HomeMy WebLinkAboutresolution.council.133-19 RESOL U T I ON #133
(Series of 2019)
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ASPEN,
COLORADO, APPROVING A MASTER LICENSE AGREEMENT
BETWEEN THE CITY OF ASPEN AND NEW CINGULAR WIRELESS PCS,
LLC. AUTHORIZING THE CITY MANAGER TO EXECUTE SAID
MASTER LICENSE AGREEMENT ON BEHALF OF THE CITY OF ASPEN,
COLORADO.
WHEREAS, there has been submitted to the City Council a Master
L i cense Agreement, between the Ci ty of Aspen and N ew Ci ngul ar Wi rel ess
PCS, L L C, a true and accurate copy of whi ch i s attached hereto as Exhi bi t "
B" '
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF ASPEN, COLORADO,
That the City Council of the City of Aspen hereby approves that Master
L i cense Agreement between the Ci ty of Aspen and N ew Ci ngul ar Wi rel ess PCS,
L L C a copy of whi ch i s annexed hereto and i ncorporated herei n, and does
hereby authorize the City Manager to execute said Master L i cense Agreement on
behalf of the City of Aspen.
INTRODUCED, READ AND ADOPTED by the City Council of the City
of Aspen on the 26th day of November 2019.
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Torre, M ayor
1, Linda Manning, duly appointed and acting City Clerk do certify that the
foregoing is a true and accurate copy of that resolution adopted by the City
Counci I of the Ci ty of Aspen, Col orado, at a meati ng hel d, N ovember 20h,
2019.
L i nda M anni ng, Ci ty CI
AGREEMENT BETWEEN THE CITY OF ASPEN AND NEW CINGULAR WIRELESS
PCS, LLC FOR THE USE OF LICENSOR PROPERTY IN CONNECTION WITH THE
OPERATION OF A WIRELESS NETWORK
This Agreement is made and entered into by and between the City of Aspen, a Colorado home rule
municipality ("Licensor") and New Cingular Wireless PCS, LLC, a Delaware limited liability
company ("Licensee"). Licensor and Licensee may be referred to herein individually as a"Party"
or collectively as the "Parties."
RECITALS
This Agreement is made with reference to the following Recitals, each of which is deemed to be a
material term and provision of this Agreement:
A. Licensor is the owner of rights-of-way, streets, utility easements, and similar
property rights, as well as certain municipal facilities located in the public rights-of-way situated
within the City limits of Aspen, Colorado ("ROW").
B. Licensee is duly organized and existing under the laws of the State of Delaware,
and Licensee and its lawful successors, assigns,and transferees are authorized to conduct business
in the State of Colorado.
C. Licensee owns and/or controls, maintains, and operates a wireless and fiber
communications network serving residents and visitors in the City of Aspen (collectively, the
"Network," as more fully described in Section 1.1(k) below).
D. For purposes of operating the Network,the Licensee wishes to locate, place, attach,
install, operate, control, and maintain antennas and other related wireless communication
equipment consistent with Small Cell technology ("Equipment") in the public Rights-of-Way
("ROW") (as defined below).
E. Licensee will agree to comply with Licensor's ROW and land use requirements as
provided herein.
F. Licensee is willing to compensate Licensor in exchange for a grant and right to use
and physically occupy portions of the poles and/or the ROW as provided herein.
AGREEMENT
1. Definitions and Exhibits.
1.1 Definitions. For the purposes of this Agreement and all Exhibits attached hereto,
the following terms, phrases, words and derivations shall have the meaning given herein. When
not inconsistent with the context, words used in the present tense include the future, words in the
plural include the singular, and words in the singular include the plural. Words not defined shall
be given their common and ordinary meaning. The word "shall" is always mandatory and not
merely discretionary. This Section also includes the definitions as set forth in the Aspen Municipal
Code, including the City of Aspen Land Use Code.
49145667.2
(a) "Agreement" means this Agreement for the Use of Licensor Property in
connection with the Operation of a Wireless Network.
(b) "Aspen Municipal Code" means City of Aspen Municipal Code, and any
regulations promulgated thereunder.
(c) "City" means the City of Aspen, Colorado.
(d) "Equipment" means Small Cell antennas and other wireless
communications equipment utilizing small cell technology that is specifically identified,
described, and approved by the Licensor as set forth in Exhibit A-1 attached to each Site
Supplement (as defined below) and includes, but is not limited to, nodes, antennas, fiber optic
cable, coaxial cable, wires, frequencies,technology, conduits and pipes, a pole, and associated and
appurtenant equipment on the pole or on the ground deemed by Licensee necessary to operate the
Wireless Site and uses intended thereto.
(e) "Facilities" means poles, street light poles, traffic poles, structures,
infrastructure, and fixtures located within the ROW.
(f) "FCC" means the Federal Communications Commission.
(g) "Hazardous Substance" means any substance, chemical or waste that is
identified as hazardous or toxic in any applicable federal, state or local law or regulation, including
but not limited to petroleum products and asbestos.
(h) "Interference" means physical interference and radio frequency
interference.
(i) "Laws" means all applicable federal, state, and local laws, statutes,
constitutions, code, City of Aspen Home Rule Charter, ordinances, resolutions, regulations,
judicial decisions, rules, permits, approvals or other applicable requirements of the Licensor or
other governmental entity, agency or judicial authority having the force and effect of law that
determines the legal standing of a matter relating to the Parties and/or this Agreement.
0) "Municipal Facility/Facilities" means those Licensor-Owned poles and
fixtures located within the ROW including, without limitation, streetlight poles and traffic poles,
that are designated or approved by Licensor as being suitable for placement of Equipment.
(k) "Network," or collectively "Networks", means one or more of the wireless
communications facilities operated by Licensee to serve its wireless carrier customers in the City.
(1) "Owner" means a person with a legal or equitable interest in ownership of
real or personal property.
(m) "Permit" means a permit issued and described in accordance with Laws,
which is used to regulate, monitor, and control the improvement, construction, or excavation
activities, or other work or activity, occurring upon or otherwise affecting Licensor's ROW,
including ROW use, zoning, building, and electrical permits.
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(n) "Person" means any corporation, limited liability company, partnership,
proprietorship, individual, or organization, governmental organization, or any natural person.
(o) "Physical Interference" means where equipment, vegetation, or a structure
causes reduced use of another's prior mounted equipment, or an obstruction in a necessary line-
of-sight path.
(p) "Pole Attachment Fee" means that fee described in Section 4.1 of this
Agreement.
(q) "Radio Frequency Interference" means the emission or conduction of radio
frequency energy (or electronic noise) produced by electrical and electronic devices at levels that
interfere with the operation of adjacent or nearby equipment.
(r) "Rights-of-Way" or "ROW" means the surface of and the space above and
below the public roads, streets, highways, freeways, lanes, public way, alleys, courts, sidewalks,
boulevards, parkways, drives, bridges, tunnels, and public utility easements, now or hereafter held
by Licensor, or dedicated for use by Licensor, for use by the general public, or for use compatible
with the operations of the Equipment.
(s) "Site Supplement"means the form of the license granted by this Agreement,
described in Section 3.2 below, and shown on Exhibit A.
(t) "Small Cell Facility" means a Wireless Communications Facility (also a
"WCF") that meets both of the following qualifications: (1) A wireless communication facility
where each antenna is located inside an enclosure of no more than three cubic feet in volume, or,
in the case of an antenna that has exposed elements, the antenna and all of its exposed elements
that could fit within an imaginary enclosure of no more than three cubic feet; and (2) primary
equipment enclosures are not larger than seventeen cubic feet in volume. The following associated
equipment may be located outside of the primary equipment enclosure and, if so located, is not
included in the calculation of equipment volume: electric meter, concealment,
telecommunications demarcation box, ground-based enclosure, back-up power systems,
grounding equipment, power transfer switch and cut-off switch. All associated equipment, even
if located outside of the primary equipment enclosure, shall be included within the definition of
Small Cell Facility.
(u) "Term" means the period that this Agreement is in effect as described in
Section 3.1 of this Agreement.
(v) "Wireless Communications Facility" (also a "WCF") means the same as a
Wireless Communications Facility or WCF as defined in the Aspen Land Use Code, at Section
26.505.030.
