HomeMy WebLinkAboutCAG2020-250 - Original - ExteNet Systems, Inc. - Master Franchise & License Agreement - 08/06/2020Agreement Routing Form
For Approvals, Signatures and Records Management
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Visit Documents.KentWA.gov to obtain copies of all agreements
This form combines & replaces the Request for Mayor’s Signature and Contract Cover Sheet forms.
(Print on pink or cherry colored paper)
Contract Number:
adccW22373_6_19
Director initials ______
Manager initials ______
N/A
N/A
August 6, 2020
** Please send fully executed agreement back
to Law to be delivered to Licensee.
*Please copy both Tania Reyes-Selden
and Kelly Finn
CAG2020-250
MASTER LICENSE AGREEMENT FOR
SMALL WTRELESS FACILITIES ON CTTY-OWNED INFRASTRUCTURE
ThiS MASTER LTCENSE AGREEMENT FOR SMALL WIRELESS FACILITTES
ON CITY-OWNED INFRASTRUCTURE hereinafter ("License") is entered into byand between the City; a municipal corporation of the State of Washington (the"city") and ExteNet Systems, Inc., a Delaware corporation ("Licensee").
RECTTALS
A. The City owns and controls certain City-owned infrastructure located in thepublic rights-of-way (Row) situated within the city limits of Kent, wA.
B. Licensee is engaged in the operation of communications technology and
desires to license from the City, and the City is wílling to license the City-6wned
infrastructure (defined below).
C. This License applies only to the installation of Small Cell Facilities (defined
below) on and to CÍty-owned infrastructure which at a minimum comply with therequirements of Chapter 6.16 of the Kent City Code ("KCC"), subject to the terms
and conditions of this License.
The parties agree as follows:
1.1
1. Definitions
"city-owned infrastructure" has the same meaning as set forth in Kcc6.16.030, as adopted or hereinafter amended and, if available and approvedby the city, any form of existing power suppry, conduit or' other
infrastructure equípment for the delivery of power to a structure or pole
located in the ROW.
L.2
1.3
L.4
1.5
"combination Pole" has the same meaning as set forth in KCc 6.16.030, as
adopted or hereinafter amended.
"Design Standards" refer to the utility design standards in the right-of-way
set forth in KCC chapter 6.L6, as adopted or hereinafter amended.
"Facilitíes" mean Facilities or small cell facilities has the same meaning as set
forth in KCC 6.16.030, as adopted or hereinafter amended.
"Laws" mean any and all applicable statutes, codes, constitutions,ordinances, resolutions, regulations, judicial decísions, rules, tariffs,
administrative orders, court orders, or other requirements of the city orother governmental agency having joint or several jurisdiction over theparties to this License as such laws may be amended from time to time.
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ExteVet Systems, Inc. and City af Kent
2A2A Master License Agreement
1.6 "Rent Commencement Date" is the day that both Licensee and the City fully
execute a Site License Addendum.
1.7 "Site License Addendum" means the document in the form substantially
similar to Exhibit A that, when fully executed by both parties, is subject and
subordinate to the provisions of this License and authorizes Licensee to
attach, install, operate, maintain, upgrade, remove, reattach, reinstall,
relocate and replace specific small cell facilities on specific City-owned
infrastructure together with City-owned infrastructure (if any) as identified in
the specific Site License Addendum subject to the License.
2. License Granted
2.L The City hereby licenses to Licensee a portion of individual City-owned
infrastructure as identified in each fully executed Site License Addendum,
incorporated herein by reference, together with non-exclusive access rights
to the specified City-owned infrastructure, sufficient for Licensee's use of the
City-owned infrastructure subject to the applicable Site License Addendum.
All Site License Addendums are subject and subordinate to the terms and
conditions of this License, the Kent City Code and all Laws. If City-owned
conduit or other infrastructure equipment is used by Licensee for the delivery
of power to its Facilities, in no event shall the City be liable for any loss or
interruption of power to such Facilities.
2,2 Lícensee may attach, install, operate, maintain, upgrade, remove¡ reattach,
reinstall, relocate, and replace, at Licensee's sole responsibility and expense,
the Facilities subject to this License, the applicable Site License Addendum,
and compliance with the Design Standards. Licensee represents, warrants
and covenants that Facilities installed pursuant to this License will be utilízed
solely for providing data/telecommunications services and Licensee is not
authorized to and shall not use its Facilities to offer or provide any other
services without prior written permission or agreement from the City.
2.3 Nothing contained within this License shall be construed to grant or convey
any right, title, or interest in the City-owned infrastructure to Licensee other
than for the purpose of placing and operating the Facilities. Further, nothingin this License shall be interpreted to create or vest in Licensee any
easement or other ownership or property interest or other right to any City-
owned infrastructure, property, or public ROW. This License shall not
constitute an assignment of any City rights to City-owned infrastructure,
property, or public right-of-way.
2.4 To the extent permitted under applicable law, the City's municipal functionsor proprietary interests are not subordinated in any way to Licensee's
interest under this License or Site Lícense Addendum. If the City determines
that the usage of City-owned infrastructure is not feasible or not in the best
interest of the City due to the City's municipal oblígations or proprietary
interests, the City in its sole discretion and its decision being final may deny
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ExteVet Systems, Inc. and City of Kent
2020 Master License Agreement
2.5
2.6
Licensee's request to use the City-owned ínfrastructure.
Prior to any use of the City-owned infrastructure, both parties must have
executed a Site License Addendum in the form substantially similar to
Exhibit A. Upon revíew by the City of materials submitted for a Site License
Addendum, the City may deny the installation of Facilities or require
additional terms andlor conditions to determine whether the proposed smallcell facility will comport with this License, the Design standards, or to
address health, safety, or other aesthetic concerns.
city-owned infrastructure is offered on an "as is" basis, in its present
condition.
2,7 Thís License is made subject to all easements, restrictions, conditions,
covenants, encumbrances, and claims of title which may affect this City-
owned infrastructure, and ít is understood that Licensee at its own cost andexpense' shall obtain such other permissions, as may be necessary/
consistent with any other existing rights.
2.8 Licensee is solely responsible for procuring electricity for its small cell
facílities and directly paying its chosen electricity provider for such services.The City is not responsible for managing Licensee's electricity needs,payments, or for supplying electricity to the small cell facilities. Wherepossible when deploying, Licensee shall procure unmetered electricity
services. Notwithstanding the foregoing, the City may, at its sole discretion,permit Licensee to connect a Facility to the City's electrical supply tominimize disruption to existing ROW improvements, subject to a separate
agreement, which shall include billing and payment procedures.
2.9 Licensee, ín the performance and exercise of its rights and obligations underthís License, shall not ínterfere in any manner with the existence and
operation of any and all existing and future public and private rights-of-way,
sanitary sewers, water mains, storm drains, gas mains, poles, aerial and
underground electrical and telephone wires, traffic signals, communication
facilities which are pre-existing at that location, electroliers, cable television,location monitoring services, public safety and other then existing
telecommunications equipment, utility, or municipal property, without the
express written approval of the owner or owners of the affected property orproperties, except as permitted by applicable Laws or this License.
3. Effective Date
All references in this License to the "Effective Date", "the date hereof", or similar
references shall refer to the date that the License was fully executed by both
Parties.
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ExteNet Systems, Inc. and City af Kent
2024 Master License Agreement
4.t
4.2
4.3
5.3
5. Fees and Charoes
Licensee shall pay all fees and charges in connection with Licensee's performance
under this License, including the following:
5.1 License Fee. The City may charge Licensee for the actual and reasonable
administrative expenses incurred by the City directly related to revíewing andprocessing this Lícense and Site License Addendums (or any amendment
thereto).
5.2 Permit Fees. Licensee shall be responsible for paying all actual and
reasonable costs associated with City review, processing and inspection aspart of all permit applications filed for the installation, modification,
maintenance and removal of small cell facilities or equipment.
Rent.
5.3.1 Licensee acknowledges that the Federal communications
Commission (FCC) has adopted a Declaratory Ruling (FCC 1g-133) that relates to the rent but that Declaratory Ruling is
currently the subject of litigation. This section 5.3 governs thepayment of rent and how it may be impacted by the resolution
of related litigation during the Term and any Renewal Terms.
