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HomeMy WebLinkAbout 14-29 Approving Telos Online, Inc. AgreementRESOLUTION NO. )A+*11 A RESOLUTION APPROVING A MICROWAVE EQUIPMENT LICENSE AGREEMENT WITH TELOS ONLINE, INC. FOR PLACEMENT OF A MICROWAVE RADIO TRANSMISSION FACILITY ON A TOWN -OWNED WATER TANK WHEREAS, Telos Online, Inc. ("Telos") desires to install on a Town -owned water tank a microwave radio transmission facility consisting of antennae and associated equipment; and WHEREAS, the Town is willing to grant Telos a license for such purpose, in the form of license agreement accompanying this Resolution, in exchange for Telos providing wireless Internet service to the Town's Public Works building; NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF THE TOWN OF FIRESTONE, COLORADO* 1. The proposed Revocable License Agreement ("Agreement") between the Town of Firestone and Telos Online, Inc. for the installation of a microwave radio transmission facility consisting of antennae and associated equipment on a Town -owned water tank is hereby approved in essentially the same form as the copy of such Agreement accompanying this Resolution. 2. The Mayor is authorized to execute the Agreement, except that the Mayor is hereby granted the authority to negotiate and approve such revisions to said Agreement as the Mayor determines are necessary or desirable for the protection of the Town, so long as the essential terms and conditions of the Agreement are not altered. 3. The Mayor, Town Manager and Town Staff are further authorized to do all things necessary on behalf of the Town to perform the obligations of the Town under the Agreement, and to execute and deliver any and all documents necessary to effect the license provided for under such Agreement, upon Telos's compliance with its obligations thereunder and all terms and conditions of said Agreement. INTRODUCED, READ AND ADOPTED this Iljmay of Y11, , 2014. ATTEST: �' '• f��Z' .arrs'saa ma Town Clerk TOWN OF FIRESTONE, COLORADO Paul Sorensen Mayor MICROWAVE EQUIPMENT LICENSE AGREEMENT This License Agreement ("Agreement") is entered into this day of , 2014, by and between Telos Online, Inc., a Colorado corporation whose address is 18198 Sagebrush Way, Brighton, CO 80603 ( "Telos" ), and City of Firestone, a Colorado municipal corporation whose address is 151 Grant Avenue, Firestone 80520 ( "Town" ). 1. Grant of License; Premises. Town hereby grants to Telos a license to attach, operate, maintain and repair a microwave radio transmission facility consisting of antennas and associated equipment (the "Facilities") on the rooftop of the Town -owned water tank site located outside Town limits in the Northwest One -Quarter, Section 33, Township 2 North, Range 67 West of the 66' P.M., County of Weld, State of Colorado (the "Premises"). The exact location of the Facilities on the Premises shall be as designated by the Town. 2. Installation. The Facilities shall be installed in strict compliance with plans and specifications approved by the Town Engineer in writing and in advance of installation. Any changes to the approved plans and specifications shall require the additional, prior written approval of the Town. Telos shall also follow and strictly comply with all directions of the Town regarding Telos's installation and maintenance of the Facilities. Initial installation of the Facilities and all maintenance and repair work shall be conducted in a manner so as to minimize disruptions to activities and uses of the Town. 3. Limited Use of Premises. The Premises are licensed to Telos only for the express purpose of installation, operation, maintenance and repair of the Facilities. Telos shall not permit the Facilities to be used by any other entity or for any other purpose without the prior written approval of the Town, as evidenced by motion or resolution of the Board of Trustees. 4. Term. The Term of this License shall be from May 15, 2014 ("Commencement Date") to May 155 2017 ("Expiration Date"). The Town grants to Telos the right to renew this Agreement for three (3) three (3) year terms on the same terms and conditions as are herein stated. In order to exercise this renewal option, Telos shall deliver to the Town written notice of Telos's intent to renew not less than sixty (60) days prior to expiration of this Agreement. If written notice to renew is not furnished, this Agreement will automatically renew for that 3 (three) year period. Facsimile transmissions & electronic mail are also acceptable means of communication. 5. Payment. Telos will provide the Town a wireless Internet connection of twenty megabytes (20 MB) of service for use in the Town's Public Works building located at 7500 Weld County Road 20, Firestone, CO 80504-6727in consideration for Telos's use of the Premise. Telos Online, Inc., will be responsible for insuring that this service is continued for the Term of this License. Telos shall be solely responsible at its expense for all costs and expenses related to the installation, operation, maintenance and repair of the Facilities. At the Town's option, Telos shall pay electricity charges for electricity used for the Facilities. 