065 of 2018 - Granting a Master License Agreement for Wireless Facilities in the Public Right of Way to ExtNet Sys 0 18-1
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SALT LAKE CITY ORDINANCE
No.65 of 2018
(Granting a Master License Agreement for Wireless Facilities in the Public Way
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 rights-of-way of the City, consisting of antennas, 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 previously entered into a Master License
Agreement for Right-of-Way Access pursuant to Ordinance No. 20 of 2018 published on
May 23, 2018, and following changes to applicable City and state laws desire to enter into a
replacement Master License Agreement for Wireless Facilities in the Public Way; and
WHEREAS,the City desires to approve the execution and delivery of such Master
License Agreement for Wireless Facilities in the Public Way 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 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
Wireless Facilities in the Public Way 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 Master License
Agreement 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.
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 rights-of-way 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 ten
years from and after the recordation of the executed Master License Agreement with the Salt
Lake City Recorder's Office, with a renewal of an additional ten year term as provided therein.
The Company shall pay all costs of publishing this Ordinance.
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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 u on publication.
Passed by the City Council of Salt Lake City, Uta,,this 2 f;! •.y of Novembe2018.
CHA%T " SON
CITY RECORDER
Transmitted to Mayor on December 4, 2018
Mayor's Action: K Approved. Vetoed.
i:::44.0.44104.4/1„D
MAYOR
ST
Salt Lake City Attorney's Office
CIr3; A ve As To Form
TY RECORDER . ' ik A tGr' By. VI,
(SEAL) 4uu a� " K hytraus
Date:lii10 ZOlBill No. 65 of 2018.
Published: 12-7-2018
HB_ATTY-#73312-v 1-ORD_ExteNet_Master_License_Agreement_NEW
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EXHIBIT "A"
MASTER LICENSE AGREEMENT
RECORDED
JAN 1 if 2019 MASTER LICENSE AGREEMENT
FOR WIRELESS FACILITIES IN THE PUBLIC WAY
CITY RECORDER
THIS MASTER LICENSE AGREEMENT FOR WIRELESS FACILITIES IN THE
PUBLIC WAY (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
(including its successors and assigns,the"Company").
RECITALS
A. The Company desires a non-exclusive agreement to install, at its sole cost and
expense, a network of Wireless Facilities within the boundaries of Salt Lake City, Utah, and to
utilize Salt Lake City's Public Way for such purpose, in order to provide wireless services and
expand the available data transmission bandwidth for mobile devices.
B. The City owns or controls such Public 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 in Salt Lake City Code Chapter 14.056. or its successor(the "City Wireless
Code").
1.2 Ordinance. The City Council has adopted an ordinance entitled ExteNet Master
License Agreement 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 Wireless Facilities in approved locations in the Public Way and attach Wireless
Facilities to a Structure in the Public Way, as described in this Agreement. 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 ten (10) years from the Effective Date. If there is no default under this Agreement and
Company is compliant with all applicable law, rules, and regulations, this Agreement will
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automatically be extended for one (1)additional period of ten(10)years, at Company's discretion
unless Company notifies City in writing of its intent to not renew this Agreement at least three (3)
months prior to the expiration of the term.
ARTICLE 2
PERMIT APPROVAL
2.1 Application and Review.
(a) To locate any Wireless Facilities in the Public Way, Company shall submit an
application for a Permit to Work in the Right-of Way (a"Public Way Permit"), the form of
which will be determined by City. Company shall comply with the requirements of the City
Wireless Code. An approved Public Way Permit shall approve the location and plans for the
location of a Wireless Facility. Depending on the scope of the Company's proposed work.
Company may also need to apply for additional permits such as a traffic control permit and
electrical permit. The Public Way Permit shall be reviewed as provided in the City Wireless
Code and applicable state and federal law.
(b) Company shall be responsible for obtaining access and connection to fiber optic
lines or other backhaul solutions that may be required for its Wireless Facilities. Company shall
obtain a franchise from the City for the location of such fiber optic lines in the Public Way.
(c) Any Company Facility that does not have an approved Public Way Permit. does
not receive other required permits. or does not meet the specifications of this Agreement or the
City Wireless Code. shall be deemed unauthorized. City may cause Company to remove any
unauthorized facilities upon thirty (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.
ARTICLE 3
FEES
3.1 Compensation.
(a) Company shall pay all fees and rates due City pursuant to the City Wireless Code
(the "Small Cell Fees").
(b) Company shall also pay any reasonable fees or costs permitted by law and charged
by City or Structure owner and associated with any related permits or approvals, and any other ad
valorem taxes, special assessments or other lawful obligations of the Company to the City.
