HomeMy WebLinkAboutT-MOBILE WEST LLCDocuSign Envelope ID: C2BC4D90-5342A62C-B1AB-E6EOC7461A47
A-2023-187
INSURANCE NOT ON FILE
WORK MAY ON PROCEED
CITY CLERK
DATE: NOV 3 0 2023
MUNICIPAL FACILITIES LICENSE AGREEMENT
CITY OF SANTA ANA
November&,, 2023
'l-L'S�-*I---
Nabil Saba, PE
Executive Director
Public Works Agency
DocuSign Envelope ID: C2BC4D90-5342-462C-B1AB-E6EOC7461A47
TABLE OF CONTENTS
RECITALS.....................................................................................................3
AGREEMENT...................................................................................................3
DEFINITIONS........................................................................................3
TERM; SUPPLEMENT TERM......................................................................4
REPRESENTATION CONCERNING SERVICES; TERMINATION
WITHOUTCAUSE..................................................................................5
SCOPE OF AGREEMENT..........................................................................5
COMPENSATION....................................................................................7
CONSTRUCTION.....................................................................................9
INDEMNIFICATION AND WAIVER...........................................................14
PERFORMANCE BOND..........................................................................15
INSURANCE........................................................................................16
NOTICES.............................................................................................17
DEFAULT; CURE; REMEDIES..................................................................17
ASSIGNMENT AND CUSTOMER EQUIPMENT...........................................18
RECORDS; AUDITS...............................................................................19
MISCELLANEOUS PROVISIONS..............................................................19
EXHIBITS...............................................................................................A & B
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MUNICIPAL FACILITIES LICENSE AGREEMENT
THIS MUNICIPAL FACILITIES LICENSE AGREEMENT (the "Agreement") is dated
as of November_, 2023 (the date fully executed by all parties, referred to herein as
"Effective Date"), and entered into by and between the City of Santa Ana, a California municipal
corporation the "Licensor"), and T-Mobile West LLC, a Delaware limited liability company
("Licensee").
Recitals
A. WHEREAS, the Licensor is the owner of certain Municipal Facilities (as defined
in Section 1.7, below) located in the Public Rights -of -Way (as defined in Section 1.5 below) of
the City of Santa Ana, California ("City"); and
B. WHEREAS, Licensee is authorized to conduct business as a telephone corporation
or wireless carrier in the State of California; and
C. WHEREAS, Licensee desires to use space on certain of the Licensor's Municipal
Facilities in the Public Rights -of -Way for construction, operation and maintenance of its
Equipment (as defined in Section 1.1, below); and
D. WHEREAS, Licensor is willing to allow Licensee to use and physically occupy
portions of the Municipal Facilities for its Equipment in the Public Rights -of -Way subject to the
terms and conditions of this Agreement.
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree to the following covenants, terms, and
conditions:
1. DEFINITIONS. The following definitions shall apply generally to the provisions of this
Agreement:
1.1 "Equipment" means the antennas, equipment, utilities and fiber optic cables, wires,
and related equipment, whether referred to individually or collectively, to be installed on a
Municipal Facility and operated by Licensee under a particular Supplement.
1.2 "Hazardous Substance" means any substance, chemical or waste that is identified
as hazardous or toxic in any applicable federal, state or local law or regulation, including, but not
limited to, petroleum products and asbestos.
1.3 "Services" means the transmission and reception of communications signals for the
provision of personal wireless services, telecommunications services and mobile data services as
defined in federal law, but specifically excluding cable services and/or video services as defined
by the Digital Infrastructure and Video Competition Act (as codified in Public Utilities Code
section 5800 et seq.).
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1.4 "Laws" means any and all applicable statutes, codes, constitutions, ordinances,
resolutions, regulations, judicial decisions, rules, tariffs, administrative orders, court orders, or
other requirements of the Licensor or other governmental agency having joint or several
jurisdiction over the parties to this Agreement as such laws may be amended from time to time.