6. Premises Taken "As -Is"; Security of Property. Telos accepts the Premises in its current configuration and in an "as is" condition, without any implied warranties of habitability, fitness or suitability for Telos's purposes. The Town has no obligation to make improvements in order to satisfy the needs of Telos. The Town shall have no responsibility, liability, or obligation with respect to the safety or security of the Facilities, or any other property of Telos located at or near the Premises, it being acknowledged and understood by Telos that the safety and security of the Facilities is the sole responsibility and risk of Telos. 1 7. Ingress and Egress. A. The Town water tank site does not abut a public right -of --way. The Town hereby grants Telos a license to use the Town's 20' access easements on the northern boundary of the water tank site (the "Easements"), subject to the terms and conditions of that certain Easement by and between the Town and Public Service Company of Colorado dated December 5, 2005 and Subdivision Exemption SE-1080 recorded in the records of the Weld County Clerk and Recorder at Reception No. 347534 on May 11, 2007 (copies of which have been provided to Telos). Should the grantors of such Easements or their successors or assigns object to Telos's use of the Easements, Telos shall be solely responsible for obtaining any access easements or similar permissions needed for it to access the site from the public right -of --way. B. Within the water tank site parcel, access to and from the Premises shall be solely along routes designated by the Town. Telos may make use of a gate key provided by the Town for after-hours access; provided, however, that such key shall be used only by persons designated in advance to the Town. The Town may require that Telos be accompanied by the Town's personnel during any access to the Premises. Telos shall make every effort to coordinate with the Public Works Director in advance of all access to and activities upon the Premises. Telos shall maintain at the Premises and make available to the Town a log of all visits to the Premises, including the date of the visit and the name of Telos's employee, agent or contractor visiting the Premises. C. The Town shall have the right to enter into the Premises at any time during the term of this Agreement for any purpose or activity of the Town. If any such entry or activity requires disturbance of the antennae, the Town shall not be required to repair or replace any such disturbance. Except in the cases of emergency, the Town shall provide Telos forty-eight hours advance notice of any activity by the Town that will cause a disturbance to the Facilities. The Town shall have the right to place improvements on the Premises. 8. No Acquired Interest; Easements and Other Interests. A. Telos agrees it does not have or claim, and shall not at any time in the fixture have or claim, any ownership interest or estate in the Premises, or any other interest in real property included in the Premises, by virtue of this Agreement or any occupancy or use of the Premises. B. Without limiting the foregoing, Telos shall be solely responsible for obtaining any access easements or similar permissions needed for it to access the site from public rights -of --way. C. Telos understands that this Agreement is subject to all easements and other interests of record applicable to the Premises prior to the date of this Agreement. Telos shall be solely responsible for coordinating its activities hereunder with the holders of such franchise agreements or of such easements or other interests of record, and for obtaining any required permission for such activities from such holders if required by the terms of such franchises or easements or other interests. 9. Title. The Town represents and warrants to Telos that the Town owns the Premises and has full right to make this Agreement. 10. Communications Interference. Telos acknowledges that the Town and/or its fire district and emergency service providers ("Emergency Service Providers") operate, or may operate, on the Premises and other Town -owned property, radio, telecommunications, and other similar communications facilities and equipment for the purpose of providing municipal services, including but not limited to fire, emergency, and public safety services. Telos acknowledges and agrees that Town's 2 use and the Emergency Service Provider's use of such radio, telecommunications, and other similar facilities and equipment shall be paramount and shall take precedence over Telos's use, whether the Town's or the Emergency Service Provider's equipment predates or postdates the installation of the Facilities, and that Telos's use of the Premises shall not cause interference with the Town's or the Emergency Service Provider's facilities and equipment. The Town shall provide Telos with written notice of any claim that the Facilities are the cause of interference to the Town's or the Emergency Service Provider's telecommunications, and other similar communications facilities or equipment, or any of the Town's or the Emergency Service Provider's radio frequency operations. Telos shall investigate such claim of interference, working jointly, as may be required, with the Town and/or the affected Emergency Service Provider, and in the event that Telos's use is the sole or a contributing cause thereof, Telos shall, at its own expense eliminate such interference without modification to the facilities of the Town or the affected Emergency Service Provider. In the event Telos is unable to eliminate such interference within 30 days of being notified hereof, the Town at its option may terminate this Agreement. No additional cure period shall apply to any termination under this Section. 