HomeMy WebLinkAbout25-95 Lightgig Communications, LLC. Non-Exclusive Master Right of Way Use Agmt Fiber Optic Network 08-27-2025RESOLUTION NO. 25-95
A RESOLUTION OF THE BOARD OF TRUSTEES OF THE TOWN OF
FIRESTONE, COLORADO, APPROVING A NON-EXCLUSIVE MASTER
RIGHT-OF-WAY USE AGREEMENT BETWEEN THE TOWN OF
FIRESTONE AND LIGHTGIG COMMUNICATIONS, LLC FOR THE
INSTALLATION AND OPERATION OF FIBER OPTIC NETWORK
EQUIPMENT IN TOWN -CONTROLLED RIGHTS -OF -WAY
WHEREAS, to supply fiberoptic and/or broadband internet services to its prospective
customers, LightGig Communications, LLC (LightGig") desires to install a fiber optic network,
which includes fiber optic lines and related equipment, in various locations within the Town's
Rights -of -Way; and
WHEREAS, the Town and LightGig wish to define the terms of LightGig's use of Town
right-of-way for the above -stated purpose (the "Use Agreement"); and
WHEREAS, the Use Agreement requires LightGig to obtain a supplemental site license
from the Town for each public right-of-way segment in which LightGig desires to locate,
construct, operate, control and maintain its fiber optic network equipment before commencing
construction of such network equipment at that particular right-of-way location (the "Supplemental
Site License"); and
WHEREAS, LightGig and the Town wish to define the terms of LightGig's license to
construct, install and operate its fiber optic network equipment; and
WHEREAS, the Use Agreement and Supplemental Site License Agreement, working
together, clearly define the rights and responsibilities of the parties. in relation to the LightGig's
construction and use of its own fiber optic network equipment.
NOW, THEREFORE, BE IT RESOLVED BY THE BOARD OF TRUSTEES OF
THE TOWN OF FIRESTONE, COLORADO:
Section 1. The Master License Agreement between the Town of Firestone and
LightGig Communications, LLC, in a form substantially similar to the form attached hereto as
Exhibit A is hereby approved.
Section 2. The Supplemental Site License Agreement between the Town of Firestone
and LightGig Communications, LLC, in a form substantially similar to the form attached hereto as
Exhibit B, is hereby approved.
Section 3. The Mayor is authorized to sign the Use Agreement on behalf of the Town.
Section 4. The Town Manager is hereby authorized to execute the Supplemental Site
License Agreement on behalf of the Town, to the extent consistent with the Town Manager's
spending authority,
Section . `1 he [own Manager. or his designee. is authorized to hereafter amend the
terins and conditions of the Supplemental Site I icense Agreement in conjunction with future
planned fiber optic network equipment installations in I"own-c ntrc lied right-of-way by
LilltCTi,, Communications, I I.C.
PASSED AND ADOPTED this 27th
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r 1 ranados I,rmna, CMC, Town Clerk
arshall LiIt Martin, Ton Attorneyt°'
EXHIBITA
[Master Fiber Network ROW Use Agreement]
EXHIBIT B
[Supplemental Site License]
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SUPPLEMENTAL SITE LICENSE AGREEMENT
TT 1 S SUPPLEMENTAL SI`IAE I.ICL S AG b FMEN f, is entered into this day
of () ("Eff ..ctiv Date") between the "I'ow of 34 ix tone (i own") and
("Compan ₹") (collectively, the 'Paiti s"i);
Section 1. S1cmentalSite License. The 'rl oven grants to Companya non-exclusive,
revocable Supplemental Site License to locate, construct, operate, control and maintain its
Network Equipment, as referenced in that certain Master Tight -of- ..y Use Agreement in
co anection with the o�?era,tion of Company's Network, between Licensor and Company dated
0 (the "Use Agreement"), within the Public Right -gat -Way segment shown
in Exhibit A. attached hereto and incorporated herein by this reference ("Lquipment Location",).
Section 2p Incor tfration off se A-reement. All of the terms and conditions of the Use
Agreement are incorporated herein by reference and made a part hereof without the necessity of
repeating or attaching the Use Agreement. in the event of a contradiction, modification or
inconsistency between the terms of the I. se Agreement and this Supplemental Site License, the
terms of this Supplemental Site License shall govern. Capitalized terms used in this Supplemental.
Site License shall have the >same meaning described for them in the Use Agreement unless
otherwise indicated herein.
Section 3. Plan and Profile. Plans and profiles for the construction and installation of
the Network Fquipment at the I quipinent Location shall be submitted to and approved by the
Town in writing before beginning any work within the Public Tight-of-Waay or installation of such
Network Equipment. "As -Built" drawings with respect to the Network Equipment will be provided
to the I`own upon completion of installation..
Section 4. Network T quipmea t. the Network Equipment to be installed at the
Equipment Location is described in Attachment I, Table 1, attached hereto and incorporated
herein by this reference.
Section . l ermn of Su pl mental Site License. The term of this Supplemental Site
License shall be as set forth in Section 2 of the Use Agreement.
Section 6. Commencement. Date of Sup mental Site license. T he commencement
date of this Supplemental Site I icense is the date ( omnpany completes installation of its Network:
Equipment at the Equipment Location ('installation Date").
Section 7. A,pprod a s. It is understood and agreed the C"ompany's ability to install its
Network Equipment in the Public Right -of A ay, is contingent upon its obtaining all of the
appropriate certificates, permits and other approvals (collectively the 'Governmental Approvals")
that may be required under the applicable Town ordinances, which shall not be unreasonably
withheld by the Town. In the event that (i) any of such applications for such Governmental
Approvals should be finally rejected; (ii) any Governmental Approval issued to Company is
canceled, expires, lapses, or is otherwise withdrawn or terminated by governmental authority; or
(iii) Company determines the licensed Equipment Location is no longer technically compatible for
its use, Company shall have the right to terminate all or part of this Supplemental Site License.
Notice of Company's exercise of its right to terminate shall be given to the Town in writing by
certified mail, return receipt requested, and shall be effective upon the mailing of such notice by
Company, or upon suchlater date as designated by Company. All standard and customary permit
fees paid to said termination date shall be retained by the Town. Upon such ₹ermination, all or part
of this Supplemental Site License, as applicable, shall be of no further force or effect except to the
extent of the representations, warranties and indemnities made by each party to the other hereunder
and in the Use Agreement.
Section 8. Installation of Town Equipment. In each segment of the Public Right -of -
Way in which Company installs its Network Equipment, Company shall also install, at the same
time as Company installs its Network Equipment, certain pull boxes, vaults, handholes, tracer wire,
pull strings, conduit, pedestals and other accessories and component equipment as described in
Attachment 1, Table 2 ("Town Equipment"), attached hereto and incorporated herein by this
reference, in accordance with: (a) all applicable standards, rules and regulations of the Town
(collectively, the "Town Regulations"); and (b) the plans and specifications provided by the Town
Engineer [by Company to the Town and approved by the Town Engineer] (the "Plans")
(collectively referred to as the "Construction Standards").
Section 9. Procurement of Town Equipment. Company shall be initially responsible
for the costs of acquiring the conduit to be incorporated into the Town Equipment, which shall not
exceed the amount set forth in the cost estimate, attached hereto as Attachment 1, Table 3 and
incorporated herein by this reference ("Cost Estimate'). The Town shall be responsible for
acquiring and supplying to Company all other components of the Town Equipment.
