HomeMy WebLinkAboutMEMORANDUM OF UNDERSTANDING BETWEEN AUGUSTA, GEORGIA AND TOWER CLOUD, INC. FOR TELECOMMUNICATIONS SERVICES MEMORANDUM OF UNDERSTANDING
between
AUGUSTA, GEORGIA
and
Tower Cloud, Inc.
This Memorandum of Understanding between Augusta, Georgia, a political subdivision of
the State of Georgia (hereinafter referred to as "Augusta") and Tower Cloud, Inc., authorized to
do business in the State of Georgia (hereirTfter referred to as Tower Cloud, Inc.
is entered into as of the rill& day of Mareh , 2017.
WHEREAS, Tower Cloud, Inc. is a provider of telecommunication services as authorized
in its regulatory certificate from the Georgia Public Service Commission; and
Whereas, Tower Cloud, Inc. has received regulatory authorizations from the Georgia
Public Service Commission for Toll Lines (Certificate No. X-1085) and Local Exchange
Telecommunications Services (Certificate No. L-0536); and.
Whereas, Tower Cloud, Inc. may provide any telecommunications services authorized in
its regulatory authorization from the Georgia Public Service Commission, but initially intends to
provide private line service in the Augusta, Georgia. More specifically, Tower Cloud, Inc. carries
voice and data traffic handed off to it by, primarily, wireless providers (such as carriers, like
cellular and PCS, as well as non-carriers, like Wi-Fi Internet access providers). In some
jurisdictions Tower Cloud, Inc. carries traffic via fiber optic lines from antennas located on utility
poles in the public way to a central switching-like location, and, from there, either back to another
antenna or out to the public switched telephone network or Internet; and
Whereas, Tower Cloud, Inc., has filed its Registration Information required under
O.C.G.A. § 46-5-1 et seq. with Augusta by delivering same to the Administrator of Augusta on
the 17th day of October, 2016; and
Whereas, Tower Cloud, Inc. has complied with the requirements of O.C.G.A. § 46-5-1 et
seq. to the satisfaction of Augusta by submitting the following information:
• Tower Cloud, Inc., correct name, address, and telephone number of its principal
office and local agent;
• Proof of certification from the Georgia Public Service Commission to Tower
Cloud, Inc., to provide telecommunications services in this state;
• Proof of insurance or self-insurance of Tower Cloud, Inc., adequate to defend and
cover claims of third parties and of municipal authorities;
• A description of the Tower Cloud, Inc., service area, which is deemed adequate to
allow Augusta to respond to subscriber inquiries.
• A description of the services to be provided by Tower Cloud, Inc.
• An affirmative declaration by Tower Cloud, Inc. that it shall comply with all
applicable federal, state and local laws and regulations, including municipal ordinances and
regulations, regarding the placement of facilities in the public rights of way that are reasonable,
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nondiscriminatory, and applicable to all users of the public rights of way, including the
requirements of Chapter 9 of Title 25, the "Georgia Utility Facility Protection Act"; and
Whereas, in connection with its registration for authorization to place telecommunications
facilities within, on and above the public right of ways located in Augusta, Georgia, the parties
wish to set down their understanding as to certain matters.
1. The parties agree that Tower Cloud,Inc.will comply with any future modifications
to O.C.G.A. § 46-5-1 et seq. as well as any applicable federal, state and local laws and regulations,
and shall notify Augusta of any requirements on Augusta or Tower Cloud, Inc. that will require
modification of Tower Cloud, Inc. use of Augusta's public ways or could alter the compensation
due Augusta under such laws and regulations.
