HomeMy WebLinkAbout2019 Ordinance No. 024ORDINANCE NO. 24
SERIES OF 2019
BY AUTHORITY
COUNCIL BILL NO. 21
INTRODUCED BY COUNCIL
MEMBER RUSSELL
AN ORDINANCE AUTHORIZING THE ADMINISTRATIVE APPROVAL
OF SMALL CELL LICENSE AGREEMENTS.
WHEREAS, on March 11, 2019 staff presented the draft small cell agreement for
City Council's review;
WHEREAS, the license agreement is to be used for future construction and use of
the City's right-of-ways and City owned traffic signal poles for the construction and
placement of small cell antennas by telecommunication companies;
WHEREAS, under both Federal and State law telecommunication companies
have been given the right to use locally owned rights-of-way for the siting of small cell
antennas, and expressly limiting local control over these companies;
WHEREAS, the license agreement will provide a regulatory framework outlining
the terms and conditions that telecommunication companies will have to comply with when
constructing in the City's right-of-way or when using any City owned traffic signal pole;
WHEREAS, the license agreement will also provide design standards, yearly
payment amounts to the City for the use of the right-of-way, indemnification of the City,
and allow for co-location of facilities among the telecommunication companies; __
WHEREAS, in the event that any major amendments to the Federal or State
statutes which in turn may impact or require a major modification or amendment to the
City license agreement, such modification or amendment shall be provided to the City
Council for their review; and
WHEREAS, allowing for the administrative approval of the license agreement will
provide the City the ability to approve the license agreement within the 90 day approval
window as set forth by the Federal Act.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY
OF ENGLEWOOD, COLORADO, AS FOLLOWS:
Section 1. The Small Cell License Agreement attached hereto as "Exhibit A", shall
be approved administratively by City staff and departments.
Section 2. That any future amendments to the Federal Act or State Statute
which require a change to the License Agreement attached hereto, shall be presented to
the Englewood City Council for their review.
Section 3. The Public Works Director and City Manager are hereby authorized to
sign and the City Clerk to attest to the approval of Small Cell License Agreements.
Introduced , read in full , and passed on first reading on the 20 th day of May 2019 .
Published by T itle as a Bill for an Ordinance in the City's official newspaper on the
23rd day of May , 20 19 .
Published as a Bill for an Ordinance on the City's official website beginning on the
22nd day of May , 2019.
Read by Title and passed on final reading on the 10th day of June , 2019.
Published by Title in the City's official newspaper as Ordinance No . 24, Series of
2019 , on the 13th day of June , 2019.
Published by t itle on the City's official website beginn ing on the 12th day of June,
2019 for thirty (30) days.
This Ordinance shall take effect thirty (30) days after publication following final
passage .
ATTEST:
I , Stephan ie Carlile , City Clerk of the City of Englewood , Colorado , hereby certify
that the above and foregoing is a true copy of the Ordinance passed o I reading and
published by Title as Ordinance No . 24, Series of 2019.
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SMALL CELL FACILITIES and SMALL CELL NETWORK
LICENSE AGREEMENT
BETWEEN
THE CITY OF ENGLEWOOD
and
THIS LICENSE AGREEMENT DATED THIS ___ DAY OF
________ _,20_, IS ENTERED INTO BY AND BETWEEN THE CITY
OF ENGLEWOOD, A COLORADO HOME RULE MUNICIPALITY ("CITY") AND
____________________ ("LICENSEE").
WHEREAS, the City has made significant investments of time and resources in the
acquisition and maintenance of the Public Rights-of-Way and such investment has enhanced the
utility and value of the Public Rights-of-Way;
WHEREAS, the City Public Rights-of-Way within the City are used by and useful to
private enterprises including Licensee and others engaged in providing telecommunications,
utilities and other services to citizens, institutions, and businesses located in the City;
WHEREAS, the right to access and/or occupy portions of the City Public Rights-of-Way
for limited times, for the business of providing communications services, is a valuable economic
privilege, the economic benefit of which should be shared with all tax payers;
WHEREAS, beneficial competition between providers of communications services can
be furthered by the City's provisions of grants oflocations and rights to use the City Public Rights-
of-Way on non-discriminatory and competitively neutral terms and conditions;
WHEREAS, Licensee is a private enterprise engaged in installing facilities related to
and/or providing various communications services within the City by means of fiber connected
Distributed Antenna Systems or other Small Cell facilities (Small Cell Facility or Small Cell
Networks);
WHEREAS, Licensee desires to physically install and occupy portions of the City Public
Rights-of-Way to install additional poles, or to utilize existing poles owned by a third party, or to
utilize City owned light, traffic signal or other City owned poles for use of its Licensee Facilities;
WHEREAS, Licensee agrees to compensate the City for installation and/or operation of
all Equipment, supporting structures for Equipment, Equipment shelters, or poles associated with
Licensee's Facilities in exchange for a grant oflocation and the right to use and physically occupy
portions of the public rights-of-way for the limited purposes and times set forth below; and
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WHEREAS, the City grants this license pursuant to its authority to manage its Public
Rights-of-Way and public spaces including, without limitation, its authority granted by state
statutes and its own ordinances.
NOW, THEREFORE, BE IT RESOLVED, in consideration of the terms and
conditions contained in this Agreement, the City and Licensee do hereby agree:
1.0 DEFINITIONS.
Except as otherwise defined herein, the following terms shall have the meanings given below:
Ll "Agency" means any governmental agency or quasi-governmental agency other
than the City, including, but not limited to, the Federal Communications Commission and the
Colorado Public Utilities Commission.
1.2 "Agreement" means this Agreement for the use of City owned property and Rights-
of-Way for the operation of a Small Cell Facility or Small Cell Network.
1.3 "Antenna" means communications Equipment that transmits or receives
electromagnetic frequency signals used to provide wireless service.
1.4 "Attachment Fee" or "Pole Attachment Fee" means that rental/pole occupation fee
described in Section 7.1 of this Agreement.
1.5 "Business Day" means any day other than a Saturday, Sunday or day observed as
an official holiday by the City.
1.6 "Broadband Facility" means any infrastructure used to deliver Broadband service
or for the provision of Broadband service.
I. 7 "Broadband Provider" means a person that provides broadband service, and
includes "cable operator", as defined in 47 U.S.C. sec. 522 (5) as of August 6, 2014.
1.8 "Broadband" or "Broadband Service" has the same meaning as set forth in 7 U.S.C.
sec. 950bb (b) (I) as of August 6, 2014, and includes "cable service", as defined in 47 U.S.C. sec.
522 (6) as of August 6, 2014.
1.9 "City" means the City of Englewood, a Colorado home rule municipality
I. IO "City Facilities" means those City-owned poles and fixtures located within the
rights-of-way, including without limitation, streetlight poles and vertical portions of traffic signal
poles that are designated or approved by the City as being suitable for placement of the Licensee's
Facilities.
I.I I "Code" means the City's Charter, Englewood Municipal Code 2000 as amended
from time to time, and any other City regulations, procedures or policies governing the use of City
owned property or rights-of-way.
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1.12 "Collocation" means the mounting or installation of broadband service Equipment
on a tower, building, or structure with existing broadband service Equipment for the purpose of
transmitting or receiving radio frequency signals for communication purposes.
I. 13 "Company" means the Licensee to this Agreement.
1.14 "Day" means any calendar day, unless a Business Day is specified. For the purposes
hereof, if the time in which an act is to be performed falls on a Day other than a Business Day, the
time for performance shall be extended to the following Business Day. For the purpose hereof,
the time in which an act is to be performed shall be computed by excluding the first Day and
including the last.
1. 15 "Equipment" means Licensee Facilities, Micro-Wireless Facilities, and other
wireless communications equipment (which includes, but is not limited to, antennas, remote radio
heads, cables, devices, conduits, wires, fiber, technology, meters, and other equipment Licensee
deems necessary to operate the Equipment and Licensee's Facilities in order to provide
telecommunications services and uses incidental thereto) that is specifically identified and
described in Exhibit A-1 attached to each Site Supplement (as defined below).
1.16 "FCC" mean the Federal Communications Commission.
1.17 "Grant" when used with reference to grant or authorization of the City, means the
prior written authorization of the City of Englewood (and/or its various boards, commissions and
departments) unless another person or method of authorization is specified herein or under
applicable law. Grant does not mean "Approval" as contemplated in various FCC determinations
related to subsequent collocation requests which are expressly not granted by this Agreement.
1.18 "Hazardous Material" means any substance, waste or material which, because of
its quantity, concentration or physical or chemical characteristics is in fact or deemed by any
federal, state or local governmental authority to pose a present or potential hazard to human health
or safety or to the environment.
1.19 "Interference" means physical interference and radio frequency interference.
1.20 "Law or Laws" means any federal, state or local laws, statutes, ordinances,
resolutions, regulations, rules, tariffs, administrative orders, certificate, order, or other lawful
requirement in effect either at the time of execution of this Agreement or at any time during the
period the Small Cell Facilities or Small Cell Networks are located in the Public Rights-of-Ways.
1.21 "Licensee" means _________________ who is the other
party to this Agreement. Licensee includes the Company.
1.22 "Licensee Facility" means and includes Licensee's Small Wireless Facilities, Small
Cell Networks, Micro-Wireless Facilities, Networks, Equipment, Antennas, Broadband Facilities,
Wireless Service Facilities, and/or Wireless Sites.
1.23 "Macro-cell" means and includes technology associated with operation of
structures and Equipment built for the sole or primary purpose of supporting facilities licensed or
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authorized by the Federal Communications Commission to provide high powered wireless
communication service coverage and the facilities' associated facilities, including private,
broadcast, and public safety services; unlicensed wireless services; fixed wireless services such as
backhaul.
1.24 "Micro-Wireless Facility" means any small wireless facility that is no larger in
dimensions then twenty-four (24) inches in length, fifteen (15) inches in width, and twelve (12)
inches in height and that has an exterior antenna, if any, that is no more than eleven inches in
length.
1.25 "Network" or collectively "Networks" means one or more of the wireless and fiber
based communications facilities operated by the Licensee to serve its wireless customers in the
City of Englewood, Colorado.
1.26 "Permit" means a permit issued and described in accordance with the laws,
regulations and ordinances of the City, and is used to regulate, monitor and control construction,
excavation or improvement activities or other work in the City's rights-of-ways by the Licensee.