Section 10. Payment of Contractors. Laborers and Materials. Company shall bear initial
responsibility for the costs of installation of all Town Equipment at the Equipment Location,
subject to reimbursement by the Town as set forth in Section 15. Company shall timely make
payments of all amounts due to persons supplying labor, materials, equipment or services in
connection with the Network Equipment and Town Equipment, and to any persons who may
otherwise be entitled to assert a lien upon the Public Right -of -Way, Equipment Location or Town
Equipment by virtue of Section 38-22-101, et seq., C.R.S. In the event that any person asserts a
lien upon the Public Right -of -Way, Equipment Location or Town Equipment by virtue of Section
38-22-101, et seq., C.R.S. after Acceptance, Company will indemnify and defend the Town with
respect to the claimed lien, and shall further immediately take any and all steps as are necessary to
remove the lien from any Town Equipment regardless of the merits of the claimant of the lien;
provided, however, that if a mechanic's lien is filed, Company may, within 60 days of the filing
thereof, bond over any such mechanic's lien pending removal thereof from title to the Town
Equipment.
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Section 11. Immigration Status Obligations. To the extent required by law, Company
certifies, through signature of its authorized representative executing this Supplemental Site
License, that its contractor performing the installation work for the Town under this Supplemental
Site License does not knowingly employ or contract with an illegal, alien who will perform such
work, and that its contractor will participate in the United States Government's E -Verify Program
or the State of Colorado Department of Labor and Employment Program ("Department Program")
in order to confirm the employment eligibility of all employees who are newly hired for
employment to perform work under the public contract for services.
Section 12. Inspection and Acceptance of Town Equipment. Upon completion of the
Town Equipment at the Equipment Location, Company shall submit to the Town "as built"
drawings of the Town Equipment in a format agreeable to both parties, a copy of the accounting
and an itemized invoice for the actual costs therefor, and a statement certifying that installation of
Town Equipment is fully complete, that Town Equipment has been fully paid for, and that
Company has fully paid all persons or entities having furnished labor or materials for the
construction and installation of the Town Equipment. Upon inspection, which shall occur within
twenty-one (21) days of Company's submission, and finding of satisfactory completion of the
Town Equipment in compliance with the Construction Standards, the Town shall promptly issue
a written "Certificate of Acceptance" for the Town Equipment at the Equipment Location.
Company shall follow the procedures below regarding the inspection of installation of any Town
Equipment to ascertain conformance with the Construction Standards prior to Acceptance.
(A) Company will contact the Town Engineer two weeks in advance of the beginning
of installation of any Town Equipment. Company will give a time schedule as to how the Town
Equipment will be installed and completed.
(B) Upon completion of the Town Equipment, Company will contact the Town
Engineer to arrange for an inspection of the Town. Equipment. Company shall reasonably
cooperate and assist the Town in gaining appropriate access to the areas designated for inspection.
(C) If the Town Engineer finds fault with the installation, the Town shall provide
Company with a detailed description of the fault and allow Company ten (10) business days to
remedy such fault in a manner as the Town believes to be reasonably necessary to bring the Town
Equipment into conformity with the Construction Standards. If Company has not remedied the
fault(s) within ten (10) business days, the Town Engineer may, at his discretion, stop work until
corrections are made.
(D) The Town shall have the right, but not the duty, to inspect materials and
workmanship in order to ascertain conformance with the Construction Standards at any time during
installation of the Town Equipment.
(E) Company shall contact the Town immediately upon discovery of any non-
conformance with the Construction Standards or if Company encounters unforeseen conditions or
circumstances that will delay completion of any of the Town Equipment.
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(F) The Town understands that poor weather conditions may cause unforeseen delays
and warrant special consideration regarding scheduling of inspections and installation of Town
Equipment.
Section 13, General Warranty. Company warrants that all Town Equipment installed
by Company at the Equipment Location shall be in accordance with generally accepted
professional practices and the level of competency presently maintained by others in the same or
similar type of work, and in compliance with the Construction Standards. Company further
warrants that all materials made a part of the Town Equipment, or placed permanently in the Town
Equipment, will be free from defects, including but not limited to defects of materials,
workmanship or design, of good quality, and that the Town Equipment shall be free from
obstructions and otherwise fully comply with the Construction Standards, Company further
warrants that upon receipt of the Reimbursement, ownership and title to any Town Equipment at
the Equipment Location shall pass from Company to the Town free and clear of all liens and
encumbrances. Except as provided herein, Company makes no other warranties of any kind,
including, without limitation, implied warranties of merchantability or fitness for a particular
purpose. Company shall provide reasonable assistance to Town in connection with Town's efforts
to enforce the terms of any manufacturer's warranty against the manufacturer of any Town
Equipment.
Section 14. Completion of Installation of Town Equipment. Company shall commence
construction and installation work with respect to the Town Equipment at the same time Company
undertakes construction and installation of its Network Equipment pursuant to this Supplemental
Site License. Issuance of Certificate of Acceptance for the Town Equipment must be awarded
within six (6) months of the Installation Date for the Network Equipment, unless the Town extends
the time for compliance by executing a written amendment to this Supplemental Site License. In
the event that no work has commenced on the construction and installation of the Town Equipment
within six (6) months of the Installation Date for the Network Equipment, the Town may withhold
the granting of any new supplemental site licenses or other Governmental Approvals for new
Equipment Locations within the Public Right -of -Way.
Section 15. Reimbursement.
(A) Cost Estimate. The total cost or estimated cost to the Town of all elements of
Company's construction and installation of all Town Equipment in the particular segment of the
Public Right-o€Way or Equipment Location covered under this Supplemental Site License is set
forth in the Cost Estimate, attached hereto as Attachment 1, Table 3.
(B) Company shall notify the Town when it receives a change order request from its
contractor performing work with respect to the Town Equipment that results in an increase in the
Cost Estimate of an amount equal to or greater than ten (10) percent (%) of the total cost as set
forth in the Cost Estimate, or when Company becomes aware that the total dollar amount of all
change orders exceeds $50,000.00. Upon receipt of such notification, the Town may, in its
discretion and at its sole option, direct Company to stop work or give written approval of an
increase in the total estimated cost and authorization to proceed with the work. No change to the
total cost set forth in the Cost Estimate, including any additional reimbursement, shall be effective
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or paid unless Company provides such notice required under this subparagraph (A) and Company
receives written authorization from the Town to perform such work.
(C) In consideration for Company's agreement to install Town Equipment, the Town
shall reimburse Company in an amount equal to 100% of the total actual cost for completing
construction and installation of all components of the Town Equipment at the Equipment Location
(the "Reimbursement"). To satisfy this obligation, the Town shall remit payment to Company
upon issuance of Certificate of Acceptance for the Town Equipment. The Town shall not be
obligated to reimburse Company in connection with the construction and installation of the Town
Equipment until the date of issuance of Certificate of Acceptance for the Town Equipment.
