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ORDINANCE NO.5 5 3 5
AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, APPROVING AND AUTHORIZING THE EXECUTION OF
THE AT&T AGREEMENT AND CONFIRMING FULFILLMENT OF THE
FRANCHISE OBLIGATION OF TCI CABLEVISION OF WASHINGTON, INC.
KNOWN AS AT&T BROADBAND TO PROVIDE, OPERATE, AND MAINTAIN
A PUBLIC ACCESS FACILITY.
WHEREAS, under Section 5 of its Franchise Agreement with the City of
Auburn, TCI Cablevision of Washington, Inc. known as AT&T Broadband
("AT&T" assumed an obligation to provide, maintain, and operate a public
access studio for the City during the life of its franchise; and
WHEREAS, AT&T has assumed this same franchise obligation with the
cites of Auburn, Burien, Kent, Renton, SeaTac, and Tukwila (collectively
"Cities"); and
WHEREAS, AT&T has reached an agreement with the Cities to fulfill the
franchise obligation described herein by a one-time payment of $3,701,942.78
(the "Access Funds") to Puget Sound Access Foundation ("PSAF"), a
Washington non-profit corporation; and
WHEREAS, the Access Funds that will be used solely for the purpose of
constructing, equipping, operating and maintaining a public access studio and
administering the functions of the public access channel(s) provided by AT&T
for the use and benefit of the Cities; and
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Ordinance No. 5535
June 14,2001
Page 1
WHEREAS, the Access Funds will be held in a Designated Fund; and
WHEREAS, the Cites agree that the payment of Access Funds to PSAF
fully and unconditionally fulfills AT&T's franchise obligation to provide, maintain,
and operate a public access studio.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF AUBURN,
WASHINGTON, DO ORDAIN AS FOLLOWS:
Section 1. Purpose: In consideration of the total payment of
$3,701.942.48, to PSAF, by AT&T, as reflected in the AT&T Agreement
attached hereto and marked as Exhibit "1" and incorporated herein by this
reference, the City of Auburn confirms that AT&T's obligation to "provide,
maintain, and operate' a public access studio in the City of Auburn, pursuant to
Section 5 of Ordinance No. 2409, as amended, is, in all respects, completely
fulfilled, and AT&T is, accordingly, fully released from all public access facility,
maintenance and operation requirements under its current Franchise
Agreement with the City.
Section 2. Administrative Procedures. The Mayor is hereby
authorized to implement such administrative procedures as may be necessary
to carry out the directives of this legislation.
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Ordinance No. 5535
June 14,2001
Page 2
Section 3. Severabilitv: If any section, subsection, paragraph,
sentence, clause, or phase of this Ordinance, is for any reason is declared
unconstitutional or invalid for any reason, such decision shall not affect the
validity of the remaining portions of this Ordinance.
Section 4. Ratification. Any act consistent with the authority and prior
to the effective date of this resolution is hereby ratified and affirmed.
Section 5. Effective date. This ordinance shall take effect and be in
force immediately upon its passage.
INTRODUCED: i1une 18, 2001
PASSED: June 18, 2001
APPROVED: June 18, 2001
tbtCu (1,ti1oÆ'
CHARLES A. BOOTH
MAYOR
-----------------------_.--
Ordinance No. 5535
June 14,2001
Page 3
ATTEST:
ÆaM ¿I--ÛJ2MW
Daniètle E. Daskam,
City Clerk
APPROVED AS TO FORM:
~~\¿,
Michael J. Reynolds,
City Attorney
PUBLISHED: (ÍJ - ¿Z -0/
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Ordinance No. 5535
June 14,2001
Page 4
Resolution No. 2409, as amended ! i
FrØJlChise Ordinance No. 119, as amended , . i~', !
F~hise~ce No. 3108, as amended, granted in aceordance. _¡'.'I H . ¡
WIth Master Ordínance No. 3107 " _ ,- 1 ,11"1 ,
Franchise Ordinance No. 4412, as amended, granted in accordance " I!!
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with Master Ordinance No. .4413 I'· I'), i .
Franchise Ordinance No. %-1003 .' '. I
Franchise Ordinance No. 1688, granted m accordance with Master I i
Ordinance No. 1687
APR-13-2005 17:09
AT&T AGREEMENT
THIS AGREEMENT, effective t1ús .,,1-G"adayof ~. 2001, is by and
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between TCl Cablevision of Washington, Inc. known as AT&T Broadband (hereinafter
"A T&r'), 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 agreement:i are as follows;
Auburn:
Burien:
Kent:
Renton:
SeaTac:
Tukwila:
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For convenience, they sbaIl be referred to collectively herem as the "Franchise." . !id.,ä~i¡
B. Pursuant to the Franchise, AT&T is obligated to provide, maintain and operate a I ' """
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 ofPuget Sound Access (hereinafter
"PSA"), a tax-exempt Washin$tton non-profit corporation, funds intended to be granted over 10
Ordinance 5535 '
Exhibit "1" -1-
Page 1 of7
AT&T Agreement
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years to PSA to enable PSA to undertake this obligation for the remainder of the Franchise terms
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referenced in paragraph (A) above. I f j
NOW, TIIEREFORE, in consideration of the mutual undertakings contained herein, the
part.i.es agree as follows:
1. In exchange for a full and unconditional release ofits Franchise obligation fa
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provide, equip, operate and maintain publìc 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
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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 iI1ade to PSAF by AT&T, the PSAF Board of Advisors shall prepare and
approve a written plan that outlínes 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 Franchíse obligations described in paragraph B.
3. The Cities agree to contract with PSA for use oftbe public access studio and the
administration and operation of the public access channels to be provided by AT&T. A copy of
"~ proposed service agreeÌnent to be executed by and between each City and PSA is attaChed
hereto as Exhibit A.
Ordinance 5535
Exhibìt "1'
Page 2 of7
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4. AT&T agrees to assign a designated AT&T employee to provide consulUWþn and,.. '
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advice to PSAF and PSA untillune 30, 2001, as additional consideration for the full and
unconditional release granted by the Cities pursuant to paragraph 7. below.
6. lt 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 PSAFpursuant 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 coi1trary, PSAF shall distribute the
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remainder of such funds to PSA and PSA shall have the right to U$e such :funds for PSA's . I
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general uses and purposes (in accordance with its articles of incorporation and bylaws) without,¡;~j_I.;.'· ". '....'... 'I.
