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HomeMy WebLinkAboutRES 012616-I - Standard Agmt for CommR,ESOLUTION NO. Q 1 ;,61(0 — 2 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF GEORGETOWN, TEXAS RELATING TO APPROVAL OF A STANDARD LICENSING AGREEMENT FOR COMMUNICATION ATTACHMENTS TO UTILITY FACILITIES; AND AUTHORIZING THE CITY MANAGER TO EXECUTE ALL SUCH AGREEMENTS IN CONFORMANCE WITH THE STANDARD AGREEMENT. WHEREAS, on September 25, 2012, the City approved a standard licensing agreement for entities seeking to attach communications equipment to electric utility poles; and WHEREAS, since that time, it has become apparent that the 2012 standard agreement should be revised to provide more clarity and better protections for the City and City -owned assets when such assets are used by third parties; and WHEREAS, City Staff has developed a revised standard Licensing Agreement that improves upon the earlier standard agreement; and WHEREAS, the revised standard Licensing Agreement for Communications Attachments to Utility Facilities should be approved and presented to entities occupying utility facilities and those that seek to gain access in the future; and WHEREAS, authorizing the City Manager to execute all such agreements in conformance with the Standard Agreement will streamline the approval process and facilitate communications providers' entry into and expansion in the City. SECTION ONE. The facts and recitations contained in the preamble of this resolution are hereby found and declared to be true and correct, and are incorporated by reference herein and expressly made a part hereof, as if copied verbatim. SECTION TWO. The Licensing Agreement attached to this Resolution as Exhibit A is adopted as the City's standard form for communication attachments to utility facilities. SECTION THREE. The City Manager or his designee is hereby authorized to sign the standard Licensing Agreement on behalf of the City. SECTION FOUR. The Mayor is hereby authorized to sign this Resolution and the City Secretary to attest. Resolution No. Qlalpllp—l: Page I of 2 Date Approved k lzujiu I I -I(o L&�A SECTION FIVE. This Resolution shall become effective on the 6 day of 2016. PASSED AND APPROVED on the dayof� 2016. ATTEST: CITY OF GEORGETOWN, TEXAS By: She Nowli�\ity Secretary Dale Ross, Mayor V Skye MCssonffiteiirn City Attorney Resolution No. Olaja&'I Page 2 of 2 Date Approved 0 1 &(A 0 — V - LICENSING AGREEMENT FOR CO This Licensing Agreement ("Agreement") is made by and between the City of Georgetown, a home -rule municipal corporation of the State of Texas ("Utility") and (hereinafter called "Licensee") on (the "Effective Date"). K We W.11 - A. Licensee proposes to install, operate and maintain Communications Facilities and associated equipment on Utility's Poles. B. Utility is willing, when it may lawfully do so, to issue one or more Permits authorizing the placement or installation of Licensee's Attachments on Utility's Poles, subject in all instances to considerations of Utility's service requirements. C. Utility may deny issuance of a Permit, on a nondiscriminatory basis, where there is insufficient Capacity for reasons of safety, reliability and generally applicable engineering purposes and/or other Applicable Standard. In consideration of the mutual covenants, and the terms and the conditions contained in this Agreement, and the rights and obligations created under this Agreement, the parties agree as follows: For the purposes of this Agreement, the following terms, phrases, words, and their derivations, shall have the meaning given herein, unless more specifically defined within a specific Article or Paragraph of this Agreement. When not inconsistent with the context, words used in the present tense include the future tense, words in the plural number include the singular number, and words in the singular number include the plural number. The words "shall" and "will" are mandatory and "may" is permissive. Words not defined shall be given their common and ordinary meaning. A. Applicable Standards: means all applicable engineering and safety standards governing the installation maintenance and operation of facilities and the performance of all work in or around electric Utility Facilities and includes the most current versions of the National Electric Safety Code ("NESC"), the National Electrical Code ("NEC"), the Texas Health and Safety Code, Chapter 752, the rules and regulations of the Occupational Safety and Health Act ("OSHA") and any lawful rules, requirements or orders now in effect or hereafter issued by Utility or other authority having jurisdiction. B. Assigned Space: means space on Utility's Poles that can be used, as defined by the Applicable Standards, for the attachment or placement of wires, cables and associated 6620443 equipment for the provision of Communications Service or electric service. The neutral zone or safety space is not considered Assigned Space. C. Attaching Entity: means any public or private entity that attaches to Utility's Poles to provide Communications Service pursuant to a license agreement with Utility. D. Attachment(s): means Licensee's Communications Facilities that are placed on Utility's Poles or Overlashed onto an existing Attachment. E. Cable Service:. means the provision of one-way transmission to subscribers of video programming, or other programming service, and subscriber interaction, if any, which is required for the selection or use of such video programming or other programming service by a cable system. F. Capaci1y: means the ability of a Pole to accommodate an additional Attachment based on Applicable Standards, including space and loading considerations. G. Climbing Space- means that portion of a Pole's surface and surrounding space that is free from encumbrances to enable Utility employees and contractors to safely climb, access and work on Utility Facilities and equipment. H. Common Space. means space on Utility's Poles that is not used for the placement of wires or cables but which jointly benefits all users of the Poles by supporting the underlying structure. Common Space shall include that portion of the Pole beneath ground level up to the lowest place on the Pole at which a telecommunications circuit may be attached. I. Communications Facilities:, means Attachments, including associated equipment, and cables, wire or cable facilities, including but not limited to fiber optic, copper and/or coaxial cables or wires, utilized to provide Communications Service. Unless otherwise specified, Communications Facilities does not include wireless antennas, receivers, amplifiers, repeaters, receivers or transceivers. J. Communications Service:, means the provision of Telecommunications Service, Cable Service or other lawful communications services over wire or cable facilities utilizing Attachments to Utility's Poles. K. DUs: means calendar days unless otherwise specified. L. Joint User: means any entity which owns poles that are jointly used by Utility and to which Utility has extended, or in the future may extend, privileges to jointly use Utility's Poles. M. Licensee: means assigns. I 6620443 its authorized successors and N. Licensee's Affiliate, means an entity that owns or controls Licensee, an entity that is owned by or controlled by Licensee, or an entity that is under common ownership or control with Licensee. 