HomeMy WebLinkAbout13717RESOLUTION NO. 13717
A RESOLUTION APPROVING A LICENSE AGREEMENT
BETWEEN MOBILITIE, LLC, AND THE CITY OF PUEBLO
RELATING TO THE PLACEMENT OF TELECOMMUNICATIONS
FACILITIES UPON AND WITHIN PUBLIC RIGHTS OF WAY, AND
AUTHORIZING THE PRESIDENT OF THE COUNCIL TO
EXECUTE SAME
BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, that:
SECTION 1.
The License Agreement between Mobilitie, LLC, and the City of Pueblo, a Municipal
Corporation, which authorizes telecommunications facilities to be placed upon and within public
rights of way within the City in accordance with its terms and provisions, a true copy of which is
attached hereto and incorporated herein by reference, having been approved as to form by the
City Attorney, is hereby approved.
SECTION 2.
The President of the City Council is hereby authorized to execute the License Agreement
on behalf of the City of Pueblo, a Municipal Corporation, and the City Clerk is directed to affix the
Seal of the City thereto and attest same.
SECTION 3.
The officers and staff of the City are directed and authorized to perform any and all acts
consistent with the intent of this Resolution and the attached License Agreement to effectuate the
policies and procedures described therein.
SECTION 4.
This Resolution shall become effective immediately upon final passage.
INTRODUCED July 10, 2017
BY: Ed Brown
City Clerk’s Office Item # M-5
Background Paper for Proposed
Resolution
COUNCIL MEETING DATE: July 10, 2017
TO: President Stephen G. Nawrocki and Members of City Council
CC: Sam Azad, City Manager
VIA: Gina Dutcher, City Clerk
FROM: Steven Meier, Director of Planning
SUBJECT: A RESOLUTION APPROVING A LICENSE AGREEMENT BETWEEN
MOBILITIE, LLC, AND THE CITY OF PUEBLO RELATING TO THE PLACEMENT
OF TELECOMMUNICATIONS FACILITIES UPON AND WITHIN PUBLIC RIGHTS
OF WAY, AND AUTHORIZING THE PRESIDENT OF THE COUNCIL TO
EXECUTE SAME
SUMMARY:
The Resolution will approve a license agreement with Mobilitie, LLC, which grants it a non-
exclusive consent to place telecommunications facilities including wireless communication
equipment within the streets and right of ways of the City in order that the company may operate
within the City as a telecommunications provider. The license agreement preserves, to the extent
permitted under existing laws, the City’s authority to manage its streets and rights of way for the
benefit of the public without discrimination among telecommunications providers.
PREVIOUS COUNCIL ACTION:
The City has previously approved license agreements with other qualifying telecommunication
providers in the past. This, however, will be the first such agreement with a company which will
be installing small cell facilities above ground. Given the possibility that new poles would be
constructed in the City right of way and the complexity of federal and state law applicable to this
issue, the City engaged the services of outside legal counsel, Kissinger & Fellman, P.C., who has
experience in the telecommunication industry and specifically negotiating license agreements
with this company. Such engagement of outside legal counsel was pursuant Resolution No.
13578, passed and approved December 12, 2016. The proposed license agreement is the result
of such negotiations.
BACKGROUND:
Mobilitie is a global provider of wireless solutions that was founded in 2003 in Newport Beach,
California. Mobilitie designs, builds, and operates networks and infrastructure to deliver coverage
to clients.
Mobilitie’s current project is to deploy small cell facilities for Sprint across the United States to
address the ever-increasing mobile data demands. Mobilitie will be placing slimline facilities in
the City to boost network capacity and reduce or eliminate “dead zones” where service typically
fails. These facilities shall be collocated on existing poles or shall consist of new poles with
attachments, including a pole-top antenna and a remote radio unit. The pole is low-powered,
compact, and requires no ground equipment. With the installation of these small cell facilities,
Sprint will be able to provide the necessary capacity in its network to better service the mobile
data usage of Pueblo’s residents, business, and customers. Mobilitie anticipates the following
benefits to the City:
(a) Reduce the need to tear up streets due to minimal trenching or excavations.
(b) Easily upgradable technology to accommodate future technology needs.
(c) Reduces or eliminates the need for obtrusive wireless towers that have large
footprints.
(d) State of the art infrastructure investment in the community at no cost to tax-
payers.
(e) Increased access to wireless data to meet consumer demands and needs.
(f) Local job creation through engagement of local Certified General Contractors.
(g) Better consumer experiences and economic growth.
Pursuant to the License Agreement, new poles will only be permitted where no reasonable
opportunity for attachment exists. Restrictions, limitations and procedures for new pole installation
are set forth in Article VI of the License Agreement and include but are not limited to the following
limitations which can only be changed upon approval of the Planning and Zoning Commission
pursuant to a use by review:
(a) Facilities shall be no higher than the maximum allowable height of a building
permitted within the zoning district where it shall be located, or no more than 5 feet higher
than the maximum allowable height of utility poles in that district, whichever is greater. If
no standard exists for the maximum allowable height of a utility pole in a zoning district
then, for the purposes of this requirement, the maximum allowable utility pole height shall
be the height of the tallest utility pole in a 600 foot radius of the proposed facility location
or 30 feet, whichever is greater.
