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Home My WebLink About20132494.tiffRESOLUTION RE: APPROVE REVISED TOWER SITE LEASE AGREEMENT AND AUTHORIZE CHAIR TO SIGN - SUN MICROWAVE, INC., DBA SUN WIRELESS, AND KEENESBURG SCHOOL DISTRICT RE -3J WHEREAS, the Board of County Commissioners of Weld County, Colorado, pursuant to Colorado statute and the Weld County Home Rule Charter, is vested with the authority of administering the affairs of Weld County, Colorado, and WHEREAS, the Board has been presented with a revised Tower Site Lease Agreement between the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Weld County Regional Communications Center, and Sun Microwave, Inc., dba Sun Wireless, and Keenesburg School District RE -3J, commencing July 1, 2013, with further terms and conditions being as stated in said revised Lease Agreement, and WHEREAS, after review, the Board deems it advisable to approve said Lease Agreement, a copy of which is attached hereto and incorporated herein by reference. NOW, THEREFORE, BE IT RESOLVED by the Board of County Commissioners of Weld County, Colorado, that the Revised Tower Site Lease Agreement among the County of Weld, State of Colorado, by and through the Board of County Commissioners of Weld County, on behalf of the Weld County Regional Communications Center, and Sun Microwave, Inc., dba Sun Wireless, and Keenesburg School District RE -3J, be, and hereby is, approved. BE IT FURTHER RESOLVED by the Board that the Chair be, and hereby is, authorized to sign said revised Lease Agreement, which replaces and supercedes the agreement dated July 16, 2012. The above and foregoing Resolution was, on motion duly made and seconded, adopted by the following vote on the 4th day of September, A.D., 2013, nunc pro tunc July 1, 2013. ATTEST: Weld County Clerk to the Board BY: Deputy Cle i to t APPROVF AS TO -E ou"ty Attorney e Boar !I M: Date of signature8EP 1 2 2013 BOARD OF WELD C) c William TY COMMISSIONERS, ORADO .'Garcia, Chair n P. Conway Michael Freeman arbara Kirkmeyer cc: v C4 lair 9--f?- /3 �7 2013-2494 CM0022 TOWER SITE LEASE AGREEMENT This Agreement is entered into by and between Sun Microwave Inc., d/b/a Sun Wireless (hereinafter referred to as "Lessor"), with a principle place of business located at 13868 Little Creek Lane, Valley Center, CA 92082, and the Keenesburg School District RE3J (hereinafter referred to as "School District"), with a principle place of business located at 99 West Broadway, Keenesburg, CO 80643, and the Weld County Board of County Commissioners (hereinafter referred to as "Lessee"), with a principle place of business located at 1150 'O' Street, Greeley, CO 80632. BACKGROUND INFORMATION A. Lessor is the current owner of a certain communications tower and building (the Tower) located at 4977 WCR 59, Keenesburg, Weld County, Colorado 80643, on real property owned by the School District. B. This Agreement fully replaces and supersedes the agreement between Lessee and the School District on the same subject matter, which was previously executed on July 16, 2012, and identified by Weld County document number 2012-1824. In that agreement, the School District is incorrectly identified as the owner of the Tower. The undersigned parties to this Agreement agree that Lessor is the legal owner of the Tower structure. while the School District is the owner of the real property on which the Tower is installed. If any section of this Agreement incorrectly refers to Lessor instead of the School District, or vice versa, based on ownership of the subject of the section, each agrees to be bound by the terms of this Agreement, notwithstanding the incorrect reference, such that the overall purpose of this Agreement may be accomplished. Further, School District agrees to pay Lessor's attorneys fees in an amount of not more than $1,500.00. C. Lessee desires to lease space on and in proximity to the Tower from Lessor, and Lessor desires to lease space on and in proximity to the Tower to Lessee, on certain terms and conditions. D. The parties desire to reduce the terms of their agreement to writing. NOW THEREFORE, in consideration of the covenants herein contained, Lessor and Lessee agree as follows: AGREEMENT 1. RECITALS: The above recitals are incorporated by reference, as though fully set forth herein. 2. LEASE OF TOWER FACILITIES AND SITE: Lessor hereby leases to Lessee, and Lessee hereby leases from Lessor, equipment space on the Tower pursuant to the terms and conditions set forth herein. During the term of this Lease, Lessor hereby grants permission to Lessee to install, maintain, and operate on the Tower, Communications Equipment as has been previously installed on the Tower by Lessee. 3. RENTAL: Lessee shall pay to Lessor as rent during the term of this Lease, commencing July 1, 2013, or upon installation of Lessee's equipment on the Tower, whichever later occurs ("the Commencement Date"), One Dollar ($1.00) per year, with the Lease payment payable as a lump sum at the end of said term. 4. ACCESS: Lessor warrants and represents that the Lessor owns and has title to the Tower structure on the Premises. School District warrants and represents that the School District owns and has title to the real property on which the Tower structure is installed. Lessor and School District shall provide Lessee with access to Tower and Tower site 24 hours per day, 7 days per week, 365 days per year for installation, maintenance and removal of Lessee's equipment. Lessee shall secure all access gates and building locks when entering or leaving the Tower site. Lessee agrees to permit only authorized employees of Lessee or persons under Lessee's direct supervision to enter Tower site. Access will typically be during normal business hours. Exceptions may be required for emergency service restoration and regular maintenance during non -peak usage times. 