tax on any qualifying services under Glendale City Code. 21.2.2.1 BAM BROADBAND OPCO LLC asserts that under A.R.S.§ 9-582, 100% of its route in Glendale is exempt from the fee under Section 21.2.4 below. 21.2.2.2 Should the percentage and/or nature of BAM BROADBAND OPCO LLC’S use change so that either a linear foot fee under Section 21.2.3 or Section 21.6 or a use fee under Section 21.2.4 is applicable, BAM BROADBAND OPCO LLC agrees to pay such fees, subject to any right of offset under Section 22. Any such fees shall be calculated from the effective date of this Agreement and any retroactive amounts from the date of the change in circumstances that cause the fee to be due the City shall be payable within 30 days of written notification by the to BAM BROADBAND OPCO of what amount is due. 21.2.3 ROW Usage Fee for Provision of Interstate Telecommunications Services A Fiber Optic Network in the ROW that carries interstate traffic between and among BAM 19 BROADBAND OPCO LLC’s interstate points of presence exclusive of the Fiber Optic Network used by the local network and the portion of the interstate network that carries intrastate calls is subject to an annual fee based on the number of linear feet of trench in the ROW. The annual fee is One Dollar and Ninety-Six Cents ($1.96) per linear foot, which shall be adjusted annually as provided in Section 21.2.3.1 21.2.3.1 Commencing on the anniversary date of this Agreement and continuing through the fifth year of the term, the linear foot fee and ROW usage fee shall be escalated annually each year July 1 based on the United States Department of Labor, Bureau of Labor Statistics, Consumer Price Index-All Urban Consumers, West Region for All Items (CPI). If there is no increase in the CPI, the fee shall remain what it was for the prior year. 21.2.3.2 As of the date of this Agreement, BAM BROADBAND OPCO LLC does not provide interstate telecommunications services subject to this fee in A.R.S. § 9-582- 583. 21.2.3.3 Should BAM BROADBAND OPCO LLC own, install, maintain, operate, or acquire Fiber Optic Networks that do qualify for the annual footage fee, BAM BROADBAND OPCO LLC shall immediately notify the City in writing of the number of linear feet and the location, so that the annual fee may be calculated. 21.2.3.4 Any such annual fee shall be due and payable within 30 days of the receipt of an invoice from the city advising BAM BROADBAND OPCO LLC of the amount due. Such a fee shall be prorated from the date of the invoice until the anniversary date of this Agreement. Thereafter, upon each anniversary date of this Agreement, the annual fee will be adjusted as provided by Section 21.2.3.1 above. 21.2.4 Compensation for Use of ROW in the event that BAM BROADBAND OPCO LLC provide any services that are in addition to intrastate services as identified in it CC&N or occupies or uses the ROW for a use other than one that conforms to the definition of the Telecommunication Services as defined in this Agreement and A.R.S. § 9-581, BAM BROADBAND OPCO LLC agrees to pay fair and reasonable compensation for use of the ROW as authorized by law. Upon each anniversary of this Agreement, the compensation will be adjusted by the CPI as provided by Section 21.2.3.1 above, and payment made as required by Section 21.3 21.3 For any annual payment(s) owed, BAM BROADBAND OPCO LLC shall make such payment(s) to the City within five (5) business days of the effective date of this Agreement and/or by the anniversary of such effective date thereof for the duration of the term, whichever is applicable. 21.4 Permit Fees – BAM BROADBAND OPCO LLC shall pay all applicable construction permit fees to place Facilitates in the ROW, which includes charges for encroachment permit applications, issuance, inspection, testing, plan review and other fees adopted by City and applicable to perrons doing work and/or encroaching in the City’s ROW pursuant to Glendale Development Fee Schedule. If, at the request of BAM BROADBAND OPCO LLC, the need of BAM BROADBAND OPCO LLC’s work requires after hours or nighttime work outside of normal business hours, BAM BROADBAND OPCO LLC shall reimburse the City according to the fee schedule in place. 21.5 Damage Fees – BAM BROADBAND OPCO LLC shall pay any reasonable costs associated with any damage caused to the public ROW as provided by Glendale City Code. 20 21.6 Pro-rated Fees – Within thirty (30) days after the issuance of a permit for the installation of additional footage of Conduit(s), if such installation subjects BAM BROADBAND OPCO LLC to an annual fee pursuant to Section 21.2.3 or Section 21.2.4 above (if applicable), BAM BROADBAND OPCO LLC will pay a pro-rated portion of the annual fee, as adjusted, per linear foot for that section of its expanded route. The prorated annual fee shall be determined by multiplying the annual footage fee, as adjusted, for the year of payment, by a fraction, the numerator of which is the number of full months between the month of issuance of the permit and the next following anniversary date of this Agreement and the denominator of which is twelve (12). 21.7 In the event, BAM BROADBAND OPCO LLC cancels or returns a permit and does not construct or install Facilities, which had been approved by such a permit, the footage fees previously paid for public ROW used or occupied by BAM BROADBAND OPCO LLC shall be applied as a credit toward any annual fee or refunded to BAM BROADBAND OPCO LLC by the City. 21.8 Any checks should reference the contract number and be sent to: City of Glendale Engineering Department 5850 W. Glendale Ave. Glendale, AZ 85301 21.9 BAM BROADBAND OPCO LLC agrees that if it fails to pay any amounts owed to the City by the time prescribed for payment, BAM BROADBAND OPCO LLC shall pay interest on the amounts owed, at the rate of one percent (1%) per month. SECTION 22. In-Kind Payments as an Offset to Fees Owed This Agreement does not currently provide for any in kind payment by BAM BROADBAND OPCO LLC, however, should fees be owed under Section 21 above, the Parties may agree in writing to any in kind payment of fiber(s) and/or conduit(s) to offset such fees or transaction privilege taxes owed through an addendum to this Agreement. SECTION 23. Taxes BAM BROADBAND OPCO LLC shall pay any applicable city, county and state transaction privilege and use tax. Such taxes are in addition to any non-tax amounts owed by BAM BROADBAND OPCO LLC pursuant to Section 21. BAM BROADBAND OPCO LLC consents to the disclosure of any and all information reported on BAM BROADBAND OPCO LLC’s transaction privilege tax returns by authorizing and allowing the City’s tax collector to release such information to the City Manager or designees. SECTION 24. Performance Bond 24.1 Prior to receiving any permit to construct, install, maintain or perform any work on public property that requires a permit from the City pursuant to applicable City codes, BAM BROADBAND OPCO LLC shall cause to be fled and maintain until wither completion of the construction or termination of this Agreement as determined by BAM BROADBAND OPCO LLC, a faithful performance bond in favor of City in the sum of One Hundred Thousand Dollars ($100,000.00) or the amount of the construction costs (whichever is greater) to guarantee that BAM BROADBAND OPCO LLC shall observe, fulfill and perform each and every term of this Agreement. In case of any breach of any condition of this Agreement, any amount of the sum in bond, up to the whole thereof, may be forfeited to compensate City for any damages 21 t may suffer by reason of such breach. Said bond shall be acknowledged by BAM BROADBAND OPCO LLC, as principal, and shall be issued by a surety with an AM Best rated of A-VII or better for the last four quarters. City and BAM BROADBAND OPCO LLC agree that the process and procedure for drawing upon, curing, and replenishing the performance bond shall be the same as set forth below for the security fund and/or letter of credit. 