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HomeMy WebLinkAbout01-08-18 City Commission Packet Materials - C8. License Agreement with Bozeman Fiber for Use of City ConduitCommission Memorandum REPORT TO: Honorable Mayor and City Commission FROM: David Fine, Economic Development Specialist SUBJECT: Authorize the City Manager to sign the License Agreement for the Use of City Conduit between the City of Bozeman and Bozeman Fiber. MEETING DATE: January 8, 2018 AGENDA ITEM TYPE: Consent RECOMMENDATION: Authorize the City Manager to sign License Agreement for the Use of City Conduit between the City of Bozeman and Bozeman Fiber. BACKGROUND: On January 11, 2016, the City Commission adopted Resolution 4658 establishing policies for the licensing of City-owned broadband infrastructure. The City issued and advertised a competitive request for proposals to use excess City-owned conduit for installing fiber optic cable. One firm, Bozeman Fiber, responded to that request for proposals and entered into a license agreement with the City. City staff determined that subsequent licenses for remaining vacant conduits could be negotiated with interested parties on a case-by-case basis. Blackfoot Communications, Inc. holds the second City conduit license. The proposed license agreement replaces the existing license agreement with Bozeman Fiber and makes it nearly identical to the recent license entered into by Blackfoot Communications. Bozeman Fiber is licensing ducts and conduits throughout the entire linear footage of the conduit system. If this license is approved, there will be 4 remaining conduits for use by the City or the private sector where 7-way duct is deployed and no remaining 1.25” conduit unoccupied along Montana Avenue (The City already occupies one of the Montana Ave. conduits for its use.). 94 FISCAL EFFECTS: Upon the execution of this Agreement, Licensee shall pay to the City a payment equal to $0.75 per linear foot of licensed conduit with a 5% annual compounding escalator in that price. Over ten years, the total license fees for City Conduit, paid to the City of Bozeman, will be at least $245,268.90. As the City Conduit system expands over time, Bozeman Fiber may add additional footage in 500 ft increments for additional fees. A full explanation of annual pricing can be founding Exhibit C of the agreement. License fees are used to cover the ongoing costs of maintaining and expanding the City Conduit System. ALTERNATIVES: The City Commission may choose not to enter into this license agreement. ATTACHMENT: License Agreement for the Use of City Conduit between the City of Bozeman and Bozeman Fiber. 95 Page 1 LICENSE AGREEMENT FOR THE USE OF CITY CONDUIT between THE CITY OF BOZEMAN AND BOZEMAN FIBER This LICENSE AGREEMENT FOR THE USE OF CITY CONDUIT (this “Agreement”) is made and entered into by and between the City of Bozeman, a self governing municipal corporation organized and existing under its Charter and laws of the State of Montana with its principal offices located at 121 North Rouse, Bozeman, MT 59771 (the “City”) and Bozeman Fiber, a Montana corporation with its principal offices located at 2000 Commerce Way, Bozeman, MT 59715 (“Licensee”). The City and Licensee may hereinafter be referred to individually as a “Party” or collectively as the “Parties.” RECITALS A. The City owns certain underground conduit and duct facilities (“City Conduit”), along with necessary handholes and manholes for access to such facilities, located within the boundaries of the City and depicted on Exhibit A, attached hereto and incorporated herein by this reference (the “City Conduit System”). B. The space in the City Conduit exceeds that needed by the City for its broadband requirements. C. The City adopted Resolution 4658 on January 11, 2016 establishing policies for the licensing of City-owned broadband infrastructure. D. The City desires to permit Licensee to install fiber optic cabling in the City Conduit within the public rights-of-way, in consideration for the payment and other public benefit described herein. E. Licensee desires to use certain space in the City Conduit as described herein. F. This agreement supersedes and replaces the License for Use of City Conduit entered into by the Parties on June 20, 2016 as amended by Addendum 1. AGREEMENT In consideration of the mutual covenants, terms, conditions and obligations contained herein, and intending to be legally bound hereby, the Parties hereby agree as follows: 1. Incorporation of Recitals. The above recitals are true and correct and are incorporated herein by this reference as a part of this Agreement. 