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restrictions or <:onditions or, as determined by the Board of Directors ofPSA in its sole : ' . I '.' '"
described in paragraph B. above, the Cities agree to fully and unconditionally release AT&T , '.,' ,
from its current Franchise oblìga~on to provide, maíntain and operate a public access studio fOT ¡I'~4 .lIii.·:.' '.: 1.11. " ,i
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each City for the term of each City's franchise. ' ,.. ,
Ordinance 5535
Exhibit "1"
Page 30f7
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 (0)(3) of the Internal Revenue Code of 1986, as
amended.
7. In exchange fOT satisfying as herein contemplated the Franchise obligation
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PSAF agrees to indemnifY, defend and hold hannless AT&T and the Cities party
to this Agreement from and against auy and all claims which may arise out of this Agteeinet1t
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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
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form of consideration from AT&T for the duration of this Agx'eement should the Designated
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Fund provided by AT&T pursuant to paragraph 1. of this Agreement be insufiicientto fund the , ',' ." J¡ ;
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construction, eqwppmg, operatmg and mamtaíning of a pubhc 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 origina1, 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.
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11. It is intended that the funds paid to PSAF pursuant to this Agreement shall be thc
property ofPSAF and that nothing in this Agreement shall affect the status of PSAF or PSA. as , ,i"'!~I!II"""!"ij"1 :"
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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 A~eem.ent represent and warrant that they have full lawful
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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 thiµgs
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necessary and appropriate to carry out the provisions of this Agreement.
Ordinance 5535
Exhibit '1" 4-
Page 4 of 7
AT&T Agreement
05131/01
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14. This Agreement shan not affect the other obligations as may be owed by AT&T
to the Cities as set forth in the Franchise.
IS. 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
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subject matter. There are no representations, agreements, 8\T!1I1gements, or understandings, oral
or written, between the parties hereto relating to the subject matter of this Agreement whi~ are!,~:i!"
not described herein.
IN WI1NESS WHEREOF, the parties have executed this Agreement as of the date
written above.
CITY OF AUBURN, a municipal cotQtion
By: @~ A. ~o~
lts; Mayer
Date: June 18, 2001
Approved as 0 :
~I City Attorney
Date: 'U t:>\
CITY OF BURlEN, a municipal corporation
By:
Its:
Date:
Approved as to Form:
City Attorney
Date:
CITY OF KENT, a municipal corporation
By:
lts:
Date:
Approved as to Form:
City Attorney ¡
Date:
CITY OF RENTON, a municipal corporation
By;
lts:
Date:
Approved as to Fonn: '
City Attorney
Date:
Ordinance 5535
exhIbit "1"
Page 5 of?
AT&T Agteement
05/31/01
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CITY OF SEATAC, a municipal corporation
By:
Its:
Date:
CITY OF TIJKWILA, a municipal corporation
By:
Its:
Date:
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Approved as to Form: 'i II
City Attorney
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City Attorney!.
Date:
TCl CABLEVISlON OF W ASmNGTON, INC.
known as AT&T BROADBAND, a Washington corporation
By: dtL- ~
Its: Sem.or vJ.œ PresJ.dent
Date: June 25, 2001
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Ordinance 5535
Exhibit "1"
Page 6 of7
AT&T Agreement
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CONTRACT AND ASSIGNMENT BETWEEN CITY OF AUBURN
AND
PUGET SOUND ACCESS, A NON-PROFIT CORPORATION
AGREEMENT
This Agreement is made this 1st day of July, 2001, by and between the City of Auburn, a
municipal corporation ("City"), and Puget Sound Access, a Washington non-profit
corporation ("PSA"), who agree as follows:
RECITALS
1. Whereas, the City granted a franchise to TCI Cablevision of Washington, Inc.
known as AT&T Broadband ("AT&T") which terminates on July 1, 2008;
2. Whereas, pursuant to section 5(e) of the franchise agreement AT&T agreed to
provide, maintain and operate a public access studio for the City;
3. Whereas, AT&T assumed this same franchise obligation with the cities of
Auburn, Burien, Kent, Renton, SeaTac, and Tukwila (collectively "Cities");
4. Whereas, in full and complete consideration of AT&T's franchise obligation to
provide, maintain and operate public access facilities for the Cities, AT&T has
agreed to pay to the Cities $3,701,942.78 (the "Designated Fund").
5. Whereas, the Cities assign their right to receive this payment from AT&T to
Puget Sound Access Foundation ("PSAF"), a supporting organization ofPSA, and
to direct AT&T to pay the Designated Fund directly to PSAF subject to the
conditions of that Agreement entered into between AT&T and the Cities, a copy
of which agreement is attached hereto as Exhibit A and incorporated herein by
reference, for the sole purpose of enablíng PSA to undertake AT&T's franchise
obligation to provide public access facilities for the Cities at least during the
remainder of the franchise terms;
6. Whereas, PSA is an independent Washington non-profit corporation organized to
develop and promote the concepts of public, educational, and government access
to existing and future telecommunications media, and to establish and operate one
or more community media access centers to educate and assist individuals in the
use of tools and techniques for the production oflocal cable television
programming; and
7. Whereas, the City wishes to contract with PSA to provide, maintain and operate a
public access studio for the City and to provide community and public access
programmíng and services in the City.
Ordinance 5535
AT&T Agreement
Exhibit A
Page 1
NOW THEREFORE, in consideration of the mutual undertakings and covenants
contained herein and the benefits to be realized by each party, and in further
consideration of the benefit to the general public to be realized by the performance of this
Agreement, the parties agree as follows:
SECTION 1. SCOPE OF SERVICES: In consideration of the City's assignment to
PSAF of its right to receive payment trom AT&T in full satisfaction of AT&T's tranchise
obligation to provide, maintain and operate a public access studio for the City and the
payment by AT&T of$3,701942.78 to PSAF, PSA agrees to do the following:
A. OPERATE PUBLIC ACCESS CABLE CHANNEL(S). Operate the
public access cable channel(s) for public/community access programming
purposes with the primary purpose being to administer, coordinate, and
assist those requesting access on a non-discrimínatory basis.
B. ADMINISTER EDUCATIONAL ACCESS CHANNEL AND OTHER
CHANNELS AS REQUESTED BY THE CITY. Administer access to
and programming of the City of Auburn's educational channel, if
requested, either by entering into a service agreement with a designated
access provider or by programming the channel through other resources.
The City may request that PSA manage other access channels as well,
under conditions to be determined at a later time.
C. OPERATE A COMMUNITY ACCESS CENTER. Manage a video
production facility and equipment, available for public use at such hours
and times as are determined by PSA. Access to equipment and facilities
shall be open to all those who satisfactorily complete training classes
provided by PSA or who receive a certification from PSA, identifying said
user(s) as having satisfied training requirements through means other than
PSA training classes. This community access center shall serve the
citizens of the City and shall be located in south King County at a place
reasonably accessible by the citizens of the city.