(w) "Wireless Site" means a location on ROW selected for the Licensee's
deployment of its Equipment and approved by Licensor, and includes a WCF and Small Cell
Facility.
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1.2. Exhibits. The following numbered documents, which are occasionally referred to
in this Agreement, are formally incorporated and made part of this Agreement by this reference:
(a) Exhibit A: Site Supplement
Exhibit A-1: License Plans, Licensed Area, and Description of Licensee
Facilities/Equipment to be Installed as Approved by Licensor
(b) Exhibit B: Design Standards for Small Cell Facilities
(c) Exhibit B-1: Uniform Design Template for Small Cell Facilities
(d) Exhibit C: Licensee's Limits of Insurance
In the event of any conflict between this Agreement, including the Exhibits, and the Aspen
Municipal Code as it exists on the effective date of this Agreement, the Aspen Municipal Code
prevails, except as federal or state law may preempt or act to modify the Aspen Municipal Code
at present or in the future. Future amendments to the Aspen Municipal Code shall also prevail in
the case of any conflict with any provisions of this Agreement and any Exhibits, so long as the
Aspen Municipal Code changes do not alter any material rights granted herein, and except as
federal or state law may preempt or act to modify the Aspen Municipal Code.
2. Grant of License and Terms.
2.1. License. Licensor hereby grants to the Licensee, a non-exclusive license to use and
occupy the ROW throughout Licensor's territorial boundaries,as these boundaries may be adjusted
from time to time due to annexations, to attach, install, operate, maintain, upgrade, remove,
reattach, reinstall, relocate and replace Equipment at each approved Wireless Site ("License").
This grant is subject to the terms, conditions and other provisions set forth in this Agreement and
all Laws. Licensee shall install its Equipment consistent with applicable Laws.
2.2. Scope and Priority. Licensee's Equipment may be attached to or replace structures
in the City with the following order of priority of attachment (or replacement, as required), except
as set forth below or as agreed between the Parties:
(i) Colorado Department of Transportation (CDOT) traffic signal poles or
other City-owned poles in the ROW under the terms of this Agreement,
(ii) Other third-party poles under the terms of a fully executed pole attachment
agreement with the Owner of such poles,
(iii) to the extent permitted by, and in conformance with, City regulations and
ordinances, on the Licensee's proprietary poles.
Locations will be prioritized based upon Licensee's technical and radio frequency needs and
construction costs, but in any situation where Licensee has a choice of Equipment locations, the
Parties shall mutually exercise good faith efforts to agree on attachments to poles in the order
indicated above.
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2.3. Approval Process. The Parties agree that the application and approval process for
the Equipment attachments referred to in 2.1 and 2.2 shall be conducted pursuant to the City of
Aspen Municipal Code, including the City of Aspen Land Use Code.
2.4. Modifications.
(a) Minor Modifications. Notwithstanding anything in the Agreement to the
contrary, modifications to the Equipment with like-kind or similar Equipment shall be subject to
permitting required under applicable Laws, but shall not be subject to written approval of the
Licensor under the Aspen Municipal Code, including the Aspen Land Use Code,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, or
loading impacts on the pole as approved by Licensor or impact multi-modal traffic flow; 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 and does not impact multi-modal
traffic flow.
(b) Substantial Modification. Any modification which does not meet the
requirements of a Minor Modification as defined in 2.4(a) above shall be considered a Substantial
Modification. For all Substantial Modifications, Licensee shall first obtain the written approval for
the use and installation of the unauthorized Equipment from an authorized representative of the
Licensor pursuant to the City of Aspen Municipal Code, including the City of Aspen Land Use
Code, pursuant to the timelines under applicable Law and required permitting, which approval
shall not be unreasonably withheld, conditioned or delayed. In addition to any other submittal
requirements, Licensee shall provide "load" (structural) calculations for all Facilities upon which
it intends to modify Equipment in the ROW.
2.5. Permitted Use of ROW. ROW may be used by the Licensee seven (7)days a week,
twenty-four(24)hours a day, only for the Wireless Sites, and use and operation of Equipment, and
not for any other purpose. Installation of all Equipment shall be permitted only during the dates
and hours specified in Title 21 and Title 29 of the City of Aspen Municipal Code. Licensee shall,
at its expense, comply with all Laws in connection with the use, installation, operation,
maintenance, and replacement of Equipment in the ROW, including without limitation, obtaining
the necessary Permits, traffic control plan approvals, or street occupancy fees for any work within
the ROW by the Licensee and allowable work dates and hours under the Aspen Municipal Code.
2.6. Inventory of Wireless Sites. Licensee shall maintain a current inventory of
Wireless Sites governed by this Agreement throughout the Term. Licensee shall provide to
Licensor, at Licensor's reasonable request, a copy of the inventory of Wireless Sites governed by
this Agreement within 60 days of such request. The inventory shall include GIS coordinates,
License Site ID 4, type of pole used for installation, pole Owner, 24-hour emergency contact
information, and designation/type of installation for each Wireless Site Equipment installation
within the ROW. The inventory shall also include a NIER (non-ionizing electromagnetic
radiation) report describing each Wireless Site and that includes tabular and graphical evidence of
the proposed facility's relationship to maximum permissible exposure and directional extent of RF
signals (gradations down to 1% MPE). Graphical information should include locational detail
including topography and property lines.Any provided format of the NIER report must be stamped
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by a Colorado licensed Engineer. Licensee shall also provide a letter certifying that each wireless
site complies with federal standards for radio frequency emissions. Concerning Wireless Sites that
become inactive,the inventory shall include the same information as active installations in addition
to the date the Wireless Site was deactivated and the date the Small Cell Facility was removed or
is scheduled to be removed from the ROW. The City will compare the inventory to its records to
identify any discrepancies.
2.7. Licensor's request for a current inventory shall be limited to no more than one time
per calendar year throughout the Term unless there is a substantial change to Licensee's inventory.
The inventory shall include the location of each installation.
2.8. Additional Installations. Licensee may install its Equipment on other poles in the
ROW lawfully owned and operated by third parties. Subject to obtaining the written permission
of the Owner(s) of the affected property, and obtaining any required building or electrical Permits
(and paying associated Permit fees), the Licensor hereby authorizes and permits Licensee to enter
upon the ROW and to attach, install, operate, maintain, remove, reattach, reinstall, relocate, and
replace Equipment in or on poles or other structures lawfully owned and operated by public utility
companies or other property Owners located within the ROW as may be permitted by the public
utility company or property Owner, as the case may be. In such situation, a Site Supplement shall
be required but a Pole Attachment Fee shall not be paid. Licensee will obtain all required Permits
and approvals for installation on third party poles in the ROW pursuant to the City of Aspen
Municipal Code, including the City of Aspen Land Use Code.
2.9. Unauthorized Installations. Any WCF or any Wireless Site owned or operated by
the Licensee or an Affiliate of the Licensee which WCF or Wireless Site is not authorized in
accordance with Applicable Laws shall constitute a material breach of this Agreement. Upon
discovery of any unauthorized WCF or unauthorized Wireless Site and upon notice by the
Licensor, the Licensee shall immediately and without undue delay decommission or otherwise
render the WCF or Wireless Site inoperable and the Licensee shall remove the unauthorized WCF
or Wireless site within thirty (30) days of such notice by the Licensor; provided, however, upon
written request of the Licensee to the Licensor and with the discretionary consent of the Licensor,
the Licensor may stay or toll the required removal of the unauthorized and inoperable WCF or
Wireless Site in order that the Licensee may apply for approval of the WCF or Wireless Site in
accordance with Laws. In the event that the Licensee elects to apply for approval of the
unauthorized WCF or Wireless Site in accordance with this Section, any application for approval
shall be processed as if the WCF or Wireless Site was never established and there shall be no
presumption or assumption that the WCF or Wireless Site is acceptable, appropriate, or necessary
to the Licensee's Network due to its prior existence or prior operation. In the event that the
Licensee's application for approval of an unauthorized WCF or Wireless Site is denied, the
Licensee shall remove the WCF or Wireless Site within thirty (30) days of the date of the
Licensor's denial of the application. In the event that the Licensee's application for approval of an
unauthorized WCF or Wireless Site is approved, Licensee must pay all required fees for a new
Wireless Site that have not otherwise already been paid, plus interest at the rate of 2% per annum
on the required fees from the date of the original installation.