1.27 "Person" means an individual, corporation, partnership, a sole proprietorship, joint
venture, business trust, or any other form of business association or governmental agency.
1.28 "Physical Interference" means where Equipment, vegetation or a structure causes
reduced use of another's prior mounted Equipment, or an obstruction in a necessary line-of-sight
path.
1.29 "Pole" means light poles, wooden power poles, traffic light poles, highway sign
poles, utility poles, lighting fixtures or other similar poles located in the Public Rights-of-Ways
under the jurisdiction of the City, installed and placed by Licensee, or following transfer from the
City or other third parties, and may refer to such facilities in the singular or plural, as appropriate
to the context in which used. The term poles excludes any historically or architecturally significant
poles owned by the City located on Public Rights-of-Way or, other similar street features.
1.30 "Public Property" means any real property owned by the City of Englewood, other
than City Public Rights-of-Way.
1.31 "Public Ways" or "Public Rights-of-Way" means the areas in, upon, above, along,
across, under and over the public streets, sidewalks, roads, lanes, courts, ways, alleys, boulevards,
buildings and any other public places owned by and within the City as the same now or may
hereafter exist and which are under the permitting jurisdiction of the City.
1 .32 "Public Highway" means all roads, streets, alleys and all other dedicated rights-of-
way and utility easements of the state or any of its political subdivisions, whether located within
the boundaries of a political subdivision or otherwise.
1.33 "Radio Frequency Interference" means the radiation or conduction of radio
frequency energy ( or electronic noise) produced by electrical and electronic devices at levels that
interfere with the operation of adjacent or nearby Equipment.
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1.34 "Release" when used with respect to Hazardous Material means any actual or
imminent spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting,
escaping, leaching, dumping, or disposing into or inside any existing improvements or any
improvements constructed hereunder by or on behalf of Licensee.
1.35 "Rights-of-Way" means the surface of and space above and below the public roads,
streets and alley rights-of-way, and public utility easements or other public ways of any type
whatsoever, now or hereafter located and existing within the city limits of the City of Englewood,
Colorado whether or not improved.
1.36 "Services" means those services provided by or through Licensee Facilities as
specifically identified in the detailed plans and specifications attached to the applicable Site
Supplement Form (see Exhibit A-1). If the City grants the provision of any other services by
Licensee, upon such grant, the definition of "Services" shall automatically be revised to include
any such grant of additional services. Unless specifically expressed in this Agreement, Service
does not mean cable television service of any kind.
1.37 "Small Cell Facility" means either:
(a) A personal wireless service facility as defined by the federal
"Telecommunications Act of 1996", as amended as of August 6, 2014, and
as defined by C.R.S. § 29-27-402(4); or
(b) A wireless facility that meets both of the following qualifications:
(i) Each antenna is located inside an enclosure of no more than three
cubic feet in volume or, in the case of an antenna that has exposed
elements, the antenna and all of its exposed elements could fit within
an imaginary enclosure of no more than three cubic feet; and
(ii) Primary Equipment enclosures are no larger than seventeen cubic
feet in volume. The following associated Equipment may be located
outside of the primary Equipment enclosure and, if so located, is not
included in the calculation of Equipment volume: Electric meter,
concealment, telecommunications demarcation box, ground-based
enclosures, back-up power systems, grounding Equipment, power
transfer switch, and cut-off switch.
(c) "Small Cell Facility" includes a Micro-Wireless Facility.
1.38 "Small Cell Network" means a collection of interrelated Small Cell or Micro-
Wireless Facilities designed to deliver telecommunications service, including Licensee Facilities
or related Equipment installed and/or operated by Licensee for the provision of telecommunication
services including the fiber optic or other cables, Equipment, Antennas, brackets, devices,
conduits, poles, shelters, houses, cabinets and all other related Equipment to be deployed, installed
and/or operated by Licensee as described in Exhibit A-1 attached hereto and any facilities that
rep lace the same.
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1.39 "Telecommunications Provider" means a person that provides telecommunications
service (including Broadband Service), as defined in 47 U.S.C. sec. 153, with the exception of
cable television services as defined by section 602(5) of the federal "Cable Communications Policy
Act of 1984", 47 U.S.C. sec. 522 (6), pursuant to authority granted by the public utilities
commission of this state or by the federal communications commission. "Telecommunications
provider" does not mean a person or business using antennas, support towers, Equipment, and
buildings used to transmit high power over-the-air broadcast of AM and FM radio, VHF and UHF
television, and advanced television services, including high definition television. The term
"telecommunications provider" is synonymous with "telecommunication provider".
I .40 "Term" means the initial period that this Agreement is in effect as set forth in
Section 2.0 of this Agreement.
1.41 "Tower" means any structure built for the sole primary purpose of supporting
antennas licensed or authorized by the Federal Communications Commission and the antennas'
associated facilities, including structures that are constructed for wireless communications services
including private, broadcast, and public safety services; unlicensed wireless services; fixed
wireless services such as backhaul; and the associated site.
1.42 "Wireless Service Facility" means a facility for the provision of wireless service;
except that "wireless service facility" does not include coaxial or fiber-optic cable that is not
immediately adjacent to, or directly associated with, a particular Licensee Facility.
1.43 "Wireless Site" means a location in the City Public Rights-of-Way selected for the
Licensee's deployment of Equipment and its Licensee Facility.
2.0 TERM OF AGREEMENT.
The term of this Agreement shall commence on the date of execution by the City
("Commencement Date") and shall be in effect for not less than twenty (20) years. Upon written
notice to the City delivered no later than one year before the end date of the term of this License,
the Licensee may request to amend this License to extend the end date to a proposed new date.
Assuming the Licensee has met all conditions of the License and performed to the City's
satisfaction in providing the Services in the City, and assuming the City believes that an extension
of the term of this License would be in the public interest, the term end date of this Agreement
may be extended subject to whatever modifications of other Agreement terms and conditions the
City may find appropriate and parallel with any termination and/or extension of any related City
or other Permits and Site Supplements then in effect.
2.1 Site Supplement. For each Licensee Facility or batch of Licensee Facilities, the
parties shall enter into a Site Supplement in the form attached hereto as Exhibit A, which shall
include the Permit set forth in Section 4.5 (and approved within the timeline set forth herein). Each
Site Supplement shall be for a period of five (5) years ("Supplement Term") unless Licensee
terminates the Site Supplement by giving City no less than ninety (90) days written notice in
advance of the end of the Supplement Term or any Supplement Extension Term. Each Supplement
Term shall be automatically extended (unless terminated as above) for three (3) successive five (5)
year Supplement Terms (each a "Supplement Extension Term"). It is intended that any
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Supplement be coterminous with the applicable Permit issued for the Licensee Facility. If the
Agreement terminates, all Supplements and Permits in place at the time of the Agreement's
termination shall remain in effect, and the terms of the Agreement shall remain effective with
respect to such Supplements and not expire until the end of the Supplements' respective terms.
2.2 Licensee Cancellation. Licensee may cancel this Agreement or any Site
Supplement before the date of expiration by providing the City with One Hundred Eighty (180)
days written notice of cancellation. Any prepaid Pole Attachment Fee shall be retained by the
City. This Agreement and all Site Supplements may only be cancelled or terminated as provided
in this Agreement or any Site Supplement.
3.0 DESCRIPTION OF WORK.
The Parties acknowledge that the construction, maintenance, operation, and regulation of
Small Cell Facilities or Small Cell Networks, including the right to occupy and utilize the public
Rights-of-Way by Telecommunications Providers and Broadband Providers are matters of
statewide concern (§ 38-5.5-103(1) (b), C.R.S.), and that the siting, mounting, placement,
construction, and operation of Licensee Facilities are a permitted use by right in any zone district
(§ 29-27-403(3), C.R.S.) .
.11 Installation of Licensee Facility. During the term of this Agreement, Licensee is
authorized, on a non-exclusive basis, to locate or collocate and install, maintain, and operate
Licensee Facilities upon poles, light poles, or to locate or collocate, subject to the requirements
and limitations of the City's regulatory police powers, to City owned light poles, light standards,
traffic signal poles, utility poles or other City owned poles to house and operate a Small Cell
Facility, Micro-Wireless Facility or Small Cell Network in the City Public Rights-of-Way or other
City owned or controlled property, as more particularly identified in Exhibit A-Site Supplement
Form, Exhibit A-1 -Licensed Area and Description of Facilities Table 1, and Exhibit A-2 -Table
2. This Agreement does not give any rights to use any poles not owned by the City. The use of
non-City owned poles in the rights-of-way are subject to a separate agreement between the
Licensee and the owner(s) of said poles. This Agreement authorizes access to all City Public
Rights-of-Way to access, install, maintain, and operate Licensee Facilities on any pole upon which
the Licensee Facilities may be attached, regardless of the owner of the pole or structure.
3.1.1 Location of Licensee Facilities. The City and the Licensee will, as part of
the placement of facilities as part of the application process, agree on the optimal location and
installation of any Licensee Facilities on a pole prior to installation, based on reasonable regulatory
factors, such as the location of other present or future communications facilities, efficient use of
scarce physical space to avoid premature exhaustion, potential interference with other
communication facilities and services, the public safety and other critical public services;
provided, however, that such grant shall not be unreasonably conditioned, withheld, or delayed.
3.1.2. Map and List of Licensee Facilities. Licensee shall maintain, in a form
acceptable to the City, including non-digital and digital format compatible with the City's current,
and future, mapping software, i.e., ESRI Shape files, a current map and list of the location of all
facilities used by Licensee for its Licensee Facilities pursuant to this Agreement and located in the
City Public Rights-of-Way. Licensee shall provide such map and list to the City, no more
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frequently than once a year, and upon sixty (60) days' written notice to Licensee; and Licensee
shall, whether or not requested by the City, provide an updated list and map promptly after any
change is made in regard to the locations of the specific poles specified by Licensee in such lists
and maps. Licensee shall obtain all required permits and grants of the City and any of its
departments or agencies, and any other Agency with jurisdiction over the Licensee Facilities,
services, or the property on which the Licensee Facilities are or will be located prior to performing
the work under this Agreement and shall comply with all of the terms and conditions set forth in
these permits. Licensee shall not mount, construct, install, maintain, locate, operate, place, protect,
reconstruct, reinstall, remove, repair, or replace any Licensee Facilities on any pole, except as
expressly authorized by and in strict compliance with this Agreement, and the Design Standards
as set forth on Exhibit C herein, and shall not without further and separate authorization, otherwise
locate more than a facility of three (3) cubic feet or other related structure on any single pole.
