HomeMy WebLinkAbout10285ORDINANCE NO. 10285
AN ORDINANCE APPROVING A LICENSE AGREEMENT
BETWEEN THE CITY OF PUEBLO, A MUNICIPAL
CORPORATION AND CLARITY TELECOM, LLC, DBA
BLUEPEAK FIBER, A DELAWARE LIMITED LIABILITY
COMPANY
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The License Agreement between the City of Pueblo, a Municipal Corporation and
Clarity Telecom, LLC, (D/B/A Bluepeak Fiber), a Delaware Limited Liability Company,
a copy of which is attached hereto, having been approved as to form by the City of
Pueblo Attorney, is hereby approved.
SECTION 2.
The Mayor is authorized to execute and deliver the License Agreement in the name
of the City of Pueblo, and the City Clerk is directed to affix the seal of the City thereto and
attest same.
SECTION 3.
The officers and staff of the City are authorized to perform any and all acts
consistent with this Ordinance and the attached Agreement to implement the policies and
procedures described therein.
SECTION 4.
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 September 12, 2022.
Final adoption of Ordinance by City Council on September 26, 2022 .
President of City Council
Action by the Mayor:
☒ Approved on September 28, 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-15
BACKGROUND PAPER FOR PROPOSED
ORDINANCE
COUNCIL MEETING DATE: September 12, 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 CLARITY
TELECOM, LLC, DBA BLUEPEAK FIBER, A DELAWARE LIMITED
LIABILITY COMPANY
SUMMARY:
The Ordinance will approve a license agreement with Clarity Telecom, LLC., (D/B/A
Bluepeak Fiber), a Delaware Limited Liability Company, which grants it a nonexclusive
license to place telecommunications cable and ancillary facilities within the streets and
right of ways of the City of Pueblo in order that the company may operate within the City
of Pueblo as a broadband 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 and
broadband providers.
PREVIOUS COUNCIL ACTION:
The City of Pueblo has previously approved identical or substantially similar license
agreements with other qualifying telecommunication and broadband providers in the past.
BACKGROUND:
Clarity Telecom, LLC., (D/B/A Bluepeak Fiber)’s website states they strive to create the
foundational infrastructure for modern and accessible technology bridging public and
private spaces to provide the greatest amount of broadband access to the greatest
amount of people. As a qualified broadband service provider, Clarity Telecom, LLC.,
(D/B/A Bluepeak Fiber) has requested a telecommunications license from the City of
Pueblo for installation of a fiber network within the City of Pueblo.
FINANCIAL IMPLICATIONS:
Clarity Telecom, LLC., (D/B/A Bluepeak Fiber), and its customers will pay the City of
Pueblo applicable sales and use tax fees, 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 of Pueblo 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 of Pueblo’s 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 ICENSE AGREEMENT ("License Agreement") is entered into this 4+k- day
of �l�'� , 2022 (the "Effective Date"), by and between the City of Pueblo, a Municipal
Corpora on (hereinafter referred to as "City"), and Clarity Telecom, LLC (D/B/A Bluepeak
Fiber), a Delaware Limited Liability Company (hereinafter referred to as "Licensee"). Licensee
and City may sometimes be referred to in this License Agreement individually as a "party" or
collectively as the "parties."
WITNESSETH
WHEREAS, the 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 "Broadband provider" as
that term is defined under Colorado and federal law, including, but not limited to, §38-5.5-102(3),
C.R.S., or a "telecommunications provider" as that term is defined under Colorado and federal
law, including, but not limited to, §38-5.5-102(9), C.R.S and 47 U.S.C. § 153(51); and (b) that it
operates within the geographical boundaries of the City of Pueblo; and
WHEREAS, Licensee provides its telecommunications and/or Broadband 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 telecommunications and/or Broadband facilities
upon or within certain public rights of way within the corporate boundaries of the City in order to
provide telecommunications and/or Broadband services; and
WHEREAS, City is authorized under the constitution and laws of the State of Colorado to
grant consent to telecommunications and/or Broadband 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.