0. Make -Ready Work: means all work Utility determines is required to accommodate the Licensee's Communications Facilities and/or to comply with all Applicable Standards. Make -Ready Work includes, but is not limited to, rearrangement, relocation and/or transfer of existing Attachments, inspections, engineering work, permitting work, tree trimming, Pole strengthening, Pole replacement and construction. P. Occupancy: means the use or specific reservation of Assigned Space for Attachments on the same Utility Pole. Q. Other Licensee: means a Joint User or any entity, other than the Licensee, to which Utility has extended, or in the future extends, a license to attach Communications Facilities to Utility Poles. R. Overlash: means to place an additional wire or cable Communications Facility onto an existing Attachment owned by Licensee. S. Pedestals: means above ground housings, usually constructed of metal, which are used to enclose a cable splice and/or provide a service wire connection point. T. Permit: means Utility's written authorization for Licensee to make, or maintain, Attachments to specific Utility Poles pursuant to the requirements of this Agreement. U. Pole: means a pole owned or controlled by Utility that is capable of supporting Attachments for Communications Services. V. Pre -Permit Survey: means all work or operations required by Applicable Standards or the Utility to determine the Make -Ready Work necessary to accommodate Licensee's Communications Facilities on a Pole. Such work includes, but is not limited to, field inspection, loading calculations and administrative processing. The Pre -Permit Survey shall be coordinated with Utility and include Licensee's professional engineer. W. Post -Construction Inspection: means the inspection required by Utility to determine and verify that the Attachments have been made in accordance with Applicable Standards and the Permit. KI. Reserved Space: means designated space on a Pole that the Utility has reserved, pursuant to the Utility's development plan, that reasonably and specifically projects a need for that space for the provision of core electric service, including moving the neutral as part of converting phases, space for the future attachment of internal communications lines owned by the Utility, or installation of transformer(s). Y. Riser: means metallic or plastic encasement materials placed vertically on the Pole to guide and protect communications wires and cables. 3 6620443 Z. Service Drop: means the last span that is installed to provide service to an individual customer(s). AA. Tag: means to place distinct markers on wires and cables, coded by color or other means specified by Utility that will readily identify the type of Attachment and its owner. BB. Telecommunications Service: means the offering of telecommunications for a fee, directly to the public or to such classes of users as to be effectively available directly to the public, regardless of the facilities used. CC. Utility Facilities: means all personal property and real property owned or controlled by Utility, including Poles. A. Subject to the terms of this Agreement, Utility hereby grants Licensee a revocable, non - assignable, and nonexclusive license authorizing Licensee to install and maintain Attachments to Utility's Poles. B. Licensee and Utility agree to be bound by all provisions of this Agreement and the Permit(s) issued pursuant to this Agreement. C. Utility will issue a Permit(s) to Licensee only when Utility reasonably determines, in its sole judgment, that (i) Utility has sufficient Capacity to accommodate a requested Attachment, (ii) Licensee meets all requirements set forth in this Agreement, and (iii) such Permit(s) comply with all Applicable Standards. 111. Access to Assigned Space on Utility Poles will be made available to Licensee pursuant 4, this Agreement. No access shall be permitted by Utility to Reserved Space. E No use, • lengthy, • any • Utility's Facilities, and no payment • any fees • charges required under this Agreement, shall create or vest in Licensee any easement or other ownership or property right of any nature in any portion of the Utility Facilities. After issuance of any Permit, Licensee shall be and remain a mere licensee. Neither this Agreement, nor any Permit granted under this Agreement, shall constitute an assignment • any of Utility's rights to the Utility Facilities. F. Nothing in this Agreement shall be construed as granting Licensee any right to attach Licensee's Communications Facilities to any specific Pole or to compel Utility to grant Licensee the right to attach to any specific Pole. G. This Agreement does not in any way limit Utility's right to locate, operate, maintain or remove its Poles in the manner that will best enable Utility to fulfill its service requirements. H. Licensee is obligated to obtain all necessary certification, permitting, and franchising from federal, state and local authorities prior to making any Attachments. In most cases M 6620443 Licensee will need to secure additional easements, right of way permits or other legal rights to utilize private property. 1. Nothing in this Agreement shall be construed to require Utility to install, retain, extend or maintain any Pole for use by the Licensee when such Pole is not needed for Utility's own service requirements. J. Nothing in this Agreement shall limit, restrict, or prohibit Utility from fulfilling any agreement or arrangement regarding Poles into which Utility has previously entered, or may enter in the future, with Joint Users and Others Licensees not parties to this Agreement, including, but not limited to, agreements or arrangements for the removal of lines or relocating overhead facilities to underground. K. This Agreement is limited to the uses specifically authorized in this Agreement and any other use shall be considered a material breach of this Agreement. Nothing in this Agreement shall be construed to require Utility to allow Licensee to use Utility's Facilities or Poles after the termination of this Agreement. L. This Agreement shall only apply to Poles associated with the distribution of electric power and not to any Utility Facilities associated with the generation or transmission of electric power. III. FEES AND CHARGES A. Licensee shall pay Utility the fees and charges specified in Appendix A, as applicable. Utility may change the fees and charges set forth in Appendix A annually, provided charges do not conflict with statutory obligations regarding such charges, in which case the charges shall be pursuant to the applicable statute. Utility shall provide Licensee with at least ninety (90) days prior written notice of a change of fees and charges. B. By executing this Agreement, Licensee acknowledges that the amount of actual damages incurred by Utility for Licensee's Unauthorized Attachment and/or Failure to Transfer/Rearrange/Relocation/Remove Communications Facilities will be difficult or impossible to ascertain, and that the amount of the fees specified on Appendix A is a reasonable approximation of actual damages intended to compensate Utility for such damages. The assessment of fees for Licensee's Unauthorized Attachment or Failure to Transfer/Remove Communications Facilities is intended to be separate and apart from Utility's right to enforce the provisions of any LOC or Bond required under this Agreement and is intended to be in addition to any other rights or remedies Utility may have at law or in equity. C. Irrespective of the date on which an Attachment is actually made, all applicable fees and charges shall be calculated and payable for the entire year in which a Permit for such Attachment is issued under this Agreement. Once paid the fees and charges are not refundable. 9 6620443 D. Utility shall invoice Licensee for the Pole Attachment Fee annually. Utility will submit an invoice to Licensee for the annual rental period by September I of each year. The initial annual rental period shall commence on the Effective Date of this Agreement and end on September 30. Each subsequent annual rental period shall commence on the following October I and conclude on September 30 of the subsequent year. The invoice shall include the total number of Utility's Poles on which Licensee was issue an or holds a Permit for Attachment during such annual rental period, including any previously authorized Attachments. E. Licensee shall pay invoices no later than forty-five (45) days after Licensee's receipt of an invoice. Payments received by Utility later than said forty-five (45) day period shall be charged interest in accordance with Chapter 2251, Texas Government Code. If Licensee shall in good faith dispute any portion of an invoice, then Licensee shall provide Utility written notice of the dispute within forty-five (45) days after Licensee's receipt of the invoice. Payment disputes shall be resolved in compliance with the provisions of Chapter 2251, Texas Government Code. F. Licensee shall submit an annual inventory to Utility listing the number of Poles to which Licensee has Attachments and the locations of all Attachments ("Attachment Inventory"). Utility shall provide the Attachment Inventory form to Licensee. The initial Attachment Inventory shall be jointly prepared by Licensee and Utility to establish Licensee's baseline Pole Attachment count. An Attachment Inventory shall be effective from October I of each year and shall be submitted by Licensee to Utility no later than August I of each year. Utility reserves the right to compare the information contained on the Attachment Inventory to any actual field inspection or survey conducted mutually. Licensee