3.1.3 Changes to Licensee Facilities or Their Location on Poles Located in City
Public Rights-of-Way. Licensee may install different or comparable Equipment on a pole, or on
the ground, if it is of the same or lesser dimensions than already present for the facility. If Licensee
proposes to install different but comparable Equipment, or if the Licensee Facilities or its location
on the poles located on the City Public Rights-of-Way deviate in any material way ( defined as
enlarging the cumulative size of Licensee Facilities by more than 10%) from the specifications
attached hereto as Exhibit D, then Licensee shall first obtain a grant for the use and installation of
the comparable Equipment for any such deviation in Licensee Facilities from the owners of the
poles located on the City Public Rights-of-Way and shall provide the City with written evidence
of such authorization. The City may not unreasonably deny use of the different but comparable
Equipment, or non-material deviation from the specifications set forth in Exhibit D with regard to
the placement of the Licensee Facilities on the poles located on the City Public Rights-of-Way,
pursuant to the factors enumerated under Section 3.1.1, and such grant shall not be unreasonably
conditioned, withheld, or delayed.
3.2 Provision of Services. The Licensee Facilities installed pursuant to this Agreement
may be used solely for the rendering of telecommunications and/or Broadband Services. If
Licensee proposes to make a material change to the nature or character of the services not expressly
permitted under this Agreement, including, without limitation, cable television services not
expressly permitted under this Agreement, Licensee, shall notify the City in writing of this
intended change not less than one hundred eighty (180) days prior to the proposed date of change
to Service. The City may either (i) accept the proposed change in Service on mutually agreeable
terms and conditions or (ii) require that the Services not be changed but rather continue to be
provided as contemplated herein.
3 .3 Restoration of Work Site Areas. Upon the completion of each task or phase of
work to be performed by Licensee under this Agreement, Licensee shall promptly restore all work
site areas to a condition reasonably satisfactory to the City and in accordance with the construction
design standards set forth on Exhibit D. The provision of this section shall survive the expiration,
completion or earlier termination of this Agreement.
3.4 Removal of Licensee Facilities. Upon one hundred and eighty (180) days' written
notice by the City pursuant to the expiration or earlier termination of this Agreement for cause,
Licensee shall promptly, safely and carefully remove the Licensee Facilities from and including
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all poles and other places located in the City Public Rights-of-Way. Such obligation of Licensee
shall survive the expiration or earlier termination of this Agreement. If Licensee fails to complete
this removal work on or before the one hundred and eighty (180) days subsequent to the issuance
of notice pursuant to this Section 3 .4, then the City, upon written notice to Licensee, shall have the
right at the City's sole election, but not the obligation, to perform this removal work and charge
the Licensee for the actual costs and expenses, including, without limitation, reasonable
administrative costs. Licensee shall pay to the City the reasonable costs and expenses incurred by
the City in performing any removal work and any storage of Licensee's property after removal
(including any portion of the Licensee Facilities) within forty-five ( 45) days of the date of a written
demand for this payment from the City. The City may, in its discretion, obtain reimbursement for
the above by making a claim under Licensee's surety bond. After the City receives the
reimbursement payment form Licensee for the removal work performed by the City, the City shall
promptly return to Licensee the property belonging to Licensee and removed by the City pursuant
to this Section 3.4 at no liability to the City. If the City does not receive the reimbursement
payment from the Licensee within such thirty (30) Business Days, or if City does not elect to
remove such items at the City's cost after Licensee's failure to so remove prior to one hundred and
eighty (180) days subsequent to the issuance of notice pursuant to this Section 3.4, any items of
Licensee's property, including without limitation the Licensee Facilities, remaining on or about
the City Public Rights-of-Way or stored by the City after the City's removal thereof may, at the
City's option, be deemed abandoned and the City may dispose of such property in any manner
allowed by law, and in accordance with any legal rights of persons other than the City who own
poles located in the City Public Rights-of-Way and used by Licensee. Alternatively, the City may
elect to take title to such abandoned property, whether the City is provided by the Licensee, an
instrument satisfactory to the City transferring to the City the ownership of such property, or not.
The provisions of this section shall survive the expiration or earlier termination of this Agreement.
3 .5 Risk of Loss or Damage. Licensee acknowledges and agrees that Licensee bears
all risk ofloss or damage of its Equipment and materials, including without limitation, the Licensee
Facilities, installed in the City Public Rights-of-Way pursuant to this Agreement from any cause,
and the City shall not be liable for any cost of repair to damaged Licensee Facilities, without
limitation, damage caused by the City's removal of Licensee Facilities, except to the extent that
such loss or damage was caused by the negligence or willful misconduct of the City, including
without limitation, each of its commissions, boards, departments, officers, agents, employees or
contractors.
3.6 Removal or Relocation of Licensee Facilities at City's Request. Licensee
understands and acknowledges that the City, at any time and from time to time, may require
Licensee to remove or relocate upon a written request for the City on one hundred twenty ( 120)
days' notice ( except in the case of an emergency, in which case telephonic notice will be given to
the telephone number on the pole as soon as possible) at Licensee's sole cost and expense, portions
of the Licensee Facilities whenever the City reasonably determines that the removal or relocation
is needed: (!) to facilitate or accommodate the construction, completion, repair, relocation, or
maintenance of a City project, (2) because the Licensee Facilities interferes with or adversely
affects the proper operation of the light poles, traffic signals, City-owned communications systems
or other City facilities, (3) because ofa sale or vacation of the City Public Rights-of-Way by the
City, (4) because there is a change in use of the public right-of-way by the City provided such use
similarly effects similarly Licensed users in the public right-of-way, (5) because there is damage
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to and/or removal of the pole, or (6) to preserve and protect the public health and safety, in a
manner not inconsistent with 47 U.S.C. § 332(c) (7). Licensee shall at its own cost and expense
remove, relocate, and/or adjust the Licensee Facilities, or any part thereof, to such other location
or locations in the City Public Rights-of-Way, or in such manner, as appropriate, as may be
designated or granted, in writing and in advance, by the City. The City will, in good faith, attempt
to provide a new location agreeable to Licensee in advance of any requested removal, relocation,
and/or adjustment. The Licensee shall be allowed to place a temporary site adjacent to the affected
site in order to allow continuous network service. Such removal, relocation, adjustment shall be
completed within one hundred twenty (120) days by the City in its written request and in
accordance with the terms of this Agreement. Licensee shall not be in default hereunder if it has
taken the appropriate action as directed by the City to obtain such grant. If Licensee fails to
remove, relocate, adjust or support any portion of the Licensee Facilities as described by the City
within the prescribed time, City may take all reasonable, necessary, and appropriate action, as
stated in Section 3.4.
4.0 PERMIT, LIMITATIONS AND RESTRICTIONS.
4.1 Limited Authorization. This Agreement does not authorize the placement of
Licensee Facilities or any other Equipment on sites, locations, structures or facilities other than
those specifically identified herein, or in a Site Supplement. Placement of the Licensee Facilities
shall comply with the terms of the City's conditions of access in effect as of the date of execution
hereof and as are applied equally to all Persons using the City Public Rights-of-Way under grant
by the City. The Agreement does not relieve Licensee of its burden of seeking any necessary
permission from other Agencies which may have jurisdiction regarding Licensee's proposed use.
4.2 No Authorization to Provide Other Services. Licensee represents, warrants and
covenants that its Licensee Facilities installed pursuant to this Agreement will be utilized solely
for the rendering of telecommunications and/or Broadband Services, and Licensee is not
authorized to, shall not use, the Licensee Facilities to offer or provide cable television services,
except as otherwise agreed to by City. Failure to abide by this may constitute a breach of this
Agreement, and the City, after providing Licensee with written notice and a meeting concerning
the same, may levy fines in an amount not to exceed one thousand dollars ($1,000.00) per day until
the breach is remedied together with all other remedies available at law or equity.
4.3 Reservation of Powers. The Parties reserve any and all powers they may have, now
or in the future under applicable local, state, or federal law, with respect to the Licensee Facilities,
their use, or the use of the City Public Rights-of-Way or of other City property. Licensee shall be
subject to all present and future ordinances of the City and its boards and commissions. Nothing
in this Agreement shall be construed as a waiver of any codes, ordinances or regulations of the
City or of the City's right to require Licensee to secure the appropriate permits or authorizations
for exercising the rights set forth in this Agreement.
4.4 All Permitted Activities Fees at Licensee's Sole Expense. Notwithstanding any
other provisions of this Agreement, the construction, operation, maintenance, removal and
replacement of Licensee Facilities, and all other activities permitted hereunder and all fees or
obligations of Licensee under this Agreement shall be Licensee's sole responsibility at Licensee's
sole cost and expense.
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4.5 Permit. Licensee shall obtain, at its sole expense, all applicable permits as are
required by City or any other Agency to perform work and ongoing use, as described in this
Agreement, of poles located on the City Public Rights-of-Way.
4.5.1 Permit Approval, Deadline and Exception. The City may take up to:
(a) Ninety (90) days to process the completed application for:
(i) Location or collocation of a Licensee Facility; or
(ii) Replacement or modification of a Licensee Facility or Facilities.
(b) Ninety (90) days to process a complete application that involves collocation
of a tower, building, structure, or replacement structure other than a Small
Cell Facility or Micro-Wireless Facility; or
( c) One hundred fifty (150) days to process a complete application that involves
a new structure or a new wireless service facility, other than a Small Cell
Facility, Micro-Wireless Facility, or Small Cell Network and other than a
collocation.
(d) The Licensee and City may mutually agree that an application may be
processed in a longer period than set forth above.
4.6 No Real Property Interest Created. Neither Licensee's use of the City Public
Rights-of-Way, nor anything contained in this Agreement, shall be deemed to grant, convey,
create, or vest in Licensee a real property interest in any portion of the City Public Rights-of-Way
or any other City property, including but not limited to, any fee or leasehold interest in any land
or easement. Licensee, on behalf of itself and any permitted successor, lessee, or assign recognizes
and understands that this Agreement may create an interest subject to taxation and that Licensee,
its successor, lessee or assign may be subject to the payment of such taxes.