(b) Facilities shall not be less than 24 inches from the face of the curb of the Right of
Way.
(c) Any newly deployed stand-alone pole shall have a minimum separation distance
from other poles on which Wireless Communications Equipment is installed of at least 600
feet.
(d) Design standards shall be applicable including prohibition on aerial wire feed, no
accessory ground equipment, and poles not to exceed 24 inches in diameter.
FINANCIAL IMPLICATIONS:
Licensee will be obligated to pay all applicable sales and use taxes, E-911 fees and occupation
taxes.
BOARD/COMMISSION RECOMMENDATION:
Not applicable to this Resolution.
STAKEHOLDER PROCESS:
Not applicable to this Resolution.
ALTERNATIVES:
Pursuant to federal and state law, the City is prohibited from discriminating among or granting
preferences to competing telecommunication providers in the issuance of licenses and from
creating or erecting any unreasonable requirements for entry to the City right of way. As such,
the City’s alternatives are limited to proposing amendments to the proposed license agreement
that are consistent with the foregoing limitations.
RECOMMENDATION:
City administration recommends approval of this Resolution.
Attachments:
License Agreement
Final 6-14-17
LICENSE AGREEMENT
THIS AGREEMENT ("License Agreement") is entered into this /044
day of
i,A L y , 2017, by and between the City of Pueblo, a Municipal Corporation(hereinafter
referred to as "City"), and Mobilitie LLC, a Nevada limited liability company (hereinafter
referred to as "Licensee"). City and Licensee are at times collectively referred to hereinafter as
the"Parties" or individually as the "Party".
WITNESSETH:
WHEREAS, City is a Colorado home rule city organized and existing under and by
virtue of Article XX of the Colorado Constitution and possesses plenary power and authority
over the use and occupation of the public rights of way within its corporate boundaries; and
WHEREAS, Licensee represents and warrants that it has all authority required under law
to provide telecommunications services within the State of Colorado, including within the
geographical boundaries of the City of Pueblo; and
WHEREAS, Licensee desires to install, own, maintain, or operate facilities for a
telecommunications system upon or within certain public rights of way with the corporate
boundaries of the City; and
WHEREAS, City is authorized under the constitution and laws of the State of Colorado
to grant consent to telecommunication providers to occupy the public rights of way for such
purposes; provided, however, the same shall not be, nor constitute the granting of, a local
franchise under Article 16 of the City's Charter, nor shall same ever become or ripen into any
franchise; and
WHEREAS, the City and Licensee have agreed to be bound by the terms and conditions
set forth herein which shall govern Licensee's use of the public rights of way;
NOW, THEREFORE, in consideration of the foregoing recitals and the terms, conditions
and mutual promises set forth herein, the Parties agree as follows:
ARTICLE I - DEFINITIONS
As used in this License Agreement, the following terms, phrases, and words shall be
ascribed the following meanings, unless the context indicates otherwise. As used in this License
Agreement, the word "shall" is mandatory, and the word "may" is permissive. Words not
defined herein shall be given their common and ordinary meanings, consistent with the context
in which such words are used and the purposes of this License Agreement.
1
1. "Telecommunications Act" shall mean the Telecommunications Act of 1996 (47
U.S.C. §151, et sec.), as amended.
2. "Facilities" means all physical components used to provide telecommunications
services which are located, or become located pursuant to this License Agreement, within the
City and are reasonably necessary, useful or convenient to provide telecommunications services
within the territorial boundaries of the City, including without limitation, antenna, poles, wires,
cables, pipes, underground conduits, ducts, manholes, vaults, fiber optic cables and devices,
switches, equipment boxes and sheds and other structures and appurtenances.
3. "Account" shall mean each telephone or telecommunications access line or
twisted pair equivalent provided by or on behalf of Licensee, if Licensee provides any type of
local exchange service, at a customer's premises over which the customer may send or receive
any telephone, telegraph, fax, data, video or other similar telecommunications signals; except
that "Account" shall not include any customer line used solely for receipt of cable television
programming. Provision of a T1 or DSI line furnished by Licensee to a customer which is
connected to switched access service or local exchange service shall be counted as twenty-four
(24) accounts; provision of a T3/DS3 shall be counted as six hundred seventy-two (672)
accounts.
4. "Jurisdiction" shall mean (a) within the corporate boundaries of the City of
Pueblo as now or hereafter constituted, (b) at, upon, under or across the Pueblo Municipal
Airport ("Airport") and Pueblo Municipal Airport Industrial Park ("Industrial Park"), and (c) all
highways, streets, roads and other rights of way between and connecting the City of Pueblo and
the Airport and/or Industrial Park where Facilities are located.
5. "Rights of Way" shall mean City streets, roads, alleys, sidewalk areas and other
dedicated rights of way within the Jurisdiction, together with dedicated utility easements within
the Jurisdiction and easements deeded to the City for utility purposes, and including state
highways and highways which are part of the federal interstate highway system. The term shall
not include any other property owned or leased by the City for other public use.
