TELECOMMUNICATIONS FACILITY LICENSE AGREEMENT BETWEEN
THE BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA,
by and on behalf of the UNIVERSITY OF GEORGIA (University)
AND
XXXXXXXXXXXXXXXXXXXX
This Telecommunications Facility License Agreement (“Agreement”) dated ___________ (Effective
Date), is made by and between THE BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA,
by and on behalf of the University of Georgia (“University”) and XXXXXXXXXXXXXXX (“Licensee”), as
described below with respect to the following facts:
RECITALS
WHEREAS, University is the owner of certain real property located in the City and County of XXXXXX, State
of Georgia, upon which is constructed a XXXXXXXXXXXXXXXXXXX known as the XXXXXXXXXXXXXXXX
as depicted on Exhibit “A” attached hereto;
WHEREAS, Licensee desires to obtain a license to utilize: a portion of wall, ramp, structure, ground, building
and /or other space to construct and operate a communications facility as further described below and in the
area as depicted on Exhibit “B” attached hereto (the “Premises”); and,
WHEREAS, University agrees to grant Licensee a license to utilize the Premises on the terms and subject to
the conditions as set forth in this Agreement.
NOW, THEREFORE, in consideration of the Recitals and intending to be legally bound, University and
Licensee agree as set forth below.
SECTION 1.
DEFINITIONS
1.1
In addition to the terms that are defined elsewhere in this Agreement, the following terms are
used in this Agreement:
(a)
Access Procedures: is defined in Section 2.3.1.
(b)
Alterations: is defined in Section 4.7.
(c)
Applicable Laws, Requirements, and Regulations: is defined in Section 4.1.
(d)
Base License Fee: is defined in Section 3.1.
(e)
Commencement Date: XXXXXXXXXXXXXXXXXXX
(f)
Effective Date: XXXXXXXXXXXXXXXXXXXX
(g)
Equipment: is defined in Section 4.1.
(h)
Estimate Statement: is defined in Section 3.3.1.
(i)
Existing Carriers: is defined in Section 5.1.
(j)
Expiration Date: XXXXXXXXXXXXXXXXXXXXXX
(k)
Extension Deadline: is defined in Section 2.2.1.(i).
(l)
Extension Notice: is defined in Section 2.2.1.(i).
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(m)
Extension Option: is defined in Section 2.2.
(n)
Extension Term: XXXXXXXXXXXXXXXXXXXXX
(o)
Omitted
(p)
Omitted
(q)
Hazardous Substance: is defined in Section 7.2.
(r)
Omitted
(s)
Initial Term: XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
(t)
Licensee: XXXXXXXXXXXXXXXXXXXXXXX
(u)
Licensee Parties: is defined in Exhibit “G”.
(v)
License Fee: The license fee payable under Section 3.1 of this Agreement.
(w)
License Fee Payment Address:
President for Finance & Administration
Administration Building
University of Georgia
Athens, GA 30602
(x)
Licensee’s Address:
XXXXXXXX
d/b/a XXXXXXXXXXX
XXXXXXX
XXXXXXXXXXXX
(y)
Licensee’s Proportionate Share: is defined in Section 3.3.
(z)
Permitted Use: is defined in Section 4.1.
(aa)
Premises: is defined in Recital B and is depicted on Exhibit "B".
(bb)
Proposed New Carrier: is defined in Section 5.2.
(cc)
Proposed Site: is defined in Section 7.4.
(dd)
Protected Uses: is defined in Section 5.4.1.
(ee)
RFR Study: is defined in Section 4.2.
(ff)
Reconciliation Period: is defined in Section 3.3.2.
(gg)
Reconciliation Statement: is defined in Section 3.3.2.
(hh)
Related Operating Costs: is defined in Section 3.3.
(ii)
Released Claims: is defined in Section 6.5.
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(jj)
Relocation Notice: is defined in Section 7.4.
(kk)
Required Removal Date: is defined in Section 7.3.
(ll)
XXXXXXXXXXXXXXXX is defined as the XXXXXXXXXXXXXXX at the University of Georgia
(mm)
Security Deposit: amount equal to one half (1/2) base license fee under Section 3.1
(nn)
Carriers: Licensee, together with other telecommunications carriers or third
parties with whom University has entered into, is entering into or may in the future enter
into license or similar agreements for space in, on or around XXXXXXXXXXXXXX relating to
telecommunications equipment, including without limitation, the Existing Carriers
(as defined in Section 5.1) and each Proposed New Carrier (as defined in Section 5.2).
(oo)
Term: The Initial Term together with the Extension Term if the Extension Option is
properly exercised pursuant to the terms of this Agreement.
(pp)
Termination Fee: is defined in Section 8.4.
(qq)
Termination Notice: is defined in Section 8.4.
(rr)
Transfer: is defined in Section 10.1.
(ss)
University: The Board of Regents of the University System of Georgia, for the use and
benefit of the University of Georgia.
(tt)
University’s Address:
If by U.S. Mail to:
Vice President for Finance & Administration
Administration Building
University of Georgia
Athens, GA 30602
(uu)
University’s Campus: The Main Campus of the University of Georgia.
(vv)
Work Letter: is defined in Section 4.1.
Section 2.
GRANT OF LICENSE AND TERM
2.1
License Term. As of the Effective Date, University grants to Licensee an exclusive license to utilize
the Premises for the Permitted Use (as defined in Section 4.1) on the terms and conditions set forth
herein and shown in Exhibit “B,” which license shall only be terminable on the terms and conditions
contained in this Agreement. The Initial Term of this Agreement shall begin on the Commencement
Date and shall expire on the Expiration Date. Within thirty (30) days after determination of the
Commencement Date, University and Licensee will execute a confirming letter indicating the
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Commencement Date and the Expiration Date of the Initial Term of this Agreement. Beginning on the
Commencement Date, University shall deliver possession of the Premises to Licensee, together with
a non-exclusive right for ingress and egress, and for the installation, maintenance, repair and
replacement of utility lines as needed for Licensee’s operations from the University’s electrical and
telephone sources and the Premises and between the various portions of the Premises, all subject to
the provisions of this Agreement, including the provisions of Section 2.3 below.
2.2
Option to Extend Initial Term. Licensee shall have XXXXXXXXXXXX option to extend (the
"Extension Option") the Initial Term for the Extension Term on the following terms and conditions:
2.2.1 Extension Notice. Licensee's Extension Option shall be subject to satisfaction of each of the
following conditions precedent, which are solely for the benefit of University:
2.2.2
2.3
(i)
The Extension Option shall be exercised by written notice ("Extension Notice")
delivered by Licensee to University not later than six (6) months prior to the end
of the Initial Term ("Extension Deadline"); and
(ii)
This Agreement shall be in effect and no Event of Default (as defined in Section
8.1) shall exist, nor an event as to which the giving of notice or passage of time
would be an Event of Default shall exist either on the day of the Extension Notice
or on the last day of the Initial Term.
Amendment to Agreement. If Licensee exercises the Extension Option, the parties shall
execute an amendment to this Agreement confirming the exercise of the Extension
Option and continuing this Agreement during the Extension Term within thirty (30) days
after the delivery of Extension Notice. Following commencement of the Extension
Term, all references in this Agreement to the Term shall mean the Initial Term, as extended
by the Extension Term.
Access to Premises.
2.3.1
Licensee’s Access. Licensee's access to the Premises shall be subject to all procedures
reasonably adopted from time to time by the University including, but not limited to, the
procedures addressed in this Section 2.3 and Exhibit “D” attached hereto (“Access
Procedures”). Only Licensee's employees, agents, and/or contractors retained by
Licensee and listed in Exhibit “D” shall be permitted access to the Premises. Said
representatives shall be required to show appropriate identification prior to the requested
access. Licensee shall be permitted to access the Premises twenty-four (24) hours a
day, seven (7) days a week for emergency purposes as reasonably determined by
Licensee and as further described in Exhibit “D”.
2.3.2
University's Access. University shall be permitted non-emergency access to the Premises
only upon seventy-two (72) hours prior written notice to Licensee, and University personnel
must be accompanied by authorized personnel of Licensee at all times while within the
Premises. In the event of an emergency which in the University’s judgment presents an
imminent risk of property damage or hazard to health or safety, the University may enter the
Premises unaccompanied and must notify Licensee within twenty-four (24) hours of such
entry.
2.3.3
USE; GOVERNMENTAL APPROVALS. All improvements shall be at Licensee's expense
and the installation of all improvements shall be at the discretion and option of the Licensee.
Licensee shall have the right to replace, repair, add or otherwise modify its equipment or any
portion thereof, whether the equipment is specified or not on any exhibit attached hereto,
during the term of this Agreement. Licensee will maintain the Premises in good condition,
reasonable wear and tear excepted. University will maintain the Property, excluding the
Premises, in good condition, reasonable wear and tear excepted. It is understood and
agreed that Licensee’s ability to use the Premises is contingent upon its obtaining after the
execution date of this Agreement all of the certificates, permits and other approvals
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(collectively the “Governmental Approvals”) that may be required by any Federal, State or
Local authorities as well as a satisfactory building structural analysis which will permit
Licensee’s use of the Premises as set forth above. University shall cooperate with Licensee
in its effort to obtain such approvals and shall take no action which would adversely affect
the status of the Property with respect to the proposed use thereof by Licensee. In the event
that any of such applications for such Governmental Approvals should be finally rejected or
Licensee determines that such Governmental Approvals may not be obtained in a timely
manner or any Governmental Approval issued to Licensee is canceled, expires, lapses, or is
otherwise withdrawn or terminated by governmental authority or that the Licensee
determines that the site is no longer technically compatible for its use or that Licensee, in its
sole discretion, will be unable to use the Premises for its intended purposes, Licensee shall
have the right to terminate this Agreement. Notice of the Licensee’s exercise of its right to
terminate shall be given to University in writing by certified mail, return receipt requested,
and shall be effective upon the mailing of such notice by the Licensee. All rentals paid to
said termination date shall be retained by the University. Upon such termination, this
Agreement shall become null and void and the parties shall have no further obligations
including the payment of money, to each other.
SECTION 3.
LICENSE FEE AND OTHER CHARGES
3.1
License Fee. Licensee shall pay XXXXXXXXXXXXXXXXX per year (“Base License Fee”) to
University, payable annually, in advance, with the first payment due upon the Commencement Date
for the first year of the Initial Term. Licensee shall pay the License Fee to University at the License
Fee Payment Address (as specified in Section 1.1 (w)), or to such other party or address as
University shall by Notice specify. Any License Fee not paid by the fifth day after the due date shall
be subject to a ten percent (10%) late payment fee, which the parties agree is fair and reasonable
under the circumstances. The Base License Fee payable by Licensee shall be increased on each
anniversary of the Commencement Date by 3% over the fee paid for the previous term.
3.2
Security Deposit. Licensee shall deposit with University the Security Deposit as specified in Section
1.1(mm) hereof within two (2) business days after the Effective Date as security for Licensee’s
faithful performance of its obligations under this Agreement. Licensee may not credit the Security
Deposit to any amount due under the Agreement. University may commingle the Security Deposit
with funds of University, and University shall have no obligation to pay interest on such deposit.
Licensee shall not mortgage, assign, transfer or encumber the Security Deposit and any attempt by
Licensee to do so shall be void, without full force or effect and shall not be binding upon University.
If Licensee fails to pay any License Fee or other amount when due and payable under this
Agreement, or fails to perform any of the terms hereof, University may apply or use all, or any
portion, of the Security Deposit for License Fee payments or any other amount then due and unpaid,
for payment of any amount for which University has become obligated as a result of Licensee's
default or breach, or for any loss or damage sustained by University as a result of Licensee's default
under or breach of any term of this Agreement. University may so apply or use the Security Deposit
without prejudice to any other remedy University may have by reason of Licensee's default or
breach. If any portion of the Security Deposit is so used or applied, Licensee shall, within thirty (30)
days after written demand thereof, restore the Security Deposit to the full amount originally
deposited; Licensee's failure to do so shall constitute an Event of Default hereunder and University
shall have the right to exercise any remedy provided for in Section 8 hereof. Within thirty (30) days
after the Term has expired or Licensee has vacated the Premises, whichever shall last occur, and
provided Licensee is not then in default of any of its obligations hereunder, University shall return the
Security Deposit or any balance thereof to Licensee, or if Licensee has assigned its interest under
this Agreement, to the last assignee of Licensee.