2. That Tower Cloud, Inc. will pay to Augusta due compensation to Augusta for the
use of its public ways as provided in O.C.G.A. § 46-5-1(b)(9). The parties agree that due
compensation shall be the maximum amount authorized and payable under O.C.G.A. § 46-5-1, as
may be amended from time to time. At the present time, due compensation is defined to be 3
percent of actual recurring local service revenues received by Tower Cloud, Inc. from its end user
customers located within the boundaries of Augusta, Georgia. "Actual recurring local service
revenues" means those revenues customarily included in the Uniform System of Accounts as
prescribed by the Federal Communications Commission for Class "A" and "B" companies, but
only the local service portion of the following accounts shall be included:
(A) Basic local service revenue, as defined in 47 C.F.R. 32.5000;
(B) Basic area revenue, as defined in 47 C.F.R. 32.5001;
(C) Optional extended area revenue, as defined in 47 C.F.R. 32.5002;
(D) Public telephone revenue, as defined in 47 C.F.R. 32.5010;
(E) Local private line revenue, as defined in 47 C.F.R. 35.5040; provided,
however, that the portion of such accounts attributable to audio and video
program transmission service where both terminals of the private line are within
the corporate limits of the municipal authority shall not be included;
(F) Other local exchange revenue, as defined in 47 C.F.R. 32.5060;
(G) Local exchange service, as defined in 47 C.F.R. 32.5069;
(H)Network access revenue, as defined in 47 C.F.R. 32.5080;
(I) Directory revenue, as defined in 47 C.F.R. 32.5320; provided, however,that
the portion of such accounts attributable to revenue derived from listings in
portion of directories not considered white pages shall not be included;
(J)Nonregulated operating revenue, as defined in 47 C.F.R. 32.5280; provided,
however, that the portion of such accounts attributable to revenues derived from
private lines shall not be included; and
(K) Uncollectible revenue, as defined in 47 C.F.R. 32.5300.
If Tower Cloud, Inc. does not have end user customers located within the boundaries of Augusta,
Georgia, the payment by Tower Cloud, Inc. shall be at rates in accordance with the rates set by
regulations promulgated by the Department of Transportation to a municipal authority for the use
of its right of way shall be considered the payment of due compensation.
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3. All due compensation paid in accordance with O.C.G.A. § 46-5-1, et seq. shall be
in lieu of any other permit fee, encroachment fee, degradation fee, disruption fee, business license
tax, occupational license tax, occupational license fee or other fee otherwise permitted pursuant to
O.C.G.A. § 46-5-1, et seq. Due compensation is due quarterly 30 days after the end of the quarter
that occupancy within the public right of way occurs.
Augusta has the authority, no more than once annually, to audit the business records of
Tower Cloud, Inc. to the extent necessary to ensure payment of due compensation in accordance
with O.C.G.A. § 46-5-1(b)(12). Provided Tower Cloud, Inc. marks all such documents as exempt
from Article 4 of Chapter 18 of Title 50, any records or information furnished or disclosed by
Tower Cloud, Inc. are exempt from public inspection under Code Section 50-18-70.
4. Tower Cloud, Inc., by its signature herein, affirms that it will comply with all
applicable federal, state, and local laws and regulations, including municipal ordinances and
regulations regarding the placement and maintenance of facilities in the public rights of way that
are reasonable,nondiscriminatory,and applicable to all users of the public rights of way,including
the requirements of Chapter 9 of Title 25, the "Georgia Utility Facility Protection Act".
5. Without the advance, written consent of Augusta, which consent shall be given at
the sole discretion of Augusta, Tower Cloud, Inc. shall not attach any equipment, including but
not limited to telecommunication devices, to any street lights, light poles, utility poles, traffic
poles, traffic signals, or any other improvement or infrastructure owned, leased or maintained by
Augusta.
6. Term. The term of this Agreement shall be for ten (10) years commencing on the
Effective Date and ending at midnight on the last day of the term(the "Term"),provided however
that, unless either Party provides written notice to the other Party prior to expiration of the Term
that the notifying Party will not renew the Term, the Term will automatically renew on year to
year period, upon the same terms and conditions set forth in this Agreement.
7. Tower Cloud, Inc. shall comply with Augusta's right of way encroachment permit
requirements and Telecommunication Facilities Zoning Requirements, as may be amended from
time to time, for construction, installation or maintenance of any of Tower Cloud, Inc. assets,
including but not limited to fixtures, equipment, infrastructure, cables, switches or other items
owned, leased or utilized by Tower Cloud, Inc. in the providing telecommunication services
contemplated herein or authorized by the Georgia Public Services Commission.
