020 of 2018 - Granting a Master License Agreement for Right-of-Way Access to ExteNet Systems, Inc. o is-i
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SALT LAKE CITY ORDINANCE
No.20 of 2018
(Granting a Master License Agreement for Right-of-Way
Access to ExteNet Systems,Inc.)
WHEREAS,ExteNet Systems,Inc.,a Delaware corporation(the"Company")desires to
install equipment to provide third party broadband wireless services within Salt Lake City,Utah
(the"City"),and in connection therewith to establish a network in,under,along,over,and across
present and future streets,alleys and rights-of-way of the City,consisting of antennas,
telecommunication lines and cables,radios,and conduit,together with all necessary and
desirable appurtenances,for the operation of a wireless broadband small cell network for
communication services;and
WHEREAS,the City,in the exercise of its police power,ownership,use or rights over
and in the public rights-of-way,and pursuant to its other regulatory authority,believes it is in the
best interest of the public to provide to the Company,and its successors,access rights pursuant to
a non-exclusive license agreement to operate its business within the City;and
WHEREAS,the City and the Company propose to enter into a Master License
Agreement for Right-of-Way Access the substantially final form of which has been presented to
the City Council at the meeting at which this Ordinance is being considered for adoption;and
WHEREAS,the City desires to approve the execution and delivery of such Master
License Agreement for Right-of-Way Access and to otherwise take all actions necessary to grant
the referenced rights to the Company;and
WHEREAS,the City believes this Ordinance to be in the best interest of the citizens of
the City.
NOW,THEREFORE,be it ordained by the City Council of Salt Lake City,Utah,as
follows:
SECTION 1. Purpose. The purpose of this Ordinance is to grant to the Company,and
its successors and assigns,a non-exclusive right to use the present and future streets,alleys,
viaducts,bridges,roads,lanes and public way within and under control of the City for its
business purposes,under the constraints and for the compensation enumerated in the
substantially final form of the Master License Agreement for Right-of-Way Access attached
hereto as Exhibit A,and by this reference incorporated herein,as if fully set forth herein(the
"Master License Agreement").
SECTION 2. Short Title. This Ordinance shall constitute the ExteNet Small Cell
Master License Ordinance.
SECTION 3. Grant of Access Rights. The administration is hereby authorized to
negotiate and execute the Master License Agreement reflecting the terms of this Ordinance and
incorporating such other terms and agreements as recommended by the City Attorney's Office,
and if needed,amend the Master License Agreement as contemplated therein.There is hereby
granted to the Company,and its successors and assigns,in accordance with the terms and
conditions of the Master License Agreement,the right and privilege,to construct,maintain and
operate in,under,along,over and across the present and future streets,alleys,and rights-of-way
and other property of the City,all as more particularly described in the Master License
Agreement.
SECTION 4. Term. The term of the Master License Agreement is for a period of five
years from and after the recordation of this Ordinance with the Salt Lake City Recorder's Office,
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with a renewal of an additional five year term.The Company shall pay all costs of publishing
this Ordinance.
SECTION 5. Acceptance by Company. Within thirty(30)days after the effective date
of this Ordinance,the Company shall execute the Master License Agreement;otherwise,this
Ordinance and the rights granted hereunder shall be null and void.
SECTION 6.No revocation or termination may be effected until the City Council shall
first adopt an ordinance terminating the Master License Agreement and setting forth the reasons
therefor,following not less than thirty(30)days prior written notice to the Company of the
proposed date of the ordinance adoption. The Company shall have an opportunity on said
ordinance adoption date to be heard upon the proposed termination.
SECTION 7. This Ordinance shall take effect immediately upon publication.
Passed by the City Council of Salt Lake City,Utah,this 15th day of M ay ,2018.
CHAIRPERSON
ATT
t r:.
CITY RECORDER
Transmitted to Mayor on May 16, 2018
Mayor's Action: p( Approved. Vetoed.
MAYOR � Lf /
Salt Lake City Attomey's Office
` 1 /6��� A roved As To Form
CITY RE ORD
e„ Yy imb y K.Chytraus
(SEAL) " I.-T it
0krAt � . Date:
1 P5 A �- I
Bill No. 20 of 2018. 'IVna • z if
Published: May 23, 2018 . '4'-OR\T s�.
HB ATTY-#67508-v1
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EXHIBIT"A"
MASTER LICENSE AGREEMENT
MASTER LICENSE AGREEMENT
FOR RIGHT OF WAY ACCESS
THIS MASTER LICENSE AGREEMENT FOR RIGHT OF WAY ACCESS(this
"Agreement"),dated as of its date of recordation with the Salt Lake City Recorder(the
"Effective Date"),by and between SALT LAKE CITY CORPORATION,a Utah municipal
corporation(the"City"),and EXTENET SYSTEMS,INC.,a Delaware corporation(the
"Company").
RECITALS
A. The Company desires a non-exclusive agreement to install, at its sole cost and
expense,a network of Facilities within the boundaries of Salt Lake City,Utah,and to utilize Salt
Lake City rights-of-way for such purpose, in order to provide third party broadband wireless
service and expand the available data transmission bandwidth for mobile devices.
B. The City owns or controls such rights of way and has agreed to grant access to the
Company in accordance with the terms and conditions of this Agreement.
NOW,THEREFORE,for good and valuable consideration and,further,in contemplation
of subsequent approval by legislative action of the City Council as hereinafter provided,the
parties mutually agree as follows:
ARTICLE 1
ORDINANCE
1.1 Defined Terms. All capitalized terms not otherwise defined herein have the
meanings given them on Schedule 1 attached hereto and incorporated herein.
1.2 Ordinance. The City Council has adopted an ordinance entitled ExteNet Small Cell
Master License Ordinance (the "Ordinance"), approving the execution of this Agreement.
Execution of this Agreement constitutes the unqualified acceptance of the Ordinance by the
Company. Such Ordinance is incorporated herein by reference,and made an integral part of this
Agreement.
