HomeMy WebLinkAboutC2017-619 - 7/25/2017 - Approved PILOT LICENSE AGREEMENT
BETWEEN THE CITY OF CORPUS CHRISTI AND MOBILITIE, LLC
FOR WIRELESS FACILITIES AND POLES IN THE RIGHT-OF-WAY
TABLE OF CONTENTS
Page No.
ARTICLE 1. PARTIES 6
1.1. ADDRESSES 6
ARTICLE 2. DEFINITIONS 7
ARTICLE 3. AUTHORIZATION TO USE RIGHT-OF-WAY 10
3.1. GRANT OF PERMISSION 10
3.2. SCOPE OF AGREEMENT 11
3.3. LIST OF LICENSED LOCATIONS 12
3.4. UNAUTHORIZED WIRELESS FACILITIES AND LICENSEE POLES
12
3.5. LICENSEE POLES 13
3.6. LEASING AND SUBLEASING 13
ARTICLE 4. PERMITS AND PERMISSION 14
4.1. REQUEST FOR ALTERNATE LICENSED LOCATION 14
4.2. ALTERNATE LOCATION REVIEW PROCESS 14
4.3. PERMITS 15
4.4. INVENTORY 15
ARTICLE 5. RENTAL FEES AND OTHER PAYMENTS 15
5.1. RENTAL FEE 15
5.2. OTHER PAYMENTS 16
5.3. LATE PAYMENT CHARGE 16
5.4. HOLD OVER CHARGE 16
5.5. NON-FUNCTIONING WIRELESS FACILITIES 16
5.7 PAYMENT 16
5.8 REIMBURSEMENT 17
�C2017-619T IMITS 17
7/25/17 ;E REVIEW 17
Ord. 031195
Mobilitie LLC
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ARTICLE 6. WIRELESS FACILITIES AND LICENSEE POLES
REQUIREMENTS 17
6.1. AESTHETIC REQUIREMENTS 17
6.3 INSPECTIONS 19
6.4 PLACEMENT 19
6.5 ELECTRICAL SUPPLY 21
6.6 FIBER CONNECTION 21
6.7 GENERATORS 22
6.8 EQUIPMENT DIMENSIONS 22
6.9 TREE MAINTENANCE 22
6.10 SIGNAGE 23
6.11 OVERHEAD LINES PROHIBITED IN UNDERGROUND UTILITY
AREAS. 23
6.12 REPAIR 23
6.13 GRAFFITI ABATEMENT 23
ARTICLE 7. INTERFERENCE WITH OPERATIONS AND COLLOCATIONS 24
7.1. NO LIABILITY 24
7.2. NO INTERFERENCE 24
ARTICLE 8. ABANDONMENT, RELOCATION AND REMOVAL 25
8.1. ABANDONMENT OF OBSOLETE WIRELESS FACILITIES AND
LICENSEE POLES 25
8.2. REMOVAL REQUIRED BY CITY 25
8.3. REMOVAL BY LICENSEE 25
8.4. REMOVAL OR RELOCATION REQUIRED FOR CITY PROJECT 26
8.5. REMOVAL REQUIRED AFTER TERMINATION OR EXPIRATION
OF LICENSE 26
8.6. REMOVAL REQUIRED AFTER TERMINATION 27
8.7. OWNERSHIP 27
8.8. RESTORATION 27
8.9. LICENSEE RESPONSIBLE 27
8.10. ALLOCATION OF FUNDS FOR REMOVAL AND STORAGE 27
ARTICLE 9. ENVIRONMENTAL LAW REQUIREMENTS 28
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ARTICLE 10. SECURITY 28
ARTICLE 11. RELEASE, INDEMNIFICATION,AND INSURANCE 29
11.1. RELEASE 29
11.2. INDEMNIFICATION 29
11.3. INDEMNIFICATION PROCEDURES 30
11.4. INSURANCE 31
ARTICLE 12. TERM AND TERMINATION 34
12.1. TERM 34
12.2. TERMINATION FOR CAUSE BY CITY 34
12.3 TERMINATION BY LICENSEE 35
12.4 HOLDING OVER 35
ARTICLE 13. TRANSFER OF AUTHORITY 36
13.1. ASSIGNMENT 36
13.2. BUSINESS STRUCTURE AND ASSIGNMENTS 36
ARTICLE 14. RECORDS AND AUDITS 37
14.1. RECORDS 37
14.2. INSPECTIONS AND AUDITS 37
14.3. CONFIDENTIAL INFORMATION 37
ARTICLE 15. MISCELLANEOUS 38
15.1. FORCE MAJEURE 38
15.2. DISPUTE RESOLUTION 38
15.3. ACCEPTANCE AND APPROVAL; CONSENT 39
15.4. REPRESENTATIONS AND WARRANTIES 40
15.5. STATEMENT OF ACCEPTANCE 40
15.6. RELATIONSHIP OF THE PARTIES 40
15.7 SEVERABILITY 41
15.8. ENTIRE AGREEMENT 41
15.9. WRITTEN AMENDMENT 41
15.10. APPLICABLE LAWS AND VENUE 41
15.11. NOTICES 41
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15.12. CAPTIONS 42
15.13. NON-WAIVER 42
15.14. ENFORCEMENT 42
15.15. AMBIGUITIES 42
15.16. SURVIVAL 42
15.17. CERTIFICATE OF INTERESTED PARTIES 43
15.18. PARTIES IN INTEREST 43
15.19. REMEDIES CUMULATIVE 43
15.20. LICENSEE DEBT 44
15.21. PARTS INCORPORATED 44
15.22. CONTROLLING PARTS 44
15.23 CHANGE OF LAW 44
15.24 SIGNATURES 44
EXHIBITS
A. LICENSED LOCATIONS
B. APPROVED WIRELESS FACILITIES AND EQUIPMENT LIST
C. LETTER OF CREDIT (REPRESENTATIVE SAMPLE)
D. PERFORMANCE BOND (REPRESENTATIVE SAMPLE)
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PILOT LICENSE AGREEMENT
BETWEEN THE CITY OF CORPUS CHRISTI AND MOBILITIE, LLC
FOR WIRELESS FACILITIES AND POLES IN THE RIGHT-OF-WAY
THE STATE OF TEXAS §
§
COUNTY OF NUECES §
This PILOT LICENSE AGREEMENT FOR WIRELESS FACILITIES AND POLES
("Agreement") is made by and between the CITY OF CORPUS CHRISTI, TEXAS ("City"), a
home-rule municipal corporation of the State of Texas, and MOBILITIE LLC, ("Licensee"), a
Nevada Limited Liability Company with its principal offices at is 660 Newport Center Drive, Suite
200, Newport Beach, CA 92660.
RECITALS
WHEREAS, Licensee, a Neutral Host Provider, is requesting to attach, install, operate,
maintain, repair, replace, reattach, reinstall, relocate, and remove its Wireless Facilities for small
cell networks or outdoor distributed antenna systems ("DAS") in the City's Right-of-Way to
provide better coverage and meet increased demand for its services; and
WHEREAS,the City owns and controls the Right-of-Way; and
WHEREAS, Section 253 of the Federal Communications Act of 1934, as amended,
including 47 U.S.C. § 253, acknowledges that the City has the authority to manage and control
access to and use of the Right-of-Way within the City limits so long as such access is
nondiscriminatory; and
WHEREAS, the City has been authorized by the State to act as fiduciary and trustee for
the public; and
WHEREAS, the City is developing a Wireless Master Plan and Wireless Master
Licenses Agreement for wireless facilities and poles in the right of way; and
WHEREAS,the City is willing to enter a Pilot License Agreement prior to adoption of a
Wireless Master Plan and Wireless Master Licenses Agreement for wireless facilities and poles
in the right of way; and
WHEREAS, conditions to use of the Right-of-Way include height, width, and aesthetic
requirements of the Wireless Facilities and Licensee Poles occupying the Right-of-Way; and
WHEREAS,the Licensee shall compensate the City pursuant to state law for the grant of
permission to install the Licensee's Wireless Facilities and Licensee Poles at approved locations
in the City's Right-of-Way; and
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WHEREAS, the City may grant permission, on a site-by-site basis, the Licensee's non-
exclusive use at approved locations in its Right-of-Way, subject to the terms and conditions set
forth herein, and pursuant to Permits issued by the City Manager; and
WHEREAS, the City and Licensee desire by this Agreement to set forth their
understanding of such matters.
NOW THEREFORE,in consideration of the mutual covenants and agreements contained
herein below, City and Licensee agree as follows:
ARTICLE 1. PARTIES
1.1.ADDRESSES
The initial address of the parties, which either party may change at any time by giving written
notice to the other party pursuant to the terms of this Agreement, are as follows:
City Licensee
City Manager MOBILITIE, LLC
Legal Department
City of Corpus Christi 660 Newport Center Drive
Suite 200
Newport Beach, CA 92660
P.O. Box 9277
Corpus Christi, TX 78469
With Copy To
Asset Management
City Attorney 660 Newport Center Drive
Suite 200
Newport Beach, CA 9266
City of Corpus Christi
P.O. Box 9277
Corpus Christi, TX 78469
Director of Development Services
City of Corpus Christi
P.O. Box 9277
Corpus Christi, TX 78469
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ARTICLE 2. DEFINITIONS
2.1. As used in this Agreement, the following terms have the meanings set out below:
2.1.1. "Abandon" and its derivatives means the Wireless Facility, Licensee Pole, or
portion thereof that has been left by Licensee in an unused or non-functioning
condition for more than 90 consecutive days unless, after notice to Licensee,
Licensee has established to the reasonable satisfaction of the City 30 days after
such notice that the Wireless Facility, Licensee Pole, or portion thereof has the
ability to provide communications for the intended purpose.
2.1.2. "Affiliate" means (a) any entity who (directly or indirectly) owns or controls, is
owned or controlled by, or is under common ownership or control with the
Licensee; (b) any entity acquiring substantially all of the assets of Licensee in the
market defined by the Federal Communications Commission in which the
Licensed Locations are located; or (c) any successor entity in a merger,
acquisition,or other business reorganization involving Licensee. For purposes of
this definition, "own" means to own an equity or other financial interest (or the
equivalent thereof) of more than 10 percent or any management interest.
2.1.3. "Agreement"means this contract between the Parties,including any exhibits and
any written amendments as authorized by this Agreement.
2.1.4. "Camouflaged Wireless Facility or Licensee Pole"means any Wireless Facility
or Licensee Pole that is covered, blended, painted, disguised, camouflaged or
otherwise concealed such that the Wireless Facility or Licensee Pole blends into
the surrounding environment and is visually unobtrusive. A Camouflaged
Wireless Facility or Licensee Pole also includes any Wireless Facility or
Licensee Pole approved by the City as conforming to the surrounding area in
which the Wireless Facility or Pole is located and may include,but is not limited
to hidden beneath a façade, blended with surrounding area design, painted to
match the supporting area, or disguised with artificial tree branches so long as
they do not limit the line of sight for drivers.
2.1.5. "Carrier" means a provider of Wireless Services authorized by the Licensee to
utilize the Wireless Facilities and/or Licensee Poles.
2.1.6. "City" is defined in the preamble of this Agreement and includes its successors
and assigns.
2.1.7. "City Attorney"means the currently appointed or acting City Attorney or his/her
designee.
2.1.8. "City Code"means the Code of Ordinances, City of Corpus Christi, Texas.
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2.1.9. "City Manager" means the current and successor City Manager of the City or
designee.
2.1.10. "Effective Date" means that date countersigned by the City Manager on the
signature page of this Agreement for each respective Licensee.
2.1.11. "Ground Equipment" means a Wireless Facility that is located on the surface of
the Right-of-Way and, if included in an approved Application for Location
Review or otherwise approved by the City in writing, an incidental structure to
support metering devices.
2.1.12. "Historic District"recognized by the City, state or federal government under the
City Code of Ordinances, State Law, including, but not limited to, Sec.
442.001(3) of the Texas Government Code, a federal law, including, but not
limited to, 16 U.S.C. § 470.
2.1.13. "Historic Landmark" recognized by the City, state or federal government under
the City Code of Ordinances, State Law, including, but not limited to, Sec.
442.001(3) of the Texas Government Code, a federal law, including, but not
limited to, 16 U.S.C. § 470.
2.1.14. "Licensee" means Mobilitie LLC, a Nevada limited liability company and
includes its successors and assigns.
2.1.15. "Licensed Location"means the location in the Right-of-Way, as listed in Exhibit
A of this Agreement, in which Licensee is authorized to place its Wireless
Facilities and Licensee Poles, provided that it has obtained all Permits.
2.1.16. "Licensee Pole" or "Licensee Poles" means pole(s) or similar vertical
structure(s) owned and installed by Licensee for the sole purpose of supporting
Wireless Facilities, but does not include incidental structure for supporting
metering devices.
2.1.17. "Modification" means any addition, removal, or alteration of any kind, to the
Wireless Facility or Licensee Pole, including altering the concealment,
camouflage or stealth appearance, from the exact Licensed Location, except for
routine maintenance or replacement with equipment that has substantially
identical dimensions and appearance.
2.1.18. "Neutral Host Provider" means a provider of Wireless Facilities and Licensee
Poles that leases space on its Wireless Facilities and Licensee Poles to Carriers.
