THIS PULSE PROPERTY ACCESS AGREEMENT (the “Agreement”) is made and entered into this {day} day of {month}, 20{year} by and between the City of Loveland, Colorado a municipal corporation acting on behalf of its Electric and Communications Enterprise ("Pulse"), whose address is 500 East 3rd Street, Loveland, CO 80537 and {owner7} ("Owner") who owns and/or has control over certain real estate and improvements thereon located at {physicalProperty} (the "Property").

Grant of Access. Owner hereby grants to Pulse and its agents a non-exclusive license to construct, install, replace, maintain, repair, operate, and remove, certain wires, cables, conduit, lock-boxes, building entrance facilities, and other appurtenant fixtures and equipment (the “Facilities”), into, over, under, across and along the Property, as may be necessary or useful for distributing various broadband communications services, including, but not limited to, internet, multichannel video, voice, Wi-Fi, and other communications services (collectively, “Services”) to tenants, residents, property owners, and/or other occupants of the Property (collectively “Occupants”). Owner shall provide Pulse access to the Property during normal business hours (and at all times during emergencies) for purposes of this Agreement. Pulse shall be required to obtain consent from any Occupant prior to entering or installing any Facilities in such Occupant’s premises.

Installation Costs. Pulse shall bear all Facilities installation costs unless Owner terminates this Agreement before Pulse recoups the cost of installation, which the Owner and Pulse agree is reflected in “Estimated Install Cost” listed in the Pulse Facility Installation Acknowledgement. Costs of installing equipment to service individual Occupants shall be governed by Pulse’s Terms and Conditions—a contract between the Occupant and Pulse—and shall not be governed by this Agreement.

Plans and Specifications. The location of all Facilities and other construction shall be subject to the prior approval of Owner, which approval shall not be unreasonably withheld. Prior to the commencement of any work at the Property, Pulse shall prepare and deliver to Owner plans and specifications of the Facilities. No work shall commence until Owner has approved the plans and specifications, which approval will not be unreasonably withheld, conditioned, or delayed. Upon approval, such construction shall be performed in a manner consistent with generally accepted construction standards.

Pulse Responsibilities. Pulse shall comply with all applicable law. Pulse shall keep the Facilities in good order and repair, and shall promptly repair all damage to the Property caused by Pulse or its agents, other than ordinary wear and tear. The Facilities shall belong to Pulse, shall be there at the sole risk of Pulse and Owner shall not be liable for damage thereto or loss thereof, except in the event of Owner’s negligence or willful misconduct. Pulse accepts the condition of the Property in its “as is” condition and Pulse waives any warranties of condition, habitability, use, fitness for a particular purpose or otherwise.

Term. Owner’s consent is effective on the date of its execution of this Agreement and will continue for so long as Pulse provides Services to Occupants of the Property. However, regardless whether Occupants are receiving Pulse Services, this Agreement shall remain in effect for no less than two (2) years from the effective date. At the expiration of the term of this Agreement, Pulse will remove its Facilities from the Property within 180 days from such expiration unless Owner provides notice to Pulse within 90 days of such expiration, in accordance with 47 CFR § 76.804 (to the extent such provision is applicable to the Facilities), that Pulse’s access will terminate before the 180-day window. If Owner provides such notice within 90 days of expiration, Pulse will have 30 days from Owner’s notice to remove the Facilities.

Agreement Runs with Land; Assignment and Delegation. Owner covenants that the rights and obligations under this Agreement run with the land. That is, in the event Owner’s rights in the Property are transferred to another entity, this Agreement shall remain in effect and bind such successor entity. Neither party shall assign or delegate their rights or obligations under this Agreement without written consent from the other party. However, no successor entity shall be released from their obligations under this Agreement due to Owner’s failure to obtain Pulse’s written consent under this Section.

Notice. All notices, demands, requests or other communications given under this Agreement shall be in writing and be given by personal delivery, certified mail, return receipt requested, or nationally recognized overnight courier service to the address set forth below or as may subsequently in writing be requested.

If to City:    City of Loveland

                  Pulse Offices

                  500 East 3rd Street

                  Loveland, CO 80537

 

 

Independent Contractors. Any action the parties take under this Agreement is performed as an independent contractor, and not as an agent or employee of the other party. No official or employee of Pulse shall supervise the Owner nor will the Owner exercise supervision over any employee or official of Pulse. Neither party shall make representations to the contrary. Neither party has the right to Worker's Compensation benefits from the other party or its insurance carriers or funds. Each party shall pay any federal and state income tax on money earned under this Agreement.

Miscellaneous. This Agreement contains the entire agreement of the parties relating to the subject matter hereof and, except as provided herein, may not be modified or amended except by written agreement of the parties. Each party represents to the other that the person signing on its behalf has the legal right and authority to execute, enter into and bind such party to the commitments and obligations set forth herein. Neither party shall be liable to the other party or others for any failure to perform its obligations under this Agreement where such failure was caused by an act of God, accident, fire, lockout, strike or other labor dispute, riot or civil commotion, act of government or other cause of similar or different nature beyond the affected party’s reasonable control, including, but not limited to, any problem associated with the construction, use and/or operation of the Facilities. To the extent this Contract constitutes a multiple fiscal year debt or financial obligation of the City, it shall be subject to annual appropriation pursuant to the City of Loveland Municipal Charter Section 11-6 and Article X, Section 20 of the Colorado Constitution. The City shall have no obligation to continue this Contract in any fiscal year in which no such appropriation is made. No term or condition of this Agreement shall be construed or interpreted as a waiver, express or implied, of any of the notices, requirements, immunities, rights, benefits, protections, limitations of liability, and other provisions of the Colorado Governmental Immunity Act, C.R.S. § 24-10-101 et seq. and under any other applicable law. In the event a court of competent jurisdiction holds any provision of this Agreement invalid or unenforceable, such holding shall not invalidate or render unenforceable any other provision of this Agreement. Neither party shall assign this Agreement without the other party’s prior written consent. This Agreement shall be governed by the laws of the State of Colorado, and venue shall be in the County of Larimer, State of Colorado.

 

IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives as of the date first written above.