3.3
Related Operating-Costs. Licensee shall pay to University during the Term hereof, in addition to the
License Fee, Licensee's Proportionate Share (as defined in this Section 3.3 below) of all Related
Operating Costs defined as follows: The term “Related Operating Costs” shall mean all costs and
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expenses incurred by University relating to the Premises and the Equipment (as defined in Section
4.1) located on the Premises, for shared utility costs and charges, if any, cost of security personnel
and costs of inspection of building and equipment. Costs of security and inspection shall be
calculated by multiplying the amount of security or inspection time by the hourly wage of the staff
member providing security or inspection services. As utilized herein the term "Licensee's
Proportionate Share" shall mean (i) the portion of such Related Operating Costs calculated as
chargeable to Licensee based upon Licensee's use and operation (including but not limited to
electrical usage) as reasonably determined by University; or (ii) a percentage of all Related
Operating Costs incurred with respect to all Carriers, with such percentage determined based upon
the number of Carriers then operating at the XXXXXXXXXXXXX. Licensee will install, unless such
installation is prohibited by the governing public utility, separate meters (including electrical and
telephone) and maintain separate billing for such meters during the operation of the Premises, in
which case Licensee will not be responsible for Licensee’s Proportionate Share of the University’s
costs and charges for such utilities.
3.3.1
Estimate Statement. University shall give Licensee a yearly statement of estimated
Related Operating Costs to be incurred in the next year or any partial year within the
Reconciliation Period (as defined in Section 3.3.2 below) (the "Estimate Statement").
The Estimate Statement shall also include the estimated amount to be paid by Licensee as
calculated by comparing Licensee's Proportionate Share of the Related Operating Costs to
the estimated total Related Operating Expenses for such year. Licensee agrees to pay the
estimated amount together with Licensee's annual payment of the License Fee.
3.3.2
Reconciliation Process. The "Reconciliation Period" hereunder shall be a twelve (12) month
period beginning on July 1 and ending on June 30, provided that the first and last
Reconciliation Periods hereunder shall be a partial year ending on June 30. On or before
October 31 of each year during the Term, University shall provide to Licensee a
reconciliation statement which shall state the actual amount of Related Operating Costs and
Licensee's Proportionate Share thereof incurred during the Reconciliation Period (the
"Reconciliation Statement"). Within thirty (30) days after receipt of the Reconciliation
Statement, Licensee shall pay to University any remaining amount due, and if Licensee has
overpaid, any such overpayment shall be credited to Licensee's Proportionate Share of
Related Operating Costs for the next Reconciliation Period or, at the end of the Term,
refunded to Licensee.
3.4
Possessory Interest Taxes. Licensee acknowledges and understands that there may be a
possessory interest tax imposed with respect to the Licensee’s use of Premises, and that the
possessory interest tax shall be Licensee's obligation and shall be paid as and when required by the
taxing authority.
3.5
Taxes Payable by Licensee. In addition to the License Fee and any other charges to be paid by
Licensee hereunder, Licensee shall be responsible for and pay directly to the taxing authority, (or if
any such amounts are for any reason billed to and required to be paid by University reimburse
University upon demand for) any and all taxes (other than University's income taxes) whether or
not now customary or within the contemplation of the parties, where such taxes are upon,
measured by or reasonably attributable to (i) the costs or value of Licensee’s equipment, furniture,
fixtures and other personal property located in the Premises (including without limitation the
Equipment), or the cost or value of any improvements made in or to the Premises by or for
Licensee; (ii) the possession, operation, repair, use or occupancy by Licensee of the Premises or
any portion thereof; or (iii) the transactions contemplated or effectuated under this Agreement. If it
becomes unlawful for Licensee to reimburse University for any costs as required under this
Agreement the License Fee shall be revised to net University the same net License Fee after
imposition of any tax or other charge upon University as would have been payable to University but
for the reimbursement being unlawful. Licensee may contest, at its sole cost and expense, any
assessment imposed on the Premises or Licensee’s activities.
SECTION 4.
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USE OF PREMISES
4.1
Licensee's Use: Installation of Equipment. Licensee shall have an exclusive license to use the
Premises as shown in Exhibit “B”, for the construction, maintenance, and operation of the
Equipment for the broadcast, transmission and reception of communication signals in the
frequency bands of XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXMhz transmit and
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXMhz in accordance with all applicable zoning
requirements and all applicable federal, state and local laws, ordinances, rules and regulations,
and all issued permits and licenses (collectively "Applicable Laws and Requirements") including,
but not limited to, rules, regulations, standards and procedures of the Federal Communications
Commission and any successor regulatory entity ("FCC"), and for no other use or purpose (the
"Permitted Use"). Such construction, maintenance, and operation of the Equipment shall be
substantially as described in the attached Exhibit "E”. No change or alteration to the frequency of
broadcast (transmitting or receiving), or changes to services delivered from the Premises with
respect to the Permitted Use, including collocation, may be made without the prior written
consent of University, which consent may be conditioned upon, among other items, an increase
in the License Fee then paid by Licensee hereunder. The equipment to be installed by Licensee
shall consist of the antenna system and related equipment, including the radio communications
equipment, rectifiers, transceivers, cables, as well as the other necessary connecting
appurtenances sufficient to be a fully operable communications facility for its intended licensed
communications coverage areas, all as fully described and depicted on Exhibit "F" (the
"Equipment") attached hereto. University has reviewed and approved of the Equipment as more
fully described on Exhibit "F" and Licensee shall have no right to change, replace, or alter the size
or appearance of the Equipment without receiving the prior written approval of University, which
approval may be conditioned upon, among other items, an increase in the License Fee then
being paid by Licensee hereunder. The construction and the installation of the Equipment and all
related matters are subject to, and shall be completed in accordance with, the terms and
provisions of the Work Letter Agreement attached hereto as Exhibit “G”.
4.2
Intermodulation Study. Prior to installation of the Equipment, Licensee, at Licensee’s expense, shall
provide to University an Intermodulation Study verifying to University that the Equipment will not
disrupt or interfere with University’s or any Existing Carriers’ communications equipment.
4.3
Compliance with Covenants and Laws. Licensee shall not use or occupy the Premises in
violation of Applicable Laws, Requirements or Regulations, and shall, upon notice from University,
immediately discontinue any use of the Premises which is declared by any governmental authority
having jurisdiction to be a violation of Applicable Laws, Requirements or Regulations. Licensee, at
Licensee’s own cost and expense, shall comply with all Applicable Laws, Requirements or
Regulations which shall, by reason of the nature of Licensee’s use or occupancy of the Premises,
impose any duty upon Licensee or University with respect to the Premises or its use or occupation
thereof. A judgment of any court of competent jurisdiction of any action or proceeding against
Licensee that Licensee has violated any such Applicable Laws, Requirements or Regulations in the
use of the Premises shall be deemed to be a conclusive determination of that fact as between
University and Licensee. Licensee shall not do or permit to be done anything which will invalidate or
increase the cost of any fire, extended coverage or other insurance policy covering the XXX
Structure or University's Campus and/or property located thereon or therein, and shall comply with
all rules, orders, regulations, requirements and recommendations of University or any department,
office or division thereof, including without limitation any risk management department or office or
any other department or office performing a similar function. Licensee shall promptly upon demand
reimburse University for any additional premium charged for such policy solely by reason of
Licensee's failure to comply with the provisions of this Section 4.3 or solely due to Licensee's
Equipment or operations.
4.4
Compliance with FCC Requirements and Standards. In addition to the obligations and
agreements of Licensee as set forth in Section 4.3 above, Licensee agrees throughout the Term of
this Agreement, to fully comply with any and all operational standards and requirements required by
the FCC or by Applicable Laws, Requirements or Regulations including, but not limited to, making
modifications to the Equipment (subject to University's approval and the conditions of Section 4.7
7
below), if the FCC or other applicable governmental authority at any time during the Term
modifies their standards or requirements for similar facilities based upon concerns regarding
maximum permissible exposure levels or otherwise.
4.5
No Unlawful Purpose. Licensee shall not do or permit anything to be done in or about the
Premises or University's Campus which will in any way obstruct or interfere with the
rights of students or other occupants of the XXX Structure or University's Campus, or
injure or annoy them, or use or allow the Premises or University's Campus to be used for any
improper, immoral, or unlawful purpose, nor shall Licensee cause, maintain or permit any nuisance
in, on or about the Premises or University's Campus. Licensee acknowledges
and understands that the Premises is contained in the XXX Structure, which is owned
by University, and that this Agreement and all rights of Licensee hereunder are subject
and subordinate to all existing declarations, restrictions, or other matters of record and all
existing agreements of University with respect to the XXX Structure, of which agreements the
University has provided Licensee a copy.
4.6
AS-IS AGREEMENT. PRIOR TO THE EFFECTIVE DATE, LICENSEE HAS BEEN GIVEN ACCESS
TO THE PREMISES, IN ORDER TO CONDUCT SURVEYS, FEASIBILITY AND CONFIGURATION
ASSESSMENTS, ENVIRONMENTAL ASSESSMENTS, AND OTHER INSPECTIONS OF THE
PREMISES, AS LICENSEE DEEMED NECESSARY. THE PREMISES WHICH LICENSEE IS
PERMITTED TO UTILIZE PURSUANT TO THE LICENSE GRANTED HEREIN IS DELIVERED BY
UNIVERSITY IN AN "AS-IS" CONDITION AND LICENSEE HEREBY ACCEPTS THE PREMISES IN
ITS "AS-IS" CONDITION AND ACKNOWLEDGES THAT UNIVERSITY HAS NOT MADE ANY
STATEMENTS OR REPRESENTATIONS OR WARRANTIES REGARDING THE PREMISES AND
LICENSEE IS NOT RELYING UPON ANY STATEMENT OR REPRESENTATION OR WARRANTY
BY UNIVERSITY OR ANY THIRD PARTY REGARDING THE PREMISES, THE FITNESS OF THE
PREMISES FOR ANY PARTICULAR USE OF LICENSEE OR ANY OTHER MATTER. LICENSEE
HAS HAD AN OPPORTUNITY TO INSPECT THE PREMISES AND EVERY ASPECT THEREOF
AND ACCEPTS THE PREMISES IN ITS PRESENT CONDITION AS ACCEPTABLE FOR
LICENSEE'S ANTICIPATED USE OF THE PREMISES AS PROVIDED IN THIS AGREEMENT.
UNIVERSITY HEREBY EXPRESSLY DISCLAIMS AND LICENSEE HEREBY WAIVES ALL
IMPLIED WARRANTIES INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF
MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR USE OR PURPOSE.
4.7
Alterations. Licensee agrees and acknowledges that any improvement work or construction to be
performed by Licensee at any time during the Term including, but not limited to, any modifications to
or replacement of the Equipment which alters the size or appearance of the Equipment (collectively
"Alterations"), subsequent to the initial construction and/or installation of the Equipment shall require
University's prior written consent; which consent may be conditioned upon, among other items, an
increase in the License Fee, and additionally be subject to the provisions of the Work Letter. Prior to
undertaking any such Alterations, Licensee shall submit to University detailed and complete plans
and specifications for the proposed work. As a condition to consenting to the Alterations, University
may impose reasonable requirements, including the requirement that Licensee provide University
with a surety bond or other financial assurance that the cost of the Alterations will be paid when due.
Any such Alterations performed by Licensee shall be performed in accordance with all Applicable
Laws, requirements or Regulations, with any and all necessary permits and approvals obtained and
a copy thereof being furnished to University. Licensee shall also coordinate any construction with
University, with University approving any proposed construction schedule. Licensee shall not cause
or permit any liens to attach or to be placed upon or encumber the Premises or the XXX Structure
arising from or resulting out of any such Alterations or other work performed by Licensee and, if any
such lien attaches, Licensee agrees to cause the lien to be removed within fifteen (15) days of
written notice thereof by the posting of a bond, payment of the lien or otherwise. If Licensee fails to
remove the lien within this time period, in addition to its other remedies under this Agreement,
University may undertake to cause such lien to be removed and charge to Licensee hereunder the
cost thereof and expenses incurred in connection therewith. Subject to the provisions of Section 5,
the Alterations shall not cause levels of interference reasonably unacceptable to University and shall
8
be subject to testing and/or preparation of a radio frequency radiation and/or radio frequency
interference study, at Licensee's sole cost, if required by University.
