HomeMy WebLinkAboutCORRESPONDENCE - PURCHASE ORDER - 92009361
DGEB MMR LICENSE AGREEMENT
(Suite 1060 Cabinet)
DEFINED TERMS
1. Effective Date: May 1, 2020
2. Licensor: DGEB MMR, LLC, a Colorado limited liability company
3. Licensor’s Address: 910 – 15th Street
Suite 1040
Denver, Colorado 80202
Attn: Nancy Casados
Facsimile Number: (303) 825-2552
Email: nancy-dgeb@qwestoffice.net
4. Licensee: City of Fort Collins Electric Utility Enterprise, dba Fort Collins Connexion
5. Licensee’s Address: Fort Collins Connexion
215 N. Mason Street
Fort Collins, CO 80522
Email Address for Invoices: mailto: invoices@fcgov.com
6. Building: Denver Gas & Electric Building, 910-15th Street, Denver, Colorado
7. Landlord: DGEB Management, LLC, a Colorado limited liability company
8. Space: Suite 1060, as shown on Exhibit A attached and made a part of this Agreement
9. Lease: Lease for Telecommunications Services Provider dated November 1, 2007 for the Space
between Licensor and Landlord
10. Cabinet: Cabinet/RR 10.01.01A in the Space
11. Fees: Those payments for all fees including License Fees, Installation Fees, Power Fees and Other
Fees, set forth in Section 3 of this Agreement and on Exhibit B attached and made a part hereof
12. Licensor Rules: Those set forth on Exhibit C attached and made a part of this Agreement
13. Term: Five (5) years, commencing on the Effective Date
14. Annual Appropriation: To the extent this Agreement or any provision in it constitutes a multiple fiscal year debt
or financial obligation of the Licensee, it shall be subject to annual appropriation by the
Licensee’s City Council as required in Article V, Section 8(b) of the City of Fort Collins Charter,
City Code Section 8-186, and Article X, Section 20 of the Colorado Constitution. The Licensee
shall have no obligation to continue this Agreement in any fiscal year for which no such
supporting appropriation has been made.
Licensor grants a license to Licensee and Licensee accepts such license on the terms and conditions set forth in this Agreement
with the defined terms having the meanings set forth above.
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LICENSOR:
DGEB MMR LLC, a
Colorado limited liability company
By:
Printed Name: Nancy Casados, Executive Manager
LICENSEE:
CITY OF FORT COLLINS ELECTRIC UTILITY ENTERPRISE,
DBA FORT COLLINS CONNEXION
By:
Printed Name: Gerry Paul
Title: Purchasing Director
APPROVED AS TO FORM:
________________________________________
Assistant City Attorney II
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1. Grant of License and Terms and Conditions.
1.1. Licensor’s Interest. Licensor leases the Space in the Building pursuant to the Lease. Licensor has been
granted the exclusive right to operate meet-me-room facilities for the Building and otherwise manage connectivity among
tenants of the Building. The Building Meet-Me-Room means areas in the Building operated by Licensor for the purpose of
allowing Building tenants, tenant customers, subtenants and licensees to physically connect to one another and exchange data
and voice connections. It is the intent of Licensor and Licensee that all cross-connections are to be made in the Building Meet-
Me-Room.
1.2. Grant of License. Licensee shall have the following rights (the “License”) for the Term, subject to the Lease
and on the conditions set forth in this Agreement:
(a) the exclusive right to use the Cabinet to install, operate, maintain, repair and replace (“Operate” or “Operating”
or “Operations”) fiber panels and equipment (“Equipment”); and
(b) the exclusive right to access the Cabinet, in the manner described in Section 1.3 of this Agreement, and to
exercise such other rights as may be granted herein.
1.3. Access.
(a) Licensee shall have access (through its authorized employees) to the Space and the Cabinet 24 hours a day,
365 days a year, subject to reasonable security measures imposed by Landlord or Licensor for the protection of the Building
and its occupants. Licensee must obtain the prior approval of Licensor for access by any contractor.
(b) Licensee may enter only those Building common areas (including common areas within the Space) necessary
for access to the Cabinet and any other portion of the Space licensed to third parties that have given Licensee permission to
access their areas.
(c) All persons authorized by Licensee to access the Cabinet shall follow all Licensor Rules.
(d) Licensee shall have no access to other portions of the Building unless Licensee has first completed the Access
and Plans for Work Request Form attached hereto as Exhibit D, delivered same to Licensor, obtained Licensor’s approval of
such access, and paid any costs incurred by Licensor in providing such access.
(e) Licensee shall not have any right to place antennas outside the Cabinet without Licensor’s prior written
consent, which consent may be withheld, conditioned or delayed in Licensor’s sole discretion.
(f) Licensor and its agents, employees, representatives and contractors may enter the Space for any reason,
including for maintenance of the Space, for the purpose of inspecting and making necessary repairs, additions (including
conduits, conduit risers, ducts, pipes (vertical or horizontal)) or other installations or improvements or replacements to the
Cabinet as required by this Agreement or as the Licensor elects to undertake, and to verify that Licensee’s operations and
Equipment comply with the terms of this Agreement, at any time and from time to time, without prior notice to Licensee and
without Licensee’s consent.
(g) Licensor reserves the right to suspend access to the Cabinet temporarily due to accident, repairs, maintenance,
alternations or improvements or Force Majeure events, as defined in Section 14.4. In addition, Licensee acknowledges that
Landlord’s or Licensor’s performance of routine or emergency repairs and maintenance on, and replacement of equipment or
other property located in and around the Building, including the DC Power Plant, that is integral to a telecommunication
facility, may interrupt the Operations temporarily. Licensor agrees to use reasonable efforts to minimize such interruptions and
shall, except in the case of an emergency, accident, or Force Majeure event as determined by Licensor in its sole discretion,
provide not less than five days prior notice by electronic mail of such interruption.
(h) No windows shall be opened in any part of the Building without the prior written permission of the Licensor
or Landlord.
(i) Fire escapes, fire doors and landings shall not be used by Licensee except in case of an emergency.
1.4. Equipment and Use of Cabinet.
(a) Licensee shall use the Cabinet in compliance with this Agreement solely for Operating the Equipment and
interconnecting to third parties and for no other purpose.
(b) Licensee has inspected the Cabinet and the Space and satisfied itself concerning their condition and suitability
for Licensee’s contemplated uses. Licensor does not warrant or represent that the Cabinet or any part or all of the Space is
suitable for Licensee’s business operations. Licensee accepts the Cabinet and the Space “AS IS” and agrees that Licensor has
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no obligation to perform any Work (as herein defined) or improvements or provide any labor or materials to prepare, modify
or alter the Cabinet or the Space for Licensee. Licensor disclaims all express and implied warranties relating to the Building,
the Space and the Cabinet and the provision of power (as described in Section 3.3) and any other services, including warranties
of merchantability or fitness for particular purpose. Licensee’s Equipment is located in the Cabinet at the sole risk of Licensee.