3.2 Fee Payment. Company will pay the Small Cell Fees annually on or before the
anniversary of the Effective Date as directed by 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
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Cell Fees shall increase to 200% of the most recent respective Small Cell Fees paid annually.
Payment of a hold over fee does not extend or renew this Agreement.
ARTICLE 4
COMPANY USE OF PUBLIC WAY
4.1 Rights to Access and Use Public Way.
(a) The Company shall have the right to use a portion of a Public Way in the precise
location described in the approved Public Way Permit to locate and install Wireless Facilities on
an approved Structure, subject to the terms and conditions of this Agreement.
(b) The rights granted to the Company herein do not include the right to 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).
(c) Company shall install and maintain Wireless Facilities and Structures in a good and
workmanlike manner.
4.2 Company Duty to Relocate. Whenever the City shall require the relocation or
reinstallation of any of the Wireless Facilities situated within the Public Way, it shall be the
obligation of the Company and at Company's sole cost and expense, to commence the removal of
the respective Wireless 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
Public 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 Public Way. The new location shall be subject
to obtaining an approved Public Way Permit. 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.
4.3 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 Wireless
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 Wireless
Facilities because of a fire, flood, emergency, earthquake disaster or other imminent and material
threat thereof, or to relocate any portion of the Wireless 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.
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4.4 Compliance with Rules and Regulations and Applicable Laws. Wireless Facilities
located on,upon, over or under the Public 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 Wireless 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.
4.5 Repair Damage. If during the course of work on Wireless Facilities,the Company
causes damage to or alters any portion of the Public Way, 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 Public Way. 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 thirty(30)days' following
the date of an invoice for such work.
4.6 Guarantee of Repairs. For a period of three (3) years following the completion of
any work by Company in the Public Way or any repair work by Company performed pursuant to
Section 4.5 above, the Company shall maintain, repair. and keep in good condition those portions
of the Public Way, Structures.property,or facilities restored,repaired or replaced by Company,to
the reasonable satisfaction of the City Engineer, reasonable wear and tear excepted.
4.7 Safety Standards. The Company's work, while in progress, shall be properly
protected at all times \cith suitable barricades, flags, lights, flares, or other devices in accordance
with applicable safety regulations or standards imposed by law.
4.8 Inspection by the City. The Wireless 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.
4.9 Company's Duty to Remove Wireless Facilities from the Public Way.
(a) Subject to subsection (c) below, the Company shall remove from the Public Way
all or any part of the Wireless Facilities,when one or more of the following conditions occur:
(i) The Company ceases to operate such Wireless Facilities for a continuous
period of twelve(12)months,except when the cessation of service is a direct result of a natural or
man-made disaster;
(ii) The construction or installation of such Wireless Facilities does not meet
the requirements of this Agreement or the Public Way Permit; or
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(iii) The Agreement or use of a 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 ninety (90)
days from the date upon which said notice is received to remove such Wireless Facilities, or, in
the case of subsection(a)(i),to begin operating the Wireless Facilities.
(c) If Company fails to timely remove the Wireless 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.
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 there is not an uncured
default of any provision of this Agreement or Public Way Permit, the Company shall not sell,
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 a Proposed Transferee, without the
prior written consent of the City. A "Proposed Transferee" means a proposed purchaser,
transferee, lessee, assignee or person acquiring ownership or control of the Company.A"Person"
means any individual, sole proprietorship, partnership, association or corporation, or any other
form of organization, and includes any natural person.
(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;
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(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 Wireless 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 Wireless 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 w holly-owned subsidiary of a
parent corporation;
(ii) Any Transfer in trust, a mortgage, or other instrument of hypothecation of
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 Wireless
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 Public Way and any Transfer shall by its own terms be expressly subject to the
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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 subsection (c)(iii) above, the parties agree and acknowledge
that, notwithstanding anything in this Agreement to the contrary, certain Wireless Facilities
deployed by Company in the Public 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 Wireless 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
Wireless Facilities; (ii) City's sole point of contact regarding such Wireless Facilities as it relates
solely to this Agreement shall be Company; and (iii) Company shall have the right to remove and
relocate such Wireless Facilities pursuant to the terms of this Agreement.
ARTICLE 7
COMPANY INDEMNIFICATION: INSURANCE
7.1 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 Wireless 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.
7.2 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
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herein shall be construed to require Company to indemnify the indemnitee against the indemnitees'
own negligence. The provisions of this Section 7.2 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
7.3 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.
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(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.
(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, 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) If 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.
7.4 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.
7.5 Bonds. Company shall comply with all bonding requirements required by Salt Lake
City Code, including those required to obtain permits.
