HomeMy WebLinkAboutC2006-330 - 4/25/2006 - Approved
WI-FI FACILITY LICENSE AGREEMENT
BETWEEN
AEP - TEXAS CENTRAL COMPANY
AND
CITY OF CORPUS CHRISTI
2006-330
04/25/06
M2006-131
AEP - Texas Central Company
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FACILITY LICENSE AGREEMENT
This Facility License Agreement ("Agreement") is made this 1st day of December. 2005,
between AEP Texas Central, a Texas corporation ("Licensor"), and the City of Corpus Christi,
,"Licensee" )
Backqround Information
A. Licensee desires to install certain wireless communications equipment described
on the attached Exhibit A (the "Equipment") upon certain approved distribution facilities owned
by licensor (the "Facilities") in accordance with the terms and conditions of this Agreement and
for the purpose of Licensee engaging in wireless communications services within Licensor's
service territory. For purposes of this Agreement, Wireless Communications Services means
the wireless transmission and receipt of broadband voice, video or data information services,
Including but not limited to. Internet and other IP-enabled services.
B. Licensor is willing to allow Licensee to submit applications for a permit for the
Installation of the Equipment upon the Facilities according to the provisions of this Agreement,
as identified on Exhibit A and submitted to Licensor in writing, as required by Agreement.
Statement of Aqreement
All parties hereto acknowledge the accuracy of the above background information and in
consideration of the terms, provisions covenants and agreements herein set forth, agree as
follows.
FACILITIES LICENSE
Licensor hereby grants a non-exclusive license to Licensee to attach approved
Equipment upon Licensor's pole the Facilities pursuant to the terms and conditions of
this Agreement.
2 TECHNICAL ATTACHMENT SPECIFICATIONS
Licensee desires to operate the Equipment at the frequencies and power levels set forth
In Exhibit A. Upon execution of this Agreement Licensor shall commence a technical
review of the Equipment to determine the compatibility of attaching such Equipment to
certain Facilities. If, during the aforementioned technical review and prior to any
Installation of Equipment, Licensor determines, in its sole discretion, that the Equipment
may be attached to the Facilities, then Licensor shall prepare technical attachment
specifications ("Attachment Specifications") describing the type of Facilities upon which
the Equipment may be attached and the manner in which the Equipment may be
attached. If Licensor determines in its sole discretion that the Equipment is not suitable
for attachment to the Facilities, then this Agreement shall terminate. Licensee shall
reimburse Licensor for all labor and expenses incurred, plus applicable overheads, in
reviewing the suitability of the Equipment and preparing the Attachment Specifications.
3 TERM
The term of this Agreement shall commence as of the date set forth above (the
'Commencement Date") and shall continue for an initial term expiring upon the fifth (5th)
anniversary of the Commencement Date (the "Original Term"). This Agreement shall
automatically renew without notice or agreement by or among the parties being required
for two additional five (5) year terms ("Term Extensions"); unless either party provides a
written notice of termination at least ninety - (90) days prior to the expiration of the Initial
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Term or any applicable Term Extension. "Term" shall mean the Initial Term plus each of
the Term Extensions. Notwithstanding the preceding, the parties recognize that the
continuation of any contract after the close of any fiscal year for the City, which fiscal year
ends on July 31, of each year, shall be subject to budget approval providing for or covering
such contract items an expenditure in said budget. The city does not represent that said
t)udget item will actually be adopted, said domination being within the sole discretion of the
Corpus Christi City Council at the time of the adoption of a City budget. Any future
payments shall be subject to appropriations. Written notification is required to Licensor of
such action rendered by Corpus Christi City Council. Non-payment of annual fees
associated with such Equipment as identified on Exhibit A, shall require Licensor to notify
City of Corpus Chnsti, in writing to remove all said Equipment attached of Licensor' poles,
within ninety.. 90 days.
Licensor shall have the right to terminate Licensee's use of a specific Facility for any of
the following reasons: (i) the Facility is needed by Licensor for its own use; (ii) Licensor
sells the Facility; (iii) Licensor is required by government action to move the Facility; (iv)
Licensor no longer needs the Facility for its own use; or (v) Licensor loses the legal right
to license the Facilities in the manner set forth in this Agreement.