(c) Licensee shall not maintain or store any boxes or other containers in the Cabinet. If any boxes or other
containers are located in the Cabinet, Licensor may enter the Cabinet upon oral notice to Licensee and open and inspect the
contents thereof without any representative of Licensee being present and all without any obligation or liability to Licensee.
(d) Licensee shall not bring into the Building or install in the Cabinet any objects (including Equipment) whose
weight, individually or combined, would exceed 120 pounds per square foot of the Cabinet. Licensee agrees to use
commercially reasonable efforts to ensure that the Equipment and its operations will not interfere in any way with use of the
Building by other Building occupants (including Licensor, other licensees and tenants of the Building).
(e) Any delivery, installation, replacement or removal of Equipment that constitutes a fixture in the Cabinet is
subject to review and prior approval by Licensor of the plans and specifications therefor and Licensee shall strictly adhere to
all requirements imposed, from time to time, by Licensor in Licensor’s sole discretion.
(f) Licensee shall comply with (i) all laws, ordinances, orders, rules and regulations of state, federal, municipal
or other agencies or bodies having jurisdiction relating to its specific use or manner of use of the Cabinet, (ii) all industry
standards, practices and procedures; and (iii) the Licensor Rules. Licensor may, from time to time, amend the Licensor Rules
by providing a revised Exhibit C to Licensee. Licensor intends to enforce the provisions of this Agreement and any Licensor
Rules uniformly against all licensees but non-uniform enforcement of this Agreement or of any Licensor Rules shall not excuse
any breach by Licensee. Licensee shall cause its employees, contractors, representatives, agents, customers and invitees to
comply with the Licensor Rules.
(g) Licensee shall not disrupt, adversely affect or interfere with tenants or other licensees in the Building or the
Space or with the use and enjoyment of any leased or licensed premises or Building common areas by any occupant of the
Building, including by allowing any noise, smoke or odor to escape from the Cabinet.
(h) When using the Cabinet or operating its Equipment, Licensee shall not cause electromagnetic interference
(“EM Interference”). “EM Interference” includes interfering in any way with the ability of another occupant of the Building
to:
(i) send or receive EM transmissions (e.g., radio, television, telephone, microwave, short-wave, long-
wave or other electromagnetic signals of any sort);
(ii) operate communications devices (e.g., electronic equipment, computers, telephones, pagers, radios
or televisions); or
(iii) operate EM transmitters (e.g., antennae, amplifiers or satellite dishes).
(i) Licensor shall notify Licensee when Licensor suspects that Licensee’s Operations or any Licensee’s
Equipment is causing EM Interference. Within 24 hours after that notice, Licensee shall eliminate such EM Interference to
Licensor’s reasonable satisfaction. If the EM Interference continues beyond that 24-hour period then Licensee shall disconnect
and shut down its Equipment until the EM Interference ceases and if Licensee fails to do so, Licensor shall have the right to
disconnect power to Licensee’s Equipment. After performing maintenance, repair, modification, replacement, or other
corrective action, Licensee may operate its Equipment only intermittently solely to test whether the corrective action eliminated
the EM Interference. After elimination of the EM Interference, Licensee may re-connect and resume operation of its
Equipment; Licensor will restore power to any disconnected Equipment as soon as practicable after the EM Interference ceases.
(j) If Licensee or any Equipment presents an immediate hazard to any part or system of the Building, or if
Licensee otherwise violates this Agreement and fails to cure such violation after notice as provided in Section 5 below, then
Licensor may notify Licensee to cease Operating the Equipment and Licensor shall have the right to disconnect power to the
Equipment if Licensee fails to comply within 24 hours after Licensor’s notice. Licensee may resume Operating the Equipment
once it can be Operated without such hazard or after Licensee’s default has been cured, as the case may be.
(k) Licensee shall not use the Cabinet in any way so as to increase premiums for insurance carried by Landlord
or Licensor.
(l) Licensor has the right to lease, license and use other portions of the Space. Other occupants will operate their
own equipment and engage in other, perhaps competing, activities to those conducted by Licensee. Licensor may construct,
modify, repair or alter portions of the Space or the Building (but not the Licensed Space).
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(m) Licensor will use reasonable efforts to minimize moving, relocating or replacing Licensee’s Equipment within
the Space, provided, however, Licensor shall have the right to relocate, temporarily or permanently, the Cabinet to other
premises within the Building (“Relocation Area”) upon ninety (90) days’ advance written notice to Licensee (the
“Relocation”). The Relocation Area shall be “Comparable” to the Cabinet, as follows:
(i) Licensor shall designate the Relocation Area after consulting Licensee.
(ii) “Comparable” means that the Relocation Area has sufficient area, Utility capacity, design and
network connectivity so that Licensee may provide its services in a manner similar to how it provided
its services in the Cabinet, without additional material cost to Licensee.
(iii) Licensee shall inspect the Relocation Area and may request reasonable modifications to the
Relocation Area.
(iv) Licensee shall have the sole responsibility to notify any persons with whom Licensee has a business
relationship, including customers, vendors, and interconnecting carriers (“Licensee Associates”)
affected by the Relocation.
(v) With Licensee’s approval, Licensor shall arrange for moving the Equipment from the Cabinet to the
Relocation Area. Licensor shall attempt to minimize any downtime for Licensee’s Operations and
Equipment.
(vi) Licensor shall allow Licensee to perform a standard cutover procedure, if required by the Relocation,
to ensure that the relocated Equipment is operational for service prior to discontinuing service from
the Cabinet.
Licensor shall pay the expenses for making the Relocation Area Comparable to the Cabinet; moving the Equipment to the
Relocation Area; temporary power required in connection with the cutover procedure; and reconnection fees associated with
the cutover procedure. Licensor shall have no other liability resulting from the Relocation, including for lost revenue or other
consequences from Licensee’s Equipment downtime, for any liabilities of Licensee to Licensee Associates or for any injury
to Licensee Associates.
2. Construction and Improvements. Licensee shall have the right to place its Equipment in the Cabinet but shall have
no right to construct any improvements therein, nor is Licensor obligated to construct any improvements to the Cabinet,
Licensee having inspected the same and accepted it in its as-is condition.
3. Fees.
3.1. Installation Fees. Licensee shall pay Licensor all costs related to the installation of any item (the “Installation
Fees”) as set forth on Exhibit B or in a proposal for Work. Installation Fees shall be paid by Licensee to Licensor upon
execution of this Agreement or, for items installed subsequent to the initial Work, in advance of any installation Work to be
performed.