During any period in which the Alternate Rent provisions in
Section 5.3.3 are not applicable, Licensee shall pay Rent as
described in this section 5.3.2. For site License Addendums
executed by both parties in 2a20, Licensee shall pay to the city
the base amount of two hundred and seventy dollars (g270.00) per
calendar year for each individual pole or other city-owned
infrastructure covered by a site License Addendum (i.e., Site
License Addendums may include more than one city pole), and
such base amount shall be increased on January 1 of each
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4, Term
The term of this License shall commence on the Effective Date and shall
expire 10 years from the Effective Date (the "Term',).
The Site License Addendums shall not extend this License. All Site License
Addendums terminate with the expiration or termination of this License,
Both the City and Licensee have the right to terminate this License upon 12-
months' notice to the other pafty, if due to a change of Laws, either party canno longer technically, or practicably, comply with both the duties and
obligations of thís License and the requirements of the Laws, provided if anysuch law is reversed or revoked within the 12-month notice period, the
termination notice will be deemed null and voíd.
5.3.2
5.3.3
5.3.4
calendar year after ?020 by the Average cpl Increase, defined
below (the "Rent"). Far site License Addendums executed by bothparties in 2020 and subsequent years, the base amount of rent
shall commence at the Rent, as adjusted annually by the AveragecPI Increase to reflect the then-current rate. Rent for the firìt
calendar year of a site License Addendum for each individual city
Pole shall be pro-rated based on the number of days coveredfrom the Rent commencement Date to December 31. The firstpayment of Rent shall be paid within 45 days of the Rent
commencement Date. Every payment of Rent, after the firstpayment, shall be due and payable in advance on January 1 of
each calendar year throughout the term of each such site License
Addendum. There shall be no refunds of Rent paid due to the
termination or expiration of the License for any reason.
If the relevant provisions of the Fcc Decraratory Rulíng are
reversed in a final and unappealable order of the FCC or a court of
competent jurisdiction, and continuing for so long as no legal orregulatory requirement exists that would constrain or otherwiselimit the Rent that the city may charge Licensee for the right toplace small cells on the city poles, the parties agree thaf Rent
shall increase to the fair market value for the use of the city poles
as reasonably determined by the City (.'Alternate Rent,,). If
Licensee disagrees with the Alternate Rent amount, it may utilize
the arbítration process described in Rcw 35.21.960. The Alternate
Rent shall be due 60 days after the city issues the fair market
value rent calculation, and may be prorated from the date of the
issuance of the documentation stating the fair market value. If a
subsequent legal or regulatory requirement becomes effective that
would constrain or otherwise limit the Rent that the city may
charge Licensee for the right to place small cells on the city'sproperty in the public right-of-way, the parties agree that
Alternate Rent shall again be adjusted to comply with iuch legal
or regulatory requirement upon its effective date.
The city agrees that, irrespective of whether the rerevant
provisions of the FCC Declaratory Ruling (Fcc 1s-133) go into
effect and then cease to be effective, no- Aiternate Rent shall be
due for any periods during which the relevant provisions of the FCC
Declaratory Ruling were in effect. However, if Licensee has paid
Rent pursuant to the provisions of section 5.3.2 for a calendaryear, and the relevant provisions of the FCC Declaratory Ruling
subsequently cease to be effective during the same calendaryear, Licensee shall pay the difference between the Rent and the
Alternate Rent for the period from the date the relevant provisionsof the Fcc Declaratory Ruling ceased to be effective, until
December 31 of that year ("Rent Adjustment,,). Such Rent
Adjustment shall be paid to the city on January 1 of the following
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year.
5.3.5 Rent or Alternate Rent shall be delivered or mailed to the city of
Kent, Customer Service located at: 400 West Gowe, Kent, WA
98032. Rent payment must reference the city pore Identifier (pole
number and GIS location) Licensee's site ID# and site Licénse
Addendum Number.
5.3.6 Receipt of any Rent or Alternate Rent by the city, with knowledge
of any breach of this License by Licensee, or of any default ınthe part of Licensee in the observance or performance of any ofthe conditions or covenants of this License, will not constitute a
waiver of any provision of this License.
5.3.7 if any sums payable to the city under this License are not receivedby the city on or before the 10th day following its due date,
Licensee agrees to pay a late fee of 5alo of the unpaid Rent or
Alternate Rent for all site License Addendums for which payment
was not received. where a check is returned to the city by a bank
or other financial institution with the indication that the check cannot
be honored, there shall be a fee assessed to Licensee based on the
current statutory maximum allowed. The city and Licensee agree
that such charges represent a fair and reasonabre estimate oithecosts incurred by the city by reason of late payments and
uncollectible checks, and the failure by Licensee to pay any such
charges by no later than 30 days after Licensee's receipt of written
demand therefore by the city shall be a default under this License.
The city's acceptance of less than the full amount of any payment
due from Licensee will not constitute an accord and satisfaction,
waiver, or compromise of such payment unless specifically agreedto in wriling by the City.
6. Taxes, Assessments & Utilities
In addition to the Rent, Licensee shall pay when due directly to the applicable
authority all applicable taxes arising with respect to Licensee's activities and
business under this License including, without limitation, paying to the City theutility tax imposed pursuant to KCC Chapter 3.18, and the apþlicable leasehold
excise tax, unless Licensee is centrally assessed by the State of Washington andprovides documentation, that is acceptable to the City, of its central assessment,
which evidence shall then be attached to this Lícense as Exhibit B. Should the City
collect from Licensee and pay to the Department of Revenue leasehold excise taxwhich is subsequently determined to be a duplicate payment or over-payment oftax by Licensee, Licensee shall not have any claim agaínst the City, but shall look
directly to the Ðepartment of Revenue for reimbursement.
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ExteNet Systems, Inc. and City of Kent
2024 Master License Agreement
7. Permits
7.L Prior to performing any construction, maintenance or repair work on the City-
owned infrastructure, Licensee shall secure all necessary federal (including
any FCC or FAA requirements), state and local licenses, permits and
approvals, including but not limited to, land use permíls/approvals as
required, small cell permits, street use permits, traffic control plans, proof of
agency and permits for the construction and operation of the Facilities or
installation of a replacement pole (collectively referred to hereinafter as
"Government Approvals") at its sole expense. No Government Approval shall
be considered a substitute for City approval required by this License, and no
approval granted under thÍs License shall be considered a Government
Approval.
7.2 Licensee must obtain Government Approvals for each Site Lícense Addendum
and within 12 months after the effective date of the Site License Addendum.
The Site License Addendum shall automatically terminate on the expiration ofthis 12-month period if the necessary Government Approvals are not
obtained; however, this l2-month period may be extended upon approval by
the city, which approval shall not be unreasonably withheld, delayed or
conditioned.
7,3 Licensee shall bear all costs for the installation of its Facilities pursuant to
this License, including installing Facilities and removing and replacing existing
City-owned infrastructure with a Combination Pole meeting the requirementsof KCC Chapter 6.16 and the Site License Addendum. Such costs shall
include, but are not limited to, costs for dismantling or removal of the
existing City-owned infrastructure in compliance with the KCC, removal and
replacement of foundation, replacement streetlight, replacement of junction
boxes to non-skid boxes, additional conduit if needed, and geotechnical
analysis (as appropriate for soÍl and foundation stabilíty, etc.), replacement
of hardscape, vegetation or other existing urban design features impacted by
the work. Any such replacement shall be subject to prior approval by theCity, which approval shall not be unreasonably withheld, delayed or
conditioned, and approved as part of the Site License Addendum.
7'4 Prior to commencing any construction activities on City-owned infrastructure
after the Effective Date or the effective date of any Site License Addenda,
Licensee shall:
7.4.t Mail notice of the construction of the Facilities to the residents of
the real property wíthin 100 feet of the location of the proposed
Facility at least 10 days before commencing construction. The
notice shall contain the location of the Facility, general information
about the Facility itself, including a photographic example of asimilar Facility, and contact information where additional
information may be obtained; and
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ExteNet Systems, Inc. and City of Kent
2020 Master License Agreement
7.4.2 Submit to the City for approval such information regarding the
proposed work as the City may reasonably request, including,
without limitation, plans and specifications of the planned
modifications and Licensee's proposed schedule, for the City's
written approval, these plans shall include the results of the RF
emíssions tests consistent with the requirements of this License.