4. CONTACT FEE
Licensee shall pay Licensor in advance the applicable annual contact fee as set forth on
the attached Exhibit A for each Facility licensed hereunder during each year of this
Agreement ("Annual Contact Fee"). Upon each anniversary of the Commencement
Date Licensor shall issue an Invoice for such Annual Contact Fees, along with the
Annual Contact Fees (without proration for partial years) and Application Fees due for
each Facility initially licensed during the past year. The invoice shall be due thirty - (30)
days thereafter
Payments hereunder shall be made within thirty - (30) days from the date of the invoice.
On all amounts not so paid, and shall begin to bear interest at twelve percent 12% per
year or the maximum rate allowed under the laws of the State of Texas, whichever is
less (the "Interest Rate"), thirty.. (30) days after the issuance of the invoice until paid.
The Annual Contact Fee shall be increased by the Consumer Price Index (CPI) upon
each anniversary of the Commencement Date occurring during the Original Term and
each succeeding Term Extensions.
5. FREQUENCY OPERATION
(a) ADDroved Freauencies
Licensee shall operate the Equipment at the frequencies and power levels set
forth in Exhibit A (the "Approved Frequencies"). Licensee may only change the
Approved Frequencies pursuant to Licensor's written consent, which consent
shall not be unreasonably withheld. Any proposed change in frequency or power
that materially increases rf emission exposure levels may be denied by Licensor
in its sole discretion. Licensee shall pay Licensor upon invoicing for any labor
and expenses, Including applicable overheads, incurred by Licensor in reviewing
any requested Approved Frequency changes.
(b) Radio Interference
In the event that Licensor installs any improvement upon a Facility, which
materially interferes with the transmission or reception of Licensee's Equipment,
then Licensee's sole remedy shall be to either remove the Equipment affected or
terminate this Agreement effective as of the date of such interference.
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(c) FCC Licensma
Licensee shall be responsible for obtaining and maintaining appropriate Federal
Communications Commission ("FCC") authorization for the operation of the
Equipment Licensee shall provide Licensor a copy of all such licensing and/or
authorization prior to operating the Equipment, and shall provide Licensor with
copies of any modifications to or terminations of such licensing and/or
authorization within five (5) days of receipt by Licensee.
(d) Interruotion of Communication Eauioment Use
Licensee shall install a mechanism upon the Equipment to permit Licensor to
interrupt use of the Equipment when Licensor is accessing the Facilities.
Licensor shall be permitted to terminate operation of any Equipment upon a
reasonable determination by Licensor that interruption is necessary in order to
service the Facility. Licensor shall further be permitted to rearrange or remove
the Equipment during emergencies provided such removal or rearrangement is
reasonably necessary to restore electric service in the area.
6 INSTAllATION AND MAINTENANCE
Prior to installing Equipment on a new Facility (including attachments to third party
owned facilities which are attached to Licensor owned poles), Licensee shall submit a
Proposal in written format of the attachment, pursuant to the permitting procedures
established by Licensor. Licensee shall not make any attachment of Equipment to
Facilities until licensor approves each such attachment. Licensor shall review such
permit request within forty-five (45) days of receipt of Licensee's application. Licensee
shall also pay Licensor all materials, labor and overheads associated with the review of
Licensee's proposed attachment If Licensor must retrofit any of its facilities in order to
accommodate the Equipment, then any such work shall be undertaken by separate
agreement.
Any work conducted on a Facility shall only be undertaken by the parties hereto or a
party approved by Licensor in advance who is qualified and licensed to perform work on
such Facility (an "Authorized Party"). Installation and maintenance of Licensee's
Communications Equipment shall be performed at Licensee's sole expense. If Licensor
must replace a Facility licensed hereunder, then Licensee shall transfer its Equipment to
the new Facility in the manner directed by Licensor and at Licensee's sole expense.