24.2 If BAM BROADBAND OPCO LLC has completed the above construction and wants the bond released, the City will need to inspect and approved the construction prior to such release. However, a performance bond will be required for each subsequent or additional construction project and/or work on public property. SECTION 25. Security Fund 25.1 Upon application for continued use of the ROW, but no later than five (5) business days before this Agreement is submitted to the City Council for approval, BAM BROADBAND OPCO LLC shall provide by either a cash deposit or domestic irrevocable standby letter of credit to the City Engineer in the initial amount of Fifty Thousand Dollars ($50,000.00) as a security fund that is in compliance with the standards and form set forth in Exhibit C or its equivalent. Said cash deposit or letter of credit shall be maintained with the City for the term of this Agreement as security for the faithful performance by BAM BROADBAND OPCO LLC of all the provisions of this Agreement, and compliance with all lawful orders, permits and directions of any department or office of the City having jurisdiction over its acts or defaults under this Agreement and any permit issued thereto, and the payments by BAM BROADBAND OPCO LLC of any fees, claims, liens and taxes due the City which arise by reason of the construction, operation or maintenance of the Facilities. City shall have the full power of withdrawal of funds from the cash deposit put into the security fund account or letter of credit except that all interest accrued on any cash deposit shall be payable to BAM BROADBAND OPCO LLC on demand. No withdrawals shall be made from the security fund account without the prior written approval of the City Manager and prior written notice of intent to withdraw to BAM BROADBAND OPCO LLC. 25.2 Within twenty (20) days after notice to BAM BROADBAND OPCO LLC that any amount has been withdrawn by City from the security fund account or letter of credit, BAM BROADBAND OPCO LLC shall deposit a sum of money to sufficient to restore such security fund account to the original amount or present the City an additional irrevocable letter of credit in said amount so that the total amount of funds available to the City is $50,000.00. 25.3 If BAM BROADBAND OPCO LLC fails, within ten (10) business days of a notice of intent to draw on either the security fund account or on the letter of credit, to either dispute the notice in writing; or pay City any taxes or fees due and unpaid; or fails to repay to City, within such ten (10) business days of such notice, any damages, costs or expenses which City shall be compelled to pay by reason of any act or default of BAM BROADBAND OPCO LLC in connection with this Agreement; or fails, within thirty (30) days of such notice of failure by City to dispute the notice in writing or comply with any provision of this Agreement which City reasonable determines can be remedied by an expenditure of funds from the cash deposit in the security fund account or letter of credit, City may immediately withdraw the amount thereof, with interest from the security fund account Upon such withdrawal, City shall notify BAM BROADBAND OPCO LLC of the amounts and date thereof. 25.4 Any funds that City erroneously or wrongfully withdraws shall be returned to BAM BROADBAND OPCO LLC, with interest of 1.0% per month, within thirty (30) days of such a determination. 22 25.5 The rights reserved to City, with respect to the security fund account and/or letter of credit, are in addition to all other rights of City whether reserved by this Agreement or authorized by law, and no action, proceeding or exercise of a right with respect to such security fund account or letter of credit shall affect any other right City may have. SECTION 26. Insurance 26.1 Minimum Limits of Insurance. BAM BROADBAND OPCO LLC shall at all times during the term of this Agreement, at its own cost and expense, carry and maintain for the mutual benefit of the City and BAM BROADBAND OPCO LLC, commercial general liability insurance against claims for bodily injury, death or property damage, products/completed operation and personal and advertising injury, which insurance shall cover claims as may be occasioned by the operations, act, omission or negligence of BAM BROADBAND OPCO LLC or its officers, agents, representatives, employees or servants during all times that this License and Agreement is in effect. Insurance limits are inclusive of umbrella coverage. BAM BROADBAND OPCO LLC shall maintain limits no less than those stated herein for each type of insurance. 26.2 General Requirements. BAM BROADBAND OPCO LLC’s insurance of the types and amounts required in this section shall be from companies possessing a current A.M. Best, Inc. rating of A-VII, or better and legally authorized to do business in the State of Arizona. 26.2.1 All insurance required herein shall be maintained in full force and effect until all work or services required to be performed under the terms of this Agreement is satisfactorily completed and formally accepted. Failure to do so may, at the sole discretion of City, constitute a material breach of this Agreement and may result in termination of this Agreement. 26.2.2 The insurance coverage, except workers’ compensation and professional liability, required by this Agreement, shall name City, its agents, representatives, directors, officials, and employees, as additional insureds, and shall specify that insurance afforded BAM BROADBAND OPCO LLC shall be primary insurance, and that any self-insured retention and/or insurance coverage carried by City or its employees shall not contribute to the coverages provided by BAM BROADBAND OPCO LLC. This provision and the naming of the City as an additional insured shall not be construed as giving rise to responsibility or liability of the City for applicable deductible amounts under such policy(ies). 26.2.3 The insurance policies shall contain a waiver or transfer rights of recovery (subrogation) against City, its agents, representatives, officers, directors, officials and employees. 26.2.4 The insurance policies may provide coverage, which contain deductibles or self-insured retentions. Such deductible an/or self-insured retention shall be assumed by and be for the account of, and at the sole risk of BAM BROADBAND OPCO LLC who shall be solely responsible for the deductible and/or self-insured retention. The amounts of any self-insured retentions shall be noted on the Certificate of Insurance. Cit, at is option, may require BAM BROADBAND OPCO LLC to secure payment of such deductibles or self-insured retentions by a surety bond or an irrevocable letter of credit. Self-insured retentions of up to $1,000,000 (One Million Dollars) shall be accepted. 26.2.5 All policies shall not be cancelled until at least thirty (30) days prior written notice has been given to City. BAM BROADBAND OPCO LLC will ensure its policies will comply with the minimum requirements of Section 26 and notify the City if it cannot meet those requirements. 