(D) In the event that: (i) Company terminates this Supplemental Site License at any
point prior to completing installation of all or a portion of the Town Equipment; (ii) Company
terminates this Supplemental Site License prior to issuance of Certificate of Acceptance for all or
a portion of the Town Equipment; (iii) Company abandons its construction efforts prior to
completing installation of all of the Town Equipment; or (iv) the Town directs Company in writing
to stop work pursuant to subsection (B) above, the Town shall be responsible to reimburse
Company only for those actual costs incurred with respect to Town Equipment for which the Town
has inspected and finally accepted. Notwithstanding the foregoing, the Town shall have the right
to deduct and withhold payment of all or a portion of the Reimbursement that may be due under
this Supplemental Site License such amount as may reasonably appear necessary to compensate
the Town for any actual or prospective loss due to: (i) work that is defective, damaged, flawed,
unsuitable, nonconforming or incomplete; (ii) damage to the Public Right -of -Way for which
Company is liable under this Supplemental Site License or the Use Agreement; (iii) liens or claims
of liens or other claims of Company's contractor's, subcontractors, or suppliers, regardless of
merit; or (iv) delay in the progress or completion of installation of the Town Equipment, if such
delay is caused, in whole or in part, by an act or omission over which Company or Company's
contractor or subcontractor has control.
(E) Subject to Annual Appropriation. Consistent with Article X, § 20 of the Colorado
Constitution, any financial obligation of the Town not performed during the current fiscal year is
subject to annual appropriation, shall extend only to monies currently appropriated, and shall not
constitute a mandatory charge, requirement or liability beyond the current fiscal year.
Section 16. Ownership of Town Equipment. Subject to this Agreement and to the
provisions of any Town ordinances, resolutions, rules, regulations and standards relating to the
Town acceptance of the Town Equipment provided for herein, Company shall convey and transfer
to the Town all of the Town Equipment, free and clear of all liens, encumbrances and restrictions
by Bill of Sale upon receipt of the Reimbursement. There shall be no restrictions on the Town's
use of the Town Equipment contained in the Bill of Sale.
Section 17. Use of Town Equipment. Nothing in this Agreement or the Use Agreement
shall prevent, prohibit, or impede the Town, in its sole discretion and authority, from using the
Town Equipment at the Equipment Location for governmental purposes, accessing Town
Equipment in performing maintenance or repair activities or from offering use of the Town
Equipment to third parties ("Third Party Users") after Company's receipt of the Reimbursement.
E
Section 18. Maintenance of Town Equipment. The Town shall maintain and repair
Town Equipment after Acceptance of the Town Equipment pursuant to Section 10. Company will
not be obligated to provide or perform any maintenance services for the Town or for any Third
Party Users with respect to Town Equipment.
Section 19. Notification. Each Party shall provide to the other party notice of 48 hours
in advance of performing routine preventative maintenance activities relating to the Network
Equipment or Town Equipment. Such notification shall include, to the extent practicable, the
nature and duration of the planned activity, and shall be to the representative identified in Section
24. A telephone call followed by an email shall constitute acceptable notification under this
Section 16. If any such work is performed, either Party has a right td have an inspector on site
during such work.
Section 20. Repair of Damages to Town Equipment. Company shall be responsible for
all damage to Town Equipment or to any fiber optic cable owned by the Town or leased to a Third
Party User arising out of or resulting from: (a) its Network Equipment; (b) its use, operation, or
maintenance of its Network Equipment; (c) work performed by Company within the Public Right -
of -Way or Equipment Location in connection with its use, operation or maintenance of its Network
Equipment. Company shall repair all damage caused by Company or its contractors to Town
Equipment within thirty (30) days after such damage occurs, and make such repairs in accordance
with the direction of the Town. If Company does not repair the damage as just described, then the
Town shall have the option, upon fifteen (15) days' prior written notice to Company, to perform or
cause to be performed such reasonable and necessary work on behalf of the Company, and to charge
Company for the actual costs incurred by the Town. If such damage poses a threat to the health,
safety or welfare of the public, or such damage necessitates immediate repairs to prevent, mitigate,
or remedy injury to persons or damage to property, or because the Town equipment or fiber optic
cable has been cut or severed, which such repairs cannot be timely performed by Company, then the
Town may conduct, or cause to be performed such emergency repairs immediately on behalf of
Company, giving notice to Company as soon as prac₹icable, and to charge Company for the
reasonable actual costs incurred by the Town. Upon the receipt of a demand for payment by the
Town, Company shall promptly reimburse the Town for such costs.
Section 21. Repair of Damages to Network Equipment. The Town agrees to promptly
repair all damage to Company's Network Equipment arising out of resulting from: (a) negligent
work performed by the Town or its contractors in the Public Right -of -Way or Equipment Location
in connection with the use, operation or maintenance of Town Equipment or fiber optic cable owned
by the Town;. (b) negligent work performed by a Third Party User or its contractor in the Public
Right -of -Way or Equipment location in connection with its authorized or approved use, operation or
maintenance of Town Equipment or fiber optic cable owned by the Town; (c) Town Equipment; (d)
the Town's negligent use, operation or maintenance of Town Equipment. In the event of an
emergency that necessitates immediate repairs to Network Equipment to maintain or restore proper
functioning of Company's Network Equipment, Company or the Town may conduct such
emergency repairs immediately, giving notice to the other party as soon as practicable. For
purposes of this Section 16, emergency repairs shall mean repairs required because Company -
owned fiber optic cable has been cut or severed, which such repairs cannot be timely performed
by the Town. IfCompany conducts emergency work authorized under this Section, the Town shall
reimburse Company for reasonable costs, fees or expenses related to such emergency repairs.
Section 22. Non -Liability. Company acknowledges that the Town's review and
approval of the plans for the Network Equipment is done in furtherance of the general public
health, safety and welfare and that no specific relationship with, or duty of care to Company or
third parties is assumed by such review approval, or immunity waived, as is more specifically set
forth in the Colorado Governmental Immunity Act.
Section 23, Hold Harmless. Company agrees to indemnify, defend and hold the Town
harmless from any claims brought by any third party against the Town which are attributable to
any act or omission of Company, its employees, agents, contractors, subcontractors, and
consultants with respect to: (i) the construction and installation of the Town Equipment at the
Equipment Location; and (ii) any activities undertaken pursuant to this Supplemental Site License.
This indemnification does not extend to claims of willful misconduct or negligence brought by
any third party against the Town which is attributable to any act or omission of the Town.
Section 24. Notice and Communications. All notices, requests, and demands to or upon
any party to this Agreement shall be in writing addressed to the person designated below for the
Parties at the indicated address, and shall be personally delivered or delivered via certified mail,
return receipt requested, postage prepaid, or by overnight courier service. Any party may change
the address specified above for the giving of notice hereunder by providing written notice of such
changed address to the other party in the same manner as described herein.
Golden: Town of Firestone
Attn: Town Engineer
9950 Park Ave.
Firestone, CO 80504
Phone: 720-652-4222 (Emergency Notice Only)
Email: mwiederspahn firestoneco.gov (Emergency Notice Only)
Company: NAME
ADDRESS
Phone:
Email:
Section 25. Governmental Immunity. The Town and its officers, attorneys and
employees are relying on, and do not waive or intend to waive by any provision of this
Supplemental Site License, the monetary limitations or any other rights, immunities, and
protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq.,
as amended, or otherwise available to the Town and its officers, attorneys or employees.