D. PROVIDE EQUAL ACCESS. Provide access to the use of the
equipment, facilities, channels, and services provided hereunder on a non-
discriminatory basis to all members of the participating communities for
non-commercial programming purposes, whether individuals, groups,
organizations, on a non-discriminatory basis, pursuant to the operating
rules promulgated by PSA.
E. DEVELOP OPERATING POLICIES AND PROCEDURES. Develop
policies and procedures for use and operation of the access equipment,
facilities, and channel(s), and advise the City and the general public of
such policies and procedures.
Ordinance 5535
AT&T Agreement
Exhibit A
Page 2
F. COMPLIANCE WITH LAWS, RULES, AND REGULATIONS.
Administer the access channel(s) and facilities in compliance with
applicable laws, rules, and regulations, and City ordinances.
G. TRAINING. Train City residents, and when requested, City and school
employees, in the techniques of video production, and provide technical
advice in the execution of productions. PSA will schedule production and
equipment training workshops on a regular basis. Training will be
available to individuals and organizations as described in the PSA
Operating Policies. Training will include an explanation ofthe producer's
responsibility and legal accountability for the content of the programming
they produce.
H. PLAYBACK AND CABLECAST. Provide for the playback and
cablecast of programs on the cable access channel(s). Withín eighteen
months ofthis agreement being signed by both parties, PSA shall
cablecast at least an average of 25 hours of per week oflocal original,
replayed and outside programming.
I. MAINTENANCE OF EQUIPMENT. Provide regular maintenance and
repair of all video equipment.
J. PROMOTION. Actively promote the use and benefit of the access
channel(s) and facilities to the citizens of the City of Auburn.
K. OTHER ACTNITIES. Undertake other access programming activities
and services as deemed appropriate by PSA and consistent with the
obligation to provide facilities and promote access programming and
provide non-discriminatory access.
SECTION 2. CHANNELS OPEN TO PUBLIC: PSA agrees to keep the access
channel(s) open to all potential users regardless of their viewpoint, subject to FCC
regulations and other relevant laws. Neither the City nor PSA shall unlawfully control
the content of programming placed on the public access channel(s) so long as such
programming is lawful. However, PSA reserves the right to refuse to air programming
which it deems unlawful, in its reasonable judgment. Provided that, nothing herein shall
prevent PSA or the City ITom producing or sponsoring programming; undelWriting
programming; or ITom promoting production or programming by targeted groups as
consistent with applicable law and rules for use of channels. PSA shall promulgate and
enforce policies and procedures which are designed to promote local use of the
channel(s) and make the programming accessible to the viewing public, consistent with
such time, place, and manner regulations as are appropriate to provide for and promote
use of access programming, eql,lipment, and facilities.
SECTION 3. PROGRAM CONTENT AND INDEMNIFICATION: The City shall have
no responsibility for program content on the public access channel(s), unless the
Ordinance 5535
AT&T Agreement
Exhibit A
Page 3
programming was produced by an agent or employee of the City as part of the City's
access programming efforts.
PSA shall indemnify and hold harmless the City from any claims, suits, liability, loss or
damage, including attorney's fees, caused by or arising out of any public access
programming not produced by an agent or employee of the City including but not limited
to, any claim or legal action for alleged violation or infringement of copyright or other
intellectual property right, invasion of privacy, obscenity or defamation, provided that the
City shall infonn PSA in writing within twenty (20) calendar days of its receipt of notice
of the existence of any such claim or action. This obligation to índemnify and hold
harmless shall extend to any claims made against the City by AT&T pursuant to
paragraph 8. of the AT&T Agreement.
The City shall indemnify, defend, and hold harmless PSA from any claims, losses,
liabilities, or damage including payment of reasonable attorney's fees arising out of or
resulting from the perfonnance of this Agreement, caused in whole or part by any act or
omission of the City, but only to the extent that the City is found to be negligent.
PSA shall have sole discretion and authority for decisions regarding standards for
program quality and schedulíng except as provided herein. It shall be the responsibility
of PSA to insure compliance with the standards provided by law relating to defamation,
privacy, or obscenity.
SECTION 4. PRODUCER'S STATEMENT: Before cablecasting video transmissions,
PSA shall require all users to agree in writing, at a minimum, to the following: (i) that the
producer has made all appropriate arrangements to obtain rights to all material contained
in the program, including clearances from broadcast stations, networks, sponsors,
representatives of music licensíng organizations, and any and all other persons as may be
necessary; and (ii) that the user understands and agrees to the policies and procedures of
PSA with regard to programming and has indicated the nature of the programming,
including whether it is intended for adult viewing. PSA shall maintain these statements
for a time period to be detennined by PSA.
SECTION 5. COPYRIGHT AND OWNERSHIP: PSA shall own the copyright of any
programs that it may choose from time to time to produce. Copyright of programming
produced by the public shall be held by such person(s) who produce said programming.
SECTION 6. BOARD OF DIRECTORS OF PSA: During the tenn of this Agreement,
the City shaH select at least one (1) employee, representative, or agent to nominate for
service on the Board of Directors of PSA. Upon approval of such nomination and
election of such nominee by the Board of Directors of PSA in accordance with the
articles of incorporation and bylaws ofPSA, such Director shaH take office at the time
and on the date specified by the Board of Directors ofPSA and shall continue in office
for a tenn of two (2) years and thereafter until his or her successor has been elected and
has qualified or until his or her earlier death, resignation, retirement, disqualification, or
removal unless such Director shall have been elected to fill an unexpired tenn of a
Ordinance 5535
AT&T Agreement
Exhibit A
Page 4
directorship left vacant or unless such Director is designated as a member of the first
regular Board of Directors ofPSA serving an initial tenn of only one (1) year. The City
shall have the right to notify the Board of Directors ofPSA of its desire to remove a
Director nominated for such service by the City, and the Board of Directors ofPSA
agrees to consider such request at the next regular meeting of the Board of Directors. If
any such Director is removed by the Board of Directors ofPSA in accordance with its
articles of incorporation and bylaws, the City shall have the right to nominate a successor
for such Director who may be elected by the Board of Directors in accordance with the
articles of incorporation and bylaws ofPSA and this Section 6.
SECTION 7. PERFORMANCE REVIEWS: PSA may, after three (3) years of operation
under this Agreement, contract with a consultant from outside the Puget Sound
community that is expert in access to conduct a perfonnance review ofPSA operations.
If a perfonnance review has not been conducted at least once in a three-year period, the
City may require that such a review be conducted within six (6) months ofPSA's
receiving notification of the City's request. The costs ofthis review shall be borne by
PSA and will not occur more than once in a period of three (3) years. Upon completion,
a copy of the perfonnance review shall be submitted to the City.
