Loading...
HomeMy WebLinkAbout2017-11 Approving Network Operating Agreement with Aspen WirelessRESOLUTION NO. 11 Series of 2017 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE TOWN OF VAIL AND ASPEN WIRELESS TECHNOLOGIES, INC. CONCERNING A NETWORK OPERATING AGREEMENT AND SETTING FORTH DETAILS IN REGARD THERETO. WHEREAS, the Town of Vail (the "Town"), in the County of Eagle and State of Colorado is a home rule municipal corporation duly organized and existing under the laws of the State of Colorado and the Town Charter (the "Charter"); WHEREAS, the members of the Town Council of the Town (the "Council") have been duly elected and qualified; WHEREAS, the Aspen Wireless Technologies Inc., ("Aspen Wireless") currently operates and maintains the Town's public WiFi system using existing fiber optic lines owned or controlled by the Town and using facilities owned or operated by third -party Crown Castle Towers 06-02, LLC ("Crown Castle"), including a communications tower located in the Town; WHEREAS, Aspen Wireless plans to construct, operate, and maintain a retail wireless broadband Internet network in and around the Town to improve un -served and under -served areas of the Town, to foster new wireless applications, and to introduce new methods of delivering high speed wireless Internet broadband at their sole cost; WHEREAS, The Town owns other infrastructure, which the Town desires to license to Aspen Wireless on a non-exclusive basis for Aspen Wireless's placement of certain facilities that are a part of the Network; WHEREAS, Upon construction of the Network, Aspen Wireless desires to provide the Town with a license to use the Network, at no cost, for Town use for Town purposes; and WHEREAS, The Town desires Aspen Wireless to operate, maintain, and upgrade the Network to industry standards as such standards may change from time -to -time for ten years, plus an additional optional ten-year period. NOW, THEREFORE, BE IT ORDAINED BY THE TOWN COUNCIL OF THE TOWN OF VAIL, COLORADO: 1. The Council hereby approves the Agreement and authorizes the Town Manager to enter into the Agreement on behalf of the Town in substantially the same form as attached hereto as Exhibit A and in a form approved by the Town Attorney. 2. This Resolution shall be effective immediately upon adoption. INTRODUCED, READ, APPROVED AN ATT Patty y, Town k arch, 2016. of Vail EXHIBIT A NETWORK OPERATING AGREEMENT THIS NETWORK OPERATING AGREEMENT (the "Agreement") is made and entered into this day of , 2017 (the "Effective Date"), by and between the Town of Vail, a Colorado home rule municipality with an address of 75 South Frontage Road, Vail, Colorado 81657 (the "Town"), and Aspen Wireless Technologies, Inc., a Michigan S Corporation with an address of 1920 W. Burnley Lane, Maple City, MI 49664 ("Operator") (each individually a "Party" and collectively the "Parties"). RECITALS A. Operator currently operates and maintains the Town's public WiFi system using existing fiber optic lines owned or controlled by the Town and using facilities owned or operated by third -party Crown Castle Towers 06-02, LLC ("Crown Castle"), including a communications tower located in the Town; B. Operator, at Operator's sole cost, plans to construct, operate, and maintain a retail wireless broadband internet network in and around the Town to improve un -served and under- served areas of the Town, to foster new wireless applications, and to introduce new methods of delivering high speed wireless internet broadband, (the "Network," as described and defined in Exhibit A, attached hereto); C. Operator intends to charge a fee to retail customers in the Town for service over the Network; D. The Town has a direct interest in improving the quality of life of its citizens through improvements to essential infrastructure and services within its boundaries and recognizes that improved access to high-speed wireless internet broadband services provides substantial value to the Town and its citizens. E. The Town owns or has the rights to fiber-optic transmission lines with surplus capacity, which the Town desires to license to Operator on a non-exclusive basis for Operator's use in constructing, operating, and maintaining the Network, provided the Town shall retain the right upon three hundred sixty five (365) days' notice to terminate the license or reduce the quantity/capacity of fiber optic lines available for Operator's use if the Town determines it is necessary for Town purposes; F. The Town owns other infrastructure, which the Town desires to license to Operator on a non-exclusive basis for Operator's placement of certain Operator facilities that are a part of the Network; G. Operator intends to use other facilities owned by third -parties, including Crown Castle, and Operator acknowledges that it shall be Operator's sole responsibility to obtain all rights necessary from third -parties; Resolution No. 11, Series of 2017 H. Upon construction of the Network, Operator desires to provide the Town with a license to use the Network, at no cost, for Town use for Town purposes; I. The Parties desire Operator to operate, maintain, and upgrade the Network to industry standards as such standards may change from time -to -time for ten years, plus an additional optional ten-year period; and J. Operator has held itself out as being skilled in the marketing, sales, customer service, construction, and daily operation of broadband networks and applications of the same nature as the Network and Operator, and will use those skills in constructing, operating, maintaining and marketing the Network. NOW THEREFORE, for the consideration hereinafter set forth, the receipt and sufficiency of which is hereby acknowledged, the Parties agree as follows: I. NON -EXCLUSIVITY The rights provided to Operator by the Town are non-exclusive. The Town may offer similar arrangements to other providers of broadband services in the Town's sole discretion. II. DEFINITIONS A. "Errors" means any deviations from the Specifications and any deviations from commonly accepted standards for normal and correct operation of wireless broadband interne networks of a similar nature, even if not explicitly mentioned in the Specifications, such as any cases where the Network abnormally ceases functioning, produces incorrect or misleading results, and similar deviations. B. "Network" means the auxiliary broadband system providing primary and/or redundant broadband services throughout the Town, which is based upon Operator's proven capabilities as more fully described in Exhibit A, attached hereto and incorporated herein by this reference. C. "Specifications" means the description of the Network and its current and future capabilities in Exhibit A. III. OPERATOR OBLIGATIONS A. At no cost to the Town, Operator shall construct, operate, maintain, and upgrade the Network and shall perform all work set forth and reasonably implied from Exhibit A. The operation, capabilities and performance of the Network shall be as described in the Specifications. B. Upon notice from Operator that the Network is complete, complies with the Specifications, and that all materials required or reasonable implied by Exhibit A have been delivered, the Town shall have thirty (30) days to review, test, and perform all other inquiries Resolution No. 11, Series of 2017 deemed appropriate to determine whether Operator has complied with its obligations set forth herein (the "Network Review Period"). The Town shall provide notice of any deficiencies within the Network Review Period. Upon receipt of any such notice from the Town, Operator shall proceed with due diligence and shall use its best efforts to remedy the deficiency as expeditiously as possible. If Operator disagrees with the Town's notice regarding a deficiency or failure of Operator to comply with Operator's obligations, Operator shall provide a detailed written response within fifteen (15) days of receipt of the Town's notice. The Parties shall cooperate to resolve the issue, but if no mutually agreeable resolution can be reached, the Parties may avail themselves of all remedies available at law or equity. If the Town does not provide notice of any deficiency within the Network Review Period, the Town shall be deemed to have agreed the Network meets the Specifications. IV. LICENSE AND PROPRIETARY RIGHTS A. Upon acceptance of the Network by the Town, Operator shall own all equipment, facilities, and material (including software and hardware) installed by Operator to create the Network; provided the Town shall retain ownership of all Town infrastructure, including without limitation, the Town Property (which includes all fiber optic lines licensed to Operator by the Town), as defined in Exhibit A. Operator is hereby granted a non-exclusive license for the term of this Agreement, and any renewals thereto, to use the Town Property to host and locate the equipment necessary to construct, operate and maintain the Network; provided it does not interfere with the Town's use of the Town Property as determined by the Town in its sole discretion. This license shall be revocable by the Town at the Town's will if the Town determines in its sole discretion that any element of Town Property is needed by the Town and Operator's use of the Town interferes with the Town's use of that element. The Town shall provide Operator with reasonable notice prior to terminating Operator's right to use an element of Town Property, and the Town use reasonable efforts to find a suitable replacement option for Operator's use from other Town Property. B. For the term of this Agreement, and any renewals thereto, Operator hereby grants the Town an irrevocable perpetual license to use the Network, at no cost, for the Town's municipal purposes. All services, applications, and other services created or performed by the Town using the Network shall be the sole property of the Town. V. REPRESENTATIONS AND WARRANTIES Operator represents and warrants to the Town that: (1) the Network will be original and will not infringe upon any patent, copyright, trade secret or other proprietary rights of others; (2) Operator is the sole and exclusive owner of all rights in the Network subject only to the rights herein granted to the Town; (3) Operator has not previously granted and will not grant any rights in the Network to any third party that are inconsistent with the rights granted to the Town herein; and (4) Operator has full power to enter into this Agreement, to carry out its obligations herein contained and to grant the rights herein granted to the Town. VI. INDEMNIFICATION Resolution No. 11, Series of 2017 Operator shall indemnify and defend the Town for, and hold it harmless from, any loss, expense (including reasonable attorneys' fees), damage or liability arising out of any claim, demand or suit resulting from a breach or claimed breach of this Agreement by Operator, including without limitation, of any of Operators representations or warranties. The Town shall promptly inform Operator in writing of any such claim, demand or suit of which the Town gains knowledge, and Operator shall fully cooperate in the defense thereof. VII. INSURANCE A. Operator agrees to procure and maintain, at its own cost, a policy or policies of insurance sufficient to insure against all liability, claims, demands, and other obligations assumed by Operator pursuant to this Agreement. At a minimum, Operator shall procure and maintain, and shall cause any subcontractor to