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ORDINANCE NO. 10148
AN ORDINANCE APPROVING A LICENSE AGREEMENT
BETWEEN THE CITY OF PUEBLO, A MUNICIPAL
CORPORATION AND BIF IV INTREPID OPCO, LLC, A
DELAWARE LIMITED LIABILITY COMPANY AND
GRANTING SAID ENTITY A CITY TELECOMMUNICATIONS
LICENSE
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The License Agreement between the City of Pueblo, a municipal corporation and
BIF IV Intrepid Opco, LLC, a Delaware Limited Liability Company, a copy of which is
attached hereto, having been approved as to form by the City Attorney, is hereby
approved.
SECTION 2.
The Mayor is authorized to execute and deliver the License Agreement in the name
of the City, and the City Clerk is directed to affix the seal of the City thereto and attest
same.
SECTION 3.
This Ordinance shall become effective on the date of final action by the Mayor and
City Council.
Action by City Council:
Introduced and initial adoption of Ordinance by City Council on March 28, 2022 .
Final adoption of Ordinance by City Council on April 11, 2022 .
President of City Council
Action by the Mayor:
☒ Approved on April 12, 2022 .
□ Disapproved on based on the following objections:
_
Mayor
Action by City Council After Disapproval by the Mayor:
□ Council did not act to override the Mayor's veto.
□ Ordinance re-adopted on a vote of , on
□ Council action on _______ failed to override the Mayor’s veto.
President of City Council
ATTEST
City Clerk
City Clerk’s Office Item # R-4
BACKGROUND PAPER FOR PROPOSED
ORDINANCE
COUNCIL MEETING DATE: March 28, 2022
TO: President Heather Graham and Members of City Council
CC: Nicholas A. Gradisar, Mayor
VIA: Marisa Stoller, City Clerk
FROM: Andrew Hayes, Director of Public Works
SUBJECT: AN ORDINANCE APPROVING A LICENSE AGREEMENT BETWEEN
THE CITY OF PUEBLO, A MUNICIPAL CORPORATION AND BIF IV
INTREPID OPCO, LLC, A DELAWARE LIMITED LIABILITY COMPANY
AND GRANTING SAID ENTITY A CITY TELECOMMUNICATIONS
LICENSE
SUMMARY:
The Ordinance will approve a license agreement with BIF IV Intrepid Opco, LLC, a
Delaware limited liability company (“Intrepid Fiber”) which grants it a nonexclusive license
to place telecommunications cable and ancillary facilities within the streets and right of
ways of the City in order that the company may operate within the City as a
telecommunications provider. The license agreement preserves, to the extent permitted
under existing laws, the City’s authority to manage its streets and rights of way for the
benefit of the public without discrimination among telecommunications providers.
PREVIOUS COUNCIL ACTION:
The City has previously approved identical or substantially similar license agreements
with other qualifying telecommunication providers in the past.
BACKGROUND:
Intrepid Fiber is a provider of fiber telecommunications infrastructure in markets across
the United States. As a qualified telecommunications service provider, Intrepid Fiber has
requested a telecommunications license from the City of Pueblo and envisions the
installation of an “open access” fiber network within the City.
FINANCIAL IMPLICATIONS:
Intrepid Fiber and its customers will pay the City applicable sales and use taxes, E911
fees and occupation taxes.
BOARD/COMMISSION RECOMMENDATION:
Not applicable to this Ordinance.
STAKEHOLDER PROCESS:
Not applicable to this Ordinance.
ALTERNATIVES:
Pursuant to federal and state law, the City is prohibited from discriminating among or
granting preferences to competing telecommunication providers in the issuance of
licenses and from creating or erecting any unreasonable requirements for entry to the
City right of way. As such, the City’s alternatives are limited to proposing amendments to
the proposed license agreement that are consistent with the foregoing limitations.
RECOMMENDATION:
Approval of the Ordinance.