23 26.2.6 BAM BROADBAND OPCO LLC shall be responsible for ensuring that the City is notified within thirty (30) days of the occurrence of any reduction in the insurance coverage amounts, cancellation or expiration of any of the policies as required by this License Agreement. 26.2.7 BAM BROADBAND OPCO LLC shall include all Contactors as additional insureds under its policies or shall provide separate certificates and endorsements for each Contractor. All coverage for Contractors shall be subject to all the requirements stated herein for BAM BROADBAND OPCO LLC. Upon request of BAM BROADBAND OPCO LLC, the City may agree to lower insurance requirements for a Contractor. This change in insurance limits will be subsequent to a review by the City’s Project Manager of the potential exposures and risks of the work being performed by the Contactor, and a determination that such a reduction to the insurance limits is warranted. 26.2.8 City reserves the right to periodically review said insurance limits to ensure coverage based on market and risk requirements throughout the effective term and this Agreement. 26.3 Proof of Insurance-Certificates of Insurance. 26.3.1 Prior to upon execution of this Agreement, BAM BROADBAND OPCO LLC shall furnish to City Certificates of Insurance issued by BAM BROADBAND OPCO LLC’s agent or broker, as evidence that policies providing the required covered, conditions and limits required by this Agreement are in full force and effect and obtain from the City’s Engineering Division approval of such Certificate(s) shall include the endorsement listing the City as an Additional Insured to Section 26.2.2 and shall be attached as Exhibit B to this Agreement. 26.3.2 If a policy does expire during the life of this Agreement, a renewal certificate must be sent to the City ten (10) business days prior to the expiration date. 26.3.3 All Certificates of Insurance shall identify the policies in effect on behalf of BAM BROADBAND OPCO LLC, their policy period(s), and limits of liability. Coverage shown on Certificate of Insurance must coincide with the requirements in the text of the Agreement documents. Information required to be on the Certificate of Insurance may be typed on the reverse of the Certificate and countersigned by an authorized representative of the insurance carrier or agent. Copies of the initial Certificate of Insurance and any and all subsequent renewals that are under this Agreement shall be sent to: City of Glendale Engineering Department 5850 W. Glendale Ave. Glendale, AZ 85301 26.3.4 City reserves the right to request and to receive, within ten (10) business days, certified copies of any or all of the herein required insurance policies and/or endorsements. City shall not be obligated, however, to review same or to advise BAM BROADBAND OPCO LLC of any deficiencies in such policies and endorsements, and such receipt shall not relieve BAM BROADBAND OPCO LLC from, or be deemed a waiver of City’s right to insist on, strict fulfillment of BAM BROADBAND OPCO LLC’s obligations under this Agreement. 24 26.4 Required Coverage. 26.4.1 Such insurance shall protect BAM BROADBAND OPCO LLC from claims set forth below that may arise out of or result from operations of BAM BROADBAND OPCO LLC under this Agreement and for which BAM BROADBAND OPCO LLC may be legally liable, whether such operations be by BAM BROADBAND OPCO LLC or by a consultant or Contractor or by anyone directly or indirectly employed by any of them, or by anyone for whose acts may be legally liable. Coverage under the policy will be at least as broad as Insurance Services Office, Ind. Policy form CG 00 01 10 01 and CG 20 37 07 04 or equivalent thereof, including but not limited to severability of interest and waiver of subrogation clauses. 26.4.2 Claims for damages because of bodily injury, sickness or disease, or death of any person other than BAM BROADBAND OPCO LLC’s employees; 26.4.3 Claims for damages insured by usual personal and advertising injury liability coverage; 26.4.4 Claims for damages, because of injury to or destruction of tangible property, including loss of use resulting therefrom; 26.4.5 Claims involving contractual liability insurance applicable to BAM BROADBAND OPCO LLC’s obligation under the Indemnification Agreement. 26.5 Commercial General Liability – Minimum Coverage Limits. The Commercial General Liability insurance required herein shall be written for not less than $5,000,000 limits of liability. Any combination between general liability and excess general liability alone amounting to a minimum of $5,000,000 per occurrence and an aggregate of $10,000,000 in coverage will be acceptable. The Commercial General Liability additional insured endorsement shall be as broad as the Insurance Services, Inc.’s (ISO) Additional Insured, Form B CG 20 10 10 01 and CG 20 37 07 04, and shall include coverage for BAM BROADBAND OPCO LLC’s completed operations and products. 26.6 Worker’s Compensation and Employer’s Liability. BAM BROADBAND OPCO LLC shall maintain Worker’s Compensation insurance to cover obligations imposed by federal and state statutes having jurisdiction over BAM BROADBAND OPCO LLC’s employee engaged in the performance of the work or services; and Employer’s Liability insurance of not less than $1 million for each accident, $1 million disease coverage for each employee, and $1 million disease policy limit. In case any work is subcontracted, BAM BROADBAND OPCO LLC will require the Contractor to provide Worker’s Compensation and Employer’s Liability to at least the same extent as required of BAM BROADBAND OPCO LLC. 26.7 Automobile Liability. If BAM BROADBAND OPCO LLC owns and/or operates vehicles in Arizona, BAM BROADBAND OPCO LLC shall maintain Commercial/Business Automobile Liability insurance with a combined single limit for bodily injury and property damage of not less than $5 million each occurrence with respect to any owned, hired, and non-owned vehicles assigned to or used in performance of the BAM BROADBAND OPCO LLC’s work. Coverage shall be at least as broad as coverage Symbol 1, “any auto”, (Insurance Service Office, Inc. Policy Form CA 0001 0306, or any replacements thereof). If hazardous substances, materials or wastes are transported, and a MCS 90 endorsement shall be included with coverage limits of $ 5 million per accident for bodily injury and property damage. 25 SECTION 27. Indemnity. 27.1 BAM BROADBAND OPCO LLC acknowledges that it has responsibility for any and all of its Facilities installed in the public ROW, its use of the ROW and for its exercise of its rights under this License and Agreement directly or through its Contractor(s), except of the intentional acts or gross negligence on the part of the City. To the fullest extent permitted by law, BAM BROADBAND OPCO LLC, shall defend, indemnify and hold harmless the City, or its officials, boards, commissions, agents or employees, individually and collectively, from and against any and all Claims as defined in Section 1 arising out of or alleged to have resulted from or materially caused by the acts, errors, mistakes, and/or omissions of BAM BROADBAND OPCO LLC, its employees, agents, or any tier of Contractors acting on behalf of BAM BROADBAND OPCO LLC or any other person for whose acts, errors, mistakes, and/or omissions BAM BROADBAND OPCO LLC may be legally liable. This defense and indemnification requirement includes any Claims or amounts arising or recovered under workers compensation laws or any other law, bylaw, or ordinance, order or decree caused by any failure on the part of BAM