6. "Telephone Utility" shall mean every telecommunications provider that provides
telecommunications service as the latter term is defined in Section 14-4-21(40) of the Pueblo
Municipal Code.
7. "Telecommunications service" shall have the meaning set forth in Section 14-4-
21(40) of the Pueblo Municipal Code.
8. "PMC" shall mean the Pueblo Municipal Code, as amended, and as same may be
amended in the future.
9. "Wireless Communication Equipment"means the radios, antenna, transmitters
and related wires, fiber optic cables, ancillary equipment, and other wireless transmission
2
devices of Licensee's Facilities which are attached, mounted, or installed on a pole located in
Rights of Way and used or useful for the provision of the telecommunication services of the
Licensee.
10. "Existing Utility/Telecommunication Poles" means currently existing poles
located in the Rights of Way and maintained by an authorized utility under a franchise agreement
with City or by a telecommunication provider under a license agreement with City.
ARTICLE II - CONSENT GRANTED
1. Subject to Licensee's compliance at all times with all of the terms and conditions
of this License Agreement, all of the ordinances referenced herein, all applicable local, state and
federal laws, and further subject to the City's lawful exercise of its police power (including, but
not limited to, zoning, subdivision, permit and building code requirements, and other regulations
promulgated by the City) and the City's prior and superior right to usage for municipal purposes,
City hereby grants to Licensee, insofar as it has or may have the requisite power and authority to
do so, a non-exclusive license to make reasonable use of the Rights of Way to construct, install,
operate and maintain Licensee's Facilities, including the right to attach, operate, maintain, and
replace Wireless Communication Equipment on poles within the City to and for the benefit of
the City and the inhabitants of the City; provided, however, that with respect to state highways,
Licensee must separately obtain consent from the Colorado Department of Transportation. This
license shall extend to all areas of the City as it is now constituted, and to additional areas as the
City may increase in size by annexation or otherwise.
2. The license granted herein to make reasonable use of the Rights of Way shall not
be deemed to be a franchise, nor an exclusive license or right, and the City reserves the right to
make or grant a similar use of the Rights of Way to any other person or persons, including one or
more other telecommunications providers.
3. The City retains the following rights in regard to this license:
(a) To revoke the license and consent hereby granted pursuant to Article
XII(1) for Licensee's material breach of the provisions hereof;
(b) To use, control and regulate the use of the City streets, roads, easements,
other public places and the Rights of Way, and the space above and beneath the same;
and
(c) To require the removal or relocation of any of the Facilities from the
Rights of Way if necessary or desirable, in the reasonable judgment of the City, for any
public or municipal purpose or project.
ARTICLE III—SCOPE
The conditional license and consent granted by this License Agreement confers only the
3
right to make reasonable use of the Rights of Way for Licensee's provision of local exchange
service, interexchange service, or other telecommunications services, and it is expressly
conditioned that the Licensee shall not operate a private telecommunications network, nor
operate as a "cable operator" as that term is defined under federal law (47 U.S.C. §522(5)), nor
shall it provide or offer to provide "cable services" as that term as defined under federal law (47
U.S.C. §522(6)), without proper local, state and federal authorization, as required by law.
ARTICLE IV- OCCUPATION TAX&E911 SURCHARGES
1. Licensee understands and acknowledges that City had heretofore adopted
Ordinance No. 4267 in December 1976 imposing upon all Telephone Utilities operating within
the City, and effective January 1, 1977, an occupation tax as stated in said Ordinance. To the
extent Licensee provides local exchange services, whether directly or through resale, Licensee
agrees to be bound by and comply with said Ordinance, including payment of the tax in an
amount equal to $6.00 per annum for each Account, payable quarterly in equal installments, to
the extent applicable to Licensee. To the extent that Licensee provides local exchange services,
Licensee hereby expressly agrees that it is and constitutes a Telephone Utility within the
meaning of Ordinance No. 4267, and Licensee irrevocably waives and relinquishes any right it
has or may have to claim or assert that said Ordinance is invalid under law or should not be
applied to Licensee, including, without limitation, any claim that said Ordinance violates any
provision of state law or the Telecommunications Act.
2. The City has by Ordinance Nos. 6644, 7471 and 8063 imposed an emergency
telephone charge ("E911 Charge") of seventy cents ($0.70) per month per exchange access
facility, wireless communications access and interconnected voice-over-internet-protocol service
provided within the Jurisdiction, as authorized by §29-11-100.5, et seq., C.R.S. Licensee agrees
to collect the E911 Charge from its customers that qualify as "service users" under §29-11-
101(8), C.R.S. to the extent required pursuant to §29-11-102(3), C.R.S. and promptly remit same
monthly to City as provided by §29-11-103(1), C.R.S. to the extent that Licensee provides a
service subject to such E911 Charge.
ARTICLE V- SALES AND USE TAXES
1. Licensee agrees to obtain a sales and use tax license from the City to the extent
required by applicable law and to comply with all provisions of Title XIV of the Pueblo
Municipal Code relating to sales and use taxes.
