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HomeMy WebLinkAboutCAG1993-0577 - Extension - Satisfy Certain Obligtions of Existing Franchise Agreement - 05/29/2001 i AT&T AGREEMENT THIS AGREEMENT, effective this day of 2001, is by and between TCI Cablevision of Washington, Inc known as AT&T Broadband (hereinafter "AT&T"), and the Cities of Auburn, Burien, Kent, Renton, SeaTac and Tukwila(hereinafter collectively "the Cities") to fully satisfy certain of AT&T's existing franchise obligations to provide, maintain and operate public access facilities for the Cities RECITALS A AT&T and the Cities entered into agreements whereby the Cities granted franchises to AT&T The existing franchise agreements are as follows Auburn Resolution No 2409, as amended Burien Franchise Ordinance No 119, as amended Kent Franchise Ordinance No 3108, as amended, granted in accordance with Master Ordinance No 3107 Renton Franchise Ordinance No 4412, as amended, granted in accordance with Master Ordinance No 4413 SeaTac Franchise Ordinance No 96-1003 Tukwila Franchise Ordinance No 1688, granted in accordance with Master Ordinance No 1687 For convenience, they shall be referred to collectively herein as the "Franchise " B Pursuant to the Franchise, AT&T is obligated to provide, maintain and operate a public access studio The purpose of this Agreement is to release this obligation as set forth under the Franchise C In exchange for a release of its obligations described in paragraph B above, the Cities and AT&T agree that AT&T will contribute to Puget Sound Access Foundation (hereinafter "PSAF"), a tax- exempt charitable trust governed by the laws of the state of Washington and constituted as a supporting organization of Puget Sound Access (hereinafter "PSA"), a tax-exempt Washington non-profit corporation, funds intended to be granted over 10 -1- AT&T Agreement 05/29/01 years to PSA to enable PSA to undertake this obligation for the remainder of the Franchise terms referenced in paragraph (A) above NOW, THEREFORE, in consideration of the mutual undertakings contained herein, the parties agree as follows 1 In exchange for a full and unconditional release of its Franchise obligation to provide, equip, operate and maintain public access facilities for the Cities, AT&T agrees to pay to PSAF a one-time lump-sum amount of$3,701,942 78 (the "Designated Fund") from which PSAF shall make grants, at least annually, to PSA to be used by PSA for the sole purpose of constructing. equipping, operating and maintaining a single public access studio in South King County for the use and benefit of the citizens of the Cities through January 1, 2011, or for so long as PSA has the financial means to do so, whichever is earlier AT&T shall pay this amount to PSAF within sixty (60) days of the execution of this Agreement, provided, however, that prior to payment being made to PSAF by AT&T, the PSAF Board of Advisors shall prepare and approve a written plan that outlines how PSAF intends to invest, manage, administer and distribute the Designated Fund in a prudent and responsible manner with the intent that the funds will be sufficient to enable PSA to fulfill its obligation to the Cities through January 1, 2011 2 Each City assigns to PSAF its right to receive such payment from AT&T in lieu of its Franchise obligations described in paragraph B 3 The Cities agree to contract with PSA for use of the public access studio and the administration and operation of the public access channels to be provided by AT&T A copy of the proposed service agreement to be executed by and between each City and PSA is attached hereto as Exhibit A -2- AT&T Agreement 05/29/O1 J 4 AT&T agrees to assign a designated AT&T employee to provide consultation and advice to PSAF and PSA until June 30, 2001, as additional consideration for the full and unconditional release granted by the Cities pursuant to paragraph 7 below 5 It is understood and agreed that all funds paid to PSAF pursuant to this Agreement shall be administered by PSAF subject to its governing instrument, a copy of which is attached hereto as Exhibit B The Trustee of PSAF shall have full authority and discretion as to the investment and reinvestment of the Designated Fund 6 It is further understood that following the end of the term of this Agreement as provided in paragraph 1 above, if any of the funds paid to PSAF pursuant to this Agreement, including residual monies in the Designated Fund, have not been expended for the