7.5 Representatives of the City shall have the ríght to inspect any and all
improvements and to require reasonable revisions to Licensee's
improvements to ensure that the respective uses of the Cíty-owned
infrastructure are compatible. This right does not impose any obligation uponthe City to make ínspections to ascertain the safety of Licensee's
improvements, Facilities, or the condition of the City-owned infrastructure.
7.6 Ëxcept as otherwise provided in this Section 7.6, revisions to equipment after
initial installation require an amendment to the Site License Addendum and
payment for the actual and reasonable administrative expenses incurred by
the City dírectly related to any amendment. Approval of the City under this
License of these revisions does not relieve Licensee from obtaining permits
andlor Government Approvals as necessary to commence such modifications.
Replacement of like pafts or modification during maintenance and repair is
acceptable without specific approval under this License provided that: (a)
such like-for-like replacement or modification does not change the visual
appearance or size, or increase weight beyond the loading or utilization or
noise of the Facilities, and (b) Licensee provides written notice explaíníng in
reasonable detail the nature of the parts replacement andlor other
modifications within 10 days of occurrence, including certification that the
level of RF emissíons exposure from the Facilities remains within the limits
for general population/uncontrolled population exposure. At the City's written
request, Licensee must conduct a new on-site RF emissions testing in
accordance with applícable rules, and certify actual compliance with the
applicable RF emissions limits for general populationluncontrolled RF
exposure, and provide a copy of such updated compliance report to the City.
8. Interference
8.1 Licensee agrees to install equipment of the type and frequency which will not
cause harmful interference which is measurable in accordance with then
existing industry standards to any City equipment or other licensees of the
City-owned ínfrastructure which existed prior to the Effective Date of this
License. If Licensee's equipment causes such interference, Licensee agrees to
take all commercially reasonable steps necessary to correct and eliminate the
interference.
Licensee's Facilities shall not interfere with any City operations (including,
but not limited to, traffic lights, radio systems, or other City communications
infrastructure), or PSERN (or its successor entity) communications operation
or equipment. If the City reasonably determines that the Facilities cause such
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ExteNet Systems, Inc. and City of Kent
2420 Master License Agreement
8.2
interference, Licensee shall respond to the city's request to address the
source of the interference as soon as practicable, but in no event later than
48 hours of receipt of written notice. The City may require, by written notice,that Licensee cease operation of the specific Facility causing such
interference and either modify, remove or relocate such Facilities. If, within30 days after receipt of such written notice from the city of such
interference, Licensee has not abated such interference, the City or Licensee
may terminate the applicable Site Lícense Addendum, or terminate the Site
License Addendum to the extent applicable to the interfering Facilities, upon
30 days' notice to the other party and neither party shall have any further
obligations or responsibilíties under the Site License Addendum.
8.3 If Licensee determines that ínterference is occurring, then the City wíll meet
and confer with Licensee within 5 days of the City's receipt of notice of
interference from Licensee, and otherwíse diligently work in good faith with
Licensee to determine the root cause of the interference and to develop
workable solutions to resolve the interference in a mutually acceptable
manner, The City and Licensee agree that the use of the City-owned
infrastructure shall be governed by and subject to FCC rules and regulations.
8.4 To the extent any Facilities interfere or disturb equipment owned by any third
PartY, Licensee shall notify such third party directly and make good faith
efforts to resolve the matter before involving the City.
9. Compliance with Laws: Hazardous Materials
9.1 compliance with Laws. Licensee shall, at all times and at its sole
responsibility and expense, comply with all applicable Laws relating to the
installation, operation, maintenance, repair and/or removal of small cell
facilities, including FCC regulations for compliance with limits on human
exposure to radio frequency (RF) emissions. Licensee shall not cause orpermit any nuisance, nor trespass, nor do any act on City-owned
infrastructure which would increase the rate of insurance thereon. Licensee
shall defend, indemnify and hold harmless the city and its employees and
agents against any claims arising from any violations by Licensee, its agents
or employees, of any such Laws. The indemnity provision of this paragraph
shall survive the termination or expiration of this License.
9,2 RF Exposure Compliance. Licensee's Facilities must comply with all
standards and regulations of the FCC and any other state or federal
government agency with the authority to regulate exposure to radio
frequency (RF) emissions. Licensee or its representative shall include in any
application for a Site License Addendum certification that the small cell
facilities will comply with applicable RF emissions limits, and at the City's
written request, which shall be no more than once per yearf must conduct
on-site post-installation RF emissions testing in accordance with applicable
rules, and certify actual compliance with the applicable RF emissions limits
for general populationfuncontrolled RF exposure, and provide a copy of such
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ExteVet Systems, Inc. and City af Kent
2420 Master License Agreement
9.3
post-¡nstallation compliance report to the City.
Hazardous Materials. Licensee shall not introduce or use any hazardous
substances (chemical or waste), in violation of any applicable law or
regulation, nor shall Licensee allow any of its agents, contractors or any
person under its control to do the same. Licensee will be solely responsíblefor and will defend, indemnify and hold the city, its offícers, officials,
employees, agents and volunteers harmless from and agaínst any and all
claims, costs and liabilities including reasonable attorney's fees and costs,
arising out of or in connection with the cleanup or restoration of the property
associated with Licensee's use, storage, or disposal of hazardous substances,
whether or not intentional, and the use, storage or disposal of such
substances by Licensee's agents, contractors or other persons acting under
Licensee's control, whether or not intentional.
1O. Maintenance. Restoration and Repair
10.1 Licensee Responsibilities.
10.1.1 Licensee shall, at its sole cost and expense and to the reasonable
satisfaction of the city: (a) maintain its Facilities in a safe
condition, in good repair and in a manner suitable to the City; (b)
remove, repaír or replace any of its Facilities that is damaged or
becomes detached; (c) keep Facilities free of debris and anything of
a dangerous, noxious or offensive nature or which would create a
nuisance or hazard; andlor (d) repair any damage to the right-of-
way, City-owned infrastructure, or other property, whether publicor private, caused by Licensee, its agents, employees or
contractors in their actions relating to attachment, operation, repaír
or maintenance of Facilities, Licensee shall complete such removal,
repair, or replacement within 30 days of receipt of the city's written
notice.
10.1.2 If Licensee does not complete or commence all necessary repairs
within the 30-day period, to the city's reasonable satisfaction, the
City reserves all rights to do so at Licensee's expense.
10.1.3 The terms of this Section 10.1 shall survive the
completion or earlier termination of this License.
expiration,
tA.2 City Maintenance of Citv-owned Infrastructure.
10.2.1 The city reserves the right to make alterations, repairs, additions,
removals and improvements to all or any part of the city-owned
infrastructure for any operational purpose. The city shall make a
good faith effort to give Licensee 72 hours' prior notice of any city
work if such work will impair the operation of the Facilities.
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ExteNet Systems, Inc. and City of Kent
202A Master License Agreement
L0.2.2 Licensee will turn antennas and other Facilities producing radio
frequency aff, or authorize the City to do so, when the City
performs any work on the city-owned infrastructure. If Licensee
fails to turn off the Facilities producing radio frequency within 72
hours of receipt of notice, the City may take reasonable steps to
turn them off.
10.2.3 The city shall not be liable for any indirect, special or consequential
damages to any person or property, nor shall Licensee be relieved
from any of its obligations under this License, as a direct or indirect
result of temporary interruption in the electrical power provided to
the City-owned infrastructure.
14.2.4 If the City, while making any repairs or improvements to City-
owned infrastructure as described by this section, or conducting
such emergency work as described by this section, should incur any
extra costs derived from the presence of Facílities, then Licensee
shall reimburse the city for all reasonable costs within 45 days of
receipt of an invoice detailing costs.
10.2,5 The city has no duty to Licensee to make any repairs or
improvements to the City-owned infrastructure except for damage
caused by the city, its employees or agents. The city is not
responsible for any third-party damage to Facilities.
10.3 EmergencyMeasures.
10.3.1 The city retains the right to take necessary, appropríate or useful
measures, in response to any public health or safety emergency. If
the city becomes aware of an emergency before Licensee, then the
City shall notify Licensee by telephone or e-mail promptly upon
learning of the emergency and shall exercise reasonable efforts to
avoid an interruption of Licensee's operations. The City may requíre
Licensee to deactivate such Facilities if any of the city's employeesor agents must move closer to the Facilities than the FCC
recommended minimum distance. In this case, the city will contact
Licensee to request immediate deactivation. Licensee's Facilities
shall include an emergency override switch for use by the city that
would turn off the system in case of a public safety emergency that
presents the threat of immediate and irreparable harm, such that
notification to Licensee is not feasible or practical.