2.1.19. "Other Party"or "Other Parties"means a Wireless Services provider or Neutral
Host who is not a Party to this Agreement.
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2.1.20. "Park"means public City Parks. granted by City's Council and the City Code of
Ordinances.
2.1.21. "Party" or "Parties"mean the Licensee and City, individually or collectively as
indicated in the context in which it appears.
2.1.22. "Permit" means any document issued by the City required for installation of
Licensee's Wireless Facilities or Licensee Pole at a Licensed Location in the
Right-of-Way such as electrical permit or Public Right-of-Way Blockage Permit .
2.1.23. "Rental Fee" means the amount Licensee is required to pay the City, as
calculated according to Article V of this License, for the use of the City's Right-
of-Way.
2.1.24. "Right-of-Way" means the ground level, air space above, and space below a
public street, road, alley, and/or sidewalk located in the City's jurisdiction,
including the entire area between the boundary lines of every right-of-way, and
public utility easements, whether acquired by purchase, grant or dedication and
acceptance by the City or by the public, that has been dedicated or designated for
or opened to the use of the public for purposes of vehicular and pedestrian travel;
and shall include any designated state or federal highway or road or any
designated county road under the administrative control of the City for
maintenance, repair, or vehicular traffic control purposes.
2.1.25. "School" means an educational institution that offers a course of instruction for
students in one or more grades from kindergarten through grade 12.
2.1.26. "Term" means the Initial Term and any Extension Terms, collectively, during
which this Agreement is in effect.
2.1.27. "Traffic Signal" means any device, whether manually, electrically, or
mechanically operated by which traffic is alternately directed to stop and to
proceed.
2.1.28. "Traffic-Control Devices"means all sign, signals,markings,or devices placed or
erected by the City or a public body having jurisdiction for the purpose of
regulating, warning, or guiding traffic.
2.1.29. "Underground Utility Area" means an area where poles, overhead wires, and
associated overhead or above ground structures have been removed and buried or
have been approved for burial underground.
2.1.30. "Utility Pole" or "Utility Poles" means a pole or vertical structure or similar
structure supporting pole attachments (as pole attachments are defined in Texas
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Utilities Code §252.001(4)) owned by an electric utility, a wireline
telecommunications provider, or a utility, as defined in Section 224 of the
Communications Act,47 U.S.C. 224(a) [Federal Pole Attachment Act]providing
one or more of the following: (i) electric distribution with a voltage rating no
higher than 34.5 kilovolts; (ii) wireline communications services of a
Telecommunications Utility as defined in Texas Utilities Code §51.002(11) and
is authorized to occupy the Right-of-Way pursuant to State law authorization or
City written agreement.
2.1.31. "Wireless Facility" or "Wireless Facilities" means the approved equipment in
Exhibit B that consists of radios, antennas, wires, fiber optic cables, amplifiers,
switches, conduit, power sources, repeaters, and other supporting devices
installed overhead or above the ground on a Licensee Pole or Utility Pole and
control boxes, pull boxes, cabinets, and other supporting devices installed at
ground level, and other wireless network infrastructure components provided by
licensed or unlicensed wireless infrastructure companies for the purpose of
providing, supporting, enhancing or expanding Wireless Services but not
including any separate Licensee Poles or Utility Poles, that are located within the
Right-of-Way as part of a wireless network, such as a small cell or distributed
antenna system ("DAS") network.
2.1.32. "Wireless Services"means `personal wireless services' as that term is defined in
47 U.S.C. § 332(c)(7)(C), now or hereafter in effect, including commercial
mobile services, (defined in 47 U.S.C. § 332(d)), now or hereafter in effect,
provided to personal mobile communication devices through or by Wireless
Facilities located wholly or partially in the Right-of-Way.
2.2 When not inconsistent with the context, words used in the present tense include the future,
words used in the plural number include the singular number, and words in the singular
include the plural.
2.3. The word "shall" is always mandatory and not merely permissive.
2.4. "Include"and"including,"and words of similar import, shall be deemed to be followed by
the words "without limitation."
ARTICLE 3. AUTHORIZATION TO USE RIGHT-OF-WAY
3.1. GRANT OF PERMISSION
3.1.1. The City hereby grants Licensee the right to enter and to use 28 licensed locations
in the Right-of-Way located in the areas listed in Exhibit A to attach, install,
construct, operate, lease, maintain, repair, replace, reattach, reinstall, relocate,
and remove Licensee Poles and Wireless Facilities in the most recently approved
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version of Exhibit B, Approved Wireless Facilities and Equipment List, subject
to the terms of this Agreement.
3.1.2. This Agreement does not confer any other rights not described herein nor does it
permit Licensee or third parties to use the Right-of-Way for purposes not
specified in this Agreement.
3.1.3. This Agreement does not authorize the Licensee to install equipment and facilities
associated with or for macro wireless towers in the Right-of-Way. For purposes
of this section "macro wireless towers" means any structure larger than the
equipment dimensions in Article 6.
3.1.4. Neutral Host Providers must have an existing agreement with a Carrier to use or
lease the Neutral Host Provider's Wireless Facilities or Licensee Poles in order
to receive authorization to be in Licensed Locations.
3.1.5 Upon determination of Licensee that a licensed location is not suitable, Licensee
may request an alternate site location following removal of any Wireless Facility
or Licensee Pole in accordance with the terms of this Agreement.
3.2. SCOPE OF AGREEMENT
3.2.1. This Agreement is not exclusive and the City reserves the right to grant
permission to use its Right-of-Way for the same or similar purposes to Other
Parties.
3.2.2. Except as expressly provided herein, this Agreement does not grant Licensee the
authority to grant any rights under this Agreement to any Other Party without the
written consent of the City. If Other Parties seek to install Wireless Facilities on
a Licensee Pole, either the Licensee or Other Party must first notify the City
Manager in writing for Location Review for each Wireless Facility and Licensee
Pole and obtain the City Manager's written consent. The parties agree and
acknowledge that, notwithstanding anything in this Agreement to the contrary,
certain Facilities deployed by Licensee in the Rights-of-Way pursuant to this
Agreement may be owned and/or operated by Licensee's third-party wireless
carrier customers("Carriers") and installed and maintained by Licensee pursuant
to license agreements between Licensee and such Carriers. Such Facilities shall
be treated as Licensee's Facilities for all purposes under this Agreement provided
that (i) Licensee remains responsible and liable for all performance obligations
under the Agreement with respect to such Facilities; (ii) Licensor's sole point of
contact regarding such Facilities shall be Licensee; and (iii) Licensee shall have
the right to remove and relocate the Facilities.
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3.2.3. Licensee and City agree that Licensee Poles once installed shall not be considered
"Utility Poles" within the definition of this Agreement, and that third-party
wireline attachments (unrelated to Licensee's network or Wireless Facilities)
shall not be permitted to be on Licensee Poles.
3.2.4. This Agreement only authorizes use of the Right-of-Way and does not confer any
rights or permission to install Wireless Facilities on a Utility Pole not owned by
the City.
3.2.5. This Agreement does not grant to the Licensee an interest in any property.
3.2.6 This Agreement does not include the right to use the Public Rights-of-Way to
conduct other businesses nor to install landlines, including fiber, for backhaul or
any other purpose.
3.3. LIST OF LICENSED LOCATIONS
3.3.1. Licensee shall install its Wireless Facilities or Licensee Poles only in the Licensed
Locations listed in Exhibit A.
3.3.2. The City Manager may revoke a Licensee's permission to use a Licensed
Location listed in Exhibit A for that Licensee's non-compliance with this
Agreement. The City Manager may amend or supplement Exhibit A as needed
during the Term of this Agreement without further approval from City Council,
under the following conditions. Licensee's permission to utilize a specific
location may be revoked prior to the expiration of the Term: (i)by Licensor upon
notice to Licensee, if Licensee fails to pay any amount when due hereunder
concerning the applicable Communication Facility and such failure continues for
fifteen (15) days after Licensee's receipt of written notice of nonpayment from
Licensor; or(ii)by either Party upon notice to the other Party, if such other Party
materially breaches any provision of this Agreement concerning the applicable
Communication Facility and the breach not cured within sixty (60) days after
receipt of written notice of the breach from the non-breaching Party.
3.4. UNAUTHORIZED WIRELESS FACILITIES AND LICENSEE POLES
3.4.1. The City Manager will review proposed Wireless Facilities, Licensee Poles, and
other equipment specifications upon request and may amend and supplement
Exhibit B without further approval from City Council.
3.4.2. The City Manager shall deem as unauthorized any type of Wireless Facility or
Licensee Pole not listed in or attached under Exhibit B. The City Manager at his
or her sole discretion may, upon 30 days' written notice, remove or require the
Licensee to remove unauthorized Wireless Facilities or Licensee Poles at
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Licensee's expense without any liability to the City. The City will invoice and
Licensee shall reimburse the City within 30 days of receipt of the invoice for the
City's cost of removal of unauthorized Wireless Facilities and Licensee Poles.
3.4.3. Any Modification to a Wireless Facility or Licensee Pole must be approved by
the City Manager except for routine maintenance or replacement of an existing
Wireless Facilities with equipment that(1)has substantially identical dimensions
and appearance or smaller dimensions and a less intrusive appearance.
3.5 LICENSEE POLES
3.5.1. Licensee shall not install Licensee Poles in the Right-of-Way unless Licensee
demonstrates that that a new Licensee Pole and Wireless Facilities in the Right-
of-Way are necessary to fill a coverage or capacity gap in Wireless Services.
3.5.3. Licensee Poles must be spaced at least 300 linear feet from another Wireless
Facility pole that is capable of supporting Wireless Facilities along the proposed
location,unless otherwise approved by the City Manager in writing.
3.5.4. References to Licensee Poles throughout this Agreement shall not be construed
as permission to install Licensee Poles in the Right-of-Way absent a Permit.
3.5.5. Licensee shall not install wooden poles,but use steel poles at all leased locations.!
3.5.6 Licensee shall allow the City to attach City Equipment to Licensee Poles to the
extent City Equipment does not interfere with Licensee's Wireless Facilities.
3.6 LEASING AND SUBLEASING
No later than ninety(90)days from the Effective Date, Licensee shall notify the City Manager,
in writing, when more than one Carrier is using the same Licensed Location and every ninety
(90)days thereafter, Licensee shall provide an updated notice of the existence of any additional
Carriers added at each Licensed Location during that period. No notice is required if there is no
change in Carriers utilizing the Licensed Locations.
The written notification to the City Manager must identify the Licensed Location.
Licensee may license use of its Wireless Facilities and/or Licensee Poles to Carrier(s) for
provision of Wireless Services only if the use strictly complies with this Agreement.
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ARTICLE 4. PERMITS AND PERMISSION
4.1. REQUEST FOR ALTERNATE LICENSED LOCATION
4.1.1. Upon determination of Licensee that a licensed location is not suitable, Licensee
may request an alternate site location following removal of any Wireless Facility
or Licensee Pole in accordance with the terms of this Agreement.
4.1.1.1. A one-time nonrefundable Administrative Fee of$1,000 for review
of the Alternative Licensed Location This fee applies only to new requests for
alternate locations based on Licensee's business model and does not apply to
revisions to the initial 28 sites based on City rejection or request for modification
of the initially requested sites.;
4.1.1.2. Documents necessary for the review or requested by the City,
including but not limited to:
4.1.1.2.1. Map showing intended location of the Wireless Facility or
Licensee Pole and its distance from a designated Historic Landmark,Park,
or School, if any;
4.1.1.2.2. Representative drawings or Pictures of the intended Wireless
Facility and Licensee Pole; and
4.1.1.2.3. Engineering and construction plans and drawings;
4.2. ALTERNATE LOCATION REVIEW PROCESS
4.2.1. The City shall review a request for Alternate Licensed Location and notify the
Licensee in writing within 30 days of receipt of the request if Licensee needs to
submit additional information. The notice shall include the information that must
be submitted to the City. If Licensee does not submit the missing or additional
information within 180 days of the notice, then the Licensee's request for
Alternate Licensed Location shall be deemed withdrawn.
4.2.2. The City shall review the request for Alternate Licensed Location to determine:
4.2.2.1. removal of Wireless Facility or Licensee Pole from a Licensed
Location in accordance with the terms of this Agreement;
4.2.2.2. The requested site is in the Right-of-Way;
4.2.2.3. Compliance with Article 6 of this Agreement;
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4.2.2.4. That written permission has been obtained by applicable parties as
required by this Agreement; and
4.2.2.5. Compliance with applicable construction, engineering, design
specifications, and other applicable requirements, including the Americans with
Disabilities Act.
4.2.3. The City shall deny a request for Alternate Licensed Location if the Licensee's
request is not in compliance with Articles 3, 4, and 6 of this Agreement.
4.3. PERMITS
4.3.1. Licensee shall not install a Wireless Facility or Licensee Pole without the required
City Permit(s).
4.3.2. The Licensee is authorized to apply for Permit(s). Such Permit application shall
include the permit fee in the amount as provided by City Ordinance.
4.3.3. The Licensee shall give notice to the City Manager of any revocation or denial of
any such Permit affecting its performance hereunder within 15 days of such
revocation or of the day upon which the Licensee received actual or constructive
notice of denial of such Permit.