purposes described herein, then notwithstanding anything herein to the contrary, PSAF shall distribute the remainder of such funds to PSA and PSA shall have the right to use such funds for PSA's general uses and purposes (in accordance with its articles of incorporation and bylaws) without restrictions or conditions or, as determined by the Board of Directors of PSA in its sole discretion, to distribute these funds to another, successor organization organized for the same purpose as PSA and operated exclusively for such uses and purposes as shall at the time qualify as exempt from taxation under section 501(c)(3) of the Internal Revenue Code of 1986, as amended 7 In exchange for satisfying as herein contemplated the Franchise obligation described in paragraph B above, the Cities agree to fully and unconditionally release AT&T from its current Franchise obligation to provide, maintain and operate a public access studio for each City for the term of each City's franchise -3- AT&T Agreement 05/29/01 i 8 PSAF agrees to indemnify, defend and hold harmless AT&T and the Cities party to this Agreement from and against any and all claims which may arise out of this Agreement that may be brought against AT&T and/or the Cities by any third party 9 The Cities covenant and agree that they will not seek additional funds or any other form of consideration from AT&T for the duration of this Agreement should the Designated Fund provided by AT&T pursuant to paragraph 1 of this Agreement be insufficient to fund the construction, equipping, operating and maintaining of a public access studio by PSA for the duration of this Agreement 10 This Agreement may be executed in several counterparts, each of which when so executed shall be deemed to be an original, and all of which together shall constitute one agreement, binding on all the parties hereto, notwithstanding that all parties should not have signed the same counterpart 11 It is intended that the funds paid to PSAF pursuant to this Agreement shall be the property of PSAF and that nothing in tlus Agreement shall affect the status of PSAF or PSA as organizations that are described in section 501(c)(3) of the Internal Revenue Code of 1986, as amended To the extent necessary, this Agreement shall be interpreted in a manner consistent with the foregoing and so as to conform with the requirements of the Internal Revenue Code and any regulation issued pursuant thereto applicable to PSAF and/or PSA 12 The parties to this Agreement represent and warrant that they have full lawful authority to enter into it, as demonstrated by the signatures of each party's representative as set forth below 13 Each party to this Agreement agrees to execute all documents and do all things necessary and appropriate to carry out the provisions of this Agreement -4- AT&T Agreement 05/29/01 14 This Agreement shall not affect the other obligations as may be owed by AT&T to the Cities as set forth in the Franchise 15 This Agreement shall be interpreted and enforced exclusively under the laws of the state of Washington 16 This Agreement constitutes the entire agreement of the parties hereto and supersedes all prior understandings, negotiations and agreements between them concerning the subject matter There are no representations, agreements, arrangements, or understandings, oral or written, between the parties hereto relating to the subject matter of this Agreement which are not described herein IN WITNESS WHEREOF, the parties have executed this Agreement as of the date written above CITY OF AUBURN, a municipal corporation By Approved as to Form Its City Attorney Date Date CITY OF BURIEN, a municipal corporation By Approved as to Form Its City Attorney Date Date CITY OF E�T,a mum jc �alion By J Approved as to Form 2 Ak Its City Attorney Date S- o- Date Z� '� CITY OF RENTON, a municipal corporation By Approved as to Form Its City Attorney Date Date -5- AT&T Agreement 05/29/O1 CITY OF SEATAC, a municipal corporation By Approved as to Form Its City Attorney Date Date CITY OF TUKWILA, a municipal corporation By Approved as to Form Its City Attorney Date Date TCI CABLEVISION OF WASHINGTON, INC known as AT&T BROADBAND, a Washington corporation By Its Date -6- AT&T Agreement 05/29/01 ACKNOWLEDGMENT AND ACCEPTANCE OF CONTRIBUTION Puget Sound Access Foundation (PSAF), a supporting organization of Puget Sound Access, hereby accepts the sum of$3,701,942 78 from TCI Cablevision of Washington, Inc known as AT&T Broadband, subject