HomeMy WebLinkAbout10380ORDINANCE NO. 10380
AN ORDINANCE APPROVING AN EXCHANGE AGREEMENT
BETWEEN THE CITY OF PUEBLO AND BIF IV INTREPID
OPCO, LLC, ALLOWING FOR THE USE OF A CITY-OWNED
CONDUIT FOR THE INSTALLATION OF INTREPID’S FIBER
OPTIC PATHWAY IN EXCHANGE FOR TWELVE (12) FIBER
STRANDS FOR THE CITY’S EXCLUSIVE USE, AND
AUTHORIZING THE MAYOR TO EXECUTE SAME
WHEREAS, BIF IV Intrepid OpCo, LLC (“Intrepid”) desires to access, occupy, and utilize
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space within a conduit owned by the City traversing the 8 Street Bridge in Pueblo, Colorado for
the purpose of installing, constructing, operating, and maintaining fiber
WHEREAS, the City desires to utilize and operate a fiber pathway along a planned
running line cable to be constructed and installed by Intrepid at the Data Center at 317 N. Main
Street, Pueblo, Colorado, and Intrepid agrees thereto; NOW, THEREFORE,
BE IT ORDAINED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The Exchange Agreement (“Agreement”) between the City of Pueblo, a Municipal
Corporation, and BIF IV Intrepid OpCo, LLC for the exchange of fiberoptic conduit space in
return for twelve strands of fiber, 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 hereby authorized to execute said Agreement for and on behalf of the City,
where the Mayor may execute the Agreement by electronic signature and such electronic
signature shall be attributable to the Mayor and the City of Pueblo.
SECTION 3.
The officers and staff of the City are authorized to perform all acts consistent with the
intent of this Ordinance to implement the transaction described herein.
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 January 23, 2023 .
Final adoption of Ordinance by City Council on February 13, 2023 .
President of City Council
Action by the Mayor:
☒ Approved on February 15, 2023 .
□ 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
Deputy City Clerk
City Clerk's Office Item # R6
Background Paper for Proposed
Ordinance
COUNCIL MEETING DATE: January 23, 2023
TO: President Heather Graham and Members of City Council
CC: Mayor Nicholas A. Gradisar
VIA: Marisa Stoller, City Clerk
FROM: Lori Pinz, Director Information Technology
AN ORDINANCE APPROVING AN EXCHANGE AGREEMENT BETWEEN
SUBJECT:
THE CITY OF PUEBLO AND BIF IV INTREPID OPCO, LLC, ALLOWING
FOR THE USE OF A CITY-OWNED CONDUIT FOR THE INSTALLATION
OF INTREPID’S FIBER OPTIC PATHWAY IN EXCHANGE FOR TWELVE
(12) FIBER STRANDS FOR THE CITY’S EXCLUSIVE USE, AND
AUTHORIZING THE MAYOR TO EXECUTE SAME
SUMMARY:
This Ordinance approves the attached Exchange Agreement between the City of Pueblo
and BIF IV Intrepid OpCo, LLC, allowing for the use of a city-owned conduit in exchange
for twelve (12) fiber strands for the City’s exclusive use.
PREVIOUS COUNCIL ACTION:
City entered into a License Agreement dated April 11, 2022, granting Intrepid the right to
install facilities upon or within the corporate boundaries of the City to provide
Telecommunications Services.
BACKGROUND:
Intrepid is installing fiber-optic infrastructure allowing broadband providers to provide
high-speed internet services to the home and businesses in our community. Intrepid
desires to access, occupy, and utilize space within a conduit owned by the City which
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traverses the 8 Street Bridge in exchange for twelve (12) fiber strands that will be used
to expand or provide network connectivity and services for the City of Pueblo’s
departments. These strands will be for the exclusive use of the City’s Information
Technology Department. The City will access the use of these fibers at 317 N. Main
where the City’s network already has a presence.
FINANCIAL IMPLICATIONS:
This is a no-cost agreement.