4.7 All Rights Nonexclusive. Notwithstanding any other provisions of this Agreement,
any and all rights expressly or impliedly granted to Licensee under this Agreement shall be non-
exclusive, and shall be subject and subordinate to (I) the continuing right of the City to use, and
to allow any other Person or Persons to use, any and all parts of the City Public Rights-of-Way,
exclusively or concurrently with any other Person or Persons and (2) the public easement for streets
and any and all other deeds, title ( collectively "Encumbrances") which may affect the City Public
Rights-of-Way now or at any time during the term of this Agreement, including without limitation
any Encumbrance granted, created or allowed by the City at any time.
4.8 Collocation. This Agreement does not grant or approve any collocation rights to
any person or entity, related or unrelated to the Licensee. Licensee is authorized to install one
Licensee Facility per site. Additional facilities require new and additional licensure. In the event
the City grants a collocation or similar right of way use request to a third party, Licensee will, if
feasible, make such accommodations necessary to allow such collocation or pole attachment on
any pole or other support structure referenced in this Agreement. This includes fees and/or pole
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attachment agreements and fees that are fair and reasonable as defined by the City, State, or FCC.
If collocation is not feasible, the collocation will not be permitted.
4.9 Consolidated Applications. Licensee, at Licensee's discretion may file a
consolidated application and receive a single Permit for the Licensee Facility instead of filing
separate applications. Each Licensee Facility within the consolidated application remains subject
to review for compliance with objective requirements and approvals provided for in this
Agreement. The denial of any individual Licensee Facility is not a basis to deny the consolidated
application as a whole or any other Licensee Facility incorporated within the consolidated
application.
5.0 WAIVERS AND INDEMNIFICATION.
5.1 Non-Liability of City Officials, Employees and Agents. No elective or appointive
board, commission, member, officer, employee or other agent of the City shall be personally liable
to Licensee, its successors and assigns, in the event of any default or breach by the City or for any
amount which may become due to Licensee, its successors and assigns, or for any obligation of
City under this Agreement.
5.2 Obligation to Indemnify the City. Licensee, its successors and assigns, shall hold
harmless, defend, protect and indemnify the City, including, without limitation, each of its
commissions, departments, officers, agents, employees and contractors, from and against any and
all actions, losses, liabilities, expenses, claims, demands, injuries, damages, fines, penalties, costs,
judgements or suits, including, without limitation, reasonable attorneys' fees and costs
( collectively "Claims") of any kind allegedly arising directly or indirectly from: (i) any act by,
omission by, or negligence of Licensee or its contractors or subcontractors, or the officers, agents,
or employees of any of them, while engaged in the performance of the work or conduct of the
activities authorized by this Agreement, or while in or about the City Public Rights-of-Way or any
other City property for any reason connected in any way whatsoever with the performance of the
work, conduct of the activities or presence of the Licensee Facilities authorized by this Agreement,
or allegedly resulting directly or indirectly from the presence, construction, installation,
maintenance, replacement, removal or repair of the Licensee Facilities, (ii) any accident, damage,
death or injury to any contractor, subcontractor, or any officer, agent or employee of either of
them, while engaged in the performance of the work, conduct of the activities or presence of the
Licensee Facilities authorized by this Agreement, or while in or about the City Public Rights-of-
Way, for any reason connected with the performance of the work or conduct of the activities
authorized by this Agreement, or arising from liens or claims for services rendered or labor or
materials furnished in or for the performance of the work authorized by this Agreement, (iii) any
accident, damage, death or injury, to real or personal property, good will, and Person(s) in, upon
or in any way allegedly connected with the work or activities authorized by this Agreement or the
presence of the Licensee Facilities from any cause or claims arising at any time including, without
limitation, injuries or damages allegedly caused, directly or indirectly, in whole or in part, by radio
wave transmission or electromagnetic fields emitted by the Licensee Facilities, (iv) any Release,
or threatened Release, of any Hazardous Material caused in whole or in part by Licensee in, under,
on or about the property subject to this Agreement or into the environment, or resulting directly or
indirectly from the Licensee Facilities or the work or activities authorized by this Agreement, (v)
any violation by Licensee of the terms and conditions hereof or any permit or grant issued by any
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Agency in connection with the Licensee Facilities or Services or pursuant hereto, or any
misrepresentation made herein or in any document given by Licensee in connections herewith, (vi)
any direct or indirect interference by Licensee or tbe Licensee Facilities.
5.3 Scope of Indemnity. Licensee shall hold harmless and indemnify and defend the
City as required herein, including without limitation, each of its commissions, boards, departments,
officers, agents, employees and contractors ( collectively, "City"), except for claims resulting from
the negligence or willful misconduct of the City, including without limitation, each of its
commissions, departments, officers, agents, employees and contractors. Licensee specifically
acknowledges and agrees that it has an immediate and independent obligation to defend the City
from any claim which actually or potentially faIIs within this indemnity provision, even if the
allegations are or may be groundless, false or fraudulent, which obligation arises at tbe time of
such claim it tendered in writing to Licensee by the City and continues at all times thereafter,
except where the claims involve the negligence or willful misconduct of the City. Licensee agrees
that the indemnification obligations assumed under Ibis Agreement shall survive expiration or
other termination of this Agreement.
5.4 No Liability for Damage. Death or Bodily Injury. Neither the City nor any of its
commissions, departments, boards, officers, agents, contractors, or employees shall be liable for
any damage to the property of Licensee, its officers, agents, employees, contractors or
subcontractors, or their employees, or for any bodily injury or death to such person, resulting from
the Licensee Facilities or activities authorized by this Agreement, the condition of any City
property subject to Ibis Agreement or Licensee's use of any City property, except as otherwise
provide herein, and except where the claims involve the negligence or willful misconduct of the
City.
5.5 Waiver of All Claims. Licensee acknowledges that this Agreement is terminable
by the City under limited circumstances as provided herein, and in view of such fact Licensee
expressly assumes the risk of making any expenditures in connection with this Agreement, even if
such expenditures are substantial, and Licensee expressly assumes the risk of selling its Services
which may be affected by the termination of this Agreement.
5.6 No Liability for Consequential or Incidental Damages. Licensee expressly
acknowledges and agrees that tbe City will not be liable for any consequential or incidental
damages, including, but not limited to, Jost profits and loss of good will, arising out of the
termination of this Agreement or disruption to the Small Cell Facilities or Small Cell Networks or
Licensee's permitted activities hereunder. The City would not be willing to enter into to Ibis
Agreement in tbe absence of a waiver of liability for consequential or incidental damages due to
the acts or omissions of City or its agents, and Licensee expressly assumes the risk with respect
thereto. Accordingly, without limiting any indemnification obligations of Licensee or other
waivers contained in this Agreement as a material part of the consideration for this Agreement,
Licensee fully RELEASES, WAIVES and DISCHARGES forever any and all claims, demands,
rights and causes of action for consequential or incidental damages (including, without limitation,
lost profits and loss of good will), and covenants not to sue for such damages, City, its departments,
boards, commissions, officers, Commissioners and employee, and all persons acting by, and
through or under each of them, arising out of this Agreement or tbe work and activities authorized
hereunder, including, without limitation, any interference with uses conducted by Licensee
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pursuant to this Agreement, regardless of the cause, and whether or not due to the negligence or
gross negligence of the City or its agents, except as may be permitted by law.
5.7 No Interference. Licensee shall not unreasonably interfere in any manner with the
existence and operation of any and all public and private facilities existing now or in the future,
without the express grant of the owner or owners of the affected property or properties, except as
permitted by applicable Laws or this Agreement. Licensee shall be responsible for repair and
restoration of any damage caused by such interference, to the extent it is caused by Licensee, to
facilities belonging to the City.
5. 7.1 RF Interference. Licensee shall ensure its Equipment will not cause radio
frequency interference with the City's wireless communication facilities or devices, cable
television, broadcast radio or television systems, satellite broadcast systems, or City traffic, public
safety or other communications signal Equipment at any time of Equipment operation.
5.7.2 Existing Uses. Licensee shall not interfere in any manner with any uses of
public property, including the City Public Rights-of-Way, sanitary sewers, water mains, storm
drains, gas mains, poles, aerial and underground electric and telephone wires, sidewalk, streetlight
fixtures, cable television, and other telecommunications, utility, and City property without the
express written approval of the owner(s) of the affected properties.
5.7.3 City Communications. Licensee shall not interfere in any manner with
current or future City or other government public safety, broadband, utility, or other
communication systems.
5.7.4 City Interference. City reserves the right, but not the obligation, to maintain
and operate its City Facilities in such reasonable manner as will best enable the City to fulfill its
own service requirements or obligations. However, the City agrees to use reasonable efforts such
that the City and/or any tenants, licensees, or users of the right-of-way who currently have or in
the future take possession of space within the right-of-way will be permitted to install only such
Equipment that is of the type and frequency which is designed to comply with then existing
industry standards regarding potential interference with the then existing Equipment of the
Licensee.
5.7.5 Remedies. Without limiting any other rights or remedies, if interference
occurs and continues for a period in excess of forty-eight ( 48) hours following notice to the
interfering party via telephone to Licensee's Network Operations Center at _______ or to
the City's Public Works Department at (303) 762-2500, the interfering party shall or shall require
any other user of a City Facility to reduce power or cease operations of the interfering Equipment
until the interference is cured under reasonable commercial standards. The Parties acknowledge
there may not be an adequate remedy at law for noncompliance with the provisions of this Section
5.7 and therefore the Parties shall have the right to equitable remedies such as, without limitation,
injunctive relief.
5.8 Survival of Termination. The provisions of Sections 5.1 through 5.7.5 inclusive,
shall survive any termination of this Agreement.
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INSURANCE.
hl Amounts and Coverages. Licensee will maintain in force, during the full term of
this Agreement, insurance in the following amounts and coverages:
6.1.1 Workers Compensation, in the statutory amounts as required by the State of
Colorado, including Employer's Liability with a limit of $1,000.000 for each accident; $1,000,000
disease for each employee; $1,000,000 disease-policy limit.
6.1.2 Commercial General Liability with limits of two million dollars
($2,000,000.00) per occurrence Combined Single Limit for Bodily Injury and Property Damage
and $4,000,000 general aggregate including premises-operations, products and completed
operations, independent contractor, contractual liability, personal injury and advertising injury.
6.1.3 Professional Liability/Errors and Omissions in the amount of one million
dollars ($1,000,000.00) each claim and aggregate.
6.1.4 Employee Dishonesty and Computer Fraud in the amount of one million
dollars ($1,000,000.00) per occurrence.