5. UTILITIES: School District represents that utilities adequate for Lessee's use of the Tower site are available. Lessee shall pay for all utilities used by it at the Tower site, and Lessee shall sign any instrument reasonably requested by the utility company concerning Lessee's utilities. School District shall assist Lessee in Lessee's efforts to obtain utilities from any location provided by School District or the servicing utility. Lessee shall pay School District $10.00 per month (Utility Fee) beginning on the Commencement Date of this Lease. School District shall monitor the annual usage on the Lessee's provided electric sub -meter and if School District determines that Lessee's utility usage exceeds the usage that is provided for in the Utility Fee, School District may bill Lessee for the amount Lessee exceeded utility usage for that year, by presenting an invoice to Lessee for such payment within sixty (60) days after the conclusion of the applicable contract term. School District may adjust the Utility Fee to adequately compensate for Lessee's utility usage. If adjustment is determined to be necessary, School District shall adjust the Utility Fee for the new term and shall notify Lessee ht writing of such increase in the Utility Fee. Any such change in the Utility Fee resulting from an increase in Lessee's utility usage will take effect with the next payment of the Utility Fee coming due after Lessee's receipt of such notice. 6. INSTALLATION: As of the Commencement Date, Lessee's equipment and devices are already installed on the Tower. Lessee agrees to provide, within three months of execution of this Agreement, a certification that the Tower and equipment installation meets FCC standards, from a structural engineer licensed in the state of Colorado. As to installation of any further equipment and devices on the Tower, the following shall apply: a. Prior to installation of any equipment or devices, Lessee shall provide Lessor with industry standard site drawings detailed where Lessee proposes to locate its equipment and / or antenna(s), and building. Lessor shall review Lessee's proposal and either approve or specify the required changes within a reasonable 2013-2494 a} time. Lessee shall not be required to pay any rent until such time that Lessee's proposal shall be approved by Lessor. b. Lessee's communications equipment shall be installed at its sole expense in a professional manner so as not to interfere with or cause problems to any of the equipment or devices of Lessor or any equipment or devices of any other lessee which is already located on the Tower. c. All equipment provided by Lessee shall be installed in compliance with all applicable building and electrical codes and regulations of any government agencies having jurisdiction. d. All equipment installed by Lessee on Lessor's Tower shall be firmly anchored to the Tower structure. Electrical conduits and cables shall be attached to the Tower at intervals not to exceed four (4) feet. All tower fastening devices used by the Lessee shall be made of stainless steel or galvanized to prevent rusting. e. Lessee may place a portable building for equipment within the boundaries of Lessor's Tower site. If Lessee elects to place such a portable building for equipment within the boundaries of Lessor's Tower site, Lessee shall arrange for and pay all costs of opening and / or extending the enclosure to accommodate the portable building. All materials and construction used to extend or repair any currently existing security fence shall be of like design and quality to the existing fence. Said portable equipment building shall at all times be the responsibility of Lessee, and Lessee assumes all liability for any and all maintenance, damages as a result of the building placement, and the like. 7. INTERFERENCE OR DAMAGE TO LESSOR'S SYSTEM: a. Lessee shall be liable for any damages or problems incurred or sustained by Lessor to its facilities due to acts of Lessee, its agents, contractors, or representatives, as such acts relate to the installation, operation, maintenance, repair, replacement of Lessee's equipment at Lessor's Tower. 8. TOWER AND EQUIPMENT MAINTENANCE a. Lessor shall be solely responsible for the performance of any routine, extraordinary, or emergency repairs or maintenance on Lessor's Tower. Lessee shall be solely responsible for the performance of any routine, extraordinary, or emergency repairs or maintenance on Lessor's Tower that are caused by or result from Lessee's use of Lessor's Tower. b. Lessor shall be responsible for compliance with all regulations requiring painting and / or lighting of Lessor's tower, including operation, maintenance and inspection of the Tower, lighting, and alarm systems. c. Lessee shall be solely responsible for the performance of any routine, extraordinary, or emergency repairs or maintenance on Lessee's equipment located at Lessor's Tower site. Lessee shall maintain its property in accordance with reasonable engineering standards to assure that at all times Lessee and its operation are in conformance with the applicable requirements of the Federal Communications Commission and / or all other public authorities with jurisdiction over Lessee. I d. Lessee will (1) operate and maintain Lessee's equipment in a safe and good condition. (2) keep the premises free from trash, debris and waste resulting from the use thereof by Lessee, and (3) repair all damage to the premises in connection with installation, maintenance and removal of the equipment. e. Lessor shall have the right to make any reasonable changes, alterations or improvements to the premises, or any part thereof, so long as such reasonable change, alterations or improvements do not interfere with Lessee's reasonable use of the premises under this Agreement. If any change, alteration or improvement contemplated by Lessor may result in a temporary disruption of service to Lessee, Lessor shall give notice to Lessee at least thirty (30) days prior to the anticipated possible disruption. f Lessor shall not be liable to Lessee for any unintentional interruption of service of Lessee or for unintentional interference with the operation of the equipment and service of Lessee arising in any manner from the use of the Tower or Tower site or both by Lessor. Lessor shall use its best efforts to resolve interference conflicts as soon as feasible to the end of restoring full service. 