2. Definitions. As used in this Agreement, the following words and phrases shall have the meaning given in this Section. When not inconsistent with context, words used in the present tense include the future tense, words in the plural include the singular, and words in the singular include the plural. The word “shall” is mandatory and “may” is permissive. Words not defined in this 96 Page 2 Section shall be defined as provided for in the Bozeman Municipal Code (“Code”) or, if undefined there, given their common and ordinary meaning. A. “Broadband” means Telecommunications in which a wide band of frequencies is available to transmit information, regardless of whether the transmission is used to provide Internet access or Internet transport service. B. “Public Rights-of-Way” means streets, alleys, viaducts, bridges, roads, lanes sidewalks, public easements, public rights of way, and dedicated easements within the City. C. “Telecommunications” means the transmission, between or among points specified by the user, of information of the user’s choosing without a change in the form or content of the information upon receipt. See MCA § 69-3-803 (13). D. “Licensee Fiber” means the fiber optic cable installed by Licensee in City Conduit, pursuant to the terms of this Agreement, for Licensee’s delivery of Broadband services. 3. Use of Conduit; Use of Public Rights-of-Way. A. License for Use of City Conduit. The City hereby grants to Licensee the right to use, occupy, and access one (1) inner duct in the City Conduit in the segments described in Exhibit B, attached hereto and incorporated herein by this reference. Subject to the City’s obligations to maintain the City Conduit System, Licensee shall have the exclusive right to use the specified inner ducts, and the City shall not grant to any third party a right to use the City Conduit in a manner that may materially affect the scope of the license granted herein. B. Use of Public Rights-of-Way. The City grants to Licensee the non-exclusive permission, consistent with all applicable provisions of the Code, to install the Licensee Fiber in the City Conduit, and in doing so, to make reasonable and lawful use of the Public Rights-of- Way, to construct, operate, maintain, reconstruct and rebuild a fiber optic network within the City for the purposes of delivering Broadband Telecommunications as described in this Agreement, subject to the conditions, terms and provisions contained in this Agreement. Subject to subparagraph A above, the City reserves the right to grant similar licenses, leases, uses, permits or any other rights with regard to the Public Rights-of-Way or any other City interest to any other person. The rights granted under this Agreement are also expressly subject to any rights granted previously by the City to any person. C. Assignment and Sublicensing. Licensee shall not assign this Agreement nor sublicense, pledge or mortgage its interest in the Licensed Conduit or any part thereof without the express, written consent of the City. Notwithstanding the foregoing, Licensee may allow use of the licensed conduit by Licensee’s subcontractors, operating partners, and service provider customers for the purpose of operating the network or providing services over Licensee’s network. Licensee shall do no act that would in any way encumber the City’s title to the Licensed Conduit nor permit them to become subject to a lien of any kind. 97 Page 3 4. Term; Renewal. The term of this Agreement (the “Term”) shall commence as of July 1, 2017 (the “Effective Date”) and shall terminate at 11:59 p.m. on the day before the tenth anniversary of the Effective Date (“Original Term”), unless earlier terminated by either Party in accordance with the provisions herein. This Agreement may be renewed by mutual agreement of the Parties. Licensee shall provide written notice of its intent to renew to City at least ninety (90) days prior to the termination date of this Agreement. The License Fee for the renewal term shall be based on an analysis of costs of construction, maintenance and operation of the City Conduit System. 5. Initial License Fee; Fee Adjustment. Upon the execution of this Agreement, Licensee shall pay to the City an annual payment equal to the amount shown as the Annual Rate for each City Fiscal Year shown in Exhibit C. As the City Conduit system expands, the Licensee shall pay to occupy the expanded conduit system at the price shown for each additional increment of 500 linear feet and this additional cost will be added to the Annual Rate for the given Fiscal Year as described in Exhibit C. Assessments for expanded conduit footages will be collected in the City Fiscal Year following any expansion of the conduit system. 6. Construction Standards, Inspection, Fiber Installation, Schedule; Testing and Maintenance; Relocation; Repairs; Access by Licensee. A. Design and Construction Standards. Licensee shall comply with all of the construction, restoration, inspection, and maintenance procedures and requirements set forth in the Code pertaining to the use of and work in the Public Rights-of-Way. B. MDT Right-of-Way. Certain sections of City Conduit are located within Montana Department of Transportation (MDT) right-of-way, including City Conduit along Main Street (N- 50), Rouse Avenue (P-86), North 7th Avenue (N-118), and Interstate I-90. Prior to working in MDT right-of-way, Licensee will provide City with traffic control plans for approval by MDT. Licensee will not proceed with such work until it receives confirmation of MDT approval from City. C. Inspection of City Conduit System. Prior to installing Licensee Fiber in the Licensed Conduit, Licensee shall verify certain relevant information provided by the City to Licensee concerning that portion of the City Conduit System licensed to Licensee, as set forth in this Section. Licensee will document the condition of the Licensed Conduit in a format agreeable to both Parties, and provide such documentation to the City. Such documentation shall include, for each segment in the Licensed Conduit: (1) the number and diameter of empty Licensed Conduits between the endpoints; (2) identification of any empty Licensed Conduit that is not continuous, is obstructed, or are otherwise not usable; (3) physical labeling of the identified damaged conduits at the endpoints, if any; (4) confirmation that the segment includes locate wire; (5) GIS coordinates of all access points. 