Small Cell Master License Agreement i
SMALL CELL MASTER LICENSE AGREEMENT
THIS SMALL CELL MASTER LICENSE AGREEMENT (the "Agreement") is dated
effective as of December 2.2— , 2020 (the "Effective Date"), and entered into by and between
the City of Salina, Kansas, a political subdivision of the State of Kansas (the "LICENSOR"), and
USCOC Nebraska/Kansas, LLC, a Delaware limited liability company ("LICENSEE").
Recitals
A. LICENSOR is the owner of certain Public Right-of-Way within the City of Salina,
Kansas, including certain Municipal Facilities located in the Public Right-of-Way; and
B. WHEREAS, LICENSEE desires to use space in the Public Right-of-Way for the
construction, operation and maintenance of a telecommunications Network serving wireless
customers and utilizing Equipment permitted by the Federal Communications Commission
("FCC") and in accordance with FCC rules and regulations; and
C. WHEREAS, for the purpose of deploying and/or operating the Network,
LICENSEE also wishes to locate, place, attach, install, operate, control, and maintain Equipment
on Municipal Facilities,Third-Party Poles, and LICENSEE Poles in the Public Right-of-Way; and
D. WHEREAS, LICENSEE is willing to compensate the LICENSOR in exchange for
a grant and right to use and physically occupy portions of the Public Right-of-Way.
Agreement
NOW,THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree to the following covenants, terms, and
conditions:
1. DEFINITIONS. The following definitions shall apply generally to the provisions of this
Agreement:
1.1 Affiliate. Affiliate means each person or entity which falls into one or more of the
following categories: (a) each person or entity having, directly or indirectly, a controlling
interest in LICENSEE; (b) each person or entity in which LICENSEE has, directly or
indirectly, a controlling interest; or (c) each person or entity that, directly or indirectly, is
controlled by a third party which also directly or indirectly controls LICENSEE. An
"Affiliate" shall in no event mean any creditor of LICENSEE solely by virtue of its status
as a creditor and which is not otherwise an Affiliate by reason of owning a controlling
interest in,being owned by, or being under common ownership, common management, or
common control with, LICENSEE.
1.2 Applicable Standards. "Applicable Standards" means all applicable engineering
and safety standards governing the installation, maintenance and operation of Equipment
and the performance of all work in or around Municipal Facilities and includes the most
current versions of National Electric Safety Code ("NESC"), the National Electrical Code
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("NEC"), and the regulations of the Occupational Safety and Health Administration
("OSHA"), each of which is incorporated by reference in this Agreement, and other
reasonable safety and engineering requirements of the LICENSOR or other federal, State
or local authority with jurisdiction over Municipal Facilities.
1.3 City. "City" means the City of Salina,Kansas, a municipality under the laws of the
State of Kansas.
1.4 Commence Installation. "Commence Installation" shall mean the date that
LICENSEE commences to install its Equipment, or any expansion thereof, in the PROW.
1.5 Commence Operation. "Commence Operation" shall mean the date that
Equipment is installed and operational by LICENSEE pursuant to this Agreement.
1.6 Equipment. "Equipment" means the equipment cabinets, antennae, utilities, fiber
optic cables,wires, and related equipment, including any Micro-wireless Facility,whether
referred to singly or collectively, to be installed and operated by LICENSEE and that
comprise a Small Cell installation. "Equipment" does not include "Ground Equipment," as
defined below.
1.7 Ground Equipment. "Ground Equipment" means the equipment cabinets,utilities,
and related equipment, whether referred to singly or collectively, to be installed on the
ground within the PROW as part of an attachment of a Wireless Facility to a Third-Party
Pole.
1.8 Information Service. "Information Service" means the offering of a capability for
generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making
available information and content via telecommunications, and includes electronic
publishing, as the same may evolve over time.
1.9 Laws. "Laws"means any and all laws,regulations,ordinances,resolutions,judicial
decisions,rules,permits and approvals applicable to the subject matter of this Agreement.
1.10 LICENSEE Pole. "LICENSEE Pole" means a pole, or other "wireless support
structure" as that term is defined in K.S.A. § 66-2019(b)(21) and amendments thereto,
owned or operated by LICENSEE.
1.11 Micro-wireless Facility. "Micro-wireless Facility" means a small cell facility that
is not larger in dimension than 24 inches in length, 15 inches in width, and 12 inches in
height and that has an exterior antenna, if any, not longer than 11 inches.
1.12 Municipal Facilities. "Municipal Facilities" means Poles, lighting fixtures,
electroliers, or other structures owned or leased by the LICENSOR and located within the
PROW, and may refer to such facilities in the singular or plural, as appropriate to the
context in which used. "Municipal Facilities" shall not include traffic control signals and
public safety communication structures or devices.
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1.13 Network. "Network" or collectively "Networks" means the telecommunication
network operated by LICENSEE to serve its customers.
1.14 Poles. "Poles" shall mean any poles that are owned and/or leased by the
LICENSOR, and may refer to such facilities in the singular or plural, as appropriate to the
context in which used.
1.15 Public Right-of-Way or PROW. "Public Right-of-Way" (or"PROW")means only
the area of real property in which LICENSOR has a dedicated or acquired right-of-way
interest in the real property. It shall include the area on, below or above the present and
future streets, alleys, avenues, roads, highways, parkways or boulevards dedicated or
acquired as right-of-way. "Public Right-of-Way" does not include any state, federal or
interstate highway right-of-way,which generally includes the area that runs contiguous to,
parallel with, and is generally equidistant from the center of that portion of the highway
improved, designed or ordinarily used for public travel.
1.16 Small Cell. "Small Cell" shall mean the Equipment at a particular location that
comprises part of the Network.
1.17 Supplement. "Supplement" shall mean each separate agreement, entered into
between the LICENSOR and LICENSEE with regard to specific Small Cell installations
located on Municipal Facilities, the form of which shall be in substantially the same form
as attached hereto as Exhibit A, which shall be subject to the terms and conditions of this
Agreement.
1.18 Telecommunications Services. "Telecommunications Services" or "Services" has
the same meaning as that term is defined in the United States Code, 47 U.S.C. 153 (53) or
any other use authorized by and licensed to LICENSEE by the FCC.
1.19 Third-Party Pole. "Third-Party Pole" shall mean a pole, or other"wireless support
structure" as that term is defined in K.S.A. § 66-2019(b)(21) and amendments thereto,
located in the PROW, that is owned and operated by a person or entity that is not the
LICENSEE or LICENSOR.
1.20 Wireless Facility. "Wireless Facility" or "Wireless Facilities" has the same
meaning as that term is defined under K.S.A. § 66-2019(b)(18) and amendments thereto.
1.21 Wireless Infrastructure Provider. "Wireless Infrastructure Provider"has the same
meaning as that term is defined under K.S.A. § 66-2019(b)(20) and amendments thereto.
1.22 Wireless Services. "Wireless Services"has the same meaning as that term is defined
under K.S.A. § 66-2019(b)(19) and amendments thereto.
1.23 Wireless Services Provider. "Wireless Services Provider" means a provider of
Wireless Services as defined in K.S.A. § 66-2019(b)(24) and amendments thereto.
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2. TERM.
2.1 Agreement Term. The initial term of this Agreement shall be for a period of ten
(10)years(the "Initial Term"),commencing on the first day of the month following mutual
execution of this Agreement (the "Agreement Commencement Date") and ending on the
tenth anniversary thereof,unless sooner terminated as stated herein. This Agreement shall
be automatically renewed for up to three (3) successive five (5) year renewal terms (each,
a"Renewal Term"),unless either party notifies the other in writing of its intent not to renew
this Agreement at least thirty (30) days prior to the expiration of the Initial Term or any
Renewal Term,as applicable.The Initial Term and all Renewal Terms shall be collectively
referred to herein as the "Term." However, after the expiration of this Agreement, its term
and conditions shall survive and govern with respect to any remaining Supplements in
effect until their expiration. Notwithstanding anything herein, after the expiration or
termination of this Agreement, its terms and conditions shall survive and govern with
respect to all remaining Ground Equipment and/or LICENSEE Poles as long as such
Ground Equipment and/or LICENSEE Poles remain in use, until their respective
termination.