1.3 Description. The Ordinance confers upon the Company, and its successors and
assigns,the non-exclusive right,privilege,and access(the"Access Rights"),subject to the terms
of this Agreement,to construct,install,maintain,repair,replace,modify,relocate,remove,and
operate the Company Facilities in,under,along,over,across,and through portions of the Right-
of-Way and attach Company Facilities to a Permitted Structure in the Right-of-Way,as described
in this Agreement. The Company Facilities shall be used for a Permitted Use and located pursuant
to a Site Approval (each as defined below). This Agreement does not grant to Company any
interest in any property.
1.4 Term. The term of the Agreement is for a period from and after the date hereof,
until five years from the Effective Date,which shall renew automatically for one additional five
year term,provided that there is not any uncured event of default by either party,unless Company
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notifies City in writing of its intent to not renew this Agreement at least three months prior to the
expiration of the term.
ARTICLE 2
SITE APPROVAL
2.1 Application and Review.
(a) For the application to locate any Company Facilities within the Right-of Way via
a Permit to Work in the Right-of-Way(each,a"Permit Application"),the form of which will be
determined by City,Company shall submit a map showing the intended location(s)of the
Company Facilities,representative drawings or pictures of the intended Company Facilities,and
proposed engineering and construction plans and drawings that meet or exceed the requirements
of City(including Salt Lake City Code)along with the other requirements of this Agreement.
Company and City shall cooperate as necessary to reasonably mutually agree on the designs and
construction plans.Company shall comply with the reasonable design standards required by
City.One Permit Application shall be submitted for each proposed location,unless otherwise
agreed by City.An approved Permit Application shall be deemed a"Site Approval"for
purposes of this Agreement and is subject to the terms and conditions of this Agreement.
(b) Company must obtain the relevant City permits in connection with each Site
Approval and prior to installation of any Company Facility.No Company Facilities shall be
installed or the installation thereof commenced on any Permitted Structure until the proposed
location,specifications and manner of installation thereof are set forth and approved by the City
pursuant to this Agreement and applicable law.
(c) The Permit Application shall include evidence of permission from the entity or
entities which own or otherwise legally control any existing Permitted Structure that Company
may install Company Facilities on such Permitted Structure. This evidence of permission shall be
a condition to receiving any City perinit and Site Approval.In addition,payment of any fees or
costs charged by the Permitted Structure owner is a condition to receiving Site Approval and any
permits.
(d) Company represents and warrants that Company, on behalf of itself, a wholly
owned subsidiary of Company,or third party user of Company Facilities,is authorized to provide
wireless broadband services on Company Facilities within Salt Lake City. Acceptable evidence
of such authorization includes a letter of authorization from the user of Company Facilities or
something similar that is reasonably acceptable to City. Company may not obtain a Site Approval
or permits,or build Company Facilities,on a speculative basis without an agreement between the
Company and a broadband wireless services provider that will use the Company Facilities upon
completion of installation.
(e) Company shall be responsible for obtaining any electrical power service to the
Company Facilities, and shall include electrical service location and construction plans with a
Permit Application. City shall not be liable for any stoppages or shortages or electrical power.
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(f) Company shall be responsible for obtaining access and connection to fiber optic
lines or other backhaul solutions that may be required for its Company Facilities, and shall include
location and construction plans with a Permit Application.
(g) The Company 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 visually minimized to the extent possible.
(h) For any addition, removal, or alteration of any kind to any Company Facilities,
including altering their camouflaging or appearance, Company shall submit a request to modify
the respective Site Approval and must receive City approval of such modifications prior to making
such modifications, except for routine maintenance or replacement of an existing Company
Facility with equipment that (1) has identical dimensions and appearance or smaller dimensions
and a less intrusive appearance, and (2) does not require any additional permit or plan approval
from the City.
(i) Company will use its best efforts to design Company Facilities to be aesthetically
acceptable and unobtrusive as possible, as determined by City, and install Company Facilities in
an unobtrusive manner that minimizes and mitigates anticipated detrimental effects of Company
Facilities without interfering with, impairing or diminishing the function of Company Facilities.
(j) Any Company Facility that is not subject to a Site Approval, does not receive the
required permits, or does not meet the specifications of this Agreement or the Site Approval, shall
be deemed unauthorized. City may cause Company to remove any unauthorized facilities upon
30 days' written notice at Company's cost and expense, or following the 30 day-period may
remove such facilities and will invoice Company for the cost of such removal.
2.2 Annual Plans. Company shall provide to City a two-year non-binding forecast for
installations and location needs within the City, and shall update such forecast as there are material
changes on an annual basis.
ARTICLE 3
FEES
3.1 Access Fee.
(a) For and in consideration of the Access Rights, and as fair and reasonable
compensation to the City for the use by the Company of the Right-of-Way, the Company will pay
to the City an annual fee equal to 3.5% of Gross Revenue (the "Access Fee"). In the event that
revenue cannot be specifically identified to be generated from individual Company Facilities,
Company will calculate the Access Fee based upon the total Gross Revenue generated by the
Company's network within the boundaries of Salt Lake City.
(b) The Access Fee is being charged in lieu of the Telecom Tax, as it is currently
understood by the Parties that such Tax is inapplicable to the types of services being provided by
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Company,which are anticipated to consist of the sale of wholesale bandwidth to carriers and not
sales to consumers. Company hereby waives any argument that the imposition of the Access Fee
is a violation of the provisions or limitations of the Telecom Tax Act.If it is determined that the
Telecom Tax Act is applicable then the parties will amend this Agreement to provide that any tax,
applicable fees,and other reports are provided or paid by the Company consistent with the City's
ordinances,rules,and regulations for other similar uses of the Right-of-Way.
(c) With the payment of each annual Access Fee, Company shall include a report
indicating the Gross Revenue upon which the Access Fee is calculated and a description, of
reasonable specificity,of the Facilities which have generated the revenue upon which the Access
Fee is based. In the event the Telecom Tax is imposed,the Company shall annually prepare and
deliver to the City a report summarizing Company payments to the Utah State Tax Commission
for the requested period. Such report shall include such information related to such payment as
the City shall reasonably request, including by way of example, and not limitation, the gross
receipts of the Company from telecommunications service that are attributed to the City during
such period,and the methodology for calculating such gross receipts.