AGREEMENT
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 seq.), as amended.
2. (a) "Facilities" means all physical components of the Licensee used to provide
telecommunications and/or Broadband 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 and/or Broadband 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
any prior License Agreement between the City and Licensee.
(b) "Leased Facilities" means all physical components used by Licensee to
provide telecommunications and/or Broadband 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; telecommunications and/or Broadband
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 and/or
Broadband 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 spaces.
6. "PMC" shall mean the Pueblo Municipal Code, as amended, and as same may be
amended in the future.
7. "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, the 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 in, through, over, above, and along the City's Rights-of-Way 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 Agreement 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;
(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.
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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 confer only the right to make
reasonable use of the Rights of Way for Licensee's provision of telecommunications and/or
Broadband 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 is 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 & E91 I 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 six
dollars ($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
charge ("E911 Charge") of one dollar seventy-two cents ($1.72) per month per exchange access
facility, wireless communications access, and interconnected voice-over-internes-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 the same monthly E911 Charge to
the City as provided by §29-11-103(1), C.R.S.
ARTICLE V - SALES AND USE TAXES
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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 the 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 stormwater, 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 the 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,
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
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subsequently revised.
4. All construction, excavation, maintenance, and repair work done by Licensee shall
be done in a workmanlike and expeditious manner that 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 the 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 the 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 the
conduit of other telecommunications providers or utilities.
6. Licensee shall, upon reasonable notice of not less than sixty (60) days, 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 the 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 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 the City
for the costs thereof. In the event the City causes Licensee's facilities to be relocated,the City shall
be held harmless for any damages incurred to Licensee's Facilities during such relocation.
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Licensee may request an extension of time to relocate facilities due to the inability to relocate its
Facilities due to the actions or inactions of a third party which is unaffiliated with Licensee and
not under contract with or under the control of Licensee. Such request for extension shall not be
unreasonably withheld by the City.
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 the 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 that
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 the City for the costs thereof. In the event the City
causes Licensee's Facilities to be relocated, the City shall be held harmless for any damages
incurred to Licensee's Facilities during such relocation.
8. After execution of this License 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 the City is planning to develop a new telecommunications policy which will be
implemented through one or more ordinances or resolutions to be adopted by the City Council of
the 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 Effective Date, this License
Agreement or any provision thereof may be unilaterally revoked or canceled by the City without
cause and replaced with new terms and conditions which shall be made equally applicable within
each class of Broadband or telecommunications provider operating within the City.
3. If, during the term of this License Agreement, the City is authorized pursuant to
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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 the 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 five hundred (500) feet in length, Licensee
shall, whenever feasible, provide the City and all utilities, cable television franchisees, 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 the City, and such
utilities, cable television franchisees, authorized telecommunications providers, and local
exchange carriers. If the City desires additional conduit installed, it will so notify the Licensee and
the City shall be responsible for the additional incremental expense of 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 of 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 an installed network not involving
significant line extension or other excavations of limited scope.
3. Notwithstanding anything to the contrary in Section 2 of this Article VIII, 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, the City may request
Licensee to install one additional conduit for exclusive use by the 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 the additional incremental expense of installing such additional conduit,
handholes, and pullboxes.
ARTICLE IX - INDEMNIFICATION
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1. Licensee shall install, construct, maintain, and operate its telecommunications
and/or Broadband system in a reasonable manner and shall use commercially reasonable efforts to
provide reasonable protection against injury or damage to any and all persons or property. Licensee
agrees to indemnify, defend, and hold the 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 or 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 and/or Broadband 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. The 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.