BROADBAND OPCO LLC, its agents, employees representatives to fulfill BAM BROADBAND OPCO LLC’s obligation under this Agreement, whether resolution of the above Claim(s) proceeds to judgement or not except to the extent such Claims resulted from or were caused by intentional acts or negligence on the part of the City or its agents. The provisions of this section shall survive termination of this Agreement. This section applies even if the party seeking damages makes a claim against the City or brings a claim against the City based on vicarious liability or non-delegable duty. 27.2 BAM BROADBAND OPCO LLC further agrees to indemnify and hold harmless the City, its officers and its employees from and against all reasonable costs, damages, and expenses incurred by the City, its officers and its employees in the defense of any litigation brought by third parties challenging the right of the City to enter into this Agreement with BAM BROADBAND OPCO LLC under the City Code or other applicable law. 27.3 In the event that a notice of claim is served on the City or litigation is commenced against the City, the City may, but is not required to, tender the defense of the litigation to BAM BROADBAND OPCO LLC, who shall defend the litigation. If the City tenders the defense to BAM BROADBAND OPCO LLC, BAM BROADBAND OPCO LLC shall have the right to retain counsel of its own choice, to settle all or any part of the litigation on terms acceptable to BAM BROADBAND OPCO LLC (and, where such terms directly obligate or affect the City, acceptable to the City). BAM BROADBAND OPCO LLC agrees to keep the Glendale City Attorney’s Office informed of the status and progress of all litigation involving the City that has been tendered to BAM BROADBAND OPCO LLC or its insurance carrier. 27.3.1 The parties shall promptly notify each other in writing of any claims, demands, or lawsuits which may involve the City and provide copies of all accident reports, incident reports, statements or other documents that are relevant to the claims, demands, or lawsuits, or which may lead to the discovery of relevant material or information in the possession of the other party, its employees, agents, Contractors, and/or others. 27.3.2 Subject to any legal protections for privilege and/or confidentiality, both parties agree to cooperate with the other party to gather any relevant information relating to an incident which results in a claim, demand, or lawsuit. 27.4 It is the purpose of this section to provide maximum indemnification to the City under the terms and conditions expressed herein, and, in the event of a dispute, this section shall be construed (to the greatest extent permitted by law) to provide for the indemnification of the City by BAM BROADBAND OPCO LLC against any and all claims, demands or lawsuits. The sole exception shall be an express determination 26 by a court of competent jurisdiction upon full adjudication of the case that the damages either arose from the City’s gross negligence or intentional acts or that the City was comparatively at fault for the damages related to that portion judicially determined to be the City’s fault. 27.5 The provision of Section 27 shall not be dependent or conditioned upon the validity of this License but shall be and remain a binding right and obligation of the City and BAM BROADBAND OPCO LLC, even if part or all of this License is declared null and void in a legal or administrative proceeding. It is the intent of BAM BROADBAND OPCO LLC and the City upon the effective date of this License, that this Section serves as any such declaration and shall be binding obligation of an inure to the benefit of BAM BROADBAND OPCO LLC and the City and their respective successors and assigns, if any. Any failure by BAM BROADBAND OPCO LLC shall be considered a material breach of this License Agreement. 27.6 The amount and type of insurance coverage requirements set forth in this Agreement will in no way be construed as limiting the scope of the indemnity in this Section. 27.7 As a condition to Licensor’s executing this Agreement, BAM BROADBAND OPCO LLC specifically agrees that to the extent any provision of this Section is not fully enforceable against BAM BROADBAND OPCO LLC for any reason whatsoever, the parties shall meet to negotiate the reformation of this Agreement, to the minimal extent necessary to cause it to be enforceable to the fullest extent permitted by law. SECTION 28. Limitation of Liability 28.1 The City and its officers, agents, elected or appointed officials, employees, departments, boards and commissions, shall not be liable to BAM BROADBAND OPCO LLC or to its affiliates or customers for any interference with or disruption in the operations of BAM BROADBAND OPCO LLC’s Fiber Optic Networks or the provision of services, or for any Claim for damages arising out of or materially related to BAM BROADBAND OPCO LLC’s use of the ROW, except to the extent of intentional misconduct or gross negligence on the part of the City, its officers, agents, elected or appointed officials, employees, departments, boards and commissions. 28.2 BAM BROADBAND OPCO LLC also agrees that it shall have no recourse whatsoever against the City or its officials, boards, commissions, agents or employees for any loss, costs, expense or damages arising out of or materially related to any provision or requirement of the City because of the enforcement of this License and Agreement or because of defects in this License or Glendale City Code. 28.3 BAM BROADBAND OPCO LLC shall assume the risk of, and herby relinquishes any claim against the City in connection with any final, non-appealable determination by a court of competent jurisdiction that the City lacked the current statutory authority under Arizona law to issue this License. SECTION 29. Transferability of License and Agreement 29.1 This License is personal to BAM BROADBAND OPCO LLC 29.2 Except as otherwise provided in this Agreement, the rights, privileges ad License granted herein shall not be sold, sublet, assigned, conveyed or otherwise transferred, nor shall nay of the rights or privileges therein granted or authorized be leased, assigned, sold, conveyed or otherwise transferred, either in whole or in part, nor shall title thereto, either legal or equitable, or any right, interest or property therein, pass to or vest in any person, except BAM BROADBAND OPCO LLC, either by act of BAM BROADBAND OPCO LLC or operation of the law, without the express written consent of the City, which consent shall not be unreasonably withheld or delayed. Prior to any proposed transfer of any kind becoming final, BAM 27 BROADBAND OPCO LLC shall seek the consent of the City to the proposed transfer. Approval by the City to a transfer does not constitute a waiver or release of any of the rights of the City under the Glendale City code or this Agreement, whether arising before or after the date of transfer. 29.3 “Transfer” transactions shall mean all of the following transactions, circumstances and conditions and to all persons claiming pursuant to such transactions, circumstances and conditions: 1. Any voluntary or involuntary assignment, conveyance or transfer of the ROW or any interest therein or any rights under this Agreement, in whole or in part. 2. Any assignment by BAM BROADBAND OPCO LLC of any interest in this Agreement for the benefit of creditors, voluntary or involuntary. 