SECTION 8. REPORTING REOUIREMENTS: If requested by the City during the tenn
of this Agreement, PSA will give to the City once a year copies of (i) current financial
and investment statements audited by a committee of the PSA Board of Directors or an
independent certified accountant, as detennined appropriate by the Board of Directors of
PSA, (ii) PSA's annual report, (iii) PSA's annual budget for the upcomíng fiscal year,
and (iv) any other relevant infonnation reasonably requested by the City. Ifnot included
in the annual report, PSA also will provide the City with current statistics on
programming and services provided as well as a current and complete listing of the Board'
of Directors ofPSA. During the tenn of this Agreement the City also may request, and
PSA will provide once a year, if requested, a statement of anticipated number of hours of
local origination access programming and a schedule of training classes to be offered and
other access activities planned by PSA.
SECTION 9. RECORDKEEPING AND REVIEW OF RECORDS:
A. During the tenn of this Agreement, PSA shall maintain all necessary
books and records in accordance with generally accepted accounting
principles.
B. Upon reasonable request from the City, PSA shall, at any time during
nonnal business hours, make available all of its records with respect to all
matters covered by this Agreement during the tenn of this Agreement.
During the tenn of this Agreement, the City shall reserve the right to audit
PSA's financial and investment records at the City's sole expense.
SECTION 10. DISTRIBUTION RIGHTS:
Ordinance 5535
AT&T Agreement
Exhibit A
Page 5
A. PSA shall require that all programs produced with funds, equipment,
facilities, or staff granted under this Agreement shall be distributed on the
channels whose use is authorized by this Agreement. This subparagraph
shall not be interpreted to restrict other distribution, so long as such other
distribution is consistent with any pertinent guidelines established in the
access operating policies and procedures.
B. At least at the beginning and end of each day that video programming is
cablecast on the access channels which use is authorized by this
Agreement, PSA shall display a credit stating that the opinions expressed
in access programs are the sole responsibility of program producers, and
providing contact information for the program.
SECTION 11. INSURANCE:
A. LIABILITY: During the term of this Agreement, PSA shall procure and
maintain commercial general liability insurance with limits no less than
two million dollars ($2,000,000) combined single limit per occurrence and
general aggregate for personal injury, bodily injury, and property damage,
including personal and advertising injury coverages for activity performed
and obligations undertaken pursuant to this Agreement. These are
minimal limits and are not meant as a reflection of exposure, and are not
intended to be a limitation on indemnification. The cost of such insurance
shall be borne by PSA.
B. DIRECTORS AND OFFICERS: During the term of this Agreement, PSA
shall procure and maintain Directors and Officers Liability Insurance for
coverage of all ofthe members of its Board of Directors and its officers.
The cost of such insurance shall be borne by PSA.
SECTION 12. NON-DISCRIMINATION IN EMPLOYMENT AND SERVICE: PSA
shall not discriminate against any person, employee, applicant for employment, or
subcontractor on the basis of race, color, creed, religion, gender, sexual preference,
marital status, ancestry, national origin, or physical or mental handicap.
SECTION 13. INDEPENDENT CONTRACTOR: It is understood and agreed that PSA
is an independent contractor and that no relationship of principal/agent or
employer/employee exists between the City and PSA and that PSA is free to contract
with other parties to best utilize the community access center consistent with the purposes
of this Agreement. Ifín the performance of this Agreement any third persons are
employed by PSA, such persons shall be entirely and exclusively under the control,
direction, and supervision ofPSA. All terms of employment, including hours, wages,
working conditions, discipline, hiring, and dischargíng or any other tenn of employment
shall be determined by PSA, and the City shall have no right or authority over such
persons or terms of employment.
Ordinance 5535
AT&T Agreement
Exhibit A
Page 6
SECTION 14. ASSIGNMENT AND SUBLETTING: Neither this Agreement nor any
interest herein shall be assigned or transferred by PSA, except as expressly authorized in
writing by the City.
SECTION 15. FUNDING AND OTHER RESOURCES: The City agrees to make the
AT&T dedicated certain channel capacity (spectrum on the cable system) for access use
available to PSA without charge to PSA. The City agrees to permit PSA to manage the
channel capacity that has been designated in Section 1 of this Agreement for access
programming purposes.
SECTION 16. TERM OF AGREEMENT: This Agreement shall be for a period of seven
(7) years commencing on July 1, 2001 and ending on July 1, 2008 unless terminated
earlier, as provided in this Agreement. At the end of said term, this Agreement may be '
extended by a written agreement executed by the City and PSA.
SECTION 17. TERMINATION OF AGREEMENT:
A. Either party shall have the right to terminate this Agreement by reason of
the other party's default. Furthermore, if income, including grants from
PSAF, and other revenues are insufficient, PSA also shall have the right at
any time during the term of this Agreement to terminate this Agreement if
PSA concludes in its best judgment that within ninety (90) days of such
time it will experience a total exhaustion of operating funds.
B. Notice of termination shall require ninety (90) days written notice by
registered or certified mail, return receipt required. A notice of
termination shall specify the basis thereof, including a detailed explanation
of any alleged events of default.
At least the following shall constitute an event of default by PSA:
I. Malfeasance, misfeasance, misappropriation of grants received
from PSAF for the purposes described in this Agreement; or
2. Any other material breach of this Agreement.
At least the following shall constitute an event of default on the part of the
City:
1. Failure to act in good faith to fulfill the provisions of this
Agreement; or
2. Any other material breach of this Agreement.
C. Upon receipt of written notice of termination and/or of alleged events of
default, the recipient shall have sixty (60) days, or another time frame
Ordinance 5535
AT&T Agreement
Exhibit A
Page 7
agreed to by both parties, to cure the default before tennination shall
become effective. The availability of this remedy shall not bar any action
by either party for specific performance ofthe provisions of the
Agreement or any other remedy.
D. In the event that any dispute shall arise as to the interpretation of this
Agreement, or in the event of a breach of this Agreement and if the parties
cannot mutually settle such differences, then the matter shall be referred to
a mediator mutually selected by the parties, and, if necessary, proceed to
the court of proper jurisdiction in King County.
SECTION 18. EXTENSION OF AGREEMENT: This Agreement may be renewed or
extended for additional time, pursuant to the following process:
A. If PSA or the City seeks an extension of this Agreement, it shall, on or
before April 1, 2008, submit a letter of intent requesting extension.
B. On or before May 1, 2008, the party receiving the request shall respond to
the other. If either party intends to refuse to extend the Agreement, it shall
explain the reasons for this decision in its response.
SECTION 19. TIME: Time is of the essence in this Agreement and for the performance
of all covenants and conditions of this Agreement.