98 Page 4 If Licensee discovers damage to a segment of the City Conduit System or that there is no empty conduit in that segment, it shall immediately notify the City of such damage or non- existence. Damaged conduit. In the case of damage, Licensee shall install the Licensee Fiber in undamaged conduit, where possible. If no individual conduit is undamaged in a particular segment, the Agreement shall be amended to delete that segment and the City shall return to Licensee, within thirty (30) days of the City’s verifying that there is no undamaged conduit in that segment, $1.00 for each linear foot of missing undamaged conduit. Alternately, at the City’s sole discretion, it may repair or replace, or request that Licensee repair or replace, the damaged conduit at the City’s sole cost and expense. No empty conduit. In the case that Licensee discovers that there is no empty conduit in a licensed segment, the Agreement shall be amended to delete that segment and the City shall return to Licensee, within thirty (30) days of the City’s verifying that there is no empty conduit in that segment, $1.00 for each linear foot of missing empty conduit. Licensee right to terminate. Licensee may, upon notice in writing to City, terminate this Agreement upon City’s verification there is no undamaged conduit or no empty conduit in a licensed segment. The City will refund to Licensee any prepaid Licensee Fee within thirty (30) days. D. Installation and Availability of Fiber in City Conduit. Licensee shall install the Licensee Fiber in the Licensed Conduit in accordance with industry standards. Licensee Fiber must be installed in the Licensed Conduit within four (4) months of the Effective Date of this Agreement. Licensee Fiber must be available to end users within eight (8) months of the Effective Date of this Agreement. E. Maintenance and Repair Responsibilities. The City shall be responsible for the operation, maintenance and repair of the City Conduit System. Licensee shall be responsible for the operation, maintenance and repair of the Licensed Fiber. F. Relocation. In the event the City decides to relocate any segment of the Licensed Conduit, the costs of such relocation shall be equitably apportioned among all then-current licensees or lessees of that segment of the City Conduit System. In the event of any relocation the City agrees to provide Licensee with sixty (60) days notice in writing, unless failure to relocate poses a threat to health, safety or welfare of the public or individuals, as determined by the City, in which case the City shall have the right to move the conduit and fiber without such notice or with a lesser notice, at Licensee’s expense, and Licensee shall reimburse the City within thirty (30) days of its receipt of an invoice for the relocation. G. Repair of Damages. Licensee agrees to promptly repair all damage caused by Licensee or its contractors to (a) the City Conduit System, (b) any existing fiber optic cable owned by the City, or (c) any other fiber optic cable owner located within the City Duct System. If such damage poses a threat to the health, safety or welfare of the public or individuals, the City may 99 Page 5 cause repairs to be made at Licensee’s expense and Licensee shall reimburse the City within thirty days of its receipt of an invoice for the repairs. H. Access by Licensee. Licensee is granted nonexclusive use of the handholes and manholes necessary for access to Licensed Conduit, and shall have the right to physically access the Licensed Conduit on reasonable terms and conditions for the purposes set forth herein. Licensee shall notify the City before performing any such work. Any and all work with respect to the Licensed Conduit shall be performed solely by Licensee or its contractors or subcontractors 7. Compliance with Laws. Licensee shall comply fully with all applicable state and federal laws, regulations, and municipal ordinances, rules and regulations including, but not limited to, all workers’ compensation laws, all environmental laws including, but not limited to, the generation and disposal of hazardous waste, the Occupational Safety and Health Act (OSHA), the safety rules, codes, and provisions of the Montana Safety Act in Title 50, Chapter 71, MCA, all applicable City, County, and State building and electrical codes, the Americans with Disabilities Act, and all nondiscrimination, affirmative action, and utilization of minority and small business statutes and regulations. Licensee shall provide all notices, and shall obtain all necessary permits, licenses (including a City of Bozeman business license if applicable), and inspections from applicable governmental authorities, and pay all fees and charges in connection therewith. 