SECTION 5.
CARRIERS AND INTERFERENCE
5.1
Existing Carriers. Licensee acknowledges and understands that in addition to this Agreement,
University has entered into, or may be entering into or considering as of the Effective Date entering
into license agreements for space in or on the XXXXXXXXXXX Structure with certain other
telecommunications carriers (the "Existing Carriers"), a list of which has been provided to Licensee
prior to the Effective Date, and that (i) Licensee has performed all necessary co-location studies with
respect to all of the Existing Carriers, (ii) Licensee by executing this Agreement hereby
acknowledges the potential existence of all of the Carriers, (iii) Licensee by executing this
Agreement hereby acknowledges that University has not made any representation or warranty that
the equipment and facilities to be operated by any or all of the Existing Carriers will not cause any
interference with Licensee's Equipment (any such representation or warranty being hereby expressly
disclaimed) and (iv) University shall not be responsible for or in any manner be liable to Licensee
with respect to any interference at any time experienced by Licensee and caused by the Existing
Carriers. Licensee will defend and hold the University harmless from and against all claims of third
parties relating to interference by Licensee, and Licensee will not make any claim against the
University relating to any such interference, and any and all claims for damages by Licensee and any
and all remedies of Licensee which are based upon such interference shall be pursued by Licensee,
without the assistance or involvement of University, against one or more of the Carriers, as
applicable and per the protocol cited in Section 5.3 below. Nothing herein, however, shall limit any
remedy of University as a result of the occurrence of any such interference. Furthermore, Licensee
agrees that it will not modify its Equipment in such a way that it interferes with the operations of any
of the Existing Carriers. Notwithstanding anything to the contrary contained in this Agreement,
however, University shall not permit any Existing Carrier to modify its equipment or usage in such a
way as to cause interference with Licensee’s operations.
5.2
Proposed New Carriers. With the exception of the Existing Carriers, in the event
that University receives a request or requests to locate any other wireless communication
transmitting/receiving equipment on the or any part of the XXXXXXX Structure from any third
party which is in the business of telecommunications ("Proposed New Carrier") University shall
have the right to enter into agreements with any Proposed New Carrier provided that the
Proposed New Carrier (a) performs necessary co-location analysis, at its sole expense,
in order to determine that the operations of the Proposed New Carrier will not interfere
with the current operations of Licensee; (b) causes to be prepared an update to the Intermodulation
Study at its sole expense, and agrees to fully comply with any and all requirements and
recommendations relating to such Proposed New Carrier's operation as set forth in the RFR Study,
as updated; and (c) agrees to comply with the provisions of Sections 5.3 and 5.4 below Within ten
(10) business days after written request of any Proposed New Carrier, Licensee shall submit to such
Proposed New Carrier copies of plans and specifications and other reasonable information
regarding Licensee’s then current equipment and operation of its facility and shall otherwise
cooperate with University and any such Proposed New Carrier as reasonably required in order for
such Proposed New Carrier to determine that its facilities will not interfere with the operations or
Equipment of Licensee and otherwise complies with all of the requirements or recommendations as
set forth in the RFR Study, as updated. University makes no representation or warranty that the
operations of any Proposed New Carrier will not interfere with the Equipment or operations of
Licensee (any such representation or warranty being expressly disclaimed) and University shall not
be responsible for or in any manner be liable to Licensee with respect to any interference of any kind
experienced by Licensee caused by any Proposed New Carrier. Licensee will defend and hold the
University harmless from and against all claims of third parties relating to interference by Licensee,
and Licensee will not make any claim against the University relating to any such interference, and
any and all claims for damages by Licensee and any and all remedies of Licensee which are based
upon such interference shall be pursued by Licensee, without the assistance or involvement of
University, against one or more of the Carriers, as applicable, and per the protocol cited in Section
9
5.3 below. Nothing herein, however, shall limit any remedy of University as a result of the
occurrence of any such interference. Furthermore, Licensee agrees that it will not modify its
Equipment in such a way that it interferes with the operations of any of the Proposed New Carriers.
5.3
5.4
Protocol for Interference Resolution Between Carriers.
5.3.1
Interference by a Carrier. In the event that Licensee can reasonably demonstrate that
another Carriers’ operations are causing interference with or disruptions of Licensee’s
operations, then Licensee shall, before any legal action may be taken, serve written notice to
such Carrier to: (i) technically and/or physically respond to such claim of interference within
four (4) hours of such notice; (ii) remedy all actual interference within twenty-four (24) hours
of such notice, including, but not limited to, taking all necessary steps to attempt to
determine the cause of such interference and correct and eliminate such interference; (iii)
cease all operations reasonably suspected to the reasonable satisfaction of Licensee to be
causing such interference until such interference has been corrected or eliminated to the
satisfaction of Licensee if the interference cannot be corrected or eliminated within such
twenty-four (24) hour period; and (iv) pay all costs and expenses incurred by Licensee
relating to determining the cause of the interference. If said Carrier refuses or fails to
correct and eliminate such interference to the satisfaction of Licensee within five (5) days of
the written notice, Licensee may seek injunctive relief against said Carrier pending
resolution of the interference problem. It is understood between the parties that under no
circumstances shall any interference problem between Licensee and another Carrier impact
payment of the License Fee. In the event Licensee is served such notice from another
Carrier, Licensee agrees to comply with the protocol designated herein.
5.3.2
Interference by Licensee. In the event that University or other Carriers can reasonably
demonstrate that Licensee's operations are causing interference with or disruptions of or to
any of the operations of any of the other Carriers, then Licensee shall, upon its receipt of
written notice from University or such Carriers: (i) technically and/or physically respond to
such claim of interference within four (4) hours of such notice; (ii) remedy all actual
interference within twenty-four (24) hours of such notice, including, but not limited to, taking
all necessary steps to attempt to determine the cause of such interference and correct and
eliminate such interference; (iii) cease all operations reasonably suspected to the reasonable
satisfaction of University or other Carriers to be causing such interference until such
interference has been corrected or eliminated to the satisfaction of University or other
Carriers if the interference cannot be corrected or eliminated within such twenty-four (24)
hour period; and (iv) pay all reasonable costs and expenses incurred by University or
Carriers relating to determining the cause of the interference and, if incurred by University,
shall pay to University, upon receipt of a billing from University such costs and expenses. If
Licensee refuses to correct and eliminate such interference to the satisfaction of University
or other Carriers within five (5) days of the written notice, University or Carriers may seek
injunctive relief against Licensee pending resolution of the interference problem. Without
limiting the foregoing, University shall not be obligated to assist any Carrier in any such
injunctive relief actions, but shall have the right to terminate this Agreement, in addition to its
other rights of termination and remedies provided elsewhere in this Agreement, if Licensee
shall not correct and eliminate such interference to the satisfaction of University within thirty
(30) days of University notifying Licensee of such interference. If Licensee cannot eliminate
such interference to Licensee’s satisfaction, Licensee may terminate this Agreement upon
thirty (30) days notice to University.
Interference of Protected Uses By Licensee.
5.4.1
Protected Uses. Licensee’s use of the premises shall not interfere with University’s use of
the campus or future use of the campus, nor shall it interfere with University’s mission,
general, or emergency operations or with the electronic instrumentation and other teaching,
research, and public safety equipment located throughout the University campus (Protected
Uses).
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5.4.2
Interference of Protected Uses. In the event that University believes in its reasonable
determination, based upon, radio frequency analysis that Licensee's operations are causing
interference with or disruptions of or to any of the Protected Uses, then Licensee shall: (i)
technically and/or physically respond to such claim of interference within four (4) hours of
notice thereof from University; (ii) remedy all actual interference within twenty-four (24) hours
of notice thereof from University, including, but not limited to, taking all necessary steps to
attempt to determine the cause of such interference and correct and eliminate such
interference; (iii) if the interference cannot be corrected or eliminated within such twenty-four
(24) hours, upon the request of University, cease all operations reasonably suspected to be
causing such interference until such interference has been corrected or eliminated to the
satisfaction of University; and (iv) pay all costs and expenses incurred by University or
Licensee relating to determining the cause of the interference with Protected Uses and, if
incurred by University, shall pay to University, upon receipt of a billing from University such
costs and expenses. Without limiting the foregoing, University shall have the right to 1)
cause Licensee to immediately and permanently cease all operations on the Premises 2)
terminate this Agreement, in addition to its other rights of termination and remedies provided
elsewhere in this Agreement, if Licensee shall not correct and eliminate such interference to
the satisfaction of University within thirty (30) days of University notifying Licensee of such
interference. No action by University to disconnect Licensee’s operations shall be subject to
any claim for loss or damage, provided that such action was based upon documented
interference or disruption, that such documented interference or disruption was material, and
notice was provided as required herein.
SECTION 6.
INSURANCE AND INDEMNIFICATION
6.1
INDEMNIFICATION. Licensee hereby waives, releases, discharges, relinquishes, and agrees to
indemnify, protect, save harmless, the State of Georgia (including the State Tort Claims Trust Fund
and other self insured funds) and all of its State entities, and all respective officers, employees,
directors, and agents of and from any and all claims, demands, liabilities, losses, costs, or expenses
for any loss including but no limited to bodily injury (including death), personal injury, property
damage, expenses, and attorneys’ fees actually incurred, caused by, arising out of, or otherwise
occurring in connection with this License Agreement, due to any act or omission (whether intentional
or negligent) on the part of Licensee, Licensee’s agents, employees, or others working at the
direction of Licensee or on Licensee’s behalf, or due to any breach of this Agreement by Licensee, or
due to the application or violation of any Applicable Laws, Requirements, and Regulations by the
Licensee. This indemnification does not apply to the extent of the sole negligence of the State of
Georgia and its officers or employees. This indemnification extends to the successors and assigns
of Licensee, and this indemnification survives the termination of this Agreement and the dissolution
or, to the extent allowed by law, the bankruptcy of the Licensee. If and to the extent such damage or
loss as covered by this indemnification is covered by the State Tort Claims Fund (the “Fund”)
established and maintained by the State of Georgia Department of Administrative Services
(“DOAS”), the Licensee agrees to reimburse the Fund for such monies paid out by the Fund. To the
full extent permitted by the Constitution and the laws of the State of Georgia and the terms of the
Fund, Licensee and Licensee’s insurers waive any right of subrogation against the University, its
officers, employees and agents, the Fund, and insurers, to the full extent of this indemnification.
6.2
INSURANCE CERTIFICATES. Licensee shall procure the insurance policies at Licensee’s own
expense and shall furnish the University an insurance certificate listing the University as the
certificate holder. In addition, the insurance certificate must provide the following:
a. Name and address of authorized agent;
b. Name and address of insured;
c. Name of insurance company;
d. Description of coverage in standard terminology;
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e. Policy number;
f. Policy period;
g. Limits of liability;
h. Name and address of University as certificate holder;
i. Signature of authorized agent; and
j. Telephone number of authorized agent.
Licensee also agrees to purchase and have the authorized agent state on the Insurance Certificate
that the following types of insurance coverage have been purchased by Licensee: (a) Commercial
General Liability Insurance Policy (“CGL”), (b) Workers’ Compensation Insurance, and (c)
Commercial Automobile Liability Insurance Policy . This coverage and the respective requirements
are further described herein below. Licensee reserves the right to self-insure.
6.3
INSURANCE REQUIREMENTS. (a) Commercial General Liability Insurance Policy. The Licensee
shall procure and maintain Commercial General Liability Insurance, including products and
completed operations liability and contractual liability coverage, with limits of three million dollars
($3,000,000.00) per occurrence and five million dollars ($5,000,000.00) in the aggregate covering
bodily injury, property damage liability, and personal injury. The policy or policies shall include the
officers, agents, and employees of the State of Georgia as additional insured, but only with respect
to claims which are not covered by the Georgia Tort Claims Act, O.C.G.A. 50-21-20 et seq. (Supp.
