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HomeMy WebLinkAbout25-07 Approving Master ROW w SVVSD RE1J for install of Fiber Optic Network Equipment 01-22-2025RESOLUTION N0.25-07 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 ST. VRAIN VALLEY SCHOOL DISTRICT RE-1J FOR THE INSTALLATION AND OPERATION OF FIBER OPTIC NETWORK EQUIPMENT IN TOWN -CONTROLLED RIGHTS -OF -WAY WHEREAS, to supply fiber optic Internet to its school facilities, St. Vrain Valley School District RE-H ("District") 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 the District wish to define the terms of the District's use of Town right-of-way for the above -stated purpose (the "Use Agreement"); and WHEREAS, the Use Agreement requires the District to obtain a supplemental site license from the Town for each public right -of --way segment in which the District 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, the District and the Town wish to define the terms of the District's license to construct, install and operate its fiber optic network equipment; and WHEREAS, the attached Use Agreement and Supplemental Site License Agreement, working together, clearly define the rights and responsibilities of the parties in relation to the District'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, COLORAD"a Section 1. The Master License Agreement between the Town of Firestone and St. Vrain Valley School District RE-1J9 in "Lill 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 St. Vrain Valley School District RE-1J, 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 5. The Town Manager, or his designee, is authorized to hereafter amend the terms and conditions of the Supplemental Site License Agreement in conjunction with future planned fiber optic network equipment installations in Town -controlled right-of-way by St. Wain Valley School District R& H. PASSED AND ADOPTED this 22°d day of January, 2025. Con ATTEST: Missy Carranco, Deputy Town Clerk APPROVED AS TO TOWN OF FIRESTONE NON-EXCLUSIVE MASTER RIGHT-OF-WAY USE AGREEMENT FOR FIBER NETWORKS This MASTER R GHT-OF-WAY USE AGREEMENT ("Use Agreement") is dated as of the QjRay of d 4A 202,5 (the `Effective Date"), and entered into by and between the TOWN OF FIRESTONE, a Colorado municipal corporation with an address of 9950 Park Avenue, Firestone, Colorado 80504 (the "Town"), and St Vrain Valley School District RE-1 J, a Colorado political subdivision (the "District" or "Company"). RECITALS A. The Town is the owner of a property interest ("Property") for public right-of- way ("R.O.W.") and desires to protect and preserve the R.O.W. The Town further maintains police power authority to regulate access to and use the R.O.W. in a manner that protects the public health, safety and welfare, consistent with Applicable Law. B. District will own, maintain, operate and control, and as of the Effective Date, is in the process of building out, a fiber -based telecommunications Network or Networks intended to supply fiberoptic internet to the District's school facilities. The District Network is not being operated as a public utility that would require a certificate of authority from the Federal Communications Commission or satisfaction of registration requirements under applicable federal and state law. C. For purpose of operating the network, the Company desires 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 B. D. The Town desires to grant to Company a non-exclusive ("License") for the above -stated purpose, upon the terms and conditions contained below, and in accordance with Applicable Law. AGREEMENT 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 Laws" 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, Cl"d expense 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. "Eaui�ment" 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 District to serve its school facilities within the Town . "Public Right -of --Way" or "Right of Way" 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 school facilities within the Town. "Town" means the Town of Firestone, a Colorado statutory municipality. II. TERM A. This Use Agreement shall be effective as of the Effective Date and shall extend for a term of ten (10) 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 the District 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. Upon expiration of the initial term, this Use Agreement may be extended for an additional agreed upon period of time upon the mutual execution by the Parties of a written amendment to this Use Agreement, II[. 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 Review Process and Requirements. Nothing in this Agreement shall waive or modify the Company's obligation to comply with the Town's applicable review procedures and requirements set forth in Applicable Laws, in the placement of the Company's Equipment. C. No Interference. In the performance and exercise of its rights and obligations under this Agreement, Company shall not interfere in any manner with the current or future existence and operation of 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.&101, et seq., as such maybe amended from time to tI me. IV. CONSTRUCTION A. Supplemental Site License. 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. Granted supplemental site licenses will be attached to this document as part of Exhibit B. The 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 in the Town. 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 Laws, 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. 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. Blastin .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 representative may give for the protection or safety 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. V. RELOCATION AND DISPLACEMENT 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 Town 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 protector 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 the foregoing provision, 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 abandons the use of Equipment for a period of six (6) or more consecutive months, 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. Damaae and Restoration. Unless otherwise provided by Applicable Laws, 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 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 Laws. 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 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 the 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 the 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, 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 the Town has permitted or allowed natural gas, storage, transmission, distribution, or related facilities on the Property, and that 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 of 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 by rectifier and related anode beds, and that the Town shall not be liable for stray current or interfering signals induced in the lI censed facility as a result of the operating of the cathodic protection system. C. The Company agrees and understand that if the Town has permitted and allowed to be constructed electric transmission, distribution, or related facilities on the Property, that 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. HAZARDSOUS SUBSTANCES A. The Company agrees that the Company, its contractors, subcontracfiors 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 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. VIII. WAIVER A. Deleted. 