The Equipment shall be installed in a manner, which does not interfere with the present
or any future use, which Licensor may desire to make of its Facilities. The Equipment
shall be installed and maintained by Licensee in compliance with the National Electrical
Safety Code, any other applicable regulations or codes promulgated by any federal,
state, local or other governmental authority having jurisdiction, the Attachment
Specifications, and any other installation or maintenance requirements established by
Licensor (all such applicable regulation and design requirements shall hereafter be
referred to as the "Design Standards"). Licensee shall identify all Equipment at each
Facility location using a tagging system approved by Licensor that does not interfere
with the operation of the equipment by Licensee
Licensee acknowledges that the Facilities licensed hereunder have energized facilities
Installed upon them and that working in the vicinity of energized facilities poses potential
dangers. At all times during the term of this Agreement and particularly during the time
of any construction, repair, or maintenance of Equipment covered by this Agreement,
Licensee shall consider the electric wires of Licensor to be energized. Licensee shall
warn all of its employees, agents. contractors and subcontractors, or any other parties
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who may be working on behalf of the undersigned, of the potential dangers. Licensee
shall take any necessary precautions by the installation of protective equipment, or other
means, to protect all persons and property of all kinds against injury or damage
occurring by reason of the operation of the Equipment on the Facilities.
7 PERMITTED USE
Licensee shall only use the Facilities for the purpose of wireless communications. Such
communications transmission and operation shall be conducted in accordance with the
standards imposed by the Federal Communications Commission ("FCC"), and any other
applicable local, state or federal body with authority over such transmission and
operation licensee shall use the Facilities for no other purpose without the prior written
consent of Licensor. Any use of a Facility by Licensee without the prior written consent
of Licensor or in Violation of any local, state, or federal law shall, at Licensor's option be
deemed a default of this Agreement and give Licensor the right to terminate this
Agreement, except that Licensor shall provide to Licensee by written notice a thirty (30)
day period to cure any violations which do not threaten the safety and operation of the
Facility Notwithstanding the above, Licensee shall have a reasonable opportunity to
pursue aQd exhaust its available legal and administrative remedies prior to termination
of this Agreement or individual permits, provided, that no enforcement action is being
taken or threatened against Licensor and no order has been issued directing Licensor to
remove Licensee's Equipment.
1\, RADIATION EXPOSURE
It shall be the responsibility of Licensee to ensure that the addition of the Equipment
does not cause radio frequency exposure levels of all the current existing equipment
located upon the Facility and in the surrounding vicinity (including the Equipment,
Licensor's equipment, and all other transmitting equipment in the vicinity) to exceed
those levels permitted by the FCC. Licensor shall require other licensees installing
equipment after the installation of the Equipment to bear the same responsibility. If it is
determined that the radio frequency exposure levels at a Facility and surrounding vicinity
exceed exposure levels set by the FCC, then Licensee shall remove the Equipment
located at that Facility
9. INDEMNIFICATION. LIMITATION OF LIABILITY & DAMAGES
To the extent permitted by Texas law, Licensee for itself and its contractors and
subcontractors hereby releases Licensor, its affiliates, and their respective directors,
officers, employees and agents (collectively, "Indemnitees"), from any and all liability for
loss of or damage to the Equipment, except to the extent such damage arises from
Indemnitee's sole negligence or willful misconduct. In no case shall Indemnitees be
liable for any interruption to, or failure of, the service rendered by Licensee or others in
which such Equipment is used. To the extent permitted by Texas law, Licensee further
hereby agrees to Indemnify, hold harmless, and defend Indemnitees from and against
any and all losses, liabilities, costs, expenses, suits, actions, claims and all other
obligations and proceedings whatsoever, including, without limitation, all judgments
rendered against. and all fines and penalties imposed upon Indemnitees, and any
reasonable attorneys' fees and any other costs of litigation (hereinafter collectively
referred to as "liabilities") arising, directly or indirectly, out of the interruption or loss of
Licensee's, Its subscribers, affiliates, or sub licensees' services or because of any
Interference with communication reception of such services, or out of injuries to persons,
including disease or death. or damage to property, or in any other way attributable to or
ariSing either directly or indirectly out of, the attachment, installation, operation,
presence, use, maintenance, or removal of the Equipment from Licensor's Facilities, or
by the proximity of the Equipment to all other parties, including the Licensor, occupying
space on Licensor's Facilities, except that Licensee's obligation to indemnify
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indemnitees shall not apply to any liabilities to the extent arising from Indemnitees'
negligence or willful misconduct Indemnitees shall be free to select counsel of their
choice for their defense hereunder
Because Licensee may utilize contractors in the installation and maintenance of its
facilities, Licensee hereto agrees to require its contractors and subcontractors to provide
a release and indemnification of all claims for the benefit of the Indemnitees in the form
attached hereto as Exhibit C If Licensee fails to obtain the appropriate release and
indemnification from its contractor/subcontractor, then to the extent permitted by Texas
law. Licensee hereby agrees to provide the same release and indemnification to
Indemnitees by Licensee's contractor or subcontractor on their behalf.