1.5 "Public Right(s)-of-Way" or "ROW" has the same meaning as Section 33-231(q)
of the Santa Ana Municipal Code.
1.6 "Make -Ready Work" means the work required on or in a Municipal Facility to
create space for the Equipment, and/or replacing and/or reinforcing the existing Municipal Facility
to accommodate Equipment including, but not limited to, rearrangement or transfer of existing
equipment and the facilities of other entities, and Municipal Facility relocation and replacement.
1.7 "Municipal Facility(ies)" means Licensor -owned property in the ROW, including
street lights (excluding double and single king poles), traffic control structures (excluding traffic
signal poles), banners, street furniture, bus stops, billboards, or other poles, lighting fixtures, or
electroliers located within the ROW, and may refer to such facilities in the singular or plural, as
appropriate to the context in which used. The term includes Replacement Facilities referred to in
Section 4.1.3.
1.8 "Person" means and includes any individual, partnership of any kind, corporation,
limited liability company, association, joint venture or other organization, however formed, as well
as trustees, heirs, executors, administrators, or assigns, or any combination of such persons.
1.9 "PUC" means the California Public Utilities Commission.
1.10 "License Fee" and "Alternate License Fee" have the meanings assigned to them in
Section 5 of this Agreement.
1.11 "Transfer" means any transaction in which the rights and/or obligations held by
Licensee under this Agreement or a Supplement are transferred, directly or indirectly, in whole or
in part to a party other than Licensee.
1.12 "Supplement' shall mean each separate authorization, granted by Licensor to
Licensee with regard to a specific Equipment installation, the form of which is attached hereto as
Exhibit A, which shall be subject to the terms and conditions of this Agreement.
2. TERM; SUPPLEMENT TERM.
2.1 Term. The initial term of this Agreement shall be for a period of ten (10) years
(the "Initial Term"), commencing on the Effective Date and ending on the day immediately
preceding the tenth (10th) anniversary thereof, unless sooner terminated as stated herein. Provided
that Licensee is not in default of the Agreement or any Supplement following written notice and
the expiration of any applicable cure period, this Agreement shall be automatically renewed for
two (2) successive five (5) year renewal terms (each, a "Renewal Term"), unless either party gives
the other party written notice of the intent not to renew this Agreement not more than twelve (12)
and not less than ten (10) months prior to the expiration of the Initial Term or any Renewal Term,
as applicable. The Initial Term and all Renewal Terms shall be collectively referred to herein as
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the "Term." Any holding over after the termination or expiration of the Term shall constitute a
default by Licensee, notwithstanding that Licensor may elect to accept one or more payments of
fees from Licensee.
2.2 Supplement Term. Unless otherwise specified in a Supplement, the initial term
for each particular Supplement shall begin on its effective date ("Supplement Effective Date")
and shall end upon the expiration of the Initial Term, or the Renewal Term, if validly exercised, of
this Agreement, unless such individual Supplement is earlier terminated or this Agreement is
extended or terminated, as provided for herein (the "Supplement Term"). All of the provisions
of this Agreement shall be in effect during the Supplement Term. The expiration or termination
of the Agreement under Section 2.1 shall immediately terminate all Supplements. Any holding
over after the expiration of the Supplement Term shall constitute a default by Licensee,
notwithstanding that Licensor may elect to accept one or more payments of fees from Licensee.
3. REPRESENTATION CONCERNING SERVICES; TERMINATION WITHOUT CAUSE. Licensee
represents, warrants and covenants that its Equipment installed pursuant to this Agreement and
each Supplement will be utilized solely for providing the Services, and Licensee is not authorized
to and shall not use its Equipment to offer or provide any other services not specified herein
without Licensor consent. At any time that Licensee ceases to operate as a provider of Services
under Federal or State Law, the Licensor shall have the option, in its sole discretion and upon six
(6) months' written notice to Licensee, to terminate this Agreement and to require the removal of
Licensee's Equipment from the ROW and from Municipal Facilities, including the cost of any site
remediation, at no cost to the Licensor, without any liability to Licensee related directly or
indirectly to such termination.
