HomeMy WebLinkAbout11525RESOLUTION NO. 11525
A RESOLUTION APPROVING A REVOCABLE PERMIT
FOR PRIVATE NETWORK, MASTER FIBER IRU
CONVEYANCE AND CONDUIT SHARING AGREEMENT
BETWEEN SOUTHEAST COLORADO POWER
ASSOCIATION AND THE CITY OF PUEBLO, AND
AUTHORIZING THE PRESIDENT OF THE COUNCIL TO
EXECUTE SAME
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1
The Revocable Permit for Private Network, Master Fiber IRU Conveyance and
Conduit Sharing Agreement dated February 9, 2009 between Southeast Colorado
Power Association, a Colorado Corporation doing business as SECOM, and the City of
Pueblo, a Municipal Corporation (the "Revocable Permit Agreement') which
conditionally authorizes private network facilities to be placed upon and within public
rights of way within the City, and provides for grant of indefeasible rights to use fiber
optic cable strands to the City, in accordance with its terms and provisions, a true copy
of which is attached hereto and incorporated herein by reference, having been
approved as to form by the City Attorney, is hereby approved.
SECTION 2
The President of the City Council is hereby authorized to execute the Revocable
Permit Agreement on behalf of the City of Pueblo, a Municipal Corporation, and the City
Clerk is directed to affix the seal of the City thereto and attest same.
INTRODUCED: February 9, 2009
BY: Randy Thurston
Councilperson
APPROVED:'
PRESIDENTuf City Council
A,T = aY: Y
�J D
Background Paper for Proposed
RESOLUTION
AGENDA ITEM # 5
DATE: February 9, 2009
DEPARTMENT: Law Department and Information Technology Department
TITLE
A RESOLUTION APPROVING A REVOCABLE PERMIT FOR PRIVATE NETWORK, MASTER
FIBER IRU CONVEYANCE AND CONDUIT SHARING AGREEMENT BETWEEN SOUTHEAST
COLORADO POWER ASSOCIATION AND THE CITY OF PUEBLO, AND AUTHORIZING THE
PRESIDENT OF THE COUNCIL TO EXECUTE SAME
ISSUE
Does Council wish to approve the Revocable Permit Agreement with SECOM to allow it to
install and maintain a private network within public rights of way of the City?
RECOMMENDATION
Both Departments recommend approval
BACKGROUND
Pursuant to prior authorization (now expired), Southeastern Colorado Power Association
( "SECOM ") had installed certain network facilities within the rights of way of the City and had
begun providing private network services to customers, including the Pueblo Regional Library
District. Upon expiration of its prior agreement, SECOM negotiated this Revocable Permit
Agreement with staff of the Law and IT Departments. This Revocable Permit Agreement is
substantially similar to the revocable permit agreement, which the City had entered into with
Unite Private Networks, LLC on August 13, 2007.
Under the Revocable Permit Agreement before Council, SECOM is granted a 20 -year revocable
permit (terminable without cause on 90 days notice) to use public rights of way, and limited
rights to certain City -owned conduit and facilities for placement of its network wires and cables.
The use of these rights of way and other facilities is subject to extensive control and regulation
by the City, similar to what is required of City franchisees. The terms of the Revocable Permit
Agreement also provide for SECOM to grant the City, for the term of the permit, the right to use
without charge 12 fiber strands over a designated route, and further provides for SECOM to
collect and remit sales tax to City and pay a ROW Special Use Fee equal to 3% of gross
revenue derived from the sale or lease of its private network facilities within the City.
The Permit Agreement does not allow SECOM to provide any cable -TV services.
FINANCIAL IMPACT
The use of fiber strands provided to the City will enable the City to reduce its use of purchased
telecom lines at a cost savings. The savings will be approximately $3,000 annually, but these
savings will not begin for at least 18 months. Additionally, the Revocable Permit Agreement will
increase the amount of sales taxes and permit revenues received by the City by approximately
$2,400 per year.
Rev Jan. 22, 2009
REVOCABLE PERMIT FOR PRIVATE NETWORK,
MASTER FIBER IRU CONVEYANCE, AND CONDUIT SHARING AGREEMENT
THIS REVOCABLE PERMIT FOR PRIVATE NETWORK, MASTER FIBER IRU
CONVEYANCE, AND CONDUIT SHARING AGREEMENT ( "Agreement ") is entered into as
of this 9th day of February, 2009, by and between the City of Pueblo, a Municipal Corporation
(hereinafter referred to as "City "), and Southeast Colorado Power Association, a Colorado
corporation doing business as SECOM (hereinafter referred to as "Permittee ")
WHEREAS, City is a Colorado home rule city organized and existing under and by
virtue of Article XX of the Colorado Constitution and possesses plenary power and authority
over the use and occupation of the public rights of way within its corporate boundaries, and
WHEREAS, Permittee desires to install, operate and maintain a pnvate network, and
point -to -point private data circuits, upon or within certain streets and public rights of way within
the corporate boundaries of the City; and
WHEREAS, Permittee desires to also install fiber optic cable components of its private
network within certain conduit owned or shared by City, including the Main Street Conduit, the
8 Street Conduit and the Arkansas Valley Conduit Ditch, and
WHEREAS, City is authonzed under the Charter of the City to grant revocable permits to
occupy public rights of way; and
WHEREAS, Permittee has agreed to convey certain rights to use its private network and
pnvate data facilities to City as described and set forth herein, in order to reasonably compensate
the public for Permittee's use of said public rights of way by Permittee and to compensate the
City for the use of said unoccupied conduit owned by City; and
WHEREAS, the City and Permittee have agreed to be bound by the terms and conditions
set forth herein which shall govern Permittee's use of the public rights of way and City's
unoccupied conduit described above, and govern City's use of the network facilities,
NOW, THEREFORE, in consideration of the foregoing recitals and the terms, conditions
and mutual promises set forth herein, the parties agree as follows.
Article I - Definitions
As used in this Agreement, the following terms, phrases, and words shall be ascribed the
following meanings, unless the context indicates otherwise. As used in this Agreement, the word
"shall" is mandatory, and the word "may" is permissive. Words not defined herein shall be
given their common and ordinary meanings, consistent with the context in which such words are
used and the purposes of this Agreement.
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1 "Affiliate" means any person or entity that directly or indirectly controls or is
controlled by or is under common control with a party to this Agreement.
2 "Cable" shall mean all fiber optic cable now or hereafter owned or controlled by
Permittee located within the Jurisdiction as now or hereafter constituted.
3 "Facilities" means all physical components of Permittee's private network and
data circuits located within the Jurisdiction, including without limitation Cable, poles, wires,
cables, pipes, underground conduits, ducts, equipment cabinets, manholes, handholes, vaults,
fiber optic cables and devices, switches, routers, amplifiers, power supplies and other structures
and appurtenances.
4 "Jurisdiction" shall mean (a) within the corporate boundaries of the City of
Pueblo as now or hereafter constituted, (b) at, upon, under or across the Pueblo Municipal
Airport ( "Airport") and Pueblo Municipal Airport Industrial Park ( "Industrial Park "), and (c) all
highways, streets, roads and other rights of way between and connecting the City of Pueblo and
the Airport and /or Industrial Park where Facilities are located.
5 "Main Street Conduit" shall mean one two -inch (nominal) diameter conduit
attached to, or embedded within, and traversing the Main Street Bndge in Pueblo, Colorado
The phrase shall also mean and include access to handholes at each end of the Main Street
Bridge which may be used to access that conduit.
6 "8` Street Conduit" shall mean a shared conduit traversing the 8 Street Bndge in
Pueblo, Colorado, with access available on both sides of Fountain Creek.
7 "Arkansas Valley Conduit Ditch" shall mean the drainage channel that is located
between Colorado Highway 78 and Burnt Mill Road.
8 "Recipient Fibers" shall mean twelve (12) strands of single -mode fiber optic cable
from a location in downtown Pueblo in the general vicinity of First Street and Main Street to a
location to be agreed upon by the Parties at or near the intersection of Colorado Highway No 47
and William White Boulevard. The phrase shall also be taken to mean the rights to occupy and
access buffer tubes, ducts, conduit, manholes, handholes and other structures and facilities in
which such optical fibers are located or may be accessed. This phrase does not grant City rights
to open splice enclosures or cases owned by Permittee.
9 "PMC" shall mean the Pueblo Municipal Code, as amended, and as same may be
amended in the future.
10 "Rights of Way" shall mean City streets, roads, alleys, sidewalk areas and other
dedicated rights of way within the Junsdiction, together with dedicated utility easements within
the Junsdiction and easements deeded to the City for utility purposes. The term shall not include
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Rev Jan. 22, 2009
any other property owned or leased by the City for any other proprietary, public or municipal
use.
11 "ROW Special Use Fee" shall mean the fee payable to City under this Agreement
to compensate the Public for the special use of public Rights of Way being permitted to
Permittee under this Agreement.
12. "System Route" shall mean the route of the Permittee's private network, as
depicted in the drawing attached hereto as Exhibit "A"
13 "Term" shall mean twenty (20) years from the date hereof, provided, however,
that if this revocable permit is terminated and revoked sooner as provided in this Agreement, the
Term shall then end upon the effective date of such revocation.
14 "Underlying Rights" shall mean all deeds, leases, easements, pole sharing
agreements and other interests by which the Permittee is authorized to install, operate and
maintain its private network upon any real or personal property, whether public or private.
Article II - Revocable Permit
1 Subject to Permittee's compliance at all times with all of the terms and conditions
of this Agreement, all of City's ordinances, and all applicable local, state and federal laws, and
further subject to the City's lawful exercise of its police power (including, but not limited to,
zoning, subdivision, permit and building code requirements) and the City's prior and superior
right to usage for municipal purposes, City hereby grants to Permittee, insofar as it has or may
have the requisite power and authority to do so, a non - exclusive revocable permit to make
reasonable use of the Rights of Way and the Main Street Conduit, the 8 Street Conduit and the
Arkansas Valley Conduit Ditch, to construct, install, operate and maintain the Facilities within
the Jurisdiction, provided, however, that with respect to state highways, Permittee must
separately obtain consent from the Colorado Department of Transportation.
2 The revocable permit granted herein to make reasonable use of the Rights of Way
shall not be deemed to be a franchise, nor an exclusive license or right, and the City reserves the
nght to make or grant a similar use of the Rights of Way to any other person or persons.
3 The City retains the following rights in regard to this revocable permit:
(a) To revoke the permit and consent hereby granted for misuse, non -use or
failure of Permittee to comply with the provisions hereof.
(b) To use, control and regulate the use of the City streets, roads, easements,
other public places and the Rights of Way, and the space above and beneath the same; and
(c) To require the removal or relocation of any of the Facilities from the
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Rights of Way if necessary or desirable, in the sole judgment of the City, for any public or
municipal purpose or project, at Permittee's sole cost and expense.
(d) To terminate and revoke the permit at will, without cause, upon 90 days
pnor written notice to Permittee. Upon revocation of the permit by City, the Term of this
Agreement shall end, Permittee's rights to use of public rights of way shall cease, and City's
right to use Recipient Fibers shall terminate.
4 Permittee may, upon one year pnor written notice to City, elect to surrender and
relinquish the permit and all rights thereunder Upon the effective date of relinquishment, the
Term of this Agreement shall end, Permittee's rights to use of public nghts of way shall cease,
and City's right to use Recipient Fibers shall terminate.
Article III - Scone: Prohibition Against Providing Cable Services
The license and consent granted by this Agreement confers only the nght to make
reasonable use of the Rights of Way for Permittee's provision of its private network/private data
circuits and it is expressly conditioned that the Permittee shall not operate as a "cable operator"
as that term is defined under federal law (47 U S C §522(5)), nor shall it provide or offer to
provide "cable services" as that term is defined under federal law (47 U S C §522(6)), without
proper local, state, and federal authonzation, as required by law Additionally, Permittee shall
not allow its pnvate network to be used by any customer of Permittee for the provision of cable
services unless and until such customer has received such proper legal authorization to provide
cable services.
Article IV - Sales and Use Tax
1 Permittee agrees to obtain a sales and use tax license from the City and to comply
with all provisions of Title XIV of the Pueblo Municipal Code relating to sales and use taxes.
2 Permittee acknowledges that its sale of pnvate network services or sale or lease of
data circuits to its customers is subject to City's sales tax ordinance, and Permittee agrees to
collect such taxes from its customer and promptly remit same to the City in accordance with
Title XIV, PMC The current rate for sales and use taxes applicable for such sales and leases is
three and one -half percent (3.5 %) of gross sale /lease amount charged to customer For circuits
that originate and terminate in the City's Jurisdiction, the sales tax will be charged on the full
circuit price charged to the customer If a portion of the circuit originates outside of the City's
Jurisdiction, only the portions within the City's Jurisdiction will be taxed. For portions, such as
transport, or flat rate circuits that originate in the City's Jurisdiction and end outside of the City's
Jurisdiction, the tax will be collected on one -half of the portion or one -half of the flat rate circuit.
Article V — ROW Special Use Fee
1 In order to compensate the Public for the special nghts to use public Rights of Way
authonzed to Permittee under this Agreement, and to defray the City's costs and expenses in
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Rev Jan. 22, 2009
managing the Rights of Way, Permittee agrees to pay to City on a quarterly basis a ROW Special
Use Fee equal in amount to three percent (3 %) of its gross revenues derived from the sale or
lease of private network facilities and private data circuits within the City of Pueblo Permittee is
authonzed and permitted to pass - through such Fee to its customers as a government - imposed
regulatory fee.
2. City shall have the nght, during normal business hours and on reasonable pnor
written notice to Permittee, not more than once per calendar year, to inspect and audit
Permittee's records and books related to the ROW Special Use Fee and Permittee's calculation
of the amounts due to City under this Section.
Article VI - Use of Rights of Wav
1 Facilities shall be located, installed and maintained so that none of the Facilities
endanger the lives, health or safety of persons, or interfere with any public improvements the
City or other governmental entities (including any storm water, sanitary sewer or water utilities
or enterpnses) have in place or may deem proper to make, nor shall the location, installation or
maintenance of the Facilities hinder or obstruct the free use of the streets or other public ways.
All Facilities shall be so located as to cause minimum interference with the nghts and reasonable
convenience of property owners of property which adjoins any Right of Way
2 Prior to commencement of construction of any portion of its pnvate network/data
circuits within the City, Permittee shall furnish to the City the general schematic plans for its
Facilities, including, System Route maps, depiction, sketch or renderings of its equipment boxes
and structures, engmeenng, traffic control, and landscaping plans. In addition, the Permittee
shall assess and report on the impact of its proposed construction on the City environment. Such
plans and reports may be reviewed by the City to ensure, (a) that all applicable laws including
building and zoning codes and air and water pollution regulations are complied with, (b) that
aesthetic and good planning principles have been given due consideration, and (c) that adverse
impact on the environment has been minimized. The Permittee shall comply with all regulatory
requirements of the City lawfully binding on the Permittee and shall incorporate all other
reasonable changes to its plans requested by the City
3 Prior to underground construction of any Facilities within the Rights of Way at
any specific location, Permittee shall furnish the City's Director of Public Works ( "Director ")
with detailed plans for such Facilities including detailed location drawings and , where
applicable, architectural (if buildings or equipment sheds are involved), engineering, traffic
control and landscaping plans. Prior to commencing construction, Permittee shall (a) obtain
written approval of the Director of the construction plans, (b) Permittee shall file an application
for and procure appropnate excavation permits pursuant to Chapter 6 of Title XII, PMC, and
permits required by Chapter 3 of Title XII, PMC, or permits required pursuant to any similar
ordinance adopted by City in the future, (c) pay all fees associated with such permits, and (d)
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comply with all requirements of said Chapters 3 and 6 of Title XII, the terms of said permits, and
the City's Standard Construction Specifications and Standard Details dated June 9, 1997 or as
subsequently revised. In the event the construction matenally deviates from the plans submitted,
as -built drawings shall be filed with the Director upon completion of the work.
4 All construction, excavation, maintenance and repair work done by Permittee
shall be done in a workmanlike and expeditious manner which minimizes the inconvenience to
the City, the general public and individuals. Permittee shall be liable for any damage to the City
or City owned property caused by Permittee's failure to act in a timely manner All such
construction, excavation, maintenance and repair work done by Permittee shall comply with all
applicable codes of the City and the State of Colorado, and Permittee shall be responsible for
obtaining all applicable permits and licenses. The City shall have the right to inspect all
construction or excavation work to insure compliance with applicable codes and permits, and
may order Permittee to perform corrective work. All public and private property disturbed by
Permittee's activities shall be promptly restored by Permittee at its expense to substantially its
former condition, subject to inspection by the City's Director of Public Works or his designee
and compliance by Permittee with reasonable remedial action required by said official pursuant
to the inspection. Permittee shall be liable to City for the full cost of restonng any public
property not promptly remedied by Permittee as required by said official.
5 The installation, maintenance, renovation and replacement of Facilities by
Permittee shall be subject to regulation by City including as to (a) the location of Facilities in or
upon the streets, alleys and dedicated easements, (b) the disturbance and reconstruction of
pavement, sidewalks, and surface of streets, alleys, dedicated easements and dnveways, (c) the
timing and scheduling of work, and (d) the temporary closure of portions of streets and alleys.
All Facilities shall be designed and installed so as to cause a minimal amount of interference
with public property, water mains, sewer mains, electnc and natural gas facilities, street lights,
traffic signals, and all other municipal or authorized public use of the Rights of Way The City's
Director of Public Works may direct and require Permittee to locate its Facilities within a
defined telecommunications corridor within any street or other Right of Way or otherwise at a
specific location to minimize interference with other facilities or utilities. Permittee shall install
and maintain its Facilities in such manner as to minimize interference with trees, natural features
and vegetation. Whenever feasible, Permittee shall enter into pole - sharing and conduit - sharing
agreements with third parties in order to co- locate its wires and cables upon poles or within
conduit of other telecommunications providers or utilities.
6 Permittee shall, upon reasonable notice and at its sole cost and expense, remove,
locate and relocate its Facilities in, on, over or under any Rights of Way in such manner as City
may at any time require for the purpose of facilitating the construction, reconstruction,
maintenance, repair, or change in grade of any street, sidewalk, public improvement or City
project, or for the purpose of promoting the efficient operation of any such public improvement
or project, or for the purpose of facilitating the vacation and /or redevelopment of Right of Way
by the City In the event Permittee fails to act within a reasonably allocated time the City may
cause Permittee's Facilities to be relocated, and Permittee shall be liable to City for the costs
6
7 Except where specifically authorized by the Director of Public works of Lity, an
of Permittee's Facilities located within Rights of Way shall be located underground. In locations
where wires or cables of franchisees of City or of authorized local exchange carriers are
presently located above - ground, the Director of Public Works will allow Permittee's Facilities to
also be located above -ground unless he has specific reasons for not allowing above -ground
installation at such location. Thereafter, and notwithstanding that any such authonzation had
been given, should the City subsequently determine for any area of the City that telephone or
telecommunications wires or electric utility wires located above ground shall be relocated
underground, Permittee shall, upon reasonable notice, at its sole cost and expense, relocate its
Facilities below ground in cooperation with other affected interests. In the event Permittee fails
to act within a reasonable allocated time the City may cause Permittee's Facilities to be relocated,
and Permittee shall be liable to City for the costs thereof.
8 After execution of this Agreement, Permittee shall join and associate with the
notification association of owners and operators of underground facilities in accordance with the
requirements of Article 1 5 of Title 9, Colorado Revised Statutes. Pnor to undertaking any
excavation within the Rights of Way, Permittee shall comply with the notice requirements of
said Article.
Article VII - Additional Citv Regulation
1 The City expressly reserves its nght and duty to adopt, from time to time, in
addition to the provisions herein contained, such charter provisions, ordinances and rules and
regulations as may be deemed necessary by the City to promote the health, safety and welfare of
its inhabitants and their property
2. If, dunng the term of this Agreement, City enacts an ordinance concerning the use
of Rights of Way which increases the amount of compensation for the use of the Rights of Way
from private network providers over the amount provided in this Agreement, then Permittee
shall, in accordance with the terms of such ordinance, pay such compensation, provided,
however, that the fair market value of use of the Recipient Fibers provided to City under this
Agreement shall be credited against any increase in the amount of such compensation otherwise
payable.
Article VIII - Coordination and Conduit/Pole Sharing
1 In order to minimize disruption to vehicular traffic and inconvenience to the
public, and to enable the limited width of Rights of Way to be apportioned among all utilities,
holders of revocable permits and other interests needing to locate or maintain facilities in the
Rights of Way for the benefit of the public, it is imperative that pole shanng and conduit sharing
be encouraged to the greatest extent possible. In furtherance of such purposes, Permittee agrees
that it shall cooperate with City and authonzed utilities and local exchange carriers in placing
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conduit within the Rights of Way and in sharing unused space within underground conduits
owned by Permittee, and upon any poles or other above ground facilities owned by Permittee.
2 Whenever the Permittee intends to install new underground conduit or replace
existing underground conduit in a build greater than 1000 feet in length, Permittee shall,
whenever feasible, provide City and all utilities and local exchange carriers authorized to use the
Rights of Way, with forty five (45) days advance wntten notice in order to permit the additional
contemporaneous installation of conduit by City, and such utilities and local exchange careers.
If City desires additional conduit installed, it will so notify the Permittee and the City shall be
responsible for the additional incremental expense for installing such additional conduit. If a
utility or exchange carner desires additional conduit installed, it will so notify the Permittee in
writing at least ten (10) days prior to the proposed construction date, and the party requesting the
additional conduit shall be responsible for a pro -rata expense for installing such additional
conduit. This section is intended to maximize the coordination of facilities located within nghts
of way, and is not intended to govern routine connections of customers to installed network not
involving significant line extension nor other excavations of limited scope.
3 Notwithstanding anything to the contrary in paragraph 2 of this Article, in order to
minimize disruption to the public and enable use of the public rights of way for public purposes,
in connection with any installation of underground conduit by Permittee, City may request
Permittee to install one additional conduit for exclusive use by City for public and municipal
purposes. In any such case, Permittee shall install the conduit as requested and the City shall
reimburse Permittee only for the cost of the conduit and associated handholes and pull boxes for
the conduit, and for the additional incremental expense for installing such additional conduit,
handholes and pull boxes. City will be responsible for any locating requests for their conduit
once the conduit installation is completed and turned over to the City
4 City may have signal wires located upon poles belonging to City or to one or
more franchisees of City, which signal wires are not being currently used by City or if used, may
be capable of being served by additional Recipient Fibers. The parties recognize that the
presence of such signal wires may limit the placement of Permittee's cables upon such poles due
to space, loading and other physical constraints. For that reason, the parties will cooperate in
evaluating the need for such signal wires to remain on poles and the substitution of additional
Recipient Fibers for such signal wires where feasible and appropriate; provided, however, that
upon termination of the Term of this Agreement, including any revocation or surrender of the
permit pursuant to Article II of this Agreement, Permittee shall either restore any removed
signal wires to the poles or permanently leave in place alternative cables, fibers or Recipient
Fibers for the City's signal and communications use at such locations. This section shall survive
any termination of the Agreement.
Article IX - Special Indemnification Arising from Facilities
1 Permittee shall install, construct, maintain and operate its private network in a
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Rev Jan. 22, 2009
safe manner providing reasonable protection against injury or damage to any and all persons or
property Permittee specifically agrees to indemnify, defend and hold City harmless from all
claims, costs, demands, suits, costs of defense and judgments which arise from, in whole or in
part, Permittee's acts or omissions pursuant to this Agreement, and from all damages or penalties
arising out of the installation, construction, operation, or maintenance of Permittee's private
network and Facilities, whether or not any act or omission complained of is authonzed, allowed,
or prohibited by this Agreement, except to the extent such damages or penalties result from the
intentional or willful and wanton misconduct of the City or agent thereof. City shall not be liable
for, and Permittee shall indemnify, defend and hold the City harmless from all costs, damages
and claims which arise from or relate to delay by Permittee in performing its obligations
hereunder, for any cause whatsoever, except for intentional or willful and wanton misconduct of
the City Permittee also hereby agrees to pay all reasonable expenses of the City incurred by the
City in defending itself with regard to any such damages, claims or penalties, including all out -
of- pocket expenses, reasonable attorney' fees, and the reasonable value of any services rendered
by the City Attorney, his assistants, or any employees of the City
2. The City will provide notice to the Permittee of the pendency of any claim or
action against the City arising out of the operations of the Permittee, the exercise by the
Permittee of its rights under this Agreement or the performance thereof by the Permittee. The
Permittee shall thereafter be required to appear and defend any such claim or action. Nothing
herein stated shall limit the Permittee's obligation of full indemnification of the City hereunder
Article X - Insurance
Pnor to commencement of any installation of Facilities under this Agreement, Permittee
shall procure and thereafter continuously maintain, for as long as this Agreement remains in
effect, at Permittee's expense, Commercial General Liability ( "CGL ") insurance written on ISO
form CG 00 01 01 96, or a substitute form providing equivalent coverage, with a limit of not less
than $2 Million per occurrence, covering liability ansing from premises, operations, independent
contractors, personal injury, products completed operations, and liability assumed under an
insured contract, on an occurrence basis. Under the terms of the required CGL policy, this
Agreement shall be defined as an insured contract. The policy shall identify the City as an
additional insured, shall waive subrogation of claims against the City as an additional insured,
and shall have all necessary endorsements to provide coverage without exclusion for explosion,
collapse and underground property damage hazards. A certificate of insurance shall be filed with
the City's Director of Finance pnor to commencement of installation of Facilities, which
evidences compliance with the policy requirements stated above and provides for thirty (30) days
prior wntten notice to City pnor to cancellation or material change of any insurance referred to
therein. In the event the certificate states that it confers no nghts upon the certificate holder, the
City may require Permittee to furnish a complete copy of the policy including all declarations
and endorsements.
Article XI - Term
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The term of this Agreement shall be for a penod of twenty (20) years from and after the
date of the Agreement, unless sooner terminated as provided in this Agreement.
Article XII - Grant of Recipient Fibers
1 In consideration for the revocable permit to use public Rights of Way granted
herein, and the grant of use of the Main Street Conduit, 8th Street Conduit, and Arkansas Valley
Conduit Ditch, and as a portion of the compensation to the public for special use of such Rights
of Way, Permittee hereof grants to City an indefeasible right to use the Recipient Fibers for the
Term. Such indefeasible right to use the Recipient Fibers may be referred to herein as the
"IRU " The specific number of Recipient Fibers granted to City as part of the IRU at each
location where a portion of the private network has been installed is depicted on the drawing
attached hereto which is marked as Exhibit "A" and incorporated herein by reference. By way of
example, and not in limitation, the IRU includes 12 fibers in the portion of the pnvate network
route located between the Colorado Department of Transportation facilities located in the 900
block of Erie Street in Pueblo, Colorado and Permittee's access box located approximately 1/4
mile south of the intersection of William White Boulevard and Colorado Highway 47, as
depicted on Exhibit A. Each individual fiber strand in the Recipient Fibers will comply with
generally accepted industry standards for single mode (SMF28) type fiber
2 Legal title to the Permittee's facilities including the fiber optic communications
system, including fiber and cable sheathing and any bridge attachments, conduits, brackets,
insulators, fixtures, guy wires, anchors, splice boxes, fiber distribution centers and other
hardware needed or used to fasten or support the Cable shall be held by Permittee. Neither
anything contained in this Agreement, nor any use, however extended, of the Recipient Fibers,
nor any placement of City's facilities on or in the private network shall create or vest (or be
construed as creating or vesting) in City any right, title or interest in or to any real or personal
property owned by Permittee other than the IRU for the Recipient Fibers. Legal title to the Main
Street Conduit, the 8 Street Conduit and the Arkansas Valley Conduit Ditch shall remain with
the City, and nothing herein shall be deemed to relinquish City's right, title, interest or control of
the public Right of Ways
3 City shall have the right to pledge its rights and privileges contained in this
Agreement, to secure financial obligations to third parties without the need to obtain consent
from Permittee City shall keep the Permittee's facilities and other property subject to this
Agreement free from any liens, rights or claims of any third party attributable to City that
adversely affects or impairs Permittee's exclusive ownership and use of its separate facilities or
other property
4 (a) Except as authorized in paragraphs (b) and (c), City may not sell, donate,
allow use of, or trade "dark fiber ", capacity or bandwidth on IRU fibers to third parties or resell,
donate, allow use of, or trade its rights and privileges contained in this Agreement to third
parties.
10
Substituted Page 11 — Rev Jan. 23 2009
(b) City shall be permitted to connect the Recipient Fibers to, and use the fiber for
use and benefit of, City and all of City's elected bodies, departments, legal enterprises and
affiliated entities which are established or created in whole or in part by City Charter, Ordinance
or Resolution and which perform, in whole or in part, authonzed functions of City government in
either its propriety or governmental capacities. This authorization specifically allows City to use
Recipient Fibers to connect City facilities to any exchange or interexchange career or to the
Internet backbone provided that connection is used only for City purposes.
(c) In addition to the authorized uses set forth above, City may connect the Recipient
Fibers to other government entities, or allow use by other governmental entities, so long as the
exclusive use of such Recipient Fibers is for governmental purposes. Notwithstanding the
foregoing, City will not allow use of the Recipient Fibers to provide service of any kind to the
Pueblo Regional Library District at any location, nor to replace the service currently provided by
Permittee to the County of Pueblo between the following locations.
(I) from the Pueblo County facilities on Desert Flower Boulevard, Pueblo, CO 81001 to
212 West 12 Street, Pueblo, CO 81003, (II) from the Joint Information Center ( "JIC ")
located at Colorado State University — Pueblo ( "CSU- Pueblo ") to the Pueblo County
Judicial Building, 10 & Grand Streets, Pueblo, CO 81003, (III) from the JIC at CSU-
Pueblo to the Pueblo Chemical Depot Activity, Building 49 in Pueblo County, CO, and
(IV) from the Pueblo County Judicial Building to the Pueblo County Sheriff's Office
Substation, 320 E. Joe Martinez Boulevard, Pueblo West, CO 81007,
nor allow use by any other governmental entity to replace pnvate network services or data
circuits which the governmental entity has been purchasing from Permittee as of the date of this
Agreement. Permittee shall provide a list of its existing governmental customers to City
promptly upon execution of this Agreement. Nothing in this paragraph shall prohibit City from
allowing use of the Recipient Fibers by or for the benefit of Pueblo County for its facilities other
than between the locations described above.