8. Notice. All notices required to be made under this Agreement shall be in writing and shall be delivered by certified mail return receipt requested or by overnight delivery that is capable of providing proof of delivery. Any such notice shall be deemed effective on the date of mailing. All notices shall be addressed to the Parties as specified below: If to City: City of Bozeman PO Box 1230 Bozeman, MT 59771-1230 Attention: David Fine, Economic Development With a copy to: Office of the City Attorney PO Box 1230 Bozeman, MT 59771-1230 Attention: City Attorney If to Licensee: Bozeman Fiber 2000 Commerce Way Bozeman, MT 59715 Attention: President of the Board 9. Utility Notification Center and Line Location. Licensee shall register with, and coordinate its activities with, the Montana Utility Notification Center and any successor organization coordinating location of utility lines. Lessee will be responsible for all locates of the City Conduit System occupied by Lessee. Lessee agrees to respond promptly and appropriately to all line location requests from the public or from other utilities, whether or not such requests are made through the Utility Notification Center. In any event, the City is not responsible for any 100 Page 6 damage to fiber assets in Licensed Conduit resulting from a failure by the Lessee to accurately locate its fiber assets in the City Conduit. 10. Removal/Ownership of Facilities. Upon the termination for any reason or non-renewal of this Agreement, Licensee shall either within ninety (90) days remove all facilities owned by Licensee within the City Conduit System, at Licensee’s sole cost and expense, or abandon the facilities in place; provided however, that the City retains sole discretion to determine if facilities must be removed. All facilities not removed ninety (90) days after termination or non-renewal of this Agreement will be considered abandoned in place and shall become the property of the City. 11. Termination. A. Material Breach. If either Party defaults in the performance of any material term of this Agreement and does not substantially cure such default within thirty (30) days after receiving written notice of such default, then the non-defaulting Party may terminate this Agreement by providing ten (10) days prior written notice of termination to the defaulting Party. B. Bankruptcy or Insolvency. (1) Either Party may terminate this Agreement effective upon written notice stating its intention to terminate in the event the other Party: (a) makes a general assignment of all or substantially all of its assets for the benefit of its creditors; (b) applies for, consents to, or acquiesces in the appointment of a receiver, trustee, custodian, or liquidator for its business or all or substantially all of its assets; (c) files, or consents to or acquiesces in, a petition seeking relief or reorganization under any bankruptcy or insolvency laws; or (d) files a petition seeking relief or reorganization under any bankruptcy or insolvency laws is filed against that other Party and is not dismissed within sixty (60) days after it was filed. (2) It is the intention of both parties that in the event either Party becomes a debtor in any bankruptcy proceeding, the lease is treated as an unexpired lease of personal property under Section 365 of the Bankruptcy Code, 11 U.S.C. 365 (as may be amended), and, accordingly, shall be subject to the provisions of subsections (d)(5), (e)(2), (f) and (g) of said Section 365. (3) If Licensee’s rights under this Agreement are assigned pursuant to the bankruptcy code, the assignee shall be deemed without further act to have assumed all of the obligations of Licensee arising under this Agreement both before and after date of the assignment. (4) If requested by the City, an assignee shall execute an instrument confirming such assumption. (5) Any sums payable in connection with an assignment shall be paid to the City, and shall not constitute property of Licensee or of the estate of Licensee within the meaning of the Bankruptcy Code. 101 Page 7 12. Indemnification. Licensee shall indemnify, defend and hold harmless the City, its directors, officers, employees, and agents and the heirs, executors, successors, and permitted assigns of any of the foregoing (the “City Indemnitees”) from and against all losses, claims, obligations, demands, assessments, fines and penalties (whether civil or criminal), liabilities, expenses and costs (including reasonable fees and disbursements of legal counsel and accountants), bodily and other personal injuries, damage to tangible property, and other damages, of any kind or nature, suffered or incurred by a City Indemnitee caused by: (1) any negligent or intentional act or omission by Licensee or its representatives in the performance of Licensee’s obligations under this Agreement, or (2) any material breach in a representation, warranty, covenant or obligation of Licensee contained in this Agreement. 