4. SCOPE OF AGREEMENT. Licensee may only use Municipal Facilities pursuant to an
approved Supplement. Any and all rights expressly granted to Licensee under this Agreement shall
be exercised at Licensee's sole cost and expense, and shall be subject to the restrictions and
conditions set forth herein.
4.1 Attachment to Municipal Facilities. Subject to the conditions herein, the
Licensor hereby authorizes and permits Licensee to locate, place, attach, install, operate, maintain,
control, remove, reattach, reinstall, relocate, and replace Equipment on identified Municipal
Facilities located in the ROW for the purpose of providing Services.
4.1.1 Licensee will submit to the authorized representative of the Licensor an
application substantially in the form of Exhibit B ("Application") hereto including a proposed
design for any proposed Equipment installations that identifies both the Equipment and the
Municipal Facilities Licensee proposes to use. One Application is required per Municipal Facility.
4.1.2 Licensor may approve, approve with conditions, or disapprove an
Application in its sole discretion, provided however, Licensor shall not unreasonably delay its
decision. Any approved Equipment shall be included as part of the applicable Supplement.
4.1.3 If Licensee submits an Application to use a Municipal Facility that is
structurally inadequate to accommodate its proposed Equipment, Licensor may permit the
replacement of the Municipal Facility (a "Replacement Facility") with one that is acceptable to
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and approved by the Licensor as part of the applicable Supplement. Any Replacement Facility
shall be installed, maintained, repaired, and/or replaced in accordance with Section 6 of this
Agreement.
4.1.4 Unmetered electricity unless otherwise approved. Licensee shall be
solely responsible for obtaining and maintaining the provision of electricity to the Equipment,
including, but not limited to, making payments to electric utilities and installation of separate
electric meters, if necessary. Licensee shall secure unmetered electricity services and shall not
incorporate a meter box in its Equipment design unless otherwise approved by the Director of
Public Works or required by the servicing utility company.
4.2 Additional Authority. Nothing in this Agreement shall limit in any way
Licensee's obligation to obtain any additional required regulatory approvals from any City
department, board or commission or other governmental agency that has regulatory authority over
the Licensee's proposed activities involving use of the Municipal Facilities in the ROW.
4.3 No Interference. Licensee acknowledges and agrees that the primary purpose of
the Municipal Facilities is to serve the Licensor and the public. Licensee in the performance and
exercise of its rights and obligations under this Agreement shall not interfere in any manner with
Licensoe's own services or the existence and operation of any and all Public Rights -of -Way,
sanitary sewers, water mains, storm drains, gas mains, poles, aerial and underground electrical and
telephone wires, traffic signals, communication facilities owned by the Licensor, electroliers, cable
television, location monitoring services, public safety and other then existing telecommunications
equipment, utility, or municipal property, without the express written approval of the owner or
owners of the affected property or properties, except as permitted by applicable Laws or this
Agreement. If such interference should occur, Licensee shall discontinue using the Equipment,
methodology or technology that causes the interference until such time as Licensee takes corrective
measures to eliminate such interference. In the event that such interference does not cease
promptly, Licensee acknowledges that continuing interference may cause irreparable injury and
harm, and therefore, in addition to any other remedies, and without limitation of any other remedy,
Licensor shall be entitled to seek temporary and permanent injunctions against the breach of this
Subsection. Notwithstanding the foregoing, Licensor agrees to work in good faith with Licensee
to resolve any interference to or by Licensee.
4.4 Permits; Default. In addition to any other remedies available hereunder, whenever
Licensee is in default of this Agreement or an applicable Supplement, after notice and applicable
cure periods, Licensor may deny further encroachment, excavation or similar permits for work in
connection with installations under this Agreement until such time as Licensee cures all of its
defaults.