1992). The CGL policy must provide primary limits over any other liability policy provided by the
State for any claims not covered by the Georgia Tort Claims Act. The policy or policies must be on
an “occurrence” basis unless waived by the State. The CGL policy shall include blanket contractual
liability coverage The CGL policy purchased by the Licensee must be issued by a company
authorized to conduct business in the State of Georgia or by a company acceptable to the State if
the company is an alien insurer.
(b) Workers’ Compensation Insurance. To insure the statutory limits as established by the General
Assembly of the State of Georgia, the workers’ compensation policy must include Coverage B –
Employer’s liability limits in accordance with the following prescribed terms: (1) for Bodily Injury by
accident, the amount shall be five hundred thousand dollars ($500,000.00) for each accident and (2)
for Bodily Injury by Disease, the amount shall be five hundred thousand dollars ($500,000.00) for
each employee. (NOTE: A self-insurer must submit a certificate from the Georgia Board of Workers’
Compensation stating that said self-insurer qualifies to pay its own workers’ compensation claims.)
Except as otherwise stated for Licensee’s employees, the Licensee shall require all others
performing work at Licensee’s direction or on Licensee’s behalf under this License Agreement to
obtain an insurance certificate showing proof of Workers’ Compensation Coverage.
(c) Commercial Automobile Liability Insurance Policy. The Licensee shall procure and maintain
commercial automobile liability insurance with a minimum combined single limit of three million
dollars ($3,000,000.00) each accident covering owned, non-owned, or hired vehicles.
(d) Umbrella Liability Insurance. The parties identified herein below shall provide an Umbrella
Liability Insurance policy with liability limits of two million dollars ($2,000,000.00) and coverage as
broad as or broader than the underlying primary insurance. The policy hereof must be written on an
occurrence basis. The affected parties include the following: (1) General Contractors or any other
contractor or the Licensee who subcontracts or otherwise contracts all or any part or portion of the
work performed by any of the parties set out and described in the list of parties (2) through (8) that
immediately follows; (2) Roofing Contractors; (3) Electrical Contractors; (4) Plumbing Contractors; (5)
Heating and Air-Conditioning Contractors; (5) Boiler Contractors; (6) any contractors performing “hot”
or “flame” work such as welders, burners, and the like; and/or (7) any other contractor that in the sole
judgment of Landlord and/or DOAS could cause a catastrophic loss. Licensee may meet such
requirements by increasing the required primary policy limits by $2,000,000.00 per occurrence in lieu
of umbrella liability insurance.
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If an occurrence based policy is not available under Umbrella Liability Insurance, then a claims made
policy may be purchased, but with the condition that a minimum three (3) year extended reporting
period is provided with the policy. A claims made Umbrella Liability Insurance policy must include a
non-concurrence or dip down endorsement if the inception dates and expiration dates of all
underlying policies are not identical.
6.4
Builders Risk Insurance. Licensee shall provide a Builder’s Risk Policy to be made payable
to the University and Licensee, as their interests may appear. The policy amount should be equal
to 100% of the Contract Sum or $2,000,000 (whichever is greater), written on a Builder’s Risk “All
Risk”, or its equivalent. The policy shall be endorsed as follows to the effect:
The following may occur without diminishing, changing, altering or
otherwise affecting the coverage and protection afforded the insured
under this policy:
(i) Equipment may be delivered to the insured premises and
installed in place ready for use; and
(ii) Partial or complete occupancy by University; and
(iii) Performance of work in connection with construction
operations insured by the University, by agents or lessees or
other Contractors of the University or Using Agency
In the event that the Contract is for renovation, addition or modification of an existing structure and
Builders Risk Insurance is not available; the University will accept an Inland Marine All Risk Floater
Insurance Policy with the above endorsements in lieu of the Builders' Risk Insurance Policy. Such
floater must insure loss to materials and equipment prior to acceptance by University and must be on
an ALL RISK BASIS with the policy written on a specific job site.
6.5
WAIVER AND RELEASE/LIMITATION OF DAMAGES. LICENSEE AGREES AND
ACKNOWLEDGES THAT UNIVERSITY SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES
FOR ANY LOSS OF OR INJURY TO PERSONAL PROPERTY, OR INJURY TO OR
INTERFERENCE WITH LICENSEE'S BUSINESS INCLUDING, WITHOUT LIMITATION, LOSS OF
PROFITS OR CONSEQUENTIAL DAMAGES HOWEVER OCCURRING AND INCLUDING, BUT
NOT LIMITED TO, THOSE OCCURRING THROUGH OR IN CONNECTION WITH OR
INCIDENTAL TO (I) ANY FAILURE TO SUPPLY ANY ACCESS, UTILITIES, OR ANY OTHER
SERVICE WHICH UNIVERSITY HAS AGREED TO PROVIDE OR MAY PROVIDE, (II) ANY
SURGES OR INTERRUPTIONS IN ELECTRICITY, OR (III) THE FAILURE OF OR
INTERRUPTIONS IN SERVICES OF ANY TELEPHONE OR TELECOMMUNICATIONS LINES,
WIRES, CABLES OR ANY SERVICE OR EQUIPMENT, WHETHER OR NOT CAUSED BY ANY
NEGLIGENCE OF UNIVERSITY OR BY UNIVERSITY'S INSTALLATION OF, MAINTENANCE OF,
OR FAILURE TO MAINTAIN ANY OF THE FOREGOING (COLLECTIVELY THE "RELEASED
CLAIMS"). LICENSEE FURTHER AGREES AND ACKNOWLEDGES THAT IN NO EVENT SHALL
UNIVERSITY BE LIABLE OR RESPONSIBLE TO LICENSEE WITH RESPECT TO ANY OF THE
RELEASED CLAIMS, REGARDLESS OF WHETHER ANY MATTER DESCRIBED IN THE
RELEASED CLAIMS IS CAUSED BY THE NEGLIGENCE OR OTHER MISCONDUCT OF
UNIVERSITY, AND LICENSEE HEREBY WAIVES AND RELEASES ALL OF THE RELEASED
CLAIMS FOR THE BENEFIT OF UNIVERSITY. THIS WAIVER AND RELEASE DOES NOT APPLY
TO PROPERTY DAMAGE RESULTING FROM THE SOLE NEGLIGENCE OF UNIVERSITY IN THE
CONSTRUCTION, ALTERATION, REPAIR, OR MAINTENANCE OF THE XXX STRUCTURE.
WITHOUT LIMITING THE FOREGOING OR ANY OF THE OTHER PROVISIONS OF THIS
AGREEMENT, UNIVERSITY'S LIABILITY UNDER THIS AGREEMENT, IF ANY, SHALL NOT
EXCEED ONE YEARS LICENSE FEE PAYABLE BY LICENSEE UNDER THIS AGREEMENT, AND
FURTHER, IN NO EVENT SHALL UNIVERSITY BE LIABLE FOR ANY CONSEQUENTIAL OR
PUNITIVE DAMAGE.
SECTION 7.
LICENSEE'S OBLIGATIONS
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7.1
Licensee's Maintenance Obligations. Except for services and utilities furnished by University in
accordance with Section 3.3, Licensee shall, at Licensee’s sole expense, maintain the Premises in
good order, condition and repair, including electrical wiring, switches and special items and
equipment installed by or at the expense of Licensee. Licensee shall be responsible for all repairs
and Alterations in and to the Premises and the XXX Structure (only to the extent it is directly affected
by the Permitted Use), and the facilities and systems thereof, the need for which arises out of (i)
Licensee’s use or occupancy of the Premises, (ii) the installation, removal, use or operation of the
Equipment, (iii) the moving of Equipment into or out of the Premises, or (iv) the act, omission, misuse
or negligence of Licensee, its agents, contractors, employees or invites. If Licensee fails to maintain
the Premises in good order, condition and repair, University shall give Licensee notice to do such
acts as are reasonably required to maintain the Premises. If, within ten (10) days thereafter,
Licensee fails to promptly commence such work and diligently prosecute it to completion, then, in
addition to its other remedies under this Agreement, University shall have the right to do such work
and expend such funds at the expense of Licensee as are reasonably required to perform such work.
Any amount so expended by University plus a reasonable percentage of mark-up to cover general
conditions and fees shall be paid by Licensee promptly upon demand as an additional License Fee
due hereunder and interest shall accrue on any unpaid portion of such amount at the prime rate then
established by Wall Street Journal published one day prior plus two percent (2%) per annum, from
the date of such work, but not to exceed the maximum rate then allowed by law. Carriers shall be
jointly and severally responsible for the obligations referenced in this Section with respect to any joint
activities between or among themselves in connection with this Agreement.
7.2
Hazardous Substances. Prior to the execution of this Agreement, if Licensee’s operations related to
the Permitted Use require the usage, storage, generation or disposal of any Hazardous Substance
(as defined in this Section 7.2 below), the parties acknowledge that Licensee has provided a list of
such Hazardous Substances for review and approval by the University’s Environmental Safety
Division attached hereto as Exhibit “H”. The future use of any Hazardous Substance not listed on
Exhibit "H" shall be submitted to University for approval prior to Licensee’s use. If Hazardous
Substances are used, stored, generated, or disposed of on or in the Premises, the XXX Structure or
University's Campus or if the Premises, the XXX Structure or University's Campus become
contaminated in any manner for which Licensee is legally liable, Licensee shall indemnify, defend
and hold harmless the University from any and all liabilities and costs (including without limitation, a
decrease in value of the Premises, the XXX Structure or University's Campus, and any and all sums
paid for settlement of claims, litigation expenses, attorneys' fees, consultant, and expert fees) of
whatever kind or nature, known or unknown, contingent or otherwise, arising during or after the
Term. This indemnification includes, without limitation, any and all costs incurred because of any
investigation of the site or any cleanup, removal, or restoration mandated by a federal, state, or local
agency or political subdivision resulting from such use, storage, or generation. Without limitation of
the foregoing, if Licensee causes or permits the presence of any Hazardous Substance on the
Premises, the XXX Structure or University's Campus that results in contamination, Licensee shall
promptly, at its sole expense, take any and all necessary actions to return the Premises, the XXX
Structure or University's Campus to the condition existing prior to the presence of any such
Hazardous Substance in the Premises, the XXX Structure or University's Campus. Licensee shall
first obtain University's written approval for any such remedial action. The provisions of this Section
7.2 shall be in addition to any other obligations and liabilities Licensee may have to University at law
or equity and shall survive the transactions contemplated herein and shall survive the termination of
this Agreement. As used herein, "Hazardous Substance" means any substance that is toxic,
ignitable, reactive, or corrosive and that is now or hereafter regulated by any local government, the
State of Georgia, or the United States Government. "Hazardous Substance" includes any and all
material or substances that are defined as "hazardous waste," "extremely hazardous waste," or a
"hazardous substance" pursuant to state, federal, or local governmental law. "Hazardous
Substance" includes, but is not restricted to, asbestos polychlorobiphenyls ("PCBs"), and petroleum.
University states, on information and beliefs, that it has no knowledge of any Hazardous Substances
on the Premises.
7.3
Removal of Equipment. Within ninety (90) days after the termination of this Agreement, by expiration
of the Term or otherwise ("Required Removal Date"), Licensee at its sole cost and expense will
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remove the Equipment and restore the Premises to substantially the same condition as on the
Effective Date, reasonable wear and tear and casualty loss excepted. In the event Licensee does
not comply with these obligations by the date which is ninety (90) days after the termination of this
Agreement, University, in addition to any other remedies available to University, may elect to deem
the Equipment as "abandoned" by Licensee, and may, after providing Licensee ten (10) days
advance notice, take any and all necessary steps to remove the Equipment and to repair the
Premises, utilizing the Security Deposit provided by Licensee, with Licensee responsible for any and
all costs and expenses relating thereto which exceed the Security Deposit. Notwithstanding the
foregoing right by Licensee, Licensee shall be responsible to continue to pay the License Fee in the
amount last due under this Agreement, for any period of time after the Required Removal Date that
the equipment has not been removed from the Premises.
