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Home My WebLink About2023 Ordinance No. 0011/3 BY AUTHORITY ORDINANCE NO. 01 COUNCIL BILL NO. 64 SERIES OF 2022/2023 INTRODUCED BY COUNCIL MEMBER WOODWARD AN ORDINANCE APPROVING A LEASE AGREEMENT FOR DARK FIBER WITH COMCAST BUSINESS COMMUNICATIONS, LLC AND AUTHORIZING THE EXECUTION OF DOCUMENTS RELATED THERETO WHEREAS, the City of Englewood is authorized by Section 31-15-801, C.R.S., to enter into rental or leasehold agreements in order to provide necessary land, buildings, equipment and other property for governmental or proprietary purposes; and WHEREAS, the City of Englewood Department of Information Technology has identified a need for fiber-optic infrastructure to increase capacity and facilitate high speed Internet access and communications for the City; and WHEREAS, the Department of Information Technology has further determined that it is in the best interests of the City to enter into a Dark Fiber Lease Agreement with Comcast Business Communications, LLC for the provision of a fiber optic network and related equipment and services (“Dark Fiber Lease Agreement”), and that the use of such equipment is essential to the City’s proper, efficient, and economic operation; and WHEREAS, the Department of Information Technology has taken the necessary and appropriate steps under applicable law to arrange for the acquisition of the equipment under the Dark Fiber Lease Agreement; and WHEREAS, the Dark Fiber Lease Agreement terminates and the City’s obligations thereunder are extinguished if the City fails to appropriate money for the ensuing fiscal year for the payment of the amounts due in such fiscal year; and WHEREAS, the Department of Information Technology requests that the Englewood City Council approve, enter into, and deliver, as applicable, to effectuate the proposed Dark Fiber Lease Agreement. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ENGLEWOOD, COLORADO, AS FOLLOWS: Section 1. Pursuant to C.R.S. § 31-15-801, the City Council of the City of Englewood, Colorado hereby authorizes the Dark Fiber Lease Agreement between Comcast Business Solutions, LLC and the City of Englewood, Colorado, a copy of which is attached hereto as Exhibit 1. DocuSign Envelope ID: 4F9034A8-780D-4DFB-B525-108F81802A84 2/3 Section 2. The following general provisions and findings are applicable to the interpretation and application of this Ordinance: A. Severability. If any clause, sentence, paragraph, or part of this Ordinance or the application thereof to any person or circumstances shall for any reason be adjudged by a court of competent jurisdiction invalid, such judgment shall not affect, impair or invalidate the remainder of this Ordinance or its application to other persons or circumstances. B. Inconsistent Ordinances. All other Ordinances or portions thereof inconsistent or conflicting with this Ordinance or any portion hereof are hereby repealed to the extent of such inconsistency or conflict. C. Effect of repeal or modification. The repeal or modification of any provision of the Code of the City of Englewood by this Ordinance shall not release, extinguish, alter, modify, or change in whole or in part any penalty, forfeiture, or liability, either civil or criminal, which shall have been incurred under such provision, and each provision shall be treated and held as still remaining in force for the purposes of sustaining any and all proper actions, suits, proceedings, and prosecutions for the enforcement of the penalty, forfeiture, or liability, as well as for the purpose of sustaining any judgment, decree, or order which can or may be rendered, entered, or made in such actions, suits, proceedings, or prosecutions. D. Safety Clauses. The City Council hereby finds, determines, and declares that this Ordinance is promulgated under the general police power of the City of Englewood, that it is promulgated for the health, safety, and welfare of the public, and that this Ordinance is necessary for the preservation of health and safety and for the protection of public convenience and welfare. The City Council further determines that the Ordinance bears a rational relation to the proper legislative object sought to be obtained. This Safety Clause is not intended to affect a Citizen right to challenge this Ordinance through referendum pursuant to City of Englewood Charter 47. E. Publication. Publication of this Ordinance may be in the City’s official newspaper, the City’s official website, or both. Publication shall be effective upon the first publication by either authorized method. F. Actions Authorized to Effectuate this Ordinance. The Mayor is hereby authorized and directed to execute all documents necessary to effectuate the approval authorized by this Ordinance, and the City Clerk is hereby authorized and directed to attest to such execution by the Mayor where necessary. In the absence of the Mayor, the Mayor Pro Tem is hereby authorized to execute the above-referenced documents. The execution of any documents by said officials shall be conclusive evidence of the approval by the City of such documents in accordance with the terms thereof and this Ordinance. City staff is further authorized to take additional actions as may be necessary to implement the provisions of this Ordinance, including correcting any non-substantive typographical or scrivener’s error in the Agreement. DocuSign Envelope ID: 4F9034A8-780D-4DFB-B525-108F81802A84 3/3 G. Enforcement. To the extent this ordinance establishes a required or prohibited action punishable by law, unless otherwise specifically provided in Englewood Municipal Code or applicable law, violations shall be subject to the General Penalty provisions contained within EMC § 1-4-1. Introduced, read in full, and passed on first reading on the 5th day of December, 2022. Published by Title as a Bill for an Ordinance in the City’s official newspaper on the 8th day of December, 2022. Published as a Bill for an Ordinance on the City’s official website beginning on the 7th day of December, 2022 for thirty (30) days. Read by Title and passed on final reading on the 3rd day of January, 2023. Published by Title in the City’s official newspaper as Ordinance No. 01, Series of 2022/2023, on the 6th day of January, 2023. Published by title on the City’s official website beginning on the 5th day of January, 2023 for thirty (30) days. This Ordinance shall take effect thirty (30) days after publication following final passage. Othoniel Sierra, Mayor ATTEST: Stephanie Carlile, City Clerk I, Stephanie Carlile, City Clerk of the City of Englewood, Colorado, hereby certify that the above and foregoing is a true copy of the Ordinance passed on final reading and published by Title as Ordinance No. 01, Series of 2022/2023. Stephanie Carlile DocuSign Envelope ID: 