It is further agreed between the parties hereto, that to the extent any of the provisions of
this Article are determined to be contrary to law or held to be invalid by any court of
competent jurisdiction, this Article shall be construed and applied as if such invalid
provisions were not contained herein, attempting at all times to conform, to the extent
possible, to the Intent of the parties as herein stated, and provide the maximum
Indemnity allowed by law. With respect to claims against one party by the other party's
employees, the latter party agrees to expressly waive only its immunity, if any, as a
complying employer under the workers' compensation law but only to the extent that
such immunity would bar or affect recovery under or enforcement of the indemnification
obligations set forth in this Article. This waiver applies to Section 35, Article II of the
Ohio Constitution and Ohio Revised Code Section 4123.74.
The terms of this Indemnity and any other indemnities set forth in this Agreement shall
survive the termination of this Agreement. In the event that Licensor becomes aware of
a claim affecting Licensee under the terms of this indemnification clause, Licensor shall
endeavor to put Licensee on timely notice of such claim. The parties agree that the
above Indemnification provisions shall be limited to the extent permitted by Texas law.
10. TAXES
Licensor shall pay all real property taxes for the property or space being licensed.
Licensee shall pay in full any personal property taxes directly attributable to the
presence or installation of the Equipment either directly to the applicable taxing authority
or within thirty days of presentation of the same by Licensor. If Licensor receives notice
of any personal property tax assessment against the Licensor, which may affect
Licensee, Licensor shall provide timely notice of the assessment to Licensee, sufficient
to allow Licensee to consent to or challenge such assessment.
11. PERSONAL PROPERTY
The Equipment shall remain the personal property of Licensee and no part of such
Equipment constructed, erected or placed by Licensee upon a Facility shall become, or
IS to be considered as a fixture being affixed to or a part of, Licensor's real estate, any
and all provisions and principles of law to the contrary notwithstanding, it being the
specific intention of the parties that all improvements of every kind and nature
constructed, erected or placed by Licensee shall be and remain the property of
Licensee. Licensor waives any lien rights it may have concerning the Equipment which
are deemed Licensee's personal property and not fixtures, and Licensee shall have the
right to remove the same at any time without Licensor's consent (subject to the access
restrictions set forth herein)
12. INSURANCE
Licensee and Licensee's contractors shall, at their own expense, carry liability insurance
reasonably acceptable to Licensor, which shall protect Licensor and Licensee jointly and
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severally from any suit, claim, or action which may arise from any accident or injury to
any person (including death) or damage to property, during the term of this Agreement,
Including any extension thereof. Licensor shall be listed as an additional insured on such
liability insurance policy. An approved certificate of such insurance shall be furnished to
Licensor's Risk Management Department. The amounts of insurance required under
this Agreement shall be increased as Licensor may reasonably require from time to time
provided that such increase is based on industry-wide adjustment. Licensee
acknowledges that continued maintenance of the insurance requirements under the
Agreement is a substantial and Important part of this Agreement and that any lapse in
Insurance coverage shall be corrected so that coverage will be in place during the entire
term of this Agreement, with no gaps or lapses in coverage. Upon commencement of
this Agreement, Licensee and its contractors will procure and maintain public liability
policies per Site with limits of $1,000,000 per occurrence for bodily injury, $1,000,000 for
property damage, with a certificate of insurance to be furnished to Licensor within 30
days of written request. Such pOlicy will provide that cancellation will not occur without
at least 15 days prior written notice to Licensor. Licensee and Licensee's contractors
shall also obtain and keep in force statutory workers' compensation and employer's
liability insurance and automobile liability insurance in an amount not less than
$1,000,000 combined single limit for bodily injury and/or property damage. Such
automobile Insurance will include coverage for all automobiles including hired and non-
owned
13. ELECTRICITY USE
Licensee shall be responsible for and promptly pay all utility charges for electricity,
telephone service or any other utility used or consumed by Licensee. If Licensor
provides electricity, Licensee shall promptly pay Licensor the applicable tariff rate for
such service, in addition to any fees described herein.