(d) The records of the Company pertaining to the reports and payment required in this
Agreement,including but not limited to any records deemed necessary or useful by the City to
calculate or confirm Gross Revenue,and all other records of the Company reasonably required by
the City to assure compliance by the Company with the terms of this Agreement("Company
Confidential Information"), shall be open to inspection by the City and its duly authorized
representatives upon reasonable notice at all reasonable business hours of the Company. The
Company may require such inspection to be performed at any Company Facilities where such
Company Confidential Information may be located; provided that in the event such Company
Confidential Information is not located at Company Facilities within the City,such Company
Confidential Information shall be delivered by the Company for inspection by the City at the
address of the City set forth herein. Company acknowledges that City is subject to the
requirements of GRAMA as provided for in Section 12.4 below. City may disclose Company
Confidential Information to its employees, officers, directors, consultants, advisors and agents
(collectively,"Representatives")to the extent reasonably necessary to carry out the inspection;
provided, however, that such Representatives are informed of the confidential nature of the
Company Confidential Information,and are bound by confidentiality obligations no less stringent
than those set forth herein.
3.2 Attachment Fee. Company will pay to City,as fair and reasonable consideration to
the City for the attachment by the Company to a Permitted Structure in the Right-of-Way, an
annual attachment fee per Permitted Structure (the"Attachment Fee") for one attachment of
Company Facilities (including a strand mounted attachment), which includes one radio, one
antenna,and one meter(if attached to the Permitted Structure),or their functional equivalent.
(a) The Attachment Fee to attach to a Utility Pole shall be$200 per pole.
(b) The Attachment Fee to attach to a City-owned Permitted Structure shall be an
amount to be determined by the City.
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(c) The Attachment Fee to place a Company-owned Permitted Structure in the Right-
of-Way and attach to it Company Facilities shall be an amount to be determined by the City.
3.3 Ground Equipment Fee. Company will pay to City, as fair and reasonable
consideration to City for the location of any ground mounted equipment in the Right-of-Way,such
as a meter,node, or similar equipment, an annual fee of$200 per ground mounted equipment
installation(the"Ground Equipment Fee").The size of such ground equipment shall comply
with the permitted size of a ground mounted utility box as set forth in Salt Lake City Code.
3.4 Administrative Fee. Upon execution of this Agreement,the Company will pay to
the City,upon execution and delivery hereof,a one-time administrative fee of$5,000,which shall
compensate the City for(but which does not exceed),the direct costs and expenses incurred by the
City in preparing, considering,approving, executing and implementing the Ordinance and this
Agreement.
3.5 Other Fees. Company shall also pay any reasonable fees or costs,including outside
engineering and consulting fees,charged by City or Permitted Structure owner and associated with
obtaining a Site Approval and any related permits or approvals,and any other ad valorem taxes,
special assessments or other lawful obligations of the Company to the City.
3.6 Fee Payment. Company will pay the Access Fee,Attachment Fee,and Ground
Equipment Fee(collectively,the"Small Cell Fees")annually on or before the anniversary of the
Effective Date. The Small Cell Fees are payable to the Department of Real Estate Services at the
address for City. Any Small Cell Fee paid after the due date shall incur 12%annual interest,
compounded daily from the due date until payment is received on the amount due.If Company
holds over past the expiration of this Agreement, each of the Small Cell Fees shall increase to
150%of the most recent respective Small Cell Fees paid monthly. Payment of a hold over fee
does not extend or renew this Agreement.
ARTICLE 4
COMPANY USE OF RIGHT-OF-WAY
4.1 Permitted Use;Installation;Maintenance.The Company Facilities shall be used
for a Permitted Use and subject to the respective Site Approval and this Agreement. Each
location of Company Facilities requires a Site Approval.Company shall install the Company
Facilities in a good and workmanlike manner and in accordance with the requirements of the
City.Company's work shall be subject to the regulation,control,and direction of the City.If
Company fails to install and operate Company Facilities within twelve(12)months following
receipt of a Site Approval,then the respective Site Approval shall be revoked and Company will
be required to reapply.During the Term,Company shall maintain,repair,and keep in good
condition the Company Facilities,reasonable wear and tear excepted.
4.2 Rights to Access and Use Right-of-Way.
(a) The Company shall have the right to use a portion of a Right-of-Way in the precise
location described in the Site Approval to locate and install Company Facilities on a Permitted
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Structure,subject to the terms and conditions of this Agreement.
(b) The rights granted to the Company herein do not include the right to(i)excavate
in, occupy or use any City park, recreational areas or other property owned by the City (or
regulated by the City, such as riparian areas of water source protection areas),or(ii)attach or
locate any of the Company Facilities to or on,or otherwise utilize any of,any City-owned property,
facilities, or structures, including without limitation light poles, traffic signal lights, towers,
buildings,and trees,except as may be a Permitted Structure.
4.3 Company Duty to Relocate. Whenever the City shall require the relocation or
reinstallation of any of the Company Facilities situated within the Right-of-Way,it shall be the
obligation of the Company and at Company's sole cost and expense,to commence the removal of
the respective Company Facilities within 60 days of receipt of notice to relocate as may be
reasonably necessary to meet the requirements of the City. The Company's relocation may be
required by the City for any lawful purpose,including,without limitation,the resolution of existing
or anticipated conflicts or the accommodation of any conflicting uses or proposed uses of the
Right-of-Way, whether such conflicts arise in connection with a City project or a project
undertaken by some other person or entity,public or private. The City will cooperate with the
Company to provide alternate space where available,within the Right-of-Way. The new location
shall be subject to obtaining a Site Approval. Such relocation shall be accomplished by the
Company at no cost or expense to the City. In the event the relocation is ordered to accommodate
the facilities of an entity other than City or Company,the cost and expense of such relocation shall
be borne by such other entity.
4.4 Approval to Move Company Property;Emergency Exception. Except as otherwise
provided herein, the City shall not, without the prior written approval of the Company,
intentionally alter, remove, relocate or otherwise interfere with any portion of the Company
Facilities.Any written approval request shall be promptly reviewed(within 30 days)and processed
by the Company and approval shall not be unreasonably withheld, conditioned, or delayed.