4.5 Compliance with Laws. Licensee shall comply with all applicable Laws in the
exercise and performance of its rights and obligations under this Agreement.
4.6 Non -Exclusive Use Rights. Notwithstanding any other provision of this
Agreement, any and all rights expressly or impliedly granted to Licensee under this Agreement
shall be non-exclusive, and shall be subject and subordinate to (1) the continuing right of the
Licensor to use, and to allow any other Person or Persons to use, any and all parts of the ROW or
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Municipal Facilities, exclusively or concurrently with any other Person or Persons, and (2) the
public easement for streets and any and all other deeds, easements, dedications, conditions,
covenants, restrictions, encumbrances and claims of title (collectively, "Encumbrances") which
may affect the ROW or Municipal Facilities now or at any time during the Term of this Agreement,
including, without limitation any Encumbrances granted, created or allowed by the Licensor at any
time.
4.7 In any situation where Licensee has a choice of attaching its equipment to either
Municipal Facilities or third -party -owned poles in the public rights -of -way, Licensee shall use
good faith efforts to attach to Municipal Facilities, provided that the Municipal Facility in question
is substantially similar to third -party owned poles (i.e., it provides the same functionality, fulfills
the same need and can be made available within the same time frame) and the total cost of installing
and maintaining the Equipment on the Municipal Facility in question is the same or less than on
the available alternative third -party owned pole.
5. COMPENSATION. Licensee shall be solely responsible for the payment of all fees in
connection with Licensee's performance under this Agreement, including those set forth below.
5.1 Application Fee. Each application for a Supplement shall be accompanied by a
non-refundable application fee ("Application Fee") in the amount fixed by Licensoe's
Miscellaneous Fees Schedule that is in effect at the time the application for a Supplement is made
to Licensor.
5.2 License Fees.
5.2.1 Licensee acknowledges that the FCC has adopted a Declaratory Ruling
(FCC 18-133) that relates to the compensation which went into effect on January 14, 2019 but that
Declaratory Ruling is currently the subject of litigation. Paragraphs 5.2.2, 5.2.3 and 5.2.4 govern
the payment of compensation and how it may be impacted by the Declaratory Ruling and the
resolution of related litigation during the Initial Term and any Renewal Terms.
5.2.2 During any period in which the FCC Declaratory Ruling (FCC 18-133) is
in effect and during any period in which the Alternate License Fee provisions in paragraph 5.2.3
are not applicable, the Licensee shall pay a License Fee as described in this paragraph. Licensee
shall pay to the Licensor the base amount of two hundred and seventy dollars ($270.00) per year
for each location covered by a Supplement ("License Fee'). The base amount of the License Fee
under all Supplements shall be subject to an annual adjustment of three percent (3%) applied on
each anniversary of the Effective Date. Any new Supplements entered into during a given year
shall commence at the License Fee, as adjusted by this Section to reflect the then -current
rate. There shall be no refunds of License Fees paid due to the termination or expiration of the
Agreement for any reason.
5.2.3 Alternate License Fee. In the event the relevant provisions of the FCC
Declaratory Ruling cease to be effective, (for example, because they are stayed after having gone
into effect, or they are vacated or invalidated and have not been replaced by the FCC with an
alternative provision setting a specific amount as License Fee), the Licensee shall automatically
and immediately be obligated to pay the Alternate License Fee as described in this paragraph and
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paragraph 5.2.4, if applicable. For each location covered by a Supplement, Licensee shall pay to
the Licensor an Alternate License Fee in the base amount of one thousand five hundred dollars
($1,500) per year ("Alternate License Fee"). The base amount of the Alternate License Fee shall
be subject to an annual adjustment of three percent (3%) applied on each anniversary of the
Effective Date. There shall be no refunds of Alternate License Fee paid due to the termination or
expiration of the Agreement for any reason.