2.2 Supplement Term. The initial term for each particular Supplement shall
commence the first day of the month following the date LICENSEE has Commenced
Installation of its Equipment at a particular location under a Supplement(the "Supplement
Commencement Date") and shall be for an initial term of ten (10) years (the "Supplement
Initial Term"). LICENSOR and LICENSEE shall acknowledge in writing the Supplement
Commencement Date (the "Acknowledgment"). Each Supplement shall automatically be
extended for three(3)successive five(5)year renewal terms(each,a"Supplement Renewal
Term") unless either party notifies the other in writing of its intent not to renew the
Supplement at least thirty (30) days prior to the expiration of the then current term. The
Supplement Initial Term and all Supplement Renewal Terms shall be collectively referred
to herein as the "Supplement Term." Notwithstanding anything herein,after the expiration
of this Agreement, its terms and conditions shall survive and govern with respect to each
remaining Supplement in effect until its respective expiration or termination.
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3. REPRESENTATION CONCERNING SERVICES; TERMINATION WITHOUT CAUSE. At any
time that LICENSEE ceases to operate as a provider of Telecommunications Services under
Federal law, or as a Wireless Services Provider or Wireless Infrastructure Provider, as applicable,
the LICENSOR shall have the option,in its sole discretion and upon six(6) months'written notice
to LICENSEE,to terminate this Agreement and to require the removal of LICENSEE's Equipment,
Ground Equipment, and LICENSEE Poles from the PROW and from Municipal Facilities,
restoring the same to their original condition, ordinary wear and tear and damage by casualty
excepted, at no cost to the LICENSOR,with LICENSEE bearing the full cost of any such removal
and site restoration.
4. SCOPE OF AGREEMENT. Any and all rights expressly granted to LICENSEE under this
Agreement,which shall be exercised at LICENSEE's sole cost and expense, shall be subject to the
prior and continuing right of the LICENSOR under applicable Laws to use any and all parts of the
PROW exclusively or concurrently with any other person or entity and shall be further subject to
all deeds, easements, dedications, conditions, covenants, restrictions, encumbrances, and claims
of title of record which may affect the PROW as of the date of the individual Supplement. It is
the intent of the parties that this Agreement conform in all respects to all applicable Laws,
particularly those relating to the access and use of Rights-of-Way by Telecommunications Service
providers, including, without limitation, those Telecommunications Service providers utilizing
Small Cell technology and Wireless Facilities. No provision of this Agreement shall apply to any
circumstance in which such application shall be unlawful under superseding federal or state law.
4.1 Installation. Subject to the conditions herein and applicable Laws,the LICENSOR
hereby authorizes, consents, and permits LICENSEE to enter upon the PROW and to
locate,place,attach,install,operate,maintain,control,remove,reattach,reinstall,relocate,
and replace Equipment, Ground Equipment, and LICENSEE Poles in or on identified
Municipal Facilities and in the PROW(including, at LICENSEE's sole discretion, in or on
its LICENSEE Poles or other structures, or Third-Party Poles or other structures owned by
third parties) for the purposes of operating the Network and providing Wireless Services
in the capacity of a Wireless Services Provider and/or building or installing Equipment,
Ground Equipment, and LICENSEE Poles in the capacity of a Wireless Infrastructure
Provider.
4.2 Attachment to Municipal Facilities. Licensee shall not attach any Equipment on
or within a specific Municipal Facility unless LICENSOR and LICENSEE have entered
into a Supplement with respect to the specific Municipal Facility. In lieu of a separate
application for an attachment to a Municipal Facility, LICENSEE shall submit a proposed
Supplement to LICENSOR for review and approval. LICENSOR and LICENSEE
acknowledge and agree that there is no separate application fee associated with
LICENSOR's review of a Supplement. Notwithstanding the foregoing, LICENSEE shall
be obligated to apply for all appropriate permits and pay any standard and customary fees
pursuant to Section 8.2. LICENSOR's review of any Supplement shall be subject to the
same review deadlines and requirements imposed by applicable Laws with respect to the
issuance of permits and approvals for placement of Equipment on non-Municipal Facilities.
Any approved Equipment shall be included as part of the applicable Supplement for the
specific Municipal Facility.LICENSOR may enter into a Supplement with LICENSEE for
the attachment of Equipment on or within a specific Municipal Facility only when the
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LICENSOR determines,in its sole judgment,exercised reasonably,that(i)it has sufficient
capacity to accommodate the requested Equipment,and(ii)such Equipment complies with
all Applicable Standards. Notwithstanding the foregoing, LICENSOR reserves the right
to deny or modify LICENSEE access to any Municipal Facilities, on a competitively-
neutral and non-discriminatory basis, where LICENSOR determines that LICENSEE's
proposed attachment will (a) jeopardize the public health, safety or welfare, or (b)
unreasonably limit or harm the capacity, functionality, reliability, governmental interests
or aesthetics of Municipal Facilities, or (c) violate applicable zoning restrictions or other
laws and regulations, or (d) exceed the capacity of the Municipal Facilities (taking into
consideration the reserved capacity of the Municipal Facilities), or (e) unreasonably
interfere with the LICENSOR's intended use of the Municipal Facilities. For the purpose
of this Section, the term "reserved capacity" means capacity or space on or within a
Municipal Facility that LICENSOR has identified and reserved for LICENSOR or other
governmental requirements,including,but not limited to other municipalities and any local
school districts.
4.3 Installation Conditions.
4.3.1 In addition to attachments to Municipal Facilities in the manner permitted
for under this Agreement, LICENSEE may, in its sole discretion, install its
Equipment on Third-Party Poles and LICENSEE Poles and additionally, with
respect to Micro-wireless Facilities, on LICENSEE's or LICENSEE's Affiliate's
lines, cables, or wires suspended between Poles. LICENSEE's use of the PROW
for attachments to LICENSEE Poles or other structures owned by LICENSEE, or
Third-Party Poles or other structures owned by third parties, shall not require a
Supplement; however, such use of the PROW shall be subject to all other
requirements of this Agreement and applicable Laws, and LICENSEE shall be
obligated to apply for all appropriate permits and pay any standard and customary
fees pursuant to Section 8.2. Upon request, LICENSEE shall provide the
LICENSOR a certification of authorization to attach to such Third-Party Poles.
4.3.2 Without LICENSOR'S prior written consent, LICENSEE shall not sub-
license or sub-lease any space on any Municipal Facility to any third party,
including but not limited to allowing third parties to place attachments on or within
Municipal Facilities.
4.3.3 To reduce the disruption to Municipal Facilities, LICENSEE may, if
approved by LICENSOR, power its Equipment by using the power sources that
service the existing Municipal Facility and its components. The power used by
LICENSEE's Equipment shall be determined on an individual site by site basis. All
electrical work and installations related to the power sharing authorized by this
Section shall be performed by a licensed contractor that is approved by the
LICENSOR and in a manner that is approved by the LICENSOR.LICENSEE shall
make all requests for power sharing arrangements pursuant to this Section in
advance and in writing. LICENSEE shall reimburse the LICENSOR, as provided
in Section 7.2 for the increased power costs that the LICENSOR incurs as a result
of any power sharing authorized by this Subsection.
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4.3.4 If LICENSEE selects a Pole that is structurally inadequate to accommodate
LICENSEE's Equipment, LICENSEE may at its sole cost and expense replace the
Pole (a "Replacement Pole") with one that is acceptable to and approved by the
LICENSOR and dedicate such Replacement Pole to the LICENSOR.