4.4. INVENTORY
Licensee shall maintain a list of its Wireless Facilities and Licensee Poles and Licensed Locations
during the Term of this Agreement. Licensee shall provide to the City Manager such list on the
first anniversary of the Effective Date and every year thereafter until the end of the Term.
City shall maintain an accounting of all Rental Fees owed from, invoiced to, and received from
Licensee under this Agreement. City shall provide such accounting to the Licensee on the first
anniversary of the Effective Date and every year thereafter until the end of the Term.
ARTICLE 5. RENTAL FEES AND OTHER PAYMENTS
5.1. RENTAL FEE
Licensee shall pay the City an annual Rental Fee of $1,500 per Licensed Location for which
Licensee installs Wireless Facilities or Licensee Poles in the Right-of-Way during the Term of this
Agreement. Except as provided for in this Agreement, the Rental Fee is non-refundable.
5.1.1. The Rental Fee payment for the 28 Licensed Locations associated with this Agreement
("Initial Payment") is due 30 days of execution of this agreement. The Rental Fee for any year
after the Initial Payment shall be paid pursuant to a subsequent agreement to be entered into
between the Parties, which subsequent agreement the Parties agree shall go into effect upon the
expiration or earlier termination of this Agreement, or as soon as reasonably practical thereafter.
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In consideration of the advance payment, if for any reason one or more of the Licensed
Locations is not constructed, Licensee shall be entitled to a refund or credit against future
•payments attributable to that location.
5.2. OTHER PAYMENTS
The Rental Fee payable hereunder shall be exclusive of, and in addition to all ad valorem taxes,
special assessments for municipal improvements, and other lawful obligations of the Licensee
to the City.
5.3. LATE PAYMENT CHARGE
Until the payment due is received, Licensee shall incur 12 percent annual interest, compounded
daily from the due date until payment is made on the amount due, not to exceed an amount
allowable by state or federal law.
5.4. HOLD OVER CHARGE
The Rental Fee for any Hold Over Period, as described in section 12.6, shall be 150%of the Rental
Fee due according to the most recent ROW Rental Fee Schedule. Payment pursuant to this
subsection does not extend or renew this Agreement.
5.5. NON-FUNCTIONING WIRELESS FACILITIES
Licensee shall continue to pay Rental Fees for Wireless Facilities or Licensee Poles that are no
longer in service or operational if the Wireless Facilities or Licensee Poles occupy the Right-of-
Way.
5.6 ADMINISTRATIVE FEES
In addition to Annual License Fees, Licensee shall be responsible for paying an Administrative
Fee of $3,400 for the review of the 28 Licensed Locations Sites payable within 30 days of
execution of this Agreement. If the City rejects one or more sites and resubmission is necessary,
the resubmission will be included in the initial $3,400 fee, with no additional application fee.
5.7 PAYMENT
5.7.1. No later than 30 days before the payment due date,City Manager shall mail notice
to Licensee that includes the current Rental Fees and other fees, payment, or
charges due.
5.7.2. Rental Fee and other payments shall be payable by ACH direct deposit or check
payable to the City of Corpus Christi and sent to the following address:
ATTN: Director of Development Services
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City of Corpus Christi
P.O. Box 9277
Corpus Christi, TX 78469
5.8 REIMBURSEMENT
When under the terms of this Agreement, the City at its own expense has removed or remediated
Licensee's Wireless Facilities or Licensee Poles and Licensee is required to reimburse the City,
the Licensee shall remit payment to the City to the address listed in Article 5.7 within 30 days of
the date of the invoice for removal, remediation, or requirement.
5.9 PAYMENT LIMITS
Following removal of any Wireless Facility or Licensee Pole consistent with the terms of this
Agreement,there will be no compensation due,including any Rental Fees,to the City by Licensee
for such Wireless Facility or Licensee Pole except that the City shall not issue any refunds for any
amounts already paid by Licensee for Wireless Facilities or Licensee Poles that have been
removed.
Notwithstanding the foregoing, if Licensee is required by the City to remove a Wireless Facility
or Licensee Pole and such removal is not the result of Licensee's failure to comply with this
Agreement, City will reimburse Licensee the Rental Fee for such Wireless Facility or Licensee
Pole pro-rated monthly for the remainder of the calendar year.
5.10 COMPLIANCE REVIEW
The City may, at its discretion, upon no less than 30 days prior written notice, require that the
Licensee produce its records related to this Agreement for review by the City Manager to ascertain
the correctness of the information provided under Article 5 of this Agreement. If the City Manager
identifies, as a result of a review of the information provided pursuant to Article 5 of this
Agreement amounts owed by the Licensee from prior periods,the Licensee shall pay a late penalty
of 12 percent per annum on the amount identified, not to exceed an amount allowed by state or
federal law. If the review determines that payment of the Rental Fee was not made in accordance
with the terms of this Agreement and that such payment represents an underpayment of at least
20 percent of the Rental Fees due,the Licensee shall reimburse the City for all reasonable review
costs,and pay the Rental Fees determined to be due and payable to the City hereunder. Such costs
and fees shall be paid within 30 days after determination of amount due is made. If the review
determines that payment of the Rental Fee was not made in accordance with the terms of this
Agreement and that such payment represents an overpayment of any amount,City will credit such
overpayment against Licensee's future obligations to City under this Agreement and reimburse
Licensee the remainder of such amount within 30 days of the end of the Term.
ARTICLE 6. WIRELESS FACILITIES AND LICENSEE POLES REQUIREMENTS
6.1. AESTHETIC REQUIREMENTS
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6.1.1. The Wireless Facilities shall be concealed or enclosed as much as possible in an
equipment box, cabinet or other unit that may include ventilation openings;
external cables and wires hanging off a pole shall be sheathed or enclosed in a
conduit, so that wires are protected and not visible or are visually minimized to
the extent possible.
6.1.2. Licensee shall, at its own expense, install a Camouflaged Wireless Facilities or
Licensee Poles, provided Licensee obtains the requisite approvals and permits
required by this Agreement. Camouflaged Wireless Facilities or Licensee Poles
shall not be installed unless they conform to the aesthetic or design standards for
the proposed installation site, if any, unless otherwise approved by the City
Manager.
6.1.3. In order to minimize negative visual impact to the surrounding area,the Licensee
shall not install Ground Equipment in a Right-of-Way unless approved by the
City Manager in writing. The right granted to Licensee to install Wireless
Facilities and Licensee Poles on or within the Licensed Location shall not
constitute a grant by the City to locate and place facilities or equipment in, above,
under, across, or along the Public Rights-of-Way near or outside the Licensed
Location nor does it delegate the right to Licensee to grant such a right.
6.1.4. Licensee shall comply with and observe all applicable City, State, and federal
historic preservation laws and requirements.
6.1.5. If a Licensed Location becomes an Underground Utility Area during the Term of
this Agreement, then Licensee's grant of permission for the Licensed Location
with the Utility Poles at such Licensed Location Licensee will be instructed to
relocate poles after 60 days notice. Permits required based on a request for
relocation shall be granted in an expedited basis with priority. When installing
Wireless Facilities in the area where the Utility Poles at issue were removed,
Licensee must install Camouflaged Wireless Facilities, Ground Equipment, and
Licensee Poles as authorized by the City Manager and in compliance with
Underground Utility Area's aesthetic standards, as approved by the City
Manager.
6.1.6. Licensee shall not install Licensee Poles in Underground Utility Area except as
authorized by the City Manager and in compliance with any aesthetic standards.
Any Licensee Poles authorized to be installed in Underground Utility Areas shall
be Camouflaged Wireless Facilities or Licensee Poles as required by the City
Manager.
6.1.7 Licensee shall not install Licensee Poles within a Historic District except as
authorized by the City Manager and in compliance with any aesthetic standards.
Any Licensee Poles authorized to be installed within a Historic District shall be
Camouflaged Wireless Facilities or Licensee Poles as required by the City
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Manager. Applications for approval of aesthetic review must be reviewed within
ten (10) days of submission.
6.1.9. The City Manager may request that Licensee explore the feasibility of using
certain equipment, including certain Wireless Facility, Ground Equipment,
Licensee Pole, to improve the aesthetics of the Wireless Facilities, Licensee
Poles, Ground Equipment or any portion thereof or to minimize the impact to the
aesthetics of the surrounding area. If Licensee, at its sole discretion, chooses to
utilize or install such equipment at its sole cost and expense, Exhibit B will be
amended to add the equipment.
6.2 INSTALLATION
Licensee shall, at its own cost and expense, install the Wireless Facilities or Licensee Poles in a
good and workmanlike manner and in accordance with the requirements promulgated by the City
Manager, as such may be amended from time to time so long as those requirements do not exceed
industry accepted standards. Licensee's work shall be subject to the regulation, control and
direction of the City Manager. All work done in connection with the installation, operation,
maintenance, repair, and/or replacement of the Wireless Facilities or Licensee Poles shall be in
compliance with all applicable laws, ordinances, codes, rules and regulations of the City,
applicable county, the state, and the United States ("Laws").
6.3 INSPECTIONS
6.3.1. The City Manager may perform visual inspections of any Wireless Facilities or
Licensee Poles located in the Right-of-Way as the City Manager deems
appropriate without notice. If the inspection requires physical contact with the
Wireless Facilities,the City Manager shall provide written notice to the Licensee
within five business days of the planned inspection. Licensee may have a
representative present during such inspection.
6.3.2. In the event of an emergency situation,the City may,but is not required to,notify
Licensee of an inspection. The City may take action necessary to remediate the
emergency situation and the City Manager shall notify Licensee as soon as
practically possible after remediation is complete.
6.4 PLACEMENT
6.4.1. Parks. Placement of Wireless Facilities and Licensee Poles on any Parks, Park
roads, sidewalk, or property is prohibited unless dedicated as Right-of-Way and
the placement complies with city ordinance, state law, private deed restrictions,
or other public or private restrictions on the use of the Park.
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6.4.1.1 The Licensee shall not install Ground Equipment in a Right-of-Way
that is within 150 feet of the boundary line of a Park, unless approved by the City
Manager in writing.
6.4.1.2. The Licensee shall not install a Licensee Pole in a Right-of-Way that
is within 300 feet of the boundary line of a Park, unless approved by the City
Manager in writing.
6.4.2. Traffic Signals. Licensee shall neither allow nor place a Wireless Facility on a
Traffic-Control Device or Traffic-control Signal or any structure supporting a
Traffic-Control Device or Traffic-control Signal.
6.4.3. City Infrastructure. Licensee shall neither allow nor install Wireless Facilities or
Licensee Poles on any part of a City bridge, overpass, or tunnel, unless approved
by the City Manager in writing.
6.4.4. Streets. Licensee Poles and Ground Equipment shall not be installed in Right-of-
Ways that are adjacent to streets and thoroughfares that are 50 feet or less in width
and both sides of the street or thoroughfare are adjacent to exclusively single-
family residential lots, unless approved by the City Manager in writing, and if in
compliance with all applicable zoning and land use regulations, and applicable
deed restrictions.
6.4.5. Historic Landmarks. A Wireless Facility must not be within 300 feet of a historic,
site, structure, or Historic Landmark recognized by the City, state or federal
government under the City Code of Ordinances, State Law, including, but not
limited to, Sec. 442.001(3) of the Texas Government Code, and federal law,
including,but not limited to, 16 U.S.C.470,unless approved by the City Manager
in writing.
6.4.6. Schools. Licensee shall adhere to applicable federal radio frequency (RF)
emissions standards.
6.4.7. Poles. Wireless Facilities on a Utility Pole or Licensee Pole shall be installed
at least 8 feet above the ground.
6.4.8. Right-of-Way. Licensee Poles and ground-level Wireless Facilities shall be
placed, as much as possible, within two feet of the outer edge of the Right-of-
Way line. Licensee Pole or Wireless Facility shall not impede pedestrian or
vehicular traffic in the Right-of-Way. If a Licensee Pole or Wireless Facility is
installed in a location that is not in accordance with the plans approved by the
City Manager and impedes pedestrian or vehicular traffic or does not comply or
otherwise renders the Right-of-Way non-compliant with applicable laws,
including the American Disabilities Act, then the Licensee shall remove the
Wireless Facility or Licensee Pole. City shall provide Licensee 60 days notice
and an opportunity to cure. Licensee shall be subject to a$2,000 per day penalty
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from date of noncompliance until the Licensee Pole or Wireless Facility is
relocated to the correct area within the Licensed Location, regardless of whether
the Licensee's contractor, subcontractor, or vendor installed the Licensee Pole or
Wireless Facility. Licensee may request from the City Manager a waiver of
underground construction requirements to allow for"microtrenching" at a depth
of less than 24 inches for lateral connections connecting Wireless Facilities to the
fiber-optic network.
6.4.9. Design Manual. Upon adoption of City Guidelines for Construction in the
Rights-of-Way Manual, any Placement or Modification of Wireless Facilities and
Licensee Poles shall comply with the City's Guidelines for Construction in, so
long as those guidelines are not more restrictive than addressed under federal law,
or otherwise mutually agreed by the Parties.
6.4.10. Windstorm. All affected materials and installation shall comply with Texas
Department of Insurance Requirements for windstorm resistant construction for
design wind speed as required by 2015 International Building Code. Licensee shall
be responsible for contracting with a licensed structural engineer in the State of
Texas to perform all inspections and provide documentation for windstorm
certification.