to the terms and conditions set forth in the foregoing Agreement PSAF agrees to indemnify, defend and hold harmless AT&T and the Cities party to this Agreement from and against any and all claims that may be brought against AT&T and the Cities by any third party arising out of this Agreement DATED this day of 2001 PUGET SOUND ACCESS FOUNDATION, By Its Trustee STATE OF WASHINGTON ) ss COUNTY OF KING ) On this day personally appeared before me to me known to be the Trustee of PUGET SOUND ACCESS FOUNDATION, that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute the same instrument GIVEN under my hand and official seal this day of 2001 (print notary's name) Notary Public in and for the State of Washington, residing at My commission expires -7- AT&T Agreement 05/29/01 PUGET SOUND ACCESS FOUNDATION TRUST AGREEMENT THIS AGREEMENT is entered into this_day of 2001, between TCI CABLEVISION OF WASHINGTON, INC known as AT&T Broadband (hereinafter the ' Trustor") and WELLS FARGO BANK, N A (and successors thereto) (hereinafter the "Trustee") as follows Pursuant to an agreement between the Trustor and the Cities of Auburn, Burien, Kent, Renton, SeaTac, and Tukwila dated , 2001, the Trustor has irrevocably transferred to the Trustee the property listed on Schedule A attached hereto, which property, together with any additions thereto by any other persons or entities (hereinafter"Foundation Property"), the Trustee shall hold, administer and distribute as hereinafter provided for the purposes of enabling PUGET SOUND ACCESS to construct, if necessary, or otherwise provide, maintain and operate a public access studio This trust is intended to be a tax-exempt charitable trust and shall be known as the "Puget Sound Access Foundation" (hereinafter "PSA Foundation") ARTICLE I CHARITABLE PURPOSES AND CHARITABLE BENEFICIARY PSA Foundation is organized and at all times shall be operated exclusively for charitable uses and purposes within the meaning of Section 501(c)(3) of the Internal Revenue Code of 1986, as amended (hereinafter "Code") The Foundation Property shall be used exclusively for such charitable uses and purposes PSA Foundation is a supporting organization, within the meaning of Code Section 509(a)(3), that is organized and shall be operated exclusively for the purpose of supporting PUGET SOUND ACCESS, a Washington non-profit corporation exempt from taxation under Code Section 501(c)(3) and described in Code Section 509(a)(1) and Code 1176955 1 Section 170(b)(1)(A)(vi) (hereinafter"PSA") In the event that during the trust term PSA ceases to exist or to qualify for exempt status under Code Section 501(c)(3) as an organization described in Code Section 509(a)(1) or Code Section 509(a)(2), PSA Foundation shall support such organization that does so qualify and is organized and operated exclusively for the same charitable and educational purposes as PSA ARTICLE II TRUSTEES 2 1 Designation and Successorship Pursuant to the request of PSA, the Trustee of PSA Foundation shall be WELLS FARGO BANK, N A (or successor thereto) Any Trustee of this trust may be removed and a successor appointed as provided in Article 3 3 of this Agreement 22 Resignation of Trustee Any Trustee of this trust may resign at any time by giving thirty (30) days written notice of such Trustee's resignation to the Board of Advisors of PSA Foundation (see Article III "Board of Advisors') Upon resignation of the Trustee, the Board of Advisors shall appoint a successor Trustee in the manner provided in Article 3 3 of this Agreement without court proceedings 23 Accounting of Prior Trustee Any Successor Trustee may accept a predecessor's accounting without independent review or audit and shall not be liable for any loss sustained during or attributable to the period in which a predecessor served as Trustee 24 Trustee's Compensation The Trustee shall be compensated in accordance with its customary schedule of fees as the same may be revised from time to tune 25 Bond No bond shall be required of any Trustee serving hereunder - 2 - 1176955 1 ARTICLE III BOARD OF ADVISORS 3 1 Board of Advisors During the term of the trust, the Trustee shall be advised by a Board of Advisors as provided in this Agreement It shall be the function and purpose of the Board of Advisors to advise the Trustee on the making and timing of grants to PSA in accordance with the provisions of Article IV of this Agreement so that the Trustee can make appropriate short- and long-term investment