HomeMy WebLinkAboutMASTER RIGHT OF WAY LICENSE AGREEMENT BETWEEN AUGUSTA, GEORGIA AND MOBILITIE, LLC MASTER RIGHT OF WAY LICENSE AGREEMENT
This Master Right of Way Agreement (the "Agreement") made this of May 2017
("Effective Date"), between AUGUSTA, GEORGIA, with its principal offices located at 535 Telfair
Street, Augusta GA 30901 (hereinafter designated "CITY") and MOBILITIE, LLC, a Nevada limited
liability company with its principal offices located at 660 Newport Center Drive, Suite 200,
Newport Beach,CA 92660(hereinafter designated"MOBILITIE"). CITY and MOBILITIE are at times
collectively referred to hereinafter as the "Parties" or individually as a "Party".
WITNESSETH
WHEREAS, the CITY desires to promote the health, safety and general welfare of the
public by regulating the siting and placement of communications technologies in the public rights
of way, including the encouragement of location and collocation of communications technologies
on existing structures to the maximum extent possible; and
WHEREAS, pursuant to O.C.G.A.46-5-1 et seq.telephone companies shall comply with all
applicable local laws and regulations, including municipal ordinances and regulations, regarding
the placement and maintenance of facilities in the public rights of way; and
WHEREAS, MOBILITIE desires to install, maintain and operate communications facilities
in and/or upon the CITY's right-of-way("Right-of-Way"); and
WHEREAS, CITY and MOBILITIE desire to enter into this Agreement to define the general
terms and conditions which will govern their relationship with respect to particular sites at which
CITY may wish to permit MOBILITIE to install, maintain and operate communications facilities as
hereinafter set forth; and
WHEREAS, CITY and MOBILITIE acknowledge that, subject to CITY's issuance of Permits
(as such term is defined in this Agreement) to MOBILITIE, the Parties will enter into Permit
agreements with respect to particular locations or sites which the CITY agrees to license for use.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and
intending to be legally bound hereby,the Parties hereto agree as follows:
1. PREMISES. Subject to Permit requirements set forth in Paragraph 2 and pursuant
to all of the terms and conditions of this Agreement,the CITY agrees to permit MOBILITIE certain
space (the "Space") located on a portion of CITY's Right-of-Way (the "Property"), for the
installation, operation and maintenance of communications facilities. Subject to Permit
requirements set forth in Paragraph 2, the CITY shall permit MOBILITIE to place antennas and
other associated communications equipment within the CITY's Right-of-Way,together with such
additional space on the Property sufficient for the installation, operation and maintenance of
antennas (the "Antenna Space") and associated communications equipment that are owned by
MOBILITIE and/or that are owned by MOBILITIE'S customers and maintained, controlled, and
managed by MOBILITIE, whether on existing poles or ground-mounted (collectively, the
"Communications Facility(iesl"); together with such additional space on and over the Property
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for the installation,operation and maintenance of wires,cables,conduits and pipes(the "Cabling
Space") running between and among the Space and Antenna Space and to all necessary electrical
and telephone utility sources located on the Property as necessary for the communications
equipment;together with the non-exclusive right of ingress and egress from CITY's Right-of-Way,
seven(7)days a week,twenty four(24)hours a day(provided,however,if lane closure is involved,
subject to approved Permit or work restrictions due to holidays and storm emergencies),over the
Property to and from the Premises (as hereinafter defined) for the purpose of installation,
operation and maintenance of the Communications Facility. If no existing location or collocation
can accommodate the proposed Communications Facility due to technical or physical
circumstances, then, MOBILITIE may request Space for the construction and installation of new
poles or ground-mountings. The Space, Antenna Space and Cabling Space are hereinafter
collectively referred to as the "Premises" and shall be as described in each Permit to be executed
by the Parties. In the event there are not sufficient electric, telephone, cable or fiber utility
sources located on the Property, CITY agrees to grant MOBILITIE or the local utility provider the
right to install such utilities on, over and/or under the Property necessary for MOBILITIE to
operate its Communications Facility, provided that MOBILITIE or such utility provider has applied
for and received a Permit in accordance with Paragraph 2 below. The Parties acknowledge that
currently-existing policies of CITY,as well as of the Federal Highway Administration,prohibit utility
location on fully-controlled-access roads such as the Interstate Highway System. Therefore,this
Agreement shall cover only non-controlled-access routes.