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3. Term of Agreement, Supplements, Cancellation, Termination, Removal or Abandonment
at Expiration.
3.1. Agreement Term. The initial term of this Agreement shall commence upon the
Effective Date and shall expire ten(10)years from the Effective Date(the"Term"),unless renewed
as herein provided in Section 3.2. The term of each Supplemental Site License shall be concurrent
with the term of this Agreement and any extension thereof, provided, however that the minimum
term of a Supplemental Site License shall be five (5) years, so that should the Term of this
Agreement expire before the end of any five (5) year Supplemental Site License term, this
Agreement shall remain in effect only with respect to any Supplemental Site License through the
end of such Supplemental Site License's term.
3.2. Renewal. Unless earlier terminated by either party pursuant to the provisions of
this Agreement, the Licensee may request a renewal of this Agreement, by providing six (6)
months written notice of the intent to renew prior to the expiration date of the Agreement. After
providing such notice, this Agreement shall renew on the same terms and conditions as herein for
one(1) successive term of five(5)years,provided that the Licensee has complied with the material
terms of this Agreement. If the Licensor does not believe that the Licensee is entitled to renewal
as requested, the Licensor shall provide written notification to the Licensee at least one-hundred
and eighty (180) days prior to the expiration date of this Agreement, in which notice the Licensor
shall provide support for its position. As between the Licensor and the Licensee, the Licensee shall
at all times retain control of the WCFs, unless an alternative vertical structure, such as a street
light, has been purchased by the Licensee and ownership conveyed to the Licensor, pursuant to
this Agreement. Upon expiration or non-renewal of this Agreement, within sixty (60) days of the
expiration of the then-current Term, the Licensee shall be required to remove its WCFs installed
within the ROW, or alternatively, sell the same to a qualified buyer consistent with Applicable
Law.
3.3. Licensee Cancellation. Licensee may cancel this Agreement or any Site
Supplement before the date of expiration by providing the Licensor with thirty (30) days express
written notice of cancellation. Any prepaid Pole Attachment Fee shall be retained by Licensor.
This Agreement and all Site Supplements may only be cancelled or terminated as provided in this
Agreement or any Site Supplement.
3.4. Abandonment. If Licensee abandons the use of a Municipal Facility or a Licensee-
Owned Facility location or any of its Equipment located on third-party structures in the ROW for
a period of six (6) or more consecutive months, the Equipment for such Municipal Facility or the
Equipment and Licensee-Owned Facilities shall be removed at the expense of Licensee. In the
event Licensee is unable or refuses to remove such Equipment when requested by Licensor,
Licensor may authorize removal and Licensee shall be responsible for all costs incurred for such
removal. In no event may Licensee abandon in place any of its WCFs installed in or on the ROW,
unless written consent of the Licensor is obtained.
4. Fees and Charges. Licensee shall be solely responsible for the payment of all fees and
charges in connection with Licensee's performance under this Agreement,including those set forth
as follows:
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4.1. Pole Attachment Fee.
(a) Annual Fee. As of the Commencement Date defined in each Site
Supplement, Licensee shall pay to Licensor an annual fee equal to$270.00 for each
Site Supplement where Licensee is attaching to a Municipal Facility. Beginning
on the first anniversary of the Commencement Date and continuing throughout the
Supplement Term, including any extensions or additional extensions, the annual
fee due hereunder may increase at the election of the City but in no case shall
increase by more than 2% per annum over the annual rental rate due during the
immediate preceding year unless otherwise authorized by the FCC. The annual fee,
plus any escalator, shall be the "Pole Attachment Fee." In the event any Law
provides Licensee the right to use the Municipal Facilities at an annual rate less
than the rate set forth herein, the annual Pole Attachment Fee shall be reduced to
such amount on the next anniversary of the Commencement Date (or earlier if
required by such Law) for all existing Site Supplements, and all new Site
Supplements shall be entered into at such new rate. In such event, the Parties shall
enter into an amendment to this Agreement documenting such amount. The annual
Pole Attachment Fee shall not apply to or be charged for attachments to third-party
Facilities, the installation of Licensee's proprietary poles in the ROW, or to any
poles conveyed to Licensor by Licensee.
(b) Fee Payment. The Pole Attachment Fee is non-refundable and is payable
within ninety (90) days of the initial Commencement Date, and on or before each
subsequent annual anniversary of the Commencement Date during the Supplement
Term (or until such earlier time as such Site Supplement is terminated). Upon
agreement of the Parties, Licensee may pay the Pole Attachment Fee by electronic
funds transfer and in such event, Licensor agrees to provide to Licensee bank
routing information for such purpose. Licensor agrees to provide to Licensee a
completed, current version of Internal Revenue Service Form W-9, or equivalent.
Until the requested documentation has been received by Licensee, rent shall accrue
in accordance with this Agreement but Licensee shall have no obligation to deliver
rental payments. Upon receipt of the requested documentation, Licensee shall
deliver the accrued rent as directed by Licensor.
4.2. Taxes. Licensee shall pay all applicable City, county and state taxes levied,
assessed,or imposed on Licensee or on Licensee's Equipment by reason of this Agreement.
4.3. Electric Meter. Licensee shall be responsible for paying all charges for any
electricity furnished by a utility to Licensee and for charges for furnishing service to the
Equipment. When the Equipment requires an electric meter, as determined by the utility
provider, the Licensee shall install or cause to be installed a separate electric meter on a
ground mounted pedestal or on Licensee's pad mounted equipment cabinet as required by
the electric provider for the operation of its Equipment. Licensee will request of the utility
provider that it in good faith attempt to install power facilities which are inconspicuous as
reasonably possible and yet consistent with electric code installation requirements.
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4.4. Payments Made. All fees and/or additional payments shall be payable to Licensor
at the address provided in Paragraph 18 of this Agreement for Licensor; or to such other
persons or at such other places as Licensor may designate in writing. All payments shall
be in lawful money of the United States of America.
5. Permits. No payment is collected under this Agreement for any Permit issued in connection
with the installation of Equipment at any Municipal Facility. However, to the extent not in
contravention of any applicable Law, all of the Equipment will be installed, operated and
maintained by or on behalf of Licensee in accordance with applicable provisions of the Aspen
Municipal Code. Licensee or its designee may be required to apply for, obtain and pay the
generally applicable fees for a Permit issued by the Licensor for work performed within the ROW,
and the ROW will be used according to the plans submitted by Licensee and approved by the
Licensor in issuing a Permit. Execution of this Agreement or any Site Supplement does not
constitute the issuance of a Permit.
6. Design.
6.1. Basic Design and Installation Requirements for Using Municipal Facilities. The
basic design of the Equipment will be described in Exhibit A-1 to each Site Supplement. All of
Licensee's construction and installation work for its Equipment on the Municipal Facilities shall
be performed at Licensee's sole cost and expense and in a good and workmanlike manner and
promptly completed. When Licensee and Licensor have agreed on an existing Municipal Facility
location as a suitable site for Licensee's Equipment, but the existing Licensor-Owned pole needs
to be replaced to accommodate the Equipment,then Licensee shall pay all costs related to replacing
the Licensor-Owned pole, including but not limited to installation of the replacement pole (the
"Replacement Pole"), and/or other items attached to the existing Licensor-Owned pole to the
Replacement Pole, and removal of the existing Licensor-Owned pole to the Licensor. Payment of
the pole replacement costs does not provide Licensee with any ownership interest in the
Replacement Pole. Licensor will be deemed to own the original Licensor-Owned pole and the
Replacement Pole. The installation or attachment of the Equipment using the Replacement Pole
shall be at Licensee's sole cost and expense.