shall be charged the Unauthorized Attachment Fee specified in Appendix A for Attachments that are not properly identified in the Attachment Inventory. In the event that Licensee fails to submit an Attachment Inventory, Licensee shall pay Utility, in addition to the Annual Pole Attachment Fee, all actual costs associated with Utility's performance of an Attachment Inventory of Licensee's Attachments. G. When this Agreement requires Licensee to pay for work done or contracted by Utility, the charge for such work shall include all reasonable material, labor, engineering and administrative costs and applicable overheads. Utility shall bill its services based upon actual costs or set fees determined in accordance with Utility's cost accounting systems used for recording capital and expense activities. H. Utility reserves the right to require Licensee to pay any and all costs, expenses, fees and charges in advance. When Licensee pays an estimated amount in advance, and the actual amount exceeds the estimated amount, Licensee agrees to pay Utility the actual amount. To the extent that the actual amount is less than the estimate amount, Utility shall refund the amount that exceeds the actual amount. Utility reserves the right to require Licensee to provide a letter of credit ("LOC") or surety bond ("Bond") to Utility. If required, the issuing financial institution or surety, and the LOC or Bond forrn, shall be approved by Utility. If required, the LOC or Bond must guarantee Licensee's performance of all 6 6620443 obligations under this Agreement and Licensee's payment of all sums that may become due to Utility under this Agreement by reason of the construction, operation, maintenance or removal of Licensee's Communications Facilities on Utility's Poles. 1. Nonpayment of any undisputed amount due under this Agreement shall constitute material default of this Agreement. A. When a Permit is issued pursuant to this Agreement, Licensee's Communications Facilities shall be installed and maintained in accordance with the Utility's requirements and specifications. All of Licensee's Communications Facilities must comply with all Applicable Standards. B. Licensee shall be responsible for the installation and maintenance of its Communications Facilities. Licensee shall, at its own expense, make and maintain its Attachments in safe condition and good repair, in compliance with all Applicable Standards. C. Licensee shall Tag all of its Communications Facilities in accordance with the Utility's requirements and specifications and/or applicable federal, state and local regulations upon installation. Failure to Tag will be considered a violation of the Applicable Standards. Licensee shall Tag prior authorized Attachments and shall immediately replace any Tags that are missing, improper or incorrect, at any time such Attachments are encountered. Utility is not liable for any injuries or damages caused by or in connection with missing Tags or otherwise improperly labeled Poles. D. Licensee's Communications Facilities shall not interfere with the use of Utility's Poles by Utility or with the authorized use of such Poles by any Joint User or Other Licensee. Licensee's Communications Facilities shall not interfere with the operation of any Utility A. Licensee shall be responsible for obtaining from the appropriate public and/or private authority or other appropriate persons any required authorization to construct, operate and/or maintain its Communications Facilities on public and/or private property before it occupies any portion of Utility's Poles. Utility retains the right to require evidence that appropriate authorization has been obtained before any Permit is issued to Licensee. Licensee's obligations under this Article include, but are not limited to, the obligation to obtain all necessary approvals to occupy public/private rights-of-way and to pay all associated costs. 7 COMMUNICATIONS FACILITIES ON UTILITY'S POLES. UTILITY SHALL GIVE LICENSEE PROMPT WRITTEN NOTICE OF THE MAKING OF ANY SUCH CLAIM, AND/Olk THE COMMENCEMENT OF ANY LITIGATION OR OTHER PROCEEDING INCLUDING SUCH CLAIM. C. No Pen -nit granted under this Agreement shall extend to any Pole on which the attachment of Licensee's Communications Facilities would result in a forfeiture of Utility's rights. Any Permit which covers Attachments that would result in forfeiture of Utility's rights is invalid. If any of Licensee's Communications Facilities, whether installed pursuant to a valid Permit or not, would cause such forfeiture, Licensee shall promptly remove its Communications Facilities upon receipt of written notice from the Utility. Utility will perform such removal at Licensee's expense after the expiration of sixty (60) days from Licensee's receipt of the written notice. D. Consent by Utility to Licensee's construction or maintenance of any Attachments shall not be deemed consent, authorization or acknowledgment that Licensee has the necessary authority to construct or maintain any such Attachments. A. Licensee shall •: install any • • any '•:' • materially modify the Communications Facilities on any Pole, without first applying for and obtaining a Permit by complying with Utility's Permit Application Process. Authorized Attachments installed prior to the Effective Date of this Agreement shall be grandfathered with respect to Permitting, but shall be subject to payment of the Annual Pole Attachment Fee. Pre- existing Attachments shall • included and • in Licensee's Attachment Inventory. B. As part of the Permit Application Process, and at Licensee's sole expense, a qualified and experienced professional engineer must conduct a Pre -Permit Survey in accordance with Utility's • and certify that Licensee's Communications Facilities can be installed on the identified Poles in compliance with the Applicable Standards. The professional engineer's qualifications must include experience performing work on communications attachments to electric utility r• Utility, in its discretion, may waive the Pre -Permit Survey for Service Drops. C. As part of the Permit Application Process, and at Licensee's sole expense, Licensee must submit detailed plans for each Attachment. Utility's acceptance of the submitted design documents does not relieve Licensee and its engineer of full responsibility and liability for any errors and/or omissions in the engineering analysis. D. As soon as practicable, but no later than ninety (90) days of the receipt of a complete Permit Application, • the certified Pre -Permit • plans and • submittals required by Utility, Utility will complete review • the Permit Application and make ?- preliminary determination to grant or deny Licensee's •' Application su 'ect to completion of any necessary Make -Ready Work. Utility will discuss any issues regardin_,N H., 6620443 the Permit Application with Licensee, including engineering or Make -Ready Work requirements. E. Licensee may attach, replace, relocate or modify subscriber drop lines attached to any Pole, including lift/drop Poles, without prior notice to Utility and without first submitting a Permit Application to Utility or otherwise obtaining Utility's prior approval. If Licensee attaches a subscriber drop line to a Pole not previously authorized for Attachments by Licensee, then Licensee shall submit a Permit Application to Utility within thirty (30) days of its initial Attachment to such Pole. F. Overlashing by Licensee or Licensee's Affiliate is not considered a separate Attachment under this Agreement and does not require a Permit. Licensee is required to provide the Utility with prior notification of such Overlashing by submitting an Application to Overlash Existing Attachment and is required to have a professional engineer certify that the Overlashing can be accomplished in compliance with the Applicable Standards. Without such prior notification and certification, any Overlashing constitutes an unauthorized Attachment. Overlashing of an existing Attachment by a third party, other than Licensee or Licensee's Affiliate, is a separate Attachment requiring a separate Licensing Agreement and Permit. A. In the event Utility determines that it can accommodate Licensee's request for Attachment, including Overlashing of an existing Attachment, Utility will provide Licensee an estimate of Make -Ready Work charges necessary to accommodate the Attachment ("Make -Ready Work Estimate"). B. In the event that any Pole to which Licensee desires to make Attachment is unable to support or accommodate