10.3.2 The city will not be liable in any manner, and Licensee hereby
waives any claims, for any inconvenience, disturbance, loss of
business, nuisance, or other damage arising out of the City,s access
to the Facilities, including the removal of Facilities from city-owned
infrastructure in an emergency, except damage resulting directly
and exclusively from the negligence or willful misconduct of the city
Page 11
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or its agents and not contributed to by the acts, omissions, or
negligence of Licensee, its agents, or contractors.
11. Sub-licensino. Subleasino & Assionment bv Licensee
The rights and privileges granted to Licensee as provided in this License may not be
assigned or transferred to any other entity without written approval of the City,
which shall not be unreasonably withheld, conditioned or delayed; provided,
however, that upon written notice to the City, Licensee may assign or transfer the
rights and privileges granted herein to any parent or subsidiary of Licensee, to an
entity with or into which Licensee may merge or consolidate, to an entity which
controls, is controlled by, or is under common control with such entity or to any
purchaser of all or substantially all of the assets of Licensee in the market definedby the FCC in which the City-owned infrastructure are located without the
requirement for City approval, so long as the successor provides written notice to
the Cíty that it is then fully liable to the City for compliance with all terms and
conditions of this License. Licensee shall reimburse the City for all actual and
reasonable costs and expenses reasonably incurred by the City in considering a
request to transfer or assign this License.
The Parties acknowledge that small wireless facilities deployed by Licensee in the
Site License areas pursuant to thís Agreement may be owned and/or remotely
operated by third-party wireless carrier customer ("Carriers") and installed and
maintained by Licensee pursuant to existing agreements between Licensee and a
Carrier. Such equipment shall be treated as Licensee's equipment for all purposes
under this Master License and any applicable Site License. A Carrier's ownership
andlor operation of such equipment shall not constitute an Assignment under this
Master License, provided that Licensee shall not actually or purport to sell, assign,
encumber, pledge, or otherwise transfer any part of its interest in the license area
to a Carrier, or otherwise permit any portion of the license area to be occupied by
anyone other than itself. Licensee shall remain solely responsible and liable for the
performance of all obligations under this Master License and applicable Site
Licenses with respect to any equipment owned andlor remotely operated by a
Carrier.
12. Insurance
Iz.L At Lícensee's sole cost and expense, Licensee shall maintain throughout the
term of this License insurance as set forth in Exhibit D.
L2.2 No more than once per 24-month period, the City may require increases in
this coverage by 60 days written notice to Licensee, as the City deems
reasonably necessary, generally consistent with industry standards.
L2,3 Licensee's maintenance of insurance as required by this Section 12 shall not
be construed to limit the liability of Licensee to the coveraEe provided by
such insurance, or otherwise limit the City's recourse to any remedy availableat law or equity. Further, Licensee's maintenance of insurance polícies
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ExteVet Systems, Inc. and City af Kent
202A Master License Agreement
required by thís License shall not be construed to excuse unfaithful
performance by Licensee.
13. Hold Harmless
13.1 The City and its employees and agents shall not be liable for injury or
damage to any persons or property, including City-owned infrastructure,
resulting from the installation, operation or maintenance of the Facilities or
facilities on City-owned infrastructure, except for injury or damage caused by
the City's, its employees'or agents'negligence or willful misconduct.
L3.2. Licensee releases, covenants not to bring suit, and agrees to indemnify,
defend, and hold harmless the city, its officers, employees, agents, and
representatives from any and all claims, costs, judgments, awards, or liabilityto any personr for injury or death of any person, or damage to property
caused by or arising out of any acts or omissions of Licensee, its agents,
servants, officers, employees and contractors in the performance of this
License and any rights granted within this License, or the presence of the
Facilities, except if caused by the city's, its employees' or agents' negligence
or willful misconduct,
13.3 Inspection or acceptance by the City of any work performed by Licensee at
the time of completion of construction shall not be grounds for avoidance by
Licensee of any of its obligations under this Section 13,
13,4 The City shall promptly notify Licensee of any claim or suit and request in
writing that Licensee indemnify the City. The City's failure to so notify and
request indemnification shall not relieve Licensee of any liability that Licensee
might have, except to the extent that such failure prejudices Licensee's
ability to defend such claim or suit.
13.5 Licensee may choose counsel to defend the City at Licensee's sole expense
subject to this Section 13, provided the City consents to Licensee's choice of
counsel, which consent shall not be unreasonably withheld. If Licensee
refuses the tender of defense in any suit or any claim, as required pursuant
to the indemnification provisions within this License, and this refusal is
subsequently determined by a court having jurisdiction (or such other
tribunal that the parties shall agree to decide the matter), to have been a
wrongful refusal on the part of Licensee, Licensee shall pay all of the City's
reasonable costs for defense of the action, including all expert witness fees,
costs, and attorney's fees, and including costs and fees incurred in
recovering under this indemnification provision. If separate representation to
fully protect the interests of both parties is necessary, such as a conflict of
interest between the City and the counsel selected by Licensee and approved
by the City to represent the City, then upon the prior written approval and
consent of Licensee, which shall not be unreasonably withheld, the City shall
have the right to employ separate counsel in any action or proceeding and to
participate in the investigation and defense thereof, and Lícensee shall pay
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ExteVet Systems, Inc. and City af Kent
2020 Master License Agreement
the reasonable fees and expenses of such separate counsel. The City's fees
and expenses shall include all out-of-pocket expenses, such as consultants
and expert witness fees, and shall also include the reasonable value of any
services rendered by the counsel retained by the City (including the use of
in-house counsel). Each party agrees to cooperate and to cause its
employees and agents to cooperate with the other party in the defense of
any such claim and the relevant records of each party shall be available to
the other party with respect to any such defense.
13.6 The pafties acknowledge that this License is subject to RCW 4.24.115.
Accordingly, in the event of liability for damages arising out of bodily injuryto persons or damages to property caused by or resulting from the
concurrent negligence of Licensee and the City, its officers, officials,
employees, and volunteers, Licensee's liability shall be only to the extent of
Licensee's negligence. It is further specifically and expressly understood that
the indemnification provided constitutes Licensee's waiver of immunity under
Title 51 RCW, solely for the purposes of this indemnification. This waiver has
been mutually negotiated by the parties.
L3.7 Licensee acknowledges and agrees that Lícensee bears all risks of loss or
damage or relocation or replacement of its Facilities from any cause, and the
City shall not be liable for any cost of replacement or of repair to damaged
Facilities, including, without limitation, damage caused by the city's removal
of the Facilities, loss of line of sight path, activities conducted by the Cíty, its
officers, agents, employees, volunteers, elected and appointed officials, or
contractors, except to the extent any such damage or destruction is caused
by or arises from any negligent, willful misconduct, or criminal actions on the
part of the city, íts officers, agents, employees, volunteers, or elected or
appointed officials, or contractors. Licensee releases and waives any and all
such claims against the city, its officers, agents, employees, volunteers, or
elected or appointed officíals, or contractors.
13.8 Licensee shall indemnify, hold harmless and defend the City against any
claims for damages, including, but not limited to, consequential, special,
indirect, business interruption damages and lost profits, brought by or under
users of the Facilities as the result of any interuption of service due to
damage or destruction of the Facilities caused by or arising out of activities
conducted by the City, its officers, agents, employees or contractors, or any
third partíes, except to the extent any such damage or destruction is caused
by or arises from the negligence, willful misconduct, or criminal actions on
the part of the City, its officers, employees, or elected or appointed officials.
This limitation of liability shall apply even if the City is advised of the
possibility thereof, whether such damages arise out of breach of contract,
breach of warranty, negligence, strict liability or any other theory of liability
and whether such damages were foreseeable or not at the time this License
was executed.
13.9 Neither party shall be liable to the other, or any of their respective agents,
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ExteVet Systems, Inc. and City of Kent
2AZA Master License Agreement
representatives, employees for any lost revenue, lost profits, loss of
technology, rights or services, incidental, punitive, indirect, special or
consequential damages, loss of data, or interruption or loss of use of service,
even if advised of the possibility of such damages, whether under theory of
contract, toft (including negligence), strict liability or otherwise,
13,10 The provisions of this Section 13 shall survive the expiration, revocation, or
termination of this License.