[Signature page, follows.]
VI
TOWN OF FIRESTONE, COLORADO, a
statutory municipality and political subdivision
of the State of lorado
By:
T n M er
Attest:
wnC
CONTRACTOR NAME:
By:
Exhibit A
(Right-of-way Description)
Attachment 1, Table 1
10
Attachment 1, Table 2
No Town Equipment to be installed with this agreement.
11
Attachment 1, Table 3
No Town Equipment to be installed with this agreement.
12
A, The Town is the owner of a property interest (Property") for public right-of-way (ROW."),
and desires to protect and preserve the ROW The Town further maintains police power authority to regulate
access to and use of the ROB. in a manner that protects the public health, safety and welfare, consistent
with Applicable Law.
B Company owns, maintains, operates and controls, in accordance with regulations
promulgated by the Federal Communications Commission ("FCC,"), a fiber -based Network or Networks
serving the Company's customers.
C. For purpose of operating the network, the Companydesires the Town's permission to locate,
place, attach, install, operate, control, maintain, and repair Equipment in the Public Right -of -Way (as defined
in § 1,6 below) in the locations detailed in Supplemental Sites Licenses as shown on Exhibit D.
D. The Town desires to grant to Company a non-exclusive license ("`License") for the above -
stated purpose, upon the terms and conditions contained below, and in accordance with Applicable Law.
lIl
Now, therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree to the following covenants, terms, and conditions:
I. DEFINITIONS
The following definitions shall apply generally to the provisions of this Use Agreement.
"Applicable Law" means all statutes, constitutions, ordinances, resolutions, regulations, judicial
decisions, rules, tariffs, administrative orders, certificates, orders, or other requirements of the Town
or other governmental agency having joint or several jurisdiction over the parties to this Agreement.
"Claims"' means (1) losses, liabilities, and expenses of any sort, including attorneys' fees, (2) fines
and penalties; (3) environmental costs,including, but not limited to investigation, removal, remedial,
and restoration costs, and consultant and other fees and expenses, and (4) any and all other costs
or expenses.
"Conventional Boring" means the deployment of fiber optic cables or underground conduits using
trenchless underground methods at depths greater than 24 inches,
Page 1o116
1
"Conventional Trenching" means the deployment of fiber optic cables or underground conduits using
open trench cuts; excavation; placement of conduit bundles or duct banks, and other elements;
backfi[l and restoration.
"Equipment" means electronics equipment, transmission equipment, shelters, coaxial cables,
mounts, generators, containment structures, hangers, pull boxes, conduit, pedestals, brackets, fiber
optic cable and other accessories and component equipment.
"Hazardous Substance" means any substance, chemical or waste that is identified as hazardous or
toxic in any applicable federal, state or local law or regulation, including but not limited to petroleum
products and asbestos.
"Installation Date" shall mean the date that the first Equipment is installed by the Company pursuant
to this Use Agreement.
"Network" or collectively "Networks" means one or more of the neutral -host, communication or
telecommunication systems operated by the Company to serve its customers in the Town..
Public Right -of -Way" or "Right of WaV' means the space in, upon, above, along, across, and below
the public streets, roads, highways, lanes, courts, ways, alleys, boulevards, sidewalks and bicycle
lanes, including all public rights -of -way, utility easements and public service easements as the same
now or may hereafter exist, that are under the jurisdiction of the Town. This term shall not include
Town parkland, open space, trails, state or federal rights of way, or any property owned by any
person or entity other than the Town, except as provided by applicable Laws or pursuant to an
agreement between the Town and any such person or entity.
"Services" means the telecommunications services provided through the network by the Company
to its customers. Services also includes the lease of a Network, or any portion thereo₹, to another
person or entity, or the provision of capacity or bandwidth on the System to another person or entity,
provided that Company at all times retains exclusive control over the System and remains
responsible for locating, servicing, repairing, relocating or removing its System pursuant to the terms
of this Agreement. From time -to -time, the Company may enter into sales contracts with its customers
to sell them additional services unrelated to its use of Equipment in the Public Right -of Way, for
example: engineering design, network consulting, or for the sale of hardware. Revenues from these
additional engineering services and hardware are not considered to be "Services" for purposes of
this Agreement.
"Town" means the Town of Firestone, a Colorado statutory municipality.
IL TERM
A. This Use Agreement shall be effective as of the Effective Date and shall extend for a term
of fifteen (15) years commencing on the Installation Date, unless it is earlier terminated by either party in
accordance with the provisions herein. Provided, however, that if the Company's Network is not operational
and providing Services to customers within the Town within two (2) years of the effective date of this Use
Agreement, this Use Agreement may be terminated by the Town, in its sole discretion, upon thirty (30) days
written notice. This Agreement will automatically renew for one (1) successive fifteen (15) year term
("Renewal Term") upon the expiration of the Initial Term, unless earlier terminated as provided herein or a
written notice of non -renewal is given by Company to the Town at least thirty (30) calendar days prior to the
expiration of the Term then in effect. Thereafter, this Agreement may be extended for an additional agreed -
upon period of time upon the mutual execution by the Parties of a written amendment.
Page 2 of 16
FIRESTONE
SCOPE OF AGREEMENT
A. All rights expressly granted to the Company under this Agreement, which shall be exercised
at the Company's sole cost and expense, shall be subject to the Town's lawful exercise of its police powers
and the prior and continuing right of the Town under applicable Laws to use any and all parts of the Public
Right -of -Way exclusively or concurrently with any other person or entity and shall be further subject to all
deeds, easements, dedications, conditions, covenants, restrictions, leases, licenses, permits, franchises,
encumbrances, and claims of, title of record which may affect the Public Right -of -Way. Nothing in this
Agreement shall be deemed to grant convey, create, or vest in the Company a real property interest in land,
including any fee, leasehold interest, or easement. Any work performed pursuant to the rights granted under
this Agreement shall be subject to the reasonable prior review and approval of the Town and shall conform
with applicable laws and regulations. Nothing in this Agreement shall be deemed to grant a franchise, nor
permit the Town to collect a franchise fee. This Agreement does not grant a Franchise or other right to utilize
the Public Right -of -Way to construct a cable system, provide cable or other video programming services,
construct a wireless communications facility, or provide wireless communications services.
B. Applicability of Town Site Planning Process. Nothing in this Agreement shall waive or modify
the Company's obligation to comply with the Town's regular site plan process in the placement of the
Company's Equipment.
C. No Interference. The Company in the performance and exercise of its rights and obligations
under this Agreement shall not interfere in any manner with the current or future existence and operation of
any and all public and private rights of way (except in the case where the Company's rights are prior or
superior to such private right of way), sanitary sewers, water mains, storm drains, gas mains, poles, aerial
and underground electrical and telephone wires, cable television, and other communications, utility, or
municipal property, without the express written approval of the owner or owners of the affected property or
properties, except as permitted by applicable Laws or this Agreement.
D. Compliance with Laws. The Company shall comply with all Applicable Laws in the exercise
and performance of its rights and obligations under this Agreement.
E. Utility Notification Center. Prior to undertaking any work pursuant to this Agreement, the
Company shall take all actions necessary to become a tier 1 member of the Utility Notification Center of
Colorado, and comply with and adhere to local procedures, customs and practices relating to the one call
locator service program established in C.R.S. Section 9-1.5-101, et seq., as such may be amended from time
to time.