However,if it becomes necessary,in the reasonable judgment of City,to move any of the Company
Facilities because of a fire,flood,emergency,earthquake disaster or other imminent and material
threat thereof,or to relocate any portion of the Company Facilities upon the Company's failure to
do so following a written request by the City under Section 4.3 hereof,these acts may be done by
the City without prior written approval of the Company at the Company's sole cost and expense.
4.5 Duty to Underground. It is the policy of the City to have lines and cables placed
underground to the greatest extent reasonably practicable. In furtherance of this policy, the
Company will place newly constructed lines and cables underground whenever practicable when
building in(i)new residential subdivision areas,if required by subdivision regulations adopted by
the City,and(ii)within the Central Business District of the City.In addition,the Company shall
locate wires,cables,or other facilities that are not required to be above ground underground in the
manner provided by the City.Any request by Company for location of any overhead or aerial
facilities(other than the antennas or other facilities required to remain above ground in order to be
functional)shall be considered by City in accordance with this policy and applicable rules and
regulations.
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4.6 Compliance with Rules and Regulations and Applicable Laws. Company Facilities
located on, upon, over or under the Right-of-Way shall be constructed, installed, maintained,
cleared of vegetation,renovated or replaced in accordance with such lawful rules and regulations
as the City may issue. The Company shall acquire,and pay any fees with respect to,such permits
as may be required by such rules and regulations,and the City may inspect the manner of such
work and require remedies as may be necessary to assure compliance. All Company Facilities
installed or used pursuant to this Agreement shall be used,constructed,repaired,replaced,and
maintained in accordance with applicable federal, state and City laws, rules, and regulations,
including without limitation environmental laws,now existing or from time to time adopted or
promulgated.
4.7 Hazardous Materials.Company shall not possess,use,generate,release,discharge,
store,dispose of,or transport any Hazardous Materials on,under,in,above,to,or from any Right-
of-Way except in compliance with all applicable environmental laws and pre-approved by City.
Company shall promptly reimburse City for any fines or penalties levied against City because of
Company's failure to comply with environmental laws.The provisions of this Section 4.7 shall
survive the termination or expiration of this Agreement.
4.8 Location to Minimize Interference. All Company Facilities shall be reasonably
located so as to cause minimum interference with the use of the Right-of-Way by others,with City
or public operations,with the rights of the owners of property which abuts any portion of the Right-
of-Way,and pursuant to FCC regulations.
4.9 Repair Damage. If during the course of work on Company Facilities,the Company
causes damage to or alters any portion of the Right-of-Way, Permitted Structure, or any City
facilities or other public property or facilities,the Company shall(at its own cost and expense and
in a manner reasonably approved by City),replace and restore such portion of the Right-of-Way,
Permitted Structure, or any City facilities or other public or private property or facilities, in
accordance with applicable City ordinances,policies and regulations relating to repair work of
similar character.If Company does not complete such work within a reasonable time frame set by
City,the City may complete such work and bill Company for the cost and expense,to be paid
within 30 days'following the date of an invoice for such work.
4.10 Guarantee of Repairs. For a period of three years following the completion of any
work by Company in the Right-of-Way or any repair work by Company performed pursuant to
Section 4.9 above,the Company shall maintain,repair,and keep in good condition those portions
of the Right-of-Way,Permitted Structures,property,or facilities restored,repaired or replaced by
Company,to the reasonable satisfaction of the City Engineer,reasonable wear and tear excepted.
4.11 Safety Standards. The Company's work, while in progress, shall be properly
protected at all times with suitable barricades,flags,lights,flares,or other devices in accordance
with applicable safety regulations or standards imposed by law.
4.12 Inspection by the City. The Company Facilities shall be subject to inspection by
the City to assure compliance by the Company with the terms of this Agreement. Company shall
pay any fees charged or costs or expenses incurred by City in connection with such inspections.
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4.13 Company's Duty to Remove Company Facilities from the Right-of-Way.
(a) Subject to subsection(c)below,the Company shall remove from the Right-of-Way
all or any part of the Company Facilities,when one or more of the following conditions occur:
(i) The Company ceases to operate such Company Facilities for a continuous
period of 30 days,except when the cessation of service is a direct result of a natural or man-made
disaster;
(ii) The construction or installation of such Company Facilities does not meet
the requirements of this Agreement or the Site Approval;or
(iii) The Agreement or use of a Permitted Structure is terminated or revoked
pursuant to notice as provided herein.
(b) Upon receipt by the Company of written notice from the City setting forth one or
more of the occurrences specified in subsection(a)above,the Company shall have 90 days from
the date upon which said notice is received to remove such Company Facilities,or,in the case of
subsection(a)(i),to begin operating the Company Facilities.
(c) If Company fails to timely remove the Company Facilities as set forth in this
Section,City may remove such facilities and bill Company for the cost and expense,to be paid
within 30 days'following the date of an invoice for such work.
4.14 Tree Trimming. With the approval of City,Company may trim trees overhanging
the Right-of-Way of the City to prevent the branches of such trees from coming in contact with
Company Facilities. All trimming on City property shall be done under the direction of the City's
Urban Forester and at the expense of the Company.
4.15 Identification. All Company Facilities shall be clearly marked with Company's
name and emergency contact information.
ARTICLE 5
POLICE POWER
The City expressly reserves,and the Company expressly recognizes,the City's right and
duty to adopt,from time to time,in addition to the provisions herein contained,such ordinances,
rules and regulations as the City may deem necessary in the exercise of its police power for the
protection of the health,safety and welfare of its residents and their properties.This Agreement is
subject to any such ordinances,rules,and regulations.
ARTICLE 6
TRANSFER OF RIGHTS
6.1 Terms of Transfer.
(a) Except as provided in subsection (c) and provided that the Company has not
defaulted on any provision of this Agreement or a Site Approval,the Company shall not sell,
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transfer, lease, assign, sublet, in whole or in part, either by forced or involuntary sale, or by
ordinary sale,contract,consolidation,or otherwise make available,the Access Rights or any rights
or privileges under this Agreement,(each,a"Transfer"),to any person or entity other than the
Company(a"Proposed Transferee"),without the prior written consent of the City.