4F9034A8-780D-4DFB-B525-108F81802A84 Dark Fiber Lease Agreement This Dark Fiber Lease Agreement (“Agreement”) is made on September 14, 2022 (“Effective Date”) by and between Comcast Business Communications, LLC (“Company or Comcast”) with offices located at 1701 JFK Blvd / One Comcast Center Philadelphia, PA 19103 and City of Englewood (“Customer”), with offices located at 1000 Englewood Parkway, Englewood, CO 80110. Herein, the above shall be collectively referred to as the “Parties” and individually as “Party”. Description of Facilities (“Facilities”) to be provided by Company to Customer: Dark fiber strands (ten (10) pair), as set forth in the Sales Order attached hereto. Agreement Term (months): One-Hundred and Twenty (120) Agreement Number: CO-APr-091422-1 Non-Recurring Charges (“NRC”): $0.00 Monthly Recurring Charges (“MRC”): $5,500.00 Any Additional Charges/Explanation: Number of Sites: Five (5) Estimated Facility Availability Date: N/A (already provisioned) Notes / Comments: The mutual execution of this new Dark Fiber Lease Agreement No. CO-APr-091422-1 (“Replacement Agreement”) by the Parties shall commence the full termination (without penalty or Termination Charges) of the already in-effect Enterprise Services Sales Order - MSA ID No. CO-11387590 (“Existing Agreement”) between the Parties. In the event this Replacement Agreement is not mutually executed by the Parties, the Existing Agreement shall remain in full force and effect. Salesperson: Amy Prange Telephone Number: (303) 913-0580 General Manager: Chris Prekopa Telephone Number: (720) 357-3264 Customer Contact: Jeromy King Telephone Number: (303) 783-6831 This Agreement sets forth the terms and conditions under which Comcast will provide the Facilities identified above to Customer. This Agreement consists of this document (“Cover Page”), the standard General Terms and Conditions attached hereto (“General Terms and Conditions”), Sales Order (“Sales Order”), and any jointly executed amendments (“Amendments”), collectively referred to as the “Agreement.” In the event of any inconsistency among these documents, precedence will be as follows: (1) Amendments, (2) General Terms and Conditions, (3) this Cover Page, and (4) Sales Order. This Agreement shall commence and become a legally binding agreement upon mutual execution of this Cover Page by the Parties. The Agreement shall terminate as set forth in the General Terms and Conditions. All capitalized terms not defined on this Cover Page shall have the definitions given to them in the General Terms and Conditions. All modifications to the Agreement, if any, must be captured in a written Amendment, executed by an authorized Comcast Vice President and the Customer. All other attempts to modify the Agreement shall be void and non-binding on Comcast. By signing below, the Parties agree and accept the terms and conditions of this Agreement. City of Englewood Comcast Business Communications, LLC Signature: Signature: Printed Name: Printed Name: Title: Title: Date: Date: Page 1 of 6 CONFIDENTIAL and PROPRIETARY rcv. 10.10.17 SH-A DocuSign Envelope ID: 4F9034A8-780D-4DFB-B525-108F81802A84 Page 1 of 6 CONFIDENTIAL and PROPRIETARY SH-A rcv. 10.10.17 GENERAL TERMS AND CONDITIONS SECTION 1 - SCOPE 1.1 Company will lease to Customer the strands of Company’s multi-strand single mode fiber-optic cable (the “Facilities,” which may be referenced herein as the “Services,” but no service other than the provision and maintenance of these Facilities is provided under this agreement), which strands shall originate at the points and terminate to the Customer “Buildings” and at the prices as set forth in the attached Sales Order attached hereto. These strands and all related facilities and equipment are hereinafter referred to as the “Facilities.” Customer agrees that it will light and immediately use all strands for its broadband needs. The Facilities are provisioned into each Building at the point of interconnection between the Comcast-owned Facilities and Customer’s provided equipment located at Customer’s Building (“Demarcation Point”). 1.2 The Facilities do not include connection to the public switched network, building wire, any Local Area Networks (“LANs”), Customer Premise Equipment (“CPE”), IP addressing capability, firewalls or any other equipment, electronics, or wiring required on the Customer’s side of the Demarcation Point. 1.3 Upon the request of Customer, Company will consider providing other facilities or services to Customer at terms, conditions, and prices to be mutually agreed upon in writing between the Parties. SECTION 2 - INSTALLATION 2.1 Customer, at no cost to Company, shall secure throughout the Term any easements, leases or other agreements necessary to allow Company to use existing pathways into and in each Building to the Demarcation Point. 2.2 Subject to the terms of this Agreement, and at no cost to Company, Customer shall provide adequate environmentally controlled space and electricity required for installation, operation, and maintenance of the Facilities within each Building. 2.3 Company and its employees, agents, lessees, officers and its authorized vendors will require free ingress and egress into and out of the Buildings in connection with the provision of the Facilities. Upon reasonable notice from Company, Customer shall assist Company in accessing each Building. 2.4 If the presence of asbestos or other hazardous materials exists or is detected, Customer must have such hazardous materials removed immediately at Customer’s expense or notify Company to install the applicable portion of the Facilities in areas of any such Building not containing such hazardous material. Any additional expense incurred as a result of encountering hazardous materials, including but not limited to, any additional equipment shall be borne by Customer. 2.5 Company shall have no obligation to install, operate, or maintain Customer-provided facilities or equipment. 2.6 Customer shall be responsible for providing maintenance, repair, operation and replacement of all wire, cable facilities on the Customer’s side of the Demarcation Point. Any CPE and wiring that Customer uses in connection with the Facilities shall be compatible with Comcast’s other facilities, equipment, and services provided to itself or any other party (the “Network”). 2.7 Customer shall use reasonable efforts to maintain its property and Buildings in a manner that preserves the integrity of the Facilities and shall promptly notify Company of any event that affects such integrity including but not limited to damage to the Facilities or Network. 2.8 At such time as Company completes installation and connection of the Facilities and equipment, Company shall then notify Customer in writing that the Facilities are available for use and the date of such notice shall be the “Service Date.” The current notice form is called the “Customer Site Service Acceptance Document” (“Acceptance Form”). Company may update, modify or replace the service notification form from time to time without notice to Customer. 