6.2. Design Standards for Small Cell Facilities. Any Small Cell Facility installed in
accordance with this Agreement shall comply with the design standards set forth in the City of
Aspen Land Use Code, Section 26.505.080, as may be amended, as well as all supplemental design
standards adopted and published by the City pursuant to Section 26.205.080(J)(5). Licensee and
Licensor may agree upon a uniform design templates for small cell facilities that shall be attached
as Exhibit B-1 to this agreement. A Small Cell Facility that conforms to the uniform design
template and all other requirements of the City of Aspen Municipal Code shall be approved
administratively by the City, subject to space and structural capacity and loading review by the
City during the building permit review process. All other municipal reviews and approvals,
including the execution of a Site Supplement, building permits and right of way permits, shall
apply to the installation of any Facility that conforms to the uniform design templates attached
hereto. Modifications to the uniform design template for a Site Supplement may be proposed by
the Licensee by the submission of an alternative design drawing or illustration to the Community
Development Director which drawing or illustration shall clearly identify the differences between
the design template and the proposed alternative design. Where the Community Development
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Director finds such submitted alternative design presents a de minimus or nominal visual impact
when compared to the uniform design template set forth in Exhibit B-1,the Director may approve
such alternative design which approval shall be evidenced by written acknowledgment signed by
the Director and affixed to the particular Site Supplement. The Director shall retain the discretion
to deny a proposed alternative design where the Director finds the proposed design to be more
visually or aesthetically impactful than the uniform design template or,at the Director's discretion,
the Director may submit the proposed alternative design illustrations to the City Manager for an
administrative determination that the proposed design is, or is not, more visually or aesthetically
impactful than the uniform design template. In addition to the design standards depicted in Exhibit
B-1, the Licensee shall follow all applicable Aspen Municipal Code provisions related to WCF
design.
7. Common Conditions or Requirements Applicable to Site Supplements Issued Under this
Agreement.
7.1. Damage to Property. If Licensee damages or disturbs the surface or subsurface of
any ROW or adjoining property, pole, streetlight fixture, traffic signal, fiber, or other public
improvement, in the exercise of the rights granted through this Agreement, Licensee will promptly,
at its own expense, and in a manner reasonably acceptable to Licensor, repair the damage or
disturbance in accordance with the Aspen Municipal Code. Licensee acknowledges its
responsibility to separately adjust damage it actually causes to private property, if any, in the
process of Licensee's exercise of its rights hereunder.
7.2. Licensor Maintenance on or near Wireless Site. In the event Licensor must perform
routine maintenance on, or in close proximity to, any facility on which Licensee has installed
Equipment, such as changing a light bulb, installation of banners,temporary lighting, maintenance
of adjacent structure or nearby trees, Licensor may require Licensee to deactivate such Equipment
upon 24-hour notice if any of Licensor's employees or agents must move closer to the Equipment
than the FCC's or OSHA recommended minimum distance for RF exposure. In such case,
Licensor will contact Licensee at (800) 832-6662 to request deactivation. Additionally, Licensee
shall clearly identify safe minimum distance requirements for each Wireless Site and post all
appropriate occupational hazard language on the facility.
7.3. Public Emergency. In the event of an emergency or to protect the public health or
safety, prior to the Licensor accessing or performing any work on a Municipal Facility on which
Licensee has installed Equipment, Licensor may require Licensee to deactivate such Equipment if
any of Licensor's employees or agents must move closer to the Equipment than the FCC's
recommended minimum distance. In such case, Licensor will contact Licensee at (800) 832-6662
to request immediate deactivation.
7.4. Pole Replacement.
(a) Subject to Section 7.4(e),if a Municipal Facility needs replacement or repair
due to damage, including a traffic accident or deterioration, Licensor shall perform maintenance
or repair as soon as reasonably possible. Licensor may allow Licensee to perform maintenance or
replacement at its sole discretion. In such event, Licensor shall reimburse Licensee within forty-
five(45) days of Licensee's receipt of an invoice. However, in the event Licensee elects in writing
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to have Licensor replace the Municipal Facility, Licensor shall perform such replacement within
one hundred twenty (120) days thereafter, and Licensee shall cooperate with Licensor to
temporarily relocate its Equipment, if necessary. Upon completion of the replacement, Licensor
shall notify Licensee in order for Licensee to install its Equipment.
(b) Licensee shall provide to Licensor, at Licensee's cost, two (2) spare poles
sufficient to serve as a Replacement Pole, which will be stored by Licensor at no cost to Licensee,
and which will be available for use by Licensor and Licensee to replace the Municipal Facility as
provided in this Section 7.3.
(c) Licensor will contact Licensee to pick up the damaged Equipment and
Licensee can reinstall its Equipment once the replacement pole is installed and functioning as a
Municipal Facility.
(d) Licensee may have the right to temporarily use a Municipal Facility for its
operation during the replacement period at a location reasonably acceptable to both Licensor and
Licensee.
(e) In the event Licensor is responsible for replacing the Municipal Facility
with a Replacement Pole due to damage including a traffic accident or deterioration, Licensor shall
only be responsible for the cost of a standard pole, and Licensee shall be responsible for the cost
of the Replacement Pole in excess of the cost of a standard pole, and for all costs relating to
replacement and activation of Equipment on the pole and any ancillary Facilities related to
Licensee's Network. For purposes of this Agreement, a "standard pole" is a pole that meets the -
minimum requirements to house the Municipal Facility without any of the Small Cell Facilities on
the pole as contemplated herein.
7.5. Removal and Relocation.
(a) Licensee understands and acknowledges that Licensor may require
Licensee to relocate one or more of its Equipment installations. Licensee shall, at Licensor's
direction and upon ninety (90) days prior written notice to Licensee, relocate such Equipment at
Licensee's sole cost and expense whenever Licensor reasonably determines that the relocation is
needed for any of the following purposes: (i) if required for the construction, modification,
completion, repair, relocation, or maintenance of a Licensor or other public agency project;
(ii) because the Equipment is interfering with or adversely affecting proper operation of Licensor-
Owned Poles, traffic signals, communications, or other Municipal Facilities; or (iii) Licensor is
abandoning or removing the Municipal Facility. Licensor may also require Licensee to relocate,
remove, modify or disconnect Equipment located in the ROW in the event of an emergency or
when the public health or welfare requires such change (for example, without limitation, the
Equipment is interfering with or adversely affecting proper operation of Licensor-Owned Poles,
traffic signals, communications, or other Municipal Facilities). In any such case, Licensor shall
use reasonable efforts to afford Licensee a reasonably equivalent alternate location. If Licensee
shall fail to relocate any Equipment as requested by the Licensor in accordance with the foregoing
provision, Licensor shall be entitled to remove or relocate the Equipment at Licensee's sole cost
and expense, without further notice to Licensee. Licensee shall pay to the Licensor actual costs
and expenses incurred by the Licensor in performing any removal work and any storage of
11
Licensee's property after removal within thirty (30) days of the date of a written demand for this
payment from the Licensor.
(b) Licensee shall make certain that it has a designated contact person available
24/7 in the event of an emergency requiring Licensor to take immediate action. In such event,
Licensee's contact is: Network Operations Center-(800) 832-6662. If after two attempts to make
contact by Licensor with no response, Licensor shall have the right to undertake any actions that
Licensor may deem reasonably necessary to avoid damage to property or personal injury, and
Licensor's reasonable and documented costs for such undertaking shall be paid by Licensee.
(c) In the event of an assignment, sub-license or transfer pursuant to Section 14
of this Agreement, any such assignee or transferee shall immediately provide updated or new
contact information pursuant to this provision.
(d) In the event Licensee desires to relocate any Equipment from one Municipal
Facility to another, Licensee shall so advise Licensor in advance of such relocation. Licensor will
use reasonable efforts to accommodate Licensee by making another reasonably equivalent
Municipal Facility available for use in accordance with and subject to the terms and conditions of
this Agreement.
(e) In the event Licensee is required to relocate any Equipment, the Licensee
may place a temporary installation in the ROW (e.g. cell-on-wheels) upon prior approval by the
Licensor and compliance with any applicable permit requirements.
7.6. Non-exclusiveness. Subject to Section 7.7(d), the rights and privileges granted to
Licensee under this Agreement, and each Site Supplement described herein, are nonexclusive;
except that, once Licensee places a Wireless Site in the ROW, Licensor shall not control Wireless
Sites, which include, without limitation Licensee equipment and sites licensed by Licensee, and
will not permit another carrier on the same Site unless Licensor confirms the subsequent carrier
will not interfere with the Licensee's existing Wireless Site.