SECTION 20. COOPERATION: Each party agrees to execute all documents and do all
things necessary and appropriate to carry out the provisions of this Agreement.
SECTION 21. APPLICABLE LAW: This Agreement shall be interpreted and enforced
exclusively under the laws of the State of Washington.
SECTION 22. NOTICES: All notices and other communications to be given by either
party may be given in writing, depositing the same in the United States mail, postage
prepaid and addressed to the appropriate party as follows:
To City of Auburn
25 West Main Street
Auburn, W A 98002
To Puget Sound Access
4020 Auburn Way North
Auburn, WA 98002
Any party may change its address for notice by written notice to the other party at any
time.
Ordinance 5535
AT&T Agreement
Exhibit A
Page 8
SECTION 23. ENTIRE AGREEMENT: This Agreement is the entire agreement of the
parties and supersedes all prior negotiations and agreements whether written or oral. This
Agreement may be amended only by written agreement and no purported oral
amendment to this Agreement shall be valid.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
written above.
CITY OF AUBURN, a municipal corporation
By:
Its: Mavor
Date: June 18, 2001
Puget Sound Access, a Washington non-profit corporation
By:
Its:
Date:
Ordínance 5535
AT&T Agreement
Exhibit A
Page 9
MAY-29-2001 TUE 04:07 PM ENUMCLAW CITY HALL
FAX NO. 3608251429
P. 02/17
PUGET SOUND ACCESS FOUNDATION TRUST AGREEMENT
THIS AGREEMENT is cntcrcd into this _ day of
,2001, betwccn TCl
CABLEVlSlON OF WASHINGTON, me. known as AT&T Broadband (hcrcinaftcr the
"1'1"\15101''') and WBLLS FARGO BANK, N,A. (and successors thcrcto) (hereinafter the
"Tmstoo") as follows:
Pursuant to an agreement between the Trustor and the Cities of Auburn, Burien, Kent,
Rcnton, SeaTac, and Tukwila dated
,2001, the Tmstor has irrcvoeably transferred
to the Trustee the property listed on Schedule A attached hereto, which property, together with
any additions thereto by any otherporsons or cntitics (hercinaftcr "Foundation Property"), the
Trustee shall hold, admillistcr and distribute as hereinafter provided for thc purposes of enabling
PUGET SOUND ACCESS to eonstfUct, ifncccssary, or othcrwise provide, maintain and operate
a public access studÎo. This trust is intcnded to be a tax-exempt charitable trust and shall bc
known as the "Puget Sound Aeccss foundation" (hereinafter "PSA Foundation').
ARTICLE I
CHARITABJ,¿!'ìJ'J}.ß~QSE::¡ AND CHARITA8Œ ß..:N..:FrCIARY
PSA Foundation is organizcd and at all times shall be operated exclusively for charitable
uscs and purposes within the mcaning ofScetion 501 (c)(3) ofthe lntemal Revenue Code of
1986, as amended (hcrcinaftcr "Code'). The Foundation Property shall be used exclusively for
slleh charitable uses and purposes. PS.i\ Foundation is a supporting organization, within the
11lcaning or Code Scction 509(a)(3), that is organized and shall bc operated exclusively for the
purves" of supporting PUGET SOUND ACCESS, a Washington lion-profit corporation exempt
from taxation under Code Section 501(c)(3) and described in Code Section 509(a)(I) and Code
Ordinance 5535
puguet sound Access
Exhibit "B"
1176955.1
. 1 -
MAY-29-2001 TUE 04:07 PM ENUMCLAW CITY HALL
FAX NO, 3608251429
p, 03/17
Section 170(b)(I)(A)(vi) (herehlarter "PSA"), Tn the event that during the trust tcrrn PSA ceases
to exist or to qualify for exempt status under Code Seclion 501 (c)(3) as an organization
descrihed in Code Section 509(a)(I) or Code Section 509(a)(2), PSA Foundation shall suppott
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 pcsignation and Succcssorshir>: Pursuant to the request ofPSA, the Trustee of
PSA Foundation shall be WELLS FARGO BANK. N.A. (or succcssor thcreto). Any Trustee of
this trust may bc rcmoved and a successor appointed as provided in Article 3.3 ofthis
Agrecmcnt.
2.2 Rcsi~natiol1 of Trustee: AllY Trustce of this trust may resign at any time by
giving thirty (30) days written notice of such Trustee's resignation to thc Board of Advisors of
PSA Foundation (scc Aiticlc III "Board of Advisors"). Upon resignation of the Trustee, the
Board of Advisors shall appoint a succcssor Trustee in the manner provided in Article 3.3 of this
Agrcclllcnt without conrt proccedings.
2.3 Accounting of Prior Trustee: Any Successor Trustee may accept a predeccssor' s
accounting without independent review or audit and shall not be liable for any J05S sustained
during or attributable (0 the period in which a predecessor served as Trustee.
2.4 Tmstee's ConlDcnsation: The Trustee shall be compensatcd in accordance with
its customary schcdule of fces as the samc may be revised from time to lime.
2.5 Bond: No bond shall be required of any Trustee serving hereunder,
Ordinance 5535
Puget Sound Access
Exhibit "B"
·2·
1176955.
MAY-29-2001 TUE 04:08 PM ENUMCLAW CITY HALL
FAX NO, 3608251429
p, 04/17
ARTICU: III
BOAßD OF ADVI.S-º~
3,1 Board of Advisors: During the tenn of the trust, the Trustee shall be advised by a
Bo~rd of Advisol's as provided in this Agrocmcl1t. It shan be the function and pU!pose of the
Board of Advisors to advise the Trustee on the making and timing of grants to PSA in
accordanec with the provisions of Ai1ic1c JV of this Agrccmcnt so I1mt the Trustce can make
appropriate short- and long-term investment decisions in accordance with the grant
recommend~tions ofthc Board of Advisors. Furthermore, the Board of Advisors shall be
available to consult with the Trustee on matters relating to the business and affairs ofPSA
l'oundation and to suggcst or bc availablc for consultation with rcgard to any activitics which
I'SA Foundation may undertake, consistent with its exempt purposes, in fU11herance of its goals
and objectives. Tlw Board of Advisors also shall have the authority to remove and replaco tho
Trustee as more particularly described in Aliicle 3.3 below.