2. Licensee acknowledges and agrees that the sale of telephone and telegraph
services to customers within the City, including the provision of interstate telephone access
service and interlata access service, may be taxable by City pursuant to §14-4-61(3), PMC, and,
to the extent that Licensee provides telephone or telegraph services to end users in the City,
Licensee shall collect such taxes from these customers and promptly remit same to the City in
accordance with Title XIV, PMC.
4
ARTICLE VI - USE OF RIGHTS OF WAY
1. Facilities shall be located, installed and maintained so that none of the Facilities
endanger the lives, health or safety of persons, or interfere with any public improvements of the
City or other governmental entities (including without limitation any storm water, sanitary sewer
or water utilities or enterprises or traffic signal system, public safety radio system or other City
communication infrastructure) have in place or may deem proper to make, nor shall the location,
installation or maintenance of the Facilities hinder or obstruct the use of the streets or other
public ways for their public purposes, including but not limited to vehicular and pedestrian
traffic. All Facilities shall be so located as to cause minimum interference with the rights and
reasonable convenience of property owners of property which adjoins any Right of Way.
2. All proposed new Facilities shall comply with the following criteria:
(a) Wireless Communications Equipment owned or controlled by the
Licensee shall be located in accordance with these preferences: (i) on poles owned by
third parties under the terms of a fully executed pole attachment agreement with the
owner of such poles, (ii) on street lighting poles approved for street lighting purposes by
the City and that are purchased by the Licensee and assigned to the City, or (iii) in
instances where no other reasonable opportunity for attachment exists, on the Licensee's
proprietary poles.
(b) Facilities shall be no higher than the maximum allowable height of a
building permitted within the zoning district where it shall be located, or no more than 5
feet higher than the maximum allowable height of utility poles in that district, whichever
is greater. If no standard exists for the maximum allowable height of a utility pole in a
zoning district then, for the purposes of this requirement, the maximum allowable utility
pole height shall be the height of the tallest utility pole in a 600 foot radius of the
proposed facility location or 30 feet, whichever is greater.
(c) Where Wireless Communications Equipment is constructed on an existing
structure, it shall extend no more than five feet higher than the existing structure, except
that with respect to existing electric distribution poles, Licensee may extend the
distribution poles up to five feet and the Wireless Communications Equipment
constructed on such distribution poles may extend up to an additional five feet.
(d) Facilities shall not be less than 24 inches from the face of the curb of the
Right of Way.
(e) Facilities shall not create intersection sight obstruction, per Pueblo
Municipal Code Section 15-03.
(f) Any newly deployed stand-alone pole shall have a minimum separation
distance from other poles on which Wireless Communications Equipment is installed of
at least 600 feet.
5
(g) Excavation permit (with a modified fee per pole) is required and subject to
review by Director of Public Works or designee.
(h) Design Standards for newly deployed Facilities:
i. Aerial wired feeds to Facilities, including power and other
communications, are prohibited;
ii. No accessory equipment or fencing is allowed to be deployed at
ground level;
iii. The deployment of new wooden poles for Facilities is prohibited;
iv. All Facilities, including standalone poles, shall be painted a City
approved black;
v. Poles shall not exceed 24 inches in diameter.
(i) If the Licensee requires a variance from the above criteria regarding the
(b) height of Facilities; (c) height of Wireless Communications Equipment; (d) distances
from the face of the curb; (I) minimum separation distance between Facilities and/or
Wireless Communications Equipment; or (h) design standards for Facilities, Licensee
shall file a petition for "use by review" with and said petition will be determined by the
Planning and Zoning Commission pursuant to Pueblo Municipal Code Sections 17-5-33
and 17-4-65- et seq. The "use by review" petition shall not be subject to the posting
requirements of Section 17-5-33(2). In addition, the notice of public hearing
requirements of Section 17-5-33(2) shall be modified as to require the mailing of the
owners of real property lying within three hundred (300)feet of the exterior boundaries
of the proposed facility by first class mail, with postage prepaid.
(j) The Licensee shall notify the City of its intent to collocate its Wireless
Communications Equipment with an existing structure in the Right-of-Way, including
but not limited to, streetlights owned by an electric utility.
3. Prior to the deployment of any new pole within the City, Licensee shall furnish to
the City the general schematic plans for its Facilities, including system route maps, renderings of
equipment boxes and structures, engineering, traffic control, and landscaping plans. In addition,
the Licensee shall assess and report on the impact of its proposed construction on the City
environment. Such plans and reports may be reviewed by the City to ensure, (a) that all
applicable laws, including building and zoning codes and air and water pollution regulations, are
complied with, (b) that aesthetic and good planning principles have been given due
consideration, and (c) that adverse impact on the environment has been minimized including
specifically that the Wireless Communication Equipment to the extent commercially reasonable
uses material, color, texture and screening that will blend the Wireless Communication
6
Equipment into the surrounding setting. The Licensee shall comply with all regulatory
requirements of the City lawfully binding on the Licensee and shall incorporate all other
reasonable changes to its plans requested by the City.