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 damages. The District 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. 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. Deleted. K. INSURANCE. A. The District shall obtain and maintain or self -insure, at its own cost, at all times during the term of this Agreement a policy or policies of insurance sufficient to insure against claims, demands, and other obligations assumed by the District pursuant to this Agreement, and which protect the Town on a primary basis from any all claims arising out of or in connection with the District's activities, operations, rights, obligations, and duties pursuant to this Agreement. B. Required Policies and Coverages. The Company shall cause of all its contractors to obtain and maintain at their 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 accident/disease/policy limit. All required insurance policies shall include the Town, its Board members, officers, and employees as additional insureds as their interest may appear under this Agreement for any covered liability arising out of the contractor'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. Any insurance carried by the Town, its officers, its employees or its contractors shall be excess and non-contributory insurance to that provided by the Company or its subcontractors. Upon receipt of notice from its insurer(s) the Company or its contractors 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 or its contractors, the Town may increase the aforementioned limits of insurance at any time I its reasonable discretion. The Company or its contractors shall require all of its subcontractors to maintain substantially the same coverage with substantially the same limits as required of Company's contractors. C. Filing of Certificates and Endorsements. Prior to the commencement of any work pursuant to this Agreement, the Company shall file, or cause its contractors to file, with the Town the required original certificate(s) of insurance with blanket additional insured endorsements, which shall state the following. I. 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 or its contractors insurance policies are primary as respects any other valid or collectible insurance that the Town may possess, including any self -insured retentions the Town many 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 III. That the Company's or its contractor's insurance policies waive any right of recovery the insurance company may have against the Town. The certificates) of insurance shall be mailed to the Town at the address specified in Section X. 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's contractors shall be admitted and authorized to do business in the State of Colorado and shall carry a minimum rating assigned by A.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. 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: and If to the Town: Town of Firestone Attn: Town Engineer 9950 Park Ave Firestone, CO 80504 if to Company_ St Vrain Valley School District RE-1 J Attn: Chief Technology Officer 2929 Clover Basin Dr Longmont, CO 80503 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: Websitea https://www.svvsd.org/, Number::SWSD Dispatch (303) 682-7333 XI. TERMINATION. A. Default. If a Party defaults on any material covenant or term under this Use Agreement, the other Party may terminate this use Agreement after the following occurs: The Party wishing to terminate has sent written notice to the other Party that describes the event of default. The defaulting Party then may cure the default within 45 business days after the defaulting Party receives the written notice. If the defaulting Party does not cure the default within that time, then the other Party may declare the Use Agreement terminated by sending written notice to the defaulting Party, stating that the Use Agreement is terminated and the date when the termination is effective. II. If the default cannot be cured within those 45 days, then the defaulting Party may begin curing the default within those 45 days and then take all necessary steps continuously to bring the cure to completion. If the defaulting Party either does not begin curing the default or begins the cure within those 45 days but then does not take all necessary steps continuously to bring the cure to completion, then the other Party may declare the Use Agreement terminated by sending written notice to the defaulting Party, stating that the Use Agreement is terminated and the date when the termination is effective. Except as expressly provided herein, the rights granted under this Use Agreement are irrevocable during the term. B. Effect of Termination. I. Removal of Equipment. Upon the expiration or termination of this Agreement, the Company may promptly, safely and carefully remove the Equipment and Network from the Public Right -of -Way. Prior to undertaking any removal work, however, the 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 the Company, shall have the right at the Town's sole election, but not the obligation, to perform this removal work and charge the 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 it 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 Laws. 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 Laws. II. Abandonment of Equipment. Upon the expiration or termination of this Use Agreement, the 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, the 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, and then 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 of the Town's receipt of written notice. III. The Company must exercise one or both of the options provided in Section XI.B.I or XI.B.II, above, within six (6) calendar months of the date of termination or expiration of this Use Agreement. The Town shall notify the Company when it has one (1) calendar month remaining before the & month timeframe for removal or abandonment expires. The Town's failure to notify the Company shall not toll or otherwise affect the running of the & month time frame for removal or abandonment. If the Company does not take any action to remove its Equipment pursuant to Section XI.B.I or fails to affirmatively abandon its Equipment pursuant to Section XI.B.II 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, 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. 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 Use Agreement or of the Company's rights under it, the Company, itself, or the Company's title or ownership of any Equipment located in the Public Right -of -Way. A. Subject to Subsection D, 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 Use 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 Subsection A, 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: I. 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 II. 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 III. 