IV. CONSTRUCTION
A. The Company intends to install its Network and Equipment at the locations set forth on the
plan and profile approved by the Town and submitted as a request for supplemental site license. The
Company shall be required to obtain a supplemental site license for each Equipment location by submitting
all information required by Exhibit A prior to beginning construction. The Town will authorize the Company
to commence construction with the grant of a supplemental site license and the provision of all necessary
permits. Approved supplemental site licenses will be attached to this document as part of Exhibit B. The
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Company shall comply with all applicable federal, State, and Town technical specifications and requirements
and all applicable State and local codes related to the construction, installation, operation, maintenance, and
control of the Company's Equipment installed in the Public Rights -of -Way
B. Obtaining Required Permits. If the attachment, installation, operation, maintenance, or
location of the Equipment in the Public Right -of -Way shall require any permits, the Company shall, if required
under Applicable Law, apply for the appropriate permits and pay any standard and customary permit fees.
The Town shall respond to the Company's requests for permits in the ordinary course of its business and
shall otherwise cooperate with the Company in facilitating the deployment of the network in the Public Right -
of -Way in a reasonable and timely manner. As a condition of obtaining any permit that involves digging or
other excavation in the Public Right -of -Way, the Company shall physically identify the horizontal and vertical
locations of any other existing underground utility or other facilities in the Public Right -of -Way in the proximity
of the proposed work area and illustrate such locations on plan and profile drawings also illustrating the
proposed Equipment in accordance with Exhibit A. Such drawings shall be provided to the Town with each
request for a supplemental site license. For each supplemental site license, Licensee shall submit
construction drawings prepared by the appropriate professional engineer licensed in the state of Colorado
for review no less than thirty (30) days prior to beginning construction. Construction shall not begin until
written confirmation of grant of a supplemental site license by the Town and the acquisition of all necessary
permits.
C. Blasting. Licensee shall not do or permit to be done any blasting above, underneath, or near
the Property without first having received written permission from Licensor. Any blasting shall be done in the
presence of a representative of Licensor and in accordance with directions such representatives may give
for the protection or safety of facilities in the area.
D. Location of Licensed Facilities. All Licensed Facilities shall be placed a minimum of: (i) ten
(10) feet, measured horizontally, from existing and known planned storm sewer, sanitary sewer, and potable
and non -potable water lines; and eighteen (18) inches, measured vertically, above or below, existing and
known planned storm sewer, sanitary sewer, and potable and non -potable water lines and wherever possible
at perpendicular crossings.
E. Colocation of Town Infrastructure with Company's Infrastructure.
When Company proposes construction activities that involve Conventional Boring or
Conventional Trenching within Public Rights of Way that extend more than five hundred
(500) contiguous feet in length, the Town may require that it collocate and install Town
conduit simultaneously with the Company's construction activity, and the Town shall pay any
incremental costs incurred by Company to install the Town's conduit. The parties agree to
coordinate in good faith while Company designs the Network to identify construction
segments where Town desires colocation.
H. For any construction activity where the Town requires a colocation of Town conduit, the
Town shall, as a condition of the issuance of the permit or the continued validity of a permit,
direct the Company to install Town conduit with tracer wire and associated infrastructure, as
identified by the Town, concurrent with the installation of the Company's infrastructure
following the Town's review and approval of all estimated costs associated with the
colocation of the Town conduit. The Company shall install the Town conduit with tracer wire
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adjacent to Company's infrastructure and within the same bare or trench alignment. The
Town will bear all cost associated with the colocation, including, without limitation, the Town
conduit, pull -boxes, and all other materials and infrastructure to be installed, as well as the
creation of any as -built documentation developed for the colocation, including the
incremental labor, equipment, and engineering costs incurred by the Company (or its
contractor or subcontractor) that are reasonably and directly attributable to the required
colocation of Town conduit, material and infrastructure.
Ill. When a collocated Town conduit is installed, the Company may be required to submit signed
as built documentation of the Town's conduit to the Town if physical verification of the Town
conduit is not possible.
IV. A Town designated representative may waive permit fees set forth for any construction
activities associated with a colocation project.
V. If the Company begins offering dark fiber leases within the Town, Town may lease dark fiber
strands from Company at the then -current discounted "public purpose" rate on a per strand
per mile basis.
V. RELOCATION OF EQUIPMENT
A. Relocation and Displacement of Equipment. The Company understands and acknowledges
that Town may require the Company to relocate one or more of its Equipment installations. The Company
shall at Town's direction relocate such Equipment at the Company's sole cost and expense not later than
one hundred and twenty (120) days after receiving written notice that the Town reasonably determines that
the relocation is needed for any of the following purposes: (a) if required for the construction, completion,
repair, relocation, or maintenance of a public facility or Public Right -of -Way; (b) because the Equipment is
interfering with or adversely affecting proper operation of street lights, traffic signals, governmental
communications networks or other Town property; or (c) to protect or preserve the public health or safety. In
any such case, Town shall use its best efforts (but shall not be required to incur financial costs) to afford the
Company a reasonably equivalent alternate location. If the Company shall fail to relocate any Equipment as
requested by the Town within one hundred and twenty (120) days after the above -referenced notice in
accordance with this subsection, Town shall be entitled to relocate the Equipment at the Company's sole
cost and expense, without further notice to the Company. To the extent the Town has actual knowledge
thereof, the Town will attempt promptly to inform the Company of the displacement or removal of any pole
on which any Equipment is located.
B. Abandonment, If Company removes and does not replace the Equipment or otherwise
abandons the use of Equipment for a period of six (6) or more consecutive months, the Town may terminate
this Agreement by delivering thirty (30) days advance written notice to Company, and the Equipment shall
be removed at the expense of Company. In the event Company is unable or refuses to remove such
Equipment when requested by the Town, the Town may authorize removal and Company shall be responsible
for all costs incurred for such removal.
C. Damage and Restoration. Unless otherwise provided by Town rules, regulations, and
ordinances, whenever the removal or relocation of Equipment is required or permitted under this Agreement,
and such removal or relocation causes the Public Right -of -Way to be damaged, or whenever Company, in
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connection with any of its operations, causes damage to the R.O.W. or any other Town property the Company,
at its sole cost and expense, and within thirty (30) days after such damage occurs, repair the damage and
return the Public Right -of -Way in which the Equipment is located to a safe and satisfactory condition in
accordance with Applicable Law. If the damage is determined by the Town to be impacting the public health
and safety, the Town may perform or cause to be performed such reasonable and necessary repairs on
behalf of the Company and to charge the Company for the proposed costs to be incurred or the actual costs
incurred by the Town at Town's standard rates. If the Company does not repair the damage as described
herein, then the Town shall have the option, upon fifteen (15) days' prior written notice to the Company, to
perform or cause to be performed such reasonable and necessary work on behalf of the Company and to
charge the Company for the proposed costs to be incurred or the actual costs incurred by the Town at Town's
standard rates. Upon the receipt of a demand for payment by the Town, the Company shall promptly
reimburse the Town for such costs. In the case of fire, disaster or other emergency impacting the public
health and safety as solely determined by the Town, the Town may remove or disconnect the Company's
Equipment located in the Public Right -of -Way or on any other property of the Town. To the extent feasible
as a result of any emergency, the Town shall provide reasonable notice to the Company prior to taking such
action and, if the situation safely permits, shall provide the Company with the opportunity to perform such
action within twenty-four (24) hours unless, in the Town's reasonable discretion, the imminent threat to public
health safety or welfare makes such notice impractical.