13. Insurance Requirements. A. Limits. Licensee agrees to procure and maintain in force during the terms of this Agreement, at its own cost, the following minimum coverages: (1) Workers’ Compensation: Statutory (2) Employer’s Liability: $1,000,000 per occurrence; $2,000,000 annual aggregate (3) Commercial General Liability: $1,000,000 per occurrence; $2,000,000 annual aggregate (4) Automobile Liability: $1,000,000 property damage/bodily injury; $2,000,000 annual aggregate. (5) Excess/Umbrella Liability: $2,000,000 The Commercial General Liability policy shall be on an Occurrence Form and include the following coverages: Premises Operations; Personal and Advertising Injury; Liability assumed under an Insured Contract; Independent Contractors; and Broad Form Property Damage. Coverage provided should be at least as broad as found in Insurance Services Office (ISO) form CG0001. The policy shall include Additional Insured-Owners, Lessees or Contractors Endorsement for completed operations, ISCO CG 2037 form or equivalent. B. Coverage. The insurance required by this Agreement shall provide coverage for the indemnity obligations assumed by Licensee in Section 12. Insurance required by this Agreement shall be primary coverage, unless otherwise specified, and shall specify that in the event of payment for any loss under the coverage provided, the insurance company shall have no right of recovery against the City or its insurers. All policies of insurance under this Agreement shall be provided by a reputable insurance company or companies qualified to conduct business in Montana. The City reserves the right, but shall not have the duty, to reject any insurer which it finds to be unsatisfactory and insist that Licensee substitute another insurer that is reasonably satisfactory to the City. Property and Liability Insurance Companies shall be licensed to do 102 Page 8 business in Montana and shall have an A.M. Best rating of not less than A- VI. This insurance shall be maintained in full force and effect during the term of this Agreement and for the additional periods set forth herein and shall protect Licensee, its agents, employees and representatives, from claims for damages for personal injury and wrongful death and for damages to property arising in any manner from negligent or wrongful acts or omissions of Licensee, its agents, employees, and representatives in the performance of the Services covered herein. C. Additional Insureds. The Commercial General Liability and Automobile Liability insurance policies shall include the City and its elected officials and employees as additional insureds as their interests may appear. The additional insured endorsement should be at least as broad as ISO form CG2010 for General Liability coverage and similar forms for Commercial Auto and Umbrella Liability. D. Notice of Cancellation. Each insurance policy required by the insurance provisions of this Agreement shall provide the required coverage and shall not be suspended, voided or canceled except after thirty (30) days prior written notice has been given to the City, except when cancellation is for non-payment of premium, then ten (10) days prior notice may be given. Such notice shall be sent directly to the City. If any insurance company refuses to provide the required notices, Licensee or its insurance broker shall notify the City of any cancellation, suspension, or non-renewal of any insurance policy within seven (7) days of receipt of insurers’ notification to that effect. E. Certificates. Certificates showing that the Licensee is carrying the above- described insurance, and the status of the additional insureds, shall be furnished to the City prior to the execution of this Agreement by the City. Licensee, or Licensee’s insurance broker, shall notify the City of any cancellation or reduction in coverage or limits of any insurance within seven (7) days of receipt of insurer’s notification to that effect. Licensee shall forthwith obtain and submit proof of substitute insurance in the event of expiration or cancellation of coverage. 14. Representations and Warranties. Each Party represents and warrants that: A. It has full right and authority, including any requisite corporate authority, to perform its respective obligations under this Agreement; B. The execution of this Agreement will not violate its charter, articles of incorporation, by-laws or any law, regulation or agreement by which it is bound or to which it is subject; C. No litigation or governmental proceeding is pending or threatened in writing which might have a material adverse effect on this Agreement, the transaction contemplated by this Agreement or the rights of the Parties hereunder. 15. Miscellaneous Provisions. 