2. PERMITS. Prior to commencing any work on the Property or the Premises,
MOBILITIE shall have applied for and obtained an approved permit from the City Engineer within
CITY's Engineering Department (hereinafter a "Permit"). The Permit, if granted, will allow
MOBILITIE the right to construct its Communications Facility and maintain a service utility line for
a maximum distance of fifty-two feet (52') within the Right-of-Way. Each Permit shall be in
accordance with all applicable provisions of the CITY Code as may be amended from time to time
and the Utilities Accommodation Policy and Standards Manual ("UAM") including all references
contained therein to codes, rules, regulations, schedules, forms and appendix items, except
Appendix B (Permit Forms and supporting Documents), promulgated by the Georgia Department
of Transportation, as may be amended from time to time. MOBILITIE will apply for a Permit for
each separate site for which MOBILITIE desires to locate a Communications Facility and abide by
the terms of that Permit.
MOBILITIE shall use the Premises only in accordance with good engineering practices and in
compliance with all applicable Federal Communications Commission ("FCC"), Federal, State, and
Local laws, regulations and rules. With each permit application, MOBILITIE shall furnish the CITY
with detailed construction plans and drawings for each individual Property and Premises,together
with necessary maps, indicating specifically the existing poles to be used, the number and
character of the attachments to be placed on such poles, equipment necessary for MOBILITIE's
use, replacements of existing pole(s), any new or additional pole(s) which may be required (with
specific dimensions and details), and any new installations for transmission conduit, pull boxes,
and appurtenances.
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MOBILITIE must obtain and submit to the CITY a structural engineering study carried out by a
qualified structural engineer, showing that the pole(s) is (are) able to support the proposed
facilities. If the study finds that any proposed structure is inadequate to support the proposed
antenna loads, CITY may decline to permit installation. If the Permit is for construction and
installation of new poles or ground-mountings, MOBILITIE must also submit evidence
demonstrating the technical or physical circumstances that prevent the location or collocation of
its Communications Facilities on existing Premises.
Regarding each individual Permit application, if, in the judgment of the CITY, MOBILITIE's use
under the circumstances is undesirable, the CITY shall have the right to reject the Permit
application in its reasonable discretion. In any event, within thirty (30) days after the receipt of
such application,the CITY shall notify MOBILITIE in writing whether the application is approved or
rejected and, in the case of rejection,the reason(s) why the application was rejected. Where an
application is rejected and the reasons for rejection are capable of being cured, the CITY shall, if
consistent with the procedures set forth in the CITY Code, provide MOBILITIE with a reasonable
opportunity to cure the deficiencies in the application without having to re-submit a new
application. Each individual Permit may be approved by the CITY Engineer or his/her designee.
In assessing Permit applications for the construction and installation of new poles or ground-
mountings, the CITY will consider siting and location, height, setbacks, aesthetics and visibility,
environmental standards, safety standards and other relevant factors related to the CITY'S desire
to encourage location and collocation and the orderly development of telecommunications
infrastructure. In all instances, location and collocation is preferred, followed by concealed or
stealth configurations. New poles and ground-mountings should also be consistent with existing
infrastructure in the Right-of-Way to the extent possible and should be designed, constructed,
and operated to accommodate collocation of communications equipment, including
communications equipment of other operators.
3. CITY OPERATION OF TRAFFIC LIGHT SIGNAL OR STREET LIGHT SYSTEM;
EMERGENCIES. MOBILITIE acknowledges that the Property,inclusive of the Premises,may be used
to provide traffic control and street lighting for the residents of the CITY. The Parties agree that
this Agreement does not in any way limit CITY's right to operate and maintain traffic lights and
street lights in the manner that best enables the functioning thereof and protects public safety.