7.7. Non-interference. The following provisions shall apply to ensure and/or avoid
interference (both physical interference and Radio Frequency Interference) resulting from
Licensee's installation, operation and/or maintenance of its Equipment:
(a) Radio Frequency Interference. Licensee shall ensure that the Equipment
will not cause Radio Frequency Interference with Wireless Communication Facilities or devices,
cable television, broadcast radio or television systems, satellite broadcast systems, or Licensor
traffic, public safety or other communications signal equipment existing at the time of installation
of the Equipment or at any time thereafter.
(b) Existing. Licensee shall not interfere in any manner with the existing
uses of Licensor property including ROW, and including sanitary sewers, water mains, storm
drains, gas mains, poles, aerial and underground electric and telephone wires, streetlight fixtures,
fiber infrastructure,cable television,and other telecommunications,utility, and municipal property
without the express written approval of the Owner(s) of the affected property or properties.
12
(c) Licensor Communications. Licensee shall not interfere in any manner with
current or future Licensor or other governmental public safety communication.
(d) Licensor Interference. Licensor reserves the right, but not the obligation, to
maintain and operate its Municipal Facilities in such reasonable manner as will best enable
Licensor to fulfill its own service requirements or obligations. However, Licensor agrees that
Licensor and/or any other tenants, licensees, or users of the ROW who currently have or in the
future take possession of space within the ROW 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 Licensee.
(e) Remedies. Without limiting any other rights or remedies, if interference
occurs and continues for a period in excess of 36 hours following notice to the interfering Party
via telephone to Licensee's Network Operations Center at (800) 832-6662 or to Licensor at (970)
920-5080, the interfering Party shall require any other user to reduce power or cease operations of
the interfering equipment until the interference is cured. The Parties acknowledge that there will
not be an adequate remedy at Law for noncompliance with the provisions of this Section 7 and
therefore the Parties shall have the right to equitable remedies such as, without limitation,
injunctive relief and specific performance.
8. Damage to Licensee's Equipment. In the event of any damage to Licensee's Equipment,
Licensor shall have no liability or responsibility to repair the same unless such damage arose from
the Licensor's negligence or willful misconduct of Licensor, its employees, agents, or contractors;
provided, however, in such case, Licensor's liability shall be limited to the cost to repair or replace
the same.
9. Title to Equipment.
9.1. Title to the Municipal Facility. Title to and control of the Equipment, exclusive of
the Municipal Facility (original or replacement) used for support, but including ground mounted
equipment, shall remain with Licensee and shall constitute Licensee's personal property and
Equipment, and not fixtures or improvements attached to the land.
9.2. No Ownership in Licensor Property. Neither this Agreement,any Site Supplement,
nor any License issued herein, nor any Permit separately issued for installation of any Equipment,
regardless of the payment of any fees and charges, shall create or vest in Licensee any ownership
or property rights in any portion or elements of the Municipal Facilities, the underlying real
property on which any Licensor-Owned poles or any Equipment is located, or any portion of the
ROW. Additionally, Licensee acknowledges that this Agreement does not constitute or create a
leasehold interest and except as otherwise expressly provided herein, any right to the benefit of
any Licensor property or portion thereof. Nothing contained in this Agreement shall be construed
to compel Licensee to construct, retain, extend, place, or maintain any poles or other facilities for
the benefit of Licensor which are not needed for Licensee's own service requirements.
9.3. "As Is" Condition. Licensee accepts the Municipal Facilities identified in any Site
Supplement,or any Replacement Pole, in its"AS IS"condition,without representation or warranty
13
of any kind by Licensor, or any Licensor officer, agent, or employee, and subject to all applicable
Laws governing the use of the Licensor poles for Licensee's intended purpose.
10. Maintenance and Repair. Subject to Section 7.3, Licensor shall maintain and keep the
Municipal Facility containing Equipment in good condition and in accordance with Licensor's
standard maintenance requirements, at its sole cost and expense. Licensee shall keep the
Equipment and other improvements by Licensee on the Municipal Facility, if any, in good repair.
11. Hazardous Substances. Licensee agrees that Licensee, its contractors, subcontractors and
agents, will not use, generate, store, produce, transport or dispose any Hazardous Substance on,
under, about or within the area of a Municipal Facility or the ROW in which it is located in
violation of any applicable Laws. Except to the extent of the negligence or intentional misconduct
of Licensor, Licensee will pay, indemnify, defend and hold Licensor harmless against and to the
extent of any loss or liability incurred by reason of any Hazardous Substance produced, disposed
of, or used by Licensee pursuant to this Agreement. Licensee will ensure that any on-site or off-
site storage, treatment, transportation, disposal or other handling of any Hazardous Substance will
be performed by persons who are properly trained, authorized, licensed and otherwise permitted
to perform those services. The Parties recognize that Licensee is only using a small portion of the
ROW and that Licensee shall not be responsible for any environmental condition or issue except
to the extent resulting from Licensee's, its agents' or contractors' specific activities and
responsibilities under this Agreement.
12. Indemnity.
12.1 The Licensee shall indemnify, defend and hold the Licensor, its employees,
officers, elected officials, agents and contractors (the "Indemnified Parties") harmless from and
against all injury, loss, damage or liability (or any claims in respect of the foregoing), costs or
expenses arising from the installation, use, maintenance, repair or removal of the WCFs, any of its
or its customers' activities on any Wireless Site, or the Licensee's breach of any provision of this
Agreement. The indemnity provided for in this paragraph shall not apply to any liability resulting
from the negligence or willful misconduct of the Licensor or an Indemnified Party.
12.2 The Licensor shall give the Licensee timely written notice of the making of any
claim or of the commencement of any action, suit or other proceeding in connection with any
WCFs. In the event such claim arises, the Licensor or any other Indemnified Party shall tender
the defense thereof to the Licensee and the Licensee shall consult and cooperate with the
Licensor's Attorney's Office while conducting its defense. The Licensor shall cooperate fully
therein with Licensee's legal representative and shall be consulted on any settlements of claims
prior the execution of any settlement agreements.
12.3 If separate representation to fully protect the interests of both parties is or becomes
necessary, such as a conflict of interest between the Licensor and the counsel selected by Licensee
to represent the Licensor, the Licensee shall pay for all reasonable expenses incurred by the
Licensor as a result of such separate representation; provided, however, in the event separate
representation becomes necessary, the Licensor shall select its own counsel and any other experts
or consultants, subject to the Licensee's prior approval. The Licensor's expenses hereunder shall
include all reasonable out-of-pocket expenses, such as consultants' fees, and shall also include the
14
reasonable value of any services rendered by the Licensor's Attorney or his/her assistants or any
employees of the Licensor or its agents but shall not include outside attorneys' fees for services
that are unnecessarily duplicative of services provided the Licensor by the Licensee.
12.4 Neither party will be liable under this Agreement for consequential, indirect,
special, incidental or punitive damages 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.
13. Insurance Requirements.
13.1. Licensee's Insurance. Licensee shall procure and maintain insurance in the amounts
and form specified in the attached Exhibit C. Within 30 days of execution of this Agreement,
Licensee shall submit a Certificate of Insurance to Licensor, which Certificate shall comply with
the insurance requirements set forth in this Agreement.
13.2. Certificates. If a Certificate of Insurance is submitted as verification of coverage,
Licensor will reasonably rely upon the Certificate as evidence of coverage but this acceptance and
reliance will not waive or alter in any way the insurance requirements or obligations of this
Agreement. If any of the required policies expire during the life of this Agreement, Licensee must
forward renewal or replacement Certificates to Licensor within fifteen (15) business days after the
renewal date containing all the necessary insurance provisions.