Licensee's request in accordance with all Applicable Standards, Utility will notify Licensee of the necessary Make -Ready Work, and a Make -Ready Work Estimate. If the modification or replacement of a Pole is made necessary by Licensee's request for Attachment, Licensee shall be responsible for the costs related to the modification or replacement of the Pole and for the costs associated with the transfer or rearrangement of any other Attaching Entity's Communications Facilities. Licensee shall be responsible for entering into an agreement with each other Attaching Entity concerning the allocation of costs for the relocation or rearrangement of the existing Attachments. Licensee shall also be responsible for obtaining and furnishing to Utility before the commencement of any Make -Ready Work, agreements between Licensee and each other Attaching Entity (including Overlashers) concerning the relocation or rearrangement of the Attachments and the associated costs. Utility shall not be obligated in any way to enforce or administer Licensee's responsibility for the costs associated with the transfer or rearrangement of another Attaching Entity's Facilities. Each Attaching Entity shall cooperate with Licensee in determining the cost, and process, of rearrangement, relocation and/or removal of their respective Communications Facilities. M 6620443 C. Unless specifically determined otherwise as part of the Permit Application Process, all Make -Ready Work shall be performed only by Utility or a contractor authorized by Utility to perform such work. Utility may maintain a list of approved contractors who are pre -authorized to perform Make -Ready Work and other required work on Licensee's Attachments. Licensee may submit additional contractors for Utility approval in advance of Make -Ready Work or other required work. Licensee shall be entitled to select one or more of the approved contractors to complete the required Make -Ready Work or other required work on Licensee's Attachments. D. All of Licensee's work shall be performed at Licensee's sole cost and expense, in a good and workmanlike manner, and must not adversely or materially affect the structural integrity of Utility's Poles, or other Utility Facilities or any other attached facilities or equipment. All of Licensee's work performed on Utility's Poles, or in the vicinity of other Utility Facilities, either by its own employees or contractors, shall be in compliance with all Applicable Standards. Licensee shall assure that any person installing, maintaining, or removing its Communications Facilities be duly qualified and familiar with the Applicable Standards. E. If Utility performs the Make -Ready Work to accommodate Licensee's Communications Facilities, the work will be completed within the time specified on the Make -Ready Work Estimate after Licensee has accepted the proposed Make -Ready Work. In the event Licensee requests that the Make -Ready Work be performed on a priority basis or outside of Utility's normal work hours, and Utility agrees to accommodate the request, Licensee agrees to pay any resulting increased costs. Under no circumstances shall Utility be required to perform Make -Ready Work or other work for Licensee before other scheduled Utility work or Utility service restoration. F. Licensee shall pay the costs of Make -Ready Work performed by Utility or an authorized contractor approved by Utility. Utility, at its discretion, may require advance payment of the estimated cost of the Make -Ready Work. Alternatively, Utility will invoice Licensee for the cost of the Make -Ready Work. G. Within three (3) business days after receipt of payment for the Make -Ready Work, Utility will issue the Permit which shall serve as authorization for Licensee to make the Attachment(s). If Licensee has paid for the Make -Ready Work in advance, Utility shall issue the Permit to Licensee immediately upon completion of the Make -Ready Work. H. Licensee shall provide written notice to Utility when the Attachments authorized by the Permit are complete. Utility may require Licensee's professional engineer, at Licensee's cost, to conduct a Post -Construction Inspection and certify that the Attachments were made in accordance with Applicable Standards and the Permit. I. Licensee shall make the Attachments authorized by the Permit within ninety (90) days from the issuance of a Permit. If Licensee does not make the Attachments within the ninety (90) days, and there is no evidence of ongoing construction to make the IN 6620443 Attachments, Utility reserves the right to cancel the Permit upon thirty (30) days written notice to Licensee. A. Any Permit issued pursuant to this Agreement shall automatically terminate when Licensee ceases to have authority to construct and operate its Communications Facilities on public or private property at the location of the particular Pole covered by the Permit. Licensee shall, at its sole expense, remove the Communications Facilities from the affected Pole(s) within sixty (60) days. If Licensee fails to remove the Communications Facilities from the affected Pole(s) within sixty (60) days, Utility shall have the right to remove the Communications Facilities at Licensee's expense. Communications Facilities that Licensee does not remove within sixty (60) days shall constitute an unauthorized Attachment subject to the Unauthorized Attachment Fee and Failure to Remove Facilities Fee included in Appendix A. B. Any Permit issued pursuant to this Agreement shall automatically terminate for an Attachment that becomes nonfunctional and no longer fit for service ("Nonfunctional Attachment"). Licensee shall, at its sole expense, remove any Nonfunctional Attachment, or part of a Nonfunctional Attachment, within sixty (60) days of the Attachment becoming nonfunctional. If Licensee fails to remove a Nonfunctional Attachment within sixty (60) days, Utility shall have the right to remove the Nonfunctional Attachment at Licensee's expense. A Nonfunctional Attachment that Licensee fails to remove as required shall constitute an unauthorized Attachment subject to the Unauthorized Attachment Fee and Failure to Remove Facilities Fee included in Appendix A. Where Licensee has Overlashed a Nonfunctional Attachment, the Nonfunctional Attachment may remain in place until Utility notifies Licensee that removal is necessary to accommodate use of the affected Pole. Licensee shall provide Utility notice of Nonfunctional Attachments in the Attachment Inventory. C. Licensee may at any time surrender any Permit. Licensee shall, at its sole expense, remove the Communications Facilities from the affected Pole(s) within sixty (60) days of Licensee's notice of surrender of a Permit. If Licensee fails to remove the Communications Facilities from the affected Pole(s) within sixty (60) days, Utility shall have the right to remove the Communications Facilities at Licensee's expense. Communications Facilities that Licensee does not remove within sixty (60) days shall constitute an unauthorized Attachment subject to the Unauthorized Attachment Fee and Failure to Remove Facilities Fee included in Appendix A. A. If Utility determines that a transfer of Licensee's Communications Facilities is necessary, Licensee shall complete the transfer within sixty (60) days after receiving written notice from Utility, provided Utility or another Attaching Entity has not prevented AT&T from completing such work. Licensee is also responsible for transfer of Facilities that are Overlashed onto Licensee's Attachments. Licensee shall notify Utility in writing within Il 6620443 ten (10) days after the transfer of Licensee's Communications Facilities has been completed. B. If Licensee fails to transfer Licensee's Communications Facilities within sixty (60) days after receiving written notice from Utility, Utility shall have the right to transfer, or to have Licensee's Communications Facilities transferred, at Licensee's expense. In addition, Licensee shall be subject to the Unauthorized Attachment Fee and Failure to Transfer Facilities Fee included in Appendix A. C. Utility shall not be responsible or liable for damage to Licensee's Communications Facilities except to the extent provided in this Agreement. q A. The costs for any rearrangement, relocation, transfer and removal of Licensee's Communications Facilities or the replacement of a Pole (including any related costs for tree cutting or trimming required to clear the new location) shall be allocated to Utility, Licensee or other Attaching Entity on the following basis: I If Utility intends to modify or replace a Pole solely for Utility's own requirements Utility shall be responsible for the costs related to the modification or replacement of the Pole. Licensee, however, shall be responsible for all costs associated with the rearrangement or transfer of Licensee's Communications Facilities. Utility shall provide Licensee with sixty (60) days written notice prior to making the proposed modification or alteration in order to provide Licensee a reasonable opportunity to modify or add to its Communications Facilities. This notice requirement shall not apply to routine maintenance or emergency situations. If Licensee elects to add to or modify its Communications Facilities after such notice, with Utility's written permission, the Licensee shall bear the total incremental costs incurred by Utility, as reasonably determined by Utility, in making the space on the Poles accessible to Licensee. 