4.3.5 LICENSEE shall install both remote and manual shut-off switches at each
Municipal Facility on which it has installed Equipment such that the applicable
Equipment at such Municipal Facility can be safely and immediately powered off
by LICENSOR's personnel when necessary. In the event of an emergency or to
protect the public health or safety, prior to LICENSOR accessing or performing
any work on a Municipal Facility on which LICENSEE has installed Equipment,
LICENSOR may require LICENSEE to deactivate or power down such Equipment
if any of LICENSOR's employees or agents must move closer to the Equipment
than the recommended one foot minimum distance. In such case, LICENSOR will
contact LICENSEE at the contact telephone number referenced in Section 16.3
herein to request the Equipment be powered down or deactivated. If LICENSEE
fails to power down or deactivate the Equipment, LICENSOR's personnel may
utilize the manual shut off switch to power off LICENSEE's Equipment, provided
such personnel immediately notify LICENSEE at the contact telephone number
referenced in Section 16.3 herein.
4.4 LICENSEE Poles. LICENSEE may, at its sole cost and expense, install its own
LICENSEE Poles in accordance with applicable Laws.To the extent required by applicable
Laws,the design, location and height of proposed LICENSEE Poles shall be reviewed and
subject to approval by the LICENSOR prior to installation. With respect to an application
for a LICENSEE Pole, LICENSEE shall state in the application that it conducted an
analysis of available collocation opportunities on existing wireless support structures
within the same search ring defined by the LICENSEE, solely for the purpose of
confirming that the LICENSEE undertook such analysis. In addition to the requirements
under applicable Laws, and upon request by the LICENSOR, LICENSEE shall use
commercially reasonable efforts to help ensure that LICENSEE's Equipment and the
LICENSEE Poles conform as closely as practicable to the design and color of poles
existing in the vicinity of LICENSEE's Equipment or pole location.
4.5 Non-Interference with Non-Public Safety Communications Systems.
LICENSEE shall operate its Equipment in a manner that will not cause harmful
interference which is measurable in accordance with the then-existing industry standards
to any LICENSOR non-public safety communications systems, or to the communications
facilities of other licensees or lessees of LICENSOR property located at or near the
Equipment that were in operation prior to the installation of such Equipment, or that are in
operation prior to any modifications LICENSEE may make to such Equipment.
LICENSOR agrees that after LICENSEE has attached Equipment to a specific Municipal
Facility, LICENSOR and/or any other tenants, licensees, or Municipal Facility users who
currently have or in the future take possession of space on the same Municipal Facility will
be permitted to install only such equipment that is of the type and frequency which will not
cause harmful interference which is measurable in accordance with then-existing industry
standards to the then-existing Equipment of LICENSEE.
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4.6 Non-Interference with Public Safety Communications Systems. LICENSEE's
Equipment shall not cause interference with public safety communications systems
operated by LICENSOR or any other public agency,regardless of the date such systems or
any components thereof have been placed in service, nor shall LICENSEE's Equipment
cause interference with LICENSOR's use of its streetlights, traffic lights, and/or stand-
alone light poles.
4.7 Correction of Interference. If interference as described in Sections 4.5 and 4.6
occurs, and after LICENSOR has notified LICENSEE of such interference by a written
notice to LICENSEE as provided for in Section 12, and a call to LICENSEE's network
operations or monitoring center ("Network Center") (at _800-510-6091, option 1, then
option 2),LICENSEE will take all commercially reasonable steps necessary to correct and
eliminate the interference including, but not limited to, at LICENSEE's option, powering
down the Equipment causing the interference and later powering up such Equipment for
intermittent testing. With regard to interference with public safety communications
systems operated by LICENSOR or any other public agency, if LICENSEE is unable or
refuses to eliminate such interference within 30 days of written notice to LICENSOR's
Network Center(or such shorter time as may be specified in the written notice in the event
of an emergency or danger to public health and safety requiring such shorter notice),
LICENSOR may terminate LICENSEE's use of or right to use the Municipal Facility upon
which such interfering Equipment is located, and LICENSEE shall promptly remove the
Equipment from the Municipal Facility.
4.8 Compliance with Laws. LICENSEE shall comply with all applicable Laws in the
exercise and performance of its rights and obligations under this Agreement. This
Agreement does not limit any rights LICENSEE may have in accordance with Laws to
install its LICENSEE Poles in the PROW or to attach LICENSEE's Facilities to Third-
Party Poles located in the PROW.
4.9 Nonexclusive Use Rights. Notwithstanding any other provision of this Agreement,
or any Supplement hereunder, any and all rights expressly or impliedly granted to
LICENSEE under this Agreement shall be non-exclusive, and shall be subject and
subordinate to (1) the continuing right of the LICENSOR to use, and to allow any other
person or persons to use,any and all parts of the PROW or Municipal Facilities,exclusively
or concurrently with any other person or persons, and (2) the public easement for streets
and any and all other deeds, easements, dedications, conditions, covenants, restrictions,
encumbrances and claims of title (collectively, "Encumbrances") which may affect the
PROW or Municipal Facilities now or at any time during the term of this Agreement,
including, without limitation any Encumbrances granted, created or allowed by the
LICENSOR at any time.
4.10 Changes in the Laws. This Agreement shall in no way limit or waive either party's
present or future rights under Laws. If, after the date of this Agreement, the rights or
obligations of either party are materially preempted or superseded by changes in federal or
state Laws, the parties agree to negotiate in good faith to reach a mutually agreed
amendment to this Agreement to reflect the change in such federal or state Laws.
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5. COMPENSATION. LICENSEE shall be solely responsible for the payment of all lawful fees
in connection with LICENSEE's performance under this Agreement, including those set forth
below..
(a) Rent. As compensation to the LICENSOR for use of Municipal Facilities,
LICENSEE shall, at the commencement of each Supplement Term (as defined in Section 2.2
herein), and thereafter on an annual basis during the Supplement Term,pay to the LICENSOR, an
amount equal to $270.00, or such greater amount as may be charged by LICENSOR under
applicable Laws, for each attachment of a Small Cell to a Municipal Facility(including all related
Equipment placed on the ground near the Municipal Facility) ("Rent"). If LICENSOR intends to
charge LICENSEE annual Rent in excess of $270.00 under any Supplement pursuant to this
Section 5(a),LICENSOR shall notify LICENSEE in writing of the increased Rent amount at least
ninety (90) days prior to the next annual anniversary date of the applicable Supplement
Commencement Date, and the increased Rent shall become effective on the annual anniversary
date of the Supplement Commencement Date. The parties agree to amend this Agreement and any
applicable Supplement to reflect the increased Rent, but failure to do so shall not preclude
LICENSOR's rights to charge and collect the increased Rent. Any increased Rent shall be in effect
for the remainder of the applicable Supplement Term, unless the Rent is further modified by
LICENSOR prior to any subsequent annual anniversary date of the applicable Supplement
Commencement Date, subject to any limitations or requirements imposed by applicable Laws.
Notwithstanding anything to the contrary contained herein, if applicable laws allow LICENSOR
to charge LICENSEE annual Rent in excess of$270.00, LICENSOR agrees that any increased
Rent imposed by LICENSOR pursuant to this section shall be limited to an amount equal to the
greater of: (1) the maximum amount allowed under applicable Laws, if applicable laws impose a
maximum amount; or(2) if applicable Laws do not impose a maximum amount, an amount equal
to $270.00, adjusted to reflect a three percent (3%) annual increase in the Rent amount,
commencing on first annual anniversary date of the Effective Date of this Agreement, and on each
annual anniversary of the Effective Date thereafter,through the effective date of the increased Rent
amount as indicated in LICENSOR's notice to LICENSEE pursuant to this section. The Rent shall
be deemed inclusive of any fixed PROW access fee pursuant to K.S.A. 12-2001(t)(1)(C), and
amendments thereto.