3.2. License Fees and Other Fees. Licensee shall pay Licensor the License Fees and Other Fees as follows:
(a) License Fees shall be paid monthly in advance on or before the tenth day of the month, without notice, demand
or setoff. All Other Fees are due within 30 days after Licensor notifies Licensee regarding payment of same. Invoices for
Other Fees shall be sent to Licensee at the address set forth in this Agreement.
(b) By delivering a revised Exhibit B to Licensee at least thirty (30) days before the modification becomes
effective, Licensor may modify the Other Fees to reflect: (i) additional services requested by Licensee under this Agreement;
(ii) increases in Other Fees and Connection Fees as may be set forth in Exhibit B; or (iii) changes in Fees due to charges by
third parties, including power, license fees, sales or use taxes.
(c) In addition to License Fees due and payable pursuant to this Agreement, Licensee shall pay License Fees and
other recurring charges for cross-connect services ordered by Licensee, if any, through other meet-me-points or meet- me-
rooms located within the Building.
(d) License Fees shall be increased annually by a maximum of three percent 3% over the preceding year effective
as of January 1 of each year during the initial Term. Licensor shall not be required to deliver a revised Exhibit B as described
in Section 3.2(b) above for such annual increase. Should Licensee exercise an Option pursuant to Section 18 herein, Licensor
and Licensee shall agree in writing to annual increases during the Option Term(s).
3.3. Power Fees.
(a) Licensee shall pay for all electricity (the “Utilities”) consumed within the Cabinet at the rates specified in
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Exhibit B, as the same may be adjusted or modified from time to time.
(b) Licensor shall make the following available for Licensee’s use in the Cabinet: (i) AC Power not exceeding 30
amperes @ 208 volts located within the Cabinet; and (ii) HVAC sufficient to maintain an ambient temperature of 72°F to 82ºF
and relative non-condensing humidity; however, Licensor shall not be required to provide more than the maximum cooling
capacity of 6.5 kilowatts per cabinet/rack (for purposes of this Agreement, the footprint of each cabinet/rack is determined to
be 20 square feet) or cooling capacities exceeding the existing system capacity, whichever is less. Any maximum amounts of
power specified in this Section are the maximums allowed in the Cabinet. Licensee shall solely be responsible for the cost and
expense of power to the Cabinet pursuant to the rates specified in Exhibit B.
(c) If Licensee requires Utilities or power unavailable at the Space or Cabinet, or more utilities or power than are
available at the Space or Cabinet, then Licensee shall: (i) arrange to obtain such Utilities and power; (ii) comply with Article
2 in regard to any required Work; and (iii) pay all costs for such Utilities and power, including without limitation, costs of
installation, equipment, Work, Infrastructure Work, additional electrical power generation capacity, recurring costs,
maintenance costs and removal costs. If feasible, Licensor will assist Licensee to make such arrangements and if Licensor does
so, Licensee must either, at Licensor’s request, pay such costs in advance or reimburse to Licensor all expenses that Licensor
incurs in connection therewith including Licensor’s direct and indirect costs for man-hour time devoted to assisting Licensee
in making such arrangements.
(d) Licensor furnishes all Utilities “as-is” and does not warrant that any Utilities will be free from shortages,
failures, variations or interruptions. Failures, shortages, variations or interruptions of power shall neither constitute an eviction
nor disturbance of Licensee’s use of the Cabinet, render Licensor liable to Licensee for abatement of any License Fees, nor
excuse performance of Licensee’s obligations hereunder, nor shall Licensor be liable to any Licensee Parties (as defined in
Section 8.1) for any such failures, shortages, variations or interruptions of power. If Utilities are interrupted for a period in
excess of five (5) days, this Agreement may be terminated upon written notice by either party to the other given at any time
before the restoration of such Utilities.
3.4. Form of Payments. All payments by Licensee shall be in US dollars and Licensee shall pay all fees
associated with the transfer or collection of funds.
3.5. Late Payments. Any payment due hereunder that remains unpaid ten (10) days after its due date shall be
subject to interest on the overdue amount at the annual rate of 18% per annum from the due date or the maximum rate allowable
by Colorado law. Licensee agrees that such interest is not a penalty but a reasonable estimate of Licensor’s damages resulting
from overdue payments. Licensor’s acceptance of any interest payment is in addition to and shall not be construed as waiving
any other rights of Licensor with respect to Licensee’s default.
4. Term.
4.1. Expiration. The License shall terminate upon expiration of the Term without notice being required from
either party, subject to earlier suspension, revocation or termination as provided herein and subject in all events to the terms
and provisions of Licensor’s Lease for the Space. Upon expiration of the Term, or prior thereto, Licensee may request, in
writing, that Licensor allow Licensee to extend the Term for up to six (6) months. Should Licensee so request and Licensor
have space available, Licensor will notify Licensee in writing that it has space available for Licensee to remain in the Space
and Licensor will allow Licensee to extend the Term for up to six (6) months on the same terms contained in this Agreement.
Licensor and Licensee shall execute an amendment to this Agreement to document such extension.
4.2. Removal of Equipment/Restoration of Cabinet. Upon expiration or termination of the License, at
Licensee’s sole cost and expense, Licensee shall (i) under the supervision and monitoring of Licensor, disconnect and remove
all Licensee’s Equipment and any personal property installed or placed by or for Licensee in the Cabinet and the Space that
does not constitute a fixture; (ii) repair those portions of the Cabinet and the Building damaged by such removal and restore
the Cabinet and Building to the same or better condition than existed on the Effective Date, ordinary wear and tear excepted;
and (iii) surrender possession of the Cabinet in broom-clean condition.
4.3. Licensee’s Failure to Vacate Cabinet. If Licensee fails to vacate the Cabinet upon expiration or termination
of the Term as provided in Section 4.2, then:
(a) Licensor may disconnect all Licensee’s Equipment and exercise peaceful self-help, commence legal
proceedings to recover possession of the Cabinet, or use any other lawful means to remove Licensee and Licensee’s Equipment
and other personal property.
(b) Any of Licensee’s Equipment and other personal property that is not removed prior to expiration of the Term
shall be deemed abandoned and become the property of Licensor and Licensor shall be entitled to the proceeds of any sale by
Licensor of abandoned items.
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(c) Licensee shall be liable for all damages, including consequential damages, and costs sustained by Licensor
resulting from Licensee’s failure to vacate the Cabinet timely or otherwise to comply with this Article 4. Licensee shall also
pay Licensor a “holdover fee” for each day that Licensee occupies the Cabinet after expiration or termination of the License.
The daily holdover fee shall be 125% of the monthly Cabinet License Fees in effect at expiration or termination.