4. Not less than thirty (30) days prior to construction of any Facilities within the
Rights of Way at any specific location, Licensee shall furnish the City's Director of Public
Works with (a) detailed plans for such Facilities including detailed location drawings and final
architectural, engineering, traffic control and landscaping plans, and (b) written authorization of
the owner of any Existing Utility/Telecommunication Pole upon which any Wireless
Communication Equipment is to be located authorizing such location in conformance with the
plans submitted. Prior to commencing construction, Licensee shall: (w) obtain written approval
of the Director of Public Works of the construction plans; (x) procure appropriate excavation
permits pursuant to Chapter 6 of Title XII, PMC, and permits required by Chapter 3 of Title XII,
PMC, or permits required pursuant to any similar ordinance adopted by City in the future
(collectively, "Permits"); (y) pay all fees associated with such permits, and (z) comply with all
requirements of said Chapters 3 and 6 of Title XII, the terms of said Permits, and the City's
Standard Construction Specifications and Standard Details dated June 9, 1997 or as subsequently
revised.
5. All construction, excavation, maintenance and repair work done by Licensee shall
be done in a workmanlike and expeditious manner which minimizes the inconvenience to the
City, the general public and individuals. Licensee shall be liable for any damage to the City or
City-owned property caused by Licensee's failure to act in a timely manner. All such
construction, excavation, maintenance and repair work done by Licensee shall comply with all
applicable codes of the City and the State of Colorado, and Licensee shall be responsible for
obtaining all applicable Permits and licenses. Licensee shall have the right to replace, repair, add
or otherwise modify its utilities, equipment, antennas and/or conduits or any portion thereof and
the frequencies over which the equipment operates, whether the equipment, antennas, conduits or
frequencies are specified or not on any exhibit attached to a Permit during the Term, provided,
however, that modifications shall not be subject to additional permitting to the extent that (a)
such modification to the attachment involves only substitution of internal components, and does
not result in any change to the external appearance, dimensions, or weight of the attachment, as
approved by the City; (b) such modification involves replacement of the attachment with an
attachment that is the same, or smaller in weight and dimensions as the approved attachment; and
(c) such modification will not impact pedestrian or vehicular traffic.
6. The City shall have the right to inspect all construction or excavation work to
insure compliance with applicable codes and permits, and may order Licensee to perform
corrective work. All public and private property disturbed by Licensee's activities shall be
promptly restored by Licensee at its expense to substantially its former condition, subject to
reasonable inspection by the City's Director of Public Works or his designee and compliance by
Licensee with reasonable remedial action required by said official pursuant to the inspection.
Licensee shall be liable to City for the full cost of restoring any public property not promptly
remedied by Licensee as reasonably required by said official.
7
7. The installation, maintenance, renovation and replacement of Facilities by
Licensee shall be subject to regulation by City with respect to (a) the location of Facilities in or
upon the streets, alleys and dedicated easements, (b) the disturbance and reconstruction of
pavement, sidewalks, and surface of streets, alleys, dedicated easements and driveways, (c) the
timing and scheduling of work, and (d) the temporary closure of portions of streets and alleys.
All Facilities shall be designed and installed so as to cause a minimal amount of interference
with public property, water mains, sewer mains, electric and natural gas facilities, street lights,
traffic signals, and all other municipal or authorized public use of the Rights of Way. The City's
Director of Public Works may direct and require Licensee to locate its Facilities so as to
minimize radio frequency interference with other facilities or utilities. Licensee shall install and
maintain its Facilities in such manner as to minimize interference with trees, natural features and
vegetation. Whenever feasible, Licensee shall enter into pole-sharing and conduit-sharing
agreements with third parties in order to co-locate its wires and cables upon poles or within
conduit of other telecommunications providers or utilities.
8. Licensee shall, upon (90) ninety days' notice and at its sole cost and expense,
remove, locate and relocate its Facilities in, on, over or under any Rights of Way in such manner
as City may at any time require for the purpose of facilitating the construction, reconstruction,
maintenance, repair, or change in grade of any street, sidewalk, public improvement or City
project, or for the purpose of promoting the efficient operation of any such public improvement
or project, or for the purpose of facilitating the vacation and/or redevelopment of Right of Way
by the City. In the event Licensee fails to act within such ninety(90) day notice period, the City
may cause Licensee's Facilities to be relocated, and Licensee shall be liable to City for the costs
thereof.
9. Licensee's Facilities located within Rights of Way may be located underground to
the extent not inconsistent with any applicable law. Consistent with Section VI(2)(a) of this
License Agreement, in locations where wires or cables of franchisees of City or of authorized
telecommunication providers are presently located above ground, the Director of Public Works
will allow Licensee's Wireless Communication Equipment to also be located above ground,
including upon Existing Utility/Telecommunication Poles. Thereafter, and notwithstanding that
any such authorization had been given, should the City subsequently determine for any area of
the City that telephone or telecommunications wires, cable television cables or electric utility
wires located above-ground shall be relocated, including underground relocation, Licensee shall,
upon ninety (90) days' notice, at its sole cost and expense, relocate its Facilities in cooperation
with other affected interests and remove its Wireless Communication Equipment from any pole
which is required to be removed as a result of the relocation. In the event Licensee fails to act
within a reasonable allocated time, the City may cause Licensee's Facilities to be relocated, and
Licensee shall be liable to City for the costs thereof Should the foregoing occur, then, to the
extent not inconsistent with any applicable law, the City shall authorize Licensee to erect and
maintain a new pole or other reasonable structure for the placement of the Wireless
Communication Equipment in the Right of Way.