6.4.11. Visibility triangle. No Wireless Facility or Licensee Pole shall be installed that does
not conform to the viability requirements found in the Corpus Christi Unified
Development Code subsection 4.2.9 existing or as amended.
6.5 ELECTRICAL SUPPLY
Licensee shall be responsible for obtaining any required electrical power service to the Wireless
Facilities and Licensee Poles. The City shall not furnish to the Wireless Facilities or Licensee
Poles any required electrical power. The City shall not be liable to the Licensee for any stoppages
or shortages of electrical power furnished to the Wireless Facilities or Licensee Poles, including
without limitation, stoppages or shortages caused by any act, omission, or requirement of the
public utility serving the structure or the act or omission of any other tenant or Licensee of the
structure, or for any other cause beyond the control of the City. Licensee shall not be entitled to
any abatement of the Rental Fee for any such stoppage or shortage of electrical power.
6.6 FIBER CONNECTION
Licensee shall be responsible for obtaining access and connection to fiber optic lines or other
backhaul solutions that may be required for its Wireless Facilities or Licensee Pole. This
Agreement does not include the right to use the Public Rights-of-Way outside Licensed Location
to conduct other businesses nor to install landlines, including fiber, for backhaul or any other
purpose.
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6.7 GENERATORS
Licensee shall not allow or install generators or back-up generators in the Right-of-Way, unless
there is an force majeure type emergency to require such installation.
6.8 EQUIPMENT DIMENSIONS
6.8.1. Wireless Facilities. Licensee's Wireless Facilities installed above ground shall
not exceed 4 feet in height, 2 feet in width, and 2 feet in depth, unless otherwise
approved, in writing, by the City Manager. Licensee shall not install any
equipment not described in or included in Exhibit B. Extensions to an existing
Wireless Facility shall not result in a combined width of more than 3 feet as
measured from the edge of the pole, including a Utility Pole and a Licensee Pole,
and any subsequent Modifications to said pole. Licensee shall be allowed an
additional cabinet for emergency battery back-up power that will not be counted
towards the dimension requirements previously stated in this paragraph,provided
the battery back-up power cabinet does not exceed 2 feet in height,2 feet in width,
and 21 inches in depth. Licensee's Wireless Facilities must be camouflaged or
concealed.
6.8.2. Licensee Poles. Licensee Poles shall not exceed 40 feet in height as measured
from the ground, and with subsequent Modifications shall not exceed 45 feet in
height as measured from the ground. Licensee Poles shall not exceed 3 feet in
diameter or 3 feet in width as measured from the edge of the pole, including a
Utility Pole and a Licensee Pole, and any subsequent Modifications to said pole.
All installed poles must contain the required operating equipment to be within or
on the Pole. Licensee Poles will be required to be camouflaged.
6.8.3. Ground Equipment. Any Ground Equipment that contains equipment necessary
for supporting Wireless Facilities and Licensee Poles approved by the City
Manager shall be no more than 3 feet in height, 3.5 feet in width, and 2 feet in
depth and not total more than 21 cubic feet, excluding any concrete pad that is at
grade or no more than one inch above grade, per Licensed Location. Licensee
shall be allowed an additional cabinet for emergency battery back-up power that
will not be counted towards the dimension requirements previously stated in this
paragraph, provided the battery back-up power cabinet does not exceed 2 feet in
height, 2 feet in width, and 21 inches in depth. Any allowed Ground Equipment
will be required to be concealed or camouflaged.
6.9 TREE MAINTENANCE
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Licensee, its contractors, and agents shall obtain written permission from the City Manager before
trimming trees hanging over its Licensee Poles to prevent branches of such trees from contacting
attached Wireless Facilities or the Licensee Poles. When directed by the City Manager, Licensee
shall trim under the supervision and direction of the City Manager. The City shall not be liable
for any damages, injuries, or claims arising from Licensee's actions under this section.
6.10 SIGNAGE
6.10.1. Licensee shall post its name, location identifying information, and emergency
telephone number in an area on the Licensee Pole that is visible to the public.
Signage required under this section shall not exceed 4" x 6", unless otherwise
required by law (e.g. RF ground notification signs) or the City Manager.
6.10.2. Except as required by law or by the Utility Pole owner, Licensee shall not post
any other signage or advertising on the Wireless Facilities, Licensee Pole, or
Utility Pole.
6.11 OVERHEAD LINES PROHIBITED IN UNDERGROUND UTILITY AREAS.
In Underground Utility Areas, Licensee shall not allow or install overhead lines connecting to
Licensee Poles. All overhead lines connecting to the Licensee Pole in Licensed Locations where
other overhead telecommunications or utility lines are or will be buried below ground as part of a
project, shall be buried below ground.
6.12 REPAIR
Whenever the installation,placement, attachment, repair, removal, operation, use, or relocation of
the Wireless Facility, Licensee Pole, or any portion thereof is required or permitted under this
Agreement, and such installation, placement, attachment, repair, removal, operation, use, or
relocation causes any property of the City or any third party to be damaged or to have been altered
in such a manner as to make it unusable,unsafe,or in violation of any law,rule,regulation or code,
Licensee, at its sole cost and expense, shall promptly repair and return such property to its original
condition. If Licensee does not repair such property or perform such work as described in this
paragraph, then the City shall have the option, upon 15 days' prior written notice to Licensee or
immediately if there is an imminent danger to the public,to perform or cause to be performed such
reasonable and necessary work on behalf of Licensee and to charge Licensee for the reasonable
and actual costs incurred by the City. Licensee shall reimburse the City for the costs in accordance
with Article 5.8 of this Agreement.
6.13 GRAFFITI ABATEMENT
As soon as practical, but not later than 30 days from the date Licensee receives notice thereof,
Licensee shall remove all graffiti on any of its Wireless Facilities or Licensee Poles located in the
Right of Way.
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ARTICLE 7. INTERFERENCE WITH OPERATIONS AND COLLOCATIONS
7.1. NO LIABILITY
7.1.1. The City shall not be liable to Licensee for any damage caused by other Licensees
with Wireless Facilities sharing the same Utility Pole.
7.1.2. The City shall not be liable to Licensee by reason of inconvenience, annoyance
or injury to the Wireless Facility, Licensee Pole, or activities conducted by
Licensee therefrom, arising from the necessity of repairing any portion of the
Right-of-Way, or from the making of any necessary alteration or improvements,
in, or to, any portion of the Right-of-Way, or in, or to, its fixtures, appurtenances
or equipment. The City will use reasonable efforts not to cause material
interference to Licensee's operation of its Wireless Facility or Licensee Pole.
7.2. NO INTERFERENCE
7.2.1. Licensee's Wireless Facilities must not cause harmful interference to the City's
radio frequency, wireless network, or communications operations ("City
Operations) and other Licensee's Wireless Facilities or similar third party
equipment in the Right-of-Way or adjacent City property("Protected
Equipment"). If Licensee's Wireless Facilities interfere with the City's
Operations, then Licensee and city shall work cooperatively together
immediately to ascertain the cause of the interference, and cure the issue. Upon
determination of the interference, and if necessary to protect city health and
safety concerns Licensee shall immediately cease operation of the Wireless
Facilities causing said interference. After a determination of the cause of the
interference and a three-day period to cure, if Licensee continues to operate
Wireless Facilities that cause interference, such Wireless Facilities may be
deemed unauthorized and subject to the provisions of Section 3.4 of this
Agreement. If Licensee's Wireless facilities interfere with Protected
Equipment, then Licensee shall take the steps necessary to correct and eliminate
such interference within 24 hours of determination of cause, and in no event
more than three days. If the Licensee is unable to resolve the interference issue
within this timeframe, it will voluntarily power down the Wireless Facilities
causing the interference, except for intermittent testing until such time as the
interference is remedied
7.2.2. Following installation or Modification of a Wireless Facility, the City Manager
may require Licensee to test the Wireless Facility's radio frequency and other
functions to confirm that it does not interfere with the City's Operations or
Protected Equipment.
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ARTICLE 8. ABANDONMENT, RELOCATION AND REMOVAL
8.1. ABANDONMENT OF OBSOLETE WIRELESS FACILITIES AND LICENSEE POLES
Licensee shall remove Wireless Facilities or Licensee Poles when such facilities are Abandoned
regardless of whether it receives notice from the City. Unless the City sends notice that removal
must be completed immediately to ensure public health, safety, and welfare, the removal must be
completed within the earlier of 90 days of it being Abandoned or within 90 days of receipt of
written notice from the City. When Licensee removes or abandons permanent structures in the
Right-of-Way, the Licensee shall notify the City Manager in writing of such removal or
abandonment and shall file with the City Manager the location and description of each Wireless
Facility or Licensee Pole removed or abandoned. The City Manager may require the Licensee to
complete additional remedial measures necessary for public safety and the integrity of the Right-
of-Way.
8.2. REMOVAL REQUIRED BY CITY
8.2.1. Licensee shall, at its sole cost and expense, promptly disconnect, remove, or
relocate the applicable Wireless Facility or Licensee Pole within the time frame
and in the manner required by the City Manager if the City Manager reasonably
determines that the disconnection,removal,or relocation of any part of a Wireless
Facility or Licensee Pole (a) is necessary to protect the public health, safety,
welfare, or City property, (b) the Wireless Facility, Licensee Pole, or portion
thereof, is adversely affecting proper operation of streetlights, or City property,
or (c) Licensee loses or fails to obtain all applicable licenses, permits, and
certifications required by Law for its Wireless Facility, Licensee Pole, or use of
any Licensed Location under this Agreement. If the City Manager reasonably
determines that there is imminent danger to the public, then the City may
immediately disconnect, remove, or relocate the applicable Wireless Facilities or
Licensee Pole at the Licensee's sole cost and expense.
8.2.2. The City Manager shall provide 90 days written notice to the Licensee before
removing a Wireless Facility or Licensee Pole under this Section 8.2,unless there
is imminent danger to the public health, safety, and welfare.
8.2.3. Licensee shall reimburse City for the City's actual cost of removal of its Wireless
Facilities or Licensee Poles in accordance with this Agreement within 30 days of
receiving the invoice from the City.
8.3. REMOVAL BY LICENSEE
8.3.1. If the Licensee removes a Wireless Facility or Licensee Pole at its own discretion,
it shall notify the City Manager in writing not less than 10 business days prior to
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removal. Licensee shall obtain all permits required for removal of its Wireless
Facility or Licensee Pole prior to removal.
8.3.2. Except as provided in Section 5.9, the City shall not issue any refunds for any
amounts paid by Licensee for Wireless Facilities or Licensee Poles that have been
removed.
8.4. REMOVAL OR RELOCATION REQUIRED FOR CITY PROJECT
8.4.1. Licensee understands and acknowledges that the City may require Licensee to
remove or relocate its Wireless Facility, Licensee Pole, or any portion thereof
from the Right-of-Way, and Licensee shall at the City Manager's direction
remove or relocate the same at Licensee's sole cost and expense, whenever the
City Manager reasonably determines that the relocation or removal is needed for
any of the following purposes:
8.4.1.1. Required for the construction, completion, repair, widening,
relocation, or maintenance of,or use in connection with, any City construction or
maintenance project.
8.4.1.2. Required for the creation of an Underground Utility Area.
8.4.2. In any such case, the City shall use reasonable efforts to afford Licensee a
reasonably equivalent alternate location, if available.
8.4.3. If Licensee fails to remove or relocate the Wireless Facility, Licensee Pole, or
portion thereof as requested by the City Manager within 90 days of Licensee's
receipt of the request, then the City shall be entitled to remove the Wireless
Facility, Licensee Pole, or portion thereof at Licensee's sole cost and expense,
without further notice to Licensee, and Licensee shall, within 30 days following
issuance of invoice for the same, reimburse the City for its reasonable expenses
incurred in the removal (including, without limitation, storage expenses) of the
Wireless Facility, Licensee Pole, or portion thereof.
8.5. REMOVAL REQUIRED AFTER TERMINATION OR EXPIRATION OF LICENSE
Within 30 days after termination or expiration of this Agreement, Licensee shall commence
removal of all of Licensee's Wireless Facilities and Licensee Poles from the Right-of-Way and
peaceably surrender the Right-of-Way to City in the same condition the Right-of-Way was in on
the Effective Date, excepting ordinary wear and tear. Removal of all the Licensee's Wireless
Facilities and Licensee Poles under this section must be completed within 180 days. If Licensee
fails to begin removal of the Wireless Facilities or Licensee Poles on or before the 30th day after
the Agreement expires or terminates or fails to complete removal within 180 days, the City may
remove, store, or dispose of any remaining portion of the Wireless Facilities or Licensee Poles in
any manner the City Manager deems appropriate. Licensee shall, within 30 days after receipt of
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the City's written request and invoice, reimburse the City for all costs incurred by the City in
connection therewith (including any reasonable overhead and storage fees).
8.6. REMOVAL REQUIRED AFTER TERMINATION
Within 30 days after termination of this agreement, Licensee shall commence removal of the
Wireless Facility or Licensee Pole from the Right-of-Way and peaceably surrender the Right-of-
Way to City in the same condition the Right-of-Way was in on the Effective Date, excepting
ordinary wear and tear. If Licensee fails to complete removal within 90 days,the City may remove,
store, or dispose of any remaining portion of the Wireless Facilities or Licensee Poles in any
manner the City Manager deems appropriate. Licensee shall, within 30 days after receipt of the
City's written request and invoice, reimburse the City for all costs incurred by the City in
connection therewith(including any reasonable overhead and storage fees).