8. In the event that the City of any other entity acting on behalf of the City requests,
or demands that the Company relocate any Facility from their then current locations within the
streets, alleys, and public places of the City in connection with a public project or improvement,
then the Company shall relocate, at its expense, the Facilities affected by such project or
improvement. The Company obligation under this paragraph7 shall apply without regard to
whether the Company has acquired, or claim to have acquired an easement or other property right
respect to such facilities and shall not affect the amount paid or to be paid to the City under the
provision of this agreement
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9. Unless otherwise agreed to in writing by Augusta, Tower Cloud, Inc. shall not
utilize any of Augusta's above or below ground installed assets. Should Tower Cloud, Inc. seek
to utilize the assets of any public utility or private entity for providing its telecommunication
services, Augusta shall have no obligation to assist in the negotiation of any such agreement.
10. Tower Cloud, Inc. shall construct, maintain and operate said system in such
locations as may be reasonably required by Augusta, will at all times comply with all reasonable
requirements, regulations, laws and ordinance now in force, and which may hereafter be adopted
by Augusta and be applicable to the construction, repair or maintenance of said system or use of
Augusta-owned right-of-way. Failure of the Tower Cloud, Inc. to comply with any of the terms of
this memorandum or failure to pay compensation as prescribed by this memorandum shall be cause
for Augusta to revoke this agreement. Without limiting the generality of the foregoing, Augusta
also reserves the right to terminate and cancel this agreement and all rights and privileges of the
Tower Cloud, Inc. hereunder in the event that the Tower Cloud, Inc.: (1) violates any rule, order
or determination of Augusta made pursuant to this agreement, except where such violation is
without fault or through excusable neglect; (2) become insolvent, unable or unwilling to pay its
legal debts,or its adjudged bankrupt; (3)attempts to evade any of the provisions of this agreement;
(4)practice any fraud or deceit upon Augusta; or(5) fail to begin construction of it System within
specified time from the date ROW Encroachment permit is issued and to continue such
construction without unreasonable delay or interruption until completed.
11. Liability and Identification. General Indemnity Clause—Licensee covenants and
agrees to INDEMNIFY, DEFEND and HOLD HARMLESS, the City and the elected
officials, employees, officers, directors, agents and representatives of the City, individually
and collectively ("Indemnitees"), from and against any and all costs, claims, liens, damages,
losses, expenses, fees, fines, penalties, proceedings, actions, demands, causes of action,
liability and suits of any kind and nature, including but not limited to, personal or bodily
injury, death and property damage, made upon the City arising out of a third-party claim to
the extent arising from any negligent acts or omissions of Licensee, any agent, officer,
director, representative, employee, consultant or subcontractor of Licensee, or their
respective officers,agents employees, directors or representatives while in the exercise of the
rights or performance of the duties under this Agreement. The indemnity provided for in
this paragraph shall not apply to any liability resulting arising from the negligence of the
City or an Indemnitee. IN THE EVENT LICENSEE AND CITY ARE FOUND JOINTLY
LIABLE BY A COURT OF COMPETENT JURISDICTION, LIABILITY SHALL BE
APPORTIONED COMPARATIVELY IN ACCORDANCE WITH APPLICABLE LAW,
WITHOUT, HOWEVER, WAIVING ANY GOVERNMENTAL IMMUNITY
AVAILABLE TO THE CITY UNDER STATE LAW AND WITHOUT WAIVING ANY
DEFENSES OF THE PARTIES UNDER STATE LAW.
INSURANCE REQUIREMENTS:
(a) Prior to the commencement of any work under this Agreement, the Licensee shall furnish
copies of all required certificate(s) of insurance to the City Representative. The City shall
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have no duty to pay or perform under this Agreement until such certificate has been
received by the City.
(b) City reserves the right to review the insurance requirements of this Section during the
effective period of this Agreement and any extension or renewal hereof and to modify
insurance coverages and their limits when reasonably determined necessary by the City
based upon changes in statutory law, court decisions, or circumstances surrounding this
Agreement. Such review and modification shall not occur more frequently than every five
(5) years.