3. Any voluntary or involuntary pledge, lien, mortgage, security interest, judgment, claim or demand, whether arising from ay contract, any agreement, any work of construction, repair, restoration, maintenance or removal, or otherwise affecting BAM BROADBAND OPCO LLC’s rights to use the ROW (collectively “Liens”) except that the City acknowledges BAM BROADBAND OPCO LLC is permitted to pledge, lien, mortgage, and/or create a security interest in its network and associated right and privileges in relation to any financing transaction of the company. 4. BAM BROADBAND OPCO LLC insolvency. 5. The occurrence of any of the foregoing with respect to any assignee or other successor to BAM BROADBAND OPCO LLC. 29.4 The new Licensee as approved by the City shall be equally subject to all the obligations and privileges of the original License and Agreement, including any amendments, which will remain in full effect, as if the new Licensee were the original Licensee. 29.5 The approval of the change shall include an Assignment Agreement form (if there was an assignment) or Transfer form (if there was a stock acquisition, a merger, or other type of transfer of BAM BROADBAND OPCO LLC’s assets) to be signed by Assignee, Assignor and the City. 29.6 Any assignment or other transfer of License and Agreement, including any amendments, shall be binding on the assignee or transferee as if the assignee or transferee had originally executed the Agreement for the full term and shall include the following: 29.6.1 The proposed assignee or transferee has read, accepts, and agrees to be bound by the terms of this Agreement; and 29.6.2 The proposed assignee or transferee assumes all obligations, liabilities and responsibility for the acts and omissions of BAM BROADBAND OPCO LLC, known and unknown, for all purposes, and agrees that the assignment or transfer shall not permit it to take any position or exercise any right with BAM BROADBAND OPCO LLC could not have exercised; and 29.6.3 BAM BROADBAND OPCO LLC and the proposed transferee shall submit to City a description of the nature of the transfer. 29.6.4 BAM BROADBAND OPCO LLC may execute a pledge or, hypothecation our mortgage or similar instrument transferring conditional ownership of all or part of BAM BROADBAND OPCO LLC’s assets to a lender or creditor in the ordinary course of business provided that BAM 28 BROADBAND OPCO LLC has secured approval from the Arizona Corporation Commission, if required. In the even a lender assumes control of the assets as operation of BAM BROADBAND OPCO LLC through a default of BAM BROADBAND OPCO LLC in loan obligations, the Lender may assume the rights and obligations of BAM BROADBAND OPCO LLC. The lender may not transfer or change control of the Agreement without submitting the change to the City for approval. If the Lender does continue operation on any basis at any time, the Lender shall be subject to all provisions of the Agreement. No later than 30 days after assumption of control by the Lender, the Lender shall apply to the City of the right to continue assumption of control or to transfer the Agreement. Application by the Lender for approval of such assumption of control or transfer shall be subject to all provisions set forth herein on consent by the City Council and shall not be unreasonably denied or upheld. A “Lender” as discussed herein shall not include a company, person or corporation or other entities that operate cable television systems or fiber optics telecommunications systems as a principal or important business. This paragraph is intended to prohibit the intentional use of lending and/or foreclosure as a method for effecting change of control or transfer of the Agreement without City Council review and approval. 29.6.5 Notwithstanding the foregoing, prior notice, but not prior consent shall be required for a transfer of control of BAM BROADBAND OPCO LLC to any company which is owned or controlled or under common control and with the same direct parent as BAM BROADBAND OPCO LLC, and which is intended after such transfer to remain under the ownership or control of that parent or an entity under common control or with the same direct parent, provided that no transfer shall be valid unless BAM BROADBAND OPCO LLC and the proposed transferee submit a binding agreement and warranty to the City stating that: 1. The proposed transferee has read, accepts and agrees to be bound by the License and Agreement. 2. The proposed transferee assumes all obligations, liabilities and responsibilities under the License and Agreement for the acts and omissions of BAM BROADBAND OPCO LLC, known and unknown, for all purposes, and agrees that the transfer shall not permit it to take any position or exercise any right which BAM BROADBAND OPCO LLC could not have exercised; and 3. The transfer will not substantially dimmish the financial resources available to BAM BROADBAND OPCO LLC, 29.6.5.1 However, prior to completing the transfer described above, BAM BROADBAND OPCO LLC must give prior notice to the City of the proposed transfer and describe the nature of the transfer and complete information regarding the effect of the transfer on the direct and indirect ownership and control of the License and Agreement. 29.7 Transfer Remedies. Any transfer without City’s consent shall be void and shall not result in the transferee obtaining any rights or interests in, under or related to this License and Agreement. City may, in its sole discretion and in addition to all other lawful remedies available to City under this Agreement or otherwise, and in any combination, terminate this Agreement, collect any fees owed from BAM BROADBAND OPCO LLC and/or declare the transfer to be void, all without prejudicing any other right or remedy of City under this Agreement. No cure or grace periods shall apply to transfers or assignments prohibited by this Agreement or to enforcement of any provision of this Agreement against an assignee who did not receive City’s consent. 29 29.8 Transfer Fee. BAM BROADBAND OPCO LLC shall pay to City in advance the sum of Two Thousand Dollars ($2,000.00) as a non-refundable fee for legal, administrative and other expenses related to every transfer (other than the sale of publicly traded stock) or to any request for a consent to transfer, whether or not City grants such request. SECTION 30. No Third-Party Beneficiaries No person or entity shall be a third-party beneficiary to this Agreement or shall have any right or cause of action hereunder, City shall no liability to third parties for any approval of plans, BAM BROADBAND OPCO LLC’s construction of improvements BAM BROADBAND OPCO LLC’s negligence, BAM BROADBAND OPCO LLC’s failure to comply with the provisions of the Agreement (including any absence or inadequacy of insurance required to be carried by BAM BROADBAND OPCO LLC), or otherwise as a result of the existence of this Agreement. SECTION 31. BAM BROADBAND OPCO LLC’s Records 31.1 Recordkeeping. During the negotiations preceding and the entire term of this License and Agreement, BAM BROADBAND OPCO LLC shall keep records and provide information to City as required regarding the following: 1. The status of construction, repair, location or relocation of BAM BROADBAND OPCO LLC’s Facilities 2. Information relating to any Fiber Optic Networks on portions of the route that are not exempt from a fee imposed for occupation of the ROW. 3. Information relating to this License and Agreement and/or to City’s or BAM BROADBAND OPCO LLC’s rights or obligations under this License and/or Agreement. 