2. If the modification or the replacement of a Pole is the result of an additional Attachment or the modification of an existing Attachment requested by an Attaching Entity other than Utility or Licensee, the Attaching Entity requesting the additional or modified Attachment shall bear the entire cost of the modification or Pole replacement, as well as the costs for rearranging or transferring Licensee's Communications Facilities. Licensee shall cooperate with the Attaching Entity to determine the costs of rearranging or transferring Licensee's Communications Facilities. 3. If the modification of Attachments or replacement of a Pole is necessary for reasons unrelated to the use of the Pole by Attaching Entities (such as storm, accident, deterioration) each Attaching Entity shall pay the associated costs and expenses of rearranging or transferring its own Attachments and Communications Facilities. M 6620443 B. If Utility receives Permit Applications for the same Pole from two or more prospective licensees within (60) days of one another, and accommodating their respective requests would require replacement or modification of the Pole or rearrangements of existing Attachments, Utility will allocate the applicable costs associated with such modification or replacement among the prospective licensees. C. Any strengthening, reinforcing or stabilizing of Poles, including the use of guying, to accommodate Licensee's Attachments shall be provided by and at the expense of Licensee and to the satisfaction of the Utility. D. No provision of this Agreement shall be construed to require Utility to relocate its Attachments or modify/replace its Poles for the benefit of Licensee, provided that any denial by Utility for modification of the Pole is based on nondiscriminatory standards of general applicability. A. If Utility desires at any time to abandon or remove any Utility Facilities to which Licensee's Communications Facilities are attached, Utility shall give Licensee notice in writing at least sixty (60) days prior to the date on which Utility intends to abandon or remove such Utility Facilities. The notice shall indicate if Utility is offering Licensee an option to purchase any of the Utility Facilities and the price for which the Utility Facilities are offered for sale. If, following the expiration of the sixty (60) day period, Licensee has not removed and/or transferred all of Licensee's Communications Facilities, and has not entered into an agreement to purchase the Utility Facilities pursuant to Paragraph B, Utility shall have the right to remove and/or transfer Licensee's Communications Facilities at Licensee's expense. B. Should Utility desire to abandon any Utility Facilities, Utility, in its sole discretion, may grant Licensee the option of purchasing Utility Facilities. Licensee must notify Utility in writing within thirty (30) days of the date of receipt of Utility's notice of abandonment that Licensee desires to purchase the abandoned Utility Facilities. Thereafter, Licensee must also secure and deliver proof of all necessary governmental approvals and easements allowing Licensee to independently own and access such Utility Facilities. Should Licensee fail to secure the necessary governmental approvals, or should Utility and Licensee fail to enter into an agreement for Licensee to purchase the Utility Facilities prior to the end of the sixty (60) day notice of abandonment period, Licensee must remove its Attachments within ninety (90) days of Utility's notice of abandonment. If, following the expiration of the ninety (90) day period, Licensee has not removed and/or transferred all of Licensee's Communications Facilities, Utility shall have the right to remove and/or transfer Licensee's Communications Facilities at Licensee's expense. Utility is under no obligation to sell Poles or Utility Facilities that Utility intends to remove or abandon. C. If any Utility Facilities must be removed by reason of any Federal, State, County, Municipal or other governmental requirement, including, but not limited, to underground 19 6620443 conversion, or the requirement of a property owner, Licensee shall remove its Communications Facilities from the affected Utility Facilities, at Licensee's expense, within sixty (60) days of receipt of written notice from Utility. If Licensee does not remove its Communications Facilities within the sixty (60) day period, Utility shall have the right to remove and/or transfer Licensee's Communications Facilities at Licensee's expense. A. If Utility determines that removal of Licensee's Communications Facilities from Utility's Poles is necessary in accordance with the terms of this Agreement, Licensee shall remove the Communications Facilities at its own expense within sixty (60) days. Licensee shall notify Utility in writing within ten (10) days after the removal of Licensee's Communications Facilities has been completed. No Permit is required for removal, but Licensee shall notify and coordinate removal activity with Utility. It is Licensee's obligation to adjust the Pole Attachment count for removed Attachments. No refund of any fees or charges will be made upon removal. B. If Licensee fails to remove its Communications Facilities within sixty (60) days as required in the applicable section of this Agreement, Utility shall have the right to remove, or have Licensee's Communications Facilities removed, at Licensee's expense. In addition, Licensee shall be subject to the Unauthorized Attachment Fee and Failure to Remove Facilities Fee included in Appendix A. C. Utility shall not be responsible or liable for damage to Licensee's Communications Facilities except to the extent provided in this Agreement. A. Utility reserves the right to inspect Licensee's Communications Facilities at any time. Licensee shall reimburse Utility for the actual cost of an inspection of each individual pole for each inspection that reveals that Licensee is in violation of this Agreement. B. Utility shall give Licensee at least ninety (90) days advance written notice of an inspection, except in those instances where safety considerations justify the need for inspection without delay. C. Utility's inspections, or the failure to do so, shall not operate to impose upon Utility any liability of any kind whatsoever or relieve Licensee of any responsibility, obligations or liability for Licensee's Communications Facilities, whether assumed under this Agreement or otherwise existing. D. Utility shall provide written notice to Licensee if an inspection reveals that all, or any part, of Licensee's Communications Facilities are installed, used or maintained in violation of this Agreement. Licensee agrees to either provide an explanation refuting responsibility for or bring its Communications Facilities into full compliance with this Agreement within thirty (30) days of receipt of notice from Utility. If Licensee does not 14 6620443 refute responsibility for or correct the violation(s) within thirty (30) days as required, Utility may correct the conditions at Licensee's expense. When Utility reasonably believes that the violation(s) poses an immediate threat to the safety of any person, interferes with the performance of Utility's service obligations, or poses an immediate threat to the physical integrity of Utility's Facilities, Utility may perform work and/or take action as reasonably necessary to eliminate such immediate threat without first giving written notice to Licensee. Utility will advise Licensee in writing of the work performed or the action