10. After execution of this License Agreement, Licensee shall join and associate with
the notification association of owners and operators of underground facilities in accordance with
8
the requirements of Article 1.5 of Title 9, Colorado Revised Statutes. Prior to undertaking any
excavation within the Rights of Way, Licensee shall comply with the notice requirements of said
Article.
ARTICLE VII - ADDITIONAL CITY REGULATION
1. The City expressly reserves its right and duty to adopt, from time to time, in
addition to the provisions herein contained, such charter provisions, ordinances and rules and
regulations as may be deemed necessary by the City to promote the health, safety and welfare of
its inhabitants and their property.
2. Notwithstanding anything in this License Agreement to the contrary, Licensee
acknowledges that City is planning to develop a new telecommunications policy which will be
implemented through one or more ordinances or resolutions to be adopted by City Council of
City, and/or through regulations to be adopted by Departments of the City. This License is
subject to the terms and conditions of all such ordinances, resolutions, and regulations.
3. If, during the term of this License Agreement, City enacts an ordinance
concerning the use of Rights of Way which requires compensation for the use of the Rights of
Way from any class of telecommunications providers on a competitively neutral and
nondiscriminatory basis within such class, then Licensee shall, in accordance with the terms of
such ordinance, pay such compensation.
ARTICLE VIII - COORDINATION AND CONDUIT/POLE SHARING
1. In order to minimize disruption to vehicular traffic and inconvenience to the
public, and to enable the limited width of Rights of Way to be apportioned among all utilities,
telecommunications providers and other interests needing to locate or maintain facilities in the
Rights of Way for the benefit of the public, it is imperative that pole sharing and conduit sharing
be encouraged to the greatest extent possible. In furtherance of such purposes, Licensee agrees
that it shall reasonably cooperate with City, authorized utilities and other local exchange carriers
in placing conduit within the Rights of Way and in sharing unused space within underground
conduits owned by Licensee to the extent required by applicable law, and upon poles or other
above ground facilities owned by Licensee.
2. Whenever the Licensee intends to install new underground conduit or replace
existing underground conduit in a build greater than 500 feet in length, Licensee shall, whenever
feasible, provide City and all utilities, cable television franchisees, and local exchange carriers
authorized to use the Rights of Way, with sixty (60) days' advance written notice in order to
permit the additional contemporaneous installation of conduit by City, and such utilities, cable
television franchisees and local exchange carriers. If City desires additional conduit installed, it
will so notify the Licensee, and the City shall be responsible for the additional incremental
expense for installing such additional conduit. If a utility, cable television franchisee or
exchange carrier desires additional conduit installed, it will so notify the Licensee in writing at
least ten (10) days prior to the proposed construction date, and such Party requesting the
9
additional conduit shall be responsible for a pro-rata expense for installing such additional
conduit. This section is intended to maximize the coordination of facilities located within Rights
of Way, and is not intended to govern routine connections of customers to installed network not
involving significant line extension nor other excavations of limited scope.
3. Notwithstanding anything to the contrary in paragraph 2 of this Article, in order to
minimize disruption to the public and enable use of the public Rights of Way for public
purposes, in connection with any installation of underground conduit by Licensee, City may
reasonably request Licensee to install one additional conduit for exclusive use by City for public
and municipal purposes. In any such case, Licensee shall install the conduit as reasonably
requested and the City shall reimburse Licensee only for the cost of the conduit and associated
handholes and pull boxes for the conduit, and for the additional incremental expense for
installing such additional conduit, handholes, and pullboxes.
ARTICLE IX—INDEMNIFICATION
1. Licensee shall install, construct, maintain and operate its telecommunications
system in a safe manner providing reasonable protection against injury or damage to any and all
persons or property. Licensee specifically agrees to indemnify, defend and hold City harmless
from all claims, costs, demands, suits, costs of defense and judgments which are caused by, in
whole or in part, Licensee's negligent acts or omissions in connection with this License
Agreement or breach of this License Agreement, except to the extent such damages or penalties
result from the negligence or intentional or willful and wanton misconduct of the City. City shall
not be liable for, and Licensee shall indemnify, defend and hold the City harmless from, all costs,
damages and claims which are caused by delay by Licensee in performing its obligations
hereunder, for any cause whatsoever, except as a result of the negligence or intentional or willful
and wanton misconduct of the City. To the extent that Licensee fails to perform its
indemnification obligations set forth herein, Licensee agrees to pay all reasonable expenses of
the City incurred by the City in defending itself with regard to any such damages, claims or
penalties, including all out-of-pocket expenses, reasonable attorney' fees, and the reasonable
value of any services rendered by the City Attorney, his assistants, or any employees of the City.