Attachments:
Proposed Ordinance
License Agreement
LICENSE AGREEMENT
THIS AGREEMENT is entered into this 1. day of l\ r , 202; by and
between the City of Pueblo, a Municipal Corporation (hereinafter referred to as "City") and BIF
IV Intrepid Opco, LLC, a Delaware limited liability company, (hereinafter referred to as
"Licensee").
WITNESSETH:
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, Licensee represents and warrants: (a) that it is a Telecommunications
Provider" as that term is defined in Section 7 of Article I; and (b) that it operates within the
geographical boundaries of the City of Pueblo; and
WHEREAS, the State Public Utilities Commission of the State of Colorado granted
Licensee a Certificate of Public Convenience and Necessity to provide Part IV services on a
statewide basis in Decision No. C22-0148 issued in Proceeding No. 22A-0060T; and
WHEREAS, Licensee provides or will provide its Telecommunications Services to
customers over a network owned, controlled, or leased by Licensee which lines are authorized
pursuant to franchise, license agreement or revocable permit; and
WHEREAS, Licensee may wish to install Facilities upon or within certain public rights of
way within the corporate boundaries of the City in order to provide Telecommunications Services;
and
WHEREAS, City is authorized under the constitution and laws of the State of Colorado to
grant consent to Telecommunications Providers to occupy the public rights of way for such
purposes; provided, however, the same shall not be nor constitute the granting of a local franchise
under Article 16 of the City's Charter nor shall same ever become or ripen into any franchise; and
WHEREAS, the City and Licensee have agreed to be bound by the terms and conditions
set forth herein which shall govern Licensee's use of the public rights of way;
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 License Agreement, the following terms, phrases, and words shall be
ascribed the following meanings, unless the context indicates otherwise. As used in this License
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 License Agreement.
1. "Telecommunications Act" shall mean the Telecommunications Act of 1996 (47
U.S.C. §151, et se_c.), as amended.
2. (a) "Facilities" means all physical components of the Licensee used to provide
Telecommunications Services which are located, or to become located pursuant to this License
Agreement, within the City and are reasonably necessary, useful or convenient to provide
Telecommunications Services within the territorial boundaries of the City, including without
limitation, poles, wires, cables, pipes, underground conduits, ducts, manholes, vaults, fiber optic
cables and devices, switches, equipment boxes and sheds and other structures and appurtenances.
This term shall also include any Facilities which were installed under the any prior License
Agreement between the City and Licensee.
(b) "Leased Facilities" means all physical components used by Licensee to
provide Telecommunications Services which are leased to Licensee by third parties who are
authorized by separate instruments to maintain same within Rights of Way within the City.
3. "Account" shall mean each telephone or telecommunications access line or twisted
pair equivalent provided by or on behalf of Licensee, if Licensee provides any type of local
exchange service, at a customer's premises over which the customer may send or receive any
telephone, telegraph, fax, data, video or other similar telecommunications signals; except that
"Account" shall not include any customer line used solely for receipt of cable television
programming. Provision of a T1 or DS1 line furnished by Licensee to a customer which is
connected to switched access service or local exchange service shall be counted as twenty-four
(24) accounts;provision of a T3/DS3 shall be counted as six hundred seventy-two (672) accounts.
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. "Rights of Way" shall mean City streets, roads, alleys, sidewalk areas and other
dedicated rights of way within the Jurisdiction, together with dedicated utility easements within
the Jurisdiction and easements deeded to the City for utility purposes,and including state highways
and highways which are part of the federal interstate highway system. The term shall not include
any other property owned or leased by the City for other public use including, without limitation,
City parks and open space.
6. "PMC" shall mean the Pueblo Municipal Code, as amended, and as same may be
amended in the future.
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7. "Telecommunications Provider" shall (1) have the meaning as that term is defined
under Colorado and federal law,including but not limited to § 38-5.5-102(3),C.R.S. and 47 U.S.C.