decisions in accordance with the grant recommendations of the Board of Advisors Furthermore, the Board of Advisors shall be available to consult with the Trustee on matters relating to the business and affairs of PSA Foundation and to suggest or be available for consultation with regard to any activities which PSA Foundation may undertake, consistent with its exempt purposes, in furtherance of its goals and objectives The Board of Advisors also shall have the authority to remove and replace the Trustee as more particularly described in Article 3 3 below 12 Membership and Appointment The Board of Advisors of PSA Foundation shall consist of no fewer than three (3) and no more than thirteen (13) individuals To the extent possible, the Board of Advisors should consist of individuals whose integrity, capability, experience, community standing, and knowledge of the communities and institutions served by PSA will help PSA Foundation carry out its functions The members of the Board of Advisors of PSA Foundation shall consist of those individuals who are appointed as such by the Board of Directors of PSA by act of a majority of the directors then in office Each appointee to the Board of Advisors shall take office at the time and on the date specified by the Board of Directors of PSA and shall continue as a member of the Board of Advisors for a term of one (1) year and thereafter until his or her successor has been elected and has qualified or until his or her earlier - 3 - 1176955 1 death, resignation, retirement, disqualification or removal There shall be no limitation on the number of successive terms an individual may serve as a member of the Board of Advisors Any vacancy in the Board of Advisors arising at any time and from any cause may be filled for the unexpired term at any meeting of the Board of Directors by act of a majority of the directors then in office, and each member so appointed shall serve until the expiration of his or her term, or the unexpired term of his or her predecessor, as the case may be, and until his or her successor is elected and qualifies, or until his or her earlier death, resignation, retirement, removal or disqualification 3 3 Removal Any member of the Board of Advisors may be removed, either for or without cause, by the Board of Directors of PSA by the affirmative vote of a majority of the directors then in office, and a successor member may be appointed by the Board of Directors of PSA at the same time to serve the unexpired term of the individual so removed 34 Authority to Remove Trust and Appoint Successor The Board of Advisors shall have the right to remove any Trustee of this trust for breach of fiduciary duty under Washington law or for failure to produce over a reasonable period of time (as determined by the Board of Advisors) a reasonable return of that income (as determined by the Board of Advisors) with due regard of safety of principal over the course of the trust term Prior to exercising such authority, the Board of Advisors shall notify the Trustee, in writing, and the Trustee shall have thirty (30) days from receipt of such notification to respond to the Board of Advisors and make any necessary or advisable corrections Upon removal of the Trustee, the Board of Advisors, without court proceedings, shall concurrently appoint an accepting successor Trustee which shall be a bank or trust company having trust powers and capital and surplus of at least One Hundred Million Dollars (5100,000,000) - 4 - 1176955 1 3 5 Quorum and Vote Required for Action At meetings of the Board of Advisors, a majority of the members of the Board of Advisors then in office shall be necessary to constitute a quorum for the transaction of business Except as otherwise provided in this Agreement, the act of a majority of the members of the Board of Advisors present at a meeting at which a quorum is present at the time shall be the act of the Board of Advisors 3 6 Action Without a Meeting Any action required or permitted to be taken by the Board of Advisors may be taken without a meeting if a consent in writing, setting forth the actions so taken, is signed by not less than a majority of the members of the Board of Advisors then in office Such consent shall have the same force and effect as an affirmative vote at a meeting duly called 3 7 Telephone and Similar Meetings The members of the Board of Advisors may participate in and hold a meeting by means of conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other