2. The City shall provide prompt written 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. Licensee
shall have sole control over the defense, investigation, and all negotiations for the compromise or
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. The City shall provide Licensee with all reasonable cooperation, information, and
assistance in connection with the claim; provided, however, that failure by the City to provide
prompt notice of a claim; grant such sole control; and/or provide such cooperation, information
and assistance shall not relieve Licensee of its obligations under this Article IX, except to the
extent that the City is materially prejudiced by such failure. In the event that 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 attorneys' 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. Nothing herein shall limit the Licensee's obligation of full
indemnification under this License Agreement.
ARTICLE X - INSURANCE
Prior to the commencement of any installation of Facilities under this License Agreement,
Licensee shall procure and thereafter continuously maintain, for as long as this License Agreement
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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,
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 the 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 the 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, the
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 (1) 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 the 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 this License Agreement for cause on account of any default by
Licensee, the City shall provide Licensee with written notice of the default and afford Licensee a
reasonable period of not less than thirty (30) days in which to cure the default.
3. In the event Licensee abandons the telecommunications or Broadband 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 this License
Agreement is terminated or is canceled for any reason, then Licensee shall remove its
telecommunications or Broadband system,or the abandoned portions thereof in the case of a partial
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abandonment, at its expense. As an alternative to removal, if mutually agreed to by Licensee and
the City, the ownership of the telecommunications or Broadband system (or abandoned portions)
may be transferred to the City, in which event, all obligations and liabilities of Licensee under this
License Agreement in connection with the portion of the telecommunications or Broadband system
so transferred to the City shall terminate.
4. Licensee may cancel this License Agreement at any time, as described below, upon
ninety (90) days' written notice to the City, subject to the indemnification requirements of this
License Agreement, the removal provisions set forth in Section 3 of this Article XII above, and
any other provisions that survive the termination of this License 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: Clarity Telecom, LLC (D/B/A Bluepeak Fiber)
4600 S. Ulster St.
Suite 1300
Denver, CO 80237
with a copy to: Clarity Telecom, LLC (D/B/A Bluepeak Fiber)
4600 S. Ulster St.
Suite 1300
Denver, CO 80237
Attention: General Counsel
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 the City of such terms and conditions and Licensee shall have the
option to renegotiate with the City with respect to such terms and conditions.
ARTICLE XV - SUCCESSORS AND ASSIGNS
Licensee may sell,transfer, lease, or assign this License Agreement or its rights under this
License Agreement, in whole or in part, with prior thirty (30)days' written notice to the City if to:
(a) any entity controlling, controlled by, or under common control with Licensee; or (b) any
surviving successor entity or newly created successor entity in the event of a merger,
reorganization, or consolidation involving Licensee. 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. This
License Agreement and all other documents contemplated hereunder may be executed using
electronic signatures with delivery via facsimile transmission, by scanning and transmission of
electronic files in Portable Document Format (PDF) or other readily available file format, or by
copy transmitted via email, or by other electronic means and in one or more counterparts, each of
which shall be: (i) an original, and all of which taken together shall constitute one and the same
agreement, (ii)a valid and binding agreement and fully admissible under state and federal law, and
(iii) enforceable in accordance with its terms.
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 License 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 License Agreement shall be in the District Court located in Pueblo County, Colorado or the
Federal District Court for the District of Colorado to the extent the dispute involves a federal
question.
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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 License 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 License 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 License 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
The Licensee acknowledges that this License Agreement is public record within the
meaning of the Colorado Open Records Act, C.R.S. § 24-72-200.1 et seq. as the same may be
amended, and accordingly may be disclosed to the public.
ARTICLE XXI - AMENDMENT
This License 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 PROW. 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 License 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 License 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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IN WITNESS WHEREOF, Licensee and the City have executed this License Agreement
as of the Effective Date first above written and under the laws of the State of Colorado.
CITY OF PUEBLO,
A TEST: A Municipal Corporation
By:7(G�it �e,�JK '
City Clerk Mayor
[SEAL]
CLARITY TELECOM, LLC
(D/B/A BLUEPEAK FIBER),
A Delaware Limited Liability Company
ATTEST:
By: r
Title: Title: Chef syec kflVE OftCerz_
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