14, Performance Bond
Licensee shall furnish a surety bond or bonds, in a form reasonably acceptable tothe City, covering faithful performance of this License and payment of all
obligations arising thereunder, including but not limited to proper construction,
long-term facility maintenance, rent, timely removal of equipment and restoration,
The bond shall be in-force during the entire term or subsequent extensions CIr
month-to-month tenancÍes. The performance bond for this License shall not only
indemnify the City for the usual performance provisions of this License, but in
addition shall be a bond to guarantee payment of any and all tax liability of any
type, kind, nature or description due as a result of this License. This performance
bond shall be issued to the City prior to the issuance of any approvals for the
construction of its Facilities on the City-owned infrastructure. If the City so uses or
applies any portion of the performance bond, Licensee shall, upon 30 days' written
notice, restore the performance bond to the full amount above specified, and
Licensee's failure to do so shall constitute a material breach of this License. Thís
performance bond shall be in addition to any construction or maintenance bonds
imposed by the City as part of its permitting process. This performance bond shall
remain in place until all of Licensee's Facilities have been removed by Licensee
unless otherwise permitted to remain by the City. The amount of the bond shall be
dependent on the number of city Poles used by Licensee as follows:
$25,000 bond for authorization to use 1-10 City poles;
$125,000 bond for authorization to use 11-50 City poles; and
$250,000 bond for authorization to use 50 or more City Poles. Licensee may
elect to combine the bond required by Licensee's permits together with the
bond required by this License provided: (a) the combined bond meets all
requirements for the performance bond outlined in this License and also
meets all of the requirements of the permit; and (b) the city approves the
combining of bonds, such approval not to be unreasonably withheld.
15. Nondiscrimination
Licensee, for itself, its successors, and assigns does hereby covenant and agree to
comply with all civil rights and anti-discrimination requirements of Laws applicable
to City-owned infrastructure, including, without limitation, chapter 49.60 RCW and
Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle
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ExteNet Systems, Inc. and Cíty of Kent
2020 Master License Agreement
A, Office of the Secretary, Part 2L, Nondiscrimination in Federally assisted
programs of the U.S. Department of Transportation-Effectuation of Title VI of the
Civil Rights Act af L964, and as these regulations may be amended. If any of the
above nondiscrimination covenants are breached, the City may terminate the
License and to re-enter and repossess the City-owned infrastructure, and hold the
same as if this License had never been made or issued.
16. Site License Addendum Aoplication process
16.1 Prior to installation of any Facilities on a City-owned infrastructure, Licensee
shall first obtain a Site License Addendum executed by the City. To request a
Site License Addendum, Licensee shall submit the Site License Addendum in
the form attached as Exhibit A, executed by Licensee and accompanied by allof the submittal requirements specified by the City. The Site License
Addendum must include Licensee's certification that the plans submitted
comply with the Design Requirements. The Public Works Director or
designee, is authorized to execute a Site License Addendum provided that all
submittal requirements have been met,
L6.2 The City may in its reasonable discretion require Licensee to make desígn
modifications in order to comply with the Design Requirements, to address
safety concerns, or applicable contractual, regulatory, or legal requirements
or may ask additional questions as necessary to determine feasibility of use
of the City-owned infrastructure.
16.3 If the City receives more than one Site License Addendum for the same City
Pole, then the City Pole shall be awarded to the first Site License Addendum
signed by both parties and for which Licensee has submitted the first
payment of Rent or Alternate Rent.
17. Defaultr City Remedies
L7.L Default. The following occurrences will constitute an "Event of Default" by
Lícensee, if any such occurrence continues beyond the applicable notice and
cure period set forth in Section 19:
77.1.1 Failure to Pay. Licensee fails to pay any sum, including Rent or
taxes, due under this License upon the due date.
L7.1.2 Abandonment. Licensee's failure to remove Facilities as further
described in Section 2t.2.
L7.L,3 Insolvency. Immediately, upon written notice, if a receiver is
appointed to take possession of Licensee's assets, Licensee makesa general assignment for the benefit of creditors, or Licensee
becomes insolvent or takes a suffers action under the Bankruptcy
Act. waiver CIr acceptance by the city of any default of the terms of
this License by Licensee shall not operate as a release of Licensee's
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i;,i,i,!"'Åri,::#Zii
17,L,4
17.t.5
L7.L.8
responsibility for any prior or subsequent default.
Lapsed Government Approvals. Licensee fails to maintain or
obtain any Government Approvals required to install and operate
small cell facilities and continues to operate such facilities.
Failure to Maintain rnsurance. Licensee fails to maintain
appropriate insurance as required pursuant to Exhibit D.
17.L.6 Prohibited Assignment. Licensee assigns this License in violation
of Section 11.
L7.L,7 rnterference. Licensee operates or maintains its Facilities in
violation of the interference obligations in Section B.
unauthorized construction. Lícensee constructs or installs
Facilities wíthout first obtaining a Síte License Addendum.
t7,2
L7,L.9 Failure to Construct or Install Per Approved Design. Licensee
constructs, installs or modifies any Facilities in any manner which
does not comply with the requirements of the applicable Site
License Addendum or modification rights as set forth in section 7.6.
17.1.10 ceases to Provide Telecommunications services. That
Licensee ceases to operate as a provider of telecommunications
services under federal law and fails to terminate this License and
the existing Site License Addendums.
L7.LJL Other Defaults. Licensee violates any material agreement, term or
covenant of this License.
City Remedies. Subject to the cure period described in Section 19, the C¡ty
shall have the following remedies upon an Event of Default. The City's rights
and remedies under this License shall be cumulative, and none shall exclude
any other right or remedy allowed by law.
L7.2.t continuation of License. without prejudice to its ríght to other
remedies, the city may continue this License and applicable site
License Addendums in effect, with the right to enforce all of its
rights and remedies, including the right to payrnent of Rent and
other charges as they become due for the remainder of the then-
existing term. The City may elect, in its discretion, upon written
notice to Licensee, to suspend processing or response of any/all
Licensee requests, or granting of any/all approvals required of the
City, with respect to any matter (or requested matter) pursuant to
this License.
L7.2.2 Termination of License. If Licensee's default is of such a serious
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ExteNet Systems, Inc. and Cit¡r of Kent
2A2A Master License Agreement
nature in the city's sole judgment that the default materially affects
the purposes of this License, the City may terminate this License.
Termination of this License will affect the termination of all Site
License Addendums issued under it automatically and without the
need for any further action by the City. Upon termination of this
License, Lícensee will remain liable to the City for damages in an
amount equal to the Rent and other sums that would have been
owed by Licensee under this License for the balance of the year in
which the termination is effective.
L7,2,3 Termination of Site License Addendums. If an Event of Default
specific to one or more Site License Addendums is not cured by
Licensee within the applicable cure period, the Cíty may terminate
such specific Site License Addendum(s).
L7.2,4 lnterest and Collection Costs on Past Due Monetary
Obligations. If Licensee fails or refuses to pay any of its payment
obligations due under this License (încluding without limitation any
site License Addendum) on the due date then Licensee is obligated
to pay and shall immediately pay interest on amount due calculated
at the lesser of 10olo per annum or the highest rate of interest
allowed under applicable law. Interest shall be calculated on a per
day basis commencing on the due date and continuing until paid in
full. If Licensee fails or refuses to pay any or all amounts due upon
written demand then Licensee shall be liable to pay all collectíon
costs and reasonable attorney's fees íncurred with respect thereto.
The accrual of interest on past due monetary obligations is
automatic and does not require the giving of notice.
18. Termination of Site License Addendum
In addition to the City's rights contained in Section 17 (upon the occurrence of an
Event of Default), the parties have the following termination rights.
18.1 City's Termination Riqhts, Subject to the cure provision of Section 19, the
City may terminate any Site License Addendum if the City determines that
Licensee's exercise of its rights under this License:
18.1.1 Interferes with the City's use of the City-owned infrastructure
andlor the structures on City-owned infrastructure for the
municipal purpCIses for which the City owns and administers such
structures/site, which may include the necessity to widen a streetor for other municipal projects that result in removing the
streetlight;
Poses a threat to public health or safety, or constitutes a public
nuisance; or
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ExteVet Systems, Inc. and City af Kent
2A2A Master License Agreement
18.1.2
18.1.3
18.1.4
Unreasonably interferes with the use of the City-owned
infrastructure or attached equipment by a governmental agency
with which the City has an agreement to provide services to the
City, e.9., PSERN or íts successor entity.