(d) Subject to Section 9.2, Licensee hereby indemnifies and holds Licensor harmless from (i) any Loss (as defined
in Section 8.1) arising from the removal, use, sale, storage or disposal of the Licensee’s Equipment and other personal property
by Licensor, including without limitation claims by third parties of an interest in any such items, and (ii) losses incurred by
Licensor due to delay in being able to license the Cabinet to another licensee because of the presence of un-removed items.
(e) This Article 4 shall not be construed to permit Licensee to hold over or to extend the Term. Until it vacates
the Cabinet, Licensee shall comply with all provisions of this Agreement and the provisions of this Article 4 shall survive the
expiration or termination of this Agreement.
5. Licensee Breach of Agreement; Revocation or Suspension of License.
5.1. Event of Default. Licensee shall be in default if:
(a) any payment due from Licensee to Licensor on account of any amounts due under this Agreement, including
late fees and any other charges, is not received by Licensor when due and Licensee has failed to cure such breach within ten
(10) days after notice from Licensor of such breach;
(b) Licensee voluntarily or involuntarily files bankruptcy or makes a general assignment for the benefit of
creditors;
(c) Licensee fails to remove its Equipment and other personal property and vacate the Cabinet when the License
expires or terminates, as defined in Section 4.1; or
(d) Licensee is otherwise in breach of this Agreement and such violation continues unremedied for fifteen (15)
days after notice of such breach is given by Licensor.
5.2. Remedies.
(a) If Licensee is in default, Licensor shall have the right (without limitation of any other remedies hereunder or
under applicable law or in equity) in its sole discretion, to (1) prevent or restrict Licensee’s access to the Cabinet; (2) remove
any Licensee’s Equipment and other personal property from the Cabinet; (3) terminate or suspend any services furnished under
this Agreement; (4) terminate, revoke or suspend (in whole or in part), at the sole election of Licensor, the License granted
hereby upon written notice to Licensee; (5) without terminating the License, recover possession of the Cabinet through peaceful
self-help, legal proceedings or any other lawful means; (6) disable Utilities to the Cabinet and Licensee’s Equipment; (7)
recover all damages and losses sustained as a result of Licensee’s default including unpaid Fees, the costs of restoring the
Cabinet and the Building to the condition as specified in this Agreement, and disconnect charges, court costs and attorneys’
fees and, in addition thereto, at Licensor’s option, the entire amount of Fees and other charges and assessments which in
Licensor’s reasonable determination would become due and payable during the remainder of the Term (determined as if the
default and termination had not occurred); or (8) exercise any rights and remedies available under applicable law, in equity or
by statute.
(b) Licensee shall not be relieved from its obligation to pay the Fees by reason of a surrender of possession,
Licensor’s exercise of its remedies, or otherwise unless specifically agreed to in writing by Licensor, and no taking of
possession of the Cabinet by Licensor or other action on the part of Licensor shall be construed to terminate this Agreement
unless a written notice of such termination is given to Licensee.
(c) The remedies specified in this section are cumulative and Licensor may exercise any or all of such remedies.
All payment obligations of Licensee accruing prior to termination of this Agreement shall survive such termination.
6. Eminent Domain. In the event of a taking by eminent domain of any portion of the Building, or conveyance in lieu
thereof (either a “Taking”), if such Taking results in a termination of the Lease, or is such that Licensee’s Operations in the
Cabinet are no longer feasible and Licensor does not exercise its Relocation right under Section 1.4(m) within 60 days after
receipt of notice from Licensee that its Operations are no longer feasible, then the License shall terminate as of the date of the
Taking and Fees shall be paid by Licensee to such date. Licensee shall have no claim against Licensor for the value of the
unexpired Term of this Agreement or to any portion of a condemnation damages award payable to Licensor or Landlord.
7. Damage to Cabinet. If any part of the Building is damaged, including by fire or other casualty, disrepair or defects,
such that Licensee’s Operations in the Cabinet are no longer feasible (“Damage”), Licensee shall give notice to Licensor of
such damage (“Licensee’s Notice”) within 30 days after receipt of such notice, Licensor may elect by notice to Licensee (a)
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to remedy the Damage so that Licensee may resume its Operations in the Cabinet; (b) relocate Licensee pursuant to Section
1.4(m) in which case the Relocation Area shall become the Cabinet; or (c) terminate the License and this Agreement. If
Licensor fails to give notice of its election within such time period, then at any time prior to Licensor giving such notice
Licensee may terminate the License upon notice to Licensor effective as of the date of Licensee’s Notice, which shall be the
sole remedy available to Licensee. After notifying Licensor of the Damage, Licensee shall not be required to pay the License
Fees until the Damage is remedied or Licensee is relocated, provided, however, the License Fees shall not abate or be
suspended and the Licensee shall not be entitled to terminate this Agreement on account of such damage if such damage is
caused by the negligence or willful or reckless act or omission of Licensee, its employees, agents, contractors, invitees or
customers.
8. Limitation of Liability.
8.1. In no event shall Licensor, its members, managers, officers, employees, affiliates, subcontractors, consultants,
representatives or agents (“Licensor Parties”) be liable to Licensee or to any of its members, partners, shareholders, trustees,
beneficiaries, directors, officers, managers, employees, affiliates, clients, invitees, subcontractors, consultants, representatives
or agents (“Licensee Parties”) for any action, claim, loss, damage, demand, liability, penalty, fine, lien, obligation, cost,
expense (including attorneys’ fees and court costs and costs of other dispute resolution proceedings), lost profits or lost
revenue, damages for which Licensee may be liable to Licensee Associates, business interruption or other special damages,
incidental damages, exemplary damages, punitive damages, consequential damages, or other damages of any nature, whether
foreseeable or not and regardless of whether Licensor was advised of the possibility of such damages (collectively referred to
as a “Loss”) to any person or property arising out of or in connection with or related to: (a) Force Majeure (as defined in
Section 14.4); (b) the licensing of any space within the Space or the leasing by Landlord of space in the Building to whomever
or for whatever use may be allowed by Licensor or Landlord; (c) interruption, variation, or failure of utility services or power;
(d) repairs, maintenance or alterations of any part of the Space, the Cabinet or the Building; (e) construction of improvements
for any licensees or other occupants of the Building or licensees of Licensor or the removal, storage, or transfer of any property
from any part of the Building; (f) non- observance of Licensor Rules by any other licensee of Licensor or any other occupant
of the Building; (g) activities of other licensees of Licensor or occupants of the Building; (h) any injury or damage to person
or property, including death, relating to the presence of Hazardous Materials or Hazardous Waste (as defined in Section
17.2(c)); or (i) Licensor’s operation, use, management, licensing, maintenance, repair, renovation, alteration or any other
activities or omissions relating to the Space, the Cabinet, the Building or this Agreement except to the extent any Loss is caused
by or results from the gross negligence or willful misconduct of Licensor.