2. The City will provide notice to the Licensee of the pendency of any claim or
action against the City arising out of the operations of the Licensee, the exercise by the Licensee
of its rights under this License Agreement or the performance thereof by the Licensee. The
Licensee shall thereafter be required to appear and defend any such claim or action. Nothing
herein stated shall limit the Licensee's obligation of indemnification of the City under this
Article.
ARTICLE X—INSURANCE
Prior to commencement of any installation of Facilities under this License Agreement,
Licensee shall procure and thereafter continuously maintain, for as long as this License
Agreement remains in effect, at Licensee's expense, Commercial General Liability ("CGL")
insurance written on ISO form CG 00 01 01 96, or a substitute form providing equivalent
10
coverage, with a limit of not less than $2 Million per occurrence, covering liability arising from
premises, operations, independent contractors, personal injury, products completed operations,
and liability assumed under an insured contract, on an occurrence basis. Under the terms of the
required CGL policy, this License Agreement shall be defined as an insured contract. The policy
shall identify the City as an additional insured, shall contain a waiver of right of subrogation
against City and shall have all necessary endorsements to provide coverage without exclusion for
explosion, collapse and underground property damage hazards. A certificate of insurance shall
be filed with the City's Director of Finance prior to commencement of installation of Facilities,
which evidences compliance with the policy requirements stated above and provides for thirty
(30) days' prior written notice to City prior to cancellation or material change of any insurance
referred to therein. In the event the certificate states that it confers no rights upon the certificate
holder, the City may require Licensee to furnish a complete copy of the policy including all
declarations and endorsements.
ARTICLE XI -TERM
Unless sooner terminated as provided herein, the term of this License Agreement shall be
for a period of five (5) years from and after the date of the License Agreement, provided,
however, that unless Licensee provides written notice to the City no less than ninety (90) days
prior to expiration of the Term that the Licensee will not renew the Term, the Term will
automatically renew for up to three (3) additional five (5) year periods upon the same terms and
conditions set forth in this License Agreement.
ARTICLE XII - REMEDIES, TERMINATION, REMOVAL
1. In the event of any material breach of the terms of this License Agreement by
either Party including breach of any representation or warranty of Licensee, the other Party shall
have the right to obtain one or more of the following remedies, which are expressly agreed to be
cumulative, and the exercise of any one (1) or more of them shall not be dependent upon the
exercise of any other remedy, nor does the exercise of any one or more of them constitute any
bar or limitation to the exercise of any other: (a) specific performance or injunctive relief, (b)
monetary damages, and (c) termination. The non-breaching Party may not maintain any action
or effect any remedies for default against the breaching Party unless and until the breaching
Party has failed to cure the breach within the time periods provided in Paragraph 2 of this
Article. In the event a Party is required to commence an action to enforce its rights under this
License Agreement or to obtain remedies provided above and it substantially prevails therein, the
Party shall be entitled to recover its costs, including reasonable attorneys' fees and expert
witness fees.
2. Before terminating the License Agreement for cause on account of any material
breach by the other Party, the non-breaching Party shall provide the breaching Party with thirty
(30) days' advanced written notice of the default and afford the breaching Party a reasonable
period in which to cure the breach, but not less than thirty(30) days.
3. In the event Licensee abandons the telecommunications system installed under the
11
terms of this License Agreement or a certain part thereof, or in the event the term of this License
Agreement expires, or the License Agreement is terminated or is canceled for any reason, then
Licensee shall within ninety (90) days of the abandonment, expiration, termination, or
cancellation, remove its telecommunications system, or the abandoned portions thereof in the
case of a partial abandonment, at its expense. City agrees and acknowledges that Licensee's
equipment, conduits, fixtures and personal property shall remain Licensee's personal property,
and Licensee shall have the right to remove the same at any time during the Term, whether or not
said items are considered fixtures and attachments to real property under applicable laws. As an
alternative to removal, if mutually agreed to by Licensee and the City, the ownership of the
telecommunications system (or abandoned portions) may be transferred to the City. Upon the
removal or transfer of ownership of Licensee's telecommunications system to the City, all
obligations and liabilities of Licensee under this License Agreement in connection with the
portion of the telecommunications system so removed or transferred to the City shall terminate.
4. Licensee may cancel this License Agreement at any time, as described below,
upon ninety (90) days' written notice to the City, subject to the indemnification requirements of
this License Agreement, the removal provisions set forth in Section 3 above, and any other
provisions that survive the termination of this License Agreement.
5. No Party shall be liable in connection with this License Agreement for
consequential, special, indirect, incidental, or punitive damages (including lost revenues, loss of
equipment, interruption, loss of service, or loss of data) for any cause of action, whether in
contract, tort, or otherwise, even if the Party was or should have been aware of the possibility of
these damages, whether under theory of contract, tort (including negligence), strict liability, or
otherwise. The forgoing limitation of liability shall not apply to any indemnification obligations
pursuant to Article 9.