BOARD/COMMISSION RECOMMENDATION:
Not applicable to this Ordinance.
STAKEHOLDER PROCESS:
Not applicable to this Ordinance.
ALTERNATIVES:
If City Council does not approve this Ordinance, the City of Pueblo will not receive the
dedicated fiber strands, and Intrepid will have to explore alternative options for their
buildout of high-speed internet to the eastside community.
RECOMMENDATION:
Approval of the Ordinance.
ATTACHMENTS:
None
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT(the "Exchange Agreement") is made and entered into
as of this 5th day of January 2023 (the "Effective Date") by and between BIF IV Intrepid
OpCo, LLC, a Delaware limited liability company ("Intrepid"), and the City of Pueblo, a
Municipal Corporation ("City") (collectively the "Parties" and individually a"Party").
WHEREAS, Intrepid and City entered into a License Agreement dated April 11,2022 (the
"License Agreement") pursuant to which the City granted the right to Intrepid to install Facilities
upon or within the corporate boundaries of the City upon certain terms and conditions in order for
Intrepid to provide Telecommunications Services ("Facilities" and "Telecommunications
Services"defined as set forth in the License Agreement);
WHEREAS, Intrepid desires to access, occupy, and utilize space within a conduit owned
by the City traversing the 8th Street Bridge in Pueblo, Colorado, described and mapped in Exhibit
A, attached hereto and incorporated herein by reference, (the "Pathway") for the purpose of
installing, constructing, operating, and maintaining fiber during the term of the License
Agreement;
WHEREAS, City is authorized to and has agreed to grant the right to Intrepid to access,
occupy,and utilize space within the Pathway for the purpose of installing,constructing,operating,
and maintaining Pathway Fiber(as defined in Section 2) pursuant to the terms of this agreement;
WHEREAS, City desires to utilize and operate a fiber pathway along a planned running
line cable to be constructed and installed by Intrepid at the Data Center at 317 N. Main Street,
Pueblo, Colorado, and Intrepid agrees thereto.
NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth
in this Exchange Agreement, the parties agree as follows:
I. Relation to License Agreement. This Exchange Agreement does not extend the terms of
the License Agreement nor otherwise grant Intrepid additional rights to the public right of way or
City property. The Pathway conduit is solely owned by the City and not part of the public right of
way. This Exchange Agreement only grants Intrepid the limited right to use the Pathway in
accordance with the terms hereof.
2. License to Intrepid.
a. Subject to Intrepid's compliance at all times with all of the terms and conditions of this
Exchange Agreement, 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 Intrepid a non-exclusive revocable
license to reasonably construct, install, operate, and maintain not more than one (1) fiber
optic cable run within the Pathway (the "Pathway Fiber"), where the Pathway is owned
solely by the City. The City will provide Intrepid access to and use of the Pathway for the
construction, installation, operation, and maintenance of Intrepid's Pathway Fiber no later
than thirty (30) days after the Effective Date of this Exchange Agreement.
b. The license granted herein to make reasonable use of the Pathway 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 Pathway to any other person or entity. City may alter, move, or
otherwise change the Pathway without the consent of Intrepid and without causing a default
of this agreement. Said changes shall not in any way make City liable to Intrepid.
c. The City retains the following rights with regards to this license:
i. To use, control, and regulate the use of City rights of way and the areas above,
below, and surrounding the Pathway; and
ii. To require the removal or relocation of any of the fiber installed by Intrepid within
the Pathway, in the sole judgment of the City for any public or municipal purpose
or project; and
iii. To terminate and revoke the license at will, with or without cause, upon sixty (60)
days prior written notice to Intrepid. Upon revocation of the license by City, the
term of this agreement shall end, Intrepid's rights to use the Pathway shall cease,
and City's right to use Intrepid's fiber detailed in Section 4 below shall terminate.
d. The license granted herein to make reasonable use of the Pathway shall not be deemed to
grant authorization to construct or operate Wireless Communications Facilities or other
Facilities beyond the scope of the License Agreement, as those terms are defined therein.