6.1.5 Commercial Automobile Liability Insurance with limits of one million
dollars ($1,000,000.00) Combined Single Limit each accident for Bodily Injury and Property
Damage, including owned, non-owned and hired auto coverage, as applicable.
6.1.6 Builders' Risk/Installation Floater Insurance must be maintained until
whichever of the following first occurs:
(a) The Builders' Risk/Installation Floater insurance must be endorsed so that
the insurance will not be canceled or lapse because of and partial use or
occupancy by City.
(b) The Builders' Risk/Installation Floater insurance must include as named
insureds, City, Licensee, and all tiers of contractors and others with an
insurable interest in the Work.
( c) The Licensee is responsible for payment of all deductibles under the
Builders' Risk/Installation Floater insurance policy.
6.2 Required Provisions, Licensee's insurance coverage must be primary insurance
with respect to the City, its officers, officials, and employees. Any insurance or self-insurance
maintained by the City, its officers, officials, and employees shall be in excess of the coverage
provided by Licensee and must not contribute to it.
6.2.1 Licensee's insurance must apply separately to each insured against whom
claim is made or suit is brought, except with respect to the limits of the insurer's liability.
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6.2.2 The policies must contain a severability of interest clause and waiver of
subrogation against the City, its officers, officials, and employees, for losses arising from work
performed by Licensee for the City.
6.2.3 Licensee is required to maintain Commercial General Liability insurance
for so long as Licensee's Equipment is located in or on City's Public Rights-of-Way. Licensee
must submit a Certificate of Insurance evidencing Commercial General Liability insurance at the
beginning of this Agreement and anytime during the period that such insurance is renewed,
evidencing the insurance requirement and including the required. Additional Insureds set forth
herein.
6.3 City as Additional Insured. The above-referenced policies shall, excluding workers
compensation and employer's liability, and professional liability shall include the City, it officers,
officials, and employees as an additional insured as their interest may appear under this Agreement
with respect to liability arising out of activities performed by Licensee
6.4 Advance Notice of Cancellation. Upon receipt of notice from its insurer(s)
Licensee shall use commercially reasonable efforts to provide thirty (30) days advance written
notice to the City of cancellation mailed to the following address:
City Clerk
City of Englewood
1000 Englewood Parkway
Englewood, Colorado 80110
Office of Risk Management
City of Englewood
1000 Englewood Parkway
Englewood, Colorado 80110
6.5 Claims-Made Policies. Should any of the required insurance be provided under a
claims-made form, Licensee shall maintain such coverage continuously throughout the term of this
Agreement and, without lapse, for a period of one (I) year beyond the Agreement expiration, to
the effect that, should any occurrences during the Agreement term give rise to claims made after
the expiration of the Agreement, such claims shall be covered by such claims-made policies.
6.6 General Aggregate Limit. Should any of the required insurance be provided under
a form of coverage that includes a general aggregate limit or provides that claims investigation or
legal defense costs be included in such general annual aggregate limit, such aggregate limit shall
double the occurrence or claims limits specified above.
6. 7 Receipt of Certificates of Insurance. Certificates of Insurance, in the form
reasonably satisfactory to the City, evidencing all coverages above shall be furnished to the City
before commencing any operations under this Agreement. If a Certificate of Insurance is
submitted as verification of coverage, the City will reasonably rely upon the Certificate of
Insurance as evidence of coverage but this acceptance and reliance will not waive or alter in any
way the insurance requirements or obligations of this Agreement.
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6.8 Effect of Approval oflnsurance. Approval of the insurance by the City shall not
relieve or decrease the liability of the Licensee hereunder.
6.9 Effect of Lapse of Insurance. This Agreement shall terminate immediately, after
written notice to Licensee and an opportunity to cure of three (3) Business Days, upon any lapse
or required insurance coverage.
7.0 LICENSE FEE, RECORD AND DEPOSITS.
In connection with the work to be performed and activities to be conducted by Licensee
under this Agreement.
7.1 Annual Fee Per Licensee Owned Pole, or City Owned Pole with Licensee-Owned
Facility Attached. As compensation for the right to attach to any City Facility by Licensee and/or
for the placement of a Licensee Owned Pole and Facility in City Public Rights-of-Way, Licensee
shall pay to the City an annual fee of $200.00 per pole (the "Annual Fee"). The Annual Fee shall
be increased at the rate of one percent (I%) annually as of the anniversary date of the
commencement of operation of the Facility, which date shall be agreed upon in writing by the
Parties. Unless otherwise agreed, this Agreement anticipates and authorizes only one License
Facility per pole or structure. The Annual Fee includes access to the right-of-way, placement of
Licensee's Facility, placement of all Equipment and meters needed to operate Licensee's Facility,
and, if applicable, placement of a Licensee Owned Pole. There will be no charge for any new or
replacement poles placed in the City Public Rights-of-Way by Licensee, except for the cost of a
right-of-way and/or building permit. There will be no other charges except as set forth herein.
7.1.1 The aggregate Annual Fee with respect to each year of the term shall be due
and payable within forty-five (45 days) after the end of each calendar year, and shall be an amount
equal to the number of City Facilities with attachments, plus the number of Licensee Owned Poles,
multiplied by the Annual Fee, prorated as appropriate.
7 .1.2 It is the intent of the parties that all facilities are to be placed on poles
only. The parties to this Agreement do not intend, and this Agreement does not grant, the right to
utilize or attach to any City owned buildings or structures other than certain poles in the City Public
Rights-of-Way as specifically identified in Exhibit A-1 to the Site Supplement Form.
7 .1.3 The parties to this Agreement do not intend, and this Agreement does not
grant, the right to attach to third party owned properties or poles. That right is subject to a separate
agreement, if any, between Licensee and the third-party. There shall be no fee payable by Licensee
to the City for Licensee's placement/attachment of Equipment to, on, or about a third party owned
property or pole, and no Right-of-Way access fee for attachments to third-party owned properties
or poles.
· 7.2 Retention of Records. Licensee shall at all times keep and maintain full, true and
correct business and financial records associated with this Agreement, and upon reasonable request
by the City, will provide such records, on no more frequently than a once a year basis, and in a
format agreed to between the parties, as to demonstrate the payments made under Section 7.1
above.
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7 .3 Late Payment Charge. If Licensee fails to pay any amounts payable under this
Agreement within ten ( 10) days following the due date thereof, and after written notice of such
non-payment, such unpaid amount shall be subject to a late payment charge equal to five percent
(5%) of the unpaid amount in each instance. The late payment charge has been agreed upon by
the City and Licensee, after negotiation, as a reasonable estimate of the additional administrative
costs and detriment that the City will incur because of any such failure by Licensee, the actual
costs thereof being extremely difficult if not impossible to determine.
7.4 Other Payments and Documentation. In addition to all other fees to be paid to the
City hereunder, Licensee shall timely pay to the City all applicable deposit fees, permit fees,
engineering fees and other fees or amounts, required to be paid by Licensee to the City in
connection with obtaining permits or performing work under this Agreement, and as required by
any federal, state or local law, statute, ordinance, rule or regulation. Licensee therefore
acknowledges and agrees that this Agreement alone is not sufficient in and of itself authorization
from the City for the installation and operation of the Small Cell Facilities or Small Cell Networks
and that additional documentation may be required by the City.
7 .5 Bond Requirement. At or before the Effective Date, Licensee shall file with
Licensor a good and sufficient bond in accordance with application requirements of Colorado law.
The form and terms of the surety bond and the identity of the surety shall be subject to the
reasonable approval of the City Attorney, the form of the bond should be substantially as shown
in Exhibit E.The surety shall guaranty the full performance of Licensee's restoration obligations
arising upon expiration, termination or abandonment of this Agreement. Any acceptable surety
instrument having an expiration date earlier than the expiration of the Term shall be automatically
renewable. Any company issuing such a surety instrument must give Licensor at least sixty ( 60)
days advance written notice prior to the effective date of cancellation or expiration of such surety
instrument. The amount of the surety bond shall be $25,000.00 which is based upon the estimated
cost of removing Licensee's Equipment from sixty-three (63) City Facilities and the storing or
disposing thereof. In the event Licensee has installed Equipment on more than 63 City Facilities,
Licensor may reasonably require an increase in the amount of the surety bond based on an
estimated restoration and/or disposal cost of $500.00 per City Facility.
8.0 WORK STANDARDS.
8.1 Performance of Work. Licensee shall use and exercise due care, caution, skill and
expertise in performing all work under this Agreement and shall take all reasonable steps to
safeguard and maintain in clean and workmanlike manner, all work site areas, including, without
limitation, the light and signal poles on City Public Rights-of-Way and other existing facilities and
property. All work to be undertaken by Licensee in the City Public Rights-of-Way shall at all
times be performed by workers in accordance with generally accepted industry practice.
8.2 Work Plan. As part of the Permit Licensee obtains pursuant to Section 4.5, and
approved within the application timelines in Section 4.5.1, Licensee shall present a map to scale
showing all right-of-way lines and limits, and a written proposal describing the work to be
performed and the facilities, methods and materials (if any) to be installed ("Work Plan") to the
City for review and as part of the Permit. In addition, prior to conducting any work in the City
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49311220.1
Public Rights-of-Way, Licensee shall provide to the City the name and telephone number of
Licensee's contractor who will perform the work.
8.3 No Underground Work Without Written Authorization. Licensee hereby
represents, warrants and covenants that Licensee shall perform no excavation, trenching, coring,
boring, or digging into the ground or installation of any Equipment or other material into the
ground, or any other underground work in connection with the work to be performed or Services
to be provided by Licensee under this Agreement, except to the extent expressly approved by the
City. Licensee further represents, warrants and covenants that it shall not otherwise disturb or
disrupt the operation or maintenance of any sanitary sewers, storm drains, gas or water mains, or
other underground, cables, mains or facilities.
8.4 Joint Trenching/Boring. Licensee will attend and participate in planning meetings
of the City, of which Licensee is made aware, to anticipate joint trenching and boring. Whenever
it is possible and reasonably practicable to joint trench or share bores and cuts, Licensee shall work
with other providers, licensees, permittees, and franchisees so as to reduce so far as possible the
number of rights-of-way cuts within the City. In addition, Licensee shall allow the City to place
conduit within any trench or bore constructed by the Licensee pursuant to this Agreement for
placement of Licensee's Equipment, for future use of the City.