(b) LICENSEE Pole Fees.LICENSEE shall pay to the LICENSOR,on an annual basis
during the Agreement Term, upon invoicing by the LICENSOR in the manner provided for in
Section 5(f)(ii),a fixed PROW access fee in the amount of$125.00 for each LICENSEE Pole that
it installs in the PROW("LICENSEE Pole Fee").Any LICENSEE Pole Fee shall commence upon
the date that the LICENSOR issues the final permit, as described in Section 8.2 herein, required
for the construction and operation of the corresponding LICENSEE Pole. If applicable Laws
authorize LICENSOR to require LICENSEE to pay an increased amount for the LICENSEE Pole
Fee, then, upon request by the LICENSOR, the parties agree to negotiate in good faith to reach a
mutually agreed amendment to this Agreement to establish any increased LICENSEE Pole Fee.
(c) PROW Ground Space Fees. If LICENSEE is not utilizing Municipal Facilities,but
LICENSEE requires the placement of Ground Equipment on the ground and within the PROW,
LICENSEE shall pay to the LICENSOR, on an annual basis during the Agreement Term, upon
invoicing by the LICENSOR in the manner provided for in Section 5(f)(ii), a fixed PROW access
fee of$100.00 for each placement of Ground Equipment associated with a Small Cell ("PROW
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Ground Space Fee"). The amount of the PROW Ground Space Fee is intended to approximate the
LICENSOR's cost basis to manage access to the PROW and to reflect LICENSEE's limited use of
the PROW for its Equipment. Any PROW Ground Space Fee shall commence upon the date that
LICENSOR issues the fmal permit, as described in Section 8.2 herein, required for the
construction and operation of the corresponding Ground Equipment. If applicable Laws authorize
LICENSOR to require LICENSEE to pay an increased amount for the PROW Ground Space Fee,
then, upon request by the LICENSOR, the parties agree to negotiate in good faith to reach a
mutually agreed amendment to this Agreement to establish any increased PROW Ground Space
Fee.
(d) Fee Documentation.For any party to whom Rent,LICENSEE Pole Fee,and PROW
Ground Space Fee payments are to be made, LICENSOR or any successor-in-interest of
LICENSOR hereby agrees to provide to LICENSEE: (i) a completed, current version of Internal
Revenue Service Form W-9, or equivalent; (ii) complete and fully executed state and local
withholding forms, if required; and(iii)other documentation to verify LICENSOR's or such other
party's right to receive payment of such Rent, LICENSEE Pole Fees, or PROW Ground Space
Fees as is reasonably requested by LICENSEE. All such obligations shall accrue in accordance
with this Agreement, but LICENSEE shall have no obligation to deliver Rent, LICENSEE Pole
Fee, or PROW Ground Space Fee payments, as applicable,until the requested documentation has
been received by LICENSEE. Upon receipt of the requested documentation, LICENSEE shall
deliver the accrued Rent and/or Fee payments as directed by LICENSOR.
(e) Business License Fee/Other Fees. Except as provided in Section 8.2, LICENSEE
shall not be obligated to pay any business license fees,or additional fees for access to or use of the
PROW for purposes of exercising its rights under this Agreement or any Supplement.
(f) Payment.
(i) Rent. LICENSEE shall make the first payment of the Rent under any
Supplement within ninety (90) days Of the Acknowledgement (as defined in Section 2.2 herein).
Thereafter, Rent shall be paid on or before each annual anniversary of the Supplement
Commencement Date during the Supplement Term (each as defined in Section 2.2 herein).
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(ii) LICENSEE Pole Fees and PROW Ground Space Fees. LICENSEE shall
pay the full undisputed amount of any invoice it receives from the LICENSOR for LICENSEE
Pole Fees and PROW Ground Space Fees within forty-five (45) calendar days after the
LICENSOR delivers the invoice to LICENSEE, with supporting documentation reasonably
necessary to substantiate the amount invoiced.
6. INvoicEs. All Rent, LICENSEE Pole Fees, and PROW Ground Space Fees shall be paid
by check made payable to LICENSOR and mailed or delivered to LICENSOR at the address
provided in Section 12.1. The address for the delivery of payments may be changed at any time
by LICENSOR upon 45 days' prior written notice to LICENSEE. Mailed payments shall be
deemed paid upon the date such payment is officially postmarked by the United States Postal
Service. Notwithstanding the foregoing,upon agreement by the parties,LICENSEE may pay such
fees by electronic funds transfer and, in such event, LICENSOR agrees to provide to LICENSEE
bank routing information for such purpose.
6.1 Delinquent Payment. If LICENSEE fails to pay any amounts due pursuant to this
Agreement within 60 days from the LICENSOR's written notice of non-payment,
LICENSEE will pay, in addition to the unpaid Rent, LICENSEE Pole Fees, or PROW
Ground Space Fees, a sum of money equal to one percent (1%) of the amount due,
including penalties and accrued interest, for each month and/or fraction thereof during
which the payment is due and unpaid.
6.2 Additional Remedies. The remedy provisions set forth in Section 6.1 are not
exclusive, and do not preclude the LICENSOR from pursuing any other or additional
remedy in the event that payments become overdue by more than sixty(60) days.
7. UTILITIES.
7.1 Responsibility of LICENSEE. LICENSEE shall be solely responsible for all costs
and expenses related to establishing power and any other utility service for LICENSEE's
Network, or any component thereof
7.2 Power. LICENSEE's power consumption may be metered or sub-metered at any
specific Small Cell site as mutually determined by the parties in consideration of the
requirements of the local utility provider for each site. LICENSEE shall be billed directly
by the utility and shall pay the utility directly for its power consumption.
7.3 Back Up Power. LICENSEE shall be permitted at any time during the Agreement
Term or applicable Supplement Term,to install,maintain and/or provide access to and use
of, as necessary (during any power interruption at any Municipal Facility site, Ground
Equipment site, or LICENSEE Pole site), a temporary emergency power source, and all
related appurtenances within or adjacent to such site to the extent the LICENSOR has the
authority to permit the installation of a temporary emergency power source. Such
temporary emergency power installation and power sources shall be in compliance with all
applicable Laws.Notwithstanding the foregoing,no interruption or discontinuance of such
electrical power will render the LICENSOR liable to LICENSEE for damages or relieve
LICENSEE of any of its obligations hereunder, except to the extent it results from the
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negligence or willful misconduct of the LICENSOR, subject to the limitation of liability
provided in Section 9.2, and only in the manner and to the extent permitted under
applicable law including but not limited to the Kansas Tort Claims Act, K.S.A. 75-6101,
et seq.
8. CONSTRUCTION. LICENSEE shall comply with all applicable Laws related to the
construction,installation,operation,maintenance,and control of LICENSEE's Equipment,Ground
Equipment, and LICENSEE Poles installed in the PROW, and on Municipal Facilities. Except as
otherwise provided herein, LICENSEE shall not attach, install, maintain, or operate any
Equipment in or on Municipal Facilities without the prior written approval of an authorized
representative of the LICENSOR for each location.
8.1 Commencement of Installation and Operation. LICENSEE shall Commence
Installation of its initial Small Cells approved by the LICENSOR no later than two (2)
years after the mutual execution of an applicable Supplement, and shall Commence
Operation no later than six (6) months after LICENSEE Commences Installation, which
time period shall be extended due to any force majeure event. Failure of LICENSEE to
Commence Installation or Commence Operation of the applicable Small Cells as provided
above shall permit LICENSOR to terminate the affected Small Cells under the Supplement
upon ninety (90) days' notice to LICENSEE unless within such ninety (90) day period,
LICENSEE shall Commence Installation or Commence Operation, as applicable.
Notwithstanding the foregoing, LICENSEE's obligations under this Section shall be
conditioned upon LICENSEE's completion of its due diligence with regard to a particular
Small Cell location and/or Municipal Facility.
8.2 Obtaining Required Permits. The attachment, installation, or location of the
Equipment, Ground Equipment, and LICENSEE Poles in the PROW may require
governmental permits, such as excavation permits, building permits, and traffic control
permits. LICENSEE shall apply for the appropriate permits and pay any standard and
customary permit fees, subject to the limitations of applicable Laws. LICENSOR shall
promptly respond to LICENSEE's requests for permits within the time required by
applicable Laws, and shall otherwise cooperate with LICENSEE in facilitating the
deployment of the Network in the PROW in a reasonable and timely manner.
