HomeMy WebLinkAboutFatbeam, LLC. Conduit Sharing CONDUIT LICENSE AGREEMENT
This CONDUIT LICENSE AGREEMENT ("Agreement") is entered into between City of Meridian, an Idaho
Municipal Corporation("City") and Fatbeam, LLC, an Idaho Limited Liability Company("Fatbeam"). This Agreement as
of the 10th day of March, 2022 (the "Effective Date"). Each of the City and Fatbeam are individually referred herein as a
"E�"and collectively as the"Parties."
RECITALS
WHEREAS,the City has a conduit system approximately 2,284 feet in length, as set forth in Exhibit A to this
Agreement(the "City Route");
WHEREAS,Fatbeam has a conduit system approximately 2,777 feet in length, as also set forth in Exhibit A to
this Agreement(the "Fatbeam Route") (together with the City Route, each a"Route"and collectively the"Routes");
WHEREAS,the City and Fatbeam believe that the interests of the public and the Parties will be well served by
City and Fatbeam respectively licensing to the other party,the access and use of each respective Route in accordance with
the terms and conditions contained herein and that the value of the exchanged fiber in City's Route is roughly equal to the
value of the exchanged fiber in Fatbeam's Route.
NOW THEREFORE, for and in consideration of the mutual covenants and agreements herein contained and for
other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged,the parties hereby
agree as follows:
1. EXCHANGE OF CONDUIT.
1.1 As of the Effective Date of this Agreement,and subject to Section 1.2 below, Subject to the terms set forth
herein: (i)City hereby irrevocably(except in the case of uncured breach of this license)licenses to Fatbeam,and Fatbeam's
employees and authorized agents,to: (A) access, occupy, and right to use,the City Route, for the purposes set forth in this
Agreement.; and(B)install fiber, and(ii)Fatbeam hereby irrevocably(except in the case of uncured breach of this license)
licenses to the City, and City's employees and authorized agents, to: (C) access, occupy, and right to use, right to use,
Fatbeam Route; and(B) install fiber. Exhibit A is attached hereto and incorporated by reference.
1.2 Prior to commencement of the respective license set forth in Section 1.1, and as a precondition to each
Parry's respective obligations to exchange as contemplated hereunder, each Party shall, no later than thirty(30) days from
notice received from the other Party of proposed delivery of the respective Routes, perform an inspection of the Route to
verify that its "as-is" condition is acceptable to the respective Party. Each Party shall review the results of the testing and
provide written notice accepting (or rejecting by specifying the defect or failure in the testing which is the basis for such
rejection)the other party's Route.If a Party fails to provide notification of its acceptance or rejection of the final test results
with respect to the other Party's Route within thirty(30)days after the receipt of the notice of proposed delivery,the recipient
Party shall be deemed to have accepted the other Party's Route. The date of such notice of acceptance (or deemed
acceptance)of the Route shall be the"Acceptance Date"for the Fatbeam Conduit. In the event of any good faith rejection,
the granting Party shall take such action reasonably necessary and as expeditiously as practicable to correct or cure such
defect or failure and the process of testing,provide notice to the other Party and acceptance shall be repeated with respect
to such rejected Route.
1.3 Subject to the provisions of this Agreement, each Party shall have responsibility for determining any
network and service configurations or designs,routing configurations,rearrangement or consolidation of channels or circu4s
and all related function with regard to the use of that Party's Route.
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2. CONSIDERATION. The Parties mutually acknowledge and agree that the mutual license and exchange of the
respective Routes is fair and valuable exchange of consideration.
3. LICENSE TERM.The initial term of the license set forth in Section 1 shall commence upon the Acceptance
Date, and shall continue for a period of twenty(20)years ("Initial License Term."). Upon the expiration of the Initial
License Term,the term of the license shall continue for two(2) successive five(5)year periods respectively(each and
collectively,the"Renewal License Term"),unless otherwise terminated by either Parry upon written notice not less than
ninety(90) days prior to the termination of the Initial License Term or a Renewal License Term. Both the Initial License
Term and the Renewal License Term are collectively referred to herein as the"License Term."
4. FIBER. The Parties acknowledge and agree that: (a)Each Parry may elect, in its discretion,to install fiber(s)into
the other party's Route which it is licensing under this Agreement; and(b)upon the installation of fiber(s), all ownership
rights shall vest in the install Party. The non-installing Party hereby assigns all right,title and interest in and to the
fiber(s),that the non-installing Parry may now or hereafter have in and to the fiber(s).