2.9 Any other failure or refusal on the part of Customer to be ready to receive the Facilities shall not relieve Customer of its obligation to pay charges for any Facilities that would otherwise be available for use. 2.10 Customer-Provided Equipment (CPE). Company shall have no obligation to install, operate, or maintain CPE. Customer alone shall be responsible for providing maintenance, repair, operation and replacement of all inside telephone wiring and equipment and facilities on the Customer’s side of the Demarcation Point. All CPE and wiring that Customer uses in connection with the Facilities must be fully compatible with the Facilities. Customer shall be responsible for the payment of all charges for troubleshooting, maintenance or repairs attempted or performed by Company’s employees or authorized contractors when the difficulty or trouble report results from CPE. SECTION 3 - OWNERSHIP, IMPAIRMENT, AND REMOVAL OF THE FACILITIES 3.1 The Facilities and all other portions of the Network are and shall remain the property of Company regardless of whether installed between, within or upon the Buildings and whether installed overhead, above, or underground and shall not be considered a fixture or an addition to the land or the Buildings located thereon. Customer agrees that it shall take no action that directly or indirectly impairs Company’s title to the Facilities or Network, or exposes Company or the Facilities, Network, or any Company-provided equipment, or on the rights or title relating thereto, or any interest therein, to any claim, lien, encumbrance, or legal process, except as otherwise agreed in writing by the Parties, and Company will promptly at its own expense take all actions necessary to remedy any violation of this provision. 3.2 Company retains the right to remove the Facilities or Network including, but not limited to, those portions that are located in the Buildings. To the extent Company removes such portion of the Network; it shall be responsible for returning the Buildings to their prior condition, reasonable wear and tear excepted. 3.3 In accordance with the Federal Communications Commission’s Order in FCC 99-216, released August 11, 1999, the Parties agree to the terms set forth in this section. All equipment located on Customer's premises installed or provided under this Agreement by Company is an integral component of the Facilities provided by Company and will only be used in connection therewith. All right, title, and interest in the Facilities and any other equipment or facility provided by Company shall, at all times, remain exclusively with the Company, shall not become a fixture to Customer's premises, and must be returned to Company at the conclusion of the Term (unless a new similar agreement has been executed or is being actively negotiated by both parties) in the condition in which it was received, subject to ordinary wear and tear. All rights of Customer to the Facilities shall cease and Company may, at its option, disconnect, terminate, remove or use the Facilities for any other purpose. Company may use such equipment and its Network in any lawful manner, including supporting its network or providing service to other customers and Customer will not sell, lease, assign nor encumber any equipment provided by Company. Company does not provide any option to Customer to purchase any such equipment. Customer agrees not to interfere with other customers' use of the Company services or equipment, including any Company equipment located on Customer's DocuSign Envelope ID: 4F9034A8-780D-4DFB-B525-108F81802A84 Page 2 of 6 CONFIDENTIAL and PROPRIETARY SH-A rcv. 10.10.17 premises. Customer represents and warrants that its internal communications systems, such as a Local Area Network ("LAN"), would continue to function if disconnected from the Company Network or disconnected from any on-premise equipment provided by Company. SECTION 4 - COMPENSATION; PAYMENT 4.1 The Non-Recurring Charges (“Non-Recurring Charges” or “NRC”) and Monthly Recurring Charges (“Monthly Recurring Charges” or “MRC”) for the Facilities are set forth in the attached Sales Order and on the first page of the Agreement. Upon the availability of Facilities, Company shall invoice Customer for the NRC and Customer shall pay Company one hundred percent (100%) of the NRC. Unless otherwise stated in this Agreement, Company will invoice Customer in advance on a monthly basis for all Monthly Recurring Charges arising under the Agreement. Payment will be considered timely made to Company if received within thirty (30) days after the invoice date set forth in the invoice. Any charges not paid to Company within such period will be considered past due. In the event the Facilities Availability Date is not the first day of the billing period, the first Recurring Charge shall also include the prorated in arrears charges for Services from date of installation to the date of first billing. 4.2 Any payment not made when due will be subject to a late charge of 1.5% per month or the highest rate allowed by law on the unpaid invoice, whichever is lower. 4.3 Except for taxes based on Company’s net income, and except to the extent Customer provides a valid tax exemption certificate acceptable to Comcast prior to the Facility Availability Date, Customer shall be responsible for the payment of any and all applicable local, state, and federal taxes (however designated) levied upon the sale, installation, use or provision of the Facilities, including all applicable right-of-way, franchise, pole attachment, pole rental and/or other permitting, rental or joint use fees in proportion to its activities hereunder. Further, Company reserves the right to invoice Customer for the costs of any fees or payment obligations stemming from an order, rule, or regulation of the FCC, a public service commission or a court of competent jurisdiction with respect to the Facilities, including, without limitation, charges to recover amounts that Company is permitted by government or quasi-governmental authorities to collect from or to pay to others in support of statutory or regulatory programs, including, without limitation, franchise fees and right-of-way fees. It will be the responsibility of Customer to pay any such taxes and fees that subsequently become applicable retroactively. 