8.3 Relocation and Displacement of Equipment. LICENSEE understands and
acknowledges that LICENSOR may require LICENSEE to relocate one or more of its
Equipment, Ground Equipment, or LICENSEE Poles installations. LICENSEE shall at
LICENSOR's direction and upon one hundred eighty (180) days prior written notice to
LICENSEE unless circumstances beyond LICENSOR'S control require a shorter period of
advance notice, relocate such Equipment, Ground Equipment, or LICENSEE Poles at
LICENSEE's sole cost and expense whenever LICENSOR reasonably determines that the
relocation is needed for any of the following purposes: (a) if required for the construction,
modification, completion, repair, relocation, or maintenance of a LICENSOR or other
public agency project;(b)because the Equipment, Ground Equipment,or LICENSEE Pole
is interfering with or adversely affecting proper operation of LICENSOR-owned Poles,
traffic signals, communications, or other Municipal Facilities; or(c) to protect or preserve
the public health or safety. The LICENSOR shall cooperate with LICENSEE in relocating
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any Equipment, Ground Equipment, and LICENSEE Poles removed pursuant to this
Section in a manner that allows LICENSEE to continue providing service to its customers,
including,but not limited to, expediting approval of any necessary permits required for the
relocation of any Equipment, Ground Equipment, and LICENSEE Poles relocated under
this Section, and/or placing a temporary communications facility in a location as mutually
approved by the parties. If LICENSEE shall fail to relocate any Equipment, Ground
Equipment, or LICENSEE Poles as requested by the LICENSOR in accordance with the
foregoing provision, LICENSOR shall be entitled to remove or relocate the Equipment,
Ground Equipment, or LICENSEE Poles at LICENSEE's sole cost and expense, without
further notice to LICENSEE. LICENSEE shall pay to the LICENSOR actual costs and
expenses incurred by the LICENSOR in performing any removal work and any storage of
LICENSEE's property after removal within thirty(30)days of the date of a written demand,
including reasonable supporting documentation of the costs and expenses, for this payment
from the LICENSOR. To the extent the LICENSOR has actual knowledge thereof, the
LICENSOR will attempt promptly to inform LICENSEE of the displacement or removal
of any Municipal Facility on which any Equipment is located.
8.4 Relocations at LICENSEE's Request. In the event LICENSEE desires to relocate
any Equipment from one Municipal Facility to another, LICENSEE shall so advise
LICENSOR. LICENSOR will use reasonable efforts to accommodate LICENSEE by
making another reasonably equivalent Municipal Facility available for use in accordance
with and subject to the terms and conditions of this Agreement.
8.5 Damages Caused by LICENSEE. LICENSEE shall, at its sole cost and expense
and to the reasonable satisfaction of the LICENSOR: (a) remove, repair or replace any of
its Equipment that is damaged or becomes detached; and/or (b) repair any damage to the
PROW, Municipal Facilities or other property, whether public or private, caused by
LICENSEE, its agents, employees or contractors, in their actions relating to attachment,
operation, repair or maintenance of Equipment, Ground Equipment or LICENSEE Poles.
If LICENSEE does not remove, repair or replace such damage to its Equipment, Ground
Equipment, or LICENSEE Poles, or to the PROW, Municipal Facilities or other property,
the LICENSOR shall have the option, upon thirty (30) days' prior written notice to
LICENSEE, to perform or cause to be performed such removal, repair, or replacement on
behalf of LICENSEE and shall charge LICENSEE for the actual costs incurred by the
LICENSOR. If such damage causes a public health or safety emergency, as reasonably
determined by the LICENSOR,the LICENSOR may immediately perform reasonable and
necessary repair or removal work on behalf of LICENSEE and will notify LICENSEE as
soon as practicable; provided, such repair work may only involve reattachment of
LICENSEE's Equipment to a Pole or repair of the Pole itself, and shall not include any
technical work on LICENSEE's Equipment. Upon the receipt of a demand for payment by
the LICENSOR, including reasonable supporting documentation of the costs, LICENSEE
shall within thirty(30) days of such receipt reimburse the LICENSOR for such costs. The
,terms of this provision shall survive the expiration, completion or earlier termination of
this Agreement.
8.6 Change in Equipment.LICENSEE may maintain,repair, replace, and make like-
kind modifications to any Equipment in a manner that does not materially change the size,
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height,color,or weight of the Equipment or exceed the structural capacity of the supporting
structure without requiring additional applications,permits, or other LICENSOR approval.
LICENSEE shall obtain all required permits and prior approvals from LICENSOR for all
other work. In addition to any other submittal requirements, and if requested by
LICENSOR, LICENSEE shall provide "load" (structural) calculations for all Poles upon
which it intends to install Equipment in the PROW, notwithstanding original installation
or by way of Equipment type changes.
8.7 Termination of Use. Notwithstanding Section 2.1 above, LICENSEE may
terminate its use of any or all of the Municipal Facilities or the PROW by providing written
notice to LICENSOR in the manner provided in Section 12. In the event of any such
termination, LICENSEE's payment obligations to LICENSOR shall terminate
simultaneously with the specified date of such termination,provided LICENSEE removes
its Equipment, Ground Equipment, and LICENSEE Poles from PROW, as set forth in
Section 8.8,below.
8.8 Removal of Equipment. Within ninety (90) days after the expiration or earlier
termination of this Agreement or a Supplement, or termination of one or more Small Cell
sites under a Supplement, LICENSEE shall promptly, safely and carefully remove the
Equipment, Ground Equipment, and LICENSEE Poles, subject to such expiration or
termination. Such obligation of LICENSEE shall survive the expiration or earlier
termination of this Agreement. If LICENSEE fails to complete this removal work pursuant
to this Section, then the LICENSOR, upon written notice to LICENSEE, shall have the
right at the LICENSOR's sole election,but not the obligation,to perform this removal work
and charge LICENSEE for the actual costs and expenses, including, without limitation,
reasonable administrative costs. LICENSEE shall pay to the LICENSOR actual costs and
expenses incurred by the LICENSOR in performing any removal work and any storage of
LICENSEE's property after removal within thirty(30)days of the date of a written demand,
including reasonable supporting documentation of the costs and expenses,for this payment
from the LICENSOR. After the LICENSOR receives the reimbursement payment from
LICENSEE for the removal work performed by the LICENSOR,and any storage costs and
expenses incurred by the LICENSOR, the LICENSOR shall promptly make available to
LICENSEE the property belonging to LICENSEE and removed by the LICENSOR
pursuant to this Section at no liability to the LICENSOR. If the LICENSOR does not
receive reimbursement payment from LICENSEE within such thirty days, or if
LICENSOR does not elect to remove such items at the LICENSOR's cost after
LICENSEE's failure to so remove pursuant to this Section, or if LICENSEE does not
remove LICENSEE's property within thirty (30) days of such property having been made
available by the LICENSOR after LICENSEE's payment of removal reimbursement as
described above, any such items may, at the LICENSOR's option, be deemed abandoned
and the LICENSOR may dispose of such property in any manner by Law. Alternatively,
the LICENSOR may elect to take title to abandoned property, provided that LICENSEE
shall submit to the LICENSOR an instrument satisfactory to the LICENSOR transferring
to the LICENSOR the ownership of such property. The provisions of this Section shall
survive the expiration or earlier termination of this Agreement.
14
8.9 Risk of Loss. LICENSEE acknowledges and agrees that LICENSEE, subject to
the terms of this Agreement,bears all risks of loss or damage,relocation or replacement of
its Equipment,Ground Equipment,LICENSEE Poles,and materials installed in the PROW
or on Municipal Facilities pursuant to this Agreement from any cause. LICENSOR shall
not be liable for any cost of replacement or of repair to damaged Equipment, Ground
Equipment, and LICENSEE Poles, including, without limitation, damage caused by the
LICENSOR's removal of the Equipment, Ground Equipment, and LICENSEE Poles,
except to the extent that such loss or damage was caused by the willful misconduct or
negligence of the LICENSOR, including, without limitation, each of its elected officials,
managers, officers, agents, employees, and contractors; subject,however, to the limitation
of liability provided in Section 9.2, and only in the manner and to the extent permitted
under applicable law including but not limited to the Kansas Tort Claims Act, K.S.A. 75-
6101, et seq.