ARTICLE 8
ENFORCEMENT; TERMINATION
8.1 Company Defaults.The Company shall be in default of this Agreement in the event
of any of the following:
(a) The Company fails to make timely payments of the Small Cell Fees, or any other
fee due to the City under the terms of this Agreement, and does not correct such failure within
thirty (30) days after such failure.
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(b) The Company, by act or omission, defaults under any provision of this Agreement
and such default is not cured within 30 days following notice by City to Company, or such longer
cure period as permitted by the City 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 sixty (60) days.
(d) A representative 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 Wireless Facilities for twelve (12) consecutive
months, except as otherwise provided in Section 4.9.
8.2 City Remedies. In the event of an uncured Company default. City shall maintain
all it rights and remedies, at law and in equity, including the ability to charge fines, recover fees
and costs, and remove the wireless facilities. Without limitation, City may do one or all of the
following:
(a) Fine Company $100 per day per violation until the violation is cured.
(b) Terminate or suspend any franchise, permits, or licenses held by Company.
(c) Withhold issuing any new permits to the violating party.
(d) If the violation is not cured within one hundred and eighty (180) days. or such
longer cure period as may be permitted by city, city may remove and impound the wireless
facilities until the violation has been cured.
(e) The City may terminate or revoke this Agreement and all rights and privileges
hereunder.
8.3 City Defaults. 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 thirty (30) days in which to
cure any breach, provided City shall have such extended period as may be required beyond the
thirty (30) days if City commences the cure within the thirty (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. In the event of an uncured default by City,
Company shall maintain all it rights and remedies provided at law,however,no remedy that would
have the effect of amending the provisions of this Agreement shall become effective without a
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formal amendment of this Agreement.
8.4 Company Termination.
(a) Agreement Termination.Company may terminate this Agreement by giving at least
thirty(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 4.9 above and following
payment of the Small Cell Fees for the year during which the Company's Facilities are removed.
(b) Termination of Use. Without terminating the Agreement, by giving at least thirty
(30) days' prior written notice, Company may terminate paying the Small Cell Fees for Wireless
Facilities and/or Structures from which the Company has discontinued use and removed. City
shall not provide partial reimbursement for termination of use during any partial year.
ARTICLE 9
NOTICES
9.1 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.
9.2 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
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For invoices: ExteNet Systems, Inc.
3030 Warrenville Road, Suite 340
Lisle, Illinois 60532
ATTN: Accounts Payable
Or by e-mail to ap(u,util.extenetsystems.com
Network Operation Center 866-892-5327
(24/7):
ARTICLE 10
MISCELLANEOUS
10.1 Severability. If any section, sentence, paragraph, term or provision of this
Agreement 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 which will remain in full
force and effect for the term of this Agreement and the Ordinance or any renewal or renewals
thereof.
10.2 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.
10.3 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.
10.4 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.
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10.5 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,and shall
comply with applicable law. Time is of the essence under this Agreement.
10.6 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.
10.7 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.
10.8 Entire Agreement. This Agreement contains all of the agreements of the parties
with respect to any matter addressed in this Agreement,excluding any permits issued in connection
with this Agreement,and supersedes all prior discussions,agreements or understandings pertaining
to any such matters for all purposes. Upon the Effective Date. this Agreement specifically
supersedes the Master License Agreement for Right of Way Access entered into by the City and
the Company effective June 19, 2018.
10.9 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).
[Signatures begin on following page.]
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WITNESS WHEREOF,this Agreement is executed in duplicate originals as of the day and
year first above written.
<.„ww',,•„„ SALT LAKE CITY CORPORATION, a
<
CITY 0,44 Utah municipal corporation
�*itiY co S`{' J cque me M. Biskupski, Mayor
qi.�RPORt<C„I fb� q�
Date: c r i awl
%• .,er : / /j RECORDED
III_ Date of Recordation: JAN 1
ity Recorder 4 2019
CITY RECORDER
A pro d s To -m:
Se io ity , ttorney
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ExteNet Systems, Inc., a Delaware
corporation
By
Name: Daniel L. Timm
Title: EVP-CFO
Date: 1 — `C- t9
State of 1:i 1I hots )
ss
County of 'bo ri )
On the LTday offA-14171412,'2011,personally appeared before me--Nil ie ( C. Omni.
who, being by me duly sworn did say that he/she is the E - ccoof ExteNet Systems, Inc.,
a Delaware corporation, 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 P I : IC, residing in!b1/4)Plc- County.-11
My Commission Expires:
9/a.1/2-6.9- OFFICIAL SEAL
MARY C ARENA
NOTARY PUBLIC-STATE OF ILLINOIS
MY COMMISSION EXPIRES:09/27/20
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