14. Assignment/Subletting.
14.1. This Agreement and each License granted herein is personal to Licensee and for
Licensee's use only. Licensee shall not lease, sublicense, share with, convey or resell to others any
such space or rights granted hereunder. Subject to Section 14.3 below, the related rights and
privileges may not be assigned or otherwise transferred without the express written consent of
Licensor, which consent shall not be unreasonably withheld, conditioned or delayed. Any
Agreement which is assigned or otherwise transferred pursuant to this Section shall be equally
subject to all the obligations and privileges of this Agreement, including any amendments, which
will remain in effect, as if the assigned Agreement was the original Agreement. After assignment,
this Agreement, including any amendments, shall be binding on the assignee to the full extent that
was binding upon Licensee.
14.2. Any non-permitted transfer or assignment of the right to attach Equipment to a
Licensor-Owned pole shall be void and not merely voidable. Licensor may, in its sole discretion
and in addition to all other lawful remedies available to Licensor under this Agreement, collect
any fees owed from Licensee all without prejudicing any other right or remedy of Licensor under
this Agreement. No cure or grace periods shall apply to transfers or assignment prohibited by this
Agreement or to the enforcement of any provisions of this Agreement against a transferee or
assignee who did not receive Licensor's consent.
14.3. Notwithstanding anything to the contrary in this Section 14, this Agreement and/or
any Site Supplement and/or Permit approved by the Licensor may be sold, assigned or transferred
by Licensee, without advance notice to or the consent of Licensor, to (i) any entity in which
Licensee holds a controlling or similar interest; (ii) any entity which holds a controlling equity or
15
similar interest in Licensee; (iii) any entity under common control with Licensee; or(iv) any entity
which acquires all or substantially all of Licensee's assets in the market defined by the FCC in
which the Municipal Facility is located by reason of a merger, acquisition or other business
reorganization, provided that such acquiring entity has debt to equity and profitability ratios
consistent with mature companies in business for five or more years in the same or similar business
and agrees to comply with federal, state, and local laws, and Licensee and the new entity represent
to Licensor that the new entity has not had a decision entered against the new entity for a material
violation of a local permit. Licensee shall provide written notice to Licensor within thirty(30)days
of Licensee completing a transaction with an entity as covered in subsections (i) through (iii) and
(iv)) of this Section and ninety (90) days written notice to the Licensor of a transaction covered in
subsection (iv) and (v).
15. Default.
15.1. Default of Licensee.
a. Licensor shall provide Licensee with a detailed written notice of any
violation of this Agreement, and a thirty (30) day period within which Licensee may: (a)
demonstrate that a violation does not exist, (b) cure the alleged violation, or (c) if the nature of the
alleged violation prevents correction thereof within 30 days, to initiate a reasonable corrective
action plan to correct such alleged violation, including a projected completion date, subject to
Licensor's written approval, which approval will not be unreasonably withheld.
b. If Licensee fails to disprove or correct the violation within thirty (30) days
or, in the case of a violation which cannot be corrected in 30 days if Licensee has failed to initiate
a reasonable corrective action plan and to correct the violation within the specified time frame,
then Licensor may declare in writing that Licensee is in default.
15.2. Default of Licensor.
a. Licensee shall provide Licensor with a detailed written notice of any
violation of this Agreement, and a thirty (30) day period within which Licensor may: (a)
demonstrate that a violation does not exist, (b) cure the alleged violation, or (c) if the nature of the
alleged violation prevents correction thereof within 30 days, to initiate a reasonable corrective
action plan to correct such alleged violation, including a projected completion date; provided,
however, that such plan shall be subject to Licensee's written approval where Licensee's
Equipment or operations will be affected by the corrective action, which approval will not be
unreasonably withheld.
b. If Licensor fails to disprove or correct the violation within thirty (30) days
or, in the case of a violation which cannot be corrected in 30 days if Licensor has failed to initiate
a reasonable corrective action plan and to correct the violation within the specified time frame,
then Licensee may declare in writing that Licensor is in default.
15.3. Termination/Revocation. In the event of a default, 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 terminate this Agreement if the default
affects all Site Supplements and the Agreement as a whole, or any Site Supplement subject to the
16
default, and/or pursue any remedy now or hereafter available to the non-defaulting Party under the
Law. 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. 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 Licensor undertakes any such performance on Licensee's behalf and Licensee
does not pay Licensor the full undisputed amount within thirty(30) days of its receipt of an invoice
setting forth the amount due, Licensor may offset the undisputed amount due against all fees due
and owing to Licensor under this Agreement until the full undisputed amount is fully reimbursed
to Licensor. `
16. Bankruptcy. The Parties expressly agree and acknowledge that it is their intent that in the
event Licensee shall become a debtor in any voluntary or involuntary bankruptcy proceeding under
the United States Bankruptcy Code, 11 U.S.C. § 101, et seq. (the "Bankruptcy Code"), for the
purposes of proceeding under the Bankruptcy Code, this Agreement shall be treated as an
unexpired lease of nonresidential real property under Section 365 of the Bankruptcy Code, 11
U.S.C. § 365 (as may be amended), and, accordingly, shall be subject to the provisions of
subsections (d)(3) and (d)(4) of said Section 365 with the exception that Licensor waives any
requirement for Licensee to assume or reject this Agreement earlier than prior to confirmation of
a plan. Any person or entity to which Licensee's rights, duties and obligations under this
Agreement are assigned pursuant to the provisions of the Bankruptcy Code, shall be deemed
without further act to have assumed all of the obligations of Licensee arising under this Agreement
both before and after the date of such assignment. Any such assignee shall upon demand execute
and deliver to Licensor an instrument confirming such assumption. Any monies or other
considerations payable or otherwise to be delivered in connection with such assignment shall be
paid to Licensor, shall be the exclusive property of Licensor, and shall not constitute property of
Licensee or of the estate of Licensee within the meaning of the Bankruptcy Code. Any monies or
other considerations constituting Licensor's property under the preceding sentence not paid or
delivered to Licensor shall be held in trust for the benefit of Licensor and be promptly paid to
Licensor.
17. Surrender. Within sixty (60) days of the expiration of the Supplement Term of any Site
Supplement, or upon the earlier termination thereof, Licensee shall remove all Equipment, at its
sole expense, shall repair any damage to the Municipal Facilities or the ROW caused by such
removal, and shall restore the Municipal Facilities to the condition in which they existed prior to
the installation of the Equipment, reasonable wear and tear and loss by casualty or other causes
beyond Licensee's control excepted.
18. Notices. Any notice, request, demand, statement, or consent herein required or permitted
to be given by either Party to the other hereunder, shall be in writing signed by or on behalf of the
Party giving the notice and addressed to the other at the address as set forth below:
Licensee New Cingular Wireless PCS, LLC
Attn: Network Real Estate Administration
Site No. City of Aspen Wireless MLA (CO)
1025 Lenox Park Blvd NE, 3`d Floor
Atlanta, GA 30319
17
With a copy to:
New Cingular Wireless PCS, LLC
Attn: AT&T Legal Dept—Network Operations
Site No. City of Aspen Wireless MLA (CO)
208 S. Akard Street
Dallas, TX 75202-4206
Licensor City of Aspen
130 S. Galena
Aspen, CO 81611
Attn: City Manager
With copy to: City of Aspen
130 S. Galena
Aspen, CO 80112
Attn: City Attorney
Each Party may by notice in writing change its address for the purpose of this Agreement,
which address shall thereafter be used in place of the former address. Each notice,demand,request,
or communication which shall be mailed to any of the aforesaid shall be deemed sufficiently given,
served, or sent for all purposes hereunder (i) two business days after it shall be mailed by United
States certified mail,postage prepaid and return receipt requested, in any post office or branch post
office regularly maintained by the United States Postal Service, (ii) upon personal delivery, or(iii)
one business day after deposit with any recognized commercial air courier or express service. Any
communication made by e-mail or similar method shall not constitute notice pursuant to this
Agreement.
18.1. Emergency Contact. As set forth above, Licensee shall make certain that it has a
designated contact person available 24/7 in the event of an emergency requiring Licensor to take
immediate action. In such event, Licensee's contact is: Network Operations Center - (800) 832-
6662. The Licensee shall be obligated to maintain a current emergency contact number with the
Licensor and notify the Licensor of any changes.
19. Miscellaneous.
19.1. Entire Agreement. This Agreement constitutes the entire agreement and
understanding between the Parties, and supersedes all negotiations, understandings or agreements.