(b) For the purpose of determining whether it shall grant its consent, the City may
inquire into the qualifications of the Proposed Transferee,and the Company shall assist the City
in the inquiry. City may condition or deny its consent based on any or a combination of the
following or similar criteria. The Proposed Transferee shall indicate by affidavit whether it or any
of its principals:
(i) has ever been convicted or held liable for acts involving deceit including
any violation of federal, State or local law or regulations,or is currently under an indictment,
investigation or complaint charging such acts;
(ii) has ever had a judgment entered against it in an action for fraud,deceit,or
misrepresentation by any court of competent jurisdiction;
(iii) has pending any material legal claim,lawsuit,or administrative proceeding
arising out of or involving a system similar to the Company Facilities,except that any such claims,
suits or proceedings relating to insurance claims,theft or service,or employment matters need not
be disclosed;
(iv) is financially solvent, by submitting financial data, including financial
statements,that have been audited by a certified public accountant,along with any other data that
the City may reasonably require;and
(v) has the financial and technical capability to enable it to maintain and operate
the Company Facilities for the remaining term of this Agreement and is in the business of operating
Facilities.
In addition,Company shall provide to the City information regarding any failure by the
Company to comply with any provision of this Agreement or of any applicable customer or
consumer service standards promulgated or in effect in the City's jurisdiction at any point during
the term of this Agreement.
(c) Notwithstanding the foregoing, the City's consent shall not be required in
connection with the following circumstances,provided that Company is not released from the
obligations under this Agreement and such transferee assumes this Agreement and agrees in
writing to comply with the terms and conditions of this Agreement,including subsections(d)and
(e)below:
(i) The intracorporate Transfer from a parent corporation to a wholly-owned
subsidiary,or from one wholly-owned subsidiary to another wholly-owned subsidiary of a
parent corporation;
(ii) Any Transfer in trust,a mortgage,or other instrument of hypothecation of
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the assets of the Company,in whole or in part,to secure an indebtedness,provided that
such pledge of the assets of the Company shall not impair or mitigate the Company's
responsibility and capability to meet all its obligations under this Agreement,and provided
further that such Proposed Transferee subordinates to this Agreement;or
(iii) Interconnection,license,or use agreements pursuant to which the Company
Facilities may be used by another entity providing telecommunication services within the
City,provided that any such interconnection,license,or use agreement is subordinate to
this Agreement.
(d) Transfer by the Company shall not constitute a waiver or release of any rights of
the City in or to its Right-of-Way and any Transfer shall by its own terms be expressly subject to
the terms and conditions of this Agreement and not create any conflict with any applicable laws,
rules,or regulations.
(e) A Transfer of this Agreement will only be effective upon the Proposed Transferee
becoming a signatory to this Agreement by executing an unconditional acceptance of this
Agreement.
(f) As contemplated by Section(c)(iii)above,the parties agree and acknowledge that,
notwithstanding anything in this Agreement to the contrary,certain Company Facilities deployed
by Company in the Right-of-Way pursuant to this Agreement may be owned and/or operated by
Company's third-party wireless carrier customers("Carriers")and installed and maintained by
Company pursuant to license agreements between Company and such Carriers. Such license
agreements shall be subordinate to this Agreement. Such Company Facilities shall be treated as
the Company's for all purposes under this Agreement provided that (i) Company remains
responsible and liable for all performance obligations under the Agreement with respect to such
Company Facilities;(ii)City's sole point of contact regarding such Company Facilities as it relates
solely to this Agreement shall be Company;and(iii)Company shall have the right to remove and
relocate such Company Facilities pursuant to the terms of this Agreement.
ARTICLE 7
EARLY TERMINATION OR REVOCATION OF ACCESS RIGHTS
7.1 Grounds for Termination by City. The City may terminate or revoke this
Agreement and all rights and privileges herein provided for any of the following reasons:
(a) The Company fails to make timely payments of the Small Cell Fees as required
under Article 3 of this Agreement, or any other fee due to the City under the terms of this
Agreement,and does not correct such failure within 20 business days after receipt of written notice
by the City of such failure.
(b) The Company,by act or omission,violates a material term or condition herein set
forth within the Company's control, and with respect to which redress is not otherwise herein
provided. In such event, the City may determine that such failure is of a material nature and
thereupon,after written notice given to the Company of such determination,the Company shall,
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within 30 days of such notice, commence efforts to remedy the conditions identified in the notice,
and shall have three months from the date it receives notice to remedy the conditions. After the
expiration of such three month period and upon failure by the Company to correct such conditions,
the City may declare the Access Rights forfeited and this Agreement terminated, and thereupon
the Company shall have no further rights or authority hereunder;provided, however, that any such
declaration of forfeiture and termination shall be subject to judicial review as provided by law, and
provided further that in the event such failure is of such nature that it cannot be reasonably
corrected within the three month period above, the City shall provide additional time for the
reasonable correction of such alleged failure if the Company (i) commences corrective action
during 30 days following notice of the failure, and (ii) is diligently pursuing such corrective action
to completion.
(c) The Company becomes insolvent, unable or unwilling to pay its debts, is adjudged
bankrupt, or all or part of its Facilities are sold under an instrument to secure a debt and is not
redeemed by the Company within 60 days.
(d) In furtherance of the Company policy or through acts or omissions done within the
scope and course of employment, a member of the Board of Directors or an officer of the Company
knowingly engages in conduct or makes a material misrepresentation with or to the City, that is
fraudulent or in violation of a felony criminal statute of the State of Utah.
(e) Company abandons use of all Company Facilities for 12 consecutive months,
except as otherwise provided in Section 4.13.
7.2 Grounds for termination by Company.
(a) Default. In the event there is a material breach by City with respect to any of the
provisions of this Agreement or its obligations under it, Company shall give City written notice of
such breach. After receipt of such written notice, City shall have 30 days in which to cure any
breach, provided City shall have such extended period as may be required beyond the 30 days if
City commences the cure within the 30 day period and thereafter continuously and diligently
pursues the cure to completion. Company may not maintain any action or effect any remedies for
default against City unless and until City has failed to cure the breach within the time periods
provided in this Section.
(b) 30 Days' Notice.