8.7. OWNERSHIP
No part of a Wireless Facility or Licensee Pole constructed, erected or placed on the Right-of-Way
by Licensee will become, or be considered by the City as being affixed to or a part of, the Right-
of-Way. All portions of the Wireless Facility or Licensee Pole constructed, modified, erected or
placed by Licensee on the Right-of-Way will be and remains the property of Licensee and may be
removed by Licensee at any time during or after the Term.
8.8. RESTORATION
Licensee shall repair any damage to the Right-of-Way,and the property of any third party resulting
from Licensee's removal activities(or any other of Licensee's activities hereunder)within 10 days
following the date of such removal or relocation, at Licensee's sole cost and expense, to include
restoration of the Right-of-Way and property to substantially the same condition as it was
immediately before the Effective Date, including restoration or replacement of any damaged trees,
shrubs or other vegetation. Such repair, restoration and replacement shall be subject to the sole,
reasonable approval of the City Manager.
8.9. LICENSEE RESPONSIBLE
Licensee shall be responsible and liable for the acts and omissions of Licensee's employees,
temporary employees,officers,directors,consultants,agents,Affiliates,subsidiaries,sublicensees,
sublessees, and subcontractors in connection with the performance of this Agreement, as if such
acts or omissions were Licensee's acts or omissions.
8.10. ALLOCATION OF FUNDS FOR REMOVAL AND STORAGE
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The City has appropriated $0 under this Agreement to pay for the cost of any removal or storage
of Wireless Facilities or Licensee Pole, as authorized under this Article, and no other funds are
allocated in connection with the performance of this Agreement.
ARTICLE 9. ENVIRONMENTAL LAW REQUIREMENTS
Licensee shall comply with all rules, regulations, statutes, or orders of the Environmental
Protection Agency,the Texas Commission on Environmental Quality,and any other governmental
agency with the authority to promulgate environmental rules and regulations applicable to
Licensee's use of any Licensed Location under this Agreement("Environmental Laws"). Licensee
shall promptly reimburse the City for any fines or penalties levied against the City because of
Licensee's failure to comply with Environmental Laws.
Licensee shall not possess, use, generate, release, discharge, store, dispose of, or transport any
Hazardous Materials on, under, in, above, to, or from the site except in compliance with the
Environmental Laws. "Hazardous Materials" mean any substances, materials, or wastes that are
or become regulated as hazardous or toxic substances under any applicable federal, state, or local
laws,regulations,ordinances,or orders. Licensee shall not deposit oil,gasoline,grease,lubricants,
or any ignitable or hazardous liquids, materials, or substances in the City's storm sewer system or
sanitary sewer system or elsewhere on City Property in violation of the Environmental Laws.
Except for its contractors, subcontractors, and vendors, Licensee will not have any responsibility
for managing, monitoring, or abating, nor be the owner of, nor have any liability for, any
Hazardous Materials that it did not bring into the Licensed Locations.
ARTICLE 10. SECURITY
Within 30 days of the execution of this Agreement, Licensee shall maintain and furnish to the City
Manager a Security in favor of the City. "Security" means either an executed performance bond,
letter of credit or a bank or cashier's check made payable to the City, or other form of security
acceptable to the City Attorney for the purpose of protecting the City from the costs and expenses
associated with Licensee's failure to comply with its material obligations under and throughout
the life of this Agreement, including but not limited to, (a) the City's restoration of the Right-of-
Way; (b) the City's removal of any of Licensee's Wireless Facilities or Licensee Poles that are
Abandoned or not properly maintained or that need to be removed to protect public health, safety,
welfare, or City property; (c) the City's remediation of environmental and hazardous waste issues
caused by Licensee; or (d) the City's recoupment of Rental Fees that have not been paid by
Licensee in over 12 months, after Licensee receives reasonable notice from the City of any of the
non-compliance listed above and opportunity to cure. An example of a City approved letter of
credit has been provided in Exhibit"C."
The amount of the Security shall be (a) $25,000 for the installation of any and all Wireless
Facilities and(b) $100,000 for the installation of any and all Licensee Poles.
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The Bond,if any,must be in a form approved by the City Attorney and issued by a corporate surety
authorized and admitted to write surety bonds in Texas. An example of a City approved bond has
been provided in Exhibit"D." The surety must be listed on the current list of accepted sureties on
federal bonds published by the United States Treasury Department or reinsured for any liability up
to $100,000.00, by a reinsurer listed on the U.S. Treasury list.
In the event the surety or party issuing the Security cancels or decides not to renew or extend the
Security, Licensee shall obtain, and provide to the City Attorney for approval, a replacement
Security with another surety, authorized to do business in Texas, within 30 days of the date the
Security has been cancelled or non-renewed. If Licensee fails to provide the replacement Security
within the 30-day period, the City Manager, after consulting with the City Attorney, may
immediately suspend Licensee from any further performance under this Agreement and begin
procedures to terminate for default pursuant to the terms of Section 12.3.
In the event that the City draws upon the Security, Licensee must replenish the amount of the
Security within 30 days. Notwithstanding any provisions of this Agreement to the contrary, the
City Manager shall be required to notify Licensee in writing as a precondition to drawing on,
seeking payment under, or executing against the Security.
In the event that Licensee shall fully and faithfully comply with all of the terms of this Agreement,
the City shall return the Security to Licensee within 60 days of the Agreement's expiration or
termination, to the extent not otherwise applied in compliance with this Agreement.
ARTICLE 11. RELEASE, INDEMNIFICATION,AND INSURANCE
11.1. RELEASE
LICENSEE AGREES TO AND SHALL RELEASE THE CITY, ITS AGENTS,
EMPLOYEES, OFFICERS, AND LEGAL REPRESENTATIVES (COLLECTIVELY
THE "CITY") FROM ALL LIABILITY FOR INJURY, DEATH, DAMAGE, OR LOSS
TO PERSONS OR PROPERTY SUSTAINED IN CONNECTION WITH OR
INCIDENTAL TO PERFORMANCE UNDER THIS AGREEMENT, EVEN IF THE
INJURY, DEATH, DAMAGE, OR LOSS IS CAUSED BY THE CITY'S SOLE OR
CONCURRENT NEGLIGENCE AND/OR THE CITY'S STRICT PRODUCTS
LIABILITY OR STRICT STATUTORY LIABILITY. INDEMNIFICATION DOES
NOT EXTEND TO GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.
NEITHER LICENSEE NOR CITY WILL BE LIABLE TO THE OTHER FOR ANY
INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES,
OR LOST PROFITS FOR ANY CLAIM ARISING OUT OF THIS AGREEMENT. THIS
SECTION WILL SURVIVE EXPIRATION OR TERMINATION OF THIS
AGREEMENT.
11.2. INDEMNIFICATION
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11.2.1. LICENSEE AGREES TO AND SHALL DEFEND, INDEMNIFY, AND
HOLD HARMLESS (COLLECTIVELY "INDEMNIFY" AND
"INDEMNIFICATION") THE CITY, ITS AGENTS, EMPLOYEES,
OFFICERS,AND LEGAL REPRESENTATIVES(COLLECTIVELY THE
"CITY PARTIES") FOR ALL THIRD-PARTY CLAIMS, SUITS,
DAMAGES, LIABILITIES, FINES, AND EXPENSES INCLUDING,
WITHOUT LIMITATION, REASONABLE ATTORNEYS' FEES,
COURT COSTS, AND ALL OTHER DEFENSE COSTS
(COLLECTIVELY "LOSSES") FOR INJURY, DEATH, DAMAGE, OR
LOSS TO PERSONS OR PROPERTY SUSTAINED IN CONNECTION
WITH LICENSEE'S USE OR OPERATION OF ANY WIRELESS
FACILITY, LICENSEE POLE, OR UTILITY POLE UNDER THIS
AGREEMENT INCLUDING, WITHOUT LIMITATION THOSE
CAUSED BY LICENSEE'S AND/OR ITS AGENTS', EMPLOYEES',
OFFICERS', DIRECTORS', CONSULTANTS' OR
SUBCONTRACTORS' ACTUAL OR ALLEGED NEGLIGENCE OR
INTENTIONAL ACTS OR OMISSIONS.
11.2.2. LICENSEE'S INDEMNIFICATION OBLIGATIONS UNDER THIS
AGREEMENT WILL SURVIVE FOR FOUR YEARS AFTER THE
AGREEMENT EXPIRES OR TERMINATES.
11.2.3. NOTWITHSTANDING ANYTHING TO THE CONTRARY,
LICENSEE'S INDEMNIFICATION OBLIGATION UNDER THIS
AGREEMENT IS LIMITED TO $500,000 PER OCCURRENCE.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, LICENSEE
WILL NOT BE REQUIRED TO INDEMNIFY THE CITY PARTIES FOR
THE CITY PARTIES' ACTS OR OMISSIONS.
11.2.4. SUBCONTRACTORS' INDEMNIFICATION: LICENSEE SHALL
REQUIRE ALL OF ITS SUBCONTRACTORS TO RELEASE AND
INDEMNIFY THE CITY TO THE SAME EXTENT AND IN
SUBSTANTIALLY THE SAME FORM AS ITS RELEASE AND
INDEMNITY TO THE CITY AS SET FORTH IN THIS AGREEMENT.
11.3. INDEMNIFICATION PROCEDURES
11.3.1 The following procedures shall apply to indemnification under this Agreement:
11.3.1.1 Notice of Claims. If the City receives notice of any claim or
circumstances that could give rise to Losses, the City shall give written notice to
the other party within 10 days. The notice must include the following:
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11.3.1.1.1 A description of the indemnification event in
reasonable detail;
11.3.1.1.2 The basis on which indemnification may be due;
and
11.3.1.1.3 The anticipated amount of Losses.
This notice does not estop or prevent the City from later asserting a different basis
for indemnification or a different amount of Losses than that indicated in the
initial notice. If the City does not provide this notice within the 10-day period, it
does not waive any right to indemnification except to the extent that the Licensee
is prejudiced, suffers loss, or incurs expense because of the delay.
11.3.2 Defense of Claims. The Licensee may assume the defense of the claim at its own
expense with counsel chosen by it that is reasonably satisfactory to the City. The
Licensee shall then control the investigation, defense, and any negotiations to
settle the claim. Under these circumstances, City will fully cooperate with
Licensee in defense of the claim Within 10 days after receiving written notice of
the indemnification request, the Licensee must advise the City as to whether or
not it will defend the claim. If the Licensee does not assume the defense,the City
shall assume and control the defense, and all defense expenses shall constitute
Losses.
11.3.3 Continued Participation. If the Licensee elects to defend the claim, the City may
retain separate counsel at its own expense to participate in (but not control) the
defense and to participate in (but not control) any settlement negotiations. The
City will provide the Licensee with reasonable information and assistance related
to such claim. The Licensee may settle the claim without the consent or
agreement of the City unless the settlement(i)would result in injunctive relief or
other equitable remedies or otherwise require the City to comply with restrictions
or limitations that adversely affect the City; (ii) would require the City to pay
amounts that the Licensee does not fund in full; or (iii) would not result in the
City's full and complete release from all liability to the plaintiffs or claimants who
are parties to or otherwise bound by the settlement.
11.4. INSURANCE
11.4.1 The Licensee shall maintain certain insurance and Endorsements in full force
and effect at all times during the term of this Agreement and any extensions
thereto. Such insurance is described as follows:
11.4.1.1. Risks and Limits of Liability. The Licensee shall maintain the
following coverage and limits of liability:
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COVERAGE LIMIT OF LIABILITY
Workers' Compensation Statutory for Workers' Compensation
Bodily Injury by Accident $1,000,000 (each accident)
Employer's Liability Bodily Injury by Disease $1,000,000 (policy limit)
Bodily Injury by Disease $1,000,000 (each employee)
Commercial General Liability:
Bodily and Personal Injury;
Bodily Injury and Property Combined Limits of$2,000,000 per occurrence and
Damage; Products and $2,000,000 aggregate
Completed Operations Coverage;
Explosion, Collapse, and
Underground
$2,000,000 combined single limit for each accident for
Automobile Liability bodily injury and property damage coverage for all owned,
hired, and non-owned Autos
Aggregate limits are per 12-month policy period, unless otherwise indicated.
11.4.1.2. Form of Policies. The insurance may be in one or more policies of
insurance, which must be reasonably approved by the City Manager and City
Attorney; however, such approval shall not be unreasonably withheld.
11.4.1.3. Issuers of Policies. The issuer of any policy (1) shall have a
Certificate of Authority to transact insurance business in Texas or (2) shall be an
eligible non-admitted insurer in the State of Texas and have a Best's rating of at
least B+and a Best's Financial size Category of Class VI or better, according to the
most current edition of Best's Key Rating Guide.
11.4.1.4. Additional Insured Parties. The City and its officers and
employees shall be included as additional Insureds as their interest may appear
under this Agreement on the above commercial general liability and automobile
liability policies.