VI. OTHER UTILITIES
A. The Company agrees and understands that if the Town has permitted or allowed natural gas
gathering, storage, transmission, distribution, or related facilities on the Property, the Company has been
fully advised by the Town that such natural gas facilities may now transport and may continue to transport
natural gas at significant pressures. The Company shall advise all of its employees, agents, contractors, and
other persons who enter upon the Property the existence and nature o₹ such natural gas facilities and the
potential danger and risk involved.
B. The Company agrees and understands that any natural gas facilities, if located on the
Property, may be subject to cathodic protection by rectifier and related anode beds, and that the Town shall
not be liable for stray current or interfering signals induced in the licensed facility as a result of the operating
of the cathodic protection system.
C. The Company agrees and understands that if the Town has permitted and allowed to be
constructed electric transmission, distribution, or related facilities on the Property, the Company has been
fully advised by the Town that such electric facilities may now transmit and may continue to transmit electric
current at significant voltages, and that the conductors on electric lines may not be insulated. The Company
shall advise all of its employees, agents, contractors, and other persons who enter upon the Property of the
existence and nature of such electric facilities and the potential danger and risk involved.
VII. HAZARDOUS SUBSTANCES
A. The Company agrees that the Company, its contractors, subcontractors and agents, will not
use, generate, store, produce, transport or dispose any Hazardous Substance on, under, about or within the
area of the Property or the R.O.W. in which it is located in violation of any Applicable Laws. Except to the
extent of the negligence or intentional misconduct of the Town, the Company will pay, indemnify, defend and
hold the Town harmless against and to the extent of any loss or liability incurred by reason of any Hazardous
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Substance produced, disposed of, or used by the Company pursuant to this Agreement. The Company will
ensure that any on -site or off -site storage, treatment, transportation, disposal or other handling of any
Hazardous Substance will be performed by persons who are properly trained, authorized, licensed and
otherwise permitted to perform those services. The Parties recognize that the Company is only using a small
portion of the R.O.W. and that the Company shall not be responsible for any environmental condition or issue
except to the extent resulting from the Company's, its agents' or contractors' specific activities and
responsibilities under this Agreement.
Vlll. INDEMNIFICATION AND WAIVER
A, The Company shall indemnify, defend, protect, and hold harmless the Town, its elected
officials, officers, employees, agents, and contractors from and against any and all Claims, demands, losses,
damages, liabilities, fines, charges, penalties, administrative and judicial proceedings and orders, judgments,
and all costs and expenses incurred in connection therewith, including reasonable attorney's fees and costs
of defense (collectively, the "Losses") directly or proximately resulting from the Company's activities
undertaken pursuant to this Agreement.
B. Waiver of Claims. The Company waives any and all Claims, demands, causes of action,
and rights it may assert against the Town on account of any loss, damage, or injury to any Equipment or any
loss or degradation of the Services as a result of any event or occurrence which is beyond the reasonable
control of the Town.
C. Limitation of Town's Liability. To the extent permitted by law, the Town shall be liable only
for the cost of repair to damaged Equipment arising from the gross negligence or willful misconduct of Town,
its employees, agents, or contractors and shall in no event be liable for indirect or consequential damages.
The Town does not waive any of the protections, immunities or limitations afforded it by the Colorado
Governmental Immunity Act (C.R.S. §§ 24-10-101 et, seq,) as same may be amended from time to time.
D. Limitation of Company's Liability In no event shall the Company be liable to the Town for
indirect or consequential damages.
E. Notice. The Town shall give the Company timely written notice of the making of any Claim
or of the commencement of any action, suit or other proceeding in connection with any Claim. In the event
such Claim arises, the Town shall tender the defense thereof to the Company and the Company shall consult
and cooperate with the Town Attorney's Office while conducting its defense. The Town and any indemnified
party shall cooperate fully therein with the Company's legal representative and shall be consulted on any
settlements of Claims prior to the execution of any settlement agreements.
F. Separate Representation. If separate representation to fully protect the interests of both
parties is or becomes necessary, such as a conflict of interest between the Indemnified Party and the counsel
selected by the Company to represent the Town, the Company shall pay for all reasonable expenses incurred
by the Town as a result of such separate representation; provided, however, in the event separate
representation becomes necessary, the Town shall select its own counsel and any other experts or
consultants, subject to the Company's prior approval, which shall not be unreasonably withheld. The Town's
expenses hereunder shall include all reasonable out-of-pocket expenses, such as consultants' fees, and shall
also include the reasonable value of any services rendered by the Town Attorney or his/her assistants or any
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employees of the Town or its agents but shall not include outside attorneys' fees for services that are
unnecessarily duplicative of services provided the Town by the Company.
IX. INSURANCE.
A. Required Coverages. The Company shall, and shall require its subcontractors to maintain
substantially the same coverage with substantially the same limits as required of Company, obtain and
maintain at its own cost and expense at all times during the term of this Agreement (a) Commercial General
Liability insurance protecting the Company in an amount of Five Million Dollars ($5,000,000) per occurrence
(combined single limit), for bodily injury and property damage, and Five Million Dollars ($5,000,000) general
aggregate including personal and advertising injury liability and products -completed operations; (b)
Commercial Automobile Liability covering all owned, hired, and non -owned autos in an amount of Five Million
Dollars ($5,000,000) combined single limit each accident for bodily injury and property damage; (c) Statutory
workers' compensation and employer's liability insurance in an amount of One Million Dollars ($1,000,000)
each aecidentldiseaselpolicy limit. All required insurance policies shall include the Town, its council
members, officers, and employees as additional insureds as their interest may appear under this Agreement
for any covered liability arising out of the Company's performance of work under this Agreement. Coverage
shall be in an occurrence form and in accordance with the limits and provisions specified herein. Claims -
made policies are not acceptable. Upon receipt of notice from its insurer(s) the Company shall use
commercially reasonable efforts to provide the Town with thirty (30) days' advance written notice of
cancellation. Notwithstanding the foregoing, upon sixty (60) days' prior notice to and review by the Company,
the Town may increase the aforementioned limits of insurance at any time in its reasonable discretion.
B. Filing of Certificates and Endorsements. Prior to the commencement of any work pursuant
to this Agreement, the Company shall file with the Town the required original certificate(s) of insurance with
blanket additional insured endorsements, which shall state the following:
The policy number; name of insurance company; name and address of the agent or
authorized representative; name and address of insured; project name; policy expiration
date; and specific coverage amounts;
II. That the Company's insurance policies are primary as respects any other valid or collectible
insurance that the Town may possess, including any self -insured retentions the Town may
have; and any other insurance the Town does possess shall be considered excess insurance
only and shall not be required to contribute with this insurance; and
Ill. That the Company's insurance policies waive any right of recovery the insurance company
may have against the Town.
The certificate(s) of insurance shall be mailed to the Town at the address specified in § 9 below, and shall be
updated annually within thirty (30) days of the anniversary of the Effective Date of this Agreement.