3.2 Membershiu and AULJointment: 11Ie Board of Advisors of PSA Foundation shall
consist of no fewer than three (3) am! 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 heJp PSA Foundation cany out its functions. 111e members of the Board of Advisors of
PSA FounùalÌon shall consist ofthose individuals who are appointed as slICh by the Boarù of
Directors ofPSA by act of a majoriLy of the directors then in office. Each appointee to the Hoard
of Advisors shall take office at the time and on the date spccificd by thc Board of Dircctors of
PSA and shall cOlllinue as a mcmbcr of the Board of Advisors [or a term of one (1) year and
thcreaftcr until his or her successor has been elected and has qualified or until his or her earlier
Ordinance 5535
puget Sound Access
Exhibit "B" - 3"
1176955.1
MAY-29-2001 TUE 04:08 PM ENUMCLAW CITY HALL
FAX NO. 3808251429
p, 05/17
death, resignation, retirement, disqualification or removal. There shall be no limitation on the
number of successivc terms all individual may scrve as a member oCthe Board of Advisors. Any
vacancy in the Board of Advisors arising at any time and from any cause may bc filled for thc
unexpired (enn at any meeting of the Board of Directors by act of a majority ofthe directors then
in off1ce, and each member 50 appointed shall serve until the expiration of his or her term, or the
uncxpired term of his or her predcccssor, as the case may be, and until his or her successor is
ejected ami qualifies, or until his or her earlier death, resignation, retirement, removal or
disqualificalion.
3.3 R..e!!.l.9.y.?J: Any member of the Board of Advisors may be removed, either for or
without cause, by thc Board of Dircctors ofPSA by thc affirmative vote of a majority of the
directors then in office, and a successor member may be appointcd by the Board of Directors of
PSA at the same time to serve the unexpired term ofthe individual so removed.
3.4 ð1lJbQ~iw_tqJ3.9J:l.9.Y.'1_..TJ1!§!j\nd Appoint Succcssor: The Board of Advisors shall
have the right to remove any Trustee of this tmst for brcach offiduchuy duty under Washington
law or for fai lure to produce over a reasonable period of time (as detelmined by the Board of
Advisors) a reasonable return of that income (as detemlined by the Board of Advisors) with due
regard of safety of principal over the course of the trust term. Prior to cxercising such authority,
the Board of Advisors shalt noli fy the Troslee, in writing, and the Trustee shalt have thirty (30)
days from receipt ofsuoh notification to respond to the Board of Advisors and make any
necessary or advisable corrections. Upon removal of the Trustee, the ßoard of Advisors, without
court proceedings, sha] I concurrently appoint an accepting successor TCllstcc which shaH bc a
bank or tmst company having trust powcrs and capital and surplus of at least One Hundred
Million Dollars ($100,000,000).
Ordinance 5535
puget sound Access·
Exhibit "B"
1 ]76955.1
·4·
MAY-29-2001 TUE 04:08 PM ENUMCLAW CITY HALL
FAX NO, 3608251429
p, 06/17
3.5 Quorum and Vote Reouircd for AQI.!Q!!. 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
quol'l1m for the transaction oCbusìness. Except as otherwisc providcd in this Agreement, the act
ofa majority of the members ofthe Board of Advisors present at a meeting at which a quorum is
present at the timc shall bc the act of the Board of Advisors.
3.6 Action Without a Meeting: Any action rcquircd orpernlÍUed to be taken by the
Board of Advisors may bc takcn withont a meeling if a consent in writing, setting fOl1h the
actions so taken, is signed by not lcss than a majority of the members of the Board of Advisors
then in office. Sueh consent sha1l have the same force and effect as an affirmative votc at a
n1ee!Íng duly called.
3.7 Tetcphonc~!!.(LSjrnilar Meetings: The members ofthc Board of Advisors may
partieipatc in and hold a meeting by means of confercncc telcphone or simi1ar communications
equipment by means of which all persons participating in thc mceting can hear each other at the
same time. Participation in such a meeting shall constitute prcsencc in person at the meeting,
excep! where a person participates in thc mceting for the express pU1pose of objecting to the
transaction of any business.
3.8 COJtlpç.!l§at.iQ!1: No stated salary shall be paid by PSA Foundation to the members
of the Board of Advisors for their services as slIch, but any membcr ofthc Board of Advisors
may receive reimbursemcnt [or expenditures incurred on behalf of PSA Foundation.
ARTICLE IV
DISTRIBUTIONS
4.1 RciJ!Jir.ed Income bistrihutions: During thc trust tern" the Trustee s11all distribute
to or for the lIse of PSA all ofthc net income ofthe trust in convcrucnt installmcnts, but not less
Ordinance 5535
Puget Sound Access
Exhibit "B" -5-
117G955.1
MAY-29-2001 TUE 04:08 PM ENUMCLAW CITY HALL
FAX NO. 3608251429
p, 07/17
frequently than annually. Thc specific timing of such distributions shall be detem1incd by thc
Trustcc \¡pon consultation with thc Board of Advisors and a rcprcscntative of PSA as provided in
A1ticle 4.3 below.
4.2 Discretionarv PrinciDal Distributions: Upon receipt of a written request from
PSA, the Trustce, upon consultation with thc Board of Advisors and a represcntativc ofPSA as
provided in Arlicle 4.3 below, may make distributions of principal to or for the use of PSA;
provided, however. that any distrib\ltions ofprincipaJ in excess ofTen Thousand DoUars
($10,000) shan be approved by a majority o[(he members of the Board of Advisors then in
ofiicc,
4.3 Re,wired Consuhation with Board of Advisors and PSA: Throughout the trust
term, the Trustee shall meet with the Board of Advisors and a representati I'e ofPSA at least
alUJlml1y for the following purposcs:
4.3.1 To work together to implement an investmcnt stratcgy that will best scrve
the goals and objectives ofPSA;
4.3.2 To work together to establish fixed datcs for the distribution of trust
income wilh the goal of enabling PSA to budget effectively each year; and
4.3.3 To consider Wlitten requests by PSA for discretionary principal
distributions.
4.4 Limitations:
4.4.1 No part of the net eamings of PSA Foundation shall inurc to the bcneJit of,
or be dislributablc to, any individual so as to jeopardizc PSA Foundation's exempt status under
Code Section 50 I (c)(3). PSA Foundation shall bc authorized and empowered, however, to pay
reasonable compensation for sCrVices rendered, to make reimbursement for reasonable expenses
Ordinance 5535
Puget Sound Access
Exhibit "B" -6-
1176955.1
MAY-29-2001 TUE 04:09 PM ENUMCLAW CITY HALL
FAX NO, 3608251429
P. 08/17
incurrcd on its behalf, and to make payments and distributions in furtherance of PSA
Found~tion's chantab1e purposes.
4.4.2 PSA Foundalìan shall not carry on propaganda, or otherwise attcmpt to
innuence legíslaÚon, to all extent that would disqualify it for tax cxcmption under Code Section
501(e)(3) by reason ofattemptÎng to influence legislation. PSA Foundation shall not paliicipate
in, or inlervene in (including the publication or distribution of statements) any political campaign
onbchalf or(or in opposition to) any canùidate for publie office.