In case of an emergency arising from or related to the Communications Facilities ("emergency"
being defined for purposes of this Agreement as an event which the CITY determines as posing an
immediate threat of substantial harm or damage to the health, safety and welfare of the public
and/or the Property and/or Premises), CITY shall have the right to act as necessary to protect the
public health and safety of its citizens, and to protect public and private property. CITY will make
every reasonable effort to coordinate its emergency response with MOBILITIE, provided,
however, that where CITY requires emergency access to the Property and Premises, CITY shall
contact MOBILITIE promptly and in no event later than twenty-four(24) hours after such access.
During the course of said emergency, CITY may, in its reasonable discretion, remove the
Communications Facilities, provided, however,that such removal, where possible, be performed
only by qualified personnel. MOBILITIE shall be responsible for the costs arising out of such
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removal, unless the emergency that caused the removal was the result of the acts or omissions
of the CITY or a third party. CITY shall give MOBILITIE notice of said removal as soon as practicable
under the circumstances, and shall work in cooperation with MOBILITIE to restore the removed
Communications Facilities expeditiously.
4. TERM; FEES. This Agreement shall be for a term of twenty-five years(the"Term")
commencing upon the execution hereof by both Parties. Either Party may seek renewal of this
Agreement by providing written notice to the other Party no less than six (6) months prior to
expiration of the Term. Any renewal of this Agreement shall be on such terms as the Parties may
mutually agree upon in writing. Each Permit shall have an initial term of five (5) years and said
term shall commence upon execution of said Permit by both Parties (the "Commencement
Date"). The Annual License Fee (as defined in Paragraph 5 hereunder) for all facilities installed
pursuant to said Permit will commence and be due on the first day of the month following
installation (the "License Fee Commencement Date"), provided, however,that the initial Annual
License Fee payment for each Permit shall be made thirty (30) days after the License Fee
Commencement Date. Thereafter, on each annual anniversary of the License Fee
Commencement Date, MOBILITIE shall pay the Annual License Fee. The Annual License Fee shall
be paid to the CITY in accordance with Paragraphs 5 and 16 below. CITY and MOBILITIE agree that
they shall acknowledge, in writing,the License Fee Commencement Date of each Permit.
5. CONSIDERATION. MOBILITIE shall pay to the CITY a license fee ("Annual License
Fee"), which under this Agreement shall be as follows: (i) for new MOBILITIE poles or ground
mountings and any Communications Facilities initially installed thereon by MOBILITIE, $1,350.00
per site, per year, per Permit, which shall escalate each year by three percent (3%); (ii) for
attachments of Communications Facilities to third-party poles, $500.00 per site, per year, per
Permit. Further, MOBILITIE shall pay to the CITY a fee of$500.00 per year for any other carrier
that subsequently collocates communications equipment on a new MOBILITIE pole or ground
mounting beyond the initial installation of Communications Facilities thereon (the "Rental Fee").
Any payment not made within thirty(30)days from the due date shall bear interest at the rate of
1.5% per month until paid, or if 1.5% exceeds the maximum rate allowed by law, then at the
maximum rate allowed by law. The Parties agree that they will renegotiate the Annual License
Fee and the Rental Fee by the date that is ten (10) years from the date of this Agreement (the
"Renegotiation Deadline"),and that should the Parties fail to successfully renegotiate the Annual
License Fee or the Rental Fee by the Renegotiation Deadline,either Party may elect to terminate
this Agreement upon sixty(60)days' notice to the other Party.
6. EXTENSIONS. So long as the Term is still in effect,each Permit shall automatically
be extended for four(4)additional five (5)year terms unless terminated by MOBILITIE via written
notice of the intent to terminate at least thirty(30)days prior to the end of the then-current term.
Notwithstanding anything herein,after the expiration of this Agreement, its terms and conditions
shall survive and govern with respect to any remaining Permit in effect until the expiration of its
then-current term, or until termination.