31.2 If necessary for the City to determine BAM BROADBAND OPCO LLC’s compliance with the terms of this License and Agreement or other applicable law, with ten (10) days of written notice by city of a request for disclosure, BAM BROADBAND OPCO LLC shall provide relevant documentation as requested by City, response to questions, and produce relevant books and records for the City’s inspection and copying. Such records shall be available to City at BAM BROADBAND OPCO LLC’s office in Maricopa County, Arizona. BAM BROADBAND OPCO LLC shall also require its employees, agents, and accountants to give their full cooperation and assistance in connection with City’s access to such records. 31.2.1 Such documentation can include information on the type of services BAM BROADBAND OPCO LLC is offering its customers (but not necessarily information disclosing any particular service being provided to a specific customer) and/or the financial information sed in calculating any payments or taxes due to the City request for documentation, it must reasonably provide Proprietary Information, BAM BROADBAND OPCO LLC shall so mark such documentation as “Confidential”. 31.2.2 Proprietary Information disclosed by BAM BROADBAND OPCO LLC shall mean any document or material clearly identified as “Confidential.” Such Proprietary Information shall include, but not limited to any customer names and lists, financial information, technical information, other information clearly identified as “Confidential” pertaining to services provided to its customers, maps regarding network placement and equipment, with the exception of any map(s) attached to this Agreement. 30 31.2.3 Proprietary Information disclosed by BAM BROADBAND OPCO LLC to the City, or its constituent departments shall be regarded as Proprietary as to third parties. If the City receives a request to disclose such information, the City shall notify BAM BROADBAND OPCO LLC of such request and allow BAM BROADBAND OPCO LLC a reasonable opportunity to defend its information from disclosure. 31.2.4 Information that is already in the public domain shall not be considered Proprietary Information. If public domain information is included with Proprietary Information on the same document, the City shall only disclose those portions within the public domain. 31.2.5 Notwithstanding any provision in this License, BAM BROADBAND OPCO LLC acknowledges and understands that the City is subject to the disclosure requirements of Arizona’s Public Records Law (A.R.S. § 39-121 et seq). 31.3 Reports. Upon request and subject to any necessary confidentiality requirements, BAM BROADBAND OPCO LLC shall provide to City copies of any communications and reports submitted by BAM BROADBAND OPCO LLC to the FCC or any other federal state regulatory commission or agency having jurisdiction in respect to any matters directly affecting enforcement of this Agreement. SECTION 32. Penalties for Violation of Terms 32.1 City may pursue any remedy at law, including but not limited to injunctive relief, civil trespass, and withholding other City permits and authorizations until BAM BROADBAND OPCO LLC complies with the terms of the License, Agreement or the applicable law. Likewise, BAM BROADBAND OPCO LLC may pursue any remedy at law, including but not limited to injunctive relief, at any time should the City fail to comply with local, state or federal law. 32.2 Such remedies are cumulative and may be pursued in the alternative. SECTION 33. Liquidated Damages for Violations 33.1 BAM BROADBAND OPCO LLC’s obligation to pay liquidated damages does not in any way detract from BAM BROADBAND OPCO LLC’s indemnity and insurance obligations under this Agreement, which shall apply according to their terms in addition to BAM BROADBAND OPCO LLC’s obligation to pay liquidated damages. 33.2 BAM BROADBAND OPCO LLC understands and agrees that failure to comply with any time and performance requirements in this Agreement or the requirements of Chapter 10 of the Glendale City Code will result in damage to the City, and that it is and will be impracticable to determine the actual amount of such damage in the event of delay or nonperformance: therefore, the parties hereby agree to the liquidated damages specified below pursuant to the authority in Glendale City Code. The following amounts per day or part thereof may be chargeable to the letter of credit or security fund for the following concerns: 33.2.1 Each failure to properly restore the public ROW or to correct related violations of specifications, code ordinance or standards within fifteen (15) business days of having been notified by the city in writing to correct such defects--$500.00 per day. Such amount is in addition to any cost the City may incur to restore the ROW or correct the violation. Any such liquidated damage payments shall not be chargeable to BAM BROADBAND OPCO LLC once the cure is commenced and diligently pursued. 31 33.2.2 Each failure to make BAM BROADBAND OPCO LLC’s books and records available as required by this Agreement that is not cured after five (5) business days written notice - $250.00 per day. 33.2.3 Any unauthorized partial or total transfer of this Agreement - $4,000.00 per transfer. 33.2.4 Each instance of any action or non-action by BAM BROADBAND OPCO LLC contrary to the terms of this Agreement that is not cured after five (5) business days’ notice - $500.00 per day. This provision shall not apply if the City has already assessed a charge under Section 33.2.1 through 33.2.3 or 32.2.5. 33.2.5 Failure to provide a valid Certificate of Insurance as required by Section 26.3.1 that is not cured after five (5) business days’ notice - $50.00 per day. 33.3 Assessment. If the City Engineer concludes that BAM BROADBAND OPCO LLC may be liable for liquidated damages, the City Engineer shall issue to BAM BROADBAND OPCO LLC a written Notice of Intention to Assess Liquidated Damages. The Notice shall set forth the nature of the violation and the amount of the proposed assessment. Such Notice must be issued, if at all, within no more than sixty (60) days after the City first notified BAM BROADBAND OPCO LLC in writing of the alleged noncompliance. Within ten (10) business days of the receipt of the Notice, BAM BROADBAND OPCO LLC shall either pay the amount or file a written appeal with the City Manager, who shall approve or deny or adjust the proposed assessment amount. If liquidated damages are imposed, BAM BROADBAND OPCO LLC shall pay the liquidated damage amount within ten (10) business days of the receipt of the City Manager’s decision. The City shall be allowed to deduct any liquidated damage amount from the letter of credit or security fund if BAM BROADBAND OPCO LLC does not make payment within the required time period(s) set forth above. 33.3.1 If, however, the liquidated damages exceed Five Thousand Dollars ($5,000.00), then the following shall apply: 33.3.2 BAM BROADBAND OPCO LLC shall have thirty (30) days of receipt of such written notice to pay the liquidated damage amount or give City notice contesting the assertion of noncompliance. 33.3.3 In the event that BAM BROADBAND OPCO LLC contests the City’s assertion of violation or fails to respond to the City’s notice of intent to assess liquidated damages, City shall schedule a public hearing to determine whether the liquidated damages were properly assessed. City shall provide BAM BROADBAND OPCO LLC with at least (30) days’ notice of such hearing, which shall specify the time, place and purpose of the hearing. At the hearing, BAM BROADBAND OPCO LLC will be given the opportunity to be heard and present evidence. If the result of the hearing is that BAM BROADBAND OPCO LLC is responsible for the liquidated damage amount, then the amount determined at the hearing will be due ten (10) days after the hearing decision is announced. 