4.4.3 Notwithstanding any other provisions of this Agreement, PSA Foundation
shaH not conduct or carry on activities not penruttcd to be conducted or carricd 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 ~\re deductiblc undcr Code Section 170(c)(2).
4.4.4 TfPSA l'oundation is, or at any timc becomes, a private foundation within
thc meaning ofCade Scction 509(a), for as long as such private foundation slatus continues, the
following provisions shall appIy in the managcmcnt of its affairs:
(a) Each year PSA Foundation shall distribute its income for the purposes
describcd in Article T at such time and in such manner at least sufficient (0 avoid liabiJity for thc
tax imposed by Codc Seclion 4942;
(b) PSA Foundation shall not engage in any act of sclf-dcaling as ùefined in
Cod", Section 4941(d) which would givc risc to any liabilìtyfor the tax imposed by Code
Seclion 4941(a);
Ordinance 5535
Puget Sound Access
Exhibit "B"
1176955.1
-7·
MAY-29-2001 TUE 04:09 PM ENUMCLAW CITY HALL
FAX NO, 3608251429
p, 09/17
(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 othelwise acquire
assets in such manner as to subject it to tax undcr Codc Section 4944; and
(0) PSA 1101mdatioIl shall not make any taxable expenditures as defined irl
Code Scction 4945(d) which would give lisc to any liability for the tax imposed by Code Seclion
4945(a).
ARTICLE V
DURATION QF FOUNDATION
5.1 Ternl of Trust: The trust s11all terminate as soon as practicable aftor January 1,
2011.
5.2 FiQª1 Distribution: Upon the winding up and dissolution ofPSA Foundation,
aftcr payment of or adcquate provision for thc debts and obligations of PSA Foundation, the
Trustce shall distribute the I'oundation Property to PSA. If at such time PSA docs not exist or
does not quaJify as exempt from taxation untler Code Section 501(c)(3) as an orga.¡ùzation
described in Code Section S09(a)(I) or Code Section 509(a)(2), thc TnIstee, upon consultation
with the Board of Advisors, shall distribute the Foundation Property to an organization sclecled
by the Trustee that is excmpt from taxation under Code Section 501(c)(3) as an organization
described undcr Codß Section 509(a)(I) or Code Section 509(a)(2) that is organized and operated
cxclusivcly for the same charitable and educational pllTposes as PSA. In no event shall any of
tho Foundation Propcrty be distributed to or for the benefit of any private individual othcr than as
reasonablc compensation for scrvices rendered.
Ordinance 5535
puget Sound Access
Exhibit "B" - 8.
1176955. ,
MAY-29-2001 TUE 04:09 PM ENUMCLAW CITY HALL
FAX NO. 3608251429
p, 10/17
ARTICLE VI
ADMINISJ:.ß-:\.TIVE PROVISIONS
6.1 Trustee's P.Q~: Tn addition to and not in limitation of the powers set forth in
this Agreement, except as othelwÎse expressly provided herein, the Trustee shall have all rights,
powers and duties given by the laws of the State of Washington, including thosc set forlh in the
Washington Trust Act under RCW 11.98, in force on the date of this Agreement, incorporating
by referenec such laws. Except as otherwise expressly provided herein, such powers may be
exerciscd independently and without the prior approval of any court of judicial authority, and no
person dealing with tho Trustee shall bc required to inquire into the propriety of any oftha
Tnlstce's actions. If any powers herein conferred upon the Trustee by state law or by thc terms
oflhis Agreement should jeopardize the tax-exempt status ofthe trust, however, this Agreement
shal1 automalically be amcndcd to.confonll to the appropriate fcdcral tax law and sueh offcnding
powers shall be l1ull and void. In addition, the Tcustec shaH have ful1 power and authority:
6.1.1 Detennination gCPrincinal and In.ç.Q..me: To detelTnine what is principal or
income, which authority shall specifically inelude the right to make adj\1stments between
plincipal and income for prcmiums, discounts, depreciation or depletion; in making slIeh
deternlination the Trustee may, but shan not be required to, apply the Washington Principal and
Income Act.
6,1.2 Agents_~_nd Attornevs: To employ agents and attorneys as thc Tmstee
thinks neCCSSary or desirable for the propcr administration of the trust or for any litigation,
controversy, or uncertainty which may arisc in connection with the trust, without liability for
their omissions or neglect, but using reasonabJe carc in their selection. The Trustee may pay
Ordinance 5535
Buget Sound Access
Exhibit "B"
117ØS5,¡
-9-
MAY-29-2001 TUE 04:09 PM ENUMCLAW CITY HALL
FAX NO, 3608251429
p, 11/17
reasonable compcnsation to agcnts and aHomeys for their services and be fully protected in
relying on advice oflcgal counsel.
6.1.3 Tnvestmentª: To invest and reinvest the trust aBsets as the Trustee shall
detcrmine to be prudent under circumstances then prcvaiHng but without being limited in the
charactcr of investmcnts by any statutory or other governmcntallimitation on the investment of
trust funds. Nothing in this AgrccJl1ent shall bc construed to restrict the Trustee from invcsting
the trust assets in a manner which could result in the alIDual realization of a rcasonable amount of
income or gain rrom the sale Or disposition oftmst assets; and
6.1.4 P¡¡l'eha~.9 and Sales of S_,<-curities: Thc Trustee may buy, scll and trade in
sccuríties of any nalure, and for such purposes may maintain and operate accounts with brokers,
6,1.5 COl!!.Ijbutions from Qthers: To receivc gifts, bequcsts, or devises to PSA
Foundation from any person or perSOns at any time. The Trustce shan not, howevcr, receive
gifts, bequests, or devises madc upon any terms or conditions that would conflict with the
charitable purposes ofPSA Foundation or other provisiù1l$ ofthis Agrccment. The Trustcc shall
have powcr and authority to rcfL\se or plaec restrictions or any gin proffered.
6,2 A!;.ç.QlH1tin~: Within sixty (60) days following the end of each calendar year, the
Trustee shaH prepare a statcment of all property held in the trust and of all disbursements and
receipts of the trust for thc ealenùar year and shall fumish a copy of the statemcnt to the Board of
Advisors, but, to the extent authorizeù by law, thc Trustee shall otherWise be relieved from
compliance with the Unifonn Trustees Accounting Act of the State of Washington, any
amendments thereof, and any similar Jaws of any other jurisdiction wherein thc trust, or any
share or portion thercof, is being administered.