14. ASSIGNMENT
Licensee shall not assign, sell, transfer or sublicense (including, without limitation,
diplexing of signals, granting of shared use rights, or utilizing digital or analog
Interconnect facilities for itself or others) Licensee's rights under this Agreement to any
other person, partnership, corporation or other governmental agency without the
express written consent of Licensor, which consent may be withheld in Licensor's sole
and absolute discretion. Provided, that such sublicensing restriction shall not in any way
limit or prevent the Licensee from leasing or otherwise allocating, in its sole and
absolute discretion, portions of its wireless communications network capacity, to any of
Its own city governmental agency or the Cities' affiliate. Notwithstanding the foregoing
and provided that Licensee is not in default under this Agreement or, if Licensor is in
default, that the successor party remedies such default, Licensee may assign this
Agreement upon thirty (30) days prior written notice (whether by absolute assignment or
collateral assignment), to (i) any affiliate of Licensee, (ii) any partnership, venture or new
corporation formed by Licensee, or (iii) to any party controlling, controlled by or under
common control with Licensee. Any attempted assignment, sale or transfer of
Licensee's rights under this Agreement in violation of this section shall render this
Agreement null and void. No purported assignment, sublicense, sale or transfer of
Licensee's rights under this Agreement, nor the acceptance of a license payment by
Licensor from a purported Licensee, shall release, relieve, or in any manner modify the
obligations of Licensee under the terms of this Agreement. Affiliate include any City
created non-profit corporation for use and management of the network and its wi-fi
capability
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15. EQUIPMENT INVENTORY
Using the inception year of this Agreement, as the starting year, licensor may conduct a
complete field inventory of the Facilities for the purpose of verifying the number and
location of Licensee's Equipment In the area covered by this Agreement. Such inventory
may be conducted anytime after the beginning of the fifth year and not more often than
every fifth year thereafter. Licensor shall give to Licensee at least thirty (30) days prior
notice of such Inventory and not less than fifteen (15) days prior to the scheduled date
of such inventory furthermore Licensee shall advise Licensor in writing, if licensee
desires to make a joint inventory with Licensor Such written notification should be
certified mail to the local Joint Use Administrator. Licensee shall reimburse licensor for
the pro-rata share of Licensor's expenses Incurred in making such inventory, to the
extent attributable to inventory of Cities wi-fi equipment. whether or not licensee elects
to participate. Licensee may dispute the amount of any bill but shall not withhold
payment of any amount in dispute. In such event, Licensor and licensee shall use good
faith efforts to resolve such billing dispute In the event a refund of any amounts paid by
Licensee is determined to be due (or in the event of the discovery of any other billing
error) an adjustment to correct the billing error shall be made, and credit applied. Upon
request, Licensor shall furnish a summary report of such inventory within a reasonable
time after its completion
16. UNAUTHORIZED ATTACHMENT OF EQUIPMENT
Any attachment of Equipment made without the approval of licensor pursuant to the
terms of this Agreement, or any prior agreement governing such facilities, shall be
considered an unauthorized attachment. Upon discovery of an unauthorized
attachment, Licensor may elect either of the following options: (i) order Licensee to
remove the Equipment within thirty (30) days, or (ii) review such Equipment, at
Licensee's expense, to determine if the Equipment is in compliance with the Design
Standards and, if necessary, order Licensee to comply with the Design Standards.