Notwithstanding the above and not subject to the cure provisions of
Section 19, the City shall have the following additional termination
rights:
ïhe City ffiây, in its sole discretion, determine that exigent
circumstances require immediate removal of Facilities from City-
owned infrastructure. Such exigent clrcumstances may only
include reasons of public health, safety or the need to provide
street lighting. Licensee shall remove its Facilities within 48
hours, unless a longer period is provided by the City. The
applicable Site License Addendum will terminate upon the
removal of the Facilities.
a
The City may, in its sole discretion, remove any City-owned
infrastructure that it determines is unnecessary for its municipal
purposes. If the City decides to remove City-owned
infrastructure, it shall provide Licensee with at least 120 days'
written notice to remove its Facilities. The applicable Site
License Addendum will terminate upon the removal of the
Facilities.
18.2 Termination by Licensee, Licensee has the right to terminate any Site
License Addendum upon 90 days' notice if Licensee determines in its sole
discretion that it desires to discontinue use of the City-owned infrastructure
for any reason.
18.3 General Termination Riohts.
18.3.1 Condemnation. If all or any portion of the City-owned
infrastructure is needed, taken, vacated, conveyed, or condemned
for any public purpose such that Licensee cannot use its Facilities
on the City-owned infrastructure, either pafty may terminate the
applicable Site License Addendum, All proceeds from any taking or
condemnation of the Site or City-owned infrastructure shall belong
and be paid to the City. Licensee shall have all ríghts to its
Facilities, which shall not be included in any taking or
condemnation.
Fire or Casualty. ff all or any portion of the City-owned
infrastructure is so damaged by fire or other casualty that it cannot
reasonably be expected to be repaired within g0 days following the
date of such damage, either party may terminate the applicable
Site License Addendum upon 90 days' written notice to the other
Page 19un"r"tîtå'î#ítJlf;,#!"'i{,::#Zií
b
18.3.2
party
19, Cure
If there is a breach by a Parly with respect to any provisions or obligations of this
License, the non-breaching Party shall give the breaching Party written notice of the
breach. After receipt of this written notice, the breaching Party shall have 30 days in
which to cure any breach. If the breach cannot reasonably be cured within 30 days,
the breaching pafty shall not be in default if the party has commenced the cure
wíthin the 30-day period and continuously and diligently pursues the cure to
completion.
2O, Relocation
2A.L Relocation Requirement. Licensee understands and acknowledges that the
City may require Lícensee to relocate, temporarily or permanently, one or
more of its Facilities when reasonably required by the City by reason of traffic
conditions, public safety, dedications of new Rights-of-Way, the
establishment and improvement of new Rights-of-Way, widening or
improvement of existing Rights-of-Way or both, street vacations, freeway
construction, change or establishment of street grade, or the construction of
any public improvement or structure by any governmental agency acting in a
governmental capacity or as otherwise necessary for the operations of the
City or other governmental entity to meet adopted land use or design
standards. Collectively, such matters are referred to within this License with
the term "Public Improvement." The City may also requíre relocation because
the Facilities interfere with or adversely affect proper operation of City-owned
poles, traffic signals, communications, or other City-owned infrastructure or
to protect or preserve the public health or safety.
2A.2 Relocation. If the request for relocation from the City arises from a Public
Improvement, in which structures or poles are either replaced or removed,
then Licensee shall relocate or remove its Facilities as required by the City,
and at no cost to the City, subject to the procedure in this Section 20.
Licensee acknowledges and agrees that the placement of Facilities on City-
owned structures does not convey an ownership interest in these structures.
20.3 Locate. Upon written request of the City, or a third party performing work in
the Right-of-Way, and ín order to facilitate the design of Cíty street and
Right-of-Way improvements, Licensee agrees, at its sole cost and expense,
to locate, and if determined necessary by the Cíty, to excavate and expose
its Facilities for inspection so that the Facilities' location may be taken into
account in the improvement design. The decision as to whether any Facilities
need to be relocated in order to accommodate the Public Improvement shall
be made by the City upon review of the location and construction of
Licensee's Facilities. The City shall provide Licensee at least 30 days' written
notice prior to any excavation or exposure of Facilities, Licensee shall be
responsible for any delays due to failure to locate its Facilities when
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Fxfe¡Vet Systems, Inc. and City of Kent
2420 Master License Agreement
requested, except that Licensee shall not be responsible for delays or
damages due to circumstances beyond the control of Licensee.
24,4 Notice and Relocation Process. If the City determines that the Public
Improvement necessitates the relocation of Licensee's existing Facilities, the
City shall:
20.4.L At least 90 days prior to commencing the project, provide Licensee
with written notice requiring such relocation and a date by which
relocation must be complete; provided, however, that in an
emergency situation, defined for purposes of this Franchise as a
condition posing an immínent threat to property, life, health, or
safety of any person or entity, the City shall give Licensee written
notice as soon as practicable; and
24,4.2 At least 90 days prior to commencing the project, provide Licensee
with copies of pertinent portions of the plans and specifications for
the improvement project and a proposed location for Licensee's
Facilities so that Licensee may relocate its Facilíties on other City-
owned infrastructure to accommodate the improvement project;
and
24.4.3 After receipt of such notice and such plans and specifications,
Licensee shall complete relocation of its Facilities consistent with
the date for relocation established in accordance with this Section
2A at no charge or expense to the City, except as otherwise
provided by law. Relocation shall be accomplished in such a manner
as to accommodate the Public Improvement.
20.5 Alternative Arrangements. Licensee may make its own appropriate
arrangements in response to a request for relocation of its Facilities from a
person or entity other than the City, so long as any improvements being
constructed are not or will not become City-owned, operated or maintained;
except that any such arrangements shall not unduly delay the Public
Improvement and the proper permits are obtained. In this case, the Site
License Addendum may be terminated in accordance with Section L7.2.3.
20.6 Contractor Delay Claims. Licensee shall be solely responsible for the actual
and reasonable out-of-pocket costs incurred by the City for delays in a Public
Improvement to the extent the delay is caused by or arises out of Licensee's
failure to comply with the final schedule for the relocation (other than as a
result of a Force Majeure Event or causes or conditions caused by the acts or
omissions of the City or any thírd party unrelated to Licensee; Licensee
vendors and contractors will not be considered unrelated third parties). Such
out-of-pocket costs may include, but are not limited to, payment to the city's
contractors andlor consultants for increased costs and associated court costs,
interest, and reasonable attorney's fees incurred by the city to the extent
directly attributable to such Licensee's caused delay in the public
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ExteNet Systems, Inc, and City of Kent
2AZA Master License Agreement
Improvement
24.7 Indemnification. Licensee will indemnify, hold harmless, and pay the costs
of defending the City, in accordance with the provisions of Section 13.
20.8 Citv's Costs,. If Licensee fails, neglects, or refuses to remove or relocate its
Facilities as directed by the City following the procedures outlined in this
Section 20, the City may perform such work or cause it to be done, and the
City's actual and reasonable costs shall be paid by Licensee. The City may
also terminate thís License and repossess the City-owned infrastructure and
hold the same as if this License had never been made or issued in
accordance with Section 16.1.
2A.9 Survival. The provisions of this Section 20 shall survive the expiration or
termination of this Franchise during such time as Licensee continues to have
Facilities on City-owned infrastructure.
20.10 No Relocation. Licensee acknowledges that the signing of this License does
not entitle Licensee to assistance under the Uniform Relocation and Real
Property Acquisition Policy (chapter 8.26 RCW).
21. Removal of Facilities Upon Termination
2L.L Within 60 days after the expiration or earlier termination of a Site Lícense
Addendum or this License, unless a shorter window of time applies underthis License, upon request by the City, Licensee shall, at Licensee's sole
expense, replace the Combination Pole with a replacement pole meeting the
standard design and construction criteria of the City. Rent shall continue to
accrue during any time period in which Licensee continues to have Facilities
on the City-owned infrastructure. Thís obligation shall survive the expirationor earlier termination of this License. Any Facilities which are not removed
withÌn 180 days, shall automatically become the property of the City. Any
actual and reasonable costs incurred by the City in safeguarding such
Facilities or removing the Facilities shall be reimbursed by Licensee. Nothing
within this Section 21 prohibits the City from compelling Licensee to remove
Facilities through judicial action when Licensee has not been permitted to
abandon the Facilities in place.