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7. USE; GOVERNMENTAL APPROVALS. MOBILITIE shall use the Premises for the
purpose of constructing,maintaining, repairing and operating a Communications Facility and uses
incidental thereto as set forth in the Permit. MOBILITIE shall have the right to replace,repair,add
or otherwise modify the 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
as per the permitting procedures in the UAM, applicable CITY Code, and state and federal law,
provided, however,that modifications shall not be subject to additional permitting to the extent
that (i) 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; or (ii) such modification involves replacement of the
attachment with an attachment that is the same, or smaller in weight and dimensions as the
approved attachment. It is understood and agreed that MOBILITIE's ability to use the Premises is
contingent upon its obtaining, after the execution date of each Permit, all of the certificates,
permits and other approvals (collectively the "Governmental Approvals") that may be required
by any Federal, State or Local authorities as well as, where applicable, a satisfactory building
structural analysis which will permit MOBILITIE use of the Premises as set forth above. CITY shall
cooperate with MOBILITIE in its effort to obtain such approvals and,except as otherwise provided
in Paragraph 2 of this Agreement, shall take no action which would adversely affect the status of
the Property or the Premises with respect to the proposed use thereof by MOBILITIE. In the event
that (i) any applications for any Governmental Approvals should be finally rejected; (ii) any such
Governmental Approval issued to MOBILITIE is canceled, expires, lapses, or is otherwise
withdrawn or terminated by governmental authority; and (iii) MOBILITIE determines that such
Governmental Approvals may not be obtained in a timely manner, MOBILITIE shall have the right
to terminate the applicable Permit. Notice of MOBILITIE's exercise of its right to terminate shall
be given to CITY in accordance with the notice provisions set forth in Paragraph 16 and shall be
effective upon the mailing of such notice by MOBILITIE, or upon such later date as designated by
MOBILITIE. All fees paid to said termination date shall be retained by CITY. Upon such
termination, the applicable Permit shall be of no further force or effect except to the extent of
the representations, warranties and indemnities made by each Party to the other thereunder.
Otherwise, MOBILITIE shall have no further obligations for the payment of fees to CITY for the
terminated Permit.
8. INDEMNIFICATION. MOBILITIE shall indemnify and hold CITY harmless against
any claim of liability or loss from personal injury or property damage resulting from or arising out
of the negligence or willful misconduct of MOBILITIE,its employees,contractors or agents,except
to the extent such claims or damages may be due to or caused by the negligence or willful
misconduct of CITY,or its employees,contractors or agents. Notwithstanding any other provision
of this Agreement, no Party shall be liable in connection with this Agreement or any Permit for
consequential, special, indirect, incidental, or punitive damages (including but not limited to lost
revenues,loss of equipment,interruption or 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.
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9. INSURANCE. MOBILITIE will maintain commercial general liability insurance with
a combined single limit not less than$2,000,000 for injury to or death of one or more persons and
damage or destruction to property in any one occurrence. MOBILITIE will include CITY as an
additional insured.
10. INTERFERENCE. MOBILITIE 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 equipment of CITY or other permitted users of the Property which
existed on the Property prior to the date this Agreement is executed by the Parties. In the event
any after-installed Communications Facility causes such interference, and after CITY has notified
MOBILITIE in writing of such interference, MOBILITIE will take all commercially reasonable steps
necessary to correct and eliminate the interference, including but not limited to, at MOBILITIE's
option, powering down such equipment and later powering up such equipment for intermittent
testing. In no event will CITY be entitled to terminate a Permit or relocate the equipment as long
as MOBILITIE is making a good faith effort to remedy the interference issue. CITY shall, with
reasonable notice to MOBILITIE, be entitled to power down immediately or cause to be powered
down the Communications Facility where the interference is with traffic-control devices. CITY
shall provide MOBILITIE no less than thirty (30) days of any planned or routine maintenance of
traffic control devices located where MOBILITIE has installed its facilities. CITY agrees that any
other permitted users of the Property who currently have or in the future take possession of the
Property will be permitted to install only such equipment that is of the type and frequency which
will not cause harmful interference which is measurable in accordance with then-existing industry
standards to the then-existing equipment of MOBILITIE. The Parties acknowledge that there will
not be an adequate remedy at law for noncompliance with the provisions of this Paragraph and
therefore, either Party shall have the right to equitable remedies, such as, without limitation,
injunctive relief and specific performance.
11. REMOVAL AT END OF TERM; ABANDONMENT OF RIGHT-OF-WAY; RELOCATION.
MOBILITIE shall, upon expiration of the Term, or within ninety (90) days after any earlier
termination of a Permit, remove its equipment, conduits, fixtures and all personal property and
restore the Premises to its original condition, reasonable wear and tear and casualty damage
excepted. CITY agrees and acknowledges that the Communications Facilities, conduits, fixtures
and personal property shall remain the personal property of MOBILITIE and MOBILITIE 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.