(c) The Licensee's financial integrity is of interest to the City; therefore, the Licensee shall
obtain and maintain in full force and effect for the duration of this Agreement, and any
extension hereof, at the Licensee's sole expense, insurance coverage written on an
occurrence basis, by companies authorized and admitted to do business in the State of
Georgia and with an A.M Best's rating of no less than A-VII, in the following types and
for an amount not less than the amount listed below:
Type of Coverage Amounts
1. Workers' Compensation Statutory
2. Employers' Liability $1,000,000
3. Commercial General Liability Insurance Combined Single Limit for Bodily
to include coverage for the following: Injury and Property Damage of
a. Premises/Operations $1,000,000 per occurrence and
b. Independent Contractors General Aggregate limit of$2,000,000
c. Products/complete operations
d. Property damage
4. Business Automobile Liability Combined Single Limit for Bodily
Injury and Property Damage of
$1,000,000 per occurrence
(e) The Licensee agrees that with respect to the above required insurance,all insurance policies
are to contain or be endorsed to contain the following provisions:
• Name the City, its officers, officials, employees, and elected representatives as
additional insureds, as respects operations and activities of, or on behalf of, the
named insured performed under contract with the City, with the exception of
the workers' compensation and professional liability policies.
• Workers' compensation and employers' liability policies will provide a waiver
of subrogation in favor of the City.
• Upon receipt of notice from its insurer, Licensee will provide Licensor with
thirty(30) days prior written notice of cancellation.
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(f) Within thirty(30) calendar days of a suspension, cancellation or non-renewal of coverage,
the Licensee shall provide a replacement Certificate of Insurance and applicable
endorsements to the City. The City shall have the option to suspend the Licensee's
performance should there be a lapse in coverage at any time during this Agreement.
(g) In addition to any other remedies the City may have upon the Licensee's failure to provide
and maintain any insurance or policy endorsements to the extent and within the time herein
required,the City shall have the right to order the Licensee to stop work hereunder, and/or
withhold any payment(s) which become due to the Licensee hereunder until the Licensee
demonstrates compliance with the requirements hereof.
(h) Nothing herein contained shall be construed as limiting in any way the extent to which the
Licensee may be held responsible for payments of damages to persons or property resulting
from the Licensee's or its subcontractors' performance of the work covered under this
Licensee Agreement.
(i) It is agreed that the Licensee's insurance shall be deemed primary and non-contributory
with respect to any insurance or self-insurance carried by the City for liability arising out
of operations under this Agreement.
(j) It is understood and agreed that the insurance required is in addition to and separate from
any other obligation contained in this Agreement.
12. Augusta's right to revoke this permit may be exercised only after written notice if
default and a 30-day period for Tower Cloud,Inc. to cure such default except for any act of default
involving the payment of money or failing to provide any insurance coverage required hereunder
in which event said 30-day period shall be reduced to three (3) business days. The right is hereby
reserved to Augusta to adopt, in addition to the provisions contained herein and in existing
applicable ordinances, such additional regulations of general application to all similarly situated
permittees as it shall find necessary in the exercise of its police power; provided that such
regulations,by ordinance or otherwise, shall be reasonable and not in conflict with the rights herein
granted.
13. No right to transfer or lease. Tower Cloud, Inc. shall not transfer this Agreement to
another person without prior written approval of Augusta. This provision shall not be construed as
requiring August's approval of secured financing arrangements.
14. Notice. For the purposed of giving notice as provided for this agreement, the
following addresses are provided:
Tower Cloud, Inc. Augusta, GA
9501 International Court N. Augusta, GA Commission
St. Petersburg, FL 33716 535 Telfair Street, Suite 910
Attention: Legal Dept. Augusta, GA 30901
Attention: City Administrator
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0 r
Unless Augusta is notified in writing to the contrary,the placing notices in the United State Mail
address to the Tower Cloud, Inc. as set forth above by registered or certified mail, return receipt
requested, shall constitute compliance with the provision of this section.
15. The terms and conditions contained herein will be considered terminated upon
submission of a notice of termination by Tower Cloud, Inc. of its occupancy of the public right of
way of Augusta.
Mutually agreed to and accepted by:
AUGUSTA, GEORGIA
By: kirve,
Its: Mayor ,-L,,ALZ
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