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 Use Agreement, except that any such claims, suits or proceedings relating to insurance claims, theft of service, or employment matters need not be disclosed; or VI. Is financially insolvent; or 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 Use 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. The Company grants to the Town a right of first refusal to acquire all right, title and interest of any kind or nature whatsoever with respect to the Equipment located in the Public Right -of -Way. Except for those transactions that do not require Town consent as described in Subsection A or B above, the Company will not sell, transfer, convey, assign or dispose of its title or ownership rights in the Equipment without first offering such interests to the Town for purchase at fair market value. The right of first refusal granted to the Town shall be honored by the Company and exercised in the following manner: If the Company receives a bona fide offer to purchase or otherwise acquire title to its Equipment, or any part thereof, from a proposed transferee, any contract which may be entered into between the Company and such proposed transferee shall specifically provide that the transaction shall be subject to the right of first refusal set forth in this Use Agreement. No later than 60 business days after the Company receives an offer to purchase its Equipment from a proposed transferee, the Company shall submit to the Town a term sheet, containing the same terms and conditions as the proposed transferee's offer, counteroffer or as stated in the purchase and sale contract with the proposed transferee, except if and to the extent that the Company may be prohibited by law to disclose any such information. II. If the Town accepts such offer in writing no later than 30 business days after receipt of the Company's offer, then it shall close upon such interests within 180 calendar days after the date on which the Company received the Town's written acceptance. III. If the Company does not receive the Town's written acceptance within the time required above, or the town rejects the Company's offer, then the Company shall have the right to consummate the proposed sale and conveyance with the same proposed transferee and the Company has no further obligation to the Town with respect to the proposed transaction with the proposed transferee. IV !f the proposed sale and conveyance to the same proposed transferee is not consummated, the Town's right of first refusal shall not be deemed waived or cancelled, but shall remain in full force and effect. V. The Town's right of first refusal set forth in this Subsection D remains in effect for as long as the Company owns the Equipment with respect to any subsequent proposed transactions. 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 Use Agreement at any point during the term of this Use Agreement. F. 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. G. Any sale, transferor assignment of this Agreement will bind the successor in interest to the terms of this Agreement. H. 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. LEASES OF FIBER EQUIPMENT. A. District may make excess capacity or provide fiber strands in the Fiber Equipment to other governmental entities including counties, cities, and including institutions of higher education, or political subdivisions, or to private parties (each an 'Entity"), provided District executes an agreement with said Entity prior to the District making excess capacity available to or providing fiber strands in the Fiber Equipment to any Entity, whereby both District and said Entity explicitly acknowledge, affirm and agree to the aforementioned terms and conditions in this Agreement, and further provided that District provide a copy of said executed agreement to the Town within fifteen (15) days of the execution date of said agreement. Furthermore, the District making excess capacity or providing fiber strands in the Fiber Equipment to any Entity shall not relieve District from any and all of its responsibilities and obligations assumed by this Agreement, or from complete and proper fulfillment of the terms and conditions of this Agreement, neither does it require that Town treat any Entity as a party to this Agreement or compensate District for damages or loss, in any manner whatsoever, due by reason of District making excess capacity or providing fiber strands in the Fiber Equipment to any Entity. B. Revenue -Sharing. As of the date of this agreement District has no plans to lease Fiber Equipment to an outside provider or other third party. District plans to utilize Equipment, for purposes related to the Services, and therefore no revenue is expected to be generated. Prior to District leasing or otherwise allowing use of the Fiber Equipment by any third party in exchange for compensation, and/or any revenue being realized by the District as a result of third party use of the Fiber Equipment, District shall enter into an agreement providing for the sharing with the Town of, at minimum, 20% of any and all revenue, payments, receipts, charges, fees, or income of any kind accruing to District from an Entity's lease or use of the Fiber Equipment, during the entire term of such Entity's lease or use of the Fiber Equipment. XIV. 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 the construction of any licensed facy. B. Nan -exclusive Use, The Company understands that this Agreement does not provide the Company with exclusive use of the Public Right -of -Way and that the 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. Severability of 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. 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. I. 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 Majeure. With respect to any provisions of this Agreement, the violation or noncompliance 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. THE TOWN OF FI�j=STONE / By. s ro P °ass rovwa'< IL ATTEST: A �0 TY, G O S By: �GJ� V Y Missy Carranco, Deputy Town Clerk APPROVED AS TO CONTENT: By: Matt Wiedersp Town Enginee P.E. Don Conyac, Mayor ED AS TO FORM: By: William P. Hayashi, Town Attorney ST VRAIN VALLEY SCHOOL DISTRICT RE-1J: Brian Lamer Assistant Superintendent of Operations a� W 0 a� H Ey 0 Z O O V a bJD � W O Ey � wa oz F''HA w zao HA WW H z O A W W a ompo 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 Facy, 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 ADA compliance. a. The plot plan shall show existing sidewalk size, existing utilities, existing trees, traffic control signs and equipment, and other existing improvements. 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. A typewritten legal description with (1) the Section, Township and Range, and County being affected, and if it is part of a subdivision, it shall be stated also; (2) the Point of Beginning to an established land corner or to a subdivision plat that is tied to an established land corner, with curves showing radius, delta, arc length and angle to radius point if curve is non -tangent, and area to be included in square feet; and (3) the legal description SIGNED and SEALED by a surveyor registered in the State of Colorado. 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 Right -Of -Way Use Agreement EXHIBIT B SUPPLEMENTAL SITE LICENSES THE FOLLOWING SUPPLEMENTAL SITE LICENSES HAVE BEEN GRANTED BY THE TOWN: SUPPLEMENTAL DATE GRANTED APPROVED BY: SITE ID NO.