5.2.4 The Licensor agrees that irrespective of whether the relevant provisions of
the FCC Declaratory Ruling (FCC 18-133) cease to be effective, no Alternate License Fee shall
be due for any periods during which the relevant provisions of the FCC Declaratory Ruling were
in effect. However, if Licensee has paid License Fee pursuant to the provisions of Section 5.2.2
above for a year, and the relevant provisions of the FCC Declaratory Ruling subsequently cease to
be effective during the same year, the Licensee shall pay the difference between the License Fee
and the Alternate License Fee for the period from the date the relevant provisions of the FCC
Declaratory Ruling ceased to be effective, until the next anniversary of the Effective Date of this
Agreement ("License Fee Adjustment"). Such License Fee Adjustment shall be paid to Licensor
on the next anniversary of the Effective Date of this Agreement.
5.3 Payment.
5.3.1 Licensee shall make the first payment of License Fee (or Alternate License
Fee, if applicable) under any Supplement within forty-five (45) days of the Supplement Effective
Date. The amount of the first payment of License Fee (or Alternate License Fee, if applicable) for
any Supplement shall be prorated to cover the period from the Supplement Effective Date of the
applicable Supplement to the next anniversary of the Effective Date of this Agreement. Thereafter,
License Fee (or Alternate License Fee, if applicable) shall be paid in advance for each Municipal
Facility used on or before each anniversary of the Effective Date. Acceptance by Licensor of any
payment of the License Fee (or Alternate License Fee, if applicable) shall not be deemed a waiver
by Licensor of any breach of this Agreement occurring prior thereto, nor will the acceptance by
Licensor of any such payment preclude Licensor from later establishing that a greater amount was
actually due or from collecting any balance that is due. As a prerequisite to the payment of License
Fee (or Alternate License Fee, if applicable), Licensor hereby agrees to provide to Licensee certain
documentation (the "License Documentation") evidencing Licensor's interest in, and right to
receive payments under, this Agreement, including without limitation: (i) a complete and fully
executed Internal Revenue Service Form W-9, or equivalent, in a form acceptable to Licensee, for
any party to whom License Fee payments are to be made pursuant to this Agreement; and (ii) other
documentation requested by Licensee in Licensee's reasonable discretion. From time to time
during the Term of this Agreement and within thirty (30) days of a written request from Licensee,
Licensor agrees to provide updated License Documentation in a form reasonably acceptable to
Licensee.
5.3.2 The License Fee (or Alternate License Fee, if applicable) shall be paid by
check made payable to the City and mailed or delivered to the City of Santa Ana, Public Works
Agency — Construction & Facilities Management, P.O. Box 1988, M-22, Santa Ana, CA 92702.
The place and time of payment may be changed at any time by Licensor upon thirty (30) days'
written notice to Licensee. Mailed payments shall be deemed paid upon the date such payment is
officially postmarked by the United States Postal Service. If postmarks are illegible to read, the
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payment shall be deemed paid upon actual receipt. Licensee assumes all risk of loss and
responsibility for late payment charges if payments are made by mail. Notwithstanding the
foregoing, upon agreement of the parties, Licensee may pay the License Fee (or Alternate License
Fee, if applicable) by electronic funds transfer and if agreed, the Licensor will provide to Licensee
bank routing information for such purpose upon request of Licensee.
5.4 Delinquent Payment. A ten percent (10%) late fee shall be added to the License
Fee (or Alternate License Fee, if applicable) if not received by Licensor within thirty (30) calendar
days after the due date. In addition, all unpaid fee shall accrue interest on the amount due at the
rate of ten percent (10%) per annum accruing as of the first day following the expiration of the
foregoing 30-day period until paid in full. All late charges and interest payments shall become
License Fee (or Alternate License Fee, if applicable) under this Agreement.
5.5 Additional Remedies. The late fee set forth in Section 5.4 above is not exclusive,
and does not preclude the Licensor from pursuing any other or additional remedies in the event
that payments become overdue by more than 30 days.