at the same time Participation in such a meeting shall constitute presence in person at the meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of any business 3 8 Compensation No stated salary shall be paid by PSA Foundation to the members of the Board of Advisors for their services as such, but any member of the Board of Advisors may receive reimbursement for expenditures incurred on behalf of PSA Foundation ARTICLE IV DISTRIBUTIONS 4 1 Required Income Distributions During the trust term, the Trustee shall distribute to or for the use of PSA all of the net income of the trust in convenient installments, but not less - 5 - 1176955 1 frequently than annually The specific timing of such distributions shall be determined by the Trustee upon consultation with the Board of Advisors and a representative of PSA as provided in Article 4 3 below 42 Discretionary Principal Distributions Upon receipt of a written request from PSA, the Trustee, upon consultation with the Board of Advisors and a representative of PSA as provided in Article 4 3 below, may make distributions of principal to or for the use of PSA, provided, however, that any distributions of principal in excess of Ten Thousand Dollars ($10,000) shall be approved by a majority of the members of the Board of Advisors then in office 43 Required Consultation with Board of Advisors and PSA Throughout the trust term, the Trustee shall meet with the Board of Advisors and a representative of PSA at least annually for the following purposes 4 3 1 To work together to implement an investment strategy that will best serve the goals and objectives of PSA, 4 3 2 To work together to establish fixed dates for the distribution of trust income with the goal of enabling PSA to budget effectively each year, and 4 3 3 To consider written requests by PSA for discretionary principal distributions 44 Limitations 4 4 1 No part of the net earnings of PSA Foundation shall inure to the benefit of, or be distributable to, any individual so as to jeopardize PSA Foundation's exempt status under Code Section 501(c)(3) PSA Foundation shall be authorized and empowered, however, to pay reasonable compensation for services rendered, to make reimbursement for reasonable expenses - 6- 1176955 1 incurred on its behalf, and to make payments and distributions in furtherance of PSA Foundation's charitable purposes 4 4 2 PSA Foundation shall not carry on propaganda, or otherwise attempt to influence legislation, to an extent that would disqualify it for tax exemption under Code Section 501(c)(3) by reason of attempting to influence legislation PSA Foundation shall not participate in, or intervene in(including the publication or distribution of statements) any political campaign on behalf of(or in opposition to) any candidate for public office 4 4 3 Notwithstanding any other provisions of this Agreement, PSA Foundation shall not conduct or carry on activities not permitted to be conducted or carried on by an organization exempt from taxation under Code Section 501(c)(3) and which is a supporting organization with the meaning of Code Section 509(a)(3), or by an organization contributions to which are deductible under Code Section 170(c)(2) 444 If PSA Foundation is, or at anytime becomes, a private foundation within the meaning of Code Section 509(a), for as long as such private foundation status continues,the following provisions shall apply in the management of its affairs (a) Each year PSA Foundation shall distribute its income for the purposes described in Article I at such time and in such manner at least sufficient to avoid liability for the tax imposed by Code Section 4942, (b) PSA Foundation shall not engage in any act of self-dealing as defined in Code Section 4941(d) which would give rise to any liability for the tax imposed by Code Section 4941(a), - 7 - 1176955 1 (c) PSA Foundation shall not retain any excess business holdings as defined in Code Section 4943(c) which would give rise to any liability for the tax imposed by Code Section 4943, (d) PSA Foundation shall not make any investments or otherwise acquire assets in such manner as to subject it to tax under Code Section 4944, and (e) PSA Foundation shall not make any taxable expenditures as defined in Code Section 4945(d) which would give rise to any liability for the tax imposed by Code Section 4945(a) ARTICLE V DURATION OF FOUNDATION 5 1 Term of Trust The trust shall terminate as soon as practicable after January 1, 2011 