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11.4.1.5. Deductibles. Licensee shall be responsible for and pay any claims
or losses to the extent of any deductible amounts and waives any claim it may have
for the same against the City, its officers, agents, or employees.
11.4.1.6. Cancellation. Upon receipt of notice from its insurer Licensee will
provide the City Manager 30 days' advance written notice of any cancellation.
Within the 30-day period, Licensee shall provide other suitable policies in lieu of
those about to be canceled or non-renewed so as to maintain in effect the required
coverage. If Licensee does not comply with this requirement,the City Manager, at
his or her sole discretion, may immediately suspend Licensee from any further
performance under this Agreement and begin procedures to terminate for default
pursuant to the terms of Section 12.4.
11.4.1.7. Subrogation. Licensee waives any claim or right of subrogation to
recover against the City, its officers, agents, or employees and each of Licensee's
insurance policies must on its face or by endorsement state that the issuer waives
any claim or right of subrogation to recover against the City, its officers, agents, or
employees.
11.4.1.8. Endorsement of Primary Insurance. Each policy, except
Workers' Compensation, shall be primary and non-contributory with any insurance
or program of self-insurance maintained by the City.
11.4.1.9. Liability for Premium. Licensee shall pay all insurance premiums
on its own insurance policies.The City shall not be obligated to pay any premiums.
11.4.1.10. Subcontractors. Licensee shall require all subcontractors to
adhere to the same insurance as required of Licensee or Licensee shall insure the
activities of the subcontractors in Licensee's insurance policies.
11.4.2 Certificates of Insurance.At the time this Agreement is signed and
as long as this Agreement continues, Licensee must furnish to the City Manager
certificates of insurance, including any blanket additional insured endorsements
that meet the requirements of Section 11.4 of this Agreement. These certificates
must bear the Licensee's name in which it is insured. If requested by the City
Manager, Licensee must provide the originals of all policies referred to above, or
copies certified by the agent or attorney-in-fact issuing them. Licensee shall
provide updated certificates of insurance to the City Manager upon request. Every
certificate of insurance Licensee delivers for the shall:
11.4.2.1. evidence coverage in effect for a twelve(12) month period;
11.4.2.2. include the company name and address, policy number, NAIC
number or AMB number, and authorized signature;
11.4.2.3. include the name and reference numbers and indicate the name and
address of the project manager or authorized contact person in the Certificate
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Holder Box; and be appropriately marked to accurately identify all coverages and
limits of the policy;
11.4.2.4. be appropriately marked to accurately identify:
11.4.2.4.1. All coverage and limits of the required under this
Agreement;
11.4.2.4.2. effective and expiration dates; and
11.4.2.4.3. waivers of subrogation, endorsement of primary
insurance and additional insured language, as described above.
11.4.2.5. Licensees shall, upon the City's request, deliver an assurance letter
from Licensee's insurer stating that the insurer intends to issue Licensee a new
policy that meets the terms of Section 11.4.
ARTICLE 12. TERM AND TERMINATION
12.1. TERM
12.1.1. This Agreement is effective on the Effective Date and unless sooner
terminated under other provisions of this Agreement, will remain in effect for
one year.
12.2. TERMINATION FOR CAUSE BY CITY
12.2.1. If Licensee defaults under this Agreement,the City may terminate this Agreement
subject to Licensee's ability to cure such defaults below. The City's right to
terminate this Agreement for Licensee's default is cumulative of all its rights and
remedies which exist now or in the future. Default by Licensee includes, but is
not limited to:
12.2.1.1. Failure of the Licensee to comply with any material term of this
Agreement;
12.2.1.2. Licensee becomes insolvent.
12.2.1.3. The Licensee's failure to obtain all licenses, permits, and
certification required by the City under this Agreement and pay all fees associated
therewith after the City has notified the Licensee that licenses, permits, and
certifications must be obtained to work in the Right-of-Way;
12.2.1.4. All or a substantial part of Licensee's assets are assigned for the
benefit of its creditors;
12.2.1.5. A receiver or trustee is appointed for Licensee; or
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12.2.1.6. Licensee fails to install any Wireless Facilities or Licensee Poles in
the Right-of-Way within 1 year of the Effective Date.
12.2.2. If a default occurs, the City Manager shall deliver a written notice to Licensee
describing the default and the termination date. If the City Manager sends a
default notice, the Licensee shall have 60 days from the receipt of such notice to
cure the default (unless the nature of the event takes longer to cure and the
Licensee commences a cure within such 60-day period and thereafter diligently
pursues it but will not exceed 180 days unless agreed to by the City Manager
which agreement will not be unreasonably withheld). If Licensee cures the
default before the proposed termination date, the proposed termination is
ineffective.
12.2.3. If the default is not cured in the time and manner set out above or by the City
Manager, then the City Manager may immediately terminate this Agreement by
notifying Licensee in writing of such termination. After receiving the notice,
Licensee shall, immediately cease operations and remove Wireless Facilities and
Licensee Poles from the Right-of-Way in accordance with the Sections 8.5 and
8.7 of this Agreement, and any payment due shall be remitted by Licensee within
30 days of the receipt of the notice to the address in the Section 1.1 of this
Agreement.
12.3 TERMINATION BY LICENSEE
12.4.1. The Licensee may terminate this Agreement at any time by giving 30 days
advance written notice to the City Manager.
12.4.2. If the Licensee does not remove all Wireless Facilities and Licensee Poles from
the Right-of-Way within the time period required by Section 8.5 of this
Agreement, the Wireless Facilities and Licensee Poles shall be deemed to be in a
Hold Over Period subject to the payment obligations in Section 12.5 and Article
5 of this Agreement.
12.4 HOLDING OVER
If Licensee's Wireless Facilities or Licensee Poles continue to occupy the Right-of-Way after
expiration of this Agreement, as extended, such occupancy shall not be deemed to be a renewal or
extension of this Agreement, but shall be a month to month use of the Right-of-Way (known as
the Hold Over Period) provided Licensee a) pays the Holdover Fee and other payments required
in Article 5 of this Agreement and b) continues to comply with this Agreement.
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ARTICLE 13. TRANSFER OF AUTHORITY
13.1. ASSIGNMENT
13.1.1. Licensee may not assign, delegate, transfer, or sell all or any portion of its rights,
privileges and obligations under this Agreement without written notice to and the
prior written consent of the City Manager, which consent will not be
unreasonably withheld. No assignment in law or otherwise shall be effective
until the assignee has filed with the City Manager an instrument, duly executed,
reciting the fact of such assignment, accepting the terms hereof, and agreeing to
comply with all of the provisions hereof. A mortgage or other pledge of assets
in a bona fide lending transaction shall not be considered an assignment of this
Agreement for the purposes of this Article. Notwithstanding the foregoing, this
Agreement may be assigned by Licensee without any approval or consent of
City to any entity which acquires all or substantially all of Licensee's assets in
the market by reason of a merger, acquisition or other business reorganization
provided that such acquiring entity is bound by all of the terms, and conditions
of this Agreement. Licensee shall provide the City notice of any such merger,
acquisition or other business reorganization within a reasonable period of time
after the consummation thereof
13.1.2. This Agreement binds and benefits the Parties and their legal successors and
permitted assigns; however, this provision does not alter the restrictions on
assignment and disposal of assets set out in this Article. This Agreement does
not create any personal liability on the part of any officer or agent of the City.
13.1.3. Notwithstanding anything to the contrary contained in this Agreement, Licensee
will, whenever in its sole discretion it is required or appropriate for the operation
of its business,have the right, without notice to or consent of City, City Manager,
or any other party, to assign all or any portion of its rights under this Agreement
in whole or in part,to (a) any Affiliates as long as such entity has expertise in the
operation of Wireless Facilities, Licensee Poles, or provision of Wireless
Services; (b) any entity with which the Licensee or an Affiliate of the Licensee
shares joint ownership of the Wireless Facilities or Licensee Poles; or (c) any
entity that is a holder of a then-current Agreement; or d)to Licensee's customers.
The Licensee shall give written notice to the City Manager within thirty(30)days
of such assignment.
13.2. BUSINESS STRUCTURE AND ASSIGNMENTS
Nothing in this clause,however, prevents the assignment of accounts receivable or the creation of
a security interest as described in §9.406 of the Texas Business & Commerce Code. In the case
of such an assignment, Licensee shall immediately furnish to the City Manager with proof of the
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assignment and the name, telephone number, and address of the assignee and a clear identification
of the fees to be paid to the assignee.
ARTICLE 14. RECORDS AND AUDITS
14.1. RECORDS
14.1.1. Licensee shall keep complete and accurate GIS location information,maps,plans,
equipment inventories, and other records related to Licensee's Wireless Facilities
and Licensee Poles in Licensed Locations.
14.1.2. The City Manager at any time examine, review, or verify the records described
in 14.1.1.
14.2. INSPECTIONS AND AUDITS
14.2.1. City representatives shall have the right to perform, or to have performed, (1)
inspections or audits of the records described in 14.1.1 and (2) inspections of all
places in the Right-of-Way where work is undertaken in connection with this
Agreement. Licensee shall keep its books and records available for this purpose
for at least four years after this Agreement terminates or expires. The inspection
or audit may be performed by City staff or third-party representatives engaged by
the City. This provision does not affect the applicable statute of limitations.
14.2.2. In addition to other records or filings required hereunder or by law, the Licensee
shall maintain and provide access to a current map by either paper or electronic
means, upon request by the City Manager, showing the approximate locations of
the Wireless Facilities and Licensee Poles in the Right-of- Way.
14.2.3. The City Manager may reasonably require the keeping of additional records or
accounts reasonably necessary to determine the Licensee's compliance with the
terms of this Agreement.
14.3. CONFIDENTIAL INFORMATION
The City Manager shall not disclose any confidential information reproduced for documentation
of audit issues unless required by law. If the City receives a request to review or copy confidential
information under the Texas Public Information Act or related law (the "Act"), the City shall
comply with the requirements for handling third party information under the Act, including
notifying the Licensee that a request to review or copy Confidential Information has been
submitted to the City. Confidential information deemed subject to disclosure under the Act by the
Attorney General of the State of Texas shall be disclosed.
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ARTICLE 15. MISCELLANEOUS
15.1. FORCE MAJEURE
Other than the Licensee's failure to pay amounts due and payable under this Agreement, the
Licensee shall not be in default or be subject to sanction under any provision of this Agreement
when its performance is prevented by Force Majeure. Force Majeure means an event caused by
epidemic; act of God; fire, flood, hurricanes, tornadoes, or other natural disasters; explosions;
terrorist acts against the City or Licensee; act of military or superior governmental authority that
Licensee is unable to prevent by exercise of reasonable diligence; war; riots; or civil disorder;
provided,however, that such causes are beyond the reasonable control and without the willful act,
fault, failure or negligence of the Licensee. The term does not include any changes in general
economic conditions such as inflation,interest rates,economic downturn or other factors of general
application; or an event that merely makes performance more difficult, expensive or impractical.
Performance is not excused under this section following the end of the applicable event of Force
Majeure. Licensee is not relieved from performing its obligations under this Agreement due to a
strike or work slowdown of its employees. Force Majeure does not entitle Licensee to
reimbursement of payments.
This relief is not applicable unless the affected party does the following:
15.1.1. uses due diligence to remove the effects of the Force Majeure as quickly as
possible and to continue performance notwithstanding the Force Majeure; and
15.1.2. provides the other party with prompt written notice of the cause and its anticipated
effect.
The City Manager will review claims that a Force Majeure that directly impacts the City or
Licensee has occurred and render a written decision within 14 days. The decision of the City
Manager is final.
Licensee is not relieved from performing its obligations under this Agreement due to a strike or
work slowdown of its employees. Licensee shall employ only fully trained and qualified personnel
during a strike.
15.2. DISPUTE RESOLUTION
15.2.1. In the event of a dispute between the Parties that arises during the Term of this
Agreement, the Parties shall attempt to expeditiously and amicably resolve any
dispute through good faith discussions in the ordinary course of business at the
level at which the dispute originates.
15.2.2. If the Parties are not able to resolve the dispute in the ordinary course of business,
the City Manager and representatives of other City departments that are involved
38
in the dispute will meet with Licensee's authorized representative in an attempt
to resolve the dispute.
15.2.3. If the Parties are unable to resolve the dispute pursuant to Article 15.2.2 of this
Agreement and if either of the Parties intends to file suit, the Parties shall agree
to first refer the matter to mediation before a mutually-agreed upon neutral,third-
party mediator and to diligently pursue a mediated settlement. If within thirty
(30) days of the request to mediate, the Parties cannot agree on a mediator, the
mediator selected by the City shall be the default mediator. Mediation shall begin
within thirty(30)days of choosing a mediator,unless the Parties otherwise agree,
in writing, to a later date.
15.2.3.1. The Parties shall initiate mediation by providing written notice to
the other Party stating a desire to mediate the dispute and describing the disputed
issues.
15.2.3.2. Mediation shall occur in Corpus Christi, Texas and each party shall
bear its own costs incurred in connection with the mediation, including traveling
expenses. The parties shall equally share the costs of the mediator's fees.
15.2.3.3. The resolution of any dispute during mediation will be in writing
and made available to both Parties by the mediator.
15.2.3.4. If a party receiving a mediation request refuses to mediate,
participate in selecting a mediator, to attend mediation, or fails to attend the
mediation,this dispute resolution provision will be deemed to have been fulfilled
by the aggrieved party and the aggrieved party is permitted to pursue any other
remedies it may have.