The Parties recognize that CITY may hold an easement interest only in certain of its rights-of-way.
Upon abandonment by CITY of a highway or section thereof,MOBILITIE may have no rights against
the owner of the underlying fee estate to maintain its facilities. MOBILITIE shall have no right to
cause CITY to continue to operate the road. In the event, in its sole discretion,CITY determines it
is in the public interest to abandon said Right-of-Way,the applicable Permit shall terminate upon
sixty(60)days'notice to MOBILITIE prior to abandonment(or,in the cases of exigency,such notice
as is reasonable under the circumstances) and no further fees will accrue.
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If at any time during the period of this Agreement, CITY shall lawfully elect to vacate, relocate,
abandon, alter, reconstruct or change the grade of any street, sidewalk,alley or other public way
including any related drainage and utility areas, MOBILITIE, upon reasonable notice from CITY,
shall remove, relay, and relocate its wires, cables, poles and other fixtures and equipment at its
own expense and within reasonable time schedules established by CITY.Should MOBILITIE refuse
or fail to remove its equipment as provided for herein within 45 days after written notification,
CITY shall have the right to do such or cause it to be done and full cost thereof shall be chargeable
to MOBILITIE,or in the alternative,to consider such failure by MOBILITIE to remove its equipment
as abandonment of all ownership rights in said property. In the event MOBILITIE must remove or
relocate its equipment pursuant to the terms of this Section 11, CITY shall cooperate with
MOBILITIE in its reasonable efforts to identify an alternative site for MOBILITIE's use and will make
a reasonable attempt to coordinate relocation in order to minimize any service disruption.
12. RIGHTS UPON SALE. Except as provided in Paragraph 11 above regarding
abandonment,should CITY,at any time during the Term of any Permit decide (i)to sell or transfer
all or any part of the Property to a purchaser other than MOBILITIE,or(ii)to grant to a third party
by easement or other legal instrument an interest in and to that portion of the Property occupied
by MOBILITIE, or a larger portion thereof, for the purpose of operating and maintaining
Communications Facilities or the management thereof, such sale or transfer, or grant of an
easement or interest therein shall be under and subject to the Permit and any such purchaser,
transferee or grantee shall recognize MOBILITIE'S rights hereunder and under the terms of the
Permit. In the event that CITY completes any such sale, transfer, or grant described in this
Paragraph without executing an assignment of the Permit whereby the third party agrees in
writing to assume all obligations of CITY under the Permit, then CITY shall not be released from
its obligations to MOBILITIE under the Permit, and MOBILITIE shall have the right to look to CITY
and the third party for the full performance of the Permit.
13. MOBILITIE'S RIGHT OF TERMINATION. Notwithstanding any other provision of
this Agreement, MOBILITIE may, in its sole discretion, terminate any Permit on thirty (30) days'
notice to the CITY at any time without any further liability for any Annual License Fees attributable
to said Permit, so long as MOBILITIE is not in default with respect to said Permit.
14. GOVERNING LAW AND VENUE. This Agreement is a Georgia agreement made
under the laws of the State. It will be enforced according to Georgia law without regard to its
conflict of laws rules or any other rules directing referral to foreign law or forums. Each Party
hereby agrees to execute an acknowledgment of service of process at the request of the other
Party in any litigation related to this Agreement. In the event that a Party does not provide an
acknowledgment of service as agreed, each Party consents to service of process at that Party's
address as set forth in Paragraph 16 (Notices). It is further agreed that in the event any court
action is brought directly or indirectly by reason of this Agreement, the courts of Augusta-
Richmond County shall have jurisdiction over the dispute and venue shall be in such County.