4.4 In the event that any newly adopted law, rule, regulation, or judgment increases Company’s costs of providing the Facilities, Customer shall pay Company’s additional costs of providing the Facilities under the new law, rule, regulation or judgment. SECTION 5 - TERM Unless sooner terminated as provided herein, including under Section 6.2(c), the term of this Agreement shall be for one-hundred and twenty (120) months from the Facility Availability Date (“Term”). Upon the expiration of the Term, this Agreement shall automatically renew for successive periods of one (1) year each (“Renewal Term(s)”), unless prior notice of non-renewal is delivered by either Party to the other at least thirty (30) days before the expiration of the Term or the then current Renewal Term. Effective at any time after the end of the initial Term and from time to time therein, Company may modify the charges for the Facilities to reflect then-current prevailing pricing subject to thirty (30) days prior notice to Customer. Customer will have thirty (30) days from receipt of such notice to cancel the applicable lease of Facilities without further liability. Should Customer fail to cancel within this timeframe, Customer will be deemed to have accepted the modified pricing for the remainder of the Renewal Term. SECTION 6 - TERMINATION WITHOUT FAULT; DEFAULT 6.1 Notwithstanding any other term or provision in this Agreement, Customer shall have the right, in its sole discretion, to terminate this Agreement at any time during the Term, or any Renewal Term, upon (i) sixty (60) days prior written notice to Company and (ii) the payment of 100% of the remaining Monthly Recurring Charges payable to Company within ten (10) days following termination of the Agreement (“Termination Charges”). 6.2 (a) Company may, in its sole discretion, immediately terminate this Agreement in the event that it is unable to provide access to the Facilities due to any law, rule, regulation, Force Majeure event, or judgment of any court or government agency. If Company terminates the agreement under this subsection 6.2(a), Customer shall have no obligation to pay any remaining Monthly Recurring Charges as a result of Termination by the Company, with the exception of payments due for Facilities actually provided. (b) Any breach of Article 9A shall be deemed a material breach of this Agreement. In the event of such material breach, Company shall have the right to restrict, suspend, or terminate immediately any or all Service, without liability on the part of Company, and then to notify Customer of the action that Company has taken and the reason for such action, in addition to any and all other rights and remedies under this Agreement. In the event Company terminates service under this subsection 6.2(b), Customer shall be responsible for the payment of all past due amounts and Termination Charges in addition to any other remedies as identified in section 6.4. (c) Customer is a governmental entity and as such is subject to Article X, Section 20 of the Colorado Constitution, commonly known as “TABOR”. The financial obligations of Customer after the current fiscal year are contingent upon funds for that purpose being appropriated, budgeted and otherwise made available. In the event that funds are not made available in subsequent fiscal years, Customer may terminate this Agreement, without penalty, but subject to any right Company may have under applicable law to recover its costs incurred in connection with any such termination. Any termination under this subsection shall not be deemed to incur Termination Charges. 6.3 In the event of default, either Party may terminate this Agreement. A “default” exists under this Agreement upon the following events: (i) either Party’s failure to meet or perform any material term, provision, covenant, agreement, or obligation contained in this Agreement; provided that the non-defaulting Party so advises the defaulting Party in writing of the event of default and the defaulting Party does not remedy the default within thirty (30) days after written notice thereof; or (ii) Either Party’s insolvency or initiation of bankruptcy or receivership proceedings by or against the Party. (iii) Customer is in breach of a payment obligation and fails to make payment in full within ten (10) days after receipt of written notice of default. 6.4 The non-defaulting Party shall be entitled to all available legal and equitable remedies for such breach. 6.5 In addition to the remedies set forth in Section 6.4 above; Company shall be entitled to Termination Charges for any Customer Default. SECTION 7 – MAINTENANCE 7.1 Maintenance consists of the repair or replacement, at DocuSign Envelope ID: 4F9034A8-780D-4DFB-B525-108F81802A84 Page 3 of 6 CONFIDENTIAL and PROPRIETARY SH-A rcv. 10.10.17 Company’s option, of any portion of the Facilities that is malfunctioning. Company will maintain the Facilities twenty-four (24) hours a day, seven (7) days per week, every day of the year. Company is responsible for the maintenance of the Facilities; provided, that, Customer may incur additional charges for maintenance (at Company’s then-existing applicable rates for material and labor), if the maintenance is caused by the acts or omissions of the Customer. All maintenance and repair of the Facilities shall be performed by or under the direction of Company. Customer may not, nor permit others to, rearrange, disconnect, remove, attempt to repair or otherwise tamper with any of the Facilities or equipment installed by Company, except with the written consent of Company, which consent shall be at Company’s sole discretion. 7.2 In the event that Company, in responding to a Customer- initiated service call, determines that the reason for such service call is due to Customer-provided equipment or Customer's actions or omissions, acts or omissions of third parties with whom Customer has any type of relationship, Customer shall compensate Company for Company’s costs of such service call at the rate of $50.00 per half hour and $150.00 per truck roll charge. SECTION 8 - LIMITATIONS ON WARRANTIES AND LIABILITY 8.1 COMPANY AND ITS AFFILIATES WILL NOT BE LIABLE TO CUSTOMER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, COVER, PUNITIVE OR CONSEQUENTIAL DAMAGES, WHETHER OR NOT FORESEEABLE, OF ANY KIND INCLUDING BUT NOT LIMITED TO ANY COST OF SUBSTITUTE PRODUCT(S), FACILITIES, OR SERVICES, LOSS OF REVENUE, LOSS OF USE, LOSS OF BUSINESS, OR LOSS OF PROFIT WHETHER SUCH ALLEGED LIABILITY ARISES IN CONTRACT OR TORT. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, COMPANY’S AGGREGATE LIABILITY TO CUSTOMER FOR ANY DAMAGES OF ANY KIND UNDER THIS AGREEMENT WILL NOT EXCEED, IN AMOUNT, A SUM EQUIVALENT TO THE APPLICABLE OUT-OF-SERVICE CREDIT. 