For each unauthorized attachment, Licensee shall also pay licensor the applicable
attachment fee hereunder for a period of time equal to the greater of: (I) five years, or
(Ii) the number of years since the last attachments inventory (including inventories
conducted pursuant to earlier pole license agreements governing such facilities), plus
the current Interest Rate.
17. DEFAULT
If Licensee fails to comply with any of the material provisions of this Agreement, or
defaults in the performance of any of its material obligations under this Agreement, and
fails within thirty (30) days. after written notice from Licensor to correct such default or
noncompliance, Licensor may, at its option, take anyone or more of the following
actions: (i) suspend Licensee's access to climb or work on it's Equipment on all of
Licensor's Facilities; (ii) terminate the specific permit or permits covering the Facilities to
which such default or noncompliance is applicable; (iii) remove, relocate, or rearrange
Equipment to which such default or noncompliance relates, all at licensee's expense;
(iv) decline to permit additional licensing hereunder until such default is cured; or (v) in
the event of any failure to pay any of the charges, fees or amounts provided in this
Agreement or any other substantial default, or of repeated defaults, terminate this
Agreement. NotWithstanding the foregoing, Licensee shall have an additional thirty (30)
days to correct such default or noncompliance if Licensee promptly commences its
corrective efforts within the thirty-day (30) period described above and diligently
continues such corrective actions thereafter. No liability shall be incurred by Licensor
because of any or all such actions. The remedies provided herein are cumulative and in
addition to any other remedies available to Licensor under this Agreement or otherwise.
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18. WAIVER
The failure of either party to enforce any terms or conditions of this Agreement shall not
constitute a waiver of the same or other terms and conditions or otherwise prevent or
preclude such party from exercising its rights or remedies hereunder, at law or in equity.
19. NOTICES
Any and all written Communications required or permitted hereunder shall be in writing
and mailed postpaid via United States Certified Mail or reliable, receipted overnight
courier service, as follows:
Licensor
Licensee:
AEP Texas Central Company
Attn: Joint Use Administrator
PO. Box 2121
H015-ENGSV
Corpus Christi, TX 78401-2121
City of Corpus Christi
Attn: MIS Director
P.O. Box 9277
Corpus Christi, TX 78469
20. REGULATION
Both parties acknowledge that this Agreement is not subject to regulation by the FCC
pursuant to 47 USC ~224. Both parties further acknowledge that prior to negotiation of
this Agreement the parties carefully reviewed all relevant provisions of state and federal
statutes and regulations relating to the regulation of the facilities licensed hereunder,
and that the negotiations freely conducted herein were undertaken without duress and
with full knowledge of any rights either party may have pursuant to such state or federal
law. Both parties believe the rental rates charged herein to be in compliance with any
applicable state or federal law. Each and every provision of this agreement is
considered an essential exchange of consideration hereto. Any deviation in the rate
charged herein from the calculation of such rate pursuant to any applicable state or
federal law imposed formula is a result of other negotiated concessions made herein by
Licensor or Licensee. To the extent that either party may challenge any provision of this
agreement as viOlative of state or federal law and is successful, then upon the sole
option of the party to which such determination adversely affects, this Agreement shall
terminate effective as of such determination. Upon such termination both parties shall
enter into negotiations for a new agreement in compliance with such determination. It is
the intent of both parties that any adjustments made pursuant to any such judicial or
regulatory determination allow Licensor to recover the maximum amount available in
accordance with the applicable regulated rate.
21. TRANSFER OF LICENSOR'S INTEREST
Licensor may assign this Agreement to any third party without the consent of Licensee.
Upon such assignment Licensor shall be relieved of all liability accruing after the date of
such assignment. Licensor shall be free to sell any Facility covered hereunder.