103 Page 9 A. Rules of Construction. The captions or headings in this Agreement are strictly for convenience and shall not be considered in interpreting this Agreement or as amplifying or limiting any of its content. Words in this Agreement which import the singular connotation shall be interpreted as plural, and words which import the plural connotation shall be interpreted as singular, as the identity of the Parties or objects referred to may require. Unless otherwise expressly provided herein, any agreement, instrument or statute defined or referred to herein or in any agreement or instrument that is referred to herein means such agreement, instrument or statute as from time to time amended, modified or supplemented, including (in the case of agreements or instruments) by waiver or consent and (in the case of statutes) by succession of comparable successor statutes and references to all attachments thereto and instruments incorporated therein. B. Joint Work Product. This Agreement is the joint work product of both Parties hereto, accordingly, in the event of ambiguity no presumption shall be imposed against any Party by reason of document preparation. C. Scope of Agreement. If the scope of any provision of this Agreement is too broad in any respect whatsoever to permit enforcement to its fullest extent, then such provision shall be enforced to the maximum extent permitted by law, and the Parties consent to and agree that such scope may be judicially modified accordingly and that the whole of such provision of this Agreement shall not thereby fail, but that the scope of such provision shall be curtailed only to the extent necessary to conform to law. D. Time of Performance. Time is expressly made of the essence with respect to each and every term and provision of this Agreement. E. Force Majeure. Neither Party shall be in default by reason of any failure or delay in performance of this Agreement of its terms and conditions, or one or more of its obligations hereunder, and such excused Party’s performance of such obligation or obligations shall be excused and extended for and during the period of any such delay if such failure arises out of causes beyond the control of the non-performing Party including, but not restricted to, acts of God or nature, including an earthquake, flood or tornado; acts of governmental authority, government codes, ordinances, actions, laws, rules, regulations or restrictions; insurrections, war or civil disorder; fires, floods, accidents; epidemics, quarantines; restrictions; strikes or other labor disputes (other than such excused Party’s employees); lack of or delay in transportation, freight embargoes, inability to secure raw materials or transportation facilities; acts of omissions of other entities or any and all other causes beyond such Party's reasonable control. Such Party shall notify the other Party in writing of the existence of the event relied on and the cessation or termination of said event of Force Majeure and such Party shall exercise commercially reasonable efforts to minimize the time of any such delay. If an event of Force Majeure continues for more than ninety (90) days, and if the non-affected Party cannot (i) resolve the matter within such time period or (ii) provide the affected Party with an alternative solution to such matter within the same time period, such alternative solution to be substantially similar in effect to the matter affected by the Force Majeure, the affected Party has the right to terminate this Agreement. 104 Page 10 F. Amendment. No amendments, changes or modifications to this Agreement shall be valid except if the same are in writing and signed by a duly authorized representative of each of the Parties. G. Assignment. This Agreement may not be assigned by Licensee without the prior written consent of the City. This Agreement shall be binding upon and inure to the benefit of the heirs, successors and assigns of the Parties. H. Third Party Beneficiaries. This Agreement is entered into solely for the benefit of the Parties and shall not confer any rights upon any person or entity not a party to this Agreement. I. Waiver. The failure of either Party at any time to require performance by the other Party of any provision of this Agreement shall not effect in any way the full right to require such performance at any subsequent time; nor shall the waiver by either Party of a breach of any provision of this Agreement be taken or held to be a waiver of the provision itself. J. Attorneys’ Fees and Costs. In the event it becomes necessary for either Party to this Agreement to retain an attorney to enforce any of the terms or conditions of this Agreement, then the prevailing Party shall be entitled to reasonable attorneys’ fees and costs, including fees, salary, and costs of in-house counsel to include the City Attorney. K. Dispute Resolution. a. Any claim, controversy, or dispute between the parties, their agents, employees, or representatives shall be resolved first by negotiation between senior-level personnel from each party duly authorized to execute settlement agreements. Upon mutual agreement of the Parties, the Parties may invite an independent, disinterested mediator to assist in the negotiated settlement discussions. b. If the Parties are unable to resolve the dispute within thirty (30) days from the date the dispute was first raised, then such dispute may only be resolved in a court of competent jurisdiction in compliance with the Applicable Law provisions of this Agreement. L. Applicable Law; Venue. This Agreement shall be construed in accordance