8.10 Access. Prior to LICENSEE accessing its Equipment for non-emergency purposes
at any time, LICENSEE shall provide telephonic notice to the Public Works Department
at 785-309-5725. In the event of an emergency at any time, LICENSEE may access the
PROW and perform necessary repairs to its Equipment,including the repair or replacement
of a LICENSEE Pole, without first obtaining any other necessary permit(s) or
authorization(s); provided, however, that if repair or replacement work performed by
LICENSEE under emergency conditions results in a material change to the size, height,
aesthetics,or weight of any Pole or Equipment,LICENSEE shall immediately restore such
Pole or Equipment to its original size, height, aesthetics, and weight following the
abatement of the conditions giving rise to the emergency, unless otherwise approved by
LICENSOR, in writing, and LICENSEE shall be required to obtain all required permits
and approvals from LICENSOR pursuant to Section 8.6 prior to performing such work.
LICENSEE will, if time permits prior to performing any emergency repair or replacement
work, attempt to provide prior telephonic notice to the Public Works Department at 785-
309-5725. In the event LICENSEE is unable to provide such notice, LICENSEE will (i)
call the LICENSOR's City Clerk at 785-309-5735 and, (ii) notify the Public Works
Department at 785-309-5725 as soon as reasonably possible after performing the necessary
repair or replacement work. Notice to the LICENSOR is not required when LICENSEE
needs to access its Ground Equipment or LICENSEE Poles in the PROW.
8.11 Municipal Facility Repairs and Replacements. If a Municipal Facility is
damaged or downed for any reason,and as a result is not able to safely hold the Equipment,
the LICENSOR will have no obligation to repair or replace such Municipal Facility for the
use of LICENSEE's Equipment. If LICENSOR becomes aware of damage to a Municipal
Facility that supports a Small Cell,LICENSOR shall notify LICENSEE's Network Center
as soon as practicable. The parties will use reasonable efforts to coordinate any necessary
responses. In the event of any damage to a Municipal Facility that impacts LICENSEE's
use of the Municipal Facility, LICENSEE may, with LICENSOR's prior approval, which
shall not be unreasonably withheld, repair or replace the Municipal Facility with a like-
kind Municipal Facility at LICENSEE's own expense. LICENSEE may reinstall its Small
Cell after a damaged Municipal Facility has been repaired or replaced. LICENSEE may
temporarily use an alternative Municipal Facility reasonably acceptable to the parties
during repair or restoration of a Municipal Facility.
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9. INDEMNIFICATION AND WAIVER. LICENSEE agrees to indemnify, defend, protect, and
hold harmless the LICENSOR, its officers, agents, and employees from and against any and all
claims, demands, losses, damages, liabilities, fines, charges,penalties, administrative and judicial
proceedings and orders,judgments, and all costs and expenses incurred in connection therewith,
including reasonable attorney's fees and costs of defense (collectively, the "Losses") directly or
proximately resulting from LICENSEE's activities undertaken pursuant to this Agreement, except
to the extent arising from or caused by the negligence or willful misconduct of the LICENSOR,
its officers, employees, or agents. LICENSEE'S duty to indemnify, protect, and hold harmless
LICENSOR shall extend to Losses related to or arising from the invalidation of any warranty
covering a Municipal Structure, but only to the extent that LICENSEE is furnished actual notice
of such warranty prior to the act or omission causing the invalidation.
9.1 Waiver of Claims. LICENSEE waives any and all claims, demands, causes of
action, and rights it may assert against the LICENSOR on account of any loss, damage, or
injury to any Equipment, Ground Equipment, or LICENSEE Poles, or any loss or
degradation of the Telecommunications Services or Information Service, as a result of any
event or occurrence which is beyond the reasonable control of the LICENSOR,its officers,
employees, agents, or contractors; provided, however, that the foregoing waiver shall not
apply to the extent that any loss, damage, or injury is caused by the willful misconduct or
negligence of the LICENSOR, including, without limitation, each of its elected officials,
managers, officers, agents, and employees; subject, however, to the limitation of liability
provided in Section 9.2, and only in the manner and to the extent permitted under
applicable law including but not limited to the Kansas Tort Claims Act, K.S.A. 75-6101,
et seq.
9.2 Limitation on Consequential Damages. Except for indemnification pursuant to
Section 9 above,neither party shall be liable to the other,or any of their respective agents,
representatives, employees for any lost revenue, lost profits, loss of technology, rights or
services, incidental, punitive, indirect, special or consequential damages, loss of data, or
interruption or loss of use of service, even if advised of the possibility of such damages,
whether under theory of contract,tort (including negligence), strict liability or otherwise.
10. SECURITY FOR PERFORMANCE. Before any construction begins in the PROW by
LICENSEE, and if requested by LICENSOR pursuant to applicable Laws, LICENSEE shall
provide the LICENSOR with performance bonds, and if considered necessary by the LICENSOR,
payment bonds, in amounts equal to the full amount of the written construction contract pursuant
to which such construction is to be done. The payment bond shall be solely for the protection of
claimants supplying labor or materials for the required construction work and the performance
bond shall be solely for the protection of the LICENSOR, conditioned upon the faithful
performance of the required construction work. Bonds shall be executed by a surety company
duly authorized to do business in Kansas,and accepted by the LICENSOR,which acceptance shall
not be unreasonably withheld, and shall be kept in place for the duration of the work.
11. INSURANCE. LICENSEE shall obtain and maintain, at all times during the term of this
Agreement: (i)Commercial General Liability insurance with a limit of$1,000,000 per occurrence
for bodily injury and property damage and $2,000,000 general aggregate including premises-
operations, contractual liability, personal injury and products completed operations; and (ii)
16
Commercial Automobile Liability insurance covering all owned non-owned and hired vehicles
with a combined single limit of$1,000,000 each accident for bodily injury and property damage.
The Commercial General Liability insurance policy shall include the LICENSOR, its elected and
appointed officials, officers, and employees as additional insured as their interests may appear
under this Agreement for any covered liability arising out of LICENSEE's performance of work
under this Agreement. Coverage shall be in an occurrence form and in accordance with the limits
and provisions specified herein. Upon receipt of notice from its insurer, LICENSEE shall use
commercially reasonable efforts to provide the LICENSOR with thirty (30) days prior written
notice of cancellation. LICENSEE shall be responsible for notifying the LICENSOR of such
change or cancellation.
11.1 Filing of Certificates and Endorsements. Prior to the commencement of any
work pursuant to this Agreement, LICENSEE shall file with the LICENSOR the required
certificate(s) of insurance with blanket additional insured endorsements, which shall state
the following:
(a) the policy number; name of insurance company; name and address of the
agent or authorized representative; name and address of insured; project name; policy
expiration date; and specific coverage amounts;
(b) With respect to any indemnification obligation assumed by LICENSEE
hereunder,that LICENSEE's Commercial General Liability insurance policy is primary as
respects any other valid or collectible insurance that the LICENSOR may possess,
including any self-insured retentions the LICENSOR may have; and any other insurance
the LICENSOR does possess shall be considered excess insurance only and shall not be
required to contribute with this insurance with respect to any indemnification obligation
assumed by LICENSEE hereunder.
The certificate(s) of insurance with blanket additional insured endorsements and notices
shall be mailed to the LICENSOR at the address specified in Section 12 below.
11.2 Workers' Compensation Insurance. LICENSEE shall obtain and maintain at all
times during the term of this Agreement statutory workers' compensation and employer's
liability insurance in an amount of$1,000,000 each accident/disease/policy limit, and shall
furnish the LICENSOR with a certificate showing proof of such coverage.