11. Maintenance. Telos agrees to take such actions as are necessary to ensure that its antennae and activities upon the Premises are operated and conducted in a good and safe condition and manner at all times. Telos shall maintain the Facilities so as to reasonably resemble and/or blend in appearance with the existing water tank structure. Telos shall be responsible at its expense for securing any approvals required by Weld County or any other governmental entities for the installation, operation and maintenance of the Facilities, and for ensuring the same are in full compliance with any approvals required by Weld County or such other govermnental entities or pursuant to the Firestone Municipal Code. Telos further agrees to comply at all times with all applicable laws, rules and regulations in Telos's use and occupancy of the Premises. 12. Protection of Town Facilities. In the exercise of its rights pursuant to this Agreement, Telos shall exercise reasonable care to prevent and avoid any damage to or interference with any of the Town's installations, buildings, structures, utilities, or improvements on, under, or adjacent to the Premises. Telos shall cease all such actions causing such damage or interference immediately upon notice from the Town. Telos shall be solely responsible for any damages suffered by the Town or others as a result of Telos's use and occupancy of the Premises. 13. Taxes. Telos acknowledges that the Town's property and improvements are currently exempt from taxation. Telos shall pay when due any personal property tax, real property tax or other tax or fee assessed on, or any portion of such taxes directly attributable to, the Facilities. 14. No Waste and Nuisance. During the term of this Agreement, Telos shall comply with all applicable laws affecting the Premises, the breach of which might result in any penalty on the Town of forfeiture of the Town's title to the Premises. Telos shall not commit, or suffer to be committed, any waste or nuisance on the Premises. 15. Utilities and Liens. If required by the Town, Telos shall be responsible for all utilities required by its use of the Premises. Utilities shall be installed only in locations and according to plans approved in advance by the Town. Telos shall not permit any mechanic's liens or other liens to be placed upon the Premises or any Town -owned property, and in the case of the filing of the same, will immediately obtain release of such lien. If any lien is not discharged to the satisfaction of the Town within 30 days, the Town shall have the right, but not the obligation, to pay and discharge the same and recover from Telos all payments made and all costs, attorneys' fees and other expenses incurred by the Town. 3 16. Assignment and Subleasing. Telos shall not assign or transfer this Agreement, or any interest herein, without the prior written consent of Town, and a consent to an assignment shall not be deemed to be a consent to any subsequent assignment. 17. Notices. All notices, demands or other writings which this Agreement requires to be delivered, or which may be delivered by either party hereto to the other shall be deemed to have been fully delivered, when made in writing and deposited in the United States mail, postage prepaid and delivered to the addresses listed above. Facsimile transmissions & electronic mail with proof of receipt are also means of delivering these communications. Any change of address must be given in writing to either party. l�. Hold Harmless. The Town and its agents and employees shall be held harmless and indemnified by Telos from any liability (including, reimbursement of reasonable legal fees and costs) for damages, injury or loss arising out of, resulting from, or in any way connected with, Telos's use and occupancy of the Premises and the Easements, unless such damages are caused by, or are the result of, willful misconduct or negligence of the Town or any of the Town's agents. The Town shall not be liable for damages for Telos's service loss, interruption, or other consequential damages of whatever kind or nature, regardless of the cause of such damages and Telos, and anyone claiming by and through such party, expressly waives all claims for such damages. The parties hereto understand and agree that the Town is relying on, and does not waive or intend to waive by any provision of this contract, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, 24-10-101 et. seq., 10 C.R.S., as from time to time amended, or otherwise available to the Town, its agents, or its employees. This Section shall survive the termination or expiration of this Agreement. 