8.5 Repair or Replacement of Damaged Facilities or Property. Upon written request,
Licensee agrees to repair or replace too City's reasonable satisfaction any City-owned facilities or
City-owned property that the City determines has been damaged, destroyed, defaced or otherwise
injured as a result of the work performed or Services provided by Licensee under this Agreement.
All such work must be completed within ninety (90) days of receipt of written request from the
City. Licensee shall perform such work at no expense to the City, except to the extent such
damage, destruction, defacement, or injury was caused by the sole negligence or willful
misconduct of the City.
8.6 Hazardous Substances. Licensee agrees that Licensee, its contractors,
subcontractors and agents, will not use, generate, store, produce, transport or dispose of any
Hazardous Substance, on, under, about or within the area of a City owned facility or in the right-
of-way in which it is located in violation of any federal, state, county, or local law, ordinance or
regulation. Except to the extent of the negligence or intentional misconduct of the City, Licensee
will pay, indemnify, defend and hold City harmless against and to the extent of any loss or liability
incurred by reason of any Hazardous Substance produced, disposed of, or used by Licensee
pursuant to this Agreement. Licensee 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 Licensee shall not be responsible for any environmental
condition or issue except to the extent resulting from Licensee's specific activities and
responsibilities under this Agreement.
9.0 TERMINATION .
.2J. Immediate Termination Upon Notice in Certain Circumstances. In addition to all
other rights and/or remedies provided by Law or in equity, either party may terminate this
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Agreement immediately upon written notice to the other party in the event of either of the
following:
9.1.1 By City, after written notice to Licensee and after opportunity to meet with
representatives of the City, and after Licensee is given a reasonable opportunity of not less than
90 days to cure alleged adverse condition, if the City reasonably determines that Licensee's
continued use of the Public Rights-of-Ways will adversely affect public health or safety;
9.1.2 By either party (the "Non-Defaulting Party") if the other party has failed to
perform any of its material obligations under this Agreement, provided, however, that if the
Defaulting Party's failure to perform under or comply with this Agreement is capable of being
cured, and if a specific notice or cure period or time for performance of such obligation is not
otherwise specified in this Agreement, then the Non-Defaulting Party shall provide the Defaulting
Party with a notice of the Defaulting Party's failure to perform or comply and provide the
Defaulting Party with thirty (30) days from the date of the notice to cure the failure to perform or
comply to the Non-Defaulting Party's reasonable satisfaction; provided, further, that upon the
occurrence during the term of this Agreement of two (2) defaults of the same obligation by either
Party, the Non-Defaulting Party shall not be required to provide any notice regarding the
Defaulting Party's failure to perform such obligation, and any subsequent failure by the Defaulting
Party after the Defaulting Party hereunder without any requirement on the part of the Non-
Defaulting Party to give the Defaulting Party notice of such failure or an opportunity to cure.
9.2 Effect of Termination. In the event of termination of this Agreement as herein
provided, Licensee shall immediately cease all work being performed under this Agreement,
excepting only that work necessary for Licensee to remove all Licensee Facilities from the City
Public Rights-of-Way as provided in Section 3.4 above and repair as needed. Termination of this
Agreement by the City as herein provided shall constitute the withdrawal of any grant, consent or
authorization of the City for Licensee to perform any construction or other work under this
Agreement in the City Public Rights-of-Way or on public property excepting only that work
necessary for Licensee to remove all Licensee Facilities and leave all work site areas in a clean
and safe condition and in accordance with Section 3. Upon any such early termination, the City
shall promptly remit to Licensee a prorated portion of the annual license fee paid to the City, if
any.
10.0 NOTICES.
Except as otherwise expressly provided in this Agreement, any notice given hereunder shall
be effective only if in writing and given by delivering the notice in person, or by sending it first-
class mail or certified mail with a return receipt requested, postage prepaid, or reliable commercial
overnight courier, return receipt requested, with postage prepaid to:
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CITY
City Clerk
City of Englewood
I 000 Englewood Parkway
Englewood, CO 80110
City Manager
City of Englewood
1000 Englewood Parkway
Englewood, CO 80110
City Attorney
City of Englewood
I 000 Englewood Parkway
Englewood, CO 80110
LICENSEE
Or to such other address as either the City or Licensee may designate as its new address
for such purpose by notice given to the other in accordance with the provisions of this Section at
least ten ( I 0) days prior to the effective date of such change.
11.0 COMPLIANCE WITH LAWS.
11.1 Licensee shall comply with all present and future laws, ordinances, regulations, or
statutes. The terms of this Agreement shall be construed and governed by the laws of the State of
Colorado.
11.2 All facilities installed pursuant to this Agreement shall be constructed to comply
with all lawful federal, state and local construction and applicable telecommunications
requirements.
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12.0 MISCELLANEOUS.
12.1 Amendments. Neither this Agreement nor any term or provisions hereof may be
changed, waived, discharged or terminated, except by written instrument signed by the parties
hereto.
12.2 Representation and Warranties. Each of the persons executing this Agreement on
behalf of Licensee does hereby covenant, represent and warrant that, to the best of his or her
knowledge, (a) Licensee is a duly authorized and existing business corporation, partnership,
limited liability company, limited partnership or other incorporated entity under the corporation
laws of the State of Colorado and is qualified to do business in the State of Colorado, and has full
right and authority to enter into this Agreement, (b) each and all of the persons signing or behalf
of Licensee are authorized to do so, (c) all financial statements and reports previously provided to
the City by Licensee are true and complete in all material respects and accurately reflect the
financial condition of Licensee as of the date such statements were provided to the City, and
Licensee's financial condition as of the date it executes this Agreement is not materially worse
than that reflected in the most recent of such financial statements and reports, and ( d) the Small
Cell Facilities or Small Cell Networks installed pursuant to this Agreement shall comply with all
applicable FCC standards regarding radio frequencies and electromagnetic field emissions. Upon
the City's written request, Licensee shall provide the City with evidence satisfactory to the City
confirming the foregoing representations and warranties.
12.3 Interpretation of Agreement. This Agreement has been negotiated at arm's length
and between the persons sophisticated and knowledgeable in the matters dealt with herein and
shall be interpreted to achieve the intents and purposes of the parties, without an presumption
against the party responsible for drafting any part of this Agreement. Use of the word "including"
or similar words shall not be construed to limit any general term, statement or other matter in this
Agreement, whether or not language of non-limitation, such as "without limitation" or similar
words, are used.
12.4 Assignment: Successors and Assigns. Neither this Agreement nor any part of
Licensee's rights hereto may be assigned, pledged or hypothecated, in whole or in part, without
the express written consent of the City, which consent will not be unreasonably withheld,
conditioned, or delayed. Notwithstanding the foregoing, the transfer of rights and obligations of
Licensee hereunder to a parent, subsidiary, successor, financially viable affiliate of Licensee, or as
a result ofa merger, acquisition, change of control or sale of substantially all of Licensee's assets
in the market defined by the FCC, which includes the City, shall not be deemed an assignment for
the purposes of this Agreement, provided that Licensee delivers to the City the following: (I)
surety bond issued in the name of the transferee; (2) Assignment and Assumption Agreement
between the City and transferee; (3) Certificate of Insurance naming transferee as insured.
12.5 Bankruptcy. In the event that Licensee files a petition in bankruptcy pursuant to 11
U.S.C. Sections IOI et seq., the assignment of this Agreement shall be governed by the provisions
of the Bankruptcy Code. An assignment of this Agreement is only enforceable against the City if
Licensee or its trustee in bankruptcy complies with the provisions of 11 U.S.C. Section 365,
including obtaining the authorization from the Bankruptcy Court. City hereby expressly reserves
all of its defenses to any proposed assignment of this Agreement. Any person or entity to which
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49311220.1
the Bankruptcy Court authorizes assignment of this Agreement shall be deemed without further
act to have assumed all of the obligations of the Licensee arising under this Agreement on and
after the date of such assignment. Any such assignee shall upon demand execute and deliver to
the City an instrument confirming such assumption. Any monies or other considerations payable
to or otherwise to be delivered in connection with such assignment shall be paid to the City, shall
be exclusive property of the City, and shall not constitute property of Licensee or of the estate of
Licensee within the meaning of the Bankruptcy Code.
12.6 Severability. If any provision of this Agreement or the application thereof to any
person, entity or circumstances shall, to any extent, be invalid or unenforceable, the remainder of
this Agreement, or the application of such provisions to such persons, entities or circumstances
other than those as to which it is invalid or unenforceable, shall not be affected thereby, and each
other provision of this Agreement shall be valid and be enforceable to the fullest extent permitted
by Law.
12.7 No Waiver. A Party shall not be excused from complying with any of the terms
and conditions of this Agreement by any failure of a Party upon any one or more occasions to
insist upon or seek compliance with any such terms or conditions.
12.8 Attorney Fees and Cost Provision. In the event that either party to this Agreement
shall commence any action against the other party arising out of or in connections with this
Agreement, or contesting the validity of the Agreement or any provision of this Agreement the
prevailing party shall be entitled to recover from the other party reasonable attorney's fees and
related costs, fees and expenses incurred by the prevailing party in connection with such action or
proceeding.
12.9 Entire Agreement. This instrument (including Exhibits hereto, which are made a
part of this Agreement) contains the entire agreement between the parties and supersedes all prior
written or oral negotiations, discussions, understandings and agreements. The parties further
intend that this Agreement shall constitute the complete and exclusive statement of its term and no
extrinsic evidence whatsoever (including prior drafts of this Agreement and changes therefrom)
may be introduced in any judicial, administrative or other legal proceedings involving this
Agreement.
12.10 Force Majeure. With respect to any provision of this Agreement, the violation or
non-compliance of any term of this Agreement which could result in the imposition of a financial
penalty, liquidated 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 disobedience, strike or labor unrest, or other events, the occurrence of which was not
reasonably foreseeable by such Party and is beyond the Party's reasonable control.
12.11 Time of Essence. Time is of the essence with respect to all provisions of this
Agreement in which a definite time for performance is specified.
12.12 Obligations Subject to Appropriations. City's obligations under this Agreement in
subsequent fiscal years are subject to the annual appropriation of funds sufficient and intended for
such purpose by the City's Governing Body in its discretion.
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12.13 Cumulative Remedies. All rights and remedies of either party hereto set forth in
this Agreement shall be cumulative, except as may otherwise be provided herein.