with the Laws of the State of Montana. Any action or proceeding brought to interpret or enforce the provisions of this Agreement shall be brought before the state or federal court situated in Gallatin County, Montana and each Party consents to jurisdiction and venue before such courts. M. Limitation on Liability. It is specifically understood and agreed that nothing in this Agreement shall be construed as an express or implied waiver by the City of its governmental immunity or of the implied acceptance by the City of liabilities arising as a result of actions which lie in tort or could lie in tort in excess of the liabilities allowable pursuant to MCA Sections 2-9-101, et seq. 105 Page 11 N. Nondiscrimination. Licensee agrees that all hiring by Licensee of persons performing under this Agreement will be on the basis of merit and qualifications. Licensee will have a policy to provide equal employment opportunity in accordance with all applicable state and federal anti-discrimination laws, regulations, and contracts. Licensee will not refuse employment to a person, bar a person from employment, or discriminate against a person in compensation or in a term, condition, or privilege of employment because of race, color, religion, creed, political ideas, sex, age, marital status, national origin, actual or perceived sexual orientation, gender identity, physical or mental disability, except when the reasonable demands of the position require an age, physical or mental disability, marital status or sex distinction. Licensee will require these nondiscrimination terms of its subcontractors performing Licensee’s obligations under this Agreement. O. Survival. Any and all provisions of this Agreement which, by their nature, would reasonably be expected to be complied with or performed after the expiration or termination of this Agreement, including the removal of equipment obligations set forth in Section 10 hereof, shall survive and be enforceable after the expiration or termination of this Agreement. P. Entire Agreement. This Agreement, including any Exhibits, contains the entire agreement between the Parties and supersedes all prior and contemporaneous communications, understandings and agreements with respect to the subject matter hereof, whether written or oral, expressed or implied. No other agreement, statement, promise, or practice between the Parties relating to the Agreement shall be binding upon the Parties. Q. Counterparts. This Agreement may be executed in counterparts, each of which when executed and delivered shall be an original, but all of which shall constitute one and the same instrument. Facsimile signatures and scanned and emailed signatures shall be treated as originals. [Signature page follows] 106 Page 12 IN WITNESS WHEREOF, and in order to bind themselves legally to the terms and conditions of this Agreement, the duly authorized representatives of the Parties have executed this Agreement as of the Effective Date. BOZEMAN FIBER By: William Procunier Title: President STATE OF MONTANA ) ) ss. COUNTY OF GALLATIN ) The foregoing instrument was acknowledged before me, a notary public, this ___ day of ________________, 2017, by William Procunier as President of Bozeman Fiber. Witness my hand and official seal. My commission expires: (SEAL) Notary Public CITY OF BOZEMAN By: City Manager ATTEST: City Clerk APPROVED AS TO FORM: City Attorney 107 EXHIBIT A City Conduit System The City Conduit System consists of: North 7th Avenue segment: 12138 linear feet, with one 7-way conduit. Downtown segment: 3,655.6 linear feet with one 7-way conduit. Montana Avenue segment: 10,073.5 linear feet with three 1.25-inch diameter conduits. 108 Map of the City of Bozeman Conduit System 109 EXHIBIT B Licensed Segments of City Conduit System The City Conduit System consists of: North 7th Avenue segment: 12138 linear feet, with one 7-way conduit. Bozeman Fiber may occupy the blue duct within this segment of the City Conduit system. Downtown segment: 3,655.6 linear feet with one 7-way conduit. Bozeman Fiber may occupy the blue duct within this segment of the City Conduit system. Bozeman Fiber may occupy the orange duct from Wilson School, west on Babcock, north on 5th , to the alley between Main and Mendenhall. Montana Avenue segment: 10,073.5 linear feet with three 1.25-inch diameter conduits. Bozeman Fiber may occupy the second conduit within this segment of the City Conduit system. Bozeman Fiber may utilize City Conduit System vaults or maintenance holes for splicing and splice enclosures. 110 EXHIBIT C Pricing Fiscal Year Starting July 1, 2017 Linear Foot Rate Annual Rate for Up to 26,000 linear feet Additional Increments of 500 ft 2018 $0.75 $19,500.00 $375.00 2019 $0.79 $20,475.00 $393.75 2020 $0.83 $21,498.75 $413.44 2021 $0.87 $22,573.69 $434.11 2022 $0.91 $23,702.37 $455.81 2023 $0.96 $24,887.49 $478.61 2024 $1.01 $26,131.86 $502.54 2025 $1.06 $27,438.46 $527.66 2026 $1.11 $28,810.38 $554.05 2027 $1.16 $30,250.90 $581.75 TOTAL $245,268.90 Linear Foot Rate increases at a 5% rate compounded annually. Linear Feet at Signing: 25,868 Linear Feet of expansion will be assessed in the next fiscal year after construction 111