7.4
Relocation Right. Notwithstanding any provision of the Agreement to the contrary, University shall
have the right to require that Licensee permanently relocate Licensee's Equipment from the
Premises to another available location on University's Campus at any time during the Term if
deemed necessary by University pursuant to the provisions of this Section 7.4. In order to exercise
this right of relocation, University shall deliver to Licensee at least six (6) months prior written notice
(the "Relocation Notice") setting forth University's exercise of such right and a description of the
proposed relocation site (the "Proposed Site"). The Proposed Site shall be subject to Licensee's
reasonable approval as a site feasible for the operation of Licensee's Equipment and effective for
Licensee’s network requirements. Licensee shall have the right to disapprove of the new site if in
Licensee's good faith judgment the new site will not be suitable for Licensee's use and operations. If
Licensee deems the new site not suitable, as described above, Licensee's sole remedy shall be to
elect to terminate this Agreement, which election must be made within sixty (60) days after delivery
of University's Relocation Notice. Licensee shall not be required to relocate more than one (1) time
during the combined Initial Term and Extended Term. University shall reimburse Licensee for any
actual costs to relocate pursuant to the terms of this Section 7.4 during the first three years from the
commencement date of this Agreement. From the beginning of the fourth year to the termination of
Agreement, all costs and expenses of such relocation shall be borne by Licensee. University shall
not require such relocation in order to accommodate another Carrier.
SECTION 8.
DEFAULTS AND TERMINATION
8.1
Licensee Defaults. The occurrence of any one or more of the following events shall
constitute an "Event of Default" hereunder by Licensee:
8.1.1
Default Related to Licensee Fee. The failure by Licensee to make any payment of License
Fee or any other payment required to be made by Licensee hereunder, as and when due,
where such failure shall continue for a period of fifteen (15) days after written notice thereof
to Licensee.
8.1.2
Default Related to Interference. The failure of Licensee to observe or perform any of the
covenants or provisions under Sections 5.3 and 5.4 (or their subsections) which remains
uncured for 24 hours (unless another time period is expressly set forth in Sections 5.3 and
5.4 (or their subsections), in which case such other time period shall control).
8.1.3
Other Reasons for Default. The failure by Licensee to observe or perform any of the
covenants or provisions of this Agreement to be observed or performed by Licensee, other
than as specified in Sections 8.1.1 and 8.1.2, where such failure shall continue for a period
of thirty (30) days after written notice thereof is given by University to Licensee; provided,
however, if not curable within thirty (30) days that it shall not be deemed an Event of Default
by Licensee if Licensee shall commence to cure such failure within said thirty (30) day period
and thereafter diligently prosecutes such cure to completion as deemed reasonable by
University.
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8.2
Remedies. If there occurs an Event of Default by Licensee, in addition to any other rights and
remedies available to University at law or in equity, University shall have the right to terminate this
Agreement by providing a written notice to Licensee indicating that the Agreement has been
terminated and, if Licensee fails to do so by the Required Removal Date, remove the Equipment
and any other property owned by Licensee from the Premises.
8.3
Termination by Licensee. Licensee shall have the right to terminate this Agreement, without cause,
by providing University with at least one hundred twenty (120) days prior written notice of such
termination election (the "Termination Notice"), provided that in order for Licensee's Termination
Notice to be effective, at any time during the Initial Term for any reason other than failure to obtain or
loss of approvals required under Applicable Laws, Requirements, and Regulations, Licensee's
Termination Notice shall include with it a termination fee equal to a six month payment of the License
Fee which is then in effect hereunder (the "Termination Fee"). The Termination Fee shall be in
addition to the requirement that Licensee pay the License Fee up to the termination effective date.
Upon the termination effective date under this Section 8.4, Licensee shall remove its Equipment from
the Premises as required by Section 7.3 hereof and, with the exception of any indemnification
provisions and any other provisions which would survive the expiration of this Agreement, this
Agreement shall terminate and neither University nor Licensee will have any additional obligations or
rights hereunder.
8.4
Additional Termination by University. In addition to University's right to terminate as provided in
Sections 8.2 and 8.3 or elsewhere in this Agreement, this Agreement may be terminated without any
penalty or further liability by or of University if the Federal Communications Commission makes a
determination which is final and non-appealable or which is affirmed and becomes final after the
exhaustion of all available appeals concluding that Licensee's use as set forth in this Agreement
presents a material risk to the public health or safety, either University or Licensee may terminate
this Agreement upon thirty (30) days notice to the other party. Any termination of the Agreement as
provided under the provisions of this Section 8.4 shall relieve both parties of any further obligations
under this Agreement (except provisions which indicate they survive such termination), although
Licensee shall continue to be responsible for any breach of any obligations which occurred prior to
the date of such termination.
SECTION 9.
DAMAGE AND CONDEMNATION
9.1
Damage. If the XXX Structure or the Premises are destroyed by casualty to any extent and cannot
be expected to be repaired/restored within forty-five (45) days or Licensee’s operation of the
Equipment is expected to be disrupted for more than forty-five (45) days due to such damage or
destruction and University is unable to provide Licensee with a temporary location from which
Licensee can conduct its telecommunications transmissions Licensee may notify University that it is
terminating this Agreement within the ensuing twenty (20) days after the expiration of such forty-five
(45) day period. (In the event University is able to provide Licensee with a temporary location within
the aforementioned forty-five (45) day period, Licensee shall be responsible for all relocation
expenses.) If either party has not earlier terminated the Agreement pursuant to Section 8 above or
elsewhere in this Agreement, University shall deliver written notice to Licensee within forty-five (45)
days after the damage or destruction indicating whether or not University intends to repair The XXX
Structure and whether or not University deems it necessary to terminate this Agreement in
connection with such repair or restoration. If either party elects to terminate as provided herein, this
Agreement shall terminate upon the receipt of written notice from the other party. In no event under
this Section 9.1 shall Licensee be assessed a Termination Fee.
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9.2
Condemnation. In the event that the whole or any portion of the Premises is acquired or condemned
by any authority or sold or desired to be sold by University in lieu thereof, then this Agreement shall
terminate at University's or Licensee’s election as of the date the condemning authority takes title or
such earlier date as reasonably necessary and the annual License Fee and Licensee's Proportionate
Share of Related Operating Expenses shall be adjusted and prorated to the date of termination.
Such termination, however, shall be without prejudice to the rights of either University or Licensee to
recover from the condemn or compensation and damage caused by condemnation, including,
without limitation, Licensee’s right to seek an award for losses related to antennas, equipment,
relocation costs, and its damages and losses, and neither party shall have any rights in any award or
settlement so received by the other from the condemning authority.
SECTION 10.
TRANSFER OF LICENSE AGREEMENT
10.1
Permitted Transfer. Licensee shall not assign, sublease, permit the use of, or otherwise transfer any
interests in and to this Agreement, including, but not limited to, the sale of capacity to any other
telecommunications company or carrier (collectively "Transfer") except as limited under this Section
10.1 and Section 10.2 herein. Notwithstanding the foregoing, University agrees that Licensee may
assign this Agreement, without University's prior written consent of the assignment ("Consent"), to
the Licensee’s principal, affiliates, subsidiaries of its principal or to any entity which acquires all or
substantially all of Licensee’s assets in the market defined by the Federal Communications
Commission in which the Premises is located by reason of a merger, acquisition or other business
reorganization. As to other parties, this Agreement may not be sold, assigned or transferred without
the written consent of University, which such consent will not be unreasonably withheld or delayed.
10.2
Effect of Transfer. No Transfer shall release Licensee of Licensee’s obligations under this
Agreement or alter the primary liability of Licensee to pay the License Fee and to perform all other
obligations to be performed by Licensee hereunder. The acceptance of the License Fee by
University from any other person shall not be deemed to be a waiver by University of any provision
hereof. Consent to one Transfer shall not be deemed consent to any subsequent Transfer. In the
event of default by a transferee of Licensee or any successor of Licensee in the performance of any
of the terms hereof, University may proceed directly against Licensee without the necessity of
exhausting remedies against such transferee. University may consent to subsequent Transfers of
the Agreement or amendments or modifications to the Agreement with transferees of Licensee,
without notifying Licensee, and without obtaining its or their consent thereto and any such actions
shall not relieve Licensee of liability under this Agreement.
10.3
Administrative Fee. Without abrogating the provisions and restrictions regarding a Transfer
referenced in this Section, if Licensee requests the consent of University to a Transfer of this
Agreement, then Licensee shall, upon demand, pay University any administrative fees, attorneys’
fees, or other fees reasonably incurred by University in connection with such requested Transfer,
whether or not University's consent is obtained.
SECTION 11.
GENERAL PROVISIONS
11.1
Complete Agreement. It is hereby mutually agreed and understood that this Agreement and all
exhibits, attached hereto and incorporated herein by this reference, contains all agreements,
promises, and understandings between University and Licensee and that no other agreements,
promises, or understandings shall or will be binding on either University or Licensee in any dispute,
17
controversy, or proceeding at law, and any addition, variation, or modification to this Agreement shall
be void and ineffective unless in writing and signed by the parties hereto.
11.2
Applicable Law. This Agreement and the performance thereof shall be governed, interpreted,
construed, and regulated by the laws of the State of Georgia.
11.3
Notices. Unless otherwise expressly set forth elsewhere in this Agreement, all notices and other
communications required or permitted under this Agreement shall be in writing and shall be given by
United States first class mail, postage prepaid, registered or certified, return receipt requested, by
overnight service, by hand delivery (including by means of a professional messenger service)
addressed to the party for whom it is intended at its address set forth in Section 1 or by facsimile to
the number set forth in Section 1, and any such notice or other communication shall be deemed to
be effective on the date given if given by hand delivery, on the day after the date sent if sent by
overnight service, or three (3) days after the date sent if sent by first class mail. Either party may by
similar notice given change the address to which future notices or other communications shall be
sent.
11.4
Authority. Each of the individuals executing this Agreement on behalf of the Licensee or
the University represents to the other party that such individual is authorized to do so by
requisite action of the party to this Agreement.
11.5
Holdover. In the event that Licensee holds over and refuses to surrender the Premises
after the Required Removal Date, then in addition to all other rights and remedies of University, the
License Fee shall be automatically increased to one hundred fifty percent (150%) of the License Fee
which is then in effect for the Premises.
11.6
Estoppel Certificates. On request of University, Licensee shall execute, acknowledge and deliver,
within thirty (30) business days, a written statement certifying all such reasonable matters with
respect to this Agreement as required, together with any other such statements as reasonably
required by University.
11.7
Attorneys' Fees. Licensee shall reimburse University upon demand for any attorneys' fees and costs
actually incurred by University in connection with the enforcement of this Agreement or in connection
with University cooperation with Licensee’s applications or other actions.
11.8
Recordation. If Licensee records this Agreement or any memorandum short-form hereof, Licensee
shall execute a release of the Agreement or memorandum and provide it to University in escrow at
the beginning of the term of this Agreement so that University may file the release at the termination
of this Agreement.
11.9
Brokers. Licensee warrants and represents that it has had no dealings with any real estate broker or
agent or other broker or agent in connection with this Agreement, and that it knows of no real estate
broker or agent or other broker or agent who may be entitled to a commission or other compensation
in connection with this Agreement. Licensee hereby agrees to indemnify and defend the Licensor
against and hold Licensor harmless from any and all claims, demands, losses, liabilities, lawsuits,
judgments and costs and expenses (including, without limitation, reasonable attorneys' fees) with
respect to any commission or equivalent compensation alleged to be owing on account of the
Licensee’s dealings with any real estate broker or agent or other broker or agent. University states
on information and belief that it has had no dealing with any real estate or other broker or agent in
connection with this Agreement other than its consultant XXXXXX.
11.10
Successors and Assigns. Subject to the provisions of Section 10 above, this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective heirs, representatives,
successors and assigns.
11.11
Time is of the Essence. Time is of the essence with respect to performance of every provision of this
Agreement.
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11.12
Nondiscrimination. Licensee shall not discriminate against any employee or applicant for
employment because of race, national origin, religion, creed, sex, age, handicap, or status as a
disabled veteran or veteran of the Vietnam era.