§ 153(51) and (2) also include, solely for the purposes of this Agreement, the term "broadband
provider" as that term is defined in § 38-5.5-102(1.3), C.R.S., except that for purposes of this
Agreement this term shall not include a cable operator.
8. "Telecommunications Services" shall (1) have the meaning as that term is defined
under Colorado and federal law, including but not limited to 47 U.S.C. § 153(53) and (2) also
include, solely for the purposes of this Agreement, the term "broadband service" as that term is
defined in § 38-5.5-102(1), C.R.S., except that for purposes of this Agreement this term shall not
include cable services.
9. "Wireless Communications Facility" or "WCF" means a facility used to provide
personal wireless services as defined at 47 U.S.C. Section 332 (c)(7)(C); or wireless information
services provided to the public or to such classes of users as to be effectively available directly to
the public via licensed or unlicensed frequencies; or wireless utility monitoring and control
services.
ARTICLE II - CONDITIONAL CONSENT GRANTED
1. Subject to Licensee's compliance at all times with all of the terms and conditions
of this License Agreement, all of the ordinances referenced herein, 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 Licensee, insofar as it
has or may have the requisite power and authority to do so, a non-exclusive license to make
reasonable use of the Rights of Way to construct, install,operate and maintain Licensee's Facilities
within the City to and for the benefit of the City and the inhabitants of the City;provided,however,
that with respect to state highways, Licensee must separately obtain consent from the Colorado
Department of Transportation. This license shall extend to all areas of the City as it is now
constituted, and to additional areas as the City may increase in size by annexation or otherwise.
2. The license 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 right to
make or grant a similar use of the Rights of Way to any other person or persons, including one or
more other Telecommunications Providers.
3. The City retains the following rights in regard to this license:
(a) To revoke the license and consent hereby granted for misuse, non-use or
failure of Licensee to comply with the provisions hereof;
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(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 Rights
of Way if necessary or desirable, in the sole but reasonable judgment of the City, for any
public or municipal purpose or project.
4. The license granted herein to make reasonable use of the Rights of Way shall not
be deemed to grant authorization to construct or operate Wireless Communications Facilities.
Authorization to utilize the Rights of Way for Wireless Communications Facilities must be
obtained through separate authorization specifically permitting the use of the Rights of Way for
Wireless Communications Facilities.
ARTICLE III - SCOPE
The license and consent granted by this License Agreement confers only the right to make
reasonable use of the Rights of Way for Licensee's provision of Telecommunications Services,
and it is expressly understood and agreed to by Licensee that Licensee shall not operate a private
telecommunications network, Wireless Communications Facilities, nor 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 as defined under federal law(47 U.S.C. §522(6)), without
proper local, state and federal authorization, as required by law.
ARTICLE IV - OCCUPATION TAX & E911 SURCHARGES
1. To the extent Licensee operates as a local exchange provider, as defined by §40-
15-102(18), C.R.S. and/or as an interexchange provider, as defined by §40-15-102(11), C.R.S the
following provisions shall apply:
(a) Licensee understands and acknowledges that City had heretofore adopted
Ordinance No. 4267 in December 1976 imposing upon all telecommunications utilities
operating within the City,and effective January 1, 1977, an occupation tax as stated in said
Ordinance. In its provision of local exchange services, whether directly or through resale,
Licensee agrees to be bound by and comply with said Ordinance, including payment of the
tax in an amount equal to $6.00 per annum for each Account, payable quarterly in equal
installments. In providing local exchange services, Licensee hereby expressly agrees that
it is and constitutes a telephone utility within the meaning of Ordinance No. 4267 and
Licensee irrevocably waives and relinquishes any right it has or may have to claim or assert
that said Ordinance is invalid under law or should not be applied to Licensee, including,
without limitation, any claim that said Ordinance violates any provision of state law or the
Telecommunications Act.