2L.2
21.3
The Facilities, in whole or in paft, may not be abandoned by Licensee without
written approval by the city. Any plan for abandonment or removal of
Facilities must be first approved by the City, and all necessary permits must
be obtained prior to such work. Notwithstanding the above, the city may
permit Facilities to be abandoned and placed in such a manner as the City
may prescribe. Upon permanent abandonment, Licensee shall execute such
necessary documents to transfer title to the City.
Prior to removal of its Facilities, Licensee shall notify the City in writing when
the Facilities have been removed, and comply with any other requirements
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ExteNet Systems, Inc. and City of Kent
2020 Master License Agreement
under Law.
2L.4 The provisions of this Section 21 shall survive the expiration, revocatíon, or
termination of this License.
22. Records; Audits
22.L Information Reouest.
22.L.L The City may require such information, records, and documents
from Licensee from time to time as are appropriate to reasonably
monitor compliance with the terms of this License. This required
information may include, but is not limited to, any installation
ínventory, location of existing or planned Facilities, maps, plans,
operational data, and as-built drawings of Licensee's Facilities in
the City. Licensee shall warrant the accuracy of all information
provided to the City.
22,L.2 Licensee shall provide such records, at no cost to the City, wíthin
30 days of a written request by the City for production of the same
unless additional time is reasonably needed by Licensee, in which
caser Licensee shall have such reasonable time as needed for the
production of the same, but no longer than 60 days. If any person
other than Licensee maintains records on Licensee's behalf,
Licensee shall be responsible for making such records available to
the City.
22,2 €urrent Inventory. Licensee shall maintain a current inventory of Facilitíes
throughout the Term of this License. Licensee shall provide to the City a copy
of the inventory repoft by December 31 of each year and within 30 days of a
reasonable request by the City, which request shall be no more than onceper year. The inventory report shall include GIS coordinates, date of
installation, type of pole used for installation, description/type of installation
for each Facility and photographs taken before and after the installation of
the Facílity and taken from the public street.
22.3 Public Records Act.
22.3.L Licensee acknowledges that information submitted to the City is
subject to the Washington Public Records Act, Chapter 42.56 RCW,
and is open to public inspection, subject to any exceptions
permitted by law (i.e., unless an exemption applies).
Licensee may identify documents submitted to the City that
Licensee believes are non-disclosable, such as trade secrets.
Licensee is responsible for clearly and conspicuously identifying the
work as confidential or proprietary, and shall provide a brief written
explanation as to why such information is confidential and how it
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ExteVet Systems, Inc. and City of Kent
202A Master License Agreement
22.3.2
23.L
23.2
22.3.3
may be treated as such under state or federal law. The City agrees
to keep confidential any proprietary or confidential books or records
to the extent permitted by law.
If the City receives a public records request under Chapter 42,56
RCW or similar law for the disclosure of the documents or any part
of the documents Licensee has designated as confidential, trade
secret, or proprietary, the City shall provide Licensee with written
notice of the request, including a copy of the request prior to
disclosure so that Licensee can take appropriate steps to protect its
interests. Nothing in this Section 22.3 prohibits the City from
complyíng with Chapter 42.56 RCW or any other applicable law or
court order requiring the release of public records, and the City
shall not be liable to Licensee for compliance with any law or court
order requiring the release of public records. The City will not
assert an exemption from disclosure or production on Licensee's
behalf.
22.3.4 The City shall comply with any injunction or court order obtained by
Licensee that prohibits the disclosure of any such confidential
records. If a higher court overturns an injunction or couft order and
such higher cou¡t action is or has become final and non-appealable,
Licensee shall reimburse the City for any fines or penalties imposed
for failure to disclose such records within 45 days of a request from
the City, unless additional time is reasonably necessary under the
circumstances and is agreed to by the parties.
23. Miscellaneous
Entire Aoreement. This License constitutes the entire understanding and
agreement between the parties as to the subject matter herein and no other
agreements or understandings, written or otherwise, shall be binding upon
the parties upon execution of this License, except that any subsequentlyadopted City policies and procedures for
telecommunicationslcommunications license agreements, Site License
Addendums and final applicable permits shall be binding on the parties.
Modifications. The City and Licensee hereby reserve the right to alter,
amend, or modify the terms and conditíons of this License upon written
agreement of both parties to such alteration, amendment or modification.
23.3 Non-Waiver, The failure of the City to insist upon strict performance of any
of the covenants and agreements of this License or to exercise any option in
any one or more instances, shall not constitute a waíver or relinquishment of
any such covenants, agreements or option or any other covenants,
agreements or option.
23.4 Police Powers and City Ordinances. Nothing within this License restricts
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ExteNet Systems, Inc. and City af Kent
2A2A Master License Agreement
the city's ability to adopt and enforce all necessary and appropriate
ordinances regulating the performance of the conditions of this License,
including any valid ordinance made in the exercise of its police powers in the
interest of public safety and for the welfare of the public. The City has the
authority at all times to reasonably control by appropriate regulations the
location, elevation, manner of construction and maintenance of Facilities by
Licensee, and Licensee shall promptly conform with all such regulations
unless compliance would cause Franchisee to violate other requirements of
law. In the event of a conflict between the provisions of this License and any
other generally applicable ordinance(s) enacted under the City's police power
authority, such other ordinances(s) shall take precedence over the provisions
set forth in this License.
23.5 Conflicts. If any provision of this License or the applicable Site License
Addendum conflicts or inconsistencies with the terms, conditions or
requirements of the Design Standards, then the stricter term shall have
precedence.
23.6 coooeration in Execution of subsequent Documents. The city and
Licensee agree to cooperate in executing any documents necessary to
protect the rights of the parties granted by this License.
23.7 Headings. The headings to paragraphs or sections of this License are for
convenience only, and shall have no effect on the construction or
interpretation of any paragraph hereof.
23.8 Notices. Ëxcept as otherwise designated in this License, any notice, request,
demand, statement, or consent herein required or permitted to be given by
either party to the other hereunder, shall be in writing, signed by or on
behalf of the party giving the notice and addressed to the other at the
address as set forth in Exhibit C. Each party may by notice in writing change
its address for the purpose of this License, which address shall thereafter be
used in place of the former address. Each notice, demand, request, or
communication which shall be mailed to any of the aforesaid shall be deemed
sufficiently given, served, or sent for all purposes hereunder (a) two business
days after it shall be mailed by United States registered or certified mail,
postage prepaid and return receipt requested, in any post office or branch
post office regularly maintained by the United States Postal Service, (b) upon
personal delivery, or (c) one business day after deposit with any recognized
commercial air courier or express service. Any communication made by e-
mail or similar method shall not constitute notice pursuant to this License.
23.9 Authoritv to Execute. Any individual executing this License, represents and
warrants that he or she is duly authorized to execute and deliver this License
on behalf of such party and this License is binding upon such party in
accordance with its terms.
23.10 Executed in Counterparts. This License may be executed in any number of
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ExteNet Systems, Inc. and City of Kent
202A Master License Agreement
counterparts, each of which shall be an original, but all of which together
shall constitute but one instrument.
23.1t Governinq Law and Venue, This License shall be governed and construed
by and in accordance with the laws of the State of Washington, without
reference to its conflicts of law principles. The venue for any dispute related
to this License shall be the United States District Court for the Western
District of Washington, or King County Superior Court, without waiver for any
right to removal.
23.L2 Bindinq on Successors. This License shall be binding upon and inure to the
benefits of the heirs, executors, administrators, successors and assigns of
the parties.
23.L3 No Recordinq. Licensee shall not record any documents (such âs, for
example, a memorandum, lien, assignment or security interest) against the
City's title without the City's express prior written approval which it may
withhold in its sole discretion.
23.L4 Business License. Prior to constructing any Facilities or providing services
within the City, Licensee shall obtain a business and/or utility license from
the Cíty.
23.15 Severability. The provisions of thís License shall be deemed severable and if
any portion shall be held invalid, illegal or unenforceable for any reason, the
remainder of this License shall be effective and binding upon the parties.
23.16 No Third Party Beneficiaries. It is not intended by any of the provisions of
this License to create for the public, or any member thereof, a third-party
beneficiary right or remedy, or to authorize anyone to maintain a suit for
personal injuries or property damage pursuant to the provisíons of this
License.