C. Insurer Criteria. Any insurance provider of the Company shall be admitted and authorized
to do business in the State of Colorado and shall carry a minimum rating assigned byA.M. Best & Company's
Key Rating Guide of "A" Overall and a Financial Size Category of "VII". Insurance policies and certificates
issued by non -admitted insurance companies are not acceptable.
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D. Severability of Interest. "Severability of interest" or "separation of insureds" clauses shall be
made a part of the Commercial General Liability and Commercial Automobile Liability policies.
X. NOTICES.
A. All notices which shall or may be given pursuant to this Agreement shall be in writing and
delivered (a) through the United States mail, by first class mail, postage prepaid; or (b) by facsimile or email
transmission, if a hard copy of the same is followed by delivery through the U. S. mail or by overnight delivery
service as just described, addressed as follows:
If to the Town:
Town of Firestone
Attn: Town Manager
9950 Park Ave
Firestone, CO 80504
and
If to Company:
Attn: Legal
2809 E Harmony Road Suite 310
Fort Collins, Colorado 80528
Email: phartman�7a lightgig.com
B. Date of Notices; Changing Notice Address. Notices shall be deemed given upon receipt in
the case of personal delivery, three (3) days after deposit in the United States mail, or the next business day
in the case of facsimile, email, or overnight delivery. Either party may from time to time designate any other
address for this purpose by written notice to the other party delivered in the manner set forth above.
C. Emergency Contact. The Company shall be available to the employees of any Town
department having jurisdiction over the Company's activities twenty-four (24) hours a day, seven (7) days a
week, regarding problems or complaints resulting from the attachment, installation, operation, maintenance,
or removal of the Equipment. The 24 -hour emergency contact of the Company can be reached at: 970-460-
8004.
The Company shall provide to the Town a new 24 -hour telephone number pursuant to this Section 10 prior
to changing telephone numbers.
XI. TERMINATION.
This Agreement may be terminated by either party upon forty five (45) days" prior written notice to the other
party upon a default of any material covenant or term hereof by the other party, which default is not cured
within forty-five (45) days of receipt of written notice of default (or, if such default is not curable within forty-
five (45) days, if the defaulting party fails to commence such cure within forty-five (45) days or falls thereafter
diligently to prosecute such cure to completion), provided that the grace period for any monetary default shall
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be ten (10) business days from receipt of notice. Except as expressly provided herein, the rights granted
under this Agreement are irrevocable during the term.
A. Removal of Equipment. Upon the expiration or termination of this Agreement, Company may
remove the Equipment from the Public Right -of -Way. Prior to undertaking any removal work, however,
Company shall provide the Town written notification of its intent to remove the Equipment and the anticipated
beginning and completion dates for the removal work. If the Company starts and then fails to complete this
removal work on or before 60 business days subsequent to the date for completion as specified in the notice
provided pursuant to this Section, then the Town, upon written notice to Company, shall have the right at its
sole election, but not the obligation, to perform this removal work and charge Company for the actual costs
and expenses, including, without limitation, reasonable administrative costs. The Company shall pay to the
Town actual costs and expenses incurred by the Town in performing any removal work and any storage of
the Company's property after removal within 60 calendar days after the date of a written demand for this
payment from the Town. After the Town receives the reimbursement payment from the Company for the
removal work performed by the Town, the Town shall promptly return to the Company the property belonging
to the Company and removed by the Town pursuant to this Section at no liability to the Town. If the Town
does not receive reimbursement payment from the Company as set forth above, or if Town does not elect to
remove such items at the Town's cost after the Company's failure to so remove, any items of the Company's
property remaining on or about the Public -Right -of -Way may, at the Town's option, be deemed abandoned
and the Town may dispose of such property in any manner permitted by Applicable Law. Unless removed
by the Town as set forth herein, the Company may remove its Equipment from the Public -Right -of -Way at
any time at its discretion, provided that any such removal is in compliance with applicable zoning and
permitting requirements.
B. Abandonment of Equipment. Upon the expiration or termination of this Agreement, Company
may decide, in its sole discretion, to leave the Equipment in place as is and transfer its ownership of the
Equipment to the Town. To do so, Company shall send written notice to the Town of its intent to transfer
ownership of the Equipment within 30 calendar days of the date of expiration or termination. If the Town
accepts such offer in writing no later than 30 business days after receipt of the Company's written offer, then
Company shall execute and deliver to the Town bills of sale and such other documents necessary to
effectuate such transfer of ownership to the Town within 30 business days after the date on which the
Company received the Town's written acceptance.
C. Company must exercise one or both of the options provided in Section IX.A or IX.B, above,
within six (6) calendar months of the date of termination or expiration of this Agreement. The Town shall
notify the Company when it has one (1) calendar month remaining before the 6 -month timeframe for removal
or abandonment expires, The Town's failure to notify Company shall not toll or otherwise affect the running
of the 6 -month time frame for removal or abandonment. If the Company does not take any action to remove
its Equipment pursuant to Section IX.A or fails to affirmatively abandon its Equipment pursuant to Section
IX.B within this 6 -month timeframe, then the Company will be deemed to have remised, released, quitclaimed,
and sold to the Town all title and ownership in any Equipment remaining in the Public Right -of -Way or Town
Property, and the permanent abandonment in place and transfer of ownership of that Equipment shall
automatically vest in the Town without necessity of an additional agreement or instruments of conveyance.
XII. ASSIGNMENT/TRANSFER OF OWNERSHIP OR CONTROL.
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In this Section, the following words have the meanings indicated:
"Control' means actual working control in whatever manner exercised. "Control" includes, but may not
necessarily require, majority stock ownership.
"Proposed Transferee" means a proposed purchaser, transferee, lessee, assignee or person acquiring
ownership or control of this Agreement or of the Company.
A. The Company shall not sell, transfer, lease, assign, sublet or dispose of, in whole or in part,
either by forced or involuntary sale, or by ordinary sale, contract, consolidation or otherwise, this Agreement
or any of the rights or privileges therein granted, without the prior consent of the Town, except that such
consent shall not be required for sales, transfers, leases, assignments, subleases or disposals to any parent,
subsidiary, affiliate or any person, firm or corporation that shall Control, or be under common Control, with
the Company. The consent required by the Town shall not be unreasonably withheld or delayed, but may be
conditioned upon the performance of those requirements necessary to ensure compliance with the specific
obligations of this Agreement imposed upon the Company by Town. The Company shall provide no less
than thirty (30) days written notice to the Town of the details of any transaction described herein that requires
Town consent. Notwithstanding anything to the contrary in this Section, no Town consent is required for
transfers to non -affiliates that are currently operating in the Town and are in full compliance of all obligations
to the Town. The Company shall provide no less than thirty (30) days written notice to the Town of a
transaction covered in this Section to a non -affiliate that it believes is compliant with its obligations to the
Town.