11.13
Severability. If any term or provision of this Agreement shall be held invalid or unenforceable to any
extent under applicable law by a court of competent jurisdiction, the remainder of this Agreement
shall not be affected thereby, and each term and provision shall be valid and enforceable to the
fullest extent permitted by law.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first
above written.
UNIVERSITY: The BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA by and on
behalf of the UNIVERSITY OF GEORGIA
By: ____________________________________________
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Vice President for Finance
and Administration
Attest: __________________________________________
Associate Vice President and
Controller
Date: ____________________________________________
LICENSEE: XXXXXXXXXXXXXXXXX
By: _____________________________________________
Date: ___________________________________________
LIST OF EXHIBITS
EXHIBIT "A"…………………………………………………….………XXX Structure Location Map
20
EXHIBIT “B”………………………………………………XXX Structure Installation Plan
EXHIBIT "C" ............................................... ……..Electrical Installation Plan and the Related Ground Space
EXHIBIT "D"…………………………………………….Access Procedures for the XXX Structure
EXHIBIT "E…………Description of Communication Systems and Services the XXX Structure
EXHIBIT "F" ............................................................................................ Description of Approved Equipment
EXHIBIT "G"............................................................................................................... Work Letter Agreement
EXHIBIT "H" ............................................................................................... ….List of Hazardous Substances
21
EXHIBIT "A"
XXX STRUCTURE LOCATION MAP
22
EXHIBIT "B"
XXX STRUCTURE INSTALLATION PLANS
EXHIBIT “B” CON’T
23
EXHIBIT "C"
ELECTRICAL INSTALLATION PLAN AND THE RELATED GROUND SPACE
EXHIBIT “C” CON’T
24
EXHIBIT "D"
ACCESS PROCEDURES FOR THE XXX STRUCTURE
TO BE DISTRIBUTED TO ALL LICENSEE’S REPRESENTATIVES LISTED BELOW
I.
Access Procedures for Licensee - As stated in Section 2.3 of the Agreement, Licensee's access
to the Premises shall be subject to all procedures reasonably adopted from time to time by the University
including, but not limited to, the procedures addressed in Section 2.3 and in this Exhibit "D". Only
Licensee's employees, agents, and/or contractors retained by Licensee as listed below shall be permitted
access to the Premises. Said representatives shall be required to show appropriate identification prior to
the requested access.
A.
Non-Emergency Access - Licensee must contact the UGA Director of Real Property Operations,
as referenced below, to schedule all non-emergency access to the Premises which shall be
conducted Monday through Friday between 8:00 am and 4:30 pm. Such access shall 1) require
at least twenty-four (24) hours prior written notice to University for scheduling purposes and 2)
require that Licensee be accompanied by the UGA Director of Real Property Operations or
his/her designee who shall log the arrival and departure of said representative. Access to the
Premises during the hours of 4:30 pm to 8:00 am on weekdays or during weekends and holidays
shall be granted for emergency purposes only, as described below, unless otherwise agreed to in
writing between the parties.
B.
Emergency Access - Licensee shall be permitted to access the Premises twenty-four (24) hours a
day, seven (7) days a week for emergency purposes, as reasonably determined by Licensee.
Within twenty-four (24) hours after such access, Licensee shall provide the UGA Manager of
Wireless Services with a written explanation of the nature of the emergency.
1)
Weekday Emergencies - For emergencies between the hours of 8:00 am and 4:30 pm
Monday through Friday, Licensee shall follow the protocol described above for
non-emergency access except that the twenty-four (24) hours prior written notice shall
not be required.
2)
Weekday Evening Emergencies - For emergencies between the hours of 4:30 pm and
8:00 am Monday through Friday, Licensee shall contact the UGA Police Dispatcher. Said
dispatcher shall contact the appropriate University employee who shall meet Licensee's
authorized representative at the Building, escort said representative to the Premises, and
log the arrival and departure of said representative.
3)
Weekend and Holiday Emergencies - For emergencies between Friday 4:30 pm to
Monday 8:00 am or on any holiday observed by the University, Licensee shall contact the
UGA Police Dispatcher. The UGA Police Dispatcher will contact the appropriate
University employee who will meet the Licensee’s representative at the Building, escort
said representative to the Premises, and log the arrival and departure of said
representative.
II.
Names, Company Names and Phone Numbers of Licensee's Employees, Agents and
Contractors Permitted Access to Premises: See Attached
III.
Names/Titles and Phone/Pager Numbers of University Contacts
UGA Director of Real Property Operations
Phone
Physical Plant or Housing Contact
Phone
UGA Police Department Dispatcher
Phone
25
EXHIBIT "E"
DESCRIPTION OF COMMUNICATION SYSTEMS AND SERVICES AT THE XXX STRUCTURE
Description of Communication Systems and Services at the XXX Structure which shall include:
i)
the construction and maintenance of the Equipment consisting of all antennas, cabinets, antenna
systems, cables, connectors, radio communications equipment and all related equipment installed
by Licensee as well as any other necessary connecting appurtenances sufficient to be a fully
operable communications facility for its intended licensed communications coverage areas.
.
ii)
the broadcast, transmission, and reception of communication signals in the frequency
band between frequency bands of XXXXXXXXXXXXXXX Mhz for the purpose of
providing mobile communications service.
26
EXHIBIT "F"
DESCRIPTION OF APPROVED EQUIPMENT
EXHIBIT “F” CONT.
EXHIBIT “F” CONT.
EXHIBIT “F” CON’T
27
EXHIBIT "G"
WORK LETTER AGREEMENT
THE BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA, by and on behalf of
the UNIVERSITY OF GEORGIA ("University"), and XXXXXXXXXXXXX, ("Licensee") are as of this _____
day of __________________, 20XX executing simultaneously with this Work Letter Agreement ("Work
Letter") a Telecommunications Facility License Agreement ("Agreement") relating to certain Premises as
described in the Agreement in order to permit Licensee to operate a communications facility as further
described in the Agreement.
This Work Letter defines the scope of University's approval rights and construction obligations
with respect to the Premises as described in the Agreement. Capitalized terms not otherwise defined in
this Work Letter shall have the meaning given to them in the Agreement.
SECTION A.
UNIVERSITY CONSTRUCTED
ELECTRICAL INFRASTRUCTURE IMPROVEMENTS
1.
Improvement Work To Be Completed. None
2.
Scope of Improvement Work. None
3.
Ownership of Improvement Work. None
4.
Preparation of Plans and Specifications. None
5.
Approval of Cost Estimate. None
6.
Preparation of Construction Documents. None
7.
Record Drawings. None
8.
Construction of Improvements. None
9.
Payment of Improvement Costs. None
10.
Scope of Improvement Costs. None
11.
Improvement Warranties. None
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SECTION B
LICENSEE CONSTRUCTED
BUILDING IMPROVEMENTS
1.
Improvement Work To Be Completed. Licensee shall construct all Building
Improvements in accordance with the Plans and Specifications and the conditions of any applicable
governmental approval. Building Improvements must satisfy the State Building Code and Federal
Americans with Disabilities Act. The Building Improvement Work shall consist of all and other
modifications as described in approved construction documents.
2.
Scope of Improvement Work. The Building Improvement Work and the obligation to
construct all of the improvements as described therein shall be limited to such Work as depicted on the
attached schedules and as set forth in the approved Building Improvement Construction Documents.
3.
Ownership of Improvement Work. All Building Improvements shall become the property
of University effective upon completion of such work and Licensee shall, upon request by University,
execute all such documents which may be necessary to evidence University's ownership. Licensee
further agrees that it shall remove any such Building Improvements and restore the Premises to their
condition on the Effective Date, if requested to do so by University upon the termination of this
Agreement.
4.
Preparation of Plans and Specifications. On or before the date set forth in the Schedule
of Performance, attached hereto as Schedule 2, ("Schedule of Performance"), Licensee will have
cooperated with and submitted to ______________ (the "Architect" and/or the “Engineer”), who shall be
retained by Licensee, the information required by the Architect (Information") necessary for the Architect
to prepare Plans and Specifications for all of the Building Improvement Work as described above (the
"Building Improvement Plans and Specifications"). University shall review and reasonably approve or
disapprove of the Building Improvement Plans and Specifications within the time frame set forth in the
Schedule of Performance. University's disapproval shall advise Licensee of modifications to the Building
Improvement Plans and Specifications necessary to obtain University's approval. If Licensee is so
advised, Licensee shall promptly cause the Building Improvement Plans and Specifications to be revised
to correct any deficiencies or other matters University may require and promptly deliver the revised
documents to University.
5.
Preparation of Construction Documents. Subsequent to approval of the Building
Improvement Plans and Specifications, Licensee shall obtain from the Architect as required by the
Schedule of Performance a complete set of construction documents required for bidding (the "Building
Improvement Construction Documents").
6.
Record Drawings. Licensee shall require Architect or Contractor to prepare and deliver
three (3) sets of record drawings to University within ten (10) days after substantial completion of the
Building Improvement Work.
7.
Construction of Improvements. After approval of the Building Improvement Construction
Documents, Licensee shall solicit bids in conformance with licensee's contracting requirements for the
Building Improvement Work. The contractor so selected by Licensee (the "Building Contractor") shall be
retained pursuant to a construction contract (the "Building Improvement Construction Contract") and shall
perform the Building Improvement Work in accordance with the Schedule of Performance.
8.
Payment of Improvement Costs. Licensee agrees that all Building Improvement Costs as
further described in Section B.9 below shall be the responsibility of and paid by Licensee.
9.
Scope of Improvement Costs. The Building Improvement Costs shall include all costs
incurred by Licensee and University in connection with the Building Improvement Work including, but not
limited to, those incurred in connection with the design, preparation of Plans and Specifications and
29
Construction Documents, construction and installation of the Building Improvement Work and any
measures taken by University which may be reasonably required to accomplish construction of such
Work, including, but not limited to, University's procurement of bonds, insurance policies and
governmental permits, and University's project and construction management and/or on-site supervision.
10.
Improvement Warranties. Licensee warrants to University that all materials and
equipment furnished by Licensee in its improvement of the Premises shall be new unless otherwise
specified in the Work Agreement, and that all of Licensee’s work to be performed under the Work
Agreement shall be of good and workmanlike quality, free from faults and defects, and in accordance with
the final Plans and Specifications and the requirements of the Work Agreement. Any of Licensee’s work
not conforming to the above standards shall be considered defective.
For one (1) year after the date of substantial completion of Improvements, Licensee shall,
following written notice from University, unconditionally make any repair, replacement, correction or other
alteration of any nature necessary by virtue of any defective construction of the Premises or defective
materials used therein. Thereafter, Licensee shall promptly make or cause to be made all repairs
replacements, corrections or alterations, at no expense to University, to correct latent defects in the
Premises caused by a nonconformance with the Plans and Specifications other than as approved by
University.
SECTION C
INSTALLATION OF LICENSEE EQUIPMENT
1.
Installation of Equipment and Delays. University and Licensee shall provide each other
with written notice of the dates upon which the Electrical Infrastructure Improvement Work and Building
Improvement Work is completed or anticipated to be completed (the "Completion Date") and Licensee
shall subsequent to the Completion Date, have the right to install Licensee's Equipment as described in
the Agreement and as previously approved by University. Although the Commencement Date under the
Agreement is the Completion Date, Licensee agrees and acknowledges that the said later date and
therefore the Commencement Date shall be delayed by the number of days that University or Electrical
Contractor are delayed in completing the Electrical Infrastructure Improvement Work due to any acts or
omissions of Licensee's contractors, Licensee’s, agents, officers or employees (collectively "Licensee
Parties") or Licensee (collectively "Licensee Delays") including, but not limited to (i) Licensee's failure to
comply with the Schedule of Performance, or any time frames set forth herein or in the Agreement; (ii)
any construction delays by the Building Contractor; (iii) any changes in the Electrical Infrastructure
Construction Documents requested by Licensee after University's approval of the Electrical Infrastructure
Construction Documents; (iv) extra time required by Electrical Contractor to obtain from suppliers any
long lead items; (v) a default by Licensee under this Work Letter or the Agreement; or (vi) any other delay
caused by Licensee or the Licensee Parties which operates to delay the completion of the Improvement
Work, as reasonably determined by University.
SECTION D
OTHER PROVISIONS
1.