19. Insurance and Subrogation. (a) Telos, at Telos's sole cost and expense, shall procure and maintain on the Premises and on the Facilities, bodily injury and property damage insurance with a combined single limit of at least One Million and 00/100 Dollars ($1,000,000.00) per occurrence. Such insurance shall insure, on an occurrence basis, against all liability of Telos, its employees and agents arising out of or in connection with Telos's use of the Premises, all as provided for herein. (b) Telos shall also procure and maintain, and shall cause each subcontractor of Telos to procure and maintain, the minimum insurance coverages listed below: 1. Workers' Compensation insurance as required by the Labor Code of the State of Colorado and Employers Liability Insurance. Evidence of qualified self -insured status may be substituted. 2. Comprehensive Automobile Liability insurance with minimum combined single limits for bodily injury and property damage of not less than ONE MILLION DOLLARS ($1,000,000) each occurrence and ONE MILLION DOLLARS ($1,000,000) aggregate with respect to each owned, hired and/or non -owned vehicles assigned to or used in connection with Telos's rights or obligations of this Agreement. If Telos has no owned automobiles, each officer or employee of the Telos entering the Premises shall be required to keep in fill force and effect during the term of this Agreement automobile liability and physical damage insurance for any vehicle used on the Premises, in amounts not less than prescribed by the laws of the State of Colorado. (c) Telos shall not be relieved of any liability, claims, demands, or other obligations assumed pursuant to this Agreement by reason of its failure to procure or maintain insurance, or by reason of its failure to procure or maintain insurance in sufficient amounts, durations, or types. The coverages required above shall be procured and maintained with forms and insurers acceptable to the Town. All coverages shall be continuously maintained from the date of this Agreement. (d) Telos's general liability insurance and automobile liability insurance shall be endorsed to include the Town, and its elected and appointed officers and employees, as additional insureds, unless the Town in its sole discretion waives such requirement. Every policy required above shall be primary insurance, and any insurance carried by the Town, its officers, or its employees, shall be excess and not contributory insurance to that provided by Telos. Such policies shall contain a severability of interest provision. Telos shall be solely responsible for any deductible losses under each of the policies required above. (e) Certificates of insurance shall be provided by Telos as evidence that policies providing the required coverages, conditions, and minimum limits are in frill force and effect, and shall be subject to review and approval by the Town. No required coverage shall be cancelled, terminated or materially changed until at least 30 days prior written notice has been given to the Town. (f) Faihlre on the part of Telos to procure or maintain policies providing the required coverages, conditions, and minimum limits shall constitute a material breach of contract upon which the Town may immediately terminate this Agreement, or at its discretion may procure or renew any such policy or any extended reporting period thereto and may pay any and all premiums in connection therewith, and all monies so paid by the Town shall be repaid by Telos within thirty days. 20. Telos Improvements. Upon prior written approval of the Town, Telos may make such improvements on the Premises as it may deem necessary for the construction, maintenance and operation of a microwave transmitter site. 21. Right to Terminate. Either party may terminate this Agreement, with cause, by giving ninety (90) days written notice signed by an authorized agent of that party. This Notice may be by U.S. Postal Service, Facsimile or Electronic Mail provided that the party has verified receipt, in writing, of that Notice to the other party. Valid cause for this Termination consists of failure to perform material dirties under the terms of this Agreement. Telos may terminate this Agreement, at its option, after giving not less than thirty (30) days' notice to the Town, if. (a) Telos determines that technical or interference problems at the Premises or from nearby hansmitting facilities, which problems cannot reasonably be corrected, preclude Telos from using the Premises for its intended purpose; (b) Telos determines that Telos doesn't have acceptable and legally enforceable means of ingress and regress to the Premises; (c) Utilities necessary for Telos's use of the Premises are not available to the Premises; (d) The Premises are damaged or destroyed to an extent which prohibits or materially interferes with Telos's use of Premises or Telos's equipment and attachments thereto; The Town may terminate the Agreement on 180 days' written notice by the Town in the event the Town determines to demolish, remodel, reconstruct or use all or a portion of the Premises in a manner the 5 Town in its sole discretion determines will be incompatible with the continuation of the license herein given, or if the Town determines in its sole discretion that the presence of the antennae adversely