(b) The City has by Ordinance No. 9864 imposed an emergency telephone
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charge ("E911 Charge") of one dollar seventy-two cents ($1.72) per month per exchange
access facility, wireless communications access and interconnected voice-over-internet-
protocol service provided within the Jurisdiction, as authorized by §29-11-100.5, et seq.,
C.R.S. Licensee agrees to collect the E911 Charge from its customers and promptly remit
same monthly to City as provided by §29-11-103(1), C.R.S.
ARTICLE V - SALES AND USE TAXES
1. Licensee 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. Licensee acknowledges and agrees that to the extent Licensee sells
telecommunications services to customers within the City, including the provision of interstate
telephone access service and interlata access service, such service is taxable by City pursuant to
§14-4-61(3), PMC, and Licensee shall collect such taxes from its customers and promptly remit
same to the City in accordance with Title XIV, PMC.
ARTICLE VI - USE OF RIGHTS OF WAY
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
enterprises) have in place or may deem proper to make, nor shall the location, installation or
maintenance of the Facilities hinder or obstruct the use of the streets or other public ways for their
public purposes, including but not limited to vehicular and pedestrian traffic. All Facilities shall
be so located as to cause minimum interference with the rights 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 telecommunications
system within the City (other than Leased Facilities), Licensee shall furnish to the City the general
schematic plans for its Facilities, including system route maps,renderings of equipment boxes and
structures, engineering, traffic control, and landscaping plans. In addition, the Licensee 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 Licensee shall comply with all regulatory requirements of
the City lawfully binding on the Licensee and shall incorporate all other reasonable changes to its
plans requested by the City.
3. Not less than thirty (30) days prior to construction of any Facilities within the
Rights of Way at any specific location, Licensee shall furnish the City's Director of Public Works
with detailed plans for such Facilities including detailed location drawings and final architectural,
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engineering, traffic control and landscaping plans. Prior to commencing construction, Licensee
shall: (a) obtain written approval of the Director of Public Works of the construction plans, (b)
procure appropriate 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) 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 adopted March 28, 2005 or as
subsequently revised.
4. All construction, excavation, maintenance and repair work done by Licensee shall
be done in a workmanlike and expeditious manner which minimizes the inconvenience to the City,
the general public and individuals. Licensee shall be liable for any damage to the City or City
owned property caused by Licensee's failure to act in a timely manner. All such construction,
excavation, maintenance and repair work done by Licensee shall comply with all applicable codes
of the City and the State of Colorado, and Licensee shall be responsible for obtaining all applicable
permits and licenses. The City shall have the right to inspect all construction or excavation work
to ensure compliance with applicable codes and permits, and may order Licensee to perform
corrective work. All public and private property disturbed by Licensee's activities shall be
promptly restored by Licensee at its expense to substantially its former condition, subject to
inspection by the City's Director of Public Works or their designee and compliance by Licensee
with reasonable remedial action required by said official pursuant to the inspection. Licensee shall
be liable to City for the full cost of restoring any public property not promptly remedied by
Licensee as required by said official.
5. The installation,maintenance,renovation and replacement of Facilities by Licensee
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 driveways, (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, electric 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 Licensee 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. Licensee shall install and
maintain its Facilities in such manner as to minimize interference with trees, natural features and
vegetation. Whenever feasible, Licensee 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. Licensee 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,
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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 Licensee fails to act within a reasonably allocated time, the City may cause
Licensee's Facilities to be relocated, and Licensee shall be liable to City for the costs thereof. In
the event City causes Licensee's Facilities to be relocated, City shall be held harmless for any
damages incurred to Licensee's Facilities during such relocation.
7. Except where specifically authorized by the Director of Public Works of the City,
all of Licensee'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 Licensee'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 authorization had been given, should
the City subsequently determine for any area of the City that telephone or telecommunications
wires, cable television cables or electric utility wires located above ground shall be relocated
underground, Licensee shall, upon reasonable notice, at its sole cost and expense, relocate its
Facilities below ground in cooperation with other affected interests. In the event Licensee fails to
act within a reasonable allocated time the City may cause Licensee's Facilities to be relocated, and
Licensee shall be liable to City for the costs thereof. In the event City causes Licensee's Facilities
to be relocated, City shall be held harmless for any damages incurred to Licensee's Facilities
during such relocation.