9. NONEXCLUSIVE LEASE: Lessor shall have the right to lease other portions of its radio tower facility to other parties. Lessor shall not permit any subsequent lessee to interfere with the performance of Lessee's communication system, or to encroach upon the space located at the Tower site and specifically leased to Lessee hereunder. 10. ASSIGNMENT: a. Lessee may assign its rights and responsibilities in this Agreement to any entity controlling, controlled by, or under the common control of Lessee, or to any party that has subsequently acquired substantially all of Lessee's assets related to the use of the tower equipment, with the condition that the assignment must be for entire Agreement, and the assignee agrees to be bound by all of the teuus and conditions of the Agreement. Lessee shall give written notice to Lessor within 30 days of the assignment of the Agreement. Lessee shall not assign or transfer this Agreement to any other entity not above named without the prior written consent of Lessor, which consent shall not be unreasonably withheld. In addition, Lessee shall not change or modify the frequency, power, or character of Lessee's equipment, without Lessor's prior consent, which consent shall not be unreasonably withheld. b. Lessor may assign its rights and responsibilities in this Agreement to any person or entity who acquires ownership of the Tower Site premises from Lessor, and the assignee agrees to be bound by all the terms and conditions of the Agreement. Lessor shall give written notice to Lessee within 30 days of the assignment of the Agreement. Lessor shall not otherwise assign or transfer this Agreement to any other entity without the prior written consent of Lessee, which consent shall not be unreasonably withheld. 11. INDEMNITY: a. To the extent legally possible, Lessor shall not be liable for, and Lessee agrees to indemnify and hold Lessor harmless against any and all losses, expenses, claims, or causes of action of every kind and character on account of damages to or loss of any property or on account of injury to or death of any person or persons directly or indirectly resulting from or arising out of Lessee's use of Lessor's Tower site. Lessee shall defend each claim asserted and suit brought involving any matter of which Lessor is indemnified hereunder, and shall pay all costs, expenses, and attorney fees incidental thereto, and all judgments resulting therefrom; and Lessor shall have the right at its option to participate in the defense of each suit or proceeding without relieving Lessee of any obligation hereunder. b. Notwithstanding the provisions stated herein, nothing in this Lease Agreement is intended as a waiver by Lessee of governmental immunity rights pursuant to state or federal law. c. Lessee, and all of Lessee's contractors or subcontractors, prior to the installation or inspection of any equipment, shall secure and maintain throughout the term of this Lease, general comprehensive liability insurance for all claims that may be applicable to Lessee. Lessee shall also carry such insurance as shall protect it from all claims under any Worker's Compensation laws in effect that may be applicable to Lessee. All insurance required hereunder shall remain in force for the entire term of this Lease Agreement. d. Except to the extent caused by Lessor's gross negligence or intentional misconduct, Lessee waives and releases Lessor, its employees, and agents from all claims for any loss, injury, death, or damage to persons, property, or to the Lessee's business occasioned by theft, act of God, public enemy, injunction, riot, strike, insurrection, wars, court order, requisition, order of governmental body or authority, fire, explosion, failing objects, steam, rain, snow, water, leak or flow of water, or from any other place, or from breakage, leakage, obstruction, or other defects of the pipes, sprinklers, wires, appliances, plumbing, air conditioning, or lighting fixtures of the Building located on the Tower Site ("the Building"), or from construction, repair, or alteration of the Building, or from any cause beyond Lessor's reasonable control. 12. WASTE, NUISANCE, HAZARDOUS SUBSTANCE, OR UNLAWFUL ACTIVITY: a. Lessee shall not create any waste or nuisance on or around the Tower site, and shall not use the Tower or the Tower site for any unlawful purpose. b. Lessor represents that it has no knowledge of any substance, chemical or waste (collectively, "substance") on the Tower site that is identified as hazardous, toxic or dangerous in any applicable federal, state or local law regulation. Lessee shall not introduce or use any such substance on the Tower site in violation of any applicable law. 13. GOVERNMENT APPROVAL: a. Lessee shall be responsible for obtaining any applicable permits or licenses required by government agencies, as such pertain to the installation, operation, maintenance, or repair, replacement, or ownership of Lessee's equipment located at Lessor's Tower site. b. If, after execution of this Lease, Lessee is unable to continue to occupy Lessor's Tower site due to action of any government agency, or for other reasons, including damage to or destruction of the Tower or equipment building, this Lease may be canceled without obligation. 