Authorization for same must be obtained through a separate agreement specifically
permitting the use.
3. Use of Pathway.
a. Pathway Fiber shall be located, installed, and maintained by Intrepid so that there is no
danger to the lives, health, or safety of persons, nor interference with any public
improvements of the City or other governmental entities (including any storm water,
sanitary sewer or water utilities or enterprises) in place or that may be put in place, nor
shall the location, installation, or maintenance of the Pathway Fiber 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 Pathway Fiber shall be installed and maintained so
as to cause minimum interference with the rights and reasonable convenience of property
owners adjoining the Pathway.
b. Prior to construction, installation, operation, and maintenance of Pathway Fiber in the
Pathway, Intrepid shall furnish to the City the general schematic plans for the Pathway
Fiber. In addition, Intrepid shall assess and report on the impact of its proposed
construction on the City environment. Such plans may be reviewed by the City to ensure:
(i)that all applicable laws, including building and zoning codes and air and water pollution
regulations, are complied with; (ii) that aesthetic and good planning principles have been
given due consideration; and (iii) that adverse impact on the environment has been
minimized. Intrepid shall comply with all regulatory requirements of the City and shall
incorporate all other reasonable changes to its plans requested by the City.
c. All construction, installation, operation, and maintenance of Intrepid's Pathway Fiber in
the Pathway shall be the responsibility of Intrepid and paid for solely by Intrepid. All
construction, excavation, maintenance, and repair work done by Intrepid shall be done in
a workmanlike and expeditious manner which minimizes the inconvenience to the City,
the general public, and individuals. Intrepid shall be liable for any damage to the City or
City owned property caused by Intrepid. All such construction, excavation, maintenance,
and repair work done by Intrepid shall comply with all applicable codes of the City and the
State of Colorado,and Intrepid 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 Intrepid to perform
corrective work. All public and private property disturbed by Intrepid's activities shall be
promptly restored by Intrepid at its own expense to substantially former condition, subject
to inspection by the City's Director of Public Works or their designee and compliance by
Intrepid with any reasonable remedial action required by said official pursuant to the
inspection. Intrepid shall be liable to City for the full cost of restoring any public property
not promptly remedied by Intrepid.
d. Intrepid shall, upon reasonable notice and at its sole cost and expense, remove and relocate
its Pathway Fiber from the Pathway 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 other 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 a right of way by the
City. In the event Intrepid fails to act within a reasonably allocated time, the City may
cause Intrepid's Pathway Fiber to be relocated, and Intrepid shall be liable to City for the
costs thereof. In the event City causes Intrepid's Pathway Fiber to be relocated after
Intrepid's failure to act within a reasonable time, City shall be held harmless for any
damages incurred to Intrepid's Pathway Fiber or other property during such relocation.
e. In the event Intrepid abandons the Pathway Fiber, or a certain part thereof, under the terms
of this Exchange Agreement, or fails to use it for a period of one (1) year, or in the event
the term of this Exchange Agreement or the License Agreement expires or is terminated or
is canceled for any reason,then Intrepid shall remove its Pathway Fiber, 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 Intrepid and the City, the ownership of the Pathway
Fiber, or its abandoned portions, may be transferred to the City, in which event, all
obligations and liabilities of Intrepid under this Exchange Agreement in connection with
the portion of the Pathway Fiber so transferred to City shall terminate.
f. The license granted by this agreement confers only the right to make reasonable use of the
Pathway for Intrepid's provision of Telecommunication Services and it is expressly
conditioned that Intrepid 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 USC §522(6)), without proper local,
state, and federal authorization, as required by law. Additionally, Intrepid shall
contractually prohibit any customer of Intrepid from using its network, including the
Pathway Fiber, in Pueblo for the provision of cable services unless and until such customer
has received such proper legal authorization to provide cable services.
g. Legal title to the Pathway and all other conduit and municipal property shall remain with
the City, and nothing herein shall be deemed to relinquish City's right, title, interest, or
control of the same.