22. EASEMENTS
licensee shall secure any right, license or permit from any governmental body, authority
or other person or persons, which may be required for the construction or maintenance
of the Equipment Licensor does not grant, convey nor guarantee any easements,
rights-of-way or franchises for the construction and maintenance of the Equipment. To
the extent permitted by Texas law, Licensee hereby agrees to indemnify and save
licensor harmless from any and all claims, including the expenses incurred by Licensor
to defend itself against such claims, resulting from or arising out of the failure of
Licensee to secure such right, license permit or easement for the construction or
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rnalntenance of the Equipment on the Facilities, the loss of right-of-way or property
owner consent, of the costs of relocating any of Licensor's facilities or other attachments
on Licensor's poles. In the event that Licensor becomes aware of a claim affecting
Licensee under the terms of this provision, Licensor shall endeavor to put Licensee on
timely notice of such claim. However, such notice obligation of Licensor does not
extend to permits or franchises required by governmental entities. As applicable, all of
the terms of the indemnity set forth in this Agreement are incorporated herein and shall
apply with equal force to the indemnity set forth in this Article.
23. MISCELLANEOUS
Third Parties.
This Agreement shall not create for, nor give to, any third party any claim or right of
action against either party to this Agreement that would not arise in the absence of this
Agreement.
Non-Disclosure.
Except as required by law, regulation, or judicial or administrative order, there shall be
no disclosure of the terms of this Agreement.
Personal License.
This Agreement grants a license only, revocable or terminable solely under the terms or
conditions herein, and no use, however extended, of Licensor's Facilities or payment of
any fee or charge required hereunder shall create or vest in Licensee any claim of right,
possession, License, easement. title, Licensorship or other interest in real estate.
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Nothing in this Agreement shall be construed as a grant by Licensor of an exclusive
license, right or privilege to License, nor as a limitation, restriction, or prohibition of any
agreement which Licensor has made or may, in the future, make. Licensor shall have
and retain the right to extend, renew or grant to others not party to this Agreement any
right or privilege to use its Facilities, except as limited by this Agreement.
Liens and Encumbrances.
If because of any act or omission of Licensee, any mechanic's lien or other lien, charge,
or order for the payment of money shall be filed against any portion of the Licensed
Area, the Licensee shall, at its own cost and expense, cause the same to be discharged
of record or bonded within ninety - (90) days. Licensee shall indemnify and hold
harmless Licensor from any loss, cost or expense arising from or incurred by Licensor
as the result of Licensee's breach of the foregoing covenants, which indemnities shall
survive the termination of this Agreement
No Joint Venture.
Nothing in this Agreement is intended to, or shall be deemed to, constitute a joint
venture, a partnership or agency between the Licensee and Licensor.
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Survivability.
Neither termination nor cancellation of this Agreement or any authorization granted
hereunder shall be deemed to relieve either party of any obligations that by their nature
survive such termination or cancellation, Including but not limited to all guarantees and
promises of Indemnity
I nteroretation.
The laws of the state where the Facility IS located shall govern any controversy related
hereto
Headinas.
Section headings of this Agreement are inserted only for reference and in no way
define, limit. or describe the scope or intent of this Agreement nor affect its terms or
provisions
Multiole Counteroarts.
This Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
Instrument.
Entire AQreement.
This Agreement is the entire agreement between the parties on the subject matter of
this License and supersedes any prior or contemporaneous agreement or
understanding between them. No course of performance, usage of trade or course of
dealing shall be relevant to supplement or explain any term or condition in this
Agreement. This Agreement may not be modified or amended nor may any obligation
of either party be modified, changed or discharged except in writing signed by a duly
authorized officer or employee.
Each party hereby represents and warrants to the other (i) it has full right, power and
authority to enter into this Agreement and that the same has been voluntarily negotiated
and agreed upon; (ii) the making of this Agreement and the performance thereof will not
violate any laws, ordinance, restrictive covenants or other agreements under which such
party is bound; (iii) that such party is a duly organized and existing corporation or limited
liability company; (iv) the party is qualified to do business in the state in which the
Facilities are located; and (v) all persons signing on behalf of such party were authorized
to do so by appropriate corporate or partnership action.
In Witness Whereof, the parties have caused this Agreement to be signed as of the
date first above written
fY)Uole~ } ~ I
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IY ODUN t d-yLJ Approved as to form:' i.l '
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Doc #295752 City of <fOr City At :rr
LICENSEE:
By' ~I~~S_CHRISTI
Name: --f,. k:" 1..;
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Title: _.~~~_ f~:...~!S.~-...