6. CONSTRUCTION. Licensee shall comply with all applicable federal, state, and local codes
related to the construction, installation, operation, maintenance, and control of Licensee's
Equipment installed on Municipal Facilities, including the installation of Replacement Facilities
where authorized. Except as provided in Section 6.7, Licensee shall not attach, install, maintain,
or operate any Equipment on Municipal Facilities without the prior written approval of an
authorized representative of the Licensor for each location as evidenced in a signed Supplement.
Licensee shall keep the Municipal Facilities free and clear from any liens arising out of any work
performed, material furnished or obligations incurred by or for Licensee.
6.1 Installation and Operation. On a quarterly basis, Licensee must furnish to
Licensor a current list and map that identifies the exact location of the Equipment in or on the
Municipal Facility. That information must be provided in a format established by the Licensor and
that is compatible with Licensoe's information technology, including but not limited to ESRI
compatible GIS shapefiles.
6.2 Design Standards. The Equipment and any Replacement Facility shall comply
with the standards and guidelines for wireless facilities in the public right-of-way established by
the Director of Public Works pursuant to Section 33-234 of the Santa Ana Municipal Code. All
future Supplements, Supplement renewals, and modifications to existing Equipment shall be
subject to such updated standards.
6.3 Obtaining Required Permits. Licensee acknowledges that in addition to a signed
Supplement, each installation of Equipment and maintenance shall also be subject to then -current
City permitting requirements as set out in the City's Municipal Code. Licensee agrees to comply
with the current applicable ordinances regarding such installations and maintenance as well as any
future regulations that may be adopted by the City respecting such installations and maintenance.
Licensee shall apply for the appropriate permits and pay any standard and customary permit fees.
6.4 Make Ready
6.4.1 Make Ready Work and Costs
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(a) Licensee shall bear responsibility for all Make -Ready Work. If
Licensee or a Person other than Licensor or Licensee acting on Licensee's behalf would have to
rearrange or adjust any of its facilities in order to accommodate a new Equipment, Licensee shall
be responsible, at Licensee's sole expense, to coordinate such activity. Licensee shall be
responsible for directly paying such other Person for its charges for the same.
(b) The installation of Licensee's Equipment shall be conditioned on the
completion of all Make -Ready Work needed to establish full compliance with NESC, and with
Licensor's regulatory rules and engineering standards; provided, however, that Licensee shall not
be responsible for any third -party or Licensor costs necessary to correct third party or Licensor
attachments that are non -compliant at the time of Licensee's Application. If Licensee is requested
by another Person, in comparable circumstances, to relocate or adjust any Equipment to
accommodate that Person's facilities, subject to Licensor's written approval of such relocation,
Licensee shall reasonably cooperate with such request.
6.4.2 Notification of Completion of Installation. Within twenty (20) business
days of completing the installation of Equipment on each Municipal Facility, Licensee shall notify
Licensor of such completion.
6.5 Replacement Facilities
6.5.1 Ownership of Replacement Facilities
Licensor shall own any approved Replacement Facility. Where needed, Licensee shall
cooperate with Licensor to transfer ownership and any associated manufacturers' warranties of
any Replacement Facility from Licensee to Licensor.
6.5.2 Replacement Facility Provision.
Licensee shall be responsible for providing and installing any approved Replacement
Facility.
6.6 Damage, Maintenance & Repair.
6.6.1 Licensee shall, at its sole cost and expense and to the satisfaction of the
Licensor: (a) remove, repair or replace any of its Equipment that is damaged or becomes detached;
and/or (b) repair any damage to ROW, Municipal Facilities, or other property, whether public or
private, caused by Licensee, its agents, employees or contractors in their actions relating to
attachment, operation, repair or maintenance of Equipment. Licensee shall complete such removal,
repair, or replacement within thirty (30) days of written notice, unless time is extended by Licensor
in writing, in its discretion, because Licensee has demonstrated that more time is required for the
repairs.