8. After execution of this Agreement, Licensee 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. Prior to undertaking any
excavation within the Rights of Way, Licensee shall comply with the notice requirements of said
Article.
ARTICLE VII - ADDITIONAL CITY REGULATION
1. The City expressly reserves its right 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. Notwithstanding anything in this License Agreement to the contrary, Licensee
acknowledges that City is planning to develop a new telecommunications policy which will be
implemented through one or more ordinances or resolutions to be adopted by City Council of City,
and/or through regulations to be adopted by Departments of the City. Licensee agrees that upon
adoption of any such policy or regulations after the date of this License Agreement, this License
Agreement or any provision thereof may be unilaterally revoked or canceled by City without cause
and replaced with new terms and conditions which shall be made equally applicable within each
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class of Telecommunications Provider operating within the City.
3. If, during the term of this License Agreement, the City is authorized pursuant to
Colorado Law to collect compensation for use of the Rights of Way by Telecommunications
Providers and the City enacts an ordinance concerning the use of Rights of Way which requires
compensation for the use of the Rights of Way from any class of Telecommunications Providers
on a competitively neutral and nondiscriminatory basis within such class, then Licensee shall, in
accordance with the terms of such ordinance, pay such compensation.
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,
Telecommunications Providers 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 sharing and conduit sharing
be encouraged to the greatest extent possible. In furtherance of such purposes, Licensee agrees
that it shall reasonably cooperate with City, authorized utilities and other local exchange carriers
in placing conduit within the Rights of Way and in sharing unused space within underground
conduits owned by Licensee, and upon poles or other above ground facilities owned by Licensee.
2. Whenever the Licensee intends to install new underground conduit or replace
existing underground conduit in a build greater than 500 feet in length, Licensee shall, whenever
feasible, provide City and all utilities, cable television franchisees, authorized
Telecommunications Providers, and local exchange carriers authorized to use the Rights of Way,
with sixty (60) days advance written notice in order to permit the additional contemporaneous
installation of conduit by City, and such utilities, cable television franchisees, authorized
Telecommunications Providers, and local exchange carriers. If City desires additional conduit
installed, it will so notify the Licensee and the City shall be responsible for the additional
incremental expense for installing such additional conduit. If a utility, cable television franchisee,
authorized Telecommunications Provider, or local exchange carrier desires additional conduit
installed, it will so notify the Licensee in writing at least ten (10) days prior to the proposed
construction date, and such 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 rights 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 Licensee,City may request Licensee
to install one additional conduit for exclusive use by City for public and municipal purposes. In
any such case, Licensee shall install the conduit as requested and the City shall reimburse Licensee
only for the cost of the conduit and associated handholes and pull boxes for the conduit, and for
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the additional incremental expense for installing such additional conduit,handholes and pullboxes.