15.2.4. Except in emergencies,no lawsuit under or related to this Agreement by one party
against the other may be filed until mediation of the issue has ended as determined
by the mediator or has ended in accordance with section 15.2.3.4. Before
initiating litigation, either party shall notify the other party of its intent to sue.
15.2.5. This section does not apply to disputes that involve a question of law.
15.2.6. Notwithstanding the existence of any dispute between the Parties, insofar as is
possible under the terms of this Agreement, each Party shall continue to perform
the obligations required of it during the continuation of any such dispute, unless
enjoined or prohibited by a court of competent jurisdiction or unless this
Agreement terminates or expires under the terms provided herein.
15.3. ACCEPTANCE AND APPROVAL; CONSENT
An approval by the City Manager,or any other instrumentality of City,of any part of the Licensee's
performance shall not be construed to waive compliance with this Agreement or to establish a
standard of performance other than required by this Agreement or by law. Where this Agreement
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contains a provision that either party approve or consent to any action of the other party, such
approval or consent shall not be unreasonably withheld or delayed. Except as provided for in this
Agreement, the City Manager are not authorized to vary the terms of this Agreement.
15.4. REPRESENTATIONS AND WARRANTIES
In addition to the representations, warranties, and covenants of the Licensee to the City set forth
elsewhere herein, the Licensee represents and warrants to the City and covenants and agrees
(which representations, warranties, covenants and agreements shall not be affected or waived by
any inspection or examination made by or on behalf of the City) that, as of the Effective Date
and throughout the term of this Agreement:
15.4.1. Organization, Standing and Power. The Licensee is a Neutral Host Provider
provider duly organized, validly existing and in good standing under the laws of
the state of its organization and is duly authorized to do business in the State of
Texas and in the City. The Licensee has all requisite power and authority to own
or lease its properties and assets, subject to the terms of this Agreement, to
conduct its businesses as currently conducted and to execute,deliver and perform
this License and all other agreements entered into or delivered in connection with
or as contemplated hereby.
15.4.2. Truthful Statements. The Licensee warrants, to the best of its knowledge and
belief, that information provided and statements made in connection with its this
Agreement were true and correct when made and are true and correct upon
execution hereof
15.4.3. Condition of Right-of-Way. Licensee accepts the Right-of-Way where Wireless
Facilities and Licensee Poles are authorized to be located "AS IS," without any
express or implied warranties of any kind.
15.5. STATEMENT OF ACCEPTANCE
Licensee and City, for themselves, their successors and assigns, hereby accept and agrees to be
bound by all terms, conditions and provisions of this Agreement.
15.6. RELATIONSHIP OF THE PARTIES
Licensee shall be responsible and liable for its contractors, subcontractors, and sublicensees. The
City has no control or supervisory powers over the manner or method of Licensees' contractors'
and subcontractors' performance under this Agreement. All personnel Licensee uses or provides
are its employees, contractors, or subcontractors and not the City's employees, agents, or
subcontractors for any purpose whatsoever.
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15.7 SEVERABILITY
If any part of this agreement is for any reason found to be unenforceable, all other parts remain
enforceable unless the result materially prejudices either party.
15.8. ENTIRE AGREEMENT
This Agreement merges the prior negotiations and understandings of the Parties and embodies the
entire agreement of the Parties. No other agreements, assurances, conditions, covenants (express
or implied), or other terms of any kind, exist between the Parties regarding this Agreement.
15.9. WRITTEN AMENDMENT
Unless otherwise specified elsewhere in this Agreement,this Agreement may be amended only by
written instrument executed on behalf of the City (by authority of an ordinance adopted by the
City Council) and Licensee. The City Manager is only authorized to perform the functions
specifically delegated to him or her in this Agreement.
15.10. APPLICABLE LAWS AND VENUE
15.10.1. This Agreement is subject to the laws of the State of Texas, the City Charter and
Ordinances,the laws of the federal government of the United States, and all rules
and regulations of any regulatory body or officer having jurisdiction(collectively
"Law"), including any lawful court or administrative decisions, judgments or
orders that have been fully and finally adjudicated, including any appeals of such
decisions judgments, or orders("Decisions"). This Agreement shall be governed,
construed, and enforced according to the laws of the State of Texas, without
regard to its choice of law provisions.
If any material provision of this Agreement is superseded or affected by Law,
then the Parties shall negotiate in good faith to revise this Agreement.
15.10.2. Subject to the Parties' obligation to submit to the dispute resolution process or
mediation as described in this Agreement, Licensee shall submit any and all
litigation and legal proceedings between any of them and the City to the exclusive
jurisdiction of the state or federal courts in the State of Texas and waive any
objections or right as to forum non conveniens, lack of personal jurisdiction, or
similar grounds. Venue for any litigation relating to this Agreement is Nueces
County, Texas.
15.11. NOTICES
15.11.1. All notices to either party to the Agreement must be in writing and must be
delivered by hand, facsimile, United States registered or certified mail, return
receipt requested, United States Express Mail, Federal Express, Airborne
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Express, UPS or any other national overnight express delivery service. The
notice must be addressed to the party to whom the notice is given at its address
set out in Article I, Section 1.1 of this Agreement or other address the receiving
party has designated previously by proper notice to the sending party. Postage or
delivery charges must be paid by the party giving the notice.
15.11.2. Licensee shall address a copy to the City Manager at the address set out in Article
I, Section 1.1 of all notices pertaining to Article 6 and 8 and other notices to the
City Manager required under this Agreement.
15.12. CAPTIONS
Captions contained in this Agreement are for reference only, and, therefore, have no effect in
construing this Agreement. The captions are not restrictive of the subject matter of any section in
this Agreement.
15.13. NON-WAIVER
If either Party fails to require the other to perform a term of this Agreement, that failure does not
prevent the Party from later enforcing that term and all other terms. If either Party waives the
other's breach of a term, that waiver does not waive a later breach of this Agreement.
15.14. ENFORCEMENT
The City Attorney may enforce all legal rights and obligations under this Agreement without
further authorization. Licensee shall provide to the City Attorney all documents and records
pertaining to this Agreement that the City Attorney requests to assist in determining Licensee's
compliance with this Agreement, with the exception of those documents made confidential by
federal or State law or regulation.
15.15. AMBIGUITIES
If any term of this Agreement is ambiguous, it shall not be construed for or against any Party on
the basis that the Party did or did not write it.
15.16. SURVIVAL
Licensee and the City shall remain obligated to the other Party under all provisions of this
Agreement that expressly or by their nature extend beyond the termination or expiration of this
Agreement, including, but not limited to, the provisions regarding warranty, indemnification and
confidentiality.
All representations and warranties contained in this Agreement shall survive the term of the
Agreement.
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15.17. CERTIFICATE OF INTERESTED PARTIES
Licensee agrees to comply with Texas Government Code section 2252.908 and complete Form
1295 Certificate of Interested Parties as part of this agreement.
Form 1295 requires disclosure of"interested parties" with respect to entities that enter contracts
with cities. These interested parties include:
(1) persons with a"controlling interest" in the entity, which includes:
a. an ownership interest or participating interest in a business entity by virtue of
units, percentage, shares, stock or otherwise that exceeds 10 percent;
b. membership on the board of directors or other governing body of a business entity
of which the board or other governing body is composed of not more than 10
members; or
c. service as an officer of a business entity that has four or fewer officers, or service
as one of the four officers most highly compensated by a business entity that has
more than four officers.
(2) a person who actively participates in facilitating a contract or negotiating the terms of a
contract with a governmental entity or state agency, including a broker, intermediary,
adviser or attorney for the business entity.
Form 1295 must be electronically filed with the Texas Ethics Commission at
https://www.ethics.state.tx.us/whatsnew/elf info form1295.htm. The form must then be printed,
signed, notarized and filed with the City. For more information, please review the Texas Ethics
Commission Rules at https://www.ethics.state.tx.us/legal/ch46.html.
15.18. PARTIES IN INTEREST
This Agreement does not bestow any rights upon any third party, but binds and benefits the City
and Licensee only.
15.19. REMEDIES CUMULATIVE
Unless otherwise specified elsewhere in this Agreement, the rights and remedies contained in this
Agreement are not exclusive, but are cumulative of all rights and remedies which exist now or in
the future. Neither party may terminate its duties under this Agreement except in accordance with
its provisions.
43
15.20. LICENSEE DEBT
IF CITY MANAGER BECOMES AWARE THAT LICENSEE OWES ANY DELINQUENT
SUM OF MONEY IN AN AMOUNT GREATER THAN $100.00 TO THE CITY OR ANY
RELATED ENTITY FOR AD VALOREM TAXES ON REAL OR PERSONAL PROPERTY
LOCATED WITHIN THE BOUNDARIES OF THE CITY ("DEBT"), IT SHALL NOTIFY
LICENSEE IN WRITING. IF LICENSEE DOES NOT PAY THE DEBT WITHIN 30 DAYS OF
SUCH NOTIFICATION, THE CITY MANAGER MAY DEDUCT FUNDS IN AN AMOUNT
EQUAL TO THE DEBT FROM ANY PAYMENTS OWED TO LICENSEE UNDER THIS
AGREEMENT.
15.21. PARTS INCORPORATED
All of the above-described sections listed in the Table of Contents and the listed exhibits are made
a part of and incorporated into this Agreement.
15.22. CONTROLLING PARTS
If a conflict between the sections of the Agreement and any of the exhibits arises, the sections of
the Agreement control over the exhibits.
15.23 CHANGE OF LAW
If any federal, state, or local laws or regulations (including, but not limited to, those issued by the
Federal Communications Commission or its successor agency, and those issued by the Public
Utility Commission of Texas) and any binding judicial interpretations thereof (collectively,
"Laws") that govern any aspect of the rights or obligations of the Parties under this Agreement
shall change after the Effective Date and such change makes any aspect of such rights or
obligations inconsistent with the then-effective Laws, then the Parties agree to promptly amend
the Agreement as reasonably required to accommodate and/or ensure compliance with any such
legal or regulatory change
15.24 SIGNATURES
EXECUTED IN DUPLICATE by the PARTIES, both of which hereby represent that the
signatures to this AGREEMENT, below, are of those persons with the capacity and authority to
legally bind the PARTIES.
44
LICENSEE
.....--ekae
Chris Glass
SVP, General Counsel
Mobilitie, LLC
ACKNOWLEDGMENT
STATE OF GEORGIA §
§
COUNTY OF §
The foregoing instrument was acknowledged before me this day of 2017,
by Chris Glass, SVP, General Counsel of Mobilitie, LLC, on behalf of said company.
Notary Public's Signature
45
CALIFORNIA CERTIFICATE OF ACKNOWLEDGMENT
A notary public or other officer completing this certificate verifies only the identity of
the individual who signed the document to which this certificate is attached,and not
' the truthfulness,accuracy,or validity of that document.
State of California )
County of _-_---O JI t��4 )
On UG / 2_1 /2011 before me, J /(aCLO t2-1Q. &eQ r e anthe officer) �,
n � /� (here Insert pard title of l
ein
personally appeared ' ( pZLQS
who proved to me on the basis of satisfactory evidence to be the person whose names) is/me subscribed to
the within instrument and acknowledged to me that he/ ►ehthey executed the same in his/+rer't herr
authorized capacity(+est, and that by his/her/their-signature] on the instrument the person/ or the entity
upon behalf of which the person(yqacted,executed the instrument.
I certify under PENALTY OF PERJURY under the laws of the _ _ _ _
State of California that the foregoing is true and correct. ,,,,. MACKENZIE GEE 1
9 9 _.�
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!"��E COMM. #2151196 z
cc_� ,C Notary Public •California o
WITNESS myhand and official seal. z virlio3/ Orange County
1 .,.,<r. _My Comm.Expires Anr.29,2020/
getSignature4/(, fetiitzez
(Seal)
Optional Information
Although the information in this section is not required by law,it could prevent fraudulent removal and reattachment of this acknowledgment to an
unauthorized document and may prove useful to persons relying on the attached document.
Description of Attached Document Additional Information
The preceding Certificate of Acknowledgment is attached to a document Method of Signer Identification
titled/for the purpose of Proved to me on the basis of satisfactory evidence:
(")form(s)of identification (")credible witness(es)
-- — — -- -- — Notarial event is detailed in notary journal on:
containing pages,and dated Paget Entry t
The signer(s)capacity or authority is/are as: Notary contact:
Individual(s) Other
l 1 Attorney-in-Fact
[ ', Additional Signer(s) i 1 Signer(s)Thumbprint(s)
1 Corporate Officer(s)
Title(s) i
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Partner Limited/General
i.1 Trustee(s)
( I Other:
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representing:
Name(s)of Person(s)or retity(ies)Signer is Representing
•
C Copyright 2007-2015 Notary Rotary,Inc.PO Box 41400,Des Moines,IA 50311-0507 All Rights Reserved Item Number 101772 Please contact your Authorized Reseller to purchase copies of this form
IN TESTIMOkY WHEREOF, the City of Corpus Christi has caused these presents to be executed on
this the a.3 ay of , N , 2017.