52 Final Distribution Upon the winding up and dissolution of PSA Foundation, after payment of or adequate provision for the debts and obligations of PSA Foundation, the Trustee shall distribute the Foundation Property to PSA If at such time PSA does not exist or does not qualify as exempt from taxation under Code Section 501(c)(3) as an organization described in Code Section 509(a)(1) or Code Section 509(a)(2), the Trustee, upon consultation with the Board of Advisors, shall distribute the Foundation Property to an organization selected by the Trustee that is exempt from taxation under Code Section 501(c)(3) as an organization described under Code Section 509(a)(1) or Code Section 509(a)(2) that is organized and operated exclusively for the same charitable and educational purposes as PSA In no event shall any of the Foundation Property be distributed to or for the benefit of any private individual other than as reasonable compensation for services rendered 8 - 1176955 1 ARTICLE VI ADMINISTRATIVE PROVISIONS 6 1 Trustee's Powers In addition to and not in limitation of the powers set forth in this Agreement, except as otherwise expressly provided herein, the Trustee shall have all rights, powers and duties given by the laws of the State of Washington, including those set forth in the Washington Trust Act under RCW 11 98, in force on the date of this Agreement, incorporating by reference such laws Except as otherwise expressly provided herein, such powers may be exercised independently and without the prior approval of any court of judicial authority, and no person dealing with the Trustee shall be required to inquire into the propriety of any of the Trustee's actions If any powers herein conferred upon the Trustee by state law or by the terms of this Agreement should jeopardize the tax-exempt status of the trust, however, this Agreement shall automatically be amended to conform to the appropriate federal tax law and such offending powers shall be null and void In addition, the Trustee shall have full power and authority 6 1 1 Determination of Principal and Income To determine what is principal or income, which authority shall specifically include the right to make adjustments between principal and income for premiums, discounts, depreciation or depletion, in making such determination the Trustee may, but shall not be required to, apply the Washington Principal and Income Act 6 12 Agents and Attorneys- To employ agents and attorneys as the Trustee thinks necessary or desirable for the proper administration of the trust or for any litigation, controversy, or uncertainty which may arise in connection with the trust, without liability for their omissions or neglect, but using reasonable care in their selection The Trustee may pay - 9 - 1176955 1 reasonable compensation to agents and attorneys for their services and be fully protected in relying on advice of legal counsel 6 13 Investments To invest and reinvest the trust assets as the Trustee shall determine to be prudent under circumstances then prevailing but without being limited in the character of investments by any statutory or other governmental limitation on the investment of trust funds Nothing in this Agreement shall be construed to restrict the Trustee from investing the trust assets in a manner which could result in the annual realization of a reasonable amount of income or gain from the sale or disposition of trust assets, and 6 14 Purchase and Sales of Securities The Trustee may buy, sell and trade in securities of any nature, and for such purposes may maintain and operate accounts with brokers 6 1 5 Contributions from Others To receive gifts, bequests, or devises to PSA Foundation from any person or persons at any time The Trustee shall not, however, receive gifts, bequests, or devises made upon any terms or conditions that would conflict with the charitable purposes of PSA Foundation or other provisions of this Agreement The Trustee shall have power and authority to refuse or place restrictions or any gift proffered 62 Accountine Within sixty (60) days following the end of each calendar year, the Trustee shall prepare a statement of all property held in the trust and of all disbursements and receipts of the trust for the calendar year and shall furnish a copy of the statement to the Board of Advisors, but, to the extent authorized by law, the Trustee shall otherwise be relieved from compliance with the Uniform Trustees Accounting Act of the State of