14. TERM OF LEASE: a. This Lease shall be effective for two (2) years, commencing July 1, 2013, and shall be automatically renewable on an annual basis thereafter, unless sooner terminated by either party pursuant to the provisions hereinafter set forth. b. Either party may terminate this Lease by giving the other parties at two (2) years written notice of its intention to terminate this Lease. Upon termination of the Agreement for any reason, Lessee shall remove its equipment and material installed on Tower or at the Tower site within thirty (30) days after termination of this Lease, and shall leave Tower and the Tower site in substantially the same condition as it existed prior to the date when Lessee installed its communications equipment. Lessee shall continue to pay rent as set forth in this Agreement until all of its equipment has been removed from the Tower site. 15. COMPLIANCE WITH LAWS: The parties agree to comply with the applicable provisions of all federal, state or local laws or ordinances and all lawful orders, rules, and regulations issued thereunder; and any provisions, representations or agreements, or contractual clauses required thereby to be included or incorporated by reference or operation of law in this Agreement. 16. DEFAULT: a. If any party is in default under any of the terms and provisions contained herein, the non -defaulting party shall notify the defaulting party of the default. The defaulting party shall then have thirty (30) days after such notice in which to cure any default. If any default is not capable of being cured within the requisite period of time, then so long as the party charged with the default has diligently pursued such cure of the default within the prescribed period, the defaulting party shall be given the necessary time to cure the default. b. If the defaulting party is Lessee, and the default continues after the period for cure passes, Lessor may, at its election and upon an additional thirty (30) days notice to Lessee, cancel and terminate this Agreement and, upon the expiration of the thirty (30) days notice to terminate, immediately re-enter and repossess the premises without being guilty of any manner of trespass or forcible entry or detainer. Upon repossession by Lessor, this Agreement shall be considered terminated and Lessee shall have sixty (60) days after termination to remove its antennae and other communication equipment, after which title to such antennae and other communication equipment shall be forfeited. If the defaulting party is Lessor, and the default continues after the period for cure passes, Lessee shall the right to terminate this Lease or to pursue any other available legal remedies, or both. r c. No waiver of any default or breach of any one or more of the conditions or covenants of this Agreement by either party shall be deemed to imply or constitute a waiver of any succeeding or other breach thereunder. 17. NOTICES: Any notice to be given under this Agreement shall either be hand delivered, with signed receipt, or mailed to the party to be notified at the address set forth herein, with signed receipt, or by facsimile with confirmation, until such time as written notice of a change is received from the party wishing to make a change of address. Any notice so mailed and any notice served by personal delivery shall be deemed delivered and effective upon receipt or upon attempted delivery. This method of notification shall be used in all instances, except for emergency situations when immediate notification to the parties is required. Any demand or notice to either party may be given to the other party by addressing the written notice to: Lessee: Board of County Commissioners of Weld County, Colorado P.O. Box 758, 1150 O Street, Greeley, CO 80632 Lessor: Sun Microwave Inc. d/b/a Sun Wireless 13868 Little Creek Lane, Valley Center, CA 92082 School District: Keenesburg School District RE3J 99 West Broadway, Keenesburg, CO 80643 18. ENTIRE AGREEMENT - MODIFICATION: This Agreement contains the entire Agreement and understanding between the parties to this Agreement and supersedes any other agreements concerning the subject matter of this transaction, whether oral or written. No modification, amendment, novation, renewal, or other alteration of or to this Agreement and the attached exhibits shall be deemed valid or of any force or effect whatsoever, unless mutually agreed upon in writing by the undersigned parties. 19. SEVERABILITY: If any term or condition of this Agreement shall be held to be invalid, illegal, or unenforceable, this Agreement shall be construed and enforced without such a provision, to the extent this Agreement is then capable of execution within the original intent of the parties. 20. NO THIRD PARTY BENEFICIARY: It is expressly understood and agreed that enforcement of the terms and conditions of this Agreement, and all rights of action related to such enforcement, shall be strictly reserved to the undersigned parties, and nothing contained in this Agreement shall give or allow any claim or right of action whatsoever by any other person not included in this Agreement. It is the express intention of the undersigned parties, that any third parties receiving services or benefits under this Agreement shall be deemed an incidental beneficiary only. 21. GOVERNMENTAL IMMUNITY. No term or condition of this contract shall be construed or interpreted as a waiver, express or implied, of any of the immunities, rights, benefits, protections or other provisions, of the Colorado Governmental Immunity Act §§24-10-101 et seq., as applicable now or hereafter amended. 22. GOVERNING LAW AND VENUE. This Agreement shall be governed by the laws of the State of Colorado, and venue shall lie within Weld County, Colorado. 