University's Review. University's review of the Building Improvement Plans and
Specifications and Building Improvement Construction Documents as set forth in this Work Letter shall
not imply University's approval of the same, or obligate University to review the same, for quality, design,
code compliance or other like matters. Accordingly, notwithstanding that any Building Improvement Plans
and Specifications and Building Improvement Construction Documents are reviewed by University or any
architect, engineer or consultant of University and notwithstanding any advice or assistance which may
be rendered to Licensee by University or such architect, engineer and consultant of University, University
shall have no liability whatsoever in connection therewith and shall not be responsible for any omissions
or errors contained in the Building Improvement Plans and Specifications and Building Improvement
Construction Documents or in the construction of the Building Improvement Work, and the indemnification
30
and waiver and release provisions as set forth in Sections 6.4 and 6.5 of the Agreement shall apply to the
review of such documents and the construction of the Building Improvement Work.
2.
Licensee’s Representative. Licensee has designated as its sole representative (Licensee
Representative) with respect to the matters set forth in this Work Letter, who shall have full authority and
responsibility to act on behalf of Licensee as required in this Work Letter. Licensee may change its
representative under this Work Letter at any time by providing five (5) days prior written notice to
University. All inquiries, requests, instructions, authorizations and other communications with respect to
matters covered by this Work Letter from University will be made to the
Licensee Representative.
3.
University's Representative. University has designated as its sole representative (Tim
Monsour of the Nakoma Group) with respect to the matters set forth in this Work Letter, who shall have
full authority and responsibility to act on behalf of University as required in this Work Letter. University
may change its representative under this Work Letter at any time by providing five (5) days prior written
notice to Licensee. All inquiries, requests, instructions, authorizations and other communications with
respect to the matters covered by this Work Letter from Licensee will be made to the University
Representative. Licensee will communicate solely with the University Representative and will not make
any inquiries of or requests to, and will not give any instructions or authorizations to, any other employee
or agent of University, including University's architects, engineers, and contractors or any of their agents
or employees, with regard to matters covered by this Work Letter.
4.
University's Approval Rights. University may withhold its approval of the Plans and
Specifications, Construction Documents (both Electrical Infrastructure and Building Improvements), or
other work including any revisions requested by Licensee which requires work that: (i) exceeds or
adversely affects the structural integrity of the Building, or any part of the heating, ventilating, air
conditioning, plumbing, mechanical, electrical, communication or other systems of the Building; (ii)
violates any agreement which affects the Building or binds University; (iii) University reasonably believes
will increase the cost of operation or maintenance of any of the systems of the Building; (iv) does not
conform to applicable building codes or is not approved by any governmental authority with jurisdiction
over the Premises; or (v) in University's determination detrimentally affects the uniform exterior
appearance of the Building.
5.
Incorporation of Agreement. This Work Letter shall be deemed to be incorporated by
reference in the Agreement and all of the terms and provisions of the Agreement are incorporated herein
for all purposes. Any default or failure to observe or comply with any of the covenants or provisions by
Licensee hereunder also constitutes an Event of Default under the Agreement. In the event of any
default or Event of Default by Licensee under this Work Letter or under the Agreement then (i) in addition
to all other rights and remedies granted to University pursuant to the Agreement, University shall have the
right to cause Contractor to cease the construction of the Improvement Work (in which case such
cessation of construction shall be a Licensee Delay hereunder) and (ii) all other obligations of University
under the terms of this Work Letter and the Agreement shall be forgiven until such time as such default is
cured pursuant to the terms of the Agreement.
6.
Counterparts. This Work Letter may be executed in counterparts, each of which shall be
deemed an original, but all of which together constitute one instrument.
7.
Attorneys' Fees. In any action to enforce or interpret the terms of this Work Letter, the
party prevailing in that action shall be entitled to recover its reasonable attorneys' fees and costs of suit,
both at trial and on appeal.
31
IN WITNESS WHEREOF, University and Licensee have executed this Work Letter as of the date
first above written.
UNIVERSITY: The BOARD OF REGENTS OF THE UNIVERSITY SYSTEM OF GEORGIA by and on
behalf of the UNIVERSITY OF GEORGIA
By: ____________________________________________
Vice President for Finance
and Administration
Attest: __________________________________________
Date: ____________________________________________
LICENSEE:
By: _____________________________________________
Date: ___________________________________________
32
EXHIBIT “G”
ADDENDUM A
CONTRACTOR: The Contractor’s Superintendent shall have at least five (5) years experience as Superintendent
on projects of similar scope and complexity as this project and shall have been the Superintendent on at least one
facility that includes work comparable to this project.
MEANS & METHODS: The Contractor shall supervise and direct the work, using his best skill and attention. The
Contractor shall be solely responsible for all construction means, methods, techniques, sequences and procedures
and for coordinating all portions of the work under the Contract.
QUALITY ASSURANCE:
A. GENERAL: The selection of all materials and the execution of all operations required under these
specifications shall be subject to the approval of the Owner. The Owner shall have the right to reject any and all
work which, in his opinion, does not meet the requirements of the contract documents at any stage of the
operations. All rejected materials shall be promptly removed from the site by the Contractor.
B. LICENSED ELECTRICAL WORKMEN: Due to the significant amount of electrical work on this project, at least
one person installing electrical work shall have a valid and current certification of registration issued by the Georgia
State Construction Industry Licensing Board to engage in prescribed electrical activities.
SCHEDULE:
Contractor shall schedule his work at the convenience of the Owner, and coordinate his work with the Owner and
other contractors to insure prompt completion of this project.
B. NORMAL WORKING TIMES: It is customary that all work under this contract be performed on normal working
days. Normal working days are defined as Monday through Friday from 7:30 am until 5:30 pm excluding Georgia
State holidays. Work during other than normal times to include weekends, holidays and after-hours shall be
coordinated with and subject to approval by the Owner. A minimum of 72-hours notice is required for the Owner to
make all necessary arrangements, and such work shall be scheduled at the convenience of the Owner.
CONSTRUCTION MEETINGS:
A. PRE-CONSTRUCTION MEETING: The Contractor shall schedule at the convenience of the Owner a PreConstruction Meeting within 15 calendar days of receipt of the Notice to Proceed and prior to beginning
construction. The meeting shall include as a minimum the Contractor’s authorized representative and the
Architect’s and the Owner’s authorized representatives. As a courtesy, the User, University utilities and
infrastructure representatives as suggested by the Owner, Contractor’s Sub-Contractors and Testing Agency
representatives should be invited. The conference shall be held at a time convenient to the Owner and held at the
construction site. The conference agenda shall include introduction of key personnel and responsibilities; review of
project schedule; job site logistics; contract specifications; contract administration; and University policies and
procedures.
B. GENERAL: When construction starts, a meeting shall be held on a regular basis at a time convenient to the
Owner for the purpose of reviewing work and discussing problems. The Contractor shall have an authorized
representative at all meetings. During the meeting the Contractor shall indicate the amount of work completed
during the previous period and the exact location and proposed schedule of work for the following period. In
addition, the Contractor and the Owner shall discuss any problems that have developed during the previous week.
33
CONSTRUCTION RESTRICTIONS:
A. EXISTING FACILITIES: The work to be performed under this contract is located within the University of
Georgia’s (UGA) main campus area. Existing UGA facilities to include, but not limited to, The XXX Structure and
Sanford Stadium will be occupied during the life of this contract. The Contractor shall schedule his work and
coordinate his labor and equipment in such a manner as to NOT interfere with access to and operation of these
facilities.
B. BUS OPERATIONS: University of Georgia (UGA) bus system operates routes along East Campus Road and
Sanford Drive. The Athens-Clarke County (ACC) bus system operates routes along East Campus Road and
Sanford Drive. The Contractor shall schedule his work and coordinate his labor and equipment in such a manner as
to NOT interfere with access to and operation of these bus routes.
C. NORFOLK-SOUTHERN RAILROAD: The construction limits of this work are directly adjacent to and bordered
on the eastern side by the Norfolk-Southern Railroad Right-of-Way. This is an active line with weekly rail
movements. The Contractor shall NOT encroach upon nor interfere with the railroad right-of-way and operations at
any time.
D. PEDESTRIAN WALKWAY: The Contractor is advised and cautioned that the East Campus Road and Sanford
Drive sidewalks are a major pedestrian corridor. The Contractor shall schedule his work and coordinate his labor
and equipment in such a manner as to NOT interfere with access to and movement along this pedestrian corridor.
The Contractor shall clearly designate walkways and provide protective measures to ensure the safe movement of
pedestrians around the construction site.
E. RESIDENT HALL NOISE CONTROL: TBD
OTHER PROJECTS: Other projects under construction in this area include, but are not limited to preparation of the
Stadium for football season. Contractor shall coordinate and schedule his work NOT to interfere with these projects.
UTILITIES:
A. UTILITY OWNERS:
Water
Sanitary Sewer
Septic Sanitary System
Storm Sewer
Electric Power
Natural Gas
Steam
Chill Water
Data Communications
Voice Communications
Television Cable
ACC Public Utilities & UGA
ACC Public Utilities & UGA
University of Georgia
University of Georgia
Georgia Power Company & UGA
Atlanta Gas Light Company & UGA
University of Georgia
University of Georgia
Enterprise Info. Tech. Services (EITS)
Bell South & EITS
Charter Communications & EITS
B. LOCATOR NOTIFICATION: The Contractor's attention is directed to the fact that there are active utilities within
the work area. Utilities are owned by the University of Georgia and other public utility companies. 72 hours in
advance of digging, the Contractor shall contact: (1) University Physical Plant (PPD) Utility Locator at (706) 5427545; and (2) Enterprise Information Technology Services (EITS) Network Operations Center at (706) 542-3140
for University of Georgia utility locator service in addition to calling the public underground utility locator service
“Utilities Protection Center” (1-800-282-7411) as required by Georgia State law. The Contractor shall be
responsible for verifying the location of all utilities present and shall protect such utilities throughout the course of
the work.
34
C. CONNECTIONS TO EXISTING UTILITIES: All utility work involving connections to existing utility systems
(including but not limited to: electrical, communications, water, gas, steam, chill water, storm water & sanitary
systems) shall be coordinated with the Owner. Contractor shall inform the Owner prior to any proposed shutdown,
outage or work of any nature which will interrupt or disturb any building utility system or equipment served by that
system. A minimum of 72-hours notice is required for the Owner to make all necessary arrangements for this work,
and such shutdowns shall be scheduled at the convenience of the Owner.
D. UGA UTILITIES FURNISHED: Certain utilities, if owned and operated by the University of Georgia, required for
work to be performed under this contract shall be furnished by the Owner at the Contractor's expense. However,
these utilities shall be furnished at the point and in the capacity that they are available adjacent to the construction
site. Any utility of different pressure, capacity, type, etc. required by the Contractor that is not available within the
area shall be arranged for by the Contractor at his own expense. Any expense involved to the Contractor in
extending the utilities from the present location to the point required shall be at the Contractor's expense.
E. DAMAGE: The Contractor shall be liable for all repair costs if he fails to properly notify utility locators as
described in Article F-19.B above. Any utility line damaged by the Contractor which was marked by the owner of
the utility shall be repaired by the Contractor at his own expense. In the event the Owner of the utility elects to
make the repairs with his own work force, the Contractor shall reimburse the Owner of the utility for the cost of
repairs.
F. MODIFICATIONS: The Contractor shall adjust all existing and new utility structures (manholes, valve boxes,
etc.) to meet new grades as required to complete this project. The cost of all work required to modify existing utility
structures shall be included in the base bid.
EXISTING HARDSCAPE AND LANDSCAPE:
A. PROTECTION: All existing hardscape and landscape to include but not limited to buildings, curb & gutter,
stairs, sidewalks, retaining walls, bus shelter, roadway, parking lot, trees and shrubbery not noted for demolition or
improvements shall be protected during the work to prevent damage and staining.
B. REPAIR: All damaged and/or stained work, as described above, shall be repaired by the Contractor at his own
expense. In the event the Owner of said structure or utility elects to make necessary repairs with his own
workforce, the Contractor shall reimburse the Owner for the cost of repairs. Contractor shall repair or replace
damage as required to return it to its original state.