33.3.4 BAM BROADBAND OPCO LLC may appeal the outcome of the hearing to an appropriate court, which shall have the power to review City’s decision “de novo”. Such appeal to the appropriate court must be taken within sixty (60) days after the issuance of City’s hearing decision. Otherwise, the outcome of the hearing shall be final and conclusive. 32 SECTION 34. Revocation / Termination 34.1 The License granted hereunder may be revoked and/or the Agreement terminated prior to its date of expiration by the City for the following reasons: 34.1.1 BAM BROADBAND OPCO LLC fails to comply with the material terms and conditions of the Agreement or applicable law, including but not limited to failing to maintain any insurance, security fund, letter of credit, and/or performance bond. 34.1.2 BAM BROADBAND OPCO LLC fails to make payment in the amounts and at the time specified in this Agreement after the appropriate notice. 34.1.3 BAM BROADBAND OPCO LLC ceases doing business in the City. 34.1.4 BAM BROADBAND OPCO LLC fails to provide current, accurate as-built plans and maps showing the location of all Facilities installed or constructed in the City. 34.1.5 BAM BROADBAND OPCO LLC is or becomes insolvent or is a party to a voluntary or involuntary bankruptcy, reorganization, or receivership case or proceeding, makes an assignment of the benefit or creditors, is subject to other actions by creditor that, in the reasonable, good faith opinion of the City, threaten the financial viability of BAM BROADBAND OPCO LLC as a going concern, or if there is any similar action that affects BAM BROADBAND OPCO LLC’s capability to perform its obligations under this License and/or Agreement. 34.1.6 BAM BROADBAND OPCO LLC fails to obtain or maintain any licenses, permits, or other governmental approvals pertaining to the ROW or timely pay any taxes pertaining to the ROW. 34.1.7 A court has issued an injunction that in any way prevents or restrains BAM BROADBAND OPCO LLC’s use of any portion of the ROW and remaining in force for a period of at least thirty (30) consecutive days. 34.1.8 BAM BROADBAND OPCO LLC is unable to use any substantial portion of the ROW for a period of thirty (30) consecutive days due to the enactment or enforcement of any law or regulation or because of fire, flood, or other natural disaster or similar casualty and BAM BROADBAND OPCO LLC seeks termination of the Agreement. 34.2 Before terminating the Agreement under Sections 34.1.1, 34.1.2, 34.1.4 and 34.1.6, the City Manager or a designee, shall give prior written notice to BAM BROADBAND OPCO LLC of the defect in performance and give BAM BROADBAND OPCO LLC sixty (60) days within which to cure the defect in performance. 34.3 The City need not provide a sixty (60) day cure period to termination if the City finds that the defect in performance under the Agreement is due to intentional misconduct, is a violation of criminal law, or is part of a pattern or repeated and persistent violations where BAM BROADBAND OPCO LLC has already had notice and opportunity to cure. 34.4 The City Manager has the authority to terminate, subject to BAM BROADBAND OPCO LLC’s right to notice and cure where provided, this License and/or Agreement. 34.5 Hearing Prior to Revocation of License. Prior to the revocation or refusal to renew the License, the City will hold a hearing if requested by BAM BROADBAND OPCO LLC. 33 34.6 Termination by Mutual Agreement. This License and/or Agreement may be terminated prior to its date of expiration by BAM BROADBAND OPCO LLC by providing the City with ninety (90) days written notice and only upon making arrangement satisfactory with the City Engineer to remove all BAM BROADBAND OPCO LLC’s Facilities from public property and the ROW, unless the City Engineer agrees to allow BAM BROADBAND OPCO LLC to abandon part or all of its Facilities in place. If the City Engineer agrees to allow BAM BROADBAND OPCO LLC to abandon its Facilities in place, the ownership of such Facilities, including everything permitted by City to be abandoned in place shall transfer to City and BAM BROADBAND OPCO LLC shall cooperate to execute any documents necessary to accomplish such transfer within thirty (30) days of such allowance of abandonment. 34.7 Notwithstanding anything in Section 34.6 above, upon termination of this Agreement, BAM BROADBAND OPCO LLC shall remove all of its optical repeaters, DWDM and CWDM multiplexers, antennae, fiber optic cables, wires, and related equipment within ninety (90) days. SECTION 35. Non-use/Abandonment of the Facilities. 35.1 An “Abandoned Facility” will mean a Facility no longer in service or physically disconnected from a portion of the operating Facility or from any other Facility that is in use or still carries services. BAM BROADBAND OPCO LLC ceases to provide services or abandons use of any of its Facilities, upon cancellation or termination of the Agreement, BAM BROADBAND OPCO LLC shall notify the City and may, subject to the City’s approval, permanently abandon the Facilities in place. In such event, the City, at its option, may acquire ownership of the Facilities. In lieu of permanent abandonment, the City may require BAM BROADBAND OPCO LLC, to the reasonable satisfaction of the City and without cost or expense to the City, to promptly remove the Facilities and to restore the public ROW to a reasonable condition under the supervision of the City. 35.2 Upon permanent abandonment, if the City does not require removal, BAM BROADBAND OPCO LLC shall submit to the City a proposal and instruments for transferring ownership to the City. Any such Facilities, which are not removed as required by the City within ninety (90) days of either such date of termination or cancellation or of the date the City issued a permit authorizing removal, whichever is later, automatically shall become the property of the City. BAM BROADBAND OPCO LLC will notify the Arizona Blue Stake Center to record the Facilities that have been abandoned. 35.3 Title to any and all personal property installed by BAM BROADBAND OPCO LLC upon the ROW that is not removed during the period set forth in Section 35.2 s hall automatically vest in City. 35.4 Nothing Section 35.1 shall be deemed to require BAM BROADBAND OPCO LLC to remove Facilities that the BAM BROADBAND OPCO LLC uses for the provision of services other than Telecommunications Services or Interstate Telecommunications Services, so long as such use of Facilities for the provisions of the ongoing other services is authorized by the City pursuant to this Agreement. SECTION 36. Cancellation for Conflict of Interest, Pursuant to A.R.S. § 38-511, City may cancel this Agreement within three (3) years after Agreement execution without penalty or further obligation if any person significantly involved in initiating, negotiating, securing, drafting or creating the Agreement on behalf of City is or becomes at any time while the Agreement or an extension of the Agreement is in effect an employee of or a consultant to any other party to this Agreement with respect to the subject matter of the Agreement. The cancellation shall be effective when BAM BROADBAND OPCO LLC receives written notice of the cancellation, unless the notice specifies a later time. 34 SECTION 37. Gratuities. City may, by written notice, terminate this Agreement, in whole or in part, if City determines that employment or a gratuity was offered or made by BAM BROADBAND OPCO LLC or a representative of BAM BROADBAND OPCO LLC to any officer or employee of City of the purpose influencing the outcome of the procurement of securing the Agreement, an amendment to the Agreement, or favorable treatment concerning the Agreement, including the making of any determination or decision about Agreement performance. City, in addition to any other rights or remedies, shall be entitled to recover exemplary damages in the amount of three times the value of the gratuity offered by BAM BROADBAND OPCO LLC. SECTION 38. Condemnation The following shall govern any condemnation of any part of or interest in the area used and/or occupied by BAM BROADBAND OPCO LLC and any conveyance to City or another condemner in avoidance or settlement of condemnation or threat of condemnation: 1. Termination for Condemnation. This agreement shall terminate as to the portion taken on the date that is the earlier of the date title vests in the condemner, or the date upon which the condemner is let into possession. 