Ordinance 5535
Puget Sound Access
Exhibit "B"
1176~55.1
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ARTICLE VII
REVOCðJ'ION ANº AM1<:NDMENT
7.1 RcvQeation: This Agreement is in-evocable, and the Trustor does not reserve any
right to alter. amend, revoke or tcrminale this tnIst in whole or in part at any timc. The Trustor
also declares that aLler the cxceution of this Agreement, the Trustor shall have no right, title or
interest in, and no power or privi1cge to control or affect the Foundation Property or the income
therefhJln.
7.2 Amendment: Notwithstanding the foregoing, the Trustee shall have the powcr to
amend this Agrccment in any maimer required for the purposes of ensuring that PSA Foundation
qualifies and conliuucs to qualify under Codc SectioI1501(c)(3) and qualifying PSA Foundation
as a supporting organization described in Code Section 509(a)(3).
ARTICLE vnr
UMITATION OF T~USTEE'S LIAIHLlTY AND INDRMNIFI.CATfON
8.1 L..\mítatiOI1 ofTrustec's Lìabílitv: A Trustee sha1l have no liability to PSA
Foundation for monetary damages for conduct as a Trustee, exccpt for (1) acts or omissions that
involve intentional misconduct by the Trustee; (2) a knowing violation oflaw by the Trustee; (3)
making, approving or aßsenting to distributions by PSA Foundation in violation of this
Agreemcnt; (4) any transaction ITom which tllC Trustee will personaJIy receive a benefit in
mOllOY, property or scrvices to which the Tmstee is not legally entitled. Any amendment to or
modification of this Article shall not adversely affect any right Or protection ora Trustee ofPSA
Foundation existing at thc time of such amendment or modification for or with respect to any
acts or omissions of such Tmstce occurring prior to such amendment or modification. This
Ordinance 5535
puget Sound Access
Exhibit "B"
1\ 76955. j
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provision shall not eliminate or limit the liability of a Tmstee for any act or omission occurring
prior to the datc this section becolllcs effective.
8.2 Ri!$ht to Tndemnif.ication: PSA Foundation shall indemnify any person or entity
(hereinafter "Person") who was or is threatencd to be made a party to or is otherwise involved
(including, without limitation, as a witness) in an actual or threatencd action, suit, or proceeding,
whcthcr civil, criminal, administrative, or investigativc, by reason of the fact that such Person is
or was .1 Tmstcc ofPSA Foundation or a mel1lbcr of the Board of Advisors ofPSA Foundation,
against all reasonable expcnses incurred by the Person il1 cOIIDcction with the procccding.
Except as otherwise provided herein, PSA Foundation shall indeml1ify and hold harmless a
Person made a party to a proceeding because the Person is or was a Trustec or a membcr of the
Board of Advisors against liability incurred in the proceeding if (I) the Person actcd 111 good
faith; and (2) the Pcrson reasonably believed: (a) in the case of conduct in an official capacity
with PSA Foundation, that the conduct was in PSA Foundation's best il1terests; and (b) in all
other cases, that the conduct was at least not opposed to PSA Foundation's best interests. The
terminal ion of a proceeding by judgmcnt, order, scttlel11ent, conviction, or upon a pica of nolo
contendcrc or its equivalent iSl1ot, of itself, dctenninative that the Trustee or mcmber ofthc
Board of Advisors did not meot (he standard of conduCI described in this Article. PSA
Foundation shall not indemnify a Trustee or a member onhe Board of Advisors under this
A11ic1c ill connection with a proceeding by or in the right ofPSA Foundation in which the
Trustee or the member of the Board of Advisors W3.'1 adjudged liable to PSA Foundation or in
conncclion with any other proceeding charging improper pcrsonal bcnefit to thc Trustee or the
member of the Board of Advisors, whether or not involving action În an official capacity, in
which the Trustee or the member of the Board of Advisors was adjudged liable on the basis that
Ordinance 5535
puget Sound Access
Exhibili'''B'' -12-
1176955.
MAY-29-2001 TUE 04:10 PM ENUMCLAW CITY HALL
FAX NO, 3608251429
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person'll benclìt was improperly rceeived by the Tmstec or the member OftJ1C Board of
Advisors. 1nderruli1leation hereunder in connection with a proceeding by or in the right ofPSA
Foundation is limited to reasonable expenses incurred in cOlllleetion with the proeceding.
8.3 l.QdemnificatiQ..n of EmDIQy.ees and Ac:ents: PSA Foundation may indemnify
employces and agents ofPSA 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
Ml.SCRU,ANEOUS
9, I Number aJ,1d (jendcr: Unless some olher mcaning is apparent from the context,
plurals shall include thc singular and vice versa., and masculine. feminine and neuler words shall
be uscd interchangcably.
9.2 Govcmh,g Law; Savings Çlause: This instrument shall be govemed by the laws
oflhe Slate of Washington. Ally provision prohibited by law or unenforceable shall not affect
tho rcmaining provisions o[¡his instmment.
Ordinance 5535
puget Sound Access
Exhibit "B"
t 176955.1
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TN WITNESS WHEREOF, the parties havc executed this Agreement as ofthe date
written ubove.
TRUSTOR:
TCI CABLBVISION OF WASlUNGTON, INC.
known as AT&T BROADBAND, a Washington
corporation
By:
Its:
TRUSTEE:
By;
Hs:
Ordinance 5535
Puget Sound Access
Exhibit "E'.'
1176955.1
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STAT]] OF W ASIlINGTON )
COUNTY OF KING
)
)
S5.
On this day personally appcarcd before me , to me known (0 be
thc ofTCI CABLEVTSION OF WASHINGTON, INC., !he
corporation that executed the foregoing instrument, and acknowledged (he 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 hc/she was authorized (0 execute the same instrument.
Gl VEN unùer my hand and official seal tlus ___ day of _
,2001.
(print notary's nomo)
Notary Public in and for the State of Washington,
residing at
My commission expires:
STATE OF WASHINGTON
)
)
)
ss.
COUNTY OP 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 a.nd
voluntary act and deed of said corpora.tioll, for the uses and purposes thcrcin mentioncd, and on
031h stated that he/she was au(honzed (0 execute the same instrument.
GlVEN under my h311d and ofIieial seal this _ day of
, 2001.
(print notary's IUlmc)
Notary Public in and for the State of Washington,
rcsiding at_
My commission expires;
Ordinance 5535
puget Sound Access
Exhibit "B"
1176955,1
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SCIŒDUU: A
pugct Sound Access Foundation Trust Agreement
Cash in the amount of$3,701,942.78.
Received by:
, Tmstee
Ordinance 5535
puget Sound Access
Exhibit "B"
1176955,1