4. Grant to City.
a. In consideration for the revocable license allowing Intrepid's use of the Pathway, and as a
portion of the compensation to the public for special use of such municipal property,
Intrepid grants to City an indefeasible right to use twelve (12)fiber strands,to be approved
and accepted by City, (the "Recipient Fibers") in its planned running line cable from a
demarcation point at the Intrepid Data Center at 317 N. Main Street, Pueblo, Colorado to
a manhole, to be placed by Intrepid, within 500 feet of the intersection of 8th Street and
Erie Street in Pueblo, Colorado, described and mapped in Exhibit B, attached hereto and
incorporated herein by reference. Intrepid will provide the City with a handoff to the
Recipient Fiber in said manhole. City's right to the Recipient Fiber shall only terminate
upon the termination or expiration or this agreement. Each individual fiber strand in the
Recipient Fiber will comply with generally accepted industry standards. Intrepid agrees to
deliver to City the Recipient Fibers within thirty (30) days of the Effective Date.
b. Legal title to Intrepid's fiber, 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 cables shall
be held by Intrepid. Nothing contained in this agreement, nor any use, however extended,
of the Recipient Fibers, nor any placement of City's facilities shall create or vest in City
any right, title, or interest in or to any real or personal property owned by Intrepid, other
than the indefeasible right to use the Recipient Fibers.
c. 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
Intrepid.
d. City shall be permitted to connect the Recipient Fibers to, and use the fiber for the benefit
of, City and all of City's instrumentalities, departments, legal enterprises, and affiliated
entities without limitation. This authorization specifically allows City to use Recipient
Fibers to connect City facilities to any exchange or interexchange carrier or to the internet
backbone. City may connect the Recipient Fibers to other governmental entities, or allow
use by other governmental entities, for governmental purposes.
e. Intrepid 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 of this
agreement and provided that such access points do not materially interfere with any of
Intrepid's Facilities.
f. City shall have no limitations on the types of electronics or technologies employed to
utilize the Recipient Fibers subject to commercially reasonable safety procedures.
g. If City desires to connect other fiber optic cables to the Recipient Fibers or create
connections with buildings or other structures along the network route, Intrepid will
cooperate with City for City to acquire access. City shall have the right 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, Intrepid will place connecting
facilities within public rights of way between the Recipient Fibers and such adjoining
properties, subject to the ability to do so in accordance with the License Agreement. Such
placement of connecting facilities by Intrepid at the request of City shall be at City's cost
and expense.
5. Maintenance of Recipient Fiber.
a. Intrepid shall maintain and repair or replace the Recipient Fibers so as to assure continuous
conformity of the Recipient Fibers with their respective operating specifications.
b. Intrepid shall respond in a timely manner to any interruption of service or failure of the
Recipient Fibers to operate in accordance with this agreement. Intrepid will immediately
notify City upon learning of any material damage or outage to the Recipient Fiber. Intrepid
will be responsible for the repair of the Recipient Fiber up to the connection with City-
owned fiber.
c. Intrepid 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 Intrepid by City.
d. Intrepid shall be responsible for routine maintenance of all cable in its network and costs
thereof not specifically due to requirements of City.
e. If, during the term of this agreement, (i) Intrepid is required by a governmental authority
with jurisdiction to relocate any portion of its network and such relocation affects the
Recipient Fibers, including any condemnation or taking under the power of eminent
domain, or (ii) with City's consent upon Intrepid's request, Intrepid may relocate such
portion of its network and shall provide City sixty (60) days prior written notice of any
such relocation, if possible. Intrepid may 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 restrict City in
requiring specific relocation arrangements, physical locations, or materials in connection
with City's control over public rights of way, including excavation permits.