ARTICLE IX - INDEMNIFICATION
I. Licensee shall install, construct, maintain and operate its telecommunications
system in a safe manner providing reasonable protection against injury or damage to any and all
persons or property. Licensee specifically agrees to indemnify, defend and hold City harmless
from all claims, costs, demands, suits, reasonable expert witness and attorneys' fees, court costs,
and other reasonable costs of defense and judgments to the extent the same arise from, in whole
or in part, Licensee's negligent acts or omissions of failure to comply with the provisions of this
License Agreement, and from all damages or penalties to the extent arising out of the installation,
construction, operation, or maintenance of Licensee's telecommunications system, whether or not
any act or omission complained of is authorized,allowed,or prohibited by this License Agreement,
except to the extent such damages or penalties result from the negligent acts or omissions or
intentional or willful and wanton misconduct of the City. City shall not be liable for, and Licensee
shall indemnify,defend and hold the City harmless from all costs,damages and claims to the extent
arising from or relating to delay by Licensee in performing its obligations hereunder, for any cause
whatsoever, except for the negligent acts or omissions or intentional or willful and wanton
misconduct of the City, other users of the Rights of Way, or a force majeure event. Licensee shall
have sole control over the defense, investigation and settlement of any such claims, however,
Licensee shall not enter into any compromise or settlement which imposes any obligation or
liability on the City without the prior written consent of the City. In the event Licensee fails to
timely assume the defense of any such claim which has been properly and promptly tendered to
License. Licensee 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 (collectively "Expenses"), but shall
not be required to pay for any Expenses that are in excess of any settlement or compromise which
was rejected by the City.
2. The City will provide notice to the Licensee of the pendency of any claim or action
against the City arising out of the operations of the Licensee, the exercise by the Licensee of its
rights under this License Agreement or the performance thereof by the Licensee. The Licensee
shall thereafter be required to appear and defend any such claim or action. Nothing herein stated
shall limit the Licensee's obligation of full indemnification of the City hereunder.
ARTICLE X - INSURANCE
Prior to commencement of any installation of Facilities under this License Agreement,
Licensee shall procure and thereafter continuously maintain, for as long as this License Agreement
remains in effect, at Licensee'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 arising from premises, operations,
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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 License Agreement shall be defined as an insured contract. The policy shall identify the City
as an additional insured, shall contain a waiver of right of subrogation against City 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 prior to commencement of installation of Facilities, which evidences
compliance with the policy requirements stated above and provides for thirty (30) days prior
written notice to City prior to cancellation or material change of any insurance referred to therein.
In the event the certificate states that it confers no rights upon the certificate holder, the City may
require Licensee to furnish a complete copy of the policy including all declarations and
endorsements.
ARTICLE XI - TERM
Unless sooner terminated as provided herein, the term of this License Agreement shall be
for a period of five (5) years from and after the date of the Agreement. The Parties may mutually
agree in writing to renew this Agreement at expiration of the initial term.
ARTICLE XII - REMEDIES, TERMINATION, REMOVAL
1. In the event of any breach of the terms of this License Agreement by Licensee,City
shall have the right 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 City is required to commence an action to enforce its
rights under this License Agreement or to obtain remedies provided above and the party which
substantially prevails therein, shall be entitled to recover its costs, including reasonable attorneys'
fees and expert witness fees.
2. Before terminating the License Agreement for cause on account of any default by
Licensee, City shall provide Licensee with written notice of the default and afford Licensee a
reasonable period in which to cure the default.
3. In the event Licensee abandons the telecommunications system installed under the
terms of this License 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 License Agreement expires, or the Agreement is terminated
or is canceled for any reason, then Licensee shall remove its telecommunications system, 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 Licensee and the City, the ownership of the
telecommunications system(or abandoned portions)may be transferred to the City,in which event,
all obligations and liabilities of Licensee under this Agreement in connection with the portion of
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the telecommunications system so transferred to the City shall terminate.
4. Licensee may cancel this Agreement at any time, as described below, upon ninety
(90)days'written notice to the City,subject to the indemnification requirements of this Agreement,
the removal provisions set forth in Section 3 above, and any other provisions that survive the
termination of this Agreement.