C. SIDEWALKS: Sidewalks shall be repaired in complete panels as originally scored. Cutting and replacement
shall be at existing construction joints as agreed to with Owner.
WORKER CONDUCT: Contractor shall schedule and control all work persons employed on the project.
Contractor shall instruct all workers to prevent tracking dirt and debris into existing buildings. Profanity,
inappropriate dress or inappropriate conduct shall not be permitted on this project. Owner reserves the right to
have the Contractor remove from the project anyone who, in the sole opinion of the Owner, exhibits such behavior.
DEBRIS: Contractor shall insure that all areas in which he is working shall be kept free of loose debris, empty
containers, and the like. All debris, trash or unsuitable materials resulting from construction or demolition work
under this contract shall be cleaned up daily, and shall be removed from University of Georgia property and
disposed of legally, in accordance with all applicable Federal, State and Local laws and codes. Contractor shall
make all arrangements and pay all fees and costs involved in debris removal and disposal and shall furnish proof of
same to the Owner. Debris in any bulk shall NOT be placed in University of Georgia trash containers.
TOILET FACILITIES: The Contractor shall provide from the beginning of work washing and temporary enclosed
toilet facilities for use of workers on the job. Such facilities shall be maintained in a clean and sanitary condition
meeting all local and state health standards throughout their use. The Contractor shall not permit any sanitary
nuisance in or about the work. Toilet facilities for the Contractor’s workers shall be provided by the Contractor at
his own expense. University toilet facilities shall NOT be made available to the Contractor's workforce.
35
SMOKING: In accordance with the Tobacco and Smoke-Free Campus Policy of the Board of Regents of the
University System of Georgia, the use of all forms of tobacco products is prohibited on property owned, leased,
rented, in the possession of, or in any way used by the University. “Tobacco Products” is defined as cigarettes,
cigars, pipes, all forms of smokeless tobacco, clove cigarettes and any other smoking device that use tobacco such
as hookahs or simulate the use of tobacco such as electronic cigarettes. Further, this policy prohibits any
advertising, sale, or free sampling of tobacco products on University property unless specifically stated for research
purposes. This prohibition includes but is not limited to all areas indoors and outdoors, buildings and parking lots
owned, leased, rented or otherwise used by the University. The use of tobacco products is prohibited in all vehicles
– private or public – located on University property. Additionally, all events hosted by the University or by outside
groups on behalf of the University shall be tobacco-free. Failure to comply with this policy by contractor or its
subcontractors shall constitute a material breach of these terms.
DELIVERIES: The Owner can NOT accept delivery of any materials. Contractor shall unload his equipment and
materials and move them to the site of the work.
HAZARDOUS CHEMICALS: Contractor shall notify the Owner’s Deputy Right to Know Coordinator in writing, at
least thirty (30) days prior to the commencement of work, if the Contractor intends to use or store at the worksite
any hazardous chemicals. Contractor also shall furnish to the Deputy Coordinator a copy of the MATERIAL
SAFETY DATA SHEET for each substance. The purpose of this requirement is to allow the Deputy Coordinator to
make this information readily available to the Owner’s employees who may be in the vicinity of the worksite during
the life of this contract. Note that this does not relieve the Contractor of any duty to notify all individuals subject to
hazardous chemical notification under Federal, State or Local requirements.
ASBESTOS:
A. GENERAL: Any statement contained herein regarding the presence or absence of asbestos-containing
materials is based on the best current information in the Owner's possession. Since asbestos was a commonly
used construction material, asbestos-containing materials may be encountered during the execution of work under
this contract. The Contractor shall exercise extreme care when demolishing, repairing or otherwise disturbing
existing work. The Contractor shall cease work immediately if suspected asbestos-containing materials are
encountered in the work, and notify the Owner in writing of each incident. The Owner shall cooperate with the
Contractor, and shall perform all requisite testing to confirm the presence or absence of asbestos-containing
materials for each reported incident. However, the Owner cannot guarantee that the site of the work included
under this contract is completely free from asbestos.
ZERO ASBESTOS, FORMALDEHYDE OR LEAD: Under no circumstances shall any asbestos, formaldehyde or
lead containing material be installed under this contract. New materials shall not contain asbestos, formaldehyde
or lead in any form or quantity (i.e. zero asbestos, formaldehyde or lead). Manufacturers shall submit certification
to the Owner of zero-asbestos, formaldehyde or lead for all materials used on this project prior to request for final
payment.
FUMES: During the performance of work under this Contract, the Contractor may elect to engage in activities, or to
use methods and materials, that result in fumes (including smoke) being generated and dispersed in occupied
areas. In addition to complying with all codes and ordinances having jurisdiction, Contractor shall perform his work
in a manner that shall minimize or completely eliminate the probability of such an occurrence. However, if fumes of
any nature are generated or released by the Contractor to occupied portions of the building, such fumes shall be
contained and exhausted from the spaces in accordance with previously cited codes and ordinances. If any
Contractor-generated or Contractor-released fumes spread to occupied spaces, Contractor shall:
1.
2.
3.
4.
5.
6.
Stop work causing fume generation or release.
Contact the Owner’s Representative (for information only).
Determine the nature and extent of fume release.
Purge all areas of these fumes; clean up areas if fumes deposited dirt or particulate matter.
Change work methods to eliminate fumes.
Continue working after steps 1 to 5 have been accomplished.
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NFPA SECTION 241: Contractor shall comply with all applicable provisions of NFPA Section 241, Standard for
Safeguarding Construction, Alteration and Demolition Operations”, latest edition (1996).
ROOFING & HOT WORK: To complement the requirements of previously cited NFPA-241, regarding Contractor’s
duties during the execution of work under this contract, the University of Georgia requires that the Contractor
comply with the following guidelines for all roofing projects and all other projects which require hot work. Hot work
includes any construction activity that presents a source of ignition, such as welding, burning/cutting, heating,
brazing and soldering.
Contractor shall, prior to the start of work at the site, develop a documented fire safety plan for all areas included
under this contract. Such plan shall be the result of a complete assessment by the Contractor to minimize the
potential for damage as a result of an uncontrolled fire, and must be submitted to the Owner’s designed fire safety
representative for review and approval. The fire safety plan must include, but need not be limited to, the description
and documentation of each of the following elements:
A.
B.
CONTROL OF COMBUSTIBLES:
1.
Contractor shall visually inspect entire project location to identify combustible and non-combustible
construction. Contractor shall identify sealed, inaccessible combustible spaces.
2.
Contractor shall identify and relocate all movable combustibles at least 35 feet horizontally from the
work site. Where not possible, Contractor shall protect such combustibles with flame-proof covers or
otherwise shield them with metal fire resistant guards or curtains.
CONTROL OF IGNITION:
1.
Contractor shall comply with the Owner’s documented hot work permit system, including the following
minimum requirements:
a. Contractor shall identify names and locations of fire watches for all hot work operations.
b. Contractor shall identify timing and duration of all proposed hot work. Permits shall be valid for time
specified on permit, as appropriate for the project needs.
c. Contractor shall employ dedicated fire watches, which shall be located in direct visual contact of all
areas of hot work operations including the underside of combustible attic spaces. If area of proposed
work is not accessible from beneath, Contractor shall not under any circumstances use torches or
direct flame.
d. Contractor shall maintain a daily log of activities, including accurate project records of all fire watch
activities.
e. Contractor shall assign responsibility for overseeing fire watches to specific individual(s) whose only
duty is to watch for and to prevent fires occurring due to hot work. This individual(s) shall be listed on
permit as responsible.
f. Each contractor’s fire watcher shall employ an operable cellular phone for immediate notification of
fire department in the event of a fire.
g. Contractor shall be responsible for immediate fire department notification in case of fire.
h. Contractor shall continue fire watches for at least one hour after any hot work operations are
completed.
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2. Contractor shall comply with the following minimum suppression requirements:
a. Contractor shall provide 10 lb. multi-purpose dry chemical fire extinguishers within 20 feet of the
operation.
b. Where hot work, if approved by the Owner’s designated fire safety representative, is necessary
near combustible attic spaces, Contractor shall provide a charged hose line from building standpipe
or hydrant. This requirement shall be coordinated with the Owner’s fire safety coordinator to insure
standpipe or hydrant are available and that person(s) operating the charged hose line is properly
trained and qualified to operate the hose.
c.
Contractor’s fire watchers shall have fire extinguishing equipment readily available, and shall be
trained in the proper use of all such equipment; proof of such training shall be included in fire safety
plan.
C. FIRE WATCH: If fire watches are required to be employed, the Contractor shall retain an independent
consultant to provide a system of documented audits of compliance with fire watch provisions and NFPA 241.
Contractor shall select the consultant from a list of approved firms furnished by the Owner at the pre-construction
meeting. Upon completion of the work under this contract, the Contractor shall present an invoice for the total cost
of the documented audits of compliance, along with three (3) copies of the audits, to the Owner for review and
approval. When approved by the Owner, Contractor shall add the cost of these audits to the request for final
payment of the contractor.
Contractor shall note that the approval of the Contractor’s fire safety plan by the Owner’s fire safety representative
does not relieve the Contractor from any duty to protect the Owner’s property during the execution of work under
this Contract. The Owner shall make available to the Contractor, upon written request, all documented information
in the Owner’s possession concerning the construction of the building or buildings included under this contract.
The Contractor is ultimately responsible for minimizing the potential for fire damage while performing all work under
this contract.
WORK ON PUBLIC STREETS & ROADS: East Campus Road/Campus Drive, Sanford Drive and Field Streets are
public roadways under the jurisdiction of the Unified Government of Athens-Clarke County (ACC). Any work or
activities that interfere with traffic movement to include, but not limited to, borings, pavement cuts, open trenches,
pavement patches, re-surfacing, street closings, detours and one-way traffic shall be coordinated with ACC Public
Works at least 72 hours in advance. The Contractor shall be solely responsible for obtaining necessary permits
from ACC Public Works to include completing forms and paying all fees. Contractor may contact the ACC Traffic
Engineer at (706) 613-3460 for further information. Submission of a bid shall be considered conclusive evidence
that the Bidder is familiar with ACC Public Works regulations and procedures governing work on public roads.
AS-BUILT DRAWINGS: Contractor shall furnish two (2) sets of as-built drawings to the Architect upon completion
of the work. Contract drawings neatly marked in red ink will be acceptable. Keep drawings current as work
progresses. Record all changes from installation originally indicated.
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SCHEDULE 2 OF EXHIBIT "G"
SCHEDULE OF PERFORMANCE
Latest Date
For Performance
Actions to be Performed
SECTION A - ELECTRICAL INFRASTRUCTURE IMPROVEMENTS
A.
Submission of Information to Engineer
NA
B.
University to submit Engineer's Plans and
Specifications to Licensee
NA
C.
University to submit Cost Estimate to Licensee
NA
D.
Licensee approval/disapproval of Cost Estimates
NA
E.
Licensee approval/disapproval of
Plans and Specifications
NA
F.
Engineer to submit Construction Documents
to University
NA
G.
University approval/disapproval of
Construction Documents
NA
H.
Licensee to Deposit Cost of Improvement
Work with University
NA
I.
University to bid Improvement Work
NA
J.
University to enter into Construction Contract
with Contractor
NA
K.
Estimated date of commencement of
construction of Improvement Work
NA
L.
Estimated Completion Date of Improvement Work
NA
39
Latest Date
For Performance
Actions to be Performed
SECTION B - BUILDING IMPROVEMENTS
A. Submission of Information to Architect
NA
B. Licensee to submit Architects Plans and
Specifications to University
NA
C. University approval/disapproval of
Plans and Specifications
NA
D. Architect to submit Construction Documents
to Licensee
NA
E. University to review Construction Documents
NA
F. Licensee approval/disapproval of
Construction Documents
NA
G. Licensee to bid Improvement Work
NA
H. Licensee to enter into Construction Contract
with Contractor
NA
I.
Estimated date of commencement of
construction of Improvement Work
NA
J.
Estimated Completion Date of Improvement Work
NA
40
EXHIBIT “H”
LIST OF HAZARDOUS SUBSTANCES USED BY LICENSEE ON PREMISES
41