(i) Agreement Termination. Company may terminate this Agreement by giving
at least 30 days' written notice. Company shall not be subject to any penalty or fee for terminating
this Agreement prior to the end of the term of the Agreement. Responsibility for Small Cell Fees
shall cease upon removal of Company's Facilities, subject to Section 4.13 above and following
payment of the Small Cell Fees for the year during which the Company's Facilities are removed.
(ii) Termination of Use. Without terminating the Agreement, by giving at least
30 days' prior written notice, Company may terminate paying the Attachment Fee for a Permitted
Structure and the Ground Equipment Fee for ground mounted equipment from which the Company
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has discontinued use and removed the Company Facilities. City shall not provide partial
reimbursement for termination of use during any partial year.
ARTICLE 8
COMPANY INDEMNIFICATION;INSURANCE
8.1 No City Liability. The City shall in no way be liable or responsible for any loss or
damage to property,or any injury to or death of any person that may occur in the construction,
operation,or maintenance by the Company of the Company Facilities.City will be liable only for
its own conduct,subject to and without waiving any defenses,including limitation of damages,
provided for in the Utah Governmental Immunity Act(Utah Code Ann. 63G-7-101,et.seq.)or
successor provision.Company agrees that the Rights-of-Way are delivered in an"AS IS,WHERE
IS" condition and City makes no representation or warranty regarding their condition, and
disclaims all express and implied warranties,including the implied warranties of habitability and
fitness for a particular purpose.
8.2 Indemnification.
(a) Company shall indemnify, save harmless, and defend City, its officers and
employees,from and against all losses,claims,counterclaims,demands,actions,damages,costs,
charges,and causes of action of every kind or character,including attorneys'fees,arising out of
Company's intentional, reckless, or negligent performance hereunder or under the Ordinance.
Company's duty to defend City shall exist regardless of whether City or Company may ultimately
be found to be liable for anyone's negligence or other conduct. If City's tender of defense,based
upon this indemnity provision,is rejected by Company,and Company is later found by a court of
competent jurisdiction to have been required to indemnify City, then in addition to any other
remedies City may have,Company shall pay City's reasonable costs,expenses,and attorneys'fees
incurred in proving such indemnification,defending itself,or enforcing this provision. Nothing
herein shall be construed to require Company to indemnify the indemnitee against the indemnitees'
own negligence.The provisions of this section 8.2 shall survive the termination or expiration of
this Agreement.
(b) City assumes no responsibility for any damage or loss that may occur to Company's
property,except the obligation City assumes that it will not willfully or intentionally damage the
property of Company. City has no responsibility for any equipment maintenance, or for
Company's employees. Nothing in this Agreement shall be construed to create a partnership,joint
venture,or employment relationship
8.3 Notice of Indemnification. The City shall (a) give prompt written notice to the
Company of any claim, demand or lien with respect to which the City seeks indemnification
hereunder and(b)unless in the City's judgment a conflict of interest may exist between the City
and the Company with respect to such claim,demand or lien,permit the Company to assume the
defense of such claim,demand,or lien with counsel mutually satisfactory to City. If such defense
is not assumed by the Company, the Company shall not be subject to any liability for any
settlement made without its consent.
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8.4 Insurance.
(a) The Company,at its own cost and expense,shall secure and maintain,and shall
ensure that any subcontractor to the Company shall secure and maintain,during the term of this
Agreement the following policies of insurance:
(i) Commercial General Liability Insurance. Commercial general liability
insurance with the Salt Lake City Corporation named as an additional insured on a primary
and non-contributory basis in comparison to all other insurance including City's own
policy or policies of insurance,in the minimum amount of$2,000,000 per occurrence with
a$3,000,000 general aggregate and$3,000,000 products completed operations aggregate.
The policy shall protect the City and the Company from claims for damages for personal
injury, including accidental death,and from claims for property damage that may arise
from the Company's operations under this Agreement whether performed by Company
itself,any subcontractor,or anyone directly or indirectly employed by either of them. Such
insurance shall provide coverage for premises operations,acts of independent contractors,
products and completed operations. The Company may utilize its umbrella policy to meet
the required limits.
(ii) Commercial Automobile Liability Insurance. Commercial automobile
liability insurance naming City as an additional insured that provides coverage for owned,
hired, and non-owned automobiles used in connection with this Agreement, with a
combined single limit of$2,000,000 per occurrence. The Company may utilize its
umbrella policy to meet the required limits. If the policy only covers certain vehicles or
types of vehicles,such as scheduled autos or only hired and non-owned autos,Company
shall only use those vehicles that are covered by its policy in connection with any work
performed under this Agreement.
(iii) Workers'Compensation and Employer's Liability. Worker's compensation
and employer's liability insurance sufficient to cover all of the Company's employees
pursuant to Utah law.In the event any work is subcontracted,the Company shall require
its subcontractor(s) similarly to provide worker's compensation insurance for all of the
latter's employees,unless a waiver of coverage is allowed and acquired pursuant to Utah
law.
(b) General Insurance Requirements.
(i) Any insurance coverage required herein that is written on a"claims made"
form rather than on an"occurrence"form shall(A)provide full prior acts coverage or have
a retroactive date effective before the date of this Agreement,and(B)be maintained for a
period of at least three(3)years following the end of the term of this Agreement or contain
a comparable "extended discovery" clause. Evidence of current extended discovery
coverage and the purchase options available upon policy termination shall be provided to
the City.
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(ii). All policies of insurance shall be issued by insurance companies authorized
to do business in the state of Utah and either:
(A) Currently rated A-or better by A.M.Best Company;and(A(1))for
construction contracts only,the insurer must also have an A.M.Best Company financial
size category rating of not less than VII.
—OR—
(B) Listed in the United States Treasury Department's current Listing of
Approved Sureties(Department Circular 570),as amended.
(iii) The Company shall furnish certificates of insurance,acceptable to the City,
verifying the foregoing matters concurrent with the execution hereof and thereafter upon
renewal.
(iv) In the event any work is subcontracted, the Company shall require its
subcontractor, at no cost to the City, to secure and maintain all minimum insurance
coverages required of the Company hereunder. Company shall remain liable for all work
of its subcontractors.