8.2. NOTWITHSTANDING ANYTHING TO THE CONTRARY PROVIDED IN THIS AGREEMENT,
IT IS SPECIFICALLY UNDERSTOOD AND AGREED, SUCH AGREEMENT BEING A PRIMARY
CONSIDERATION FOR THE EXECUTION OF THIS AGREEMENT BY LICENSOR, THAT IF LICENSEE
RECOVERS A MONEY JUDGMENT AGAINST LICENSOR, SUCH JUDGMENT SHALL BE SATISFIED ONLY
OUT OF LICENSOR’S ASSETS AS THE SAME MAY THEN BE ENCUMBERED, AND NEITHER LICENSOR
NOR ANY LICENSOR PARTIES SHALL BE LIABLE FOR ANY DEFICIENCY.
8.3. Under no circumstances shall any present or future officer, manager or member of Licensor be liable for the
performance of Licensor’s obligations under this Agreement. The limitations of liability contained in this Article 8 shall apply
equally and inure to the benefit of Licensor’s present and future Licensor Parties and their successors and assigns.
8.4. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY SHALL BE
ENTITLED TO, AND EACH OF LICENSOR AND LICENSEE HEREBY WAIVES ANY AND ALL RIGHTS TO
RECOVER, CONSEQUENTIAL, INCIDENTAL, INDIRECT AND PUNITIVE OR EXEMPLARY DAMAGES,
HOWEVER ARISING, WHETHER IN CONTRACT, IN TORT, OR OTHERWISE, UNDER OR WITH RESPECT
TO ANY ACTION TAKEN IN CONNECTION WITH THIS AGREEMENT (BUT THIS SHALL NOT LIMIT THE
INDEMNITIES OF THE PARTIES CONTAINED IN THIS AGREEMENT WITH RESPECT TO THIRD PARTY
CLAIMS).
9. Liability Limitations.
9.1. Risk of Loss. Licensee assumes full risk of loss or damage to Licensee’s Equipment and any personal
property and equipment owned by third parties and placed in the Building by or at the direction of Licensee, whether located
in the Cabinet or elsewhere in the Building. Licensor shall have no responsibility whatsoever to Licensee for loss or damage
to Equipment or for loss of business resulting from loss or damage due to any causes other than the gross negligence or willful
misconduct of Licensor. The foregoing disclaimer of responsibility of Licensor includes loss or damage caused by acts of third
parties, and Licensor shall have no obligation to verify the right of any person claiming access to the Cabinet or to Licensee’s
Equipment placed elsewhere in the Building.
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9.2. Indemnity. Subject to all protections and limitations set forth in the Colorado Governmental Immunity Act
(“CGIA”), each Party hereby indemnifies and holds the other Party harmless from and against any and all liabilities, claims,
demands, costs and expenses of every kind and nature arising from any Loss suffered by the other Party or any third party and
all claims of Loss whatsoever caused in part or in whole by the act or omission of the other Party or when such Loss arises
from any breach or default in the performance of any obligation under the terms of this License, or from any act or negligence
of either Party (including reasonable attorneys’ fees and expenses incurred in the defense of any such claim or any action or
proceeding brought thereon) except to the extent caused by the gross negligence or willful misconduct of the other Party.
9.3. Waivers of Subrogation. Notwithstanding the foregoing, Licensor and Licensee each waive any and all
rights to recover against the other, or against the members, managers, officers, directors, shareholders, partners, joint venturers,
employees, agents, customers, licensees or invitees of such other party, for any Loss to such waiving party or its property to
the extent the loss or damage is (i) insured under valid insurance policies, to the extent of any recovery actually collectible
under such insurance policies, or (ii) required by this Agreement to be insured, to the extent any recovery would be collectible
if such insurance policies were obtained and maintained as required by this Agreement, except in the event such loss or damage
is caused by the negligence of such other party or such other party’s agents, employees, concessionaires and licensee or of any
other person or persons for whose actions such other party may be responsible or liable.
10. Insurance. At all times during the term of this License, each party shall maintain in full force and effect and pay all
premiums on a policy of bodily injury and property damage liability insurance with a combined single occurrence limit of not
less than $2 million, and including limited contractual liability and business interruption coverage, on which each party shall
cause the other party to be designated as an additional insured. Licensee shall also maintain in full force and effect and pay all
premiums on a policy of casualty insurance covering all improvements to the Cabinet, all of Licensee’s Equipment and any
other personal property owned and used in Licensee’s Operations or belonging to others and maintained by Licensee in the
Cabinet or other part of the Building, in an amount not less than their full replacement cost. Each party’s insurance policies to
be maintained hereunder shall require that the other party be notified at least thirty (30) days before lapse of any such insurance.
The Licensee shall provide proof of the above insurance to Licensor upon commencement of the License and thereafter (a)
annually and (b) upon Licensor’s request.
11. No Property Interest; Sole Use of Cabinet by Licensee; No Assignment or Sub-License. Licensee acknowledges
that the rights granted to Licensee hereunder do not constitute an easement, lease or tenancy of any portion of the Cabinet or
the Building but only a license to occupy the Cabinet. Licensee shall not assign, mortgage, sub-license, encumber or otherwise
transfer its rights hereunder directly or indirectly, including by a transfer of all or any portion of the ownership interests in or
assets of Licensee, without Licensor’s prior written consent, which consent may be withheld, conditioned or delayed in
Licensor’s sole and absolute discretion. Licensee further agrees that neither the Space nor the Cabinet nor any part thereof
shall be used or occupied, nor permitted to be used nor occupied, by any entity (including any affiliated entity) other than
Licensee. This Agreement shall not be recorded and recording of it shall render Licensee in default without notice.
12. Subordination and Attornment. All rights of Licensee hereunder are and shall be subject and subordinate in all
respects to every deed of trust, mortgage or other security instrument or any ground lease, master lease, or primary lease, that
now or hereafter covers all or any part of the Cabinet, the Space or the Building. This section shall be self-operative and no
further instrument of subordination shall be required. Nonetheless, in confirmation of such subordination, Licensee shall
promptly execute, acknowledge and deliver any instrument that Licensor or Landlord may reasonably request to evidence such
subordination. Licensee shall attorn to any party succeeding to Licensor’s interest in the Space and shall provide agreements
confirming such attornment as the succeeding party may request. Licensee shall pay the Fees and other sums due and payable
by Licensee under this Agreement to that successor when requested. A mortgagee succeeding to the interest of Licensor shall
not be liable for any act or omission of a Licensor or bound by any modification of this Agreement not approved by that
mortgagee. When requested by Licensor or Landlord, Licensee shall execute, acknowledge and deliver estoppel statements on
the status of the License.