12.14 Relationship of the Parties. The City is not, and none of the provisions in this
Agreement shall be deemed to render the City, a partner in Licensee's business, or joint venture or
member in any joint enterprise with Licensee. Neither party shall act as the agent of the other party
in any respect hereunder, and neither party shall have the authority to commit or bind the other
party without such party's prior written consent as provided herein. This Agreement is not
intended nor shall it be construed to create any third party beneficiary in any third party, unless
otherwise expressly provided.
LICENSEE:
By: _________________ _
Title: -------------------
Dated: __________________ _
CITY OF ENGLEWOOD:
A Colorado Home Rule Municipality
By: _________________ _
Title: ___________________ _
Dated: -------------------
ATTEST:
City Clerk
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49311220.1
EXHIBIT A
SITE SUPPLEMENT FORM
This Supplement ("Supplement"), made this ___ day of ________ ~
20 __ ("Effective Date") between the City of Englewood, with an address of 1000 Englewood
Parkway, Englewood, Colorado 80110, hereinafter referred to as "City" and _______ _
hereinafter referred to as "Licensee".
1. Supplement. This is a Site Supplement as referenced in the attached Agreement for the
use of the City's property in connection with the operation of a wireless network, between the
City and Licensee dated _____ _, 20_ ("Agreement"). All of the terms and
conditions of the Agreement are incorporated herein by reference and made a part hereof without
the necessity of repeating or attaching the Agreement. In the event of a contradiction,
modification or inconsistency between the terms of the Agreement and this Supplement, terms of
the Agreement shall govern. Capitalized terms used in this Supplement shall have the same
meaning as set forth in the Agreement unless otherwise indicated herein.
2. Project Description and Locations.
__ Licensee shall have the right to the City Facility for a Licensee
Facility/Equipment at the designated areas in the City Public Rights-of-Way as further
described in Exhibit A-1 attached hereto (the "Licensed Area and Description of
Facilities"); OR
__ Licensee shall have the right to place its own Licensee Facility/Equipment and
pole at the designated areas in the City Public Rights-of-Way as further described in
Exhibit A-1 attached hereto (the "Licensed Area and Description of Facilities").
3. Equipment. The Equipment to be installed at the Licensed Area is described in Exhibit
A-2 {'Table 2).
4. Term/Termination. The term of this Supplement shall be set forth as in Section 2.0 of the
Agreement. If the Licensee has not installed the Equipment in the Licensed Area within one (I)
year from the date of this Supplement, this Supplement shall be deemed automatically
terminated.
5. Fees. The initial annual Rental Fee for the term of this Supplement shall be $200.00 per
facility, as determined in accordance with the Agreement, and as adjusted by Section 7 .1 of the
Agreement. This does not include permit fees associated with the installation.
5. Commencement Date. The Commencement Date for the installation of Licensee's
Equipment shall be the date upon which the Supplement is entered into by the Parties
("Supplement Commencement Date"). The Supplement Commencement Date shall be
confirmed in writing signed by the Parties in substantially the form attached hereto as Exhibit
A-3.The first payment due will be paid within 90 days of the Supplement Commencement Date,
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49311220.1
with annual payments thereafter made in accordance with the provisions of Section 7. I. I of the
Agreement.
6. Approvals/Fiber. It is understood and agreed that Licensee's ability to use the Licensed
Area is contingent upon its obtaining all of the certificates, permits and other approvals
( collectively "Government Approvals") that may be required by any Federal, State or Local
authorities, as well as a satisfactory fiber and electrical connection which will permit Licensee
use of the Licensed Area as set forth above. In the event that (i) any of such applications for
such Governmental Approvals should be finally rejected; (ii) any Governmental Approval issued
to Licensee is canceled, expires, lapses, or is otherwise withdrawn or terminated by
governmental authority; (iii) Licensee determines that such Governmental Approvals may not be
obtained in a timely manner; (iv) Licensee determines that it will be unable to obtain in a
satisfactory manner, or maintain any fiber or power connections; or (v) Licensee determines that
the Licensed Area is no longer technically compatible for its use, Licensee shall have the right to
terminate this Supplement. Notice of the Licensee's exercise of its right to terminate shall be
given to the City in writing by certified mail, return receipt requested, and shall be effective upon
the mailing of such notice by the Licensee, or upon such later date as designated by the Licensee.
All rentals paid to said termination date shall be retained by the City. Upon such termination, this
Supplement 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. Otherwise, Licensee shall
have no further obligations for the payment of Rent to the City.
7. Miscellaneous. -------------------------
CITY OF ENGLEWOOD ATTEST:
By: _____________ _
City Clerk
Public Works Director
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49311220.1
LICENSEE:
By: _____________ _
Print Name: -----------
Title:-------------
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49311220.1
SITE
IDNO.
49311220.1
Exhibit A-1
Licensed Area and Description of Facilities
Table 1
STREET GIS
NAME/INTERSECTION COORDINATES
AND QUADRANT POLE IS
LOCATED ON
28
POLE TYPE POLE
HEIGHT
SITE ID POLE ALTERATION
NO.
49311220.1
Exhibit A-2
Table2
ATTACHMENT
HEIGHT
29
TYPE OF EQUIPMENT
ATTACHED
Exhibit A-3
Acknowledgment
LICENSEE SHALL PROVIDE THE FOLLOWING AS IS APPLICABLE TO BE
CONSIDERED BY THE CITY IN WHETHER TO GRANT THE SUPPLEMENTAL
SITE LICENSE:
• Plot plan, to scale, showing right-of-way lines and limits, engineering design, and
specifications for installation of utilities, including the location ofradios, antenna
facilities, transmitters, Equipment shelters, cables, conduit, point of demarcation,
backhaul solution, electrical distribution panel, electric meter, electrical conduit and
cabling, and all other associated Equipment. Where applicable, the design documents
shall include specifications or design, pole modifications, and ADA compliance.
o The piot plan shall show existing sidewalk size, width and depth, all existing
public and private utilities, existing trees, traffic control signs and Equipment,
and ot!J.er existing improvements, with dimensions to/from each, as applicable.
o Licensee shall submit photographs of the proposed Wireless Site and specific
Equipment proposed for attachment along with plot plan and drawings.
• For City Facilities, include documentation from the City verifying the pole is eligible
for attachment. Also include a load bearing study that determines whether the pole
requires reinforcement or replacement in order to accommodate attachment of the
Equipment. If pole reinforcement or replacement is warranted, the design documents
shall include the proposed pole modification.
• For Replacement or new Pole installations, include documentation verifying the pole
location is in the Right-of-Way and is eligible for installation. Include a list of
adjacent property owners. If the proposed installation includes a new structure,
provide design and specification drawings for the new structure.
• If the proposed installation will require reinforcement or replacement of the existing
pole, provide applicable design and specification drawings.
• The number, size, type and proximity to the facilities of all communications
conduit(s) and cables to be installed.
• Description of the utility services required to support the facilities installed.
• 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 comer or to a subdivision plat that is tied to
an established land comer, 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 described SIGNED and SEALED by a surveyor registered in the State of
Colorado.
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49311220.1
• For City Facilities, provide insurance as required in Section 6.0 of the Agreement.
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49311220.1
EXHIBITB
TECHNICAL REQUIREMENTS
I. This Exhibit B sets forth the additional technical requirements applicable to all Small
Cell Facility and Small Cell Network Wireless Sites and attachments permitted under a Site
Supplement to the Agreement between the City and Licensee. Terms not defined herein shall
have the definitions set forth in the Agreement to which this Exhibit C is attached.
2. Licensee shall not, unless otherwise agreed between the parties:
a. Install a structure in the Right-of-Way with a height in excess of fifty (50) feet;
b. Increase or seek to increase the height of any structure in the Right-of-Way to a
total height in excess of fifty (50) feet, except that the Licensee may increase the height of an
electrical utility pole by up to an additional five (5) feet to the extent required by Applicable Law
or industry standards for the placement on the top of a distribution pole; or
c. Install at ground level Equipment shelters or cabinets or electrical distribution
panels, except, in each case after all reasonable alternative pole locations and underground
locations have been explored and found unavailable due to technical and radio frequency needs,
construction costs, or lacking in a substantial manner.
3. Nothing in this Agreement or Exhibit shall be interpreted to authorize the installation of
macro wireless communications service facilities, macro base stations, or a similar high-powered
cellular facility in the Right-of-Way, nor the installation of macro wireless towers or poles
intended to serve macro facilities, except pursuant to Federal, State or Local law.
4. Licensee Facility Sites shall be installed within the footprint of an area of no more than
thirty-six (36) square feet.
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49311220.1
EXHIBITC
OPERATIONAL AND DESIGN STANDA~S
This Exhibit C sets forth additional Operational and Design standards for the installation
of Small Cell Facility and Small Cell Network Equipment in or upon City owned, third party
owned, or privately owned poles that are in or on the City's Right-of-Way. These standards are
intended to protect the brand identity of the City of Englewood, and mitigate the negative impacts
of visual clutter along area roadways and Rights-of-Ways.
I. Operational Standards.
a. Federal Requirements. All Small Cell Facility and Small Cell Network
Equipment and other wireless communication transmission Equipment utilizing small cell
technology installed pursuant to this Agreement and all associated Site Supplements
("Equipment") shall meet the current standards and regulations of the FAA, FCC and any other
agency of the Federal or State government with the authority to regulate telecommunications
Equipment. If such standards and regulations are changed, amended, or modified, Licensee shall
bring such Equipment into compliance with such revised standards and regulations within the
time period mandated by the controlling federal or state agency. Failure to meet such revised
standards and regulations shall constitute grounds for the removal of the Equipment from any
site under this Agreement at Licensee's expense.
b. Radio Frequency Standards. Subject to Section 5.7 et seq. of this Agreement, all
Equipment shall comply with federal standards for radio frequency emissions. If concerns
regarding compliance with radio frequency emission standards for Equipment are made to the
City, the City may request Licensee provide information demonstrating compliance with such
standards. If such information suggests, in the reasonable discretion of the City, the Equipment
may not be in compliance, the City may request and Licensee shall submit a project
implementation report which provides cumulative field measurements of radio frequency
emissions of all antennas installed at the subject site, and which compares the results with
established federal standards. If, upon review, the City finds the facility does not meet federal
standards, the City may require removal of the Equipment as an unauthorized use under this
Agreement. Any reasonable costs incurred by the City, including reasonable consulting costs to
verify compliance with these requirements, shall be paid by Licensee upon demand by the City
or, if such costs remain unpaid after demand, the City may recover such costs by the manner and
method authorized to recover nuisance abatement costs under the Englewood Municipal Code
2000, as amended.