(v) All required certificates and policies shall provide that insurers of coverage
thereunder shall provide 30 days'prior written notice of cancellation to the City.Company .
must provide to City written notice of any notice of cancellation of a policy at least 30 days
prior to such cancellation, and evidence of a successor policy complying with the
requirements of this Agreement.
8.5 Damages Waiver. Notwithstanding any provision in this Agreement to the
contrary,in no event shall any party be liable to any other party for indirect,special,punitive,or
consequential damages,including,without limitation,lost profits.
8.6 Bonds. Company shall comply with all bonding requirements required by Salt Lake
City Code,including those required to obtain permits.
ARTICLE 9
REMEDIES
9.1 Duty to Perform. The Company and the City agree to take all reasonable and
necessary actions to assure that the terms of this Agreement are performed and neither will take
any action for the purpose of securing modification of this Agreement before the FCC or other
governmental authority with jurisdiction or any court of competent jurisdiction; provided,
however,that neither party shall be precluded from taking any action it deems necessary to resolve
differences in interpretation of this Agreement.
9.2 Remedies at Law. In the event the Company or the City fails to fulfill any of its
respective obligations under this Agreement, the party that is not in default may exercise any
remedies available to it provided by law; however, no remedy that would have the effect of
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•
amending the provisions of this Agreement shall become effective without a formal amendment
of this Agreement.
ARTICLE 10
NOTICES
10.1 City Designee and Address. Unless otherwise specified herein,all notices from the
Company to the City pursuant to or concerning this Agreement shall be delivered to the City at
Housing and Neighborhood Development Division, Real Estate Services Manager,451 South
State Street,Room 425,P.O.Box 145460,Salt Lake City,Utah,84114-5460,with a copy to the
City Attorney,at 451 South State Street,Room 505A,P.O. Box 145478 Salt Lake City, Utah
84114-5478,and(b)such other offices as the City may designate by written notice to the Company.
10.2 Company Designee and Address. During the term of this Agreement,the Company
shall maintain a registered agent on file with the Utah Division of Corporations for services of
notices by mail,and an office and telephone number for the conduct of matters relating to this
Agreement during normal business hours.Unless otherwise specified herein,all notices from the
City to the Company pursuant to or concerning this Agreement or the Access Rights shall be
delivered to:
Company: ExteNet Systems,Inc.
3030 Warrenville Road,Suite 340
Lisle,Illinois 60532
ATTN:Chief Financial Officer
Phone:630-505-3800(Corporate number for all purposes)
Fax:630-577-1332(number for all purposes)
With a copy to: ExteNet Systems,Inc.
3030 Warrenville Road,Suite 340
Lisle,Illinois 60532
ATTN:General Counsel
For invoices: ExteNet Systems,Inc.
3030 Warrenville Road,Suite 340
Lisle,Illinois 60532
ATTN:Accounts Payable
Or by e-mail to ap@util.extenetsystems.com
Network Operation Center 866-892-5327
(24/7):
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ARTICLE 11
AMENDMENT
11.1 Changing Conditions;Duty to Negotiate.
(a) The Company and the City recognize that many aspects of the telecommunications
business are currently the subject of discussion,examination and inquiry by different segments of
the industry and affected regulatory authorities,and that these activities may ultimately result in
fundamental changes in the way the Company conducts its business.In recognition of the present
state of uncertainty respecting these matters,the Company and the City each agree,at the request
of the other during the term of this Agreement,to meet with the other and discuss in good faith
whether it would be appropriate,in view of developments of the kind referred to above during the
term of this Agreement,to amend this Agreement or enter into separate,mutually satisfactory
arrangements to effect a proper accommodation of any such developments. Nothing herein
prohibits the City from charging Company or any transferee any applicable taxes or fees that may
be determined to be relevant or enacted in the future.
(b) Either party may propose amendments to this Agreement by giving 30 days written
notice to the other of the proposed amendment(s)desired,and both parties thereafter,through their
designated representatives,will,within a reasonable time,negotiate in good faith in an effort to
agree upon mutually satisfactory amendment(s).
11.2 Application of Superseding Governing Law. The parties acknowledge that on
September 1,2018,Utah Senate Bill 189 will become effective and may render this Agreement
invalid and unenforceable. The parties further acknowledge that there may be updated City
ordinances and regulations that will govern the Access Rights and installation of Facilities within
the Right-of-Way.The parties agree that to the extent that this Agreement is inconsistent with such
new state law or City ordinances and regulations,that this Agreement will continue to be valid and
enforceable and the parties will amend this Agreement and memorialize the revised terms in a
written addendum to this Agreement by November 1,2018.
11.3 Amendment Approval Required. Except as otherwise provided above, no
amendment or amendments to this Agreement shall be effective until mutually agreed upon by the
City and the Company and an ordinance or resolution approving such amendments is approved by
the City Council,if appropriate.
ARTICLE 12
MISCELLANEOUS
12.1 Conditions. If any section, sentence, paragraph, term or provision of this
Agreement(except for Article 3 hereof)or the Ordinance is for any reason determined to be or
rendered illegal,invalid,or superseded by other lawful authority including any state or federal,
legislative,regulatory or administrative authority having jurisdiction thereof,or determined to be
unconstitutional,illegal or invalid by any court of competent jurisdiction,such portion shall be
deemed a separate,distinct,and independent provision and such determination shall have no effect
on the validity of any other section,sentence,paragraph,term or provision hereof or thereof,all of
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which will remain in full force and effect for the term of this Agreement and the Ordinance or any
renewal or renewals thereof.
12.2 No Waiver or Estoppel. Neither the City nor the Company shall be excused from
complying with any of the terms and conditions of this Agreement by any failure of the other,or
any of its officers,employees,or agents,upon any one or more occasions to insist upon or to seek
compliance with any of such terms and conditions.
12.3 Fee Article Essential. Article 3 hereof is essential to the adoption of this
Agreement. In the event the Small Cell Fees or tax provisions hereof(whichever are applicable)
are determined to be illegal,invalid,unconstitutional,or are superseded by legislation,in whole or
in part,this entire Agreement and the Access Rights shall,to the fullest extent not prohibited by
law, and subject to the following provisions of this Article, be voided and terminated. Such
termination shall be effective as of the date of a final appealable order,or the effective date of any
such legislation,unless otherwise agreed by the City and the Company.