6. Term and Termination.
a. The term of this Exchange Agreement shall be coterminous with the term of the License
Agreement. Should the License Agreement be renewed or otherwise extended, this
Exchange Agreement will be automatically extended for the same term and continue to run
conterminously.
b. City may terminate this Exchange Agreement at any time upon sixty (60) days' prior
written notice to Intrepid. Intrepid may terminate this Agreement at any time upon one
hundred eighty(180)days' prior written notice to the City. Upon termination of the License
Agreement for any reason, this Exchange Agreement shall automatically terminate. The
indemnification provisions of Section 8(a) of this agreement shall survive termination.
c. Upon expiration of the term of this agreement or termination, all rights of City to the
Recipient Fibers shall concurrently terminate, and City shall promptly thereafter
disconnect its equipment, power, and other items from the Recipient Fibers.
7. Remedies.
a. In the event of any breach of the terms of this agreement by either party,the non-breaching
party shall have the right to terminate this agreement, but such remedy shall not be
exclusive of any other remedies available to the non-breaching party at law or in equity. In
the event either party is required to commence an action to enforce its rights under this
agreement or to obtain the remedies provided above and substantially prevails therein,such
party shall be entitled to recover its costs.
b. 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 thirty (30) days within which to cure the default. Should the defaulting party make
continuous good faith efforts to cure within the thirty (30) day period but be unable to cure
the default within said time, the defaulting party shall have an additional thirty (30) days
to cure.
8. Indemnification and Insurance.
a. Intrepid shall install, construct, maintain, and operate its Pathway Fiber in a safe manner
providing reasonable protection against injury or damage to any and all persons or
property. Intrepid 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, in whole
or in part, from Intrepid's negligent acts or omissions of failure to comply with the
provisions of this Exchange Agreement, and from all damages or penalties to the extent
arising out of the installation, construction, operation, or maintenance of Intrepid's
Pathway Fiber, whether or not any act or omission complained of is authorized, allowed,
or prohibited by this Exchange Agreement, except to the extent such damages or penalties
result from the willful and wanton misconduct of the City. City shall not be liable for, and
Intrepid shall indemnify, defend, and hold the City harmless from all costs, damages and
claims to the extent arising from or relating to delay by Intrepid in performing its
obligations hereunder, for any cause whatsoever. Intrepid 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 Intrepid fails to timely assume the defense
of any such claim which has been properly and promptly tendered to it, Intrepid 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.
b. Prior to commencement of any installation of Pathway Fiber under this Exchange
Agreement, Intrepid shall procure and thereafter continuously maintain, for as long as this
Exchange Agreement remains in effect, at Intrepid'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 Exchange Agreement
shall be defined as an insured contract. The policy shall identify the City as an additional
insured, shall contain a waiver of the 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 Pathway Fiber,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 herein. In the event the certificate states that it confers no rights upon
the certificate holder,the City may require Intrepid to furnish a complete copy of the policy
including all declarations and endorsements.
9. Sales and Use Tax. Intrepid agrees to obtain a sales and use tax license from the City and
to comply with all applicable provisions of Title XIV of the Pueblo Municipal Code. Intrepid
acknowledges that its sale of Telecommunications Services or sale or lease of data circuits to its
customers is subject to City's sales tax ordinance, and Intrepid agrees to collect such taxes from
its customers and promptly remit same to the City in accordance with the Pueblo Municipal Code.
10. Notices. Except as otherwise provided herein,notice under this Exchange 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 Place
Pueblo, CO 81003
with a copy to: Director of Information Technology
200 S. Main Street
Pueblo, CO 81003
If to Intrepid: BIF IV Intrepid OpCo, LLC
Brookfield Place
250 Vesey Street
New York,NY 10281-1023
With 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
11. Additional Rights. The rights established hereunder shall be in addition to any rights
contained in the applicable License Agreement and do not limit or otherwise supersede any terms
and conditions of the applicable License Agreement.
12. Governing Law and Venue. This Exchange Agreement shall be governed and construed
in accordance with the laws of the State of Colorado, without regard to its choice of law rules.
Venue for any proceeding brought pursuant to this Exchange Agreement shall be in the District
Court located in Pueblo County, Colorado.