8.2 THERE ARE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 8.3 Company’s liability for mistakes, errors, omissions, interruptions, delays, outages, or defects in any Facility or Service (individually or collectively, “Liability”) shall be limited solely to 1/30th of the Monthly Recurring Charge for the affected portion of the Service, for one or more Liabilities of at least two (2) hours in duration in any 24-hour period that is not coincident with any other Liability, (“Credit”), provided that the Liability is reported by Customer during the duration of the Liability. Notwithstanding the foregoing, Company shall not be liable for such Credits if the event is caused in part by force majeure events or Customer’s (or Customer’s equipment’s) actions or omissions. 8.4 Company shall not be liable for any act or omission of any other company or companies furnishing a portion of the Facilities including, but not limited to, the inability of a supplier to provide equipment in a timely manner for Network, or for damages associated with services, facilities, or equipment which it does not furnish, including, but not limited to, damages which result from the operation of Customer’s system, equipment or facilities. In no event shall Company, its affiliates, its/their employee’s agents, contractors, merchants, or licensors be liable for any loss, damage or claim arising out of or related to: (1) stored, transmitted, or recorded data, files, or software. (i.e., Customer is advised to back up all data, files and software prior to the installation of service and at regular intervals thereafter); (2) interoperability, interaction or interconnection of the Service provided under this Agreement with applications, equipment, services or networks provided by Customer or third parties. 8.5 Neither Customer nor its agents or independent contractors shall offer third parties warranties or representations for the Service which would obligate or otherwise bind Company beyond any warranty or representation expressly set forth in this Agreement. SECTION 9 – INDEMNIFICATION 9.1 Subject to Section 8, and to the extent not prohibited by law, each Party (“Indemnifying Party”) will indemnify and hold harmless the other Party (“Indemnified Party”), its affiliates, officers, directors, employees, stockholders, partners, , independent contractors and agents from and against any and all joint or several costs, damages, losses, liabilities, expenses, judgments, fines, settlements and any other amount of any nature, including reasonable fees and disbursements of attorneys, accountants, and experts (collectively, "Damages"), arising from any and all claims, demands, actions, suits, or proceedings whether civil, criminal, administrative, or investigative (collectively, "Claims") relating to: (i) Any Claim of any third party resulting from the gross negligence or willful act or omission of Indemnifying Party arising out of or related to this Agreement, the obligations hereunder, and uses of Services; and (ii) Any violation of this Agreement by the Indemnifying Party or any violation of any law, rule, regulation, or order of any governmental authority having jurisdiction over any aspect hereof, or in violation of any patent, right, license, agreement, or certificate relating to the subject matter hereof. 9.2 To the extent not prohibited by law, the Indemnifying Party agrees to defend the Indemnified Party for any loss, injury, liability, claim or demand (“Actions”) that is the subject of this Section 9. The Indemnified Party agrees to notify the Indemnifying Party promptly, in writing, of any Actions, threatened or actual, and to cooperate in every reasonable way to facilitate the defense or settlement of such Actions. The Indemnifying Party shall assume the defense of any Action with counsel reasonably satisfactory to the Indemnified Party. The Indemnified Party may employ its own counsel in any such case and shall pay such counsel’s fees and expenses. The Indemnifying Party shall have the right to settle any claim for which indemnification is available; provided, however, that to the extent that such settlement requires the Indemnified Party to take or refrain from taking any action or purports to obligate the Indemnified Party, then the Indemnifying Party shall not settle such claim without the prior written consent of the Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed. 9.3 The provisions of Section 9 shall not be construed or interpreted as a waiver. express or implied, of any of the immunities, rights, benefits, or other provisions, of the Colorado Governmental Immunity Act. CRS § :24-10-101 et seq. SECTION 9A - USE POLICIES 9A.1 Customer agrees to ensure that all uses of the Facilities by Customer or by any other person (“user”), whether authorized by Customer or not, are legal, appropriate and compliant with all applicable rules, regulations, and orders of any governmental authority having jurisdiction over the Facilities, and this Agreement. Customer shall not use, or permit any other entity or person to use, the Facilities to provide internet access service, cable television service, telecommunications, or any other services to any third party, or any services to or from locations other than the locations set forth in the DocuSign Envelope ID: 4F9034A8-780D-4DFB-B525-108F81802A84 Page 4 of 6 CONFIDENTIAL and PROPRIETARY SH-A rcv. 10.10.17 Sales Order. Company reserves the right to act immediately and without notice to terminate or suspend all rights to use the Facilities if Company (i) determines that such use or information does not conform to the requirements set forth in this Agreement, or (ii) determines that such use or information interferes with Company’s ability to provide the Services to Customer or others. Company’s action or inaction in enforcing the requirements of this Section shall not constitute review or approval of Customer’s or any other users’ use or information. 9A.2 Violation. Any breach of this Article 9A shall be deemed a material breach of this Agreement. In the event of such material breach, Company shall have the right to restrict, suspend, or terminate immediately any or all rights to access to the Facilities, without liability on the part of Company, and then to notify Customer of the action that Company has taken and the reason for such action, in addition to any and all other rights and remedies under this Agreement. SECTION 10 - INSURANCE 10.1 Customer shall, at its own expense, secure and maintain in force, throughout the term of this Agreement, General Liability Insurance, with competent and qualified issuing insurance companies, including the following coverages: Product Liability; Hazard of Premises/Operations (including explosion, collapse and underground coverages); Independent Contractors; Products and Completed Operations; Blanket Contractual Liability (covering the liability assumed in this Agreement); Personal Injury (including death); and Broad Form Property Damage in policy or policies of insurance such that the total available limits to all insureds will not be less than $2,000,000 Combined Single Limit for each occurrence and $2,000,000 aggregated