ATTEST: CITY OF CORPUS CHRISTI
•
ct,c�,e1, l -1 By: �> c •
Re ecca Huerta, Margie C. se
City Secretary City Manager
AU I N KI[.�•
IT COWL ZS 1
SECRETA v ►/
THE STATE OF TEXAS §
COUNTY OF NUECES §
This instrument was acknowledged before me on J.)14 c y , 2017, by Margie C. Rose,
as City Manager of the City of Corpus Christi, a Texas Municipal Corporation, on behalf of said
corporation.
yr\ - ete
Notitry Public, State of Tex
,CRY PU
JENNIFER M PYLE
My Commission Expires
•�I
Co{•C✓ April 1,2018
'et
APPROVED AS TO LEGAL FORM:
- .0 77-17
Buck Brice (Date)
Assistant City Attorney
For City Attorney
46
Exhibit A
Licensed Locations
Candidate Code Nearest Street Address GIS or GPS Coordinates
SA90XS170F 4809 Castenon Street 27.745127,-97.435146
SA90XS171B 5002 Prescott Street 27.742201,-97.432774 04
SA90XS629G 3905 Fred's Folly Drive 27.652794,-97.356687
SA90XSA19A 638 Timon Boulevard 27.835629,-97.380256
SA90XSDQJA 3033 McKinzie Road 27.839803,-97.573663
SA90XSDQUB 2509 Buford Street 27.780771,-97.416525
SA90XSDQVA 2320 Ruth Street 27.782888,-97.414815
SA90XSDQXB 5186 Oakhurst Drive 27.718091,-97.395105
SA90XSDQYB 4002 Brett Street 27.720654,-97.398718
SA90XSDRGD 2414 Viola Drive 27.743879,-97.421130
SA90XSDRID 904 Mustang Trail 27.720661,-97.371213
SA90XSDRLB 5704 Hall Avenue 27.798978,-97.470478
SA90XSDSFA 809 Skyline Drive 27.802628,-97.476207
SA90XSDSJA 11168 Leopard Street 27.846105,-97.586056
SA90XSDSMC 5510 Gollihar Road 27.718671,-97.367026
SA90XSDSRA 5011 Deepwood Circle 27.722359,-97.401800
SA90XSDSTC 8609 County Road 54 27.830029,-97.533984
SA90XSDTCC 4789 Whataburger Way 27.724518,-97.378449
SA90XSDTMC 1199 Flour Bluff Drive 27.673593,-97.297612
SA90XSDTUB 1337 Crescent Drive 27.705819,-97.359655
SA90XSDTYB 1678 6th Street 27.774462,-97.399103
SA90XSDTZC 300 Cole Street 27.773499,-97.395561
SA9OXSDUCA 2702 McArdle Road 27.736300,-97.419869
SA9OXSDUWC 5576 Weber Road 27.714440,-97.403255
SA9OXSDUXA 3917 Capri Drive 27.715316,-97.404304
SA9OXSDVAC 5321 Weber Road 27.718008,-97.401017
SA9OXSDVBF 5282 Wilkinson Drive 27.720844,-97.404852
SA9OXSDVSC 7174 Althea Court 27.671976,-97.389881
Exhibit B
Approved Wireless Facilities and Equipment List
(1) RF Omni Antenna-3'TaII x 6" Diameter
(2) 2 Runs of'A"coax-From the antenna to the Radio
(3) GPS Antenna-3"Tall x 3" Diameter
(4) Nokia Radio-10"x12"x6"
(5) Nokia GemTek UE Relay-25"Tall x 8"Diameter
(6) RayCap Breaker box-13"x11"x5"
(7) Disconnect-11"x9"x5"
(8) Meter Can-16"x8"x5"
(9) 2" Rigid Conduit—20'AGL(For Aerial Power Only)
49
Exhibit C — Sample Letter of Credit
Issuance. At the request and for the account of Licensee, (Name/Address),
("Applicant"), we, [Name of Bank, Address, City, Zip Code], ("Issuer") issue this irrevocable
independent standby letter of credit number ("Standby") in favor
of City of Corpus Christi,Director of Finance, 1201 Leopard Street 4th Floor,Corpus Christi,Texas
78401 ("Beneficiary") in the maximum aggregate amount of USD
Undertaking. Issuer undertakes to Beneficiary to pay Beneficiary's demand for payment in the
form of Annex A (Payment Demand) or Annex B (Payment Demand after Notice of Non-
extension) completed as indicated and presented to Issuer at the above address of Issuer at or
before the close of business on the expiration date. Presentation of any demand under this
Standby may be made by telefax sent from 361-826-3601 to [Issuer's telephone number(s)] with
a cover sheet marked 'URGENT. FAX PRESENTATION UNDER STANDBY LETTER OF
CREDIT [REFERENCE NO.]', and the document(s)received and printed out by Issuer shall be
deemed to be original under ISP98 Rule 4.15 (Original, Copy, and Multiple Documents).
Beneficiary is requested to telephone Issuer at [telephone number(s)] and to identify this Standby
and Beneficiary's presentation being telefaxed that same business day, as a courtesy and not as a
condition limiting Issuer's obligations.
Overdrawing. If a demand exceeds the amount available, but the presentation otherwise
complies, Issuer undertakes to pay the amount available.
Expiration. The expiration date of this Standby is
Automatic Extension. The expiration date of this Standby shall be automatically extended for
successive one-year periods from the then current expiration date, unless 90 or more calendar days
before the then current expiration date, Issuer notifies Beneficiary in writing by certified mail or
nationally recognized overnight courier at the above address that Issuer elects not to extend the
expiration date.
Payment. Payment against a complying presentation shall be made within three business days after
presentation at the place for presentation or by wire transfer to a duly requested account of
Beneficiary.
ISP98. This Standby is issued subject to the International Standby Practices 1998 (ISP98) ,
(International Chamber of Commerce Publication No. 590), to the extent not inconsistent with
the laws of the State of Texas, which laws govern this Letter of Credit, and more particularly
with the provisions of Chapter 5 of the Texas Business and Commerce Code currently in effect.
Issuer's Charges and Fees. Issuer's charges and fees for issuing, amending, or honoring this
Standby are for Applicant's account and shall not be deducted from any payment Issuer makes
under this Standby.
Very Truly Yours,
Authorized Signatory
50
Annex A: Payment Demand
DATE
NAME/ADDRESS OF ISSUER(ABOVE)
Re: Standby Letter of Credit number , dated , issued by (Issuer)
("Standby").
The undersigned Beneficiary demands payment of USD under the Standby.
Beneficiary states that Applicant is obligated to pay to Beneficiary the amount demanded as
provided in the License Agreement between Beneficiary and Applicant, as Applicant has failed to
comply with its material obligations under the License Agreement. This Standby supports
Applicant's obligations to Beneficiary under that Agreement.
Beneficiary requests that payment be made (at the place of presentation) or (by wire transfer to
Beneficiary's following account:
City of Corpus Christi, Texas
By its authorized officer:
(Signed and dated by the City Manager (including Interim or Acting) or any Assistant City
Manager or the Director of Finance (including Interim or Acting). The signature of such official
claiming such title together with title designation on the draw demand shall be conclusive on the
issuer without further exemplification or other proof of identity or title.)
51
Annex B: Payment Demand after Notice of Non-extension
DATE
NAME/ADDRESS OF ISSUER (ABOVE)
Re: Standby Letter of Credit number , dated , issued by(Issuer)
("Standby").
The undersigned Beneficiary demands payment of USD under the Standby.
Beneficiary states that the Standby is set to expire fewer than 30 days from the date hereof because
Issuer has given a notice of non-extension of the Standby and no satisfactory replacement standby
has been timely received.The amount demanded is required to secure the obligations of Applicant
as provided in the License Agreement.
Beneficiary requests that payment be made (at the place of presentation) or (by wire transfer to
Beneficiary's following account:
City of Corpus Christi, Texas
By its authorized officer:
(Signed and dated by the City Manager (including Interim or Acting) or any Assistant City
Manager or the Director of Finance (including Interim or Acting). The signature of such official
claiming such title together with title designation on the draw demand shall be conclusive on the
issuer without further exemplification or other proof of identity or title.)
EXHIBIT "D"- SAMPLE PERFORMANCE BOND
PERFORMANCE BOND
THE STATE OF TEXAS §
§
COUNTY OF NUECES §
, ("Principal") and ("Surety"), shall pay
to the City of Corpus Christi,Texas ("City"), the sum of$ in accordance with the terms
and conditions stated below:
On or about this date, the Principal executed an Agreement in
writing with the City for ("Agreement"),
which is incorporated into this Bond.
The conditions of this obligation are that if the Principal performs its obligations under the
terms of the Agreement and this Bond in all respects,then this obligation is void and has no further
force and effect; otherwise this obligation remains in effect and the sum of $ is
payable to the City on demand.
The Surety relieves the City and its representatives from the exercise of any diligence
whatever in securing the Principal's compliance with the terms of the Agreement, and the Surety
waives any notice to it of the Principal's default or delay in the performance of the Agreement.
The Surety shall take notice of and is held to have knowledge of all acts or omissions of the
Principal, its agents, and representatives in all matters pertaining to the Agreement.
The City and its representatives may at any time, without notice to the Surety, make any
changes in the terms and conditions of the Agreement, or extend it, and may add to or deduct from
the Principal's obligations under the Agreement. Such changes,if made,do not in any way relieve,
release, condition, or limit the obligation in this Bond and undertaking or release the Surety
therefrom.
SURETY AND PRINCIPAL AGREE TO AND SHALL DEFEND, INDEMNIFY, AND
HOLD HARMLESS THE CITY, ITS AGENTS, AND REPRESENTATIVES FROM ALL
CLAIMS, CAUSES OF ACTION, LIABILITIES, DAMAGES, FINES, AND EXPENSES
ARISING OUT OF OR RESULTING FROM ANY FAILURE ON THE PART OF THE
PRINCIPAL,ITS AGENTS,AND REPRESENTATIVES,TO FULLY PERFORM UNDER THE
AGREEMENT, INCLUDING ANY CHANGES OR EXTENSIONS TO IT.
If the City brings any suit or other proceeding at law on the Agreement or this Bond, or
both,the Principal and the Surety shall pay to the City the additional sum of 10 percent of whatever
amount the City recovers, which sum of 10 percent is agreed by all parties to be indemnity to the
City for the expense of and time consumed by its City Attorney, his or her assistants, and office
staff, and other costs and damages to the City. The amount of 10 percent is fixed and liquidated
by the parti, s because the exact damage to the City would be difficult to ascertain.
This Bond and all obligations created under it shall be performable in Nueces County,
Texas, and all are non-cancelable. This Bond must be automatically renewed annually on the
anniversary of the effective date of the Bond for the term of the Agreement and any extensions,
unless the Surety gives the Principal and the City 30 days written notice before the renewal date
that the Surety will not renew this Bond, in which case the Principal shall provide the City with a
replacement bond (in the same form as this Bond) before the renewal date. The provisions of
V.T.C.A., Government Code Section 2253, as amended, control even though the Statute may not
be applicable.
All notices required or permitted by this Bond must be in writing and are deemed delivered
on the earlier of the date actually received or the third day following: (1)deposit in a United States
Postal Service post office or receptacle; (2) with proper postage (certified mail, return receipt
requested); and (3) addressed to the other party at the address set out on the signature page of this
Bond or at such other address as the receiving party designates by proper notice to the sending
party.
CERTIFICATE OF INTERESTED PARTIES FORM 1295
1 of 1
Complete Nos.1-4 and 6 if there are interested parties. OFFICE USE ONLY
Complete Nos.1,2,3,5,and 6 if there are no interested parties. CERTIFICATION OF FILING
1 Name of business entity filing form,and the city,state and country of the business entity's place Certificate Number:
of business. 2017-236039
Mobilitie, LLC
Newport Beach, CA United States Date Filed:
2 Name of governmental entity or state agency that is a party to the contract for which the form is 07/13/2017
being filed.
City of Corpus Christi Date Acknowledged:
�ZBuC1
3 Provide the identification number used by the governmental entity or state agency to track or identify the ontraci.,and provide a
description of the services,goods,or other property to be provided under the contract.
DS071117
Installation of wireless small cell communications facilities within the City of Corpus Christi's rights-of-way.
Nature of interest
4 Name of Interested PartyCity,State,Country(place of business) (check applicable)
Controlling I Intermediary
Mobilitie Holdings, LLC Newport Beach,CA United States X
5 Check only if there is NO Interested Party. ❑
\\\���IIIIIIiI//I�
6 AFFIDAVIT ,\`� ��ta s 'O '',, I swear,or affirm,under penalty of perju ,that the above disclosure is true and correct.
•
•
EXPIRES /
GEGR
G
MAY 12,20118
% O• ,p "/
• ign. of a the 'zed agent of contracting business entity
AFFIX NOTARY SIVAj Sl `A CE
IIIIIII111\
-C1.1
Sworn to and subscribed before me,by the said on NA TPI lDFJ L.L ,this the \J day of , u LL1 ,
20 \ ,to certify which,witness my hand and seal of office.
f �R I►J E.SL-G'[\-- GE6Q-CTP+ Ntpc2_14 • c-
Signature of officer administering oath Printed name of officer administering oath Title of officer administering oath
Forms provided by Texas Ethics Commission www.ethics.state.tx.us Version V1.0.883