13. Final Agreement; Amendment. This Exchange Agreement, including the exhibits
hereto, constitutes the entire understanding and agreement between the parties with respect to the
subject matter herein. This Exchange Agreement may only be modified or supplemented upon
mutual agreement through an instrument executed by authorized representatives of both
parties. No failure by either party to enforce any right(s) hereunder shall constitute a waiver of
such right(s).This Exchange Agreement may be executed in one or more counterparts,all of which
taken together shall constitute one and the same instrument.
14. 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.
15. Limitation of Liability. In no event shall either Party be liable to the other Party for
indirect or consequential damages. This is a no charge agreement. Neither party shall charge the
other for use of the Pathway or Recipient Fibers, as applicable, and may not obtain monetary
damages from the other, except as set forth herein.
16. Relationship. Nothing in this Exchange Agreement is intended to,nor shall be deemed to
constitute, a partnership or joint venture between the Parties, or to create any agency or partner
relationship between the Parties. Neither Party shall hold itself out as a partner, joint venture,
agent, or representative of the other under this Agreement.
17. Assignment. This Exchange Agreement shall not be assigned by Intrepid without the prior
written consent of the City, which consent may be granted, denied, or conditioned in City's sole
and absolute discretion. Notwithstanding the foregoing, if the License Agreement is assigned by
Intrepid to a third party in compliance with the terms thereof,then Intrepid's rights and obligations
under this Exchange Agreement shall be deemed to be assigned to the same assignee.
18. No Third Party Beneficiaries; No Waiver of Immunities. Nothing in this Exchange
Agreement is intended, nor should it be construed, to create any rights, claims, or benefits or
assume any liability for or on behalf of any third party, or to waive any immunities or limitations
conferred under federal or state law, including but not limited to the Colorado Governmental
Immunity Act, § 24-10-101 et seq., C.R.S.
19. No Multi-year Fiscal Obligation on City. This Exchange Agreement is expressly made
subject to the limitations of the Colorado Constitution. Nothing herein shall constitute, nor be
deemed to constitute,the creation of a debt or multi-year fiscal obligation or an obligation of future
appropriations by the City Council of Pueblo, contrary to Article X, §20 of the Colorado
Constitution or any other constitutional, statutory or charter debt limitation. Notwithstanding any
other provision of this agreement,with respect to any financial obligation of City which may arise
under this agreement in any fiscal year, in the event the budget or other means of appropriations
for any such year fails to provide funds in sufficient amounts to discharge such obligation, such
failure shall not constitute a default by or breach of this agreement, including any sub-agreement,
attachment, schedule or exhibit thereto, by the City. City may in its sole and absolute discretion
terminate this agreement for reasons of non-appropriation immediately upon written notice without
causing default or breach.
20. Authority of Signers. Each person signing this Exchange Agreement on behalf of a party
represents and warrants that he or she has the requisite power and authority to enter into, execute,
and deliver this agreement on behalf of such party and that this agreement is a valid and legally
binding obligation of such party enforceable against it in accordance with its terms.
21. Electronic Signatures. This Exchange 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.
IN WITNESS WHEREOF,each of the parties has entered into this Exchange Agreement as of the
Effective Date written above.
BIF IV Intrepid OpCo, LLC City of Pueblo,a Municipal Corporation
B41111P/ // / y
Y B
Name Jeffrey Polachek Name , jj€f %41 t r
Title Head of Operations &Construction Title
Date 01/05/2023 Date O� `/C—o/067...?
EXHIBIT A
Description of the Pathway
The Pathway refers to the conduit pathway owned by City, which crosses the 8th Street bridge
from the manhole located at I-25 to the manhole located at Albany Street in Pueblo, Colorado.
Map of the same follows:
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EXHIBIT B
Description of the Recipient Fiber
Intrepid will provide twelve (12) fibers in a buffer tube to the City of Pueblo from the 4th and
Court Street demarcation(1-MH)to 8th Street and Erie Avenue(2-MH). The map of the same will
be found in Exhibit A.