for each annual period. Such insurance may be provided in policy or policies, primary and excess, including the so- called Umbrella or Catastrophe forms and each such policy shall be endorsed to show Company, its parent and affiliates and its and their directors, officers, agents, servants, employees and independent contractors as additional insureds. In addition, Customer shall maintain in effect, with insurance companies of recognized responsibility, at its own expense, (i) "All Risk" property insurance coverage with limits sufficient to cover the full replacement cost of the Facilities with no co- insurance, (ii) Business Interruption coverage on an actual loss sustained basis, and (iii) such other insurance as may be required by any applicable franchise and/or pole attachment or conduit license agreements, as applicable and naming Company as the loss payee. All policies required by this Section shall require the insurance companies to notify Company at least thirty (30) days prior to the effective date of any cancellation or material modification of such policies. 10.2 Company shall carry Workers' Compensation insurance as required by the Labor Code of the State of Colorado and Employers Liability Insurance. The parties understand and agree that Customer is relying on and does not waive or intend to waive by any provision of this contract, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, § 24-10- 101 et seq., C.R.S., as from time to time amended, or otherwise available to Customer, its officers, or its employees. SECTION 11 - ASSIGNMENT 11.1 Neither Party shall assign any right, obligation or duty, in whole or in part, nor of any other interest hereunder, without the prior written consent of the other Party, which shall not be unreasonably withheld. The foregoing notwithstanding, Company may assign this Agreement to any affiliate, related entity, or successor in interest without Customer’s consent. In addition, Company may partially assign its rights and obligations hereunder to any party which acquires from Company all or substantially all of the assets of cable franchise(s) in which the Service is deployed to Customer. 11.2 All obligations and duties of either Party under this Agreement shall be binding on all successors in interest and assigns of such Party. SECTION 12 - FORCE MAJEURE Neither Party shall be held liable for any delay or failure in performance of any part of this Agreement from any cause beyond its control and without its fault or negligence, such as acts of God, acts of civil or military authority, act of terrorism, government regulations, condemnation of any part of the Network used to provide the Facilities or Services, embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, power blackouts, unusually severe weather conditions, inability to secure products or services of other persons or transportation facilities, or acts or omissions of transportation common carriers. SECTION 13 - SEVERABILITY In the event that any one or more of the provisions in this Agreement shall for any reason be held invalid, unenforceable, or void in any respect under the laws of the jurisdiction governing the entire Agreement, such provision(s) shall be construed so as to render it enforceable and effective to the maximum extent possible in order to effectuate the intention of this Agreement; and the validity, legality, and enforceability of the remaining provisions hereof shall not be affected or impaired. SECTION 14 - THIRD-PARTY BENEFICIARIES No provision in this Agreement is intended, nor shall any be interpreted, to provide any person not a Party to this Agreement with any remedy, claim, liability, reimbursement, cause of action or create any other third-party beneficiary rights against Company. SECTION 15 - INDEPENDENT CONTRACTORS 15.1 The Parties to this Agreement are independent contractors. Neither Party is an agent, representative, or partner of the other Party. Neither Party shall have any right, power, or authority to enter into any agreement for, or on behalf of, or incur any obligation or liability of, or to otherwise bind, the other Party. This Agreement shall not be interpreted or construed to create an association, agency, joint venture, or partnership between the Parties or to impose any liability attributable to such a relationship upon either Party. 15.2 The requirements of this Article shall survive the expiration, termination, or cancellation of this Agreement to the greatest extent permitted by law. SECTION 16 - NONDISCLOSURE 16.1 Unless prior written consent is obtained from a Party hereto, the other Party will keep in strictest confidence all information identified by the first Party as confidential, or which, from the circumstances, in good faith and in good conscience, should be treated as confidential; provided that (a) the owner thereof has taken reasonable measures to keep such information secret; and (b) the information derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable through proper means by the public. Such information includes but is not limited to all forms and types of financial, business, scientific, technical, economic, or engineering information, including patterns, plans, compilations, program devices, formulas, designs, prototypes, methods, techniques, processes, procedures, programs, or codes, whether tangible or intangible, and whether or not stored, compiled, or memorialized physically, electronically, graphically, photographically, or in writing. A Party shall be excused from these nondisclosure provisions if the information has been, or is subsequently, made public by the disclosing Party, is independently developed by the other Party, if the disclosing Party gives its express, prior written consent to the public disclosure of the information, or if DocuSign Envelope ID: 4F9034A8-780D-4DFB-B525-108F81802A84 Page 5 of 6 CONFIDENTIAL and PROPRIETARY SH-A rcv. 10.10.17 the disclosure is required by any law or governmental or quasi- governmental rule or regulation. 16.2 Customer shall not disclose to third parties the rates, terms, or conditions of this Agreement or any proprietary or confidential information of the Company, except as necessary for the operation of Customer’s business and under non-disclosure agreement between Customer and third parties. 