2. Design Standards.
The Design Standards set forth herein shall apply to all locations and designs of all
Equipment governed by this Agreement, more specifically set forth below. The desire of the
Parties to this Agreement is that the Equipment shall be designed and located to minimize the
impact on the surrounding neighborhood and to maintain the character and appearance of the
specific location where the Equipment will be located.
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49311220.1
General Standards.
1. A building permit shall be required for all towers, Equipment, and telecommunication
facilities.
a. All design plans shall be rendered and submitted on standard engineering
drawings, including but not limited to, a site survey showing the surrounding conditions of the
proposed location/site. Surrounding conditions can include, but are not limited to, the location of
sidewalks, driveways, roads, alleys, and other public or private Right-of-Way features that may
be impacted by the construction and locations of the Small Cell Facility and related Equipment.
b. Final site approval for the location of a Small Cell Network wireless facility shall
be approved by the Director of Public Works or his/her designee.
2. All Equipment covered by this Agreement shall be as architecturally compatible with the
surrounding area as feasible.
3. All electrical, communication, and other wiring to Equipment components, including
radios, antennae and backhaul connections, shall be fully concealed, internal to the structure
where possible and shrouded in all instances.
4. Existing Poles. The City of Englewood encourages the use of existing poles to reduce the
instances of visual clutter. This may also include the replacement of an existing pole. Such
replacement shall be placed generally in the same location as the old pole. The replacement shall
be of the same material or better as the pole it is replacing.
5. New Poles. New poles shall be designed in a manner that conforms to the City's district
development regulations, including, but not limited to, setback requirements, lot coverage
requirements, and shall:
a. Incorporate desired materials, shape, colors and aesthetic elements that conform
to the City's brand identity.
b. Be multifunctional in that they may have a purpose in addition to service as a pole
for small cell networks in a manner that can be incorporated for use throughout the City and
especially the downtown and Civic Center areas, including security cameras, pedestrian-level
lighting and banners.
c. Support colocation with a minimum of one additional small cell network Licensee
or other service if it is possible to do so and keep all Equipment fully concealed.
d. All new poles shall be similar in design, materials, color, shape, height, as set
forth in the City's ordinances governing the construction of poles and towers, and shall
incorporate any other features as necessary to reinforce a uniform pattern.
6. Concealment of Equipment.
a. Antenna Equipment.
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49311220.1
i. Shall be fully concealed in an enclosed casement that shall, to the greatest
extent possible, mimic the pole upon which it is placed in terms of materials (with the exception
of wood), color and design.
ii. Equipment shall not extend beyond the width and diameter of the pole
upon which it is affixed.
iii. Shall be constructed in such a manner that leaves no visible gap between
the pole and antenna.
iv. Equipment shall not be artificially illuminated, unless required by the
FAA or other applicable governmental authority, or the Equipment is mounted on a light pole or
other similar structure primarily used for lighting. If lighting is required, the City may review
the available lighting alternatives and approve the design that would cause the least disturbance
to the surrounding views. Lighting shall be shielded or directed to the greatest extent possible so
as to minimize the amount of glare and light falling onto nearby properties, particularly
residences.
b. Camouflage/Concealment. All Equipment shall, to the extent possible, match the
appearance and design of existing City Facilities adjacent to the Wireless Site, as much as
possible, and when technically practicable the Equipment should incorporate camouflage design
techniques including, but not limited to the use of materials, colors, textures, screening,
landscaping, or other design options that will blend the Equipment to the surrounding natural
setting and built environment. Design, materials and colors of Equipment not identical to
existing City Facilities shall otherwise be compatible with the surrounding environment. Designs
shall be compatible with structures and vegetation on the same parcel and adjacent parcels.
i. Camouflage design may be of heightened importance where findings of
particular sensitivity are made ( e.g. proximity to historic or aesthetically significant structures,
views, and/or community features). In such instances where Equipment is located in areas of
high visibility, they shall (where possible) be designed to minimize profile.
ii. All Equipment, including antennas, vaults, Equipment rooms, Equipment
enclosures, and tower structures shall be constructed out of non-reflective materials (visible
exterior surfaces only).
c. Every effort should be taken to avoid placement of additional Equipment on a
pole other than the antenna, fiber and associated encasements. Additional Equipment shall be
placed at ground level unless otherwise approved by the Director of Public Works or their
designee. All Equipment shall be concealed to the greatest extent possible.
d. Equipment shall be sited in a manner that takes into consideration its proximity to
residential structures and residential district boundaries, uses on adjacent and nearby properties,
and the compatibility of the facility to these uses, including but not limited to Wireless Site to
first and second story windows.
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49311220.l
e. Equipment shall be designed to be compatible with the site, with particular
reference to design characteristics that have the effect ofreducing or eliminating visual
obtrusiveness. Appurtenances shall match the standard form factor of the City's Facility.
f. Equipment shall be designed to have minimal impact on the surrounding area of
the proposed egress and ingress.
g. Control boxes or base stations that are located above ground or upon a pole shall
be concealed either through landscaping or application of artwork. Including the use of neutral,
non-reflective color that is identical to, or closely compatible with, the color of the supporting
structure, or uses other camouflage/concealment design techniques so as to make the antenna and
supporting structures/facilities as visually unobtrusive as possible.
h. The cost of concealment and ongoing maintenance shall be fully borne by the
Licensee.
7. Future reconstruction and visual enhancement projects. In the event that a future
reconstruction or beautification project, undertaken by the City, impacts the small cell network
Equipment, including established poles, it shall be the responsibility of the Licensee to replace
Equipment in accordance with the new design standards.
a. The City, in efforts to improve mobility, reduce visual clutter, beautify corridors
and otherwise improve community character, reserves the right to cause power and
communication lines and Equipment within the public rights-of-way or within easements to be
placed below ground.
b. In the event that new poles are required the small cell network provider shall
follow the procedures and standards established by the City and any ordinances for the
construction of such poles.
8. No small cell network Equipment shall be placed in a manner that impedes or interrupts
safe and convenient travel by pedestrians, bicyclists or transit services. No portion of the
Equipment shall extend beyond the Right-of-Way without prior approval(s).
9. Co location. Where technically feasible, Equipment may be required to be designed and
constructed to permit the support structure to accommodate Equipment from as least two (2)
wireless service providers on the same support structure unless the City approves an alternative
design. The Licensee shall not unfairly exclude a competitor from using the same facility or
location.
10. All areas impacted by the construction and placement of Small Cell Network Equipment
shall be returned to the same or better condition than existed prior to such installation or
construction. The Licensee may propose an alternative reconstruction method prior to
construction.
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49311220.1
11. In addition to the above Design Criteria, Licensee shall abide by all current and future
City ordinances, rules and regulations regarding the construction of towers and
telecommunications facilities, in the Englewood Municipal Code 2000, Title 16, Chapter 2, Title
16, Chapter 7, and Title 5, Chapter 27.
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49311220.1
EXHIBITD
ATTACHMENT TO CITY OF ENGLEWOOD TRAFFIC CONTROL SIGNAL
FACILITIES
TRAFFIC SIGNAL POLE REQUIREMENTS
The City traffic signal poles are engineered structures designed to specific loading criteria
and required AASHTO standards. Modifications to the loading due to Small Cell Wireless
Equipment installation shall require an engineering analysis stamped by a Colorado licensed
professional engineer, provided at Licensee's expense.
All outside engineering analysis shall be subject to approval by the City's Public Works
Department.
All cabling must be external to the signal pole and shielded per Englewood Engineering
standards to eliminate interference with existing signal cables and conductors.
All Equipment installed by the Licensee shall be designed and installed to contain separate
power cables and meters. Separate power fuses shall be installed to prevent the pole from
becoming electrified due to an Equipment fault.
All installed Equipment, including but not limited to, cables, conduits, and bands shall be
installed as to not interfere with access to or any operations of any traffic signal Equipment,
including any traffic monitoring or enforcement Equipment currently, or in the future, installed on
the traffic signal pole.
Equipment installation or serv1cmg on signal poles shall be coordinated with the
Englewood Public Works Departments.
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49311220.1
EXHIBITE
CITY OF ENGLEWOOD
SURETY BOND
(Below is a Proforma Only -Actual Form To Be Supplied by Licensee's Bank)
Principal: ------------Surety Bond Amount: _____ _
Surety Bond No.: ______ _
KNOW ALL MEN BY THESE PRESENT, THAT WE
of --------------------------------~ as Principal
and ---------------------------~ as surety,
are held and firmly bound unto the City of Englewood or its assigns, in the sum of$ ___ _
-------~ lawful money, to be paid unto the City for the true payment of which
we bind ourselves, our heirs, executors, administrators and assigns, jointly and severally,
firmly by these presents.
WHEREAS, Principal has entered into a Small Cell Facilities or Small Cell Networks
License Agreement dated January __ , 2019 with the City ("Agreement"), which contract is
referred to and made a part hereof as if fully set forth; and
WHEREAS, Section 7.5 of the Agreement requires a Security Deposit to cover incidental
expenses and costs, damages and fees not covered by any insurance policies including but not
limited to: interest, charges by the City to remove Small Cell Facilities or Small Cell Networks
and unpaid permit and administrative fees; and
WHEREAS, the City conditionally granted approval on ___________ _
for the Licensee Facilities Plans and Specifications as set forth in the Agreement.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION, is such that this
obligation shall remain in full force and effect until the sixtieth ( 60th) day after the Expiration Date
of the Agreement or other lawful termination hereof, to insure the faithful performance by Licensee
of all of the covenants, terms and conditions of the Small Cell Facilities or Small Cell Networks
License Agreement. Thirty (30) days prior written notice to the City is required for surety bond
cancellation or material change thereof.
Whenever Principal shall be declared by the City to be in default under the approved
Licensee Facilities Plans and Specifications or Agreement, the surety shall promptly, or make
available sufficient funds to pay the costs of the City in remedying the deficiencies in accordance
with the terms of this Agreement, but not exceeding the amount set forth in the first paragraph
hereof.
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49311220.1
Signed, sealed and dated this ___ day of ___________ 20 __
IN THE PRESENCE OF:
Principal: ____________ _
Signed: _____________ _
Title: ______________ _
Surety: _____________ _
Signed: _____________ _
Title: ---------------
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49311220.1