13. Assignment by Licensor/Termination of License by Licensor. Licensor may freely sell, transfer and assign its right,
title and interest in the Cabinet and the Space and assign all of its rights, duties and obligations hereunder (“Transfer”). Upon
such Transfer, the transferee shall be deemed to have fully assumed the License and be liable for all obligations of Licensor
that first arise after the Transfer and Licensor shall be free of all liabilities and obligations under this Agreement except those
accruing prior to the Transfer.
14. General Provisions.
14.1. No Joint Venture. Neither party is authorized to assume or create any obligation on behalf of, in the name
of, or binding upon the other party, nor shall this Agreement in any way create, give rise to, or be deemed a joint venture or
partnership between the parties.
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14.2. Signs. Licensee shall place no signs or marking of any kind (except for a sign or other identification affixed
to Licensee’s Equipment and reasonably necessary to identify Licensee’s Equipment, and which shall include a list of
emergency contacts with telephone numbers), anywhere in the Building.
14.3. Solicitation. Neither party shall, and each shall take reasonable measures to make sure that its employees,
independent contractors, agents and any other individuals accessing the Building, the Space and the Cabinet from time to time
on behalf of the parties (collectively, “Party Representatives”) shall not, during the Term of this Agreement and for a period
of twelve (12) months thereafter, directly or indirectly (i) solicit, employ, offer to employ or engage as a consultant, any
employee of Licensee, Licensor or Landlord; or (ii) pay or offer to pay any employee of Licensee, Licensor or Landlord any
compensation (in cash or in kind), gifts or entertainment as an inducement (stated or implied) to perform any services in the
Building. This provision shall survive the expiration or earlier termination of this Agreement.
14.4. Force Majeure. Neither party shall be liable for any delay or failure to perform hereunder due to acts of God
including fire, explosion, flood, rain or wind storm, earthquake, tornado, hurricane or other weather event or natural disaster;
accident or physical calamity; vandalism or other criminal activity; cable or fiber cuts, utility curtailments, power failure
(including failure of generators, batteries and other sources of power, whether primary or back-up); any court order or local
ordinance, state or federal law or regulation of any department, agency, commission, or other instrumentality of one or more
governmental agencies; national emergency, civil disturbances, insurrection, riot, war, or acts of terrorism; strike, labor
disputes or shortages, lockout or work stoppage, or other labor difficulties, shortages of equipment or supplies, unavailability
of transportation; or any other event beyond each party’s reasonable control whether similar or dissimilar to those enumerated
above (each a “Force Majeure” event).
14.5. No Waiver; Binding Effect; Amendment; Merger. The failure of either party to enforce or insist upon
compliance with any of the provisions of this Agreement or Licensor Rules or the waiver thereof in any instance shall not be
construed as a waiver or relinquishment of any other instance, or of any other provision, of this Agreement or the Licensor
Rules. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns, except as provided in Section 11. This Agreement may not be amended except by an instrument in writing, executed
by the parties. This Agreement supersedes and merges all prior agreements, promises, understandings, statements,
representations, warranties, indemnities and covenants and all inducements to the making of this Agreement relied upon by
either party, whether written or oral, and embodies the parties’ complete and entire agreement with respect to the subject matter
hereof. No representation, statement or agreement, oral or written, made before the execution of this Agreement and no course
of dealings or conduct between the parties hereto shall vary or modify the written terms hereof in any way whatsoever.
14.6. Choice of Law; Severability. This Agreement shall be in all respects governed and construed and enforced
in accordance with the law of the State of Colorado, including all matters of construction, validity and performance, without
regard to its conflicts of law principles. If any term or provision of this Agreement is determined to be illegal, unenforceable
or invalid in whole or in part, for any reason, such illegal, unenforceable or invalid provision or part shall be replaced by a
valid and enforceable provision as similar as possible to the original.
14.7. Representation of Authority. Each party represents and warrants to the other that the execution and delivery
of this Agreement and the performance of such party’s obligations hereunder have been duly authorized, and that this
Agreement is a valid and legal agreement binding on each party and enforceable in accordance with its terms.
14.8. Counterparts; Agreement by Facsimile or Electronic Transmission. This Agreement may be executed in
one or more counterparts, each of which shall constitute an original but all of which, taken together, shall constitute one and
the same instrument. Each party agrees that the execution and delivery of this Agreement by facsimile or electronic signature
shall have the same force and effect as delivery of original signatures.
14.9. Notices. Except as otherwise specified, all notices or consents required or permitted to be given hereunder
shall be in writing and shall be deemed to be duly given when (a) delivered by hand (with written confirmation of receipt), (b)
upon receipt or three days after being mailed by certified mail, return receipt requested, (c) when received by the addressee, if
sent by a nationally recognized overnight delivery service (receipt requested) (d) sent by telecopier (with written confirmation
of receipt), or (e) sent by electronic mail, provided in case of delivery under (d) or (e) that a copy is also mailed by certified
mail, return receipt requested, in each case to Licensor’s and Licensee’s Addresses as shown on page one hereof or to such
other addresses and telecopier numbers as a party may designate by notice to the other party.
14.10. Confidentiality. Subject to the requirements of the Colorado Open Records Act, (a) Each party expressly
undertakes to retain in confidence all information (including the identification of other licensees of Licensor and other
occupants of the Building) and know-how, in whatever form transmitted, including, but not limited to, information concerning
its past, present and future business affairs, business plans, operations or systems of such party (“Disclosing Party”) or another
party whose information the Disclosing Party has in its possession under obligations of confidentiality, disclosed in any way
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to it (the “Receiving Party”) that the Disclosing Party has identified as being proprietary and/or confidential or that, by the
nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential
(“Confidential Information”). The Receiving Party shall treat the Confidential Information with the same degree of care, and
will make no use of such Confidential Information during the existence of this Agreement except as otherwise specified herein;
(b) the Receiving Party shall have no obligation to maintain the confidentiality of information that: (i) it received rightfully
from another party without restrictions on disclosure prior to its receipt from the Disclosing Party; (ii) the Disclosing Party has
disclosed to an unaffiliated third party without any obligation to maintain such information in confidence; or (iii) is
independently developed by the Receiving Party; (c) except as otherwise provided, the Receiving Party shall not disclose,
disseminate, distribute or use any of the Disclosing Party’s Confidential Information to any third party without the Disclosing
Party’s prior written permission; (d) the parties agree that a breach of the terms of this subsection would result in irreparable
injury to the Disclosing Party for which a remedy in damages would be inadequate. The parties agree that in the event of such
breach or threatened breach the Disclosing Party shall be entitled to seek an injunction to prevent the breach or threatened
breach, in addition to remedies otherwise available for such specific performance or injunctive relief, that the Disclosing Party
has an adequate remedy at law.