taken, including photographic evidence substantiating the violation and its cause. Licensee shall pay Utility for all costs Utility incurs in performing the work or taking the action, if (i) Licensee does not refute responsibility for or correct the violation(s) within thirty (30) days as required; or (ii) if the evidence provided proves conclusively that Licensee's Communication Facilities or workmanship caused the violation; or if (iii) it is finally determined that Licensee's Communication Facilities or workmanship caused the violation. A. If any of Licensee's Communications Facilities, including Overlashing, are found occupying any portion of any of Utility's Poles for which no Permit has been issued and is in effect, Utility, without prejudice to its other rights or remedies, may assess an Unauthorized Attachment Fee (as specified in Appendix A) from the date of notice to Licensee until a complete Permit application and all required fees (as per Attachment A) have been submitted for the unauthorized attachments. At Utility's discretion, Utility may require the immediate removal of the unauthorized attachment, in which event Unauthorized Attachment Fees will continue to accrue and be payable by Licensee until the unauthorized attachment is removed. B. If Licensee attaches Communications Facilities after submittal of a Permit application but prior to Utility's final determination on the Permit, such premature attachment shall be deemed to be unauthorized, and the Unauthorized Attachment Fee shall apply from the date of notice by Utility to Licensee until the Permit is issued by Utility. If the Utility determines to deny the Permit application for such premature attachment, the Unauthorized Attachment Fee shall apply until the attachment is removed. C. No act or failure to act by Utility with regard to unauthorized occupancy or access shall be deemed as ratification of the unauthorized occupancy or access. If any Permit should be subsequently issued, said Permit shall not operate retroactively or constitute a waiver by Utility of any of its rights or remedies. Licensee shall be subject to all liabilities, obligations and responsibilities for the unauthorized occupancy or access from inception. A. Utility reserves the right to maintain and operate its Poles in such manner as will best enable Utility to fulfill its own service requirements. Licensee agrees to use Utility's Poles at Licensee's sole risk. Utility shall exercise reasonable care to avoid damaging Licensee's Communications Facilities and Utility shall report to Licensee of the occurrence of any such damage caused by Utility's employees, agents or contractors. 15 6620443 Subject to Paragraph C below, Utility agrees to reimburse Licensee for reasonable costs incurred by the Licensee for the physical repair of Licensee's Communications Facilities damaged by Utility's gross negligence or willful misconduct. B. Licensee, and any agent, contractor or subcontractor of Licensee, shall defend, indemnify and hold harmless Utility and all associated, affiliated, allied and subsidiary entities of Utility, whether existing now or in the future, and their respective officials, officers, departments, agencies, board members, council members, commissioners, representatives, employees, agents, contractors and attorneys against any and all liability, claims, costs, damages, fines, taxes, special charges by others, penalties, payments (including payments made by Utility under any Workers' Compensation Laws or under any plan for employees' disability and death benefits), costs and expenses (including reasonable attorney fees of counsel selected by Utility and all other costs and expenses of litigation) ("Covered Claims") arising in any way, including any act, omission, failure, negligence or willful misconduct, in connection with the construction, maintenance, repair, presence, use, relocation, transfer, removal or operation by Licensee, or by Licensee's officers, directors, employees, agents or contractors, of Licensee's Communications Facilities, except to the extent of Utility's negligence or willful misconduct giving rise to such Covered Claims. Such Covered Claims include, but are not limited to, the following: I intellectual property infringement, libel and slander, trespass, unauthorized use of television or radio broadcast programs and other program material, and infringement of patents; 2. cost of work performed by Utility that was necessitated by Licensee's failure to install, maintain, use, transfer or remove Licensee's Communications Facilities as required by this Agreement or from any work this Agreement authorizes Utility to perform on Licensee's behalf; 3. damage to property, injury to or death of any person arising out of the performance or nonperformance of any work or obligation undertaken by Licensee pursuant to this Agreement; and/or 4. liabilities incurred as a result of Licensee's violation of any law, rule, or regulation of the United States, State of Texas or any other governmental entity or administrative agency. C. No provision of this Agreement is intended, or shall be construed, to be a waiver for any purpose by Utility of governmental immunity or other provisions of Texas law limiting municipal liability. No indemnification provision contained in this Agreement under which Licensee indemnifies Utility shall be construed in any way to limit any other indemnification provision contained in this Agreement or Texas law. D. Utility shall give Licensee prompt written notice of the making of any claim or the commencement of any litigation or other proceeding covered by this Article. Utility's a 6620443 failure to give notice will not relieve Licensee from its obligation to indemnify Utility unless Licensee is materially prejudiced by the failure of notice. E. if Utility is the prevailing party in a legal action to enforce this Agreement, Licensee shall pay Utility's reasonable attorney fees, reasonable expert and consultant fees, and all other associated costs and expenses. F. UNLESS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES SUFFERED BY THE OTHER PARTY OR BY ANY SUBSCRIBER, CUSTOMER OR PURCHASER OF THE OTHER PARTY FOR LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, WHETHER BY VIRTUE OF ANY STATUTE, IN TORT OR IN CONTRACT, UNDER ANY PROVISION OF INDEMNITY, OR OTHERWISE, REGARDLESS OF T14E THEORY OF LIABILITY UPON WHICH ANY SUCH CLAIM MAY BE BASED. A. Licensee acknowledges and agrees that Utility does not warrant the condition or safety of Utility's Facilities, or the premises surrounding the Facilities. Licensee further acknowledges and agrees that it has an obligation to inspect Utility's Poles and/or premises surrounding the Poles, prior to commencing any work on Utility's Poles or entering the premises surrounding such Poles. LICENSEE HEREBY ASSUMES ALL RISKS OF ANY DAMAGE, INJURY OR LOSS OF ANY NATURE WHATSOEVER CAUSED BY OR IN CONNECTION WITH THE USE OF THE POLES AND ASSOCIATED FACILITIES AND EQUIPMENT ONI WITHIN, OR SURROUNDING THE POLES. B. By executing this Agreement, Licensee warrants that it has acquainted, or will fully acquaint, itself and its employees and/or contractors and agents with the conditions relating to the work that Licensee will undertake under this Agreement and that it fully understands or will acquaint itself with the facilities, difficulties, and restrictions attending the execution of such work. C. UTILITY MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO UTILITY'S FACILITIES OR POLES, ALL OF WHICH WARRANTIES ARE HEREBY DISCLAIMED. UTILITY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. D. The parties further understand and agree that in the performance of work under this Agreement, Licensee and its agents, employees, contractors and subcontractors will work near electrically energized lines, transformers, or other Utility Facilities, and it is the intention that energy therein will not be interrupted during the continuance of this Agreement, except in an emergency endangering life, grave personal injury, or property. 