ARTICLE XIII - NOTICES
Except as otherwise provided herein, notice under this License Agreement shall be deemed
sufficient if provided in writing and mailed by US certified mail, return receipt requested or
delivered by a nationally recognized courier, and shall be deemed effective upon actual receipt or
refusal of delivery, and shall be addressed to the respective party as follows:
If to the City: Mayor
1 City Hall Pl.
Pueblo, CO 81003
with a copy to: Director of Public Works
211 E. "D" Street
Pueblo, CO 81003
If to Licensee: BIF IV Intrepid Opc, LLC
Brookfield Place
250 Vesey Street
New York, NY 10281-1023
With a copies to: Jack Waters
CEO, Intrepid Fiber
E-mail: jack.waters(&,,intrepidfiber.com
and
Patrick Hildebrand
Business Development Lead, Intrepid Fiber
E-mail: patrick.hildebrand@intrepidfiber.com
ARTICLE XIV - EFFECT OF MORE FAVORABLE LICENSE AGREEMENTS
In the event that any wireline Telecommunications Provider offering Telecommunications
Services , other than cable services, for a fee to the public, or to such classes of users as to be
effectively available to the public is granted consent to use the City's Rights of Way pursuant to
terms and conditions which, if applied to Licensee, would be more favorable than those included
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herein, Licensee shall notify City of such terms and conditions and Licensee shall have the option
to renegotiate with City with respect to such terms and conditions.
ARTICLE XV - SUCCESSORS AND ASSIGNS
This License Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective successors and assigns. No provision of this License Agreement shall confer
rights or benefits upon any person not a party hereto.
ARTICLE XVI - SIGNATURES
The persons signing this License Agreement on behalf of Licensee represent and warrant
that such persons and Licensee have the requisite power and authority to enter into, execute and
deliver this License Agreement and that this License Agreement is a valid and legally binding
obligation of Licensee enforceable against Licensee in accordance with its terms. This License
Agreement may be executed in one or more counterparts, each of which shall be deemed an
original, and all of such components together shall constitute one and the same instrument.
ARTICLE XVII - FORCE MAJEURE
Neither party shall be liable for its failure to perform any of its obligations hereunder if
such failure is caused by an Act of God,labor strike, fire,earthquake,power blackouts,pandemics,
epidemics, or any other cause beyond its reasonable control and without its fault or negligence.
ARTICLE XVIII - LAWS GOVERNING/VENUE
This Agreement shall be governed by and construed in accordance with the laws of the
State of Colorado, and applicable federal law. Venue for any proceeding brought pursuant to this
Agreement shall be in the District Court located in Pueblo County, Colorado.
ARTICLE XIX - COUNTERPARTS; ELECTRONIC DISPOSITION
This Agreement may be executed in multiple counterparts, each of which constitutes an
original hereof. Regardless of the number of counterparts, all shall constitute only one agreement.
In making proof of this Agreement, it is not necessary to produce or account for more counterparts
than are necessary to show execution by or on behalf of all parties. Furthermore, the original of
this Agreement, including the signature page, may be scanned and stored in a computer database
or similar device, and any printout or other output readable by sight, the reproduction of which is
shown to accurately reproduce the original of this Agreement, may be used for any purpose as if
it were the original, including proof of the content of the original writing.
ARTICLE XX - PUBLIC DISCLOSURE
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The Licensee acknowledges that this Agreement is public record within the meaning of the
Colorado Open Records Act, C.R.S. § 24-72-200.1 et seq. as same may be amended, and
accordingly may be disclosed to the public.
ARTICLE XXI - AMENDMENT
This Agreement may not be amended except pursuant to a written instrument signed by
both parties.
ARTICLE XXII - OTHER RIGHTS OF WAY USERS
The parties understand and agree that the Licensor permits other persons and entities to
install utility facilities in the public Rights of Way. In permitting such work to be done by others,
the Licensor shall not be liable to Company for any damage caused by those persons or entities.
ARTICLE XXIII - ENTIRE AGREEMENT
This Agreement represents the entire understanding and agreement between the parties
hereto with respect to the subject matter hereof, supersedes all prior oral negotiations between the
parties, and can be amended, supplemented, modified or changed only by an agreement in writing
which makes specific reference to this Agreement and which is signed by the party against whom
enforcement of any such amendment, supplement, modification or change is sought.
[Remainder of Page Intentionally Left Blank—Signature Page Follows]
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