15. ASSIGNMENT. This Agreement, and each Permit under it, may be sold, assigned
or transferred by MOBILITIE without any approval or consent of the CITY to any parent,subsidiary,
affiliate,or any person,firm or corporation that shall control, be under the control of,or be under
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common control with MOBILITIE, or to any entity into which MOBILITIE may be merged or
consolidated or which purchases substantially all of the assets of MOBILITIE that are subject to
this Agreement. As to other parties, this Agreement and each Permit may not be sold, assigned
or transferred without the written consent of the CITY, which such consent will not be
unreasonably withheld, delayed or conditioned. No change of stock ownership, partnership
interest or control of MOBILITIE or transfer upon partnership or corporate dissolution of
MOBILITIE shall constitute a sale, assignment, or transfer hereunder. Notwithstanding the
foregoing, MOBILITIE may provide capacity across the Communications Facilities to a third party
without the consent required under this paragraph,so long as MOBILITIE retains control over and
remains solely responsible for such Communications Facilities. The use of the 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. MOBILITIE shall provide written notice of all sales,assignments or transfers within
60 days thereof.
16. NOTICES. All notices hereunder must be in writing and shall be deemed validly
given if sent by certified mail, return receipt requested or by commercial courier, provided the
courier's regular business is delivery service and provided further that it guarantees delivery to
the addressee by the end of the next business day following the courier's receipt from the sender,
addressed as follows (or any other address that the Party to be notified may have designated to
the sender by like notice):
CITY Attn: Mayor
City of Augusta
535 Telfair Street, 2nd Floor
Augusta, GA 30901
With Copy to: Director,Augusta Engineering Department
535 Telfair Street, Building 4000
Augusta, GA 30901
MOBILITIE: Attn: Legal Department
MOBILITIE, LLC
660 Newport Center Drive
Suite 200
Newport Beach, CA 92660
Notice shall be effective upon actual receipt or refusal as shown on the receipt obtained pursuant
to the foregoing.
17. DEFAULT. In the event there is a breach by a Party with respect to any of the
provisions of this Agreement or its obligations hereunder, the non-breaching Party shall give the
breaching Party written notice of such breach. After receipt of such written notice,the breaching
Party shall have thirty (30) days in which to cure any breach, provided the breaching Party shall
have such extended period as may be required beyond the thirty(30) days if the breaching Party
commences the cure within the thirty (30) day period and thereafter continuously and diligently
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pursues the cure to completion. 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 this Paragraph.
18. REMEDIES. In the event of a default by either Party with respect to a material
provision of this Agreement, without limiting the non-defaulting Party in the exercise of any right
or remedy which the non-defaulting Party may have by reason of such default,the non-defaulting
Party may, after fifteen (15) days written notice and an additional fifteen (15) days to cure such
default,terminate the applicable Permit and/or pursue any remedy now or hereafter available to
the non-defaulting Party under the laws or judicial decisions of the State of Georgia. Further,
upon a default, the non-defaulting Party may at its option (but without obligation to do so),
perform the defaulting Party's duty or obligation on the defaulting Party's behalf, including but
not limited to,obtaining of reasonably required insurance policies. The costs and expenses of any
such performance by the non-defaulting Party shall be due and payable by the defaulting Party
upon invoice therefor. If MOBILITIE undertakes any such performance on CITY's behalf and CITY
does not pay MOBILITIE the full undisputed amount within thirty (30) days of its receipt of an
invoice setting forth the amount due, MOBILITIE may offset the full undisputed amount due
against all fees due and owing to CITY under the applicable Permit until the full undisputed
amount is fully reimbursed to MOBILITIE.
19. ENVIRONMENTAL. Except as permitted by law, neither Party will allow any
hazardous substances, including without limitation, any and all pollutants, wastes, flammables,
explosives, radioactive materials, hazardous materials, hazardous wastes, hazardous or toxic
substances and all other materials defined by or regulated under any Environmental Law,
including those defined by the Comprehensive Environmental Response, Compensation and
Liability Act of 1980 ("CERCLA"), 42 U.S.C. § 9604, pollutants or contaminants as defined in
CERCLA,42 U.S.C. §9604(A)(2),or hazardous waste as defined in the Resources Conservation and
Recovery Act ("RCRA"), 42 U.S.C. § 6903, or other similar applicable Federal or State laws or
regulations,to be generated, released,stored,or deposited over, beneath,or on the Premises or
Property or on any structures located on the Premises from any source whatsoever.