5. WARRANTY
5.1 With respect to the respective Routes, each Party represents and warrants to the other Party that:
(a) the Routes have been constructed in accordance with industry standards in effect at the time of construction;
(b) During the License Term,the conduit in the Routes, and the construction thereof, shall materially conform
with the Specifications. If either Party discovers any defect in construction within twelve (12) months following the
Effective Date,the other Party which licensed the defective Route shall,within fifteen(15)days of receiving written notice
of such defect, correct any such defect within thirty(30)days thereafter at licensing Party's expense or provide notice of its
dispute as to any defects. In the event the correcting Party is unable to correct any such defect with that thirty (30) day
period,the other Party may elect to provide notice to terminate this Agreement;
(c) it is the true and lawful owner,and it currently holds all rights,licenses,permits,authorizations,franchises,
rights of way, easements and any other necessary governmental approvals;
(d) During the License Term, each Party shall obtain and maintain in full force and effect all rights, licenses,
permits, authorizations, franchises,rights-of-way, easements, leases, access rights and other rights, consents and approvals
(collectively, the "Required Rights") that are necessary in order to permit the other Party to construct, install and keep
installed,replace,repair and maintain the respective Route;
(e) No Hazardous Materials(as defined below)shall be created,stored,used,disposed of,brought to or handled
at any time on or near the Routes, except Hazardous Materials contained in or used in connection with construction
equipment necessary for the operation of such equipment or vehicle being used for work which is authorized this Agreement.
For purposes of this Agreement, "Hazardous Materials" means material that, because of its quantity, concentration or
physical or chemical characteristics, is at any time now or hereafter deemed by any federal, state or local governmental
authority to pose a present or potential hazard to public health,welfare or the environment; and
(f) Each Party agrees to transfer and assign to the other Parry any warranty it may have received from the
manufacturer, or supplier,to the extent that such warranty is assignable.
5.2 EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY,
EXPRESS OR IMPLIED, WITH RESPECT TO THE RESPECTIVE ROUTES, INCLUDING THE CONDUIT, HAND
HOLES OR OTHER ASSOCIATED MATERIALS,INCLUDING ANY WARRANTY OF MERCHANTABILITY AND
FITNESS FOR PARTICULAR PURPOSE, AND ALL SUCH WARRANTIES ARE EXPRESSLY DISCLAIMED. IN
ADDITION, EXCEPT AS SET FORTH IN THIS AGREEMENT, CITY MAKES NO WARRANTIES OR
REPRESENTATIONS OF ANY TYPE CONCERNING THE INTEGRITY OR PERFORMANCE OF THE MATERIALS
FURNISHED BY FATBEAM.
6. LIMITATION OF LIABILITY
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IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT,
CONSEQUENTIAL, SPECIAL,INCIDENTAL,RELIANCE,OR PUNITIVE DAMAGES OF ANY KIND OR NATURE
WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS,LOST REVENUES,LOST SAVINGS,
OR HARM TO BUSINESS.EACH PARTY HEREBY RELEASES THE OTHER PARTY,ITS SUBSIDIARIES AND
AFFILIATES,AND THEIR RESPECTIVE OFFICERS,DIRECTORS,MANAGERS,EMPLOYEES,AND AGENTS,
FROM ANY SUCH CLAIM.
7. GENERAL
7.1 Default and Termination. In the event of a default,the non-defaulting party must provide written notice of
such default including reasonable detail, and an opportunity to cure the default within thirty(30)days after receipt of such
notice.Notwithstanding,when a default cannot reasonably be cured within such thirty (30) day period, the time for curing
such default shall be extended for a period no longer than sixty(60) days from the date of the receipt of the default notice
if the Party proceeds promptly to cure the default with due diligence.
7.2 Notices. All notices and other communications required or permitted under this Agreement shall be in
writing and shall be given by United States first class mail,postage prepaid,registered or certified,return receipt requested,
or by hand delivery(including by means of a professional messenger service)addressed as follows:
To Fatbeam as follows:
Fatbeam,LLC
2065 W. Riverstone Drive, Suite 105
Coeur d'Alene, ID 83814
Attn: Chief Operating Officer
To City as follows:
David Tiede, CIO
Meridian City Hall
33 E. Broadway Ave,
Meridian,Idaho 83642
With a Copy to Meridian City Clerk
Any such notice or other communication shall be deemed to be effective when actually received or refused. Either
party may by similar notice given change the address to which future notices or other communications shall be sent.
7.3 Assignment. Neither party shall assign or otherwise transfer, by operation of law or otherwise, any of its
rights or obligations under this Agreement without the express written consent of the other party, which consent shall not
be unreasonably withheld or delayed.Notwithstanding the foregoing, either party may assign or otherwise transfer without
the express written consent of the other party in connection with: (i) any disposition of all or substantially all of the assets
of either party; (ii) any merger, consolidation or reorganization of either party; (iii) any assignment, in whole or in part, to
any subsidiary, parent company or other affiliate of either party; (iv) any collateral assignment, security interest or pledge
of this Agreement to a lender; or (v) any lease, sublease, sub easement, sublicense, indefeasible right of use, or sale or
transfer of, conduit, fiber or similar facilities by either party within its telecommunications system to any third-party users
of such facilities.
7.4 Costs. Each party shall bear all of its own attorney's fees and other expenses related to this Agreement.
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7.5 Governing Law.This Agreement shall be governed by and construed solely in accordance with the laws of
the State of Idaho with jurisdiction in the Fourth Judicial District,Ada County Court.