16.3 Company acknowledges that the Customer is subject to the Colorado Open Records Act. If Company asserts that any information constitutes a trade secret, it is understood and acknowledged that the Customer will not release such records without first notifying Company and affording them an opportunity to challenge in a court of competent jurisdiction the requester’s right to access to such information. The entire burden of maintaining and defending the trade secret designation shall be upon Company. Company acknowledges and agrees that if it shall fail, in a timely manner, to initiate legal action to defend the trade secret designation or be unsuccessful in its defense of that designation, the Customer shall be obligated to, and will, release the information. SECTION 16A - CUSTOMER PRIVACY POLICIES 16A.1 In addition to the provisions of Article 16, the privacy policy below applies to Company’s handling of Customer confidential information. In the event of a conflict between the provisions of Article 16 and any provision of the privacy policy below, the applicable provision of the privacy policy shall prevail in the resolution of the conflict. A copy of Company’s privacy policy is available at http://www.comcast.com/customerprivacy/. Company may update this policy from time to time, and such updates shall be deemed effective upon posting. 16A.2 Privacy Note Regarding Information Provided to Third Parties: Company is not responsible for any information provided by Customer to third parties, and this information is not subject to the privacy provisions of this Agreement or the privacy policies. Customer assumes all privacy and other risks associated with providing personally identifiable information to third parties via the Services. SECTION 17 – NOTICES 17.1 Any notices or other communications contemplated or required under this Agreement, in order to be valid, shall be in writing and shall be given via personal delivery, or overnight courier, or via U.S. Certified Mail, Return Receipt Requested, at the following addresses: To Customer: Attn: Jeromy King City of Englewood 1000 Englewood Pkwy Englewood, CO 80110 To Company: Attn.: VP – Business Services Comcast Cable Communications Management, LLC 1701 JFK Blvd / One Comcast Center Philadelphia, PA 19103 With a copy to: Attn.: Cable Law Department - Operations Comcast Cable Communications, LLC. 1701 JFK Blvd / One Comcast Center Philadelphia, PA 19103 SECTION 18 - HEADINGS AND TITLES The headings or titles of any provisions of this Agreement are for convenience or reference only and are not to be considered in construing this Agreement. SECTION 19 – CHOICE OF LAW The domestic law of the state in which the Services are provided shall govern the construction, interpretation, and performance of this Agreement, except to the extent superseded by federal law. SECTION 20 - COMPLIANCE WITH LAWS Each of the Parties agrees to comply with all applicable local, state and federal laws and regulations and ordinances in the performance of its respective obligations under this Agreement. SECTION 21 - AMENDMENTS; NO WAIVER 21.1 This Agreement may be amended only by written agreement signed by authorized representatives of both Parties. 21.2 No waiver of any provisions of this Agreement or to any default under this Agreement shall be effective unless the same shall be in writing and signed by or on behalf of the Party against whom such waiver is claimed. 21.3 No course of dealing or failure of any Party to strictly enforce any term, right, or condition of this Agreement shall be construed as a waiver of such term, right or condition. 21.4 Waiver by either Party of any default by the other Party shall not be deemed a waiver of any other default. SECTION 22 - SURVIVAL Provisions contained in this Agreement that by their sense and context are intended to survive the performance, termination or cancellation of this Agreement hereof by any Party hereto shall so survive. SECTION 23 - FULLY INTEGRATED This writing constitutes the entire agreement between the Parties as to the subject matter hereof and supersedes and merges all prior oral or written agreements, representations, statements, negotiations, understandings, proposals, and undertakings with respect to the Agreement. SECTION 24 -INTERPRETATION OF AGREEMENT This Agreement is a negotiated document. In the event that this Agreement requires interpretation, such interpretation shall not use any rule of construction that a document is to be construed more strictly against the Party who prepared the document. SECTION 25 - RIGHT TO ENTER INTO CONTRACTS Nothing herein shall be construed as preventing either Party hereto from entering into similar contractual arrangements with other parties, unless such contracts would conflict with the performance of this Agreement. SECTION 26 - REMEDIES CUMULATIVE All rights of termination, or other remedies set forth in this Agreement are cumulative and are not intended to be exclusive of other remedies to which the injured Party may be entitled at law or equity in case of any breach or threatened breach by the other Party of any provision of this Agreement. Use of one or more remedies shall not bar use of any other remedy for the purpose of enforcing any provision of this Agreement; provided, however, that Party shall not be entitled to retain the benefit of inconsistent remedies. DocuSign Envelope ID: 4F9034A8-780D-4DFB-B525-108F81802A84 Page 6 of 6 CONFIDENTIAL and PROPRIETARY SH-A rcv. 10.10.17 SECTION 27 - COUNTERPARTS This Agreement may be executed simultaneously in two or more counterparts, each counterpart shall be deemed an original, and all counterparts individually or together shall constitute one and the same instrument. SECTION 28 - VERIFICATION OF COMPLIANCE WITH C.R.S. 8-17.5-101 ET.SEQ. REGARDING HIRING OF WORKERS WITHOUT AUTHORIZATION 28.1 Employees, Consultants and Sub-consultants: Company shall not knowingly employ or contract with a worker without authorization to perform work under this Agreement. Company shall not contract with a sub-consultant that fails to certify to the Company that the sub-consultant will not knowingly employ or contract with a worker without authorization to perform work under this Agreement. [CRS 8-17.5- 102(2)(a)(I) & (II).] 28.2 Verification: Company will participate in either the E-Verify program or the Department program, as defined in C.R.S. 8-17.5-101 (3.3) and 8-17.5-101 (3.7), respectively, in order to confirm the employment eligibility of all employees who are newly hired for employment to perform work under this public contract for services. Company is prohibited from using the E-Verify program or the Department program procedures to undertake pre-employment screening of job applicants while this contract is being performed. 28.3 Duty to Terminate a Subcontract: If Company obtains actual knowledge that a sub-consultant performing work under this Agreement knowingly employs or contracts with a worker without authorization, Company shall; (1) notify the sub-consultant and the Customer within three (3) days that the Company has actual knowledge that the sub-consultant is employing or contracting with a worker without authorization; and (2) terminate the subcontract with the sub-consultant, with respect to the applicable work performed by such sub-consultant, if, within three (3) days of receiving notice required pursuant to this paragraph the sub-consultant does not stop employing or contracting with the worker without authorization; except that the Company shall not terminate the contract with the sub-consultant, with respect to the applicable work performed by such sub-consultant, if during such three (3) days the sub-consultant provides information to establish that the sub- consultant has not knowingly employed or contracted with worker without authorization. 