23. BUDGET CONSTRAINTS. Nothing in this Agreement shall be construed to require the Weld County Board of County Commissioners to provide funding for any purpose under this Agreement that has not previously been budgeted. IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate originals on the dates shown below our respective signatures. Lessee: BOARD OF COUNTY COMMISSIONERS OF WELD COUNTY By: William Garcia, Chair SEP 0 42013 Lessor: SUN MICROWAVE INC. d/b/a SUN WIRELESS By: Name: Title: Vice R/1t/bi KEENESBURG SCHOOL DISTRICT RE3J By: Ma" Cie-(' P 1' Name: lr`sai A Cfu.rl< Title:,) frt OW or JitiV/te ; /: (91/9/ SKAJA DANIELS LISTER PERMITO August 14, 2013 Bob Choate Assistant Weld County Attorney 1150 "O" Street; P.O. Box 758 Greeley, Colorado 80632 Robert M. Daniels, Esq. 960 Canterbury Place, Suite 110 Escondido, CA 92025 760.781.3464 Tel 1760.755.1318 Fax robert@sdlplaw.com Re: Lease Agreement for Radio Tower Located at 4977 WCR 59, Keenesburg, Colorado 80643 Dear Mr. Choate, I hope this letter finds you well. Enclosed, please find the above referenced lease agreement signed by Albert Pfeltz on behalf of Sun Microwave, Inc. dba Sun Wireless. Should you have any questions, do not hesitate to call. Thank you. Best Personal Regards, Elise Crammer Paralegal to Robert M. Daniels, Esq. Enc. www.sdlplaw.com SKAJA DANIELS LISTER PERMITO LAW April 24, 2013 VIA CERTIFIED MAIL Ed Meier, Director of Technology Keenesburg School District RE3J 99 West Broadway Keenesburg, CO 80643 Board of County Commissioners of Weld County do: Bruce Barker, Esq. Office of the County Attorney P.O. Box 758 Greeley, CO 80632 bbarker(r�co.weld.co.us Re: Lease Agreement for Radio Tower Located at 49771NCR 59, Keenesburg, Colorado 80643 Robert M. Daniels, Esq. 960 Canterbury Place, Suite 110 Escondido, CA 92025 760.781.3464 Tel 760.755.1318 Fax robert@sdlplaw.com Dear Messrs. Schaal and Barker, I represent Sun Microwave, Inc. dba Sun Wireless. Sun has a service contract with Keenesburg School District RE3J in which Sun provides a wireless wide -area network at various locations throughout the District. A copy of the contract, entitled Master Service Agreement and dated January 20, 2010, is enclosed for your reference. As part of its contract with the District, Sun has installed various equipment, facilities, and systems, including radio towers, on the District's property. However, the contract .. ^ _ _ , o ,t ♦h. .ment for the district As did ?1U! S�:uSaulhl l u?i vV.: fci Silii. u. icuvicf Lnu d it;;r�.o� .:. ; ._ _ -1- F...v. _ for . you can see, those items remain my client's personal property. On June 16, 2012, the District and the County entered into a separate agreement that allowed for the County to install "Communications Equipment" on one of Sun's radio towers located at 4977 WCR 59, Keenesburg, Colorado 80643. A copy of this contract, entitled, Communications Tower and Tower Site Lease Agreement, is enclosed for your reference. This lease agreement inaccurately states, "Lessor [District] is the current owner of a certain communications tower and building ("the Tower") located on certain real property located at 4977 WCR 59, Keenesburg, Colorado 80643." Since the District was not the owner of the Tower, it lacked the authority to www.sdlplaw.com Page 1 lease it to the County. As it stands, the County has installed "Communications Equipment" on the Tower without the owner's permission. My client values its relationship with the District and hopes to continue providing services for many years to come. Furthermore, they have no interest in interfering with any cooperative agreement between the District and the County. However, there are a few items which must be addressed in the near future. First, because the Tower now houses "Communications Equipment" (which to the best of our knowledge includes items of public safety), the Tower must be recertified to meet FCC standards by a structural engineer licensed in the state of Colorado. My client estimates the cost of this to be $2,500, but if the County has a licensed structural engineer on staff, there may be no cost at all. Either way, the District and/or County need to have the Tower recertified or reimburse my client for the cost to do so. Furthermore, any time that additional equipment is added to the b l uc ure, a new certification will be required. Second, my client would like to establish a contractual relationship with the County on the same substantive terms as the Tower Site Lease Agreement. This can be done by drafting a new agreement (with substantially the same terms) and terminating the existing Tower Site Lease Agreement, or by simply having the District assign its lease agreement to my Client (but still provide for payments to the District for electrical utilities). We welcome your thoughts on how to approach such an agreement. Third, my client would like to be reimbursed its reasonable attorney fees arising from this issue. We believe the fees will be nominal (i.e., less than $2,000), but nevertheless, my client should not have the bear them. To resolve these three concerns, I propose we set up a conference call to discuss this further and determine how to address each of the three concerns identified above. Thank you, in advance, for your attention to this matter. I look forward to speaking with both of you. Best Personal Regards, Robert M. Daniels, Esq. Enc. CC: Sun Wireless, w/ enclosures Bob Choate, w/ enclosures (via email only: bchoate(@.co.weld.co.us) Page 2 Master Service Agreement Contract Number .0701.0207 This Master Service Agreement is made and° entered into of this 7th day of February, 2007, between Sun Microwave, Inc. dba Sun Wireless, an California Corporation ("Sun") with its principal place of business located at 13868 Little. Creek Lane, Valley Center, CA 92082 and a Keenesbura School District RE3:1 ("District") with its principalfacility located at 99 West Broadway, Keenesburr, CO 80643. 