affects the Town's use, maintenance or operation of its water tank, or that all or a portion of the Premises is needed for the exclusive use of the Town. 22. Removal of Facilities and Performance Guarantee. No later than sixty (60) days after the termination of this Agreement, by expiration or otherwise, Telos will, at its sole expense, remove the Facilities and its personal property and fixtures from the Premises, repair any damage to the Premises, and return the Premises to the Town in good, usable condition, normal wear and tear and casualty excepted. If Telos fails to remove the Facilities within sixty (60) days of the termination or expiration of this Agreement, the Town shall notify Telos in writing that the Town will remove the Facilities and store the same at Telos's expense. Failure of Telos to remove the Facilities from storage and to reimburse the Town for any and all reasonable costs actually incurred in such removal and storage ("Costs"), within sixty (60) days of removal of the Facilities, will result in the Facilities being deemed abandoned and title of same will vest in the Town. The Town shall have no obligation or liability to Telos in connection with any property or fixtures remaining on the Premises at the expiration of such 60-day period. The duties of Telos described in this Section shall survive termination of this Agreement. 23. Binding on Successors. The covenants and conditions contained herein shall apply to and bind the heirs, successors, executors, administrators and assigns of the parties hereto. 24. Governing Law; Venue. The parties intend that this Agreement and the relationship of the parties shall be governed by the laws of the State of Colorado. In the event of any litigation regarding this Agreement, the parties agree that venue for such action shall be in Weld County, Colorado. 25. Entire Agreement. This Agreement contain the entire agreement of the parties and there are no other promises or conditions to this Agreement, either written or oral. This Agreement supersedes any prior written or oral agreements between the parties 26. Hazardous Waste. A. The Town represents and warrants that to the best of the Town's knowledge, the Premises have never been used for treahnent, storage or disposal of any solid or liquid waste which is classified as toxic or hazardous under any federal, state or local law or regulation ("Hazardous Substance") in effect as of the Commencement Date, and the Premises (including the subsurface water) has not been contaminated by any such waste or hazardous material. The Town and Telos shall not introduce or use any Hazardous Substance on the Property in violation of any applicable law. B. Telos agrees to defend, indemnify and hold harmless the Town from and against any and all administrative and judicial actions and rulings, claims, causes of action, demands and liability (collectively, "Claims") including, but not limited to, damages, costs, expenses, assessments, penalties, fines, losses, judgments and reasonable attorney fees that the Town may suffer or incur due to the existence or discovery of any Hazardous Substances on the Property or the migration of any Hazardous Substance to other properties or the release of any Hazardous Substance into the environment (collectively, "Actions"), that relate to or arise from Telos's activities on the Premises. The indemnification in this section specifically includes, without limitation, costs incurred in connection with any investigation of site conditions or any cleanup, remedial, removal or restoration work required by any govermnental authority. 6 C. If Telos becomes aware of any Hazardous Substance on the Property, or any environmental or industrial hygiene condition or matter relating to the Property that, in Telos's sole determination, renders the condition of the Premises or Property unsuitable for Telos's use, or if Telos believes that the licensing or continued licensing of the Premises would expose Telos to undue risks of government action, intervention or third -party liability, Teloswill have the right, in addition to any other rights it may have at law or in equity, to terminate the Agreement upon notice to the Town. D. This Section shall survive the termination or expiration of this Agreement. 27. Relationship Between Parties. Nothing herein contained shall be deemed or constructed by the parties hereto, nor by any third party, as creating the relationship of principal and agent, or of partnership, or of joint venture between the parties hereto, it being understood and agreed that neither the provisions hereof nor any acts of the parties shall be deemed to create any relationship between the parties hereto other than the relationship of licensor and licensee. 28. Severability. If any section, subsection, or provision of this Agreement or the application thereof shall be held to be invalid and unenforceable for any reason, each remaining section, subsection, term or provision of this Agreement shall be valid or enforceable to the fullest extent permitted by law. IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the date below. TOWN OF FIRESTONE: BY: Paul Sorensen TITLE: Mayor DATE: 11 TELOS ONLINE, INC.: BY: TITLE: DATE: