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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. 1 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 2 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 3 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 4 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) 5 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 7 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 8 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 9 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 < 10, Ur) !lg.-- „..._ 1 1,, ,• so ®l l" l U 90 4 B lo = II g 580.'12 All still' 'al MOON 14 . , I • 1 4 00 1 4", I ! IRU Fibers it I, f i dlir-- k . ®Backbon ilk 11* 1,41 1 r)51 20