Date: ! I ) ) i (
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LICENSOR:
AEP~S - TE.XA. 5 CENTRAL
By: . tn~ .~ 2l~
Name: Pamela Ellis
Title: Manager, Distribution Attachment Services
Date: GJZ)O&
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Exhibit A
JListinq of Approved Eauipment and Freauencies
And Annual Cost per Wi-Fi Unitl
.:. Tropos 5110 Wi-Fi Cell
2400 to 2485 MHz ISM Band
.:. Wireless Communication Equipment
AEP - TCC $15.00
The Annual Contact Fee shall be increased by the Consumer Price Index (CPI) upon each
anniversary of the Commencement Date occurring during the Original Term and each succeeding
Term Extensions
l'
Doc #295752 City of CC
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EXHIBIT C
INDEMNIFICATION OF ALL CLAIMS
in consideration of AEP - Texas Central Comoanv ("Licensor") granting and providing Citv of Comus Christi,
("Licensee") and its contractors and subcontractors with access and/or permission to work on or in the vicinity of
Owner's facilities under the terms of that certain Facility License Agreement between Licensee and Licensor
effective December 1. 2005, the undersigned, its employees. contractors, subcontractors or agents, agrees to
release, indemnify, save harmless. and defend Licensor. its affiliates. and their respective directors, officers.
employees and agents (collectively, "Indemnitees"). from and against any and all losses, liabilities, costs, expenses,
suits, actions. claims and all other obligations and proceedings whatsoever, including, without limitation, all
judgments rendered against, and all fines and penalties imposed upon the Indemnitees, and any reasonable
attorneys' fees and any other costs of litigation (hereinafter collectively referred to as "liabilities") arising, directly or
Indirectly. out of the interruption of the Licensee, its subscribers, or sub licensees service or because of any
interference with communication reception of such services, or out of injuries to persons, including disease or death,
or damage to property, or in any other way attributable to or arising either directly or indirectly out of, the attachment,
Installation. operation, presence, use. maintenance, or removal of Licensee's facilities to Licensor's facilities,
!ncluding the loss of use thereof, or by the proximity of Licensee facilities to all other parties, including Licensor,
occupying space on Licensor's facilities, except that the undersigned's obligation to indemnify Indemnitees shall not
apply to any liabilities arising from Indemnitees' negligence or willful misconduct. The undersigned shall be liable for
reasonable attorneys' fees and all costs of litigation associated with enforcement of the obligations set forth in this
obligation of indemnification and Indemnitees shall be free to select counsel of their choice.
fhe undersigned agrees to expressly waive the undersigned's immunity as a complying employer under the workers'
compensation law of the jurisdictional state from indemnification. The undersigned shall also hold Indemnitees
harmless from any workers compensation claims by the undersigned's employees, agents, and contractors in
accordance with the indemnity set forth in the first paragraph
The undersigned hereby acknowledges that it has been warned that working in the vicinity of Licensor's facilities
poses potential dangers and that the undersigned is aware of said dangers and will furthermore warn all employees,
agents, subcontractors. or any other parties who may be working on behalf of the undersigned, of the potential
dangers
Notwithstanding any other provision of this Agreement, neither Indemnitees nor their agents, representatives,
contractors or subcontractors shall be liable to the undersigned in contract or tort, including negligence, for the
Licensee or the undersigned's losses, expenses, loss of profits or revenues, costs of additional or replacement
facifities, or claims of customers for such damages or for any other indirect, incidental or consequential loss or
damage whatsoever in connection herewith
It is further agreed between the parties hereto. that to the extent any of the provisions of this Release and
indemnification of all Claims are determined to be contrary to law or held to be invalid by any court of competent
jurisdiction, this Release and indemnification of all Claims shall be construed and applied as if such invalid
provisions were not contained herein, attempting at all times to conform, to the extent possible, to the intent of the
parties as stated herein and in the Facility License Agreement, and provide the maximum indemnity allowed by law.
The terms of this release and indemnity shall survive the termination of the Facility License Agreement.
The undersigned also agrees to fully comply with and maintain the insurance coverage and requirements set forth in
the Facility License Agreement
i have fully read this release and understand and consent to it in its entirety,
By:_
Title :
Date:
Doc #295752 City of CC
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