Any amendments to this Agreement must be in writing and executed by both Parties.
19.2. Severability. If any provision of this Agreement is invalid or unenforceable with
respect to any Party, the remainder of this Agreement or the application of such provision to
persons other than those as to whom it is held invalid or unenforceable, shall not be affected and
each provision of this Agreement shall be valid and enforceable to the fullest extent permitted by
law.
18
19.3. Governing Law. This Agreement shall be governed by and construed in accordance
with the Laws of the State of Colorado, and applicable federal Law.
19.4. Authority to Execute. Any individual executing this Agreement on behalf of or as
representative for a corporation or other person, partnership or entity, represents and warrants that
he or she is duly authorized to execute and deliver this Agreement on behalf of such Party, and
this Agreement is binding upon such Party in accordance with its terms. Licensor hereby
designates, and authorizes, the Licensor's City Manager or designee to execute all Site
Supplements entered into under this Agreement. This designation and authorization may be
changed by Licensor upon written notice to Licensee.
19.5. No Waiver. A Party shall not be excused from complying with any of the terms
and conditions of this Agreement by any failure of a Party upon any one or more occasions to
insist upon or to seek compliance with any such terms or conditions. Both Licensor and Licensee
expressly reserve all rights they may have under law to the maximum extent possible, and neither
Licensor nor Licensee shall be deemed to have waived any rights they may now have or may
acquire in the future by entering into this Agreement.
19.6. Force Majeure. With respect to any provisions of this Agreement, the violation or
non-compliance of any Term of this Agreement which could result in the imposition of a financial
penalty, liquidated damages, forfeiture or other sanction upon a Party, such violation or non-
compliance shall be excused where such violation or non-compliance is the result of acts of God,
war, civil disturbance, strike or other labor unrest, or other events, the occurrence of which was
not reasonably foreseeable by such Party and is beyond such Party's reasonable control.
19.7. Limitation of Liability. Except for indemnification pursuant to Section 12, neither
Party shall be liable to the other, or any of their respective agents, representatives, employees for
any lost revenue, lost profits, loss of technology, rights or services, incidental, punitive, indirect,
special or consequential damages, loss of data, or interruption or loss of use of service, even if
advised of the possibility of such damages, whether under theory of contract, tort (including
negligence), strict liability or otherwise.
19.8. Representations and Warranties. Each Party to this Agreement represents and
warrants that it has the full right, power, legal capacity, and authority to enter into and perform its
respective obligations hereunder and that such obligations shall be binding upon it without the
requirement of the approval or consent of any other person or entity in connection herewith.
19.9. No Third-Party Beneficiaries. This Agreement benefits only the Parties hereto and
their successors and permitted assigns. There are no third-party beneficiaries.
19.10. Other ROW Users. The Parties understand and agree that Licensor permits other
persons and entities to install utility facilities in the ROW. In permitting such work to be done by
others, Licensor shall not be liable to Licensee for any damage caused by those persons or entities.
19.11. Public Disclosure. Licensee acknowledges that this Agreement is public record
within the meaning of the Colorado Open Records Act§ 24-72-202(6), C.R.S., and accordingly
may be disclosed to the public.
19
IN WITNESS WHEREOF, the Parties have executed this Agreement as of this Z day
of 2019 (the"Effective Date").
LICENSOR: LICENSEE:
City of Aspen, a Colorado Home Rule New Cingular Wireless PCS, LLC,
Municipality a Delaware limited liability company
By: AT&T Mobility Corporation
Its: Manager
By:
G, City Manager Print Name:
Its: a t A
[SIGNATURES CONTINUED ON NEXT PAGE]
20
ATTESrT�
City Clerk
APPROVED AS TO FORM:
/Yfrty Attorney's Office
21
EXHIBIT A
Form of Site Supplement
Supplement
This Supplement("Supplement"),made this day of ,2019("Effective Date")
between the City of Aspen, a Colorado home rule municipality, with an address of 130 South
Galena Street, Aspen, CO 81611, hereinafter designated "Licensor" and New Cingular Wireless
PCS, LLC, a Delaware limited liability company , hereinafter designated "Licensee":
1. Supplement This is a Site Supplement as referenced in that certain Agreement for the Use
of Licensor Property in Connection with the Operation of a Wireless Network, between Licensor
and Licensee dated , 2019 ("Agreement"). All of the terms and conditions of the
Agreement are incorporated by reference and made a part hereof without the necessity of repeating
or attaching the Agreement. In the event of a contradiction,modification or inconsistency between
the terms of the Agreement and this Supplement, the terms of this Supplement shall govern.
Capitalized terms used in this Supplement shall have the same meaning described for them in the
Agreement unless otherwise indicated herein.
2. Project Description and Locations.
❑ (a) Licensee shall have the right to use the Municipal Facility for Equipment at the
designated areas in the ROW as further described in Exhibit A-1 attached hereto (the "Licensed
Area"); OR
❑ (b) Licensee shall have the right to place its own Equipment at the designated areas in the
ROW as further described in Exhibit A-1 attached hereto (the "Licensed Area"); OR
❑ (c) Licensee shall have the right to place its own Equipment on third-party owned poles
that are located within the ROW as further described in Exhibit A-1 attached hereto(the"Licensed
Area").
3. Equipment. The Equipment to be installed at the Licensed Area is described in Exhibit A-
I attached hereto.
4. Term. The term of this Supplement shall be as set forth in Section 3 of the Agreement.
5. Fees. The initial annual Pole Attachment Fee for the Term of this Supplement shall be$270
as determined in accordance with the Agreement and applicable only to those attachments
described in Section 2(a) of this Site Supplement. There shall be no charge, except for required
application or permitting fees to access the ROW, to Licensee to place Licensee's proprietary pole
in the ROW (as described in Sections 2(b) and (c) of this Site Supplement), or for Licensee to
attach Equipment to a third-party pole (as described in Section 2(d) of this Site Supplement).
22
6. Commencement Date. The first day of the month following the date Licensee has
commenced installation of its Equipment at the Licensed Area.
7. Approvals/Fiber. It is understood and agreed that Licensee's ability to use the Licensed
Area is contingent upon its obtaining 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 a satisfactory fiber and electrical connection which will permit Licensee use
of the Licensed Area as set forth above. In the event that (i) any of such applications for such
Governmental Approvals should be finally rejected; (ii) any Governmental Approval issued to
Licensee is canceled, expired, lapsed, or is otherwise withdrawn or terminated by governmental
authority; (iii) Licensee determines that such Governmental Approvals may not be obtained in a
timely manner; (iv) Licensee determines that it will be unable to obtain or maintain, in a
satisfactory manner, any fiber or power connection; or (v) Licensee determines that the Licensed
Area is no longer technically compatible for its use, Licensee shall have the right to terminate this
Supplement. Notice of Licensee's exercise of its right to terminate shall be given to Licensor in
writing by certified mail, return receipt requested, and shall be effective upon the mailing of such
notice by Licensee, or upon such later date as designated by Licensee. All fees paid to said
termination date shall be retained by Licensor. Upon such termination, this Supplement 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 hereunder. Otherwise, Licensee shall have no further obligations
for the payment of Rent to Licensor.
[Signature page follows]
23
EXECUTED to be effective as of the date shown above.
LICENSOR:
CITY OF ASPEN
By:
[NAME]
[TITLE]
ATTEST:
City Clerk's Office
APPROVED AS TO FORM
BY:
City Attorney's Office
LICENSEE:
By:
Print Name:
Its:
Exhibits:
Exhibit A-1
24
EXHIBIT A-1
Licensee Plans, Licensed Area, and Description of Licensor Facilities/Equipment
to be Installed as Approved by Licensor
25
49145667.2
EXHIBIT B
Design Standards for Small Cell Facilities
Nothing in this Agreement shall be interpreted to authorize the installation of macro wireless
communications service facilities, macro base stations, or similar high-powered cellular facilities
in the ROW, nor the installation of macro wireless towers or poles intended for macro facilities,
unless otherwise agreed in writing.