28.4 Duty to Comply with State Investigation: Company shall comply with any reasonable request of the Colorado Department of Labor and Employment made in the course of an investigation by that the Department is undertaking pursuant to C.R.S. 8-17.5-102 (5) DocuSign Envelope ID: 4F9034A8-780D-4DFB-B525-108F81802A84 Agreement No: CO-APr-091422-1 SO ID#:Account Name: Primary Contact:Othoniel Sierra Billing Account Name Title:Mayor Billing Name (3rd Party Accounts) Address 1: Address 1:1000 Englewood Parkway Billing Contact:Address 2: Address 2:Title:City: City:Englewood Phone:State: State:CO Cell:Zip Code: Zip:80110 Fax:Tax Exempt: Phone:303-762-2310 Email: Cell: Fax: Email:osierra@englewoodco.gov Service Term (Months):120 SUMMARY OF SERVICE CHARGES* Current Monthly Recurring Charges:$5,500.00 Total Standard Installation Fees:$0.00 Current Trunk Services Monthly Recurring Charges:$0.00 Total Trunk Services Standard Installation Fees:$0.00 Total Monthly Recurring Charges (all Services):$5,500.00 Total Standard Installation Fees (all Services):$0.00 Change Monthly Recurring Charges:$0.00 Change Trunk Services Monthly Recurring Charges:$0.00 Total Custom Installation Fee: Change Monthly Recurring Charges (all Services):$0.00 Total Monthly Recurring Charges:$5,500.00 Total Trunk Services Monthly Recurring Charges:$0.00 Total Monthly Recurring Charges (all Services):$5,500.00 SUMMARY OF MONTHLY EQUIPMENT FEES Current Equipment Fee Monthly Recurring Charges:$0.00 Current Trunk Services Equipment Fee Monthly Recurring Charges:$0.00 Current Equipment Fee Monthly Recurring Charges (All Services):$0.00 Change Equipment Fee Monthly Recurring Charges:$0.00 Change Trunk Services Equipment Fee Monthly Recurring Charges:$0.00 Change Equipment Fee Monthly Recurring Charges (All Services):$0.00 Total Equipment Fee Monthly Recurring Charges $0.00 Total Trunk Service Equipment Fee Monthly Recurring Charges $0.00 Total Equipment Fee Monthly Recurring Charges (All Services)$0.00 303-762-2310 CO 1000 Englewood Parkway Othoniel Sierra Englewood 80110 SALES ORDER FORM 21614145 City of Englewood CUSTOMER INFORMATION (for notices) City of Englewood INVOICE ADDRESS Yes osierra@englewoodco.gov * If Yes, please provide and attach all applicable tax exemption certificates SUMMARY OF CHARGES (Details on following pages) SUMMARY OF STANDARD INSTALLATION FEES* SUMMARY OF CUSTOM INSTALLATION FEES* $0.00 *Note: Charges identified in the Sales Order are exclusive of maintenance and repair charges, and applicable federal, state, and local taxes, fees, surcharges and recoupments (however designated). Please refer to your Comcast Enterprise Services Master Services Agreement (MSA) for specific detail regarding such charges. Customer shall pay Comcast one hundred percent (100%) of the non-amortized Custom Installation Fees prior to the installation of Service. DocuSign Envelope ID: 4F9034A8-780D-4DFB-B525-108F81802A84 SERVICES AND PRICING Account Name:Date: Agreement No:SO ID#: Short Description of Service: Service Term:120 MONTHS Line Request Action Service(s)Tax Jurisdiction Qty Monthly One-Time 001 Renew Remove Dark Fiber Primary Route Civic Center / 1000 Englewood Par - Interstate 5 ($2,750.00)$0.00 002 Renew Remove Dark Fiber Primary Route - Safety Services / 3615 S Elati Street Interstate 1 ($550.00)$0.00 003 Renew Remove Dark Fiber Primary Route - Rec Center / 1155 W Oxford Ave Interstate 2 ($1,100.00)$0.00 004 Renew Remove Dark Fiber Primary Route - Allen Filter Plant / 1500 W Layton Ave Interstate 1 ($550.00)$0.00 005 Renew Remove Dark Fiber Primary Route - Broadway Bellweview traffic lights / Br Interstate 1 ($550.00)$0.00 006 - - - - - $0.00 $0.00 007 Renew Add Dark Fiber Primary Route Civic Center / 1000 Englewood Par - Interstate 5 $2,750.00 $0.00 008 Renew Add Dark Fiber Primary Route - Safety Services / 3615 S Elati Street Interstate 1 $550.00 $0.00 009 Renew Add Dark Fiber Primary Route - Rec Center / 1155 W Oxford Ave Interstate 2 $1,100.00 $0.00 010 Renew Add Dark Fiber Primary Route - Allen Filter Plant / 1500 W Layton Ave Interstate 1 $550.00 $0.00 011 Renew Add Dark Fiber Primary Route - Broadway Bellweview traffic lights / Br Interstate 1 $550.00 $0.00 012 - - - - - $0.00 $0.00 013 - - - - - $0.00 $0.00 014 - - - - - $0.00 $0.00 015 - - - - - $0.00 $0.00 016 - - - - - $0.00 $0.00 017 - - - - - $0.00 $0.00 018 - - - - - $0.00 $0.00 019 - - - - - $0.00 $0.00 020 - - - - - $0.00 $0.00 021 - - - - - $0.00 $0.00 022 - - - - - $0.00 $0.00 023 - - - - - $0.00 $0.00 024 - - - - - $0.00 $0.00 025 - - - - - $0.00 $0.00 026 - - - - - $0.00 $0.00 027 - - - - - $0.00 $0.00 028 - - - - - $0.00 $0.00 029 - - - - - $0.00 $0.00 030 - - - - - $0.00 $0.00 031 - - - - - $0.00 $0.00 032 - - - - - $0.00 $0.00 033 - - - - - $0.00 $0.00 034 - - - - - $0.00 $0.00 035 - - - - - $0.00 $0.00 036 - - - - - $0.00 $0.00 037 - - - - - $0.00 $0.00 038 - - - - - $0.00 $0.00 039 - - - - - $0.00 $0.00 040 - - - - - $0.00 $0.00 041 - - - - - $0.00 $0.00 042 - - - - - $0.00 $0.00 043 - - - - - $0.00 $0.00 044 - - - - - $0.00 $0.00 045 - - - - - $0.00 $0.00 046 - - - - - $0.00 $0.00 047 - - - - - $0.00 $0.00 048 - - - - - $0.00 $0.00 049 - - - - - $0.00 $0.00 050 - - - - - $0.00 $0.00 * Services Location Details attached PAGE 2 SUBTOTAL:$0.00 $0.00 SALES ORDER FORM Description Solution Charges #N/A Service Location A*Service Location Z* 21614145CO-APr-091422-1 9/14/2022City of Englewood #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A #N/A DocuSign Envelope ID: 4F9034A8-780D-4DFB-B525-108F81802A84 Date:9/14/2022 Agreement No:SO ID#:Account Name: Line State Incremental Equipment Fee 1 CO $0.00 2 CO $0.00 3 CO $0.00 4 CO $0.00 5 CO $0.00 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 SALES ORDER FORM SERVICE LOCATION DETAIL INFORMATION CO-APr-091422-1 21614145 City of Englewood Location Name/Site ID Address 1 Address 2 City Zip Code Technical/Local Contact Name Technical/Local Contact Phone # Technical/Local Contact Email Address Allen Filter Plant 1500 W Layton Ave Englewood 80110 Rec Center 1155 W Oxford Ave Englewood 80110 Safety Services 3615 S Elati Street Englewood 80110 Civiv Center 1000 Englewood Parkway Englewood 80110 Broadway Bellweview traffic l Broadway and Belleview Englewood 80110 Technical Contact On Site (Yes/No) DocuSign Envelope ID: 4F9034A8-780D-4DFB-B525-108F81802A84