23.L7 Force Majeure. Time periods for performance under this Agreement shall be
deemed extended day for day for time lost attributable to any delay resulting
from any Event of Force Majeure. An "Event of Force Majeure" means any actof God, strike or material or labor shoftage, or other events, if the
occurrence was not reasonably foreseeable by the party and is beyond the
reasonable control of the party whose performance is required under the
License.
24. Notice
Any Notice or information required or permitted to be given to the parties under
this License may be sentto the following addresses unless otherwise specified:
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ExteNet Systems, Inc. and City of Kent
2020 Master License Agreement
If to Licensee (including invoices):
EXTENET SYSTEMS, tNC
Attn: CFO
3030 Warrenville Road, Suite 340
Lisle, Illinois 60532
If to the Cityl
CITY OF KENT
Attn: City Clerk
220 Fourth Avenue South
Kent, WA 98032
With a copy to:
General Counsel & COO at same
address
Copy emaíl to:
N OTICE@ exten etsyste m s. co m
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ExteVet Systems, Inc. and City of Kent
2020 Master Lícense Agreement
IN WITNESS WHEREOF, the parties hereto have executed this License on the
respective dates below indicated.
Page 28
ExteVet Systems, Inc. and City of Kent
2020 Master License Agreement
Print Name: Pr0-fiA?b T. Oô,f¿-E.lR-.
LICENSEE:
DATE:
E"V
By
Its
By
ftitle)7-t'b-i_ozo
F KENT:
rQfr
DATE:
CITY
)
N
Ðz
P
Its
APPROVED AS TO FORM:
Kent Law Department
ATTEST:
Kent City Clerk
1
Exhibit A
Site License Addendum
This Sife License Addendum ("Addendum"), dated_between
the City of Kent, ("City") and ExteNet Systems, Inc., ("Licensee"):
Addendum. This is a Site License Addendum as referenced in the Master
License Agreement between the C¡ty and Licensee, dâtêd_
("License"). The purpose of the Site License Addendum ís for the Licensee to
reserve one or more City-owned infrastructure at the following locatíon(s):
This Addendum ís subject and subordinate to the terms and conditions of the
License. In the event of a contradiction, modification or inconsistency
between the terms of the License and this Addendum, the terms of the
License shall govern. unless otherwise indicated, terms used in this
Addendum have the same meaninE as set forth in the License.
Term. The term of this Addendum shall commence on the Rent
Commencement Date and shall terminate upon the License termination
unless earlíer terminated by a party consistent with the License. upon
termination of the License and, consequently, this Addendum, Licensee shall
comply with all applicable License terms and conditions.
3. Fees/Payments Due,
3.1 Rent. Licensee shall pay Rent for Facilities to be installed on each
City-owned infrastructure pursuant to this Site License Addendum in
accordance with the License.
2
7,)Additional Fees. In addition, Licensee shall pay such additional fees
and charges, including Administrative or Permit Fees, such as are
required pursuant to the terms of the License.
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ExteNet Systems, Inc. and Cíty of Kent
2020 Master License Agreement
LICENSEE¡ EXTENET SYSTEMS, fNC
By:
lts:
By
(signature)
Print Name:
(titte)
DATE:
c F KENT¡
By
Print N ,ñ
A
DATE:2Ð7o
APPROVED AS TO FORM:
Kent Law Department
ATTEST:
Kent City Clerk
This Addendum is not valid or enforceable until fully executed by authorized
representatives of both parties.
Page 30
ExteVet Systems, Inc, and City of Kent
2020 Master License Agreement
Exhibit E
Leasehold Excise Tax Exemption
To be inserled, if applicable
Page 31
ExteVet Systems, Inc, and City af Kent
2420 Master License Agreement
Exhibit C
Contact Information / Notices
If to City:llf to Licensee:
City of Kent
220 Fourth Avenue S
Kent, WA 98032
ATTN : Transportation Director
ExteNet Systems, Inc.
Attn: CFO
3030 Warrenville Road, Suite 340
Lisle, Illinois 60532
l*
I
ci
ith copies to:
eneral Counsel & COO at
ty of Kent
220 Fourth Avenue S
Kent, WA 98032
ATïN: City Attorney
N OTICE@ extenetsyste m s. co m
City of Kent
220 Fourth Avenue S
Kent, WA 98032
ATïNl City Engineer
Far Emergencies:Emergencies:
City of Kent
220 Fourth Avenue S
Kent, WA 98032
City shall notify Licensee via email w
names, address, phone, email
4/7 network operations center phone
umber ís 866-892-5327
person(s) to contact in case of emergency
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ExteVet Systems, Inc, and City af Kent
2020 Master License Agreement
Exhibit D
Insurance Reguirements
The Licensee shall procure and maintaín for the duration of this License insurance
agaínst claims for injuries to persons or damages to property which may arise from
or ín connection with the performance of the work hereunder by the Licensee, or its
agents, representatives, employees or subcontractors. Such insurance cerlificates
and required endorsements evidencing the insurance required below shall be
provided to the City upon execution of this License. The cost of such insurance shall
be paíd by the Licensee. Insurance shall meet or exceed the following limits and
shall be maintained for the Term and so long as Licensee has Facilities on any City-
owned infrastructure.
A. Minimum Insurance.
1
2
Commercial General Liability coverage with
occurrence / $6,000,000 annual aggregate.
Stop Gap/Employers Liability coverage with
accident/disease policy I ímit.
limits of $3,000,000 per
limits of $2,000,000 per
5
3
4
2
3
commercial Automobile Liability coverage with combined single limits
of $2,000,000 per each accident for bodily injury and property damage
covering all owned, non-owned, and híred vehicles.
worker's compensation coverage or qualified self-insurance as
required by the Industrial Insurance Laws of the state of washington.
Excess Liability with limits of 915,000,000 per occurrence and in the
aggregate. The Licensee may use any combination of primary and
excess to meet required limits.
B Other Provisions. Requíred Commercial General Liability and the Excess
Liability policies shall :
1 Be endorsed to include the city, its officials, employees and volunteersas additional insureds as their interests may appear under the
Agreement. A blanket insurance additional insured endorsement is
acceptable;
State the policy number; name of ínsurance Licensee; name and
address of the agent or authorized representative; name and address
of insured; project name; policy expiration date; and specific coverage
amounts;
Provide that Licensee's commercial General Liability insurance policy is
primary as respects any other valíd or collectible insurance that the
City may possess, including any self-insured retentions the City may
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ExteVet Systems, Inc. and City af Kent
2020 Master License Agreement
4
5
have; and any other insurance the City does
considered excess insurance only and shall not
contribute with this insurance;
possess shall
be required
be
to
That Licensee's commercial General Liability insurance policy waives
any right of recovery the insurance Licensee may have against the
City; and
Endeavor to provide that coverage shall not be canceled except after
30 days' written notice has been given to the City. Further, within 5
days prior to send cancellation or intent not to renew, Licensee shall
obtain and furnish to city replacement insurance policies meeting the
above requirements. Licensee shall provide at least 30 days written
notice of cancellation or nonrenewal of any required coverage that is
not replaced.
Acceotability of Insurers. Insurance shall be placed with insurers with a
rating of A,M. Eesf & Licensee's Key Rating Guide of A Overall and a Financial
Size Category of "VII."
Verification of Coveraqe, Licensee shall furnish the City with certificates of
insurance required by this License. The certificates are to be received by the
City b'efore work commences.
Subcontractors. Subcontractors are to provide coverage whích complies
with the requirements with reasonable and prudent limits and practices of
the City for the issuance of right of way use permits.
Self-Insurance. As of the effective date of thís License and the use granted
herein, Licensee is not self-insured for any coverage other than worker's
compensation (if applicable). Should Licensee wish to become self-insured
for any other required coverage at the levels outlined in this License at a
later date, Licensee must províde the city with thirty (30) days advanced
written notice of its intent to self-insure. In order to self-insure, Licensee
shall comply with the following: (a) Licensee or its parent Licensee shall
maÍntain throughout the term of this License a net worth of at least
$250,000,000; (b) Licensee shall provide the city, upon written request, a
letter outlining the current equity balance of Licensee (or parent entity); (c)
Licensee is responsible for all payments within the self-insured retention, if
any; and (d) Licensee assumes all defense and indemnity obligations as
outlined in this License.
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ExteVet Systems, Inc. and City of Kent
2020 Master License Agreement
c.
D
E
F.