20. CASUALTY. In the event of damage by fire or other casualty to the Premises that
cannot reasonably be expected to be repaired within thirty (30) days following same or, if the
Property is damaged by fire or other casualty so that such damage may reasonably be expected
to disrupt MOBILITIE's operations at the Premises for more than thirty(30) days,then MOBILITIE
may, at any time following such fire or other casualty, provided CITY has not completed the
restoration required to permit MOBILITIE to resume its operation at the Premises, may terminate
the Permit upon fifteen (15) days prior written notice to CITY. Any such notice of termination
shall cause the Permit to expire with the same force and effect as though the date set forth in
such notice were the date originally set as the expiration date of the Permit and the Parties shall
make an appropriate adjustment, as of such termination date, with respect to payments due to
the other under the Permit. Notwithstanding the foregoing, the Annual License Fee and the
Rental Fee shall abate during the period of repair following such fire or other casualty in
proportion to the degree to which MOBILITIE's use of the Premises is impaired.
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21. AUTHORIZED ENTITIES. This Agreement is entered into by the Parties each on its
own behalf and for the benefit of: (i) any entity in which the Party directly or indirectly holds an
equity or similar interest; (ii) any entity which directly or indirectly holds an equity or similar
interest in the Party; or(iii)any entity directly or indirectly under common control with the Party.
Each Party and each of the entities described above are referred to herein as an "Authorized
Entity". No obligation is incurred or liability accepted by any Authorized Entity until that
Authorized Entity enters into a site specific Permit. Only the Party and the Authorized Entity
executing a Permit are responsible for the obligations and liabilities related thereto arising under
that Permit and this Agreement. All communications and invoices relating to a Permit must be
directed to the Authorized Entity signing the Permit. A default by any Authorized Entity will not
constitute or serve as a basis for a default by any other Authorized Entity not a party to the
applicable Permit.
22. CHANGE OF LAW. If any Federal, State or Local laws or regulations (including
binding non-appealable judicial interpretations thereof) that govern any aspect of the rights or
obligations of the Parties under this Agreement shall change after the Effective Date and such
change makes such rights or obligations in violation with the then-effective law, then the Parties
agree to promptly amend, by mutual agreement, the Agreement as reasonably required to
comply with any such legal or regulatory change; provided, however, that where such change of
law mandates modification of the consideration to be paid pursuant to Paragraph 5 of this
Agreement, said change of law shall apply only to Communications Facilities for which Permits
are issued on or after the effective date of said change of law.
23. MISCELLANEOUS. This Agreement and the Permits that may be executed from
time to time hereunder contain all agreements, promises and understandings between the CITY
and MOBILITIE regarding this transaction, and no oral agreement, promises or understandings
shall be binding upon either the CITY or MOBILITIE in any dispute, controversy or proceeding. If
any part of any provision of this Agreement shall be held to be invalid or unenforceable under
applicable law, said part shall be ineffective to the extent of such invalidity or unenforceability
only, without in any way affecting the remaining parts of said provision or the remaining
provisions of this Agreement. This Agreement may not be amended or varied except in a writing
signed by all Parties. This Agreement shall extend to and bind the,successors and assigns hereto.
The failure of either Party to insist upon strict performance of any of the terms or conditions of
this Agreement or to exercise any of its rights hereunder shall not waive such rights, and such
Party shall have the right to enforce such rights at any time. The performance of this Agreement
via each Permit shall be governed interpreted, construed and regulated by the laws of the State
of Georgia (now and as it may be amended or interpreted in the future), without reference to its
conflicts of law principles. This Agreement is subject to all applicable Federal, State and Local
laws, and regulations, rulings and orders of governmental agencies.
IN WITNESS WHEREOF, the Parties hereto have set their hands and affixed their
respective seals the day and year first above written and have caused this Agreement to be
executed in separate counterparts, each to be considered an original by their authorized
representative.
[Remainder of page intentionally left blank;signature page to follow.]
10
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49 ,0 i 1 By: Ifw./
°k..w«• 4, /IOW Name: A - ree , v
4�t� . ���� 4 . /i./�? Title: U, e.,,)--
Date:
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4s 1 MOBILITIE, LLC
WI ESS
By:
Name: 9,./a -Ay
Title: ei/e
Date: g/71�'l/q
11