B. The requirements of this Subsection shall not, except as set forth below, apply to any
surviving successor entity or newly created successor entity in the event of a merger, reorganization or
consolidation involving Licensee, The Town reserves the right to be reimbursed for its reasonable costs
relating to a transfer of ownership. Licensee shall not change its name under which it does business with
the public without providing at least thirty (30) days prior notice to the Town. This Section shall apply to a
change in control of the Company if the successor entity meets any of the following criteria, with a rebuttable
presumption that a transfer of control has occurred upon the acquisition or accumulation by any person or
group of persons of fifty-one percent (51 %) or more of the voting shares of the Company:
Has ever been convicted or held liable for acts involving deceit including any violation of federal,
state or local law or regulations, or is currently under an indictment, investigation or complaint
charging such acts; or
Has ever had a judgment in an action for fraud, deceit, or misrepresentation entered against the
proposed transferee by any court of competent jurisdiction; or
Has pending any material legal claim, law suit, or administrative proceeding arising out of or
involving a network and/or equipment similar to that contemplated by this Agreement, except
that any such Claims, suits or proceedings relating to insurance Claims, theft of service, or
employment matters need not be disclosed; or
IV. Is financially insolvent; or
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V. Does not have the financial and technical capability to enable it to maintain and operate the
network and equipment for the remaining term of this Agreement.
C. If the successor entity meets any of these criteria, the Town's consent must be obtained to
the transfer of this Agreement or any of the rights provided hereunder. The consent required shall not be
unreasonably withheld or delayed, but may be conditioned upon the performance of those requirements
necessary to ensure compliance with the specific obligations of this Agreement imposed upon the Company
by the Town.
D. In seeking the Town's consent to any change in ownership or control, the Company shall
indicate whether it has failed to comply with any provision of this Agreement at any point during the term of
this Agreement.
E. The consent or approval of the Town to transfer by the Company does not constitute a waiver
or release of the rights of the Town in or to its Public Right -of -Way or easements and any transfer shall by its
own terms be expressly subject to the terms and conditions of this Agreement.
F. Any sale, transfer or assignment of this Agreement will bind the successor in interest to the
terms of this Agreement,
G. Notwithstanding anything contained in this Agreement, the Company may pledge the assets
of the Network and Equipment for the purpose of financing provided that such pledge of assets shall not
impair the Company or mitigate the Company's responsibility and capability to meet all its obligations under
the provisions of this Agreement.
XIII. MISCELLANEOUS PROVISIONS.
The provisions that follow shall apply generally to the obligations of the parties under this Agreement.
A. A copy of the applicable supplemental site license shall be on the Property and available
during construction of any licensed facility.
B. Non-exclusive Use. The Company understands that this Agreement does not provide the
Company with exclusive use of the Public Right -of -Way and that Town shall have the right to permit other
providers of communications services to install equipment or devices in the Public Right -of -Way.
C. Waiver of Breach. The waiver by either party of any breach or violation of any provision of
this Agreement shall not be deemed to be a waiver or a continuing waiver of any subsequent breach or
violation of the same or any other provision of this Agreement.
D. Severabilityof Provisions. If any one or more of the provisions of this Agreement shall be
held by court of competent jurisdiction in a final judicial action to be void, voidable, or unenforceable, such
provision(s) shall be deemed severable from the remaining provisions of this Agreement and shall not affect
the legality, validity, or constitutionality of the remaining portions of this Agreement. Each party hereby
declares that it would have entered into this Agreement and each provision hereof regardless of whether any
one or more provisions may be declared illegal, invalid, or unconstitutional.
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E. Federal and State Authorizations. The Company has obtained all government licenses,
permits and authorizations by the Federal Communications Commission which are required in order to
provide the Services.
F. Governing Law; Jurisdiction. This Agreement shall be governed and construed by and in
accordance with the laws of the State of Colorado, without reference to its conflicts of law principles. If suit
is brought by a party to this Agreement, the parties agree that trial of such action shall be vested exclusively
in the state courts of Colorado, County of Weld, or only to the extent that provisions of federal law apply to
the dispute, in the United States District Court for the District of Colorado.
G. Attorneys' Fees. Should any dispute arising out of this Agreement lead to litigation, the
prevailing party shall be entitled to recover its costs of suit, including (without limitation) reasonable attorneys'
fees.
H. Consent Criteria. In any case, where the approval or consent of one party hereto is required,
requested or otherwise to be given under this Agreement, such party shall not unreasonably delay, condition,
or withhold its approval or consent.
1. Representations and Warranties. Each of the parties to this Agreement represents and
warrants that it has the full right, power, legal capacity, and authority to enter into and perform the parties'
respective obligations hereunder and that such obligations shall be binding upon such party without the
requirement of the approval or consent of any other person or entity in connection herewith.
J. Amendment of Agreement. This Agreement may not be amended except pursuant to a
written instrument signed by both parties.
K. Force Maleure. With respect to any provisions of this Agreement, the violation or non-
compliance of any term of this Agreement which could result in the imposition of a financial penalty, damages,
forfeiture or other sanction upon a party, such violation or non-compliance shall be excused where such
violation or non-compliance is the result of acts of God, war, civil disturbance, pandemic, strike or other labor
unrest, or other events, the occurrence of which was not reasonably foreseeable by such party and is beyond
such party's reasonable control.
L. Entire Agreement. This Agreement contains the entire understanding between the parties
with respect to the subject matter herein. There are no representations, agreements, or understandings
(whether oral or written) between or among the parties relating to the subject matter of this Agreement which
are not fully expressed herein. Any prior oral or written, agreements or licenses between the parties
concerning use of the Public Right -of -Way is superseded by this Agreement.
In witness whereof, and in order to bind themselves legally to the terms and conditions of this Agreement,
the duly authorized representatives of the parties have executed this Agreement as of the Effective Date.
SIGNATURE PAGE FOLLOWS.
Page 13 of 16
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a4, a rs eith M vin Attorney
Mi Hz Lu'a, MC, Town Cir
IJghtGg Communications, LI_C
By.FiL .., t
Page 4 of 16
EXHIBIT A
COMPANY SHALL PROVIDE THE FOLLOWING AS IS APPLICABLE TO BE CONSIDERED BY THE TOWN
IN WHETHER TO GRANT THE SUPPLEMENTAL SITE LICENSE:
1. Plan and profile drawings, engineering design, and specifications for installation of the Facility, including
the equipment shelters, cables, conduit, pull boxes, pedestals, fiber runs, point of demarcation, electrical
distribution panel, electric meter, electrical conduit and cabling, and all other associated equipment.
Where applicable, the design documents shall include specifications on design and A.D.A. compliance.
a. The plot plan shall show existing sidewalk size, existing utilities, existing trees, traffic control signs
and equipment, and other existing improvements located within 30 feet of any Equipment.
2. The number, size, type, and proximity to the facilities of all communications conduit(s) and cables to be
installed.
3. Description of the utility services required to support the facilities to be installed.
4. Completed Right-of-way Permit Application
ALL SUPPLEMENTAL SITE LICENSE MATERIALS SHALL BE LABELED WITH THE APPLICABLE
SUPPLEMENTAL SITE ID NUMBER
THE TOWN WILL RETAIN ALL DOCUMENTATION FOR GRANTED SUPPLEMENTAL SITE LICENSES
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EXHIBIT B
SUPPLEMENTAL SITE LICENSES
THE FOLLOWING SUPPLEMENTAL SITE LICENSES HAVE BEEN GRANTED BY THE TOWN:
SUPPLEMENTAL SITE ID NO. I DATE GRANTED I APPROVED BY:
1616