7.6 Force Majeure.Neither Party shall be liable to the other for any failure of performance under this Agreement
due to causes beyond its control,including,but not limited to: acts of God,fire,flood or other catastrophes,adverse weather
conditions, material or facility shortages or unavailability not resulting from such party's failure to timely place orders
therefore, lack of transportation, the imposition of any governmental codes, ordinances, laws, rules, regulations or
restrictions, national emergencies, insurrections, terrorism, riots, wars, or strikes, lockouts, work stoppages or other labor
difficulties.
7.7 Complete Agreement. This Agreement and any other written agreement expressly referenced herein
represent the entire understanding between Fatbeam and City with respect to the installation and sale of the Fatbeam Conduit
and Ancillary Facilities covered hereunder and incorporate all prior and contemporaneous understandings,whether written
or oral,between the parties.This Agreement supersedes all other prior oral or written agreements concerning the installation
and sale of the Fatbeam Conduit and Ancillary Facilities covered hereunder. This Agreement may not be rescinded,
amended, or otherwise modified except by a writing executed by the authorized representatives of both parties.
7.8 No Personal Liability. Each action or claim against any party arising under or relating to this Agreement
shall be made only against such party as a corporation, and any liability relating thereto shall be enforceable only against
the corporate assets of such party.No party shall seek to pierce the corporate veil or otherwise seek to impose any liability
relating to, or arising from,this Agreement against any shareholder, employee, officer, director or agent of the other party.
Each of such persons is an intended beneficiary of the mutual promises set forth in this Section and shall be entitled to
enforce the obligations or provisions of this Section.
[Signature page follows]
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IN b WITNESS WHEREOF,the parties hereto have caused this Agreement to be executed on the day and year first written
above.
Fatbeam,LLC City of Meridian
DocuSigned by;
B 6LSbin, 6t,A�,�.XS
y 1453816E39B84B5_ By.
Printed Name: Jason Koenders Printed Name: Robert E. Simison Title: Mayor
Title: COO&CTO 4-12-2022
Attest:
Chris Johnson,City Clerk
4-12-2022
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EXHIBIT
Routes
Imp
City
i1 f b
' •ute—conduit and junction boxesowns in the subsurface of MeridianRoad between Elm Avenue to Idaho
Avenue
Fatbeam Route—conduit Fatbearn owns in the subsurface of Eagle Road from Fire Station 4 at 3545 N. Locust Grove Rd,
Meridian, Idaho 83642 to roughly 325 feet south of the South Eagle Road/East Victory Road intersection
_, ' t I�IIIIII
.w� •.ti EIB x ml
p,��Qonala Lateral
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DocuSign Envelope D.
DocuSign
Certificate Of Completion
Envelope Id:3391E35929EC4171AD2A512D6F4F7C26 Status:Completed
Subject: Please DocuSign:CITY OF MERIDIAN—CONDUIT LICENSE AGREEMENT—FINAL 04042022.pdf
Source Envelope:
Document Pages:6 Signatures: 1 Envelope Originator:
Certificate Pages: 1 Initials:0 Chariti Zlateff
AutoNav: Enabled 2065 W. Riverstone
Envelopeld Stamping: Enabled Ste. 105
Time Zone: (UTC-08:00)Pacific Time(US&Canada) Coeur d'Alene, ID 83814
chariti.zlateff@fatbeam.com
IP Address: 148.59.195.106
Record Tracking
Status:Original Holder:Chariti Zlateff Location: DocuSign
4/4/2022 5:04:28 PM chariti.zlateff@fatbeam.com
Signer Events Signature Timestamp
Jason Koenders cy: Sent:4/4/2022 5:05:44 PM
jason.koenders@fatbeam.com ED—Si,"ed
aSbin dot bt p c r� Viewed:4/4/2022 5:06:05 PM
T1453816E39B84B5... 4/4/2022 5:0 :10 PM
COO/C O Signed: 6
Fatbeam,LLC
Security Level: Email,Account Authentication Signature Adoption: Pre selected Style
(None) Signed by link sent to jason.koenders@fatbeam.com
Using IP Address: 148.59.195.106
Electronic Record and Signature Disclosure:
Not Offered via DocuSign
In Person Signer Events Signature Timestamp
Editor Delivery Events Status Timestamp
Agent Delivery Events Status Timestamp
Intermediary Delivery Events Status Timestamp
Certified Delivery Events Status Timestamp
Carbon Copy Events Status Timestamp
Witness Events Signature Timestamp
Notary Events Signature Timestamp
Envelope Summary Events Status Timestamps
Envelope Sent Hashed/Encrypted 4/4/2022 5:05:44 PM
Certified Delivered Security Checked 4/4/2022 5:06:05 PM
Signing Complete Security Checked 4/4/2022 5:06:10 PM
Completed Security Checked 4/4/2022 5:06:10 PM
Payment Events Status Timestamps