11.3 Insurer Criteria. Any insurance provider of LICENSEE shall be authorized or
permitted to do business in the State of Kansas and shall carry a minimum rating assigned
by A.M. Best & Company's Key Rating Guide of "A-" Overall and a Financial Size
Category of"VII."
11.4 Severability of Interest. "Severability of interest" or "separation of insureds"
clauses shall be made a part of the Commercial General Liability and Commercial
Automobile Liability policies.
17
12. NOTICES.
12.1 Method and Delivery of Notices. All notices which shall or may be given pursuant
to this Agreement shall be in writing and delivered personally or transmitted (a) through
the United States mail,by registered or certified mail, postage prepaid; or(b) by means of
prepaid overnight delivery service, addressed as follows:
if to the LICENSOR:
City of Salina, Kansas
Attn: City Clerk
P.O. Box 736
Salina, Kansas 67402-0736
if to LICENSEE:
USCOC Nebraska/Kansas, LLC
Attention: Real Estate Lease Administration
8410 West Bryn Mawr Avenue
Chicago, Illinois 60631
Phone: 1-866-573-4544
12.2 Date of Notices; Changing Notice Address. Notices shall be deemed given upon
receipt in the case of personal delivery,three (3) days after deposit in the mail, or the next
business day in the case of commercial courier or overnight delivery. Either party may
from time to time designate any other address for this purpose by written notice to the other
party delivered in the manner set forth above.
13. DEFAULT;CURE;REMEDIES;LIQUIDATED DAMAGES.
13.1 Licensee Default and Notification. This Agreement is granted upon each
and every condition herein and each of the conditions is a material and essential condition
to the granting of this Agreement. Except for causes beyond the reasonable control of
LICENSEE, if LICENSEE fails to comply with any of the conditions and obligations
imposed hereunder,and if such failure continues for more than thirty(30)days after written
demand from the LICENSOR to commence the correction of such noncompliance on the
part of LICENSEE, the LICENSOR shall have the right to revoke and terminate this
Agreement,if such failure is in relation to the Agreement as whole,or any individual Small
Cell site(s) under a Supplement, individual Ground Equipment site(s), or individual
LICENSEE Pole site(s), if such failure is in connection solely with such Small Cell site(s)
under the Supplement, Ground Equipment site(s), or LICENSEE Pole site(s), in addition
to any other rights or remedies set forth in this Agreement or provided by law.
13.2 Cure Period. If the nature of the violation is such that it cannot be fully
cured within 30 days due to circumstances not under LICENSEE's control, the period of
time in which LICENSEE must cure the violation shall be extended for such additional
time reasonably necessary to complete the cure, provided that: (a) LICENSEE has
18
promptly begun to cure; and(b) LICENSEE is diligently pursuing its efforts to cure. The
LICENSOR may not maintain any action or effect any remedies for default against
LICENSEE unless and until LICENSEE has failed to cure the breach within the time
periods provided in these Sections 13.1 and 13.2.
13.3 Licensor Default. If LICENSOR breaches any covenant or obligation of
LICENSOR under this Agreement or any Supplement in any manner, and if LICENSOR
fails to cure such breach within thirty (30) days after receiving written notice from
LICENSEE specifying the violation(or if the nature of the violation is such that it cannot
reasonably be fully cured within 30 days, such longer period of time as calculated in
accordance with Section 13.2), then LICENSEE may enforce any and all of its rights
and/or remedies provided under this Agreement or by Laws or it may(although it shall not
be obligated to) cure LICENSOR's breach and/or perform LICENSOR's obligations (on
LICENSOR's behalf and at LICENSOR's expense) and require LICENSOR to reimburse
to LICENSEE all reasonable costs and expenses (excluding attorneys' fees) incurred in
connection with such cure and/or performance.In addition,LICENSEE shall have the right
to revoke and terminate this Agreement, if such failure is in relation to the Agreement as
whole, or any individual Small Cell site(s) under a Supplement, individual Ground
Equipment site(s), or individual LICENSEE Pole site(s), if such failure is in connection
solely with such Small Cell site(s) under the Supplement, Ground Equipment site(s), or
LICENSEE Pole site(s).
14. ASSIGNMENT. This Agreement shall not be assigned by LICENSEE without the express
written consent of the LICENSOR,which consent shall not be unreasonably withheld,conditioned,
or delayed. Notwithstanding the foregoing,the transfer of the rights and obligations of LICENSEE
to an Affiliate or to any entity which acquires all or substantially all of LICENSEE's assets in the
market defined by the Federal Communications Commission in which the PROW is located by
reason of a merger,acquisition or other business reorganization shall not require the consent of the
LICENSOR.
15. RECORDS;AUDITS.
15.1 Records Required by Applicable Laws. LICENSEE will maintain complete
records with respect to each Small Cell,Ground Equipment,and LICENSEE Pole pursuant
to all applicable Laws.
15.2 Additional Records. The LICENSOR may require such additional reasonable
non-confidential information, records, and documents from LICENSEE from time to time
as are appropriate in order to reasonably monitor compliance with the terms of this
Agreement and the applicable Supplement.
15.3 Production of Records. LICENSEE shall provide reasonable non-confidential
records within thirty(30) days of a request by the LICENSOR for production of the same
unless additional time is reasonably needed by LICENSEE, in which case, LICENSEE
shall have such reasonable time as needed for the production of the same. If any person
other than LICENSEE maintains records on LICENSEE's behalf, LICENSEE shall be
19
responsible for making such reasonable non-confidential records available to the
LICENSOR for auditing purposes pursuant to this Section.
16. MISCELLANEOUS PROVISIONS. The provisions that follow shall apply generally to the
obligations of the parties under this Agreement.
16.1 Waiver of Breach. The waiver by either party of any breach or violation of any
provision of this Agreement or any Supplement shall not be deemed to be a waiver or a
continuing waiver of any subsequent breach or violation of the same or any other provision
of this Agreement or such Supplement.
16.2 Severability of Provisions. If any one or more of the provisions of this Agreement
or any Supplement shall be held by a court of competent jurisdiction in a final judicial
action to be void,voidable, or unenforceable, such provision(s) shall be deemed severable
from the remaining provisions of this Agreement or Supplement and shall not affect the
legality, validity, or constitutionality of the remaining portions of this Agreement or the
applicable Supplement(s).
16.3 Contacting LICENSEE. LICENSEE shall be available to the staff employees of
any LICENSOR department having jurisdiction over LICENSEE's activities 24 hours a
day, seven days a week, regarding problems or complaints resulting from the attachment,
installation, operation, maintenance, or removal of the Equipment, Ground Equipment, or
LICENSEE Poles. The LICENSOR may contact by telephone the LICENSEE Network
Center operator at telephone number 800-510-6091, 2, 1 regarding such problems or
complaints.
16.4 Governing Law; Jurisdiction. This Agreement shall be governed and construed
by and in accordance with the laws of the State of Kansas,without reference to its conflicts
of law principles. Any litigation concerning this Agreement and/or any Supplement shall
be conducted in the Saline County District Court, or the Federal District Court for the
District of Kansas, and each party consents to jurisdiction and venue in any such court.
16.5 Consent Criteria. In any case where the approval or consent of one party hereto
is required, requested or otherwise to be given under this Agreement and/or any
Supplement, such party shall not unreasonably delay, condition, or withhold its approval
or consent.
16.6 Representations and Warranties. Each of the parties to this Agreement
represents and warrants that it has the full right, power, legal capacity, and authority to
enter into and perform the party's respective obligations hereunder and that such
obligations shall be binding upon such party without the requirement of the approval or
consent of any other person or entity in connection herewith. Neither this Agreement nor
any Supplement shall be revocable or terminable except as expressly permitted herein and
therein.
16.7 Amendment of Agreement. Neither this Agreement nor any Supplement may be
amended except pursuant to a written instrument signed by both parties.