procure and maintain, the insurance coverages listed below, with forms and insurers acceptable to the Town. 1. Worker's Compensation insurance as required by law. 2. Commercial General Liability insurance with minimum combined single limits of $1,000,000 each occurrence and $1,000,000 general aggregate. The policy shall be applicable to all premises and operations, and shall include coverage for bodily injury, broad form property damage, personal injury (including coverage for contractual and employee acts), blanket contractual, products, and completed operations. The policy shall contain a severability of interests provision, and shall include the Town and the Town's officers, employees, and contractors as additional insureds. No additional insured endorsement shall contain any exclusion for bodily injury or property damage arising from completed operations. 3. Professional liability insurance with minimum limits of $1,000,000 each claim and $1,000,000 general aggregate, including but not limited to Technology Errors and Omissions and Operating Errors and Omissions covering products, services, and work performed by Operator under this Agreement. A claims made policy is acceptable providing there is no lapse in coverage during the term of this Agreement and the policy will be in full force and effect 3 years after the expiration or termination of this Agreement. B. Such insurance shall be in addition to any other insurance requirements imposed by law. The coverages afforded under the policies shall not be canceled, terminated or materially changed without at least 30 days prior written notice to the Town. In the case of any claims -made policy, the necessary retroactive dates and extended reporting periods shall be procured to maintain such continuous coverage. Any insurance carried by the Town, its officers, its employees, or its contractors shall be excess and not contributory insurance to that provided by Operator. Operator shall be solely responsible for any deductible losses under any policy. C. Operator shall provide to the Town a certificate of insurance as evidence that the required policies are in full force and effect. The certificate shall identify this Agreement. Resolution No. 11, Series of 2017 VIII. TERM AND TERMINATION A. The term of this Agreement shall commence on the Effective Date and shall continue for ten (10) years (the "Initial Term"). Provided Operator is not in breach of any of the terms of this Agreement, Operator may renew this Agreement for an additional ten (10) years by providing written notice of renewal to the Town prior to expiration of the Initial Term. B. In the event of a breach by Operator which is not cured within one hundred twenty (120) days after written notice thereof by the Town, the Town may terminate this Agreement and shall be entitled to the remedies set forth herein. IX. MISCELLANEOUS A. Governing Law and Venue. This Agreement shall be governed by the laws of the State of Colorado, and any legal action concerning the provisions hereof shall be brought in Eagle County, Colorado, except that any claims based on federal law may be brought in the United States District Court for the District of Colorado. B. No Waiver. Delays in enforcement or the waiver of any one or more defaults or breaches of this Agreement by the Town shall not constitute a waiver of any of the other terms or obligation of this Agreement. C. Integration. This Agreement constitutes the entire agreement between the Parties, superseding all prior oral or written communications. D. Third Parties. There are no intended third -party beneficiaries to this Agreement. E. Notice. Any notice under this Agreement shall be in writing, and shall be deemed sufficient when directly presented or sent pre -paid, first class United States Mail to the party at the address set forth on the first page of this Agreement. F. Severability. If any provision of this Agreement is found by a court of competent jurisdiction to be unlawful or unenforceable for any reason, the remaining provisions hereof shall remain in full force and effect. G. Modification. This Agreement may only be modified upon written agreement of the Parties. H. Assignment. Neither this Agreement nor any of the rights or obligations of the Parties hereto shall be assigned by either Party without the written consent of the other. Sale of Operator's rights to the Network shall not be deemed a justification to withhold consent, provided that the purchasing party demonstrates to the reasonable satisfaction of the Town that it has the financial and technical capability to develop, maintain, update, and operate the Network as contemplated herein. Resolution No. 11, Series of 2017 I. Governmental Immunity. The Town and its officers, attorneys and employees, are relying on, and do not waive or intend to waive by any provision of this Agreement, the monetary limitations or any other rights, immunities, and protections provided by the Colorado Governmental Immunity Act, C.R.S. § 24-10-101, et seq., as amended, or otherwise available to the Town and its officers or employees. J. Rights and Remedies. If Operator is in breach of this Agreement, the Town shall have the right to suspend or terminate the license provided to Operator to use the Town Property (including the surplus fiber). If Operator fails to construct or maintain the Network as required by the Agreement, the Town shall have the right to purchase all facilities, equipment, hardware and software, owned or controlled by Operator for use in the Network for the price of one dollar ($1.00), and Operator agrees to execute all documents necessary to transfer such ownership to the Town. The rights and remedies of the Town under this Agreement are in addition to