Washington, any amendments thereof, and any similar laws of any other jurisdiction wherein the trust, or any share or portion thereof, is being administered 10- 1176955 1 ARTICLE VII REVOCATION AND AMENDMENT 7 1 Revocation This Agreement is irrevocable, and the Trustor does not reserve any right to alter, amend, revoke or terminate this trust in whole or in part at anytime The Trustor also declares that after the execution of this Agreement, the Trustor shall have no right, title or interest in, and no power or privilege to control or affect the Foundation Property or the income therefrom 72 Amendment Notwithstanding the foregoing, the Trustee shall have the power to amend this Agreement in any manner required for the purposes of ensuring that PSA Foundation qualifies and continues to qualify under Code Section 501(c)(3) and qualifying PSA Foundation as a supporting organization described in Code Section 509(a)(3) ARTICLE VIII LIMITATION OF TRUSTEE'S LIABILITY AND INDEMNIFICATION 8 1 Limitation of Trustee's Liability A Trustee shall have no liability to PSA Foundation for monetary damages for conduct as a Trustee, except for (1) acts or omissions that involve intentional misconduct by the Trustee, (2) a knowing violation of law by the Trustee, (3) making, approving or assenting to distributions by PSA Foundation in violation of this Agreement, (4) any transaction from which the Trustee will personally receive a benefit in money, property or services to which the Trustee is not legally entitled Any amendment to or modification of this Article shall not adversely affect any right or protection of a Trustee of PSA Foundation existing at the time of such amendment or modification for or with respect to any acts or omissions of such Trustee occurring prior to such amendment or modification This - 11 - 1176955 1 provision shall not eliminate or limit the liability of a Trustee for any act or omission occurring prior to the date this section becomes effective 82 Right to Indemnification PSA Foundation shall indemnify any person or entity (hereinafter "Person") who was or is threatened to be made a party to or is otherwise involved (including, without limitation, as a witness) in an actual or threatened action, suit, or proceeding, whether civil, criminal, administrative, or investigative, by reason of the fact that such Person is or was a Trustee of PSA Foundation or a member of the Board of Advisors of PSA Foundation, against all reasonable expenses incurred by the Person in connection with the proceeding Except as otherwise provided herein, PSA Foundation shall indemnify and hold harmless a Person made a party to a proceeding because the Person is or was a Trustee or a member of the Board of Advisors against liability incurred in the proceeding if(1) the Person acted in good faith, and (2)the Person reasonably believed (a) in the case of conduct in an official capacity with PSA Foundation,that the conduct was in PSA Foundation's best interests, and (b) in all other cases, that the conduct was at least not opposed to PSA Foundation's best interests The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent is not, of itself, determinative that the Trustee or member of the Board of Advisors did not meet the standard of conduct described in this Article PSA Foundation shall not indemnify a Trustee or a member of the Board of Advisors under this Article in connection with a proceeding by or in the right of PSA Foundation in which the Trustee or the member of the Board of Advisors was adjudged liable to PSA Foundation or in connection with any other proceeding charging improper personal benefit to the Trustee or the member of the Board of Advisors, whether or not involving action in an official capacity, in which the Trustee or the member of the Board of Advisors was adjudged liable on the basis that - 12 - 1176955 1 personal benefit was improperly received by the Trustee or the member of the Board of Advisors Indemnification hereunder in connection with a proceeding by or in the right of PSA Foundation is limited to reasonable expenses incurred in connection with the proceeding 8 3 Indemnification of Employees and Agents PSA Foundation may indemnify employees and agents of PSA Foundation to the same extent as provided under Article 8 2 above or to the extent, consistent with law, that may be provided by contract ARTICLE IX MISCELLANEOUS 9 1 Number and Gender Unless some other meaning is apparent from the context, plurals shall