The Licensee shall follow the design standards as set forth below:
Small Cell Facility installations involving attachment to existing infrastructure shall meet the
design standards applicable to wireless facilities set forth in the City of Aspen's Land Use Code,
Section 26.505.080, as may be amended from time to time, as well as any supplemental design
standards adopted by the Community Development Director pursuant to Section 26.505.080(J)(5),
including the following adopted guidelines, as may be amended from time to time:
• All small cell equipment and appurtenances shall be housed internally with regard to the
pole or alternative tower structure which hosts the small cell antennas.
• Electric metering structures and/or meters shall not be visible from the exterior of the
pole or alternative tower structure which hosts the small cell antennas where the pole or
alternative tower structure is located in City right-of-way. This requirement may be wholly
or partially waived by the Director of Utilities where it is technically infeasible to place all
or part of a meter internally.
• All heights are as outlined in Ordinance 5, Series of 2019, City of Aspen Municipal Code
Title 26, Chapter 505.
• Concealment of all small cell equipment and appurtenances shall be required,pursuant to
Ordinance 5, Series of 2019.
• Any stand-alone small cell facility shall not block windows or any building entrances. To
the extent possible,poles shall be located at mid-blocks, away from intersections. All poles
shall be located so as to ensure proper sight-triangles.
• The pole design in the City right-of-way shall match the color, aesthetics, spacing, and
architectural characteristics of existing streetlights installed adjacent to the pole.
• Banner arms and luminaries are prohibited. A waiver of this prohibition may be granted
upon a showing that an alternative design is technically infeasible.
• Wireless communications facilities and equipment should not be installed within the
dripline of any tree.
• Pole caissons should be circular in nature and designed to minimize impact of adjacent
and future utilities. Concrete must follow the latest Colorado Department of Transportation
(CDOT) Road & Bridge Specification for applicable mix design. All designs must be
stamped and signed by a registered Professional Engineer in the State of Colorado.
• The City of Aspen encourages location outside of designated Historic Districts, and on
non-historically designated properties.
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Eligible Facilities Requests. The Parties acknowledge that it is the intent of this Agreement to
provide general authorization to use the ROW for Small Cell Facilities as permitted under state,
federal, and local law. The designs approved by the City for the installation of Small Cell
Facilities, as authorized in the supplements and/or authorizations that will govern each specific
site are intended to be concealment elements under 47 C.F.R. §1.40001 (as amended). All
applications for collocations and/or modifications of facilities governed by this Agreement will be
subject to applicable provisions of state, federal, and local law, including without limitation all
other applicable and relevant provisions of 47 C.F.R. §1.40001 (as amended).
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EXHIBIT C
Licensee's Limits of Insurance Requirements
1. Licensee and its subcontractors shall carry during the Term, at their own cost and
expense, the following insurance: (i) "All Risk" property insurance for its property's replacement
cost; (ii) commercial general liability insurance on ISO Form CG 00 01 or its equivalent with a
limit of liability of $2,000,000 per occurrence and $4,000,000 general aggregate and which
provides coverage for bodily injury, death, damage to or destruction of property of others,
including loss of use thereof, and including products and completed operations; (iii) excess or
umbrella liability on an occurrence basis in excess of the commercial general liability insurance,
which has coverage as broad as such policy, with a limit of$1,000,000 per occurrence and in the
aggregate; Licensee may use any combination of primary and excess insurance to meet the total
limits required; (iv) Workers' Compensation Insurance as required by law; and (v) employers'
liability insurance with limits of $500,000 bodily injury each accident, $500,000 disease each
employee, and $500,000 bodily injury disease policy limit.
2. All of the insurance coverages identified in Section 1, except the workers'
compensation insurance and employer's liability, shall apply to and include the City as an
additional insured as their interest may appear under this Agreement. Each of such insurance
coverages shall contain a waiver of subrogation for the City's benefit. Further, the required
commercial general liability and excess insurance coverages identified in Section 1 will be primary
and non-contributory with respect to any self-insurance or other insurance,maintained by the City.
3. Upon execution of this Agreement, Licensee shall provide the City with a
Certificate of Insurance and blanket additional insured endorsements evidencing of the coverage
required by this Exhibit C.
4. Upon receipt of notice from its insurer(s), Licensee shall provide thirty (30) days
advance notice to the City in the event of cancellation or nonrenewal of any required coverage that
is not replaced.
5. Certificates of insurance evidencing the required coverage hereunder shall be
furnished upon request to the City.
6. All of the insurance policies Licensee and its subcontractors are required to
maintain pursuant to this Exhibit C shall be obtained from insurance carriers having an A.M Best
rating of at least A-VII.
1. General.
A. Prior to performing work under this Agreement, Licensee shall furnish Licensor a
Certificate of Insurance on a standard insurance industry ACORD form. The insurance coverage
required must be issued by an insurance company eligible to transact business in the State of
Colorado, possessing a current A.M. Best, Inc. rating of A-VII or better.
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B. Licensee shall require any of its contractors to obtain and maintain substantially the
same coverage as required of Licensee, procure and maintain, until all of their obligations have
been discharged the insurances set forth below.
C. The insurance requirements set forth in no way limit the indemnity covenants
contained in this Agreement.
D. Licensor in no way warrants that the insurance limits contained in this Agreement
are sufficient to protect Licensee from liabilities that might arise out of the performance of this
Agreement by Licensee and its contractors, and Licensee is free to purchase any additional
insurance as may be determined necessary.
E. Failure to demand evidence of full compliance with the insurance requirements in
this Agreement or failure to identify any insurance deficiency will not relieve Licensee from, nor
will it be considered a waiver of, its obligation to maintain the required insurance at all times
during the performance of this Agreement.
2. Scope and Limits of Insurance. Licensee shall provide coverage with limits of liability
stated below.
A. Commercial Automobile Liability. To the extent Licensee uses vehicles under this
Agreement, Licensee must maintain Commercial Automobile Liability insurance in the amount of
$1,000,000 combined single limit each accident for bodily injury and property damage covering
all of Licensee owned, hired, and/or non-owned vehicles assigned to or used in the performance
of Licensee's work or activities under this Agreement. The City of Aspen, its subsidiaries and
enterprises, and each of their elected officials, officers, board members, employees, volunteers,
agents,and contractors shall be included as an additional insured as their interest may appear under
this Agreement.
B. Builders' Risk/Installation Floater Insurance. Builders' Risk/Installation Floater
Insurance must be maintained until whichever of the following first occurs: (i) final payment has
been made; or, (ii) until no person or entity, other than Licensor, has an insurable interest in the
property required to be covered.
(a) The Builders' Risk/Installation Floater insurance must be endorsed so that
the insurance will not be canceled or lapse because of any partial use or occupancy by Licensor.
(b) The Builders Risk/Installation Floater insurance must include as named
insureds, Licensor, Licensee, and all tiers of contractors and others with an insurable interest in
the Work.
(c) The Licensee is responsible for payment of all deductibles under the
Builders' Risk/Installation Floater insurance policy.
3. Additional Policy Provisions Required.
A. Miscellaneous Provisions.
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(1) Licensee's required commercial automobile liability insurance coverage
must be primary insurance with respect to Licensor, its officers, officials, and employees. Any
insurance maintained by Licensor, its officers, officials, and employees shall be in excess of the
coverage provided by Licensee and must not contribute to it.
(2) Licensee's required commercial general liability insurance must apply
separately to each insured against whom claim is made or suit is brought, except with respect to
the limits of the insurer's liability.
(3) To the extent allowed by law, the policies must contain a waiver of
subrogation against Licensor, its officers, officials, and employees, for losses arising from work
performed by Licensee for Licensor.
(4) Licensee shall provide an updated certificate of insurance evidencing
completed operations coverage for a minimum period of one (1) year following completion and
acceptance of the work, including the required Additional Insureds set forth herein.
(5) If a Certificate of Insurance is submitted as verification of coverage,
Licensor will reasonably rely upon the Certificate of Insurance as evidence of coverage but this
acceptance and reliance will not waive or alter in any way the insurance requirements or
obligations of this Agreement.
(6) Any required notice shall be sent directly to Attn: City Manager, 130 S.
Galena, Aspen, CO 81611, with a copy of the notice sent to the City Attorney, 130 S. Galena,
Aspen, CO 81611.
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