20
16.8 Entire Agreement. This Agreement contains the entire understanding between the
parties with respect to the subject matter herein. There are no representations,agreements,
or understandings (whether oral or written) between or among the parties relating to the
subject matter of this Agreement which are not fully expressed herein. In witness whereof,
and in order to bind themselves legally to the terms and conditions of this Agreement, the
duly authorized representatives of the parties have executed this Agreement as of the
Effective Date.
16.9 Public Records. LICENSEE acknowledges that information submitted to the
LICENSOR may be open to public inspection and disclosure under the provisions of the
Kansas Open Records Act, K.S.A. 45-215, et seq., as amended. LICENSEE may identify
information, such as trade secrets, proprietary financial records, customer information or
technical information, submitted to the LICENSOR as confidential. LICENSEE shall
prominently mark any information for which it claims confidentiality with the word
"Confidential" on each page of such information prior to submitting such information to
the LICENSOR. The LICENSOR shall treat any information so marked as confidential
until the LICENSOR receives any request for disclosure of such information. The
LICENSOR shall use commercially reasonable efforts to provide LICENSEE with written
notice of the request, including a copy of the request, to LICENSEE at _ USCOC
Nebraska/Kansas, LLC, Attention: Real Estate Lease Administration, 8410 West Bryn
Mawr Avenue, Chicago, Illinois 60631, within two (2) working days of receiving the
request. LICENSEE shall then provide a written response to the LICENSOR within five
(5) working days (unless LICENSOR determines that applicable Laws allow LICENSOR
additional time to respond to the request for disclosure, in which case LICENSEE shall
provide a written response to the LICENSOR within three (3) working days), by either
authorizing the disclosure or advising of its election to seek a protective order. If
LICENSEE chooses to seek an appropriate protective order, the LICENSOR will refrain
from disclosing such information(unless legally required or compelled to do so) until the
request for a protective order is resolved, and will then comply with any validly-issued
protective order. The LICENSOR retains the fmal discretion to determine whether to
release the requested confidential information, in accordance with applicable Laws.
16.10 Non-Exclusive Remedies. No provision in this Agreement made for the purpose
of securing enforcement of the terms and conditions of this Agreement shall be deemed an
exclusive remedy or to afford the exclusive procedure for the enforcement of said terms
and conditions, but the remedies herein provided are deemed to be cumulative.
16.11 No Third-Party Beneficiaries. It is not intended by any of the provisions of this
Agreement or any Supplement to create for the public,or any member thereof,a third-party
beneficiary right or remedy, or to authorize anyone to maintain a suit for personal injuries
or property damage pursuant to the provisions of this Agreement or any Supplement. The
duties,obligations,and responsibilities of the LICENSOR with respect to third parties shall
remain as imposed by applicable Laws.
16.12 Construction of Agreement. The terms and provisions of this Agreement and
each Supplement shall not be construed strictly in favor of or against either party,
21
regardless of which party drafted any of its provisions. This Agreement and each
Supplement shall be construed in accordance with the fair meaning of its terms.
16.13 Time is of the Essence. Time is of the essence with regard to the performance of
all of LICENSEE's obligations under this Agreement and each Supplement.
[Signature Page Follows]
22
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be legally
executed in duplicate.
LICENSOR:
City of Salina, Kansas
By:
Michael . Ho poAayor
Date: , ec.- -'l 22p27,a0
ATTEST:
S itQl/14L-1O IQL&d
Shandi Wicks, CMC, City Clerk
APPROVE P AS ►P FORM
BY: /
Le al C• nse'
LICENSEE:
USCOC Nebraska/Kansas, LLC
BY: ( .7__iip ,- T_
Ana Ruge-Rod;;Id
Sr. Manager Procurement— Small Cells
Date: 10 O 2--OZO
Exhibits to Small Cell Master License Agreement:
Exhibit A—Form of Supplement
23
EXHIBIT A
FORM OF SUPPLEMENT
SUPPLEMENT
This Supplement ("Supplement"), made this day of , 20 ("Effective
Date") between the City of Salina, Kansas, a political subdivision of the State of Kansas,
hereinafter designated "Licensor", and USCOC Nebraska/Kansas, LLC
, hereinafter designated "Licensee":
1. Supplement. This is a Supplement as referenced in that certain Small Cell Master License
Agreement between Licensor and Licensee, dated , 20 ("Agreement"). All
of the terms and conditions of the Agreement are incorporated hereby by reference and made a
part hereof without the necessity of repeating or attaching the Agreement. In the event of a
contradiction, modification or inconsistency between the terms of the Agreement and this
Supplement,the terms of this Supplement shall govern. Capitalized terms used in this Supplement
shall have the same meaning described for them in the Agreement, unless otherwise indicated
herein.
2. Project Description and Locations. Licensee shall have the right to install, construct,
operate, repair and replace one or more Small Cells on the Municipal Facilities in the PROW as
further described in Attachment 1 attached hereto.
3. Equipment. The Small Cells to be installed on the Municipal Facilities are described in
Attachment 1 attached hereto.
4. Term. The Supplement Term of this Supplement shall be as set forth in Section 2.2 of the
Agreement.
5. Fees. The Rent for the Supplement Term shall be $ , subject to potential
adjustment during the Supplement Term by Licensor, as determined in accordance with Section
5(a)of the Agreement. All invoices shall be addressed to LICENSEE as provided in Section 12.1.
6. Supplement Commencement Date. The first day of the month following the date
Licensee has Commenced Installation of its Equipment on the Municipal Facilities described in
Attachment 1 attached hereto, as evidenced by the Acknowledgement required under Section
5(e)(i) of the Agreement.
7. Power Consumption. Licensee's power consumption for its Small Cells shall be metered
or sub-metered and billed to Licensee as provided in Section 7.2 of the Agreement.
Exhibit A
Page 1 of 4_
8. Approvals/Fiber. It is understood and agreed that Licensee's ability to use the Municipal
Facilities is contingent upon its obtaining all of the certificates, permits and other approvals
(collectively the "Governmental Approvals") that may be required by any Federal, State or Local
authorities, as well as a satisfactory fiber and electrical connection which will permit Licensee's use
of the Municipal Facilities as set forth above. In the event that(i)any of such applications for such
Governmental Approvals should be finally rejected; (ii) any Governmental Approval issued to
Licensee is canceled, expires, lapses, or is otherwise withdrawn or terminated by governmental
authority;(iii)Licensee determines that any of such Governmental Approvals may not be obtained
in a timely manner; (iv) Licensee determines that it will be unable to obtain or maintain in a
satisfactory manner any fiber or power connection; or(v)Licensee determines that one or more of
the Municipal Facilities is no longer technically compatible for its use, Licensee shall have the
right to: (1)terminate this Supplement; or(2)terminate the applicable Small Cell sites under this
Supplement. Notice of Licensee's exercise of its right to terminate shall be given to Licensor in
writing by certified mail, return receipt requested, and shall be effective upon the mailing of such
notice by Licensee,or upon such later date as designated by Licensee. All compensation paid to said
termination date shall be retained by Licensor. Upon termination of the Supplement in its entirety,
this Supplement shall be of no further force or effect except to the extent of the representations,
warranties and indemnities made by each party to the other hereunder. Otherwise, Licensee shall
have no further obligations for the payment of Rent to Licensor.
9. Miscellaneous.
(Signature Page Follows]
Exhibit A
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EXECUTED to be effective as of the last date shown below.
LICENSOR:
City of Salina, Kansas
By: EXHIBIT ONLY-NOT FOR EXECUTION
Name:
Title:
Date:
ATTEST:
Shandi Wicks, CMC, City Clerk
APPROVED AS TO FORM
BY:
Legal Counsel
LICENSEE:
By: EXHIBIT ONLY-NOT FOR EXECUTION
Name:
Title:
Date:
Exhibits to Supplement:
Attachment 1
Exhibit A
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Attachment 1 to Supplement
Licensed Area and Equipment
Exhibit A
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