2. Power to Condemn. BAM BROADBANDO OPCO LLC acknowledges that City and others from time to time may sue to condemn the area used by BAM BROADBAND OPCO LLC or any interest therein or rights thereto. a. City reserves the right of condemnation or eminent domain over the area used and/or occupied by BAM BROADBAND OPCO LLC. City does not warrant that it will not condemn the area(s) used and/or occupied by BAM BROADBAND OPCO LLC during the term of this Agreement, but City does not presently have intentions to condemn such area(s). b. City also reserves the right through its powers of eminent domain to acquire all or any portion of the Facilities owned by BAM BROADBAND OPCO LLC in accordance with the applicable conditions set forth in the Arizona Revised Statutes. However, under no circumstances shall any valuation be made for any right or privilege granted by this Agreement should the City acquire the property of BAM BROADBAND OPCO LLC. SECTION 39. Notice 39.1 All notices, which shall or may be given pursuant to this Agreement, shall be in writing and transmitted through the U.S certified or registered mail, postage prepaid, by means of prepaid private delivery systems, r by facsimile transmission showing a valid delivery receipt if a hard copy of the same is followed by delivery the U.S. mail or by private delivery systems, addressed as follows: CITY OF GLENDALE City of Glendale Construction Engineering Manager 5850 W. Glendale Ave. Glendale, AZ 85301 35 WITH COPIES TO: City Attorney’s Office City Clerk’s Office 5850 W. Glendale Ave. 5850 W. Glendale Ave. Glendale, AZ 85301 Glendale, AZ 85301 BAM BROADBAND OPCO LLC: BAM BROADBAND OPCO LLC Attn: Chief Operation Officer 7000 E. Bellview Ave., Suite 250 Greenwood Village, CO 80111 39.2 Notices shall be deemed sufficiently given and served upon the other party if delivered personally or by facsimile transmission (provided with respect to facsimile or email that such transmissions are received on a business day during normal business hours), the first business day after deposit if sent by private delivery systems and the fifth business day after deposit in U.S. Mail. 39.3 Either party may from time to time designate any other address for this purpose by written notice to the other party in the manner set forth above. 39.4 BAM BROADBAND OPCO LLC shall notify the City within ten (10) business days of any change in mailing address. SECTION 40. Governing Law It is mutually understood and agreed that this Agreement shall be governed by the laws of the State of Arizona, both as to interpretation and performance. Any action at law, suit in equity, or judicial proceeding for the enforcement of this Agreement or any provision thereof shall be instituted only in the courts located within Maricopa County, Arizona. SECTION 41. Partial Invalidity If any section, paragraph, subdivision, clause, phrase or provision of this Agreement shall be adjudged invalid or unenforceable or is preempted by federal or state laws or regulations, the same shall not affect the validity of this Agreement as a hole or any part of the provisions of this Agreement other than the part adjudged to be invalid, unenforceable or preempted. SECTION 42. No Warranty 42.1 The issuance of a license, permit or other authorization by the City is not a representation or warranty that such license, permit, or authorization is a legally sufficient substitute for a franchise, and is not a representation of warranty that a franchise is not required. 42.2 BAM BROADBAND OPCO LLC ACKNOWLEDGES AND AGREES THAT CITY DOES NOT WARRANT THE CONDITION OR SAFETY OF ITS ROW OR THE PREMISES SURROUNDING THE SAME, AND BAM BROADBAND OPCO LLC HEREBY ASSUMES ALL THE RISKS OF ANY DAMAGE, INJURY OR LOSS AOF ANY NATURE WHATSOEVER CAUSED BY OR IN CONNECTION THE USE OF ANY CITY ROW. 36 SECTION 43. Non-Waiver BAM BROADBAND OPCO LLC shall not be excused from complying with an of the terms and conditions of this Agreement by any failure of City upon any one or more occasions to insist upon or to seek compliance with any such terms or conditions. Notwithstanding any other provision of this Agreement, nothing in this Agreement shall constitute a waiver of either party’s right to challenge any portion of this Agreement that is not in accordance with applicable federal, state and local laws. SECTION 44. Remedies Not Exclusive The remedies set forth in this License and Agreement are not exclusive. Election of one remedy does not preclude the use of other remedies. SECTION 45. Force Majeure With respect to any provision of this Agreement, the violation or non-compliance of which could result in the imposition of a financial penalty, liquidated damages, forfeiture or other sanction upon BAM BROADBAND OPCO LLC, such violation or non-compliance shall be excused where such violation or non-compliance is the result of acts of God, war, civil disturbance, strike or other labor unrest, or other events, the occurrence of which was not reasonably foreseeable by BAM BROADBAND OPCO LLC and is beyond its reasonable control. SECTION 46. Dispute Resolution In the event of a dispute between the parties to this Agreement regarding a provision of this Agreement, a party's performance of its obligations as stated in this Agreement or any other matter governed by the terms of this Agreement, the parties will meet in good faith to attempt to resolve the dispute. If the parties fail to resolve the dispute, then the parties agree that the dispute may be resolved through mediation. If mediation is agreed to by the disputing parties, the disputing parties shall mutually agree upon the services of one (1) mediator whose fees and expenses shall be borne equally by the disputing parties. If the dispute is not resolved within a reasonable time, the disputing parties shall be free to use other remedies such as nonbinding arbitration or litigation to resolve the dispute. SECTION 47. Exhibits All Exhibits referred to in this Agreement and any addenda, attachments, and schedules which may, from time to time, be referred to in any duly executed amendment to this Agreement are by such reference incorporated in this Agreement and shall be deemed a part of this Agreement. SECTION 48. Survival of Liability All obligations of BAM BROADBAND OPCO LLC and City hereunder and all warranties and indemnities of BAM BROADBAND OPCO LLC hereunder shall survive termination of this Agreement.