(d) Except as stated in this Section 4 of Article XII, City agrees not to knowingly
use the Recipient Fibers, or knowingly allow the Recipient Fibers to be used, in any manner that
is commercially and materially detrimental to Permittee. Permittee, shall have the right, during
normal business hours and on reasonable prior written notice to City, not more than once per
calendar year, to inspect and audit City's use of the Recipient Fibers. If after an audit, Permittee
reasonably believes that the City is using the Recipient Fibers in a manner that is commercially
and materially detrimental to Permittee, it shall give written notice to City of same and indicate
therein in detail the basis for such belief. Within thirty (30) days of receipt of such notice, the
City will either cease and desist such detnmental use or respond in wntmg stating the basis for
any disagreement with Permittee. In such event, the parties will meet and confer in an effort to
resolve any such disagreement concerning the use of Recipient Fibers. In the event the Parties are
unable to resolve such disagreement, the dispute shall be resolved in the manner provided in this
Agreement and either Party may exercise such remedies as may be available to it under this
Agreement.
11
Article XIII - Maintenance of Recipient Fibers
1 Maintenance.
(a) Permittee shall maintain and repair the Recipient Fibers so as to assure continuing
conformity of the Recipient Fibers with their respective operating specifications.
(b) Permittee shall respond in a timely manner to any interruption of service or failure
of the Recipient Fibers to operate in accordance with this Agreement.
(c) Permittee shall splice the Recipient Fibers so as to assure continuing conformity
with City specifications, including, without limitation, conducting surveillance of such facilities,
location of faults, splicing and splice testing associated with any restoration, and procurement of
replacement cable used in restoration. Splice configuration shall be provided to Permittee by
City and paid for by City as stated in Section 1 (e) below
(d) Permittee shall be responsible for routine maintenance of all cable in its Private
Network and costs thereof not specifically due to requirements of City
(e) City shall pay Permittee all reasonable costs, including Permittee's overhead
expenses reasonably apportioned thereto, incurred by Permittee for any services requested by
City and furnished by Permittee to perform any special maintenance action on the Recipient
Fibers. Costs shall include labor, contractor services, matenals and any other expenses directly
associated with maintenance, conditioning and activation of Recipient Fibers.
2 Relocation. If, during the Term of this Agreement, (a) Permittee is required by a
governmental authonty with junsdiction to relocate any portion of the private network, including
any of the facilities used or required in providing the IRU in the Recipient Fibers, including any
condemnation or taking under the power of eminent domain of all or any portion of the System,
or (b) with City's concurrence upon Permittee's request, Permittee may relocate such portion of
the pnvate network then, Permittee shall give City sixty (60) days pnor notice of any such
relocation, if possible, and shall have the obligation to proceed with such relocation, including,
but not limited to, the nght to determine the extent of, the timing of, and methods to be used for
such relocation, provided that any such relocation shall be constructed and tested in accordance
with the specifications and requirements set forth herein. Nothing in this section, however, shall
be construed to limit or restnct City in requinng specific relocation arrangements, physical
locations or materials in connection with City's control over public rights of way, including
excavation permits.
Article XIV - Delivery. Use and Connection of Recipient Fibers
1 Delivery of Fibers. Permittee agrees to deliver to City the Recipient Fibers within
thirty (30) days of on or before the "Delivery Date."
12
Rev Jan. 22, 2009
2 Access. Permittee will provide City with access to the Recipient Fibers at such
splice points on the System Route as reasonably requested by City subject only to the
requirements in the Underlying Rights and provided that such access points do not materially
interfere with any Permittee facilities. Permittee shall have unrestricted exclusive access to
Conduit.
3 Use of Facilities. City may use the Recipient Fibers, or allow use by other
governmental entities, for any lawful governmental telecommunications and data transmission,
subject to the limitations of Article XII, Section 4 of this Agreement. City shall also not use the
Recipient Fibers in any manner that is not in compliance with (i) any and all applicable
government codes, ordinances, laws, rules, regulations and /or restrictions, and (ii) the
Underlying Rights, as such may be amended from time to time. City shall not use, any product
or service that fails to comply with any applicable safety rules or that would cause any Permittee
to violate any state or federal environmental laws. City shall have no limitations on the types of
electronics or technologies employed to utilize the Recipient Fibers subject to its use of
commercially reasonable safety procedures and so long as such electronics or technologies do
not interfere with the quiet use and enjoyment of or create any risk of damage to all or any
portion of the Private Network used by City or any other user of the Pnvate Network.
4 Connection. If City desires to connect other fiber optic cables to the Recipient
Fibers or create connections with buildings or other structures among the Private Network Route,
Permittee will cooperate with City for City to acquire access. City shall have the nght to place
its own connecting facilities within public rights of way between the Recipient Fibers and such
adjoining properties. However, at the request of City, Permittee will place connecting facilities
within public rights of way between the Recipient Fibers and such adjoining properties, subject
to the ability to do so pursuant to the Underlying Rights. Such placement of connecting facilities
by Permittee at the request of City shall be at City's sole cost and expense (including Costs
incurred by Permittee in providing oversight of any contractors excavating on the Rights of Way
or near the Cable to make such connection) as contemplated in Section 1(e) of Article XIII.
Each connection to Provided Facilities requiring a Cable to be entered will be performed by
Permittee at City's sole expense as contemplated in Section 1(e) of Article XIII. In order to
schedule a connection of this type, City shall contact Permittee to undertake the work at least
fourteen (14) days in advance of the date the connection is requested to be Completed. Such
work will be restricted to planned system work period weekends unless otherwise agreed to in
wntmg for specific projects. In the event that this work requires disruption of Permittee's
existing network traffic, the work will be scheduled to be done in a timeframe and time of day as
required by Permittee's contractual requirements with other parties, which may require more
than 14 days advance notice and may be required to be performed dunng specific maintenance
windows.
Article XV - Indemnification and Representations
1 Permittee's Indemnity Permittee shall indemnify, defend and hold harmless
13
City, its officers, employees, elected officials, boards, commissions and any other legal entity
affiliated with City from and against all Claims brought by third parties which any such
indemnified Party is required to pay or to assume which have resulted from Permittee's breach of
any duty or obligation imposed by law, including statutes, ordinances, regulations, orders,
decrees, judgments and the law of torts (including without limitation gross negligence, strict
liability, or willful misconduct), or this Agreement.