17 6620443 Licensee shall ensure that its employees, agents, contractors and subcontractors have the necessary qualifications, skill, knowledge, training, and experience to protect themselves, their fellow employees, employees of Utility, and the general public, from harm or injury while performing work permitted pursuant to this Agreement. In addition, Licensee shall furnish its employees, agents, contractors and subcontractors with competent supervision and sufficient and adequate tools and equipment for their work to be performed in a safe manner, and shall require its contractors and other agents to comply with all applicable federal, state and local laws, rules and regulations. Licensee, and its employees and contractors, shall utilize and install adequate protective equipment to ensure the safety of people and facilities. Licensee agrees that in emergency situations in which it may be necessary to de -energize any part of Utility's equipment, Licensee shall ensure that work is suspended until the equipment has been de -energized and that no such work is conducted unless and until the equipment is made safe. E. In the event Utility de -energizes any equipment or line at Licensee's request and for Licensee's benefit and convenience in performing a particular segment of any work, Licensee shall reimburse Utility in full for all costs and expenses incurred to comply with Licensee's request for de-energization of any equipment or line. F. In the event that Licensee shall cause an interruption of service by damaging or interfering with any equipment of Utility, Licensee at its expense shall immediately do all things reasonable to avoid injury or damages, direct and incidental, resulting from the interruption and shall notify Utility immediately. To the extent permitted by Texas law, Licensee shall be liable for all direct costs resulting from such damage and any necessary repairs. G. Licensee further warrants that it is apprised of, conscious of, and understands the imminent dangers (INCLUDING SERIOUS BODILY INJURY OR DEATH FROM ELECTROCUTION) inherent in the work necessary to make installations on Utility's Poles by Licensee's employees, agents, contractors or subcontractors, and accepts it as its duty and sole responsibility to notify and inform Licensee's employees, agents, contractors or subcontractors of such dangers, and to keep them informed regarding same. A. At all times during the term of this Agreement, Licensee shall keep in force and effect the following described insurance coverage: 1. Worker's Compensation and Employers' Liability Insurance. Statutory worker's compensation benefits and employers' liability insurance with a limit of liability no less than that required by Texas law for each accident at the time of the application of this provision. This policy shall include a waiver of subrogation in favor of Utility. Licensee shall require subcontractors and others not protected under its insurance to obtain and maintain such insurance. 18 6620443 2. Commercial General Liability Insurance. Provide coverage for, but not limited to: premises and operations, products and completed operations, personal injury, blanket contractual coverage, broad form property damage, independent contractor's coverage and coverage for property damage from perils of explosion, collapse or damage to underground utilities (commonly known as XCU coverage). Limits of liability of $2,000,000 general aggregate, $2,000,000 products/completed operations aggregate, $2,000,000 personal injury, $2,000,000 each occurrence. 3. Automobile Liability Insurance. Business automobile coverage for all owne hired and non -owned private passenger autos and commercial vehicles. Limits liability of $1 000,000 each accident. 4. Umbrella Excess Liability insurance. Additional coverage in excess of oth I required insurance. Limits of liability of $4,000,000 each occurrence, $4,000 ' 0 e aggregate. Licensee may use any combination of primary and excess to in required total limits. 5. Property Insurance. Each party will be responsible for maintaining its own facilities, buildings and other improvements, including all equipment, fixtures, and utility structures, fencing or support systems that may be placed on, within or around Utility Facilities to fully protect against hazards of fire, vandalism and malicious mischief, and such other perils as are covered by policies of insurance commonly referred to and known as "extended coverage" insurance or self -insure such exposures. B. Each insurer must be authorized to do business under the laws of the State of Texas and have an "A" or better rating in Best's Guide. Licensee's required insurance will be primary. Licensee may self -insure the obligations contained herein. C. Prior to the execution of this Agreement and upon renewal of each insurance policy during the term of this Agreement, Licensee will furnish Utility with a Certificate of Insurance evidencing the insurance coverage required by this Agreement. The Certificate of Insurance shall reference this Agreement and workers' compensation and property insurance waivers of subrogation required by this Agreement. Utility, its council members, board members, commissioners, agencies, officers, employees and representatives (collectively, "Additional Insureds") shall be included as Additional Insureds as respects this Agreement under each required insurance policy, except worker's compensation, which shall be so stated on the Certificate of Insurance. Each policy, other than worker's compensation, shall be written on an occurrence and not on a claims -made basis. Each policy may be written with deductibles, not to exceed $100,000, or such greater amount as expressly allowed in writing by Utility. Licensee shall defend, indemnify and hold harmless Utility and Additional Insureds from and against payment of any deductible and payment of any premium on any insurance policy required by this Agreement. Utility shall be given thirty (30) calendar days advance notice of cancellation or nonrenewal of any required insurance that is not replaced during the term of this HE, 6620443 Agreement. Licensee shall provide certified copies of the insurance policies to Utility on request. D. The limits of liability may be increased or decreased by mutual consent of the parties, which consent will not be unreasonably withheld by either party, in the event of any factors or occurrences which could materially increase or decrease Utility's or Licensee's exposure to risk. E. No insurance coverage required to be obtained and maintained by Licensee or its contractors or subcontractors shall contain provisions: (1) that exclude coverage of liability arising from excavating, collapse, or underground work, (2) that exclude coverage for injuries to Utility's employees or agents, and (3) that exclude coverage of liability for injuries or damages caused by Licensee's contractors or contractor's employees, or agents. This list of prohibited provisions shall not be interpreted as exclusive. F. Licensee shall be fully responsible for any deductible or self-insured retention amounts contained in its insurance program and for any deficiencies in the amounts of insurance maintained. G. Licensee shall require reasonable and prudent insurance coverage and limits from any of its subcontractors while performing work hereunder. To the extent that the insurance coverage Licensee is required to provide does not cover subcontractors, and the work of subcontractors, Licensee shall require subcontractors to obtain and maintain insurance coverage of the type that Licensee is required to obtain pursuant to this Agreement with the same limits. XVIII. AUTHORIZATION Utility shall have the right to grant, renew and extend rights and privileges to others not party to this Agreement, by contract or otherwise, to use Utility Facilities covered by this Agreement. Such rights shall not interfere with the rights granted to Licensee by the specific Permits issued pursuant to this Agreement. A. This License Agreement and associated Permits may not be assigned, transferred, sold, or disposed of by Licensee without the prior written consent of Utility expressed by action of the City Council of the City of Georgetown. B No assignment or transfer shall be allowed unless and until the assignee or transferee becomes a signatory to this Agreement and assumes all obligations of Licensee arising under this Agreement. Notwithstanding any assignment or transfer, Licensee shall remain fully liable under this Agreement and shall not be released from performing any of the terms, covenants or conditions of this Agreement without the written consent to the release of Licensee by Utility. K11 6620443 C. Licensee shall not sub -license or lease its rights under this Agreement to an unaffiliated third party, including but not limited to allowing third parties to place Attachments on Utility's Poles, directly or through Overlashing, or by placing Attachments