14.11. Use of Names. Subject to prior written consent, Licensor may use Licensee’s name and logo in connection
with Licensor’s marketing and publicity efforts, including use in press releases, brochures and advertising. In advertising or
other publicity, without the prior written consent of the Landlord, DGEB Management, LLC, Licensee shall use neither the
name of the Building, except as the address of its business, nor use any pictures or images of the Building, nor shall Licensee
misrepresent the name of the Building. Licensee shall not represent that it operates the Meet-Me-Room or Meet-Me-Point in
the Building.
14.12. Competition. Licensee recognizes, acknowledges, and agrees that Licensor currently licenses space to
entities that compete directly or indirectly with Licensee and that Licensor has and reserves the right to enter into license
agreements and other agreements in the future with entities that compete directly or indirectly with Licensee.
14.13. Time of the Essence. Time is of the essence in all things to be done, including all payments to be made by
Licensee under this Agreement.
14.14. Incorporation of Exhibits. All Exhibits attached to this Agreement are incorporated by this reference.
14.15. Construction. Headings are for convenience of reference and shall not be considered in construing this
Agreement. Use of the singular number shall include the plural and use of one gender shall include the other genders as
appropriate in context. “Including” as used herein shall be construed in each case to mean “including without limitation.”
14.16. Deliveries. Licensee assumes full responsibility and liability for any delivery services, US Mail, or freight
services deliveries made to the Premises, including any deliveries dropped off in the hallway or management office of the
Building
15. Resolution of Certain Covenant Disputes. Licensor and Licensee shall endeavor in good faith to informally resolve
any disputes which may arise under Section 5.1(d) of this Agreement (for purposes of this Section, any dispute arising under
Section 5.1(d) shall be referred to as a “Covenant Dispute”). If Licensor and Licensee cannot resolve any such Covenant
Dispute within ten (10) days of written notification of the Covenant Dispute by either Licensor or Licensee, other than a
Covenant Dispute seeking solely injunctive relief or damages within the jurisdiction of the County Courts of the City and
County of Denver, Colorado, then the resolution of such Covenant Dispute shall be determined by binding arbitration in the
City and County of Denver, Colorado in accordance with the provisions set forth on Exhibit E attached to this Agreement.
This agreement to arbitrate shall be specifically enforceable. The Parties agree to abide by all awards rendered in such
proceedings. Such awards shall be final and binding on the parties to the extent and in the manner provided by the Colorado
Uniform Arbitration Act and Colorado Rules of Civil Procedure. THIS ARBITRATION PROVISION IS SUBJECT TO
NEGOTIATION, AND NOT REQUIRED AS A CONDITION OF THIS AGREEMENT. THE PARTIES HAVE FREELY
AGREED THAT ARBITRATION IN ACCORDANCE WITH THIS SECTION IS THEIR PREFERRED METHOD OF
DISPUTE RESOLUTION. THE PARTIES ACKNOWLEDGE AND AGREE THAT THEY INTEND TO WAIVE ANY
RIGHTS THEY MAY HAVE TO A JURY TRIAL. This provision does not preclude either Party from filing any cross-claim
or third-party claim against the other Party in a court of law as a result of litigation initiated against the Party by a third party.
16. OFAC Representations. Licensee represents and warrants to Licensor that neither Licensee nor any Licensee Parties
and none of their respective employees, officers, directors, representatives or agents, is a person or entity with whom U.S.
persons or entities are restricted from doing business with under regulations of the Office of Foreign Assets Control (“OFAC”)
of the United Stated Department of Treasury (including those named on OFAC’s Specially Designated and Blocked Persons
List) or under any statute, executive order (including the September 23, 2001, Executive Order Blocking Property and
Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism) or other governmental action.
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Licensee further represents and warrants to Licensor that Licensee shall at all times during the Term of this Agreement
(including any extensions or renewals) remain in compliance with the regulations of the OFAC of the United Stated
Department of Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) or under any
statute, executive order (including the September 23, 2001, Executive Order Blocking Property and Prohibiting Transactions
with Persons Who Commit, Threaten to Commit, or Support Terrorism) or other governmental action.
17. Environmental Matters.
17.1. Licensee’s Obligations.
(a) Licensee shall not cause or permit the use, treatment, storage or disposal of any Hazardous Materials or
Hazardous Waste in, on or about any part of the Building except small amounts of Hazardous Materials generally found in
normal office and telecommunication equipment environments which shall be used, stored, transported and disposed of in
compliance with all Environmental Laws.
(b) Subject to Section 9.2, Licensee shall defend, indemnify and hold Licensor and the Licensor Parties harmless
from and against all direct claims, costs, expenses, liabilities and penalties, including reasonable attorneys’ and consultants’
fees and costs arising out of or in connection with Licensee’s breach of its obligation under subsection 17.1(a). The obligations
under this Section will survive termination of this Agreement.
(c) For purposes of this Article, “Hazardous Materials” means asbestos, explosives, radioactive materials, and
any other materials or substances regulated under the Comprehensive Environmental Response Compensation Liability Act of
1980, as amended, 42 U.S.C. Sec. 9601-9657 (“CERCLA”), the Resource Conservation Recovery Act of 1976, 42 U.S.C. Sec.
6901-6987; the Occupational Safety and Health Act of 1970, 29 U.S.C. 651 et seq., or any other federal, state or local statute,
law, ordinance, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct
concerning protection of the environment or public health now or at any time hereafter in effect (collectively, “Environmental
Laws”). “Hazardous Waste” means hazardous waste as defined under the Resource Conservation Recovery Act of 1976, 42
U.S.C. Sec. 6901-6987 as well as any petroleum or petroleum-based product, including, but not limited to, waste oil.
18. Option to Extend. As additional consideration for the covenants of Licensee hereunder, Licensor hereby grants to
Licensee an option (the "Option") to extend the term of this Agreement for two (2) additional term(s) of five (5) years (the
"Option Term(s)") on the same terms and conditions as are set forth in this Agreement.
18.1. Exercise of Option. Written notice of Licensee's exercise of the Option ("Licensee's Notice") shall be given
to Licensor not earlier than twelve (12) months and not later than three (3) months prior to the expiration of the initial term of
this Agreement. If Licensee gives such Notice, and provided the other conditions to the extension have been satisfied, the term
of the Agreement shall be automatically extended for the Option Term without requiring further action by the parties; provided,
however, the parties shall execute an amendment to the Agreement to confirm the terms of the extension.
18.2. Termination of Option. Unless Licensor is timely notified by Licensee in accordance with subparagraph
18.1 above, the Option shall terminate, and the Agreement shall expire in accordance with its terms at the end of the initial
Agreement term.
18.3. Conditions to Exercise. Licensee's Option to extend may be exercised and the term extended only if as of
the date of Licensee's Notice, and as of the date of commencement of the Option Term, (i) Licensee shall not be in Default
under the Agreement; and (ii) Licensee shall not have assigned its interest under the Agreement in violation of the terms of
Section 11.