2. City's Immunities. Nothing in this Agreement is intended, nor shall it be
construed, to create or extend any rights, claims or benefits to, or assume any liability for or on
behalf of, any third party, or to waive any immunities or limitations otherwise conferred upon
City under or by virtue of federal or state law, including but not limited to the Colorado
Government Immunity Act, C.R.S §24 -10 -101, et seq
3 Notice and Defense of Third -Party Actions. Each Person entitled to
indemnification under this Article XV (an "Indemnified Party ") shall give prompt written notice
to each Person that is obligated to provide such indemnification (an "Indemnifying Party ") of the
commencement or assertion of any Claim by a third party (collectively, a "third -party action ") in
respect of which an Indemnified Party will seek indemnification hereunder, which notice shall
state, to the extent known to the Indemnified Party, the basis on which the claim for
indemnification is made, the facts giving nse to or the alleged basis of the third -party action, and
the amount (which may be estimated) of liability asserted by reason of the Claim, such notice
shall also include a copy of the document (if any) by or in which the third -party action is
commenced or asserted. Any failure so to notify the Indemnifying Party shall not relieve it from
any liability that it may have to the Indemnified Party under this Article 6 unless the failure to
give such notice materially and adversely prejudices the Indemnifying Party and then only to the
extent of such prejudice. The Indemnifying Party shall have the right to assume control of the
defense of or settle or otherwise dispose of such third party action on such terms as the
Indemnifying Party deems appropnate; provided, however, that:
(a) The Indemnified Party shall be entitled, at its own expense, and without
unreasonable interference with the actions of the Indemnifying Party, to participate in the
defense of third -party actions,
(b) The Indemnifying Party shall obtain the prior written consent of the Indemnified
Party before entering into any settlement, compromise, admission or any acknowledgment of the
validity of a third -party action or any liability in respect thereof, which consent shall not be
unreasonably withheld,
(c) No Indemnifying Party shall consent to the entry of any judgment or enter into
any settlement that does not include as an unconditional term thereof the giving by each claimant
or plaintiff to each Indemnified Party of a release from all liability in respect of such third -party
action, and
(d) The Indemnifying Party shall not be entitled to control (but shall be entitled to
14
Rev Jan. 22, 2009
participate at its own expense in the defense of) and the Indemnified Party shall be entitled to
have sole control over, the defense or settlement, compromise, admission or other
acknowledgment of any third -party action (i) as to which the Indemnifying Party fails to assume
the defense within a reasonable length of time or (ii) to the extent the third -party action seeks an
order, injunction or other equitable relief against the Indemnified Party which, if successful,
would have a material adverse effect on the business, financial condition, operations or
properties of the Indemnified Party; provided, however, that the Indemnified Party shall make no
settlement, compromise, admission or other acknowledgment which would give rise to liability
on the part of the Indemnifying Party without the prior written consent of the Indemnifying
Party, which consent shall not be unreasonably withheld.
4 Cooperation. The Parties shall cooperate with each other in the defense of any
third -party action that is the subject of this Article XV and shall furnish each other all such
further information that they have the right and power to furnish as may reasonably be necessary
to defend such third -party action.
5 Representations And Warranties. In addition to any other representations and
warranties contained in this Agreement, each Party hereto represents and warrants to the other
that:
(a) It has the full right and authority to enter into, execute, deliver and perform its
obligations under this Agreement;
(b) It has taken all requisite corporate action to approve the execution, delivery and
performance of this Agreement;
(c) This Agreement constitutes a legal, valid and binding obligation enforceable
against such party in accordance with its terms, and
(d) Its execution of and performance under this Agreement shall not violate any
applicable existing regulations, rules, statutes, or court orders of any local, state or federal
government agency, court, or body
Article XVI - Remedies. Termination, Removal
1 In the event of any breach of the terms of this Agreement by either party, the non-
breaching party shall have the nght to obtain one or more of the following remedies, which are
expressly agreed to be cumulative, and the exercise of any one (1) or more of them shall not be
dependent upon the exercise of any other remedy, nor does the exercise of any one or more of
them constitute any bar or limitation to the exercise of any other (a) specific performance or
injunctive relief, (b) monetary damages, and (c) termination. In the event either party is required
to commence an action to enforce its nghts under this Agreement or to obtain remedies provided
above and substantially prevails therein, such party shall be entitled to recover its costs, but
excluding attorneys fees and expert witness fees.
15
2 Before terminating the Agreement for cause on account of any default, the non-
defaulting party shall provide the party in default with written notice of the default and afford
such party a reasonable period in which to cure the default.
3 In the event Permittee abandons the pnvate network installed under the terms of
this Agreement or a certain part thereof or fails to use it for a period of one (1) year, or in the
event the term of this Agreement expires, or the Agreement is terminated or is canceled for any
reason, then Permittee shall remove its private network and all facilities, or the abandoned
portions thereof in the case of a partial abandonment, at its expense. As an alternative to
removal, if mutually agreed to by Permittee and the City, the ownership of the private network
and all facilities (or abandoned portions) may be transferred to the City, in which event, all
obligations and liabilities of Permittee under this Agreement in connection with the portion of
the private network or facilities so transferred to the City shall terminate.
4 Except in the case of abandonment and transfer of the private network or facilities
to City as provided in Section 3 of this Article, upon expiration of the Term of this Agreement or
termination, all nghts of City to use of the Recipient Fibers shall concurrently terminate, and
City shall promptly thereafter disconnect its equipment, power and other items from the
Recipient Fibers.
Article XVI I- Delays and Limitation of Liability
1 Delays. Under no circumstances shall either Permittee or City ever be liable for
any delay in restoring any service or Recipient Fibers or any operational aspect of the fiber optic
systems containing such Recipient Fibers which has been subjected to an outage, interference or
interruption, whatever the cause of such outage, interference or interruption, unless due to willful
nonfeasance or willful misfeasance of such Party
2. Limitation of Liability Notwithstanding any provision of this Agreement to the
contrary, m no event shall any Party to this Agreement be liable to any other Party for any
special, incidental, indirect, punitive, reliance or consequential damages, whether foreseeable or
not, arising out of, or in connection with, transmission interruptions or problems, including but
not limited to, damage or loss of property or equipment, loss of profits or revenue, cost of
capital, cost of replacement services, or claims of customers, whether occasioned by any repair
or maintenance performed by, or failed to be performed by, any Party to this Agreement, or any
other cause whatsoever, including, without limitation, breach of contract, breach of warranty,
negligence, or strict liability No claims for damages with respect to this Agreement may be
made more than five (5) years after the date that the event giving rise to such claim is known or
reasonably should have been known to the person or entity making such claim, and no claim for
indemnity under the provisions of Section 6 hereof may be made more than five (5) years after
the first notice of any claim received by the Party claiming under such indemnity provision.