any other rights and remedies provided by law. The expiration of this Agreement shall in no way limit the Town's legal or equitable remedies, or the period in which such remedies may be asserted, for work negligently or defectively performed. K. Subject to Annual Appropriation. Consistent with Article X, § 20 of the Colorado Constitution, any financial obligation of the Town not performed during the current fiscal year is subject to annual appropriation, shall extend only to monies currently appropriated, and shall not constitute a mandatory charge, requirement, debt or liability beyond the current fiscal year. L. Time of the Essence. Time is of the essence in this Agreement and each of its terms. Operator's failure to comply with the terms of this Agreement, including without limitation performance of the obligations set forth in Exhibit A, pursuant to Schedule 1, shall constitute a material breach of this Agreement. [Remainder of page intentionally left blanks. Signatures on following page.] Resolution No. 11, Series of 2017 IN WITNESS WHEREOF, the Parties have executed this Agreement on the date first set forth above. TOWN OF VAIL, COLORADO Stan Zemler, Town Manager ATTEST: Patty McKenny, Town Clerk ASPEN WIRELESS, INC. By: Jim Selby, President STATE OF COLORADO ) COUNTY OF EAGLE ) The foregoing instrument was subscribed, sworn to and acknowledged before me this _ day of , 2017, by Jim Selby, as President of Aspen Wireless, Inc. My commission expires: (S E A L) Resolution No. 11, Series of 2017 Notary Public EXHIBIT A OPERATOR OBLIGATIONS Operator shall perform the following duties and produce the following deliverables, pursuant to the schedule attached hereto as Schedule 1. Failure to perform any the following deliverables as set forth herein shall constitute a material breach of the Agreement. 1. Operator shall construct and deliver a new fully -operational locally - focused wireless broadband network capable of delivering high-speed broadband internes access to all areas of the Town identified in the Broadband Needs Assessment (as defined below) using state-of-the-art technology, which shall use the Town's surplus fiber capacity and last mile wireless technology, and which shall deliver speeds varying from 25-1000+ Mbps depending on the specific needs of customers being served (the "Network"). 2. The Network shall provide redundant critical communications, and shall not use incumbent cable or telecommunications infrastructure for the Network's last mile (commonly referred to as redundant facilities based infrastructure). 3. Immediately upon execution of the Agreement, Operator shall conduct a broadband needs assessment to determine where wireless broadband internes access is un -served / underserved in the Town ("Broadband Needs Assessment"). Operator shall provide the Broadband Needs Assessment to the Town for review and approval, and shall cooperate with the Town on the design of the Network to ensure the Network delivers service to all areas of the Town based on the Broadband Needs Assessment. 4. Operator shall construct the Network using, in part, Town -owned real property (including surplus fiber optic transmission line, certain buildings, utility infrastructure, signage, light standards, and other improvements) (the "Town Property"). The Parties will identify the Town Property to be used in the Network at a later date after Operator has completed the Broadband Needs Assessment and designed the Network; provided that the Town retains sole discretion over which elements of the Town Property are used the Network. The Parties shall establish a written list of the Town Property used in the Network, which shall detail how the Town Property may be used by Operator and any limitations on that use. 5. Operator shall, in coordination with the Town, evaluate and depending on the results of the evaluation, use next generation services in the Network, including but not limited to: a. Internet Of Things (IOT) and Machine to Machine (M2M) Networks b. Smart City Initiatives c. Public Safety / Camera Networks Resolution No. 8, Series of 2017 Page 10 of 12 d. FTTX and Hybrid Fiber/Wireless FTTX e. Location Based Services f. Digital Signage 6. Upon completion of the Network, Operator shall deliver to the Town a network coverage map to the Town, showing the areas served by the Network. The Network shall serve areas identified in the Broadband Needs Assessment. 7. Operator shall develop and provide all ongoing marketing, sales and customer services reasonably required to advertise, market, and promote the Network to Town residents, businesses, and visitors. 8. Maintenance/Investment. a. Operator shall maintain the Network to ensure it remains fully functional in accordance with the Specifications, and shall upgrade the Network as reasonably necessary for it to continue to provide state-of-the-art functionality. The Town Of Vail may decide to commit additional funds in the future if warranted in the Town's sole discretion. b. On or before January 1, 2018 and every ninety (90) days thereafter, Operator shall furnish to the Town's IT Director a verified statement of network coverage and performance. c. Operator shall establish and maintain accurate coverage maps, network capabilities and service records satisfactory to the Town and the Town shall have access to such records upon reasonable notice during regular business hours of Operator. Resolution No. 8, Series of 2017 Page 11 of 12 SCHEDULE 1 1. On or before May 1, 2017 - Completion of Broadband Needs Assessment. 2. On or before June 1, 2017 — Completion of Network design. 3. On or before December 31, 2017 — Completion of fully operational Network and delivery of service. Resolution No. 8, Series of 2017 Page 12 of 12