ARTICLE XIII -NOTICES
Except as otherwise provided herein, notice under this License Agreement shall be
deemed sufficient if provided in writing and mailed or delivered as follows:
If to the City: City Manager
1 City Hall Place
Pueblo, CO 81003
with a copy to: Director of Public Works
211 E. "D" Street
Pueblo, CO 81003
If to Licensee: Mobilitie, LLC
Attn: Legal Department
660 Newport Center Drive, Suite 200
Newport Beach, CA 92660
12
with a copy to: Mobilitie, LLC
Attn: Asset Management
660 Newport Center Drive, Suite 200
Newport Beach, CA 92660
ARTICLE XIV -EFFECT OF MORE FAVORABLE CHANGES OF LAW AND LICENSE
AGREEMENTS
1. In the event that any telecommunications services provider offering
telecommunications services for a fee to the public, or to such classes of users as to be
effectively available to the public, is granted consent to use the City's Rights of Way pursuant to
terms and conditions which, if applied to Licensee, would be more favorable than those included
herein, Licensee shall have the option to renegotiate with City with respect to such terms and
conditions.
2. If a Change of Law that provides Licensee with the right to access infrastructure
or Rights of Way of the City pursuant to fees or charges that are lower than the fees set forth in
the License Agreement or pursuant to terms and conditions that are determined by Licensee, in
its reasonable discretion, to be preferable to the terms and conditions set forth in the License
Agreement, Licensee shall deliver to City within 60 days of the effective date of the Change of
Law a notice identifying the Change of Law and requesting to amend the License Agreement.
Within 90 days following the receipt of such notice by City, the Parties shall negotiate an
amendment to the License Agreement that aligns the fees and Licensee's rights under the
License Agreement with the fees and rights the City is required to provide under the Change of
Law. If the Parties fail to execute such an amendment within such 90-day period, then all fees
set forth in the License Agreement shall automatically be reduced as of the date of effectiveness
of the Change of Law, without further action by either Party, to an amount that is consistent with
City's obligations to Licensee under the Change of Law. To the extent that this results in a
retroactive reduction in the fees previously paid by Licensee to City under the License
Agreement, then Licensee may withhold an amount of fees owed to City on a going forward
basis until such time as Licensee has recouped the retroactive overpayment. For purposes of the
paragraph, the term "Change of Law" means the coming into effect after the effective date of a
federal, state, or local statute, rule, regulation, ordinance, decree, directive, or binding policy or
any applicable judgment of a relevant court of law or regulatory agency which changes the
interpretation of any of the foregoing.
ARTICLE XV - SUCCESSORS AND ASSIGNS
1. This License Agreement shall inure to the benefit of and be binding upon the
Parties hereto and their respective successors and assigns. No provision of this License
Agreement shall confer rights or benefits upon any person not a party hereto.
2. This License Agreement may be sold, assigned or transferred by Licensee without
any approval or consent of the City to an entity controlling, controlled by or under the same
13
common control as Licensee. Thirty days prior to the sale, assignment, or transfer of this License
Agreement for which prior City approval is not hereunder required, Licensee shall provide
reasonable notice to City demonstrating that the assignee or transferee has fmancial responsibility
and agrees in writing to comply with all of the provisions of this License Agreement. As to other
parties, this License Agreement may not be sold, assigned, transferred or disposed of, either in
whole or in part, either by involuntary sale or by voluntary sale, merger or consolidation, without
the written consent of the City Council, acting by ordinance/resolution, which consent shall not be
unreasonably withheld, delayed or conditioned. The City shall act by ordinance or resolution on
the request within one hundred twenty (120) days of the request, provided it has received all
information required by this License Agreement and/or by applicable law. The City and the
Licensee may by mutual agreement, at any time, extend the 120-day period. Subject to the
foregoing, if the City fails to render a final decision on the request within one hundred twenty
(120) days, such request shall be deemed granted unless the requesting Party and the City agree to
an extension of time. No change of stock ownership, partnership interest or control of Licensee
or transfer upon partnership or corporate dissolution of Licensee shall constitute an assignment
hereunder, unless it is to an entity that is not controlling, controlled by or under the same
common control as Licensee. Notwithstanding the foregoing or anything in this License
Agreement to the contrary, Licensee may provide capacity across and use of Licensee's
communications facilities to third parties without consent from or notice to the City, so long as
Licensee retains control over and remains solely responsible for, such communications facilities.
The use of Licensee's communications facilities by third parties (including, but not limited to,
leases of dark fiber) that involves no additional attachment is not considered a sublicense to a
third party subject to the provisions of this paragraph.
ARTICLE XVI - SIGNATURES
The persons signing this License Agreement on behalf of Licensee represent and warrant
that such persons and Licensee have the requisite power and authority to enter into, execute and
deliver this License Agreement and that this License Agreement is a valid and legally binding
obligation of Licensee enforceable against Licensee in accordance with its terms.
[Signatures on next page.]
14
[Signature page to License Agreement.]
IN WITNESS WHEREOF, Licensee and the City have executed this License Agreement
as of the date first above written and under the laws of the State of Colorado.
CITY OF P :
ATTEST: A 44 . ic' . "orporation
Ci Clerk 're . = : "" ouncil
[SEAL]
LICENSEE: MOBILITIE, LLC
ATTEST: /'''I
Oa;(IQ"
By
Title: (..;Ce A Title:Qp, C .C,a f.„
15