Article XVIII - Notices
16
Rev Jan. 22, 2009
Except as otherwise provided herein, notice under this Agreement shall be deemed
sufficient if provided in writing and mailed or delivered as follows.
If to the City City of Pueblo
Attention. City Manager
1 City Hall Place
Pueblo, CO 81003
with a copy to Director of Information Technology
150 Central Main Street
Pueblo, CO 81003
If to Permittee: SECOM, a Division of SECPA
Attention. Jon Saunders
901 W 3 Street
La Junta, CO 81050
Article XIX - Successors and Assigns
This Agreement shall inure to the benefit of and be binding upon the parties hereto and
their respective successors and assigns. No provision of this Agreement shall confer rights or
benefits upon any person not a party hereto
Article XX - Signatures
The persons signing this Agreement on behalf of Permittee represent and warrant that
such persons and Permittee have the requisite power and authority to enter into, execute and
deliver this Agreement and that this Agreement is a valid and legally binding obligation of
Permittee enforceable against Permittee in accordance with its terms.
Article XXI - Miscellaneous Provisions
1 Amendments. This Agreement shall not be amended, altered or modified except
by an instrument in wasting duly executed by both Parties.
2. Limitation of Benefits. It is the explicit intention of the Parties hereto that no
Person other than the Parties hereto is or shall be entitled to bring any action to enforce any
provision of this Agreement against any Party hereto, and that covenants, undertakings, and
agreements set forth in this Agreement shall be enforceable only by the Parties hereto or their
respective successors or permitted assigns.
3 Severability If any part of any provision of this Agreement or any other
agreement, document or writing given pursuant to or in connection with this Agreement shall be
17
held to be invalid or unenforceable under applicable law, said part shall be ineffective to the
extent of such invalidity or enforceabihty only, without in any way affecting the remaining parts
of said provision or the remaining provisions of said agreement; provided, however, that if any
such ineffectiveness or unenforceability of any provision of this Agreement, in the good faith
judgment of either Party, renders the benefits to such Party of this Agreement as a whole
uneconomical in light of the obligations of such Party under this Agreement as a whole, then
Permittee and City shall negotiate in good faith in an effort to restore insofar as possible the
economic benefits of the transaction to the Parties.
4 Independent Contractors. In all matters pertaining to this Agreement, the
relationship of Permittee and City shall be that of independent contractors, and neither Permittee
nor City shall make any representations or warranties that their relationship is other than that of
independent contractors. This Agreement is not intended to create nor shall it be construed to
create any partnership, joint venture, employment or agency relationship between Permittee and
City; and no Party hereto shall be liable for the payment or performance of any debts,
obligations, or liabilities of the other Party, unless expressly assumed in writing herein or
otherwise. Each Party retains full control over the employment, direction, compensation and
discharge of its employees, and will be solely responsible for all compensation of such
employees, including social security, withholding and workers compensation responsibilities.
5 Labor Relations. Each Party hereto shall be responsible for labor relations with
its own employees. Each Party agrees to notify the other immediately whenever it has
knowledge that a labor dispute concerning its employees is delaying or threatens to delay timely
performance of its obligations under this Agreement.
6 Exercise of Rights. No failure or delay on the part of either Party hereto in
exercising any nght, power or privilege hereunder and no course of dealing between the Parties
shall operate as a waiver thereof; nor shall any single or partial exercise of any right, power or
privilege hereunder preclude any other or further exercise thereof or the exercise of any, other
nght, power or pnvilege.
7 Additional Actions and Documents. Each of the Parties hereto hereby agrees to
take or cause to be taken such further actions, to execute, acknowledge, deliver and file or cause
to be executed, acknowledged, delivered and filed such further documents and instruments, and
to use its commercially reasonable efforts to obtain such consents, as may be necessary or as
may be reasonably requested in order to fully effectuate the purposes, terms and conditions of
this Agreement, whether at or after the execution of this Agreement.
8 Survival. The obligations of the Parties under Article IV, V, VIII, IX, XV and
XVI shall survive any termination of this Agreement.
9 Headings. Article headings contained in this Agreement are inserted for
convenience of reference only, shall not be deemed to be a part of this Agreement for any
purpose, and shall not in any way define or affect the meaning, construction or scope of any of
18
Rev Jan. 22, 2009
the provisions hereof.
10 Incorporation of Exhibits. The Exhibits referenced in and attached to this
Agreement shall be deemed an integral part hereof to the same extent as if written at length
herein.
11 Governing Law This Agreement and each of its provisions shall, be governed by
and construed and interpreted according to the substantive laws of the State of Colorado without
regard to its conflicts of law or choice of law provisions.
12. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall be an onginal but all of which taken together shall constitute one and the
same instrument.
13 Entire Agreement. This Agreement constitutes the entire agreement between the
Parties with respect to the transaction contemplated herein, and supersedes all prior oral or
written agreements, commitments or understandings with respect to the matters provided for
herein.
IN WITNESS WHEREOF, Permittee and the City have executed this Agreement as of
the date first above written.
CITY OF PUEBLO,
AT MT A Muri0 ial Corpor
By
City C/rk President of City Council v
[SEAL]
PERMITTEE.
ATTEST SOUTHEAST COLORADO POWER
ASSOCIATION
r
By' _ 4
Title Title: CEO
19
Draft: 10/ 11 /06
EXHIBIT "A"
Fiber Route Map & Fiber Count Identification
. , e ..
' 0 `
1 U ; I ' ■ 4
i 11
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,• so ®l l" l U 90 4 B lo =
II g 580.'12 All
still' 'al MOON 14
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I •
1 4 00 1 4", I !
IRU Fibers
it I, f
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ilk
11* 1,41 1 r)51
20