1. The parties anticipate that the District may, in the District's sole discretion, issue. a Service Order describing the specific services which the. District desires to purchase from Sun and which sets forth the paces, duration and other details. The initial Service Order is attached hereto as Exhibit A. One. or more Service orders may be subject to the terms and conditions of this Master Service Agreement and all Service Orders incorporated the terms set forth herein for the duration of the Service Order. If a Service Order is accepted in writing by an authorized representative of Sun, it shall supersede any and all prior agreements excluding this Master Service Agreement or understandings with respect to the service described therein and shall comprise the full and final agreement of the Parties. No term or condition hereof shall be modified except by written agreement of both Parties. As used in this document, the word "Terri" shall mean the duration of the Service Order and all Service Orders shall incor porate the terms and conditions of this Master Service Agreement. The word "Agreement" shall apply to all promises, terms and conditions of the .Parties, whether contained in the Master Service Agreement or a Service Order. 2. The Term of this Agreement shall Was set forth in the Service Order and shall extend thereafter until terminated by either Party upon no less than 90 days' prior written notice: However, Sun may terminate this Agreement or suspend service hereunder at any timeupon: a) any failure of the District to pay any undisputed amount(s) as provided in this Agreement, b) any breach by the District of any material provision of this Agreement continuing for thirty (30) days after receipt of notice thereof, c) any insolvency, bankruptcy, assignment for the benefit of Creditors, appointment of a trustee or receiver or -similar event with respect to the District, :or d) any governmental prohibition or required alteration of services to be provided hereunder or any violation of an applicable law, rule or regulation. Any termination shall not relieve the District of its obligation to pay any charges incurred hereunder prior to such termination. The Parties' rights and obligations, which by their nature, would extend beyond the termination, cancellation or expiration of this Agreement; shall survive such termination, Cancellation or expiration. The District may terminate the Agreement or cease to accept services hereunder at any time upon: a) a material failure of Sun to provide services thatit is contracted to provide, b) any breach by Sun of any material provision of this Agreement continuing for thirty (30) days after receipt of notice thereof, .c) any insolvency, .bankruptcy, assignment, appointment of a trustee or receiver or similar event with respect to Sun; or d any P } governmental prohibition or required .aitgretian Of services to be provided hereunder or any violation of any applicable law, rule or regulation. Such termination shall relieve the District of its obligations to pay any charges for services not incurred, as well as termination fees, if any. :3. The District isresponsible for all Recurring and Non -Recurring Charges from and after the later of a) the Date of Acceptance or b) the District's Desired Due Date, as that date may be extended from time to time by mutual agreement of the Parties. For purposes of this Agreement, the Date of Acceptance is the earlier of 1) the date the District signs a Quality of Service Checklist or 2) two business days after Sun establishes a connection in which Sun provided service is functioning properly. In rio event shall the Date of Acceptance be prior to the mutually agreed upon service delivery date established by the District and Sun. Paragraph 6 below applies to all connectivity problems: Recurring Charges will be prorated for the first and last months of the Agreement if service is not provided for a complete Month. Probation of monthly charge will be based on the number of days connection was. ;available divided by the total clays in the month. 4. During the Term, the District shall pay Sun for services as set forth in the Service Order. Sun.: shall not increase pricing during the initial term; but thereafter, Sun may increase pricing upon ninety (90) days' written notice. Normal service charges shall be paid within thirty (30) days after the date of the invoice and Sun reserves the right to charge interest on all delinquent payments at an annualed rate of two (2) percentage points above the prime rate announced by the Wall Street Journal from tanieto.time. 5. Sun's bill shall separately state any excise, cares, use or other taxes applicable to Sun's provision of service or equipment to the District and all such taxes (however designated) shall be paid by the District in addition to any other amount owing.. Sun will not collect any otherwise applicable tax if the District provides Sun with a valid exemption certificate. 6. At the District's request, Sun will respond to the District's premise and attempt to resolve all problems of connectivity. If itis determined that all facilities; systems and equipment furnished by Sun were functioning property and that the connectivity problem arose from some other cause, Sun will recover labor and Material costs for services actually performed at the following rates, which shall be the usual and customary rates for sirnilarservices provided by Sun to all Districts:in the:sarne locality. Labor (4 hour minimum charge) 7 am. to :7 p.m. Week days/$120 00 per hour per Technician All other. times: $200 per hour per Technician Materials: Cost try Sun x 1.15 Sun reserves the right to modify the above rates upon ninety (90) days' advanced written notice to the District: 7. Sun may substitute, change or rearrange any equipment, facility or system used in providing services that does not alter the technical parameters of theservices provided hereunder. 8. The District shall not cause or allow any facility or equipment of Sun to be rearranged, moved, removed, disconnected, altered or repaired without Sun's -.prior written consent. The District shall not create or allow any liens or other encumbrances to be placed on any Sun equipment, facility or system arising from any act, transaction or circumstances relating' to the District. If the District elects to relocate or otherwise change the place of services after commencernent of the installation facilities," the District shalt pay an additional installation charge for both the original and new locations. 9. Sun will grant a credit allowance for service interruption calculated and credited in 15 -minute increments. A service interruption will be deemed to have :occurred only it service becomes unusable by the District as a result°of failure at Sun's facility; equipment or personnel used to provide the service in uestion and Only where the interruption is not a result of: a) the negligence or acts of the District or its agents, b) the failure or Malfunction of non -Sun equipment or systems not provided for by Sun, c) circumstances or causes .beyond the control of Sun, or d) a service interruption caused by previously announced scheduled service maintenance, alteration or implementation, Such credit shall; be granted only if a) the District allows. Sun full and free access to the District's premises tomake appropriate repairs, maintenance, testing, etc. and b) the District does not unreasonably continue to use the service on an impaired basis. The foregoing states the District's sole remedy for service interruption under the Agreement and in no event s all Sun be liable for harm tobusiness, lost revenues, lost savings or lost profits suft'ered by the District, regardless of the form of action, whether in Contract, warranty, strict liability, or loss, including without limitation negligence of any tdnd, whether active'or passive. 10, Sun's entire liability for any claim, lose, damage or expense from anycause whatsoever shall in no event exceed sums actually:paid to Sun by the District; for the specific service giiving`rise to the claim. Notwithstanding the foregoing,. Sun shall not be liable for any indirect, incidental, consequential, punitive or special damages: No. action or proceeding against Sun shall be commenced more than one year after service is rendered. 11. There are no warranties, :representations or agreements, .expressed or implied either in fact or by operation of law, statutory or otherwise, including warranties or merchantability or fitness for a particular purpose, except those expressly set forth herein,. 12. In the event that the District cancels Or terminates service at any time during the initial term of this Agreement or any renewal thereof for cause Or a service interruption -(as defined in Paragraph 9 above and Paragraph 13 below) then the District, is not liable for liquidated damages or additional charges. However, if the District cancels or terminates service at any time during the initial term of this Agreement or any renewal thereof without cause, then the District agrees to pay Sun liquidated damages (which shall not be deemed a penalty) which shall become due and owing as of the effective date of cancellation or termination and shall be payable in accordance with Paragraph 3, above: a) all Nori-Recurring charges specified in the Service Order andreasonably expended by Sun to establish service to the District plus b) any :disconnection, early cancellation or termination charges reasonably incurred by Sun on behalf of the District with the District's consent, plus e) all Recurring Charges specified in the Service Order for the balance of the then current Term of this Agreement. The District shall have the option te transfer: services by paying a transfer fee equal to Sun's cost incurred while transferring the service thus avoiding the liquidated damages referenced above. 13. For purposes of -cancellation or termination of the Agreement for a -Sun service interruption such service interruption must equal 24 hours of cumulativeservice outage during any continuous 12 -month period or a single outage of 4 hours .or more. However, an abnormal act of God or unforeseen accident outside the control of Sun that causes an outage will riot be considered an outage for purposes of this Agreement. 14. The District shall allow Sun reasonable access.and right -Of -way to the District's premises providing g the District is given reasonable notice, such being no less than twenty-four (24) hours or upon mutual consent on a case -by -case basis for the provision and maintenance of services, equipment facilities and systems hereunder: The District shall furnish Sun, at no charge, such equipment space and electrical power as is reasonably determined by Sun to be required :and suitable to render services hereunder. 15.. The District shall be liable for any damages to Sun equipment, facility and system which is caused by; a) negligence or willful acts or omissions of the District :or b) malfunction or failure of any equipment or facility provided by the District or its agents, employees or suppliers. The District is responsible for identifying, monitoring, removing and disposing of any hazardous materials (e.g. friable asbestos) prior to any construction or installation work being performed by Sun and the District shall indemnify, defend and hold Sun harmless from any claim, suit, loss, cost or expense, including fines, abatement, charges,, legal fees and court costs incurred in connection with hazardous materials on the District's :premises: Sun shall be liable for any damages to the District's equipment, facility and system, which are caused by: a) negligent or willful acts or omissions of Sun or b) malfunction or failure of any equipment or facility provided by Sun or its agents, employees or suppliers: Sure shall Indemnify, defend and hold the District harmless from any claim; suit, loss, coast or expense, including fines; abatements, charges, legal fees and court costs incurred in connection with Sun :services provided to the District. 16, Neither Party may assign this Agreement without the written consent of the Other Party (which consent shall not be unreasonably withheld or unduly delayed); except that either Party may assign its rights and obligations hereunder a) to any subsidiary, parent company or affiliate of either Party, b) pursuant to any sale or transfer of substantially all the business of either Patty or c financing, merger or reorganization of either Party: ) pursuant to any 17. Ifany provision of this. Agreement is held by a court to be invalid;. %/OW or unenforceable, the remainder of this Agreement shall nevertheless remain unimpaired and in effect $ n 18. Nolicense, joint venture or partnership, express or implied, is :granted by Sun pursuant to this Agreement. 19, Each Party agrees to maintain in strict_confidence all plans; designs, drawings, trade secrets and other proprietary information of the other Party that is disclosed pursuant to this Agreement. No obligation of confidentiality shall apply to disclosed information which the recipient a) already possessed without obligation of confidentiality; b) develops independently, or c) rightfully receives without obligation of confidentiality from a third party: 20. Neither Party shall be liable for any delay or failure in performance of any part of .this. Agreement to the extent such delay or failure is caused by fire, flood, explosion, .accident, war, strike, embargo, government requirement, civil or military conflict, Act of God, inability to secure materials, labor or transportation, acts of omissions of such oommon carrier or warehouseman, .or:any other causes beyond the reasonable control. Any such delay or failure shall suspend the Agreement until Force Majeure ceases and the Term shall be extended by the length of the suspension, 21. This Agreement shall be governed by the laws of the State of calffornia ,without. regard to its 'choice of : law provisions. In ,any action between the Parties to enforce any material provision of this Agreement, the prevailing .Pasty shall be entitled to recover its legal fees and court costs from the non -prevailing Party in :addition to whatever other relief a court may award. 22: Each person executing this Agreement on behalf: Of Sun orthe:District represents and warrants that s/he has been fully empowered to do so and that all necessary corporate actions (if any) required for the execution of this Agreement have been taken. Agreed To By: Sun Microwave, Inc. keenesburg School District RE3J dba Sun Wireless Signature. Name: Albert R. Pfeltz Title: Vice President Date:.February 7, .20©7 ignature: Name: Title: Date: SUN RELESS 13868 Little Creek, Lane, Valley Center; CA 92082-5810 • Phone 760/749-5770 • area 760/749-5790 • License#820709 Customer: Item Part 4' 2 3 4 5 6 7 8 Notes: 1. Microwave Metropolitan Area Network Upgrade P eenesbur g School. District.RE3=J 95 West Broadway Keenesburg, CO 80643-0269 Qty 400 Mbps Connection 1 400 Mbps Connection 1 400 Mbps Connection 1 400 Wins Connection 1 400 Mbps Connection 1 400 Mbps Connection 1 400 Mbps Connection 1 400 Mbps Connection Date: January 20, 2010 Number: 10014/20O Description From District Office to Weld Central From District.Qfffiee to:Hoff Froth 1loff to Weld Central From Hoff to Hudson. From Lochbuie to Weld Central From Hudson to Weld Central. From 1. ochbuie to Hudson From Weld Central to Cardinal (Charter) 5 -YEAR LEASE (Monthly, In Arrears) Price (I) $3,349:00 3,349.00 3,349.00 3,349:00 3,349;00 3,349.00 3;349.00 3.349:00 S26,792.00 Delivery and installation: cancommence within two (2) to four (4) weeks following the. receipt 8 -Rate 'funding notification and. a: Notice to Proceed fromthe District. 13y issuance of a Purchase Order to Sun Wireless, Customer acknowledges that :Sun .is: authorized to perform all the specified installation tasks on the sites. At the end of the 5,year..lease, any link may be extended for another year at the then existing rate. The Customer May exercise up to five extensions. 4. Any liink.can have the bandwidth increased by Mbps 100 tints for an additional $1,674.50 per month. The term will: be. coterminous with the existing contract period. 5. Customer may terminate this Agreement if the Customer fails to appropriate funds in the budget specifically for the Wireless Wide Area :Network. Termination for such budgetary reasons will beeffected by giving written notice of intent to terminate not later than thirty (30) days following adoption of a final budget by the Board of Education. Or other governing body for the fiscal year. This Agreementwill terminate ninety (90).days after such notice is given, unless otherwise agreed upon in writing by the parties: Customer represents that it has funds available and properly appropriated to meet its fiscal obligations hereunder until the end of the current fiscal year. Customer further o represents that _ 'it has never terminated, or threatened to terminate,. an agreement for failure of its governing body to appropriate funds sufficient to perform its obligations hereunder for :any fiscal year and that it has no present intention to do so with respect to this Agreement. 6. in the event of delays, greater than eight { 0} hours, notcaused by any action of Sun, the Customer will be invoiced S1,000 per day for each day that ,Sun Wireless personnel are on -site and ready to work and are not released by the:Citsromcr. The Customer may choose: to release the crew upon notice of such delay: In that event, Sun will invoice the Customer $750 to remobilize crew_ There _ is no liabili. Mljeure..ty in the event of l orce 7. This quotation is valid for one hundred eighty (180) days from the above referenced date unless extended in writing by Sun Wireless. Sun Microwave, Inc. Accepted by: dba Sun Wireless sburg School District RE3J SPIN NUMBER 143024442 1/20/2010 Hello