on Utility's Poles for the benefit of such third parties, without Utility's prior written consent. Any such action shall constitute a material breach of this Agreement. Failure of Utility or Licensee to take action to enforce compliance with any of the terms or conditions of this Agreement, or to give notice, or to declare this Agreement or any authorization granted under this Agreement terminated, shall not constitute a waiver or relinquishment of any term or condition of this Agreement, but the same shall be and remain at all times in full force and effect until terminated, in accordance with this Agreement. I ircil iiq�I A. Licensee shall be in default: 1. When Licensee fails to comply with any term or condition of this Agreement, including but not limited to the following circumstances: a. Construction, operation or maintenance of Licensee's Communications Facilities in violation of law or in aid of any unlawful act or undertaking; or b. Construction, operation or maintenance of Licensee's Communications Facilities after any authorization required of Licensee has lawfully been denied or revoked by any governmental or private authority; or C. Construction, operation or maintenance of Licensee's Communications Facilities without the required insurance coverage; or d. Licensee's Communications Facilities, including Overlashing, are found occupying any portion of any of Utility's Poles for which no Permit has been issued and is in effect; or e. Failure of the Licensee to timely cure a violation of any Applicable Standard or provision of this Agreement; or f. Nonpayment of any undisputed amount due under this Agreement. B. Utility will notify Licensee in writing of any default condition(s) pursuant to Section 21(A) above. Licensee shall take immediate corrective action to eliminate any such condition(s) within thirty (30) days of receipt of notice and shall confirm in writing to Utility that the noticed condition(s) has ceased or been corrected. If Licensee fails to discontinue or correct such condition(s) and/or fails to give the required confirmation within thirty (30) days as required, Utility may take any remedy available under this 21 6620443 Agreement, including immediately terminating this Agreement or any Permit issued pursuant to this Agreement. C. Licensee may terminate this Agreement by giving Utility written notice of its election to terminate this Agreement within thirty (30) days after receiving notice of a change in fees and charges from Utility. D. Upon termination of this Agreement pursuant to Section 21(B) above, Licensee shall remove its Communications Facilities within sixty (60) days after termination, at Licensee's sole expense. If Licensee fails to remove the Communications Facilities within sixty (60) days of termination, Utility shall have the right to remove the Communications Facilities at Licensee's expense. E. Licensee shall be liable for and pay all fees and charges pursuant to terms of this Agreement to Utility until Licensee's Communications Facilities are actually removed. F. After the termination of this Agreement, Licensee's responsibility and indemnity obligations shall continue with respect to any claims or demands related to Licensee's Communications Facilities as provided for in this Agreement or applicable law. XXIL TERM OF AGREEMIENT This Agreement shall have an Initial Term of five (5) years from and after the Effective Date hereof. Unless written notice is given by either party hereto to the other, not less than one year prior to the expiration of the Initial Term, that the notifying party chooses to not renew the Agreement beyond the Initial Term, the Agreement shall automatically renew for an additional period of five (5) years from such expiration date. Thereafter the Agreement shall automatically renew for successive five-year periods unless either party gives written notice of termination not less than one year before the expiration of any renewal period. The terms and conditions of this Agreement shall not be amended, changed or altered except in writing and with approval by authorized representatives of Utility and Licensee. A. When notice is required to be given by either party to the other, such notice shall be in writing and shall be effective when mailed by certified mail, return receipt requested, with postage prepaid and properly addressed as follows: If to Utility, at: 6620443 City Manager City of Georgetown P.O. Box 409 Georgetown, Texas 78627 "M If to Licensee, at: Bradley Lowrey Aq�� Atea`-��*Twwk- 281.374.5910 b17919@att 'com 11930 Airline, Rm. 210 Houston, Texas 77037-1005 or to such other address as either party may give the other party in writing. B. Licensee shall maintain a staffed 24-hour emergency telephone number, not available to the general public, where Utility can contact Licensee to report damage to Licensee's facilities or other situations requiring immediate communications between the parties. Such contact person shall be qualified and able to respond to Utility's concerns and requests. Failure to maintain an emergency contact as required shall subject Licensee to a penalty of $100 per incident, and shall eliminate Utility's liability to Licensee for any actions that Utility deems reasonably necessary given the specific circumstances V. ENTIRE AGREEMENT This Agreement supersedes all previous agreements, whether written or oral, between Utility and Licensee for placement and maintenance of Licensee's Communications Facilities on Utility's Poles within the geographical operating area covered by this Agreement; and there are no other provisions, terms or conditions to this Agreement except as expressed in this Agreement. If any provision or portion of this Agreement is or becomes invalid under any applicable statute or rule of law, and such invalidity does not materially alter the essence of the Agreement to either party, such provision shall not render unenforceable this entire Agreement but rather it is the intent of the parties that the Agreement be administered as if not containing the invalid provision. The validity, performance and all matters relating to the effect of this Agreement and any amendment of this Agreement shall be governed by the laws (without reference to choice of law) of the State of Texas. The Recitals stated above and Appendix A to this Agreement are incorporated into and constitute part of this Agreement. M1 6620443 In the event that either Utility or Licensee is prevented or delayed from complying with this Agreement by reason of acts of nature (i.e. fire, flood, earthquake), wars, civil commotion, acts of terrorism or vandalism, embargo, acts of the government in its sovereign capacity, material changes of law or regulations, unavailability of equipment or material, or any other such cause z"D not attributable to the negligence or fault of the party delayed or prevented in performing as required by this Agreement, then performance of such acts shall be excused for the period of the unavoidable delay, and the party shall remove or overcome such inability as soon as reasonably possible under the circumstances. Utility shall not impose any charges on Licensee stemming solely from Licensee's inability to perform required acts during a period of unavoidable delay provided that Licensee presents Utility with written notice of the force majeure within a reasonable time after occurrence of the event or cause relied on. This provision shall not operate to excuse Licensee from the timely payment of any fees or charges due Utility under this Agreement. IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate. BY: BY: NAME: NAME: ATTEST: LICENSEE BY: BY: NAME: NAME: FUM STATE OF TEXAS § § ACKNOWLEDGMENT COUNTY OF WILLIAMSON § This instrument was acknowledged before me on this the day of by , a person known to me in his capacity as of the City of Georgetown, on behalf of the City of Georgetown. Notary Public — State of Texas 0 6620443 STATE OF TEXAS § ACKNOWLEDGMENT COUNTYOF This instrument was acknowledged before me on this the day of by a person known to me in his capacity as of , on behalf of Notary Public — State of Texas 25 6620443 Effective Date: Permit Fee (multiplied per pole) Make -Ready Charges Annual Pole Attachment Fee (multiplied per pole) Inspection Fee Unauthorized Attachment Fee (multiplied per day, per Attachment, until complete Permit application is submitted for Attachment) (multiplied per day, per pole, after notice period expires) w 6620443 $25.00 Actual Cost $14.08 Actual Cost $45.00