include the singular and vice versa , and masculine, feminine and neuter words shall be used interchangeably 92 Governing Law, Savings Clause This instrument shall be governed by the laws of the State of Washington Any provision prohibited by law or unenforceable shall not affect the remaining provisions of this instrument - 13 - 1176955 1 IN WITNESS WHEREOF, the parties have executed this Agreement as of the date wntten above TRUSTOR: TCI CABLEVISION OF WASHINGTON, INC known as AT&T BROADBAND, a Washington corporation By Its TRUSTEE: By Its - 14 - 1176955 1 STATE OF WASHINGTON ) ss COUNTY OF KING ) On this day personally appeared before me to me known to be the of TCI CABLEVISION OF WASHINGTON, INC , the corporation that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute the same instrument GIVEN under my hand and official seal this day of 2001 (print notary's name) Notary Public in and for the State of Washington, residing at My commission expires STATE OF WASHINGTON ) ss COUNTY OF KING ) On this day personally appeared before me to me known to be the of the corporation that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said corporation, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute the same instrument GIVEN under my hand and official seal this day of 12001 (print notary's name) Notary Public in and for the State of Washington, residing at My commission expires - 15 - 1176955 1 SCHEDULE A Puget Sound Access Foundation Trust Agreement Cash in the amount of$3,701,942 78 Received by Trustee 1176955 1 .............. u CERTIFICATE BER Te C 5-00 ...................... is Alift NY 436 PRODUCER THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS Marsh USA Inc. NO RIGHTS UPON THE CERTIFICATE HOLDER OTHER THAN THOSE PROVIDED IN THE 1166 Avenue of The Americas POLICY.THIS CERTIFICATE DOES NOT AMEND,EXTEND OR ALTER THE COVERAGE New York, NY 10036-2774 AFFORDED BY THE POLICIES DESCRIBED HEREIN. COMPANIES AFFORDING COVERAGE COMPANY -21000-CORP--99-00 A OLD REPUBLIC INSURANCE COMPANY INSURED COMPANY I ; I AT&T Corp. B NATIONAL UNION FIRE INS.CO OF PA 1200 Peachtree Street NE Prom 1 Loc.2016 Atlanta,GA 30309 COMPANY C N/A COMPANY D N/A AOVER�lk'� "2 THIS IS TO CERTIFY THAT POLICIES 6VrN'9'6iANCE' DESCRIBED HEREIN HAVE BEEN ISSUED TO THE INSURED NAMED HEREIN FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT,TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THE CERTIFICATE MAY BE ISSUED OR MAY PERTABN,THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS,CONDITIONS AND EXCLUSIONS OF SUCH POLICIES.LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS cc TYPE OF INSURANCEPOLICY EFFECTIVE POLICY EXPIR LTR POLICY NUMBER DATE(MMIDDIYY) DATE(M MIDDA/TTION LIMITS • GENERAL LIABILITY MWZY 54957 10115/99 10/15/02 GENERAL AGGREGATE $ N/A X COMMERCIAL GENERAL LIABILITY PRODUCTS-COMPIOPAGG $ 2,500,000 CLAIMS MADE Ix I OCCUR PERSONAL&ADV INJURY $ 2,500,000 OWNERS&CONTRACTOR'S PROT EACH OCCURRENCE $ 2,500,000 FIRE DAMAGE(Any one fire) $ MED EXP An we person) • AUTOMOBILE LIABILITY MWTB 17862 10115199 10/15/02 COMBINED SINGLE LIMIT $ 2,500,000 X ANY AUTO ALL OWNED AUTOS BODILY INJURY $ SCHEDULED AUTOS (Per Person) HIRED AUTOS BODILY INJURY NON-OWNED AUTOS PROPERTY DAMAGE $ GARAGE LIABILITY AUTO ONLY-EAACCIDENT $ ANY AUTO OTHER THAN AUTO ONLY&. EACH ACCIDENT $ AGGREGATE $ B EXCESS LIABILITY BE 871 3680 10115101 10/15/02 EACH OCCURRENCE s 5,000,000 UMBRELLA FORM AGGREGATE $ 5,O00,000 OTHER THAN UMBRELLA FORM $ WORKERS COMPENSATION AND WC STATU-7-77T7 EMPLOYERS'LIABILITY TORY LIMITS I I ER EL EACH ACCIDENT $ THE PROPRIETOR/ INCL EL DISEASE-POLICY LIMIT $ PARTNERSAEXECUTIVE H OFFICERS ARE EXCL EL DISEASE-EACH EMPLOYEE $ OTHER DESCRIPTION OF 0 PERATIONSILOCATIONSUVEHICLES/SPECIAL ITEMS(LIMITS MAY BE SUBJECT TO DEDUCTIBLES OR RETENTIONS) Certificate holder is hereby added as additional insured as required by written contract or lease agreement. Location code I Site No.Various locations designated by The City right-of-ways. 'CERTIFICATE HOLDER 'CANipELLA SHOULD ANY OF THE POLICIES DESCRIBED HEREIN BE CANCELLED BEFORE TIE EXPIRATION DATE THEREOF, THE INSURER AFFORDING COVERAGE WILL ENDEAVOR TO MAIL—30 DAYS MITTEN NOTICE TO THE City of Kent CERTIFICATE HOLDER NAMED HEREIN,BUT FAILURE TO MAIL SUCH NOTICE SHALL IMPOSE NO OBLIGATION OR 220 Fourth Avenue South Attn: City Clerk LIABILITY OFANY KIND UPON THE INSURER AFFORDING COVERAGE,ITS AGENTS OR REPRESENTATIVES. Kent,WA 98403 MARSH USA INC. BY: RoseMarie Melillo