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LANDLORD APPROVAL
The undersigned represents and warrants that it owns the Denver Gas and Electric Building and hereby
recognizes and approves the foregoing Agreement dated May 1, 2020 between DGEB MMR, LLC, a Colorado
limited liability company, as Licensor and CITY OF FORT COLLINS ELECTRIC UTILITY ENTERPRISE, dba
FORT COLLINS CONNEXION, as Licensee.
DGEB MANAGEMENT, LLC
a Colorado limited liability company
By:
Nancy Casados, Executive Manager
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Licensee’s acknowledgement ____________
EXHIBIT A
LOCATION OF THE SPACE
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Licensee’s acknowledgement ____________
EXHIBIT B
FEES
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Licensee’s acknowledgement _________
EXHIBIT C
LICENSOR RULES
The following are the Licensor Rules referred to in this Agreement with which Licensee agrees to comply:
(a) Licensee shall not leave any trash or empty boxes in the Cabinet or the Space; any trash or empty boxes
not properly disposed of by Licensee are subject to removal by Licensor with any associated charges to be billed and
invoiced to Licensee.
(b) No food or beverages of any kind shall be permitted in or around the Cabinet.
(c) Licensee shall ensure that the Licensee's ingress to and egress from and activities within the Cabinet and
the Space, as well as the Licensee Equipment and property and area surrounding Licensee's Cabinet do not pose safety
hazards to any person or equipment or area of any other licensee of Licensor or any occupant of the Building.
(d) Licensee shall promptly remove any electrical hazards and trip and slip hazards.
(e) No Licensee Equipment or property of any kind shall protrude beyond the Cabinet nor shall any Licensee
Equipment or property extend into, encroach upon or otherwise interfere with the Cabinet of any other licensee of Licensor.
(f) Licensee shall not store anything outside of the Cabinet.
(g) Licensee shall not jeopardize Licensor's ability to conduct its facilities operations or any other activities
of any licensee of Licensor.
(h) Combustible or hazardous material may not be stored in the Cabinet or elsewhere in the Space or the
Building.
(i) Licensee shall make reasonable commercial efforts to ensure that the Licensee's Equipment and property
will not interfere in any way with the equipment, property or use of the Space by other licensees of Licensor or by occupants
of the Building.
(j) Licensee agrees to take precautions to protect the Space and nearby equipment belonging to or used by
other licensees of Licensor while performing any work in the Cabinet and the Space.
(k) No windows shall be opened in any part of the Cabinet or the Space or any part of the Building without
the prior written permission of the Licensor.
(l) Licensee shall not allow, permit or suffer any noise, smoke or odor to escape from the Cabinet.
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Licensee’s acknowledgement _________
EXHIBIT D
ACCESS AND PLANS FOR WORK REQUEST FORM
1. CITY OF FORT COLLINS ELECTRIC UTILITY ENTERPRISE, DBA FORT COLLINS CONNEXION
(“Licensee") requests permission to access another location within the Denver Gas and Electric Building make a cross
connection within the DGEB MMR Space, or perform new work within Cabinet on (date) at approximately
(am/pm).
2. The purpose of such Access or Plans for Work is:
.
3. Have Plans and Specification been submitted to Licensor? Yes No
Subject to Section 9.2 of the License Agreement, Licensee accepts sole responsibility for all costs,
expenses and damages (“Costs”) related to the proposed entry into a tenant’s leased premises, releases the
Licensor, DGEB Management, LLC, and their members, managers, employees and agents (the “Indemnified
Parties”), from any liability for such Costs, and indemnifies the Indemnified Parties for any amounts claimed
to be due from them as a result of Licensee’s entry into a tenant’s leased premises or another licensee’s cabinet
or licensed area.
Licensee: CITY OF FORT COLLINS ELECTRIC UTILITY ENTERPRISE,
dba FORT COLLINS CONNEXION
By: Date:
Name: Title:
Licensor approves Access or Work Plans to be performed on the premises? Yes No
By: DGEB MMR, LLC Date:
Name: Title:
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Licensee’s acknowledgement _________
EXHIBIT E
ARBITRATION
In furtherance of the provisions of Section 15 of this Agreement, the Parties hereby agree:
1. To submit such Covenant Disputes arising under Section 5.1(d) of this Agreement in accordance with Section 15 of
this Agreement (the “Arbitration Demand”) to the Colorado Judicial Arbiter Group or to Judicial Arbitration and Mediation
Services (either of which shall be referred to as the “Arbitration Service”) before a single neutral arbiter selected by the
Parties (the “Arbitrator”).
2. If the Parties cannot agree on an Arbitrator within seven calendar (7) days following the Arbitration Demand, they
shall request that the Arbitration Service provide them within three (3) business days with a list of three (3) Arbitrators located
in Denver, Colorado from the Arbitration Service (the “Arbitrator List”), so that each Party shall have the opportunity within
three (3) business days following receipt of the Arbitrator List to strike one name, leaving one Arbitrator. If the Parties each
strike the same Arbitrator from the Arbitrator List, then the Arbitration Service will select the Arbitrator from the remaining
two names on the Arbitrator List.
3. If a Party does not respond to an Arbitration Demand within twenty (20) days after receipt of such Arbitration
Demand, the arbitration may proceed without the non-responding Party’s participation and may be decided based on written
submission.
4. The procedure for arbitration shall be limited to:
a. Written statements detailing each Party’s position with supporting legal authority, a summary of anticipated
witness testimony, and all documentation, submitted to the opposing Party and the Arbitrator at least forty five (45) days prior
to any arbitration hearing, as well as, a rebuttal statement submitted at least fifteen (15) days prior to any arbitration hearing.
If an issue or testimony is not described in detail, or a document is not produced, it shall not be admitted at arbitration.
b. A single day arbitration up to eight (8) hours, with each Party having equal time.
c. Discovery that the Arbitrator determines is minimally necessary to resolve the dispute and relevant to any
Party’s claim or defense and proportional to the needs of the case; and
d. Those necessary procedures that the Arbitrator orders.
5. The arbitration hearing shall be held no later than ninety (90) days after a Party’s Arbitration Demand to the other
Party for arbitration and will take place in Denver, Colorado. Immediately after the arbitration hearing, the Arbitrator shall
decide the dispute(s) and issue a written decision without findings or reasoning, which shall not be subject to appeal. The
Arbitrator’s award will be final and binding, and judgment may be entered thereon in any court of competent jurisdiction.
6. Costs of arbitration required to be paid in advance, including any administration fee, Arbitrator fee, and facility costs
shall be paid equally by the Parties to the arbitration. The Arbitrator may entertain a motion filed within fourteen (14) days
of the Arbitrator’s final decision for an award of costs and fees, including attorney fees. Reasonable costs and fees shall be
awarded to the prevailing Party.
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