12.4 Utah Governmental Records Management Act. Whenever the Company is required
to deliver to the City,or make available to the City for inspection,any records of the Company,
and such records are delivered to or made available to the City with a written claim of business
confidentiality which meets, in the judgment of the City, the requirements of the Utah
Governmental Records Management Act("GRAMA"),such records shall be classified by the City
as"protected"within the meaning of GRAMA,and shall not be disclosed by the City except as
may otherwise be required by GRAMA,by court order,or by applicable City ordinance or policy.
Company specifically waives any claims against City related to disclosure of any materials as
required by GRAMA.
12.5 Timeliness of Approvals. Whenever either party is required by the terms of this
Agreement to request the approval or consent of the other party,such request shall be acted upon
at the earliest reasonable convenience of the party receiving the request, and the approval or
consent so requested shall not be unreasonably denied,delayed,conditioned or withheld.Time is
of the essence under this Agreement.
12.6 Representation Regarding Ethical Standards for City Officers and Employees and
Former City Officers and Employees. The Company represents that it has not(1)provided an
illegal gift or payoff to a City officer or employee or former City officer or employee,or his or her
relative or business entity; (2) retained any person to solicit or secure this contract upon an
agreement or understanding for a commission,percentage,or brokerage or contingent fee,other
than bona fide employees or bona fide commercial selling agencies for the purpose of securing
business;(3)knowingly breached any of the ethical standards set forth in the City's conflict of
interest ordinance,Chapter 2.44,Salt Lake City Code;or(4)knowingly influenced,and hereby
promises that it will not knowingly influence,a City officer or employee or former City officer or
employee to breach any of the ethical standards set forth in the City's conflict of interest ordinance,
Chapter 2.44,Salt Lake City Code.
12.7 Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of Utah.Venue shall reside in Salt Lake City,Utah.
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12.8 Entire Agreement.This Agreement contains all of the agreements of the parties
with respect to any matter addressed in this Agreement,excluding any permits and Site Approvals
issued in connection with this Agreement, and supersedes all prior discussions, agreements or
understandings pertaining to any such matters for all purposes.
12.9 Authority. Each individual executing this Agreement on behalf of the City and
Company represents and warrants that such individual is duly authorized to execute and deliver
this Agreement on behalf of the City or Company(as applicable).
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WITNESS WHEREOF,this Agreement is executed in duplicate originals as of the day and
year first above written.
SALT LAKE CITY CORPORATION, a
Utah municipal corporation
Jacqueline M. Biskupski, Mayor
Date:
Attest and Countersign:
City Recorder Date of Recordation:
Approved As To Form:
Kimberly K Chytraus
Senior City Attorney
•
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ExteNet Systems,Inc.,a Delaware
corporation
By
Name:
Title:
Date:
State of
:ss
County of
On the day of ,2018,personally appeared before me
who,being by me duly sworn did say that he/she is the of ExteNet Systems,Inc.,
and that the foregoing instrument was signed on behalf of said company and said person
acknowledged to me that he/she is authorized to execute such instrument on behalf of said
company.
NOTARY PUBLIC,residing in County,
My Commission Expires:
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Schedule 1
Definitions
"Company"means ExteNet Systems,Inc.,a Delaware corporation,and its successors and
assigns.
"Company Facilities"means the Company's Facilities.
"Control"or"Controlling Interest"means actual working control in whatever manner
exercised,including,without limitation,working control through ownership,management,debt
instruments or negative control,as the case may be,of the Company Facilities or of the
Company. A rebuttable presumption of the existence of Control or a Controlling Interest shall
arise from the beneficial ownership,directly,by any person,or group of persons or entities
acting in concert,of more than fifty percent(50%)of the Company. "Control"or"Controlling
Interest"as used herein may be held simultaneously by more than one Person.
"Facilities"means equipment consisting of antennas,telecommunication lines and cables,
radios,conduit,ducts,vaults,equipment,plant,power sources,and control boxes,together with
all necessary and desirable appurtenances,for attachment to a Permitted Structure and the
operation of a wireless broadband small cell network for communication services as related to
this Agreement.Facilities may not include advertising logos,lights,flashing lights,audible fans,
or make audible noises,or other distractive elements.
"Hazardous Substances"means 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.
"Gross Revenue"means all revenues received by Company attributable to the installation and
operation of the Company Facilities utilizing any Permitted Structure in the Right-of-Way,
including,but not limited to all rents,payments,fees,and other amounts actually collected from
any third party and received by Company and allocable to the period within the term or any
renewal term of this Agreement Term pursuant to any sublease,sublicense,or other agreement
for telecommunications services provided with respect to the Company Facilities,but exclusive
of any payments,reimbursements,or pass-throughs from the third party to Company for utility
charges,taxes,and other pass-through expenses.
"Right-of-Way"means a City-owned or controlled street,alley,viaduct,bridge,road,lane or
public way within the City,including the surface,subsurface and airspace.
"Utility Pole"means a pole owned by a third party utility provider(such as Rocky Mountain
Power or CenturyLink)and its successors and assigns and located within a Right-of-Way.
"Permitted Use"means the attachment of Company Facilities to a Permitted Structure within
the Right-of-Way for small cell networks to provide better wireless data coverage.
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"Permitted Structure"means a structure in the Right-of-Way,including an existing Utility Pole,
upon which Company may attach Company Facilities as permitted by applicable Salt Lake City
Code and in compliance with this Agreement.
"Person"means any individual,sole proprietorship,partnership,association or corporation,or any
other form of organization,and includes any natural person.
"Proposed Transferee" means a proposed purchaser, transferee, lessee, assignee or person
acquiring ownership or control of the Company.
"Telecom Tax Act"means the Utah Municipal Telecommunications License Tax Act,Title 10,
Chapter 1,Part 4,Utah Code Annotated 1953,as amended.
"Telecom Tax"means the municipal telecommunications license tax authorized pursuant to the
Telecom Tax Act.
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