6.6.2 For every ten (10) Municipal Facilities in use by Licensee, Licensee shall
provide Licensor one (1) Replacement Facility for storage by Licensee free of charge at Licensor's
facility, up to a maximum of five (5) Replacement Facilities ("Spare Facilities"). Licensee shall
retrieve all Spare Facilities within sixty (60) days of the expiration or earlier termination of this
Agreement.
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6.6.3 Licensor shall install, replace, and maintain the Municipal Facilities and
Replacement Facilities authorized to be used by Licensee pursuant to any Supplement in good
condition in accordance with Licensor's standard maintenance requirements. Such maintenance
of Municipal Facilities and Replacement Facilities shall be at Licensor's sole cost and expense,
except to the extent this Agreement provides otherwise. If a Municipal Facility or Replacement
Facility with Licensee Equipment on it needs to be cleared from the ROW (for example, due to an
accident), Licensee shall perform or cause to be performed that work. If Licensee does not remove,
repair, replace, or otherwise remediate damage to its Equipment, a Replacement Facility, or to the
ROW, Municipal Facilities or other property as required in this Section, the Licensor shall have
the option to perform or cause to be performed such removal, repair, or replacement on behalf of
Licensee and shall charge Licensee for the actual costs incurred by the Licensor. If such damage
causes a public health or safety emergency, as reasonably determined by the Licensor, the Licensor
may immediately perform reasonable and necessary repair or removal work on behalf of Licensee
and will notify Licensee as soon as practicable; provided, such repair work shall not include any
technical work on Licensee's Equipment. Licensor shall have no obligation to maintain or
safeguard the Equipment.
6.6.4 Upon the receipt of a written demand for payment accompanied by
supporting documentation for payment by the Licensor pursuant to this Section, Licensee shall
within forty-five (45) days of such receipt reimburse the Licensor for such costs.
6.7 Change in Equipment. If Licensee desires to install Equipment which is different
in any material way from the then -existing and approved Equipment, then Licensee shall first
obtain the written approval for the use and installation of such Equipment from an authorized
representative of the Licensor. Any such approval shall take the form of an amendment to the
applicable Supplement. In addition to any other submittal requirements, and if requested by
Licensor, Licensee shall provide "load" (structural) calculations for Equipment changes.
Notwithstanding the foregoing, Licensee may maintain, repair, and make like -kind replacements
or modifications to any Equipment that do not increase the size, height, and weight of the
Equipment or exceed the structural capacity of the Municipal Facility as established in an approved
Supplement without requiring additional Applications or Supplements.
6.8 Relocation and Displacement of Equipment.
6.8.1 This Agreement creates no right in Licensee to receive any relocation
assistance or payment for any reason under the Relocation Assistance Act, the Uniform Relocation
Assistance Act or under any existing or future Law upon any termination of tenancy.
6.8.2 Licensee understands and acknowledges that Licensor may require
Licensee to relocate one or more of its Equipment installations. Licensee shall at Licensor's
direction and upon ninety (90) days' prior written notice to Licensee, relocate such Equipment at
Licensee's sole cost and expense whenever Licensor reasonably determines that the relocation is
needed for any of the following purposes: (a) if required for the construction, modification,
completion, repair, relocation, or maintenance of a Licensor or other public agency project;
(b) because the Equipment is interfering with or adversely affecting proper operation of
Licensor -owned Municipal Facilities; or (c) to protect or preserve the public health or safety. In
any such case, Licensor shall use reasonable efforts to afford Licensee a reasonably equivalent
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alternate location. If Licensee shall fail to relocate any Equipment as requested by the Licensor
within the ninety (90) days, Licensor shall be entitled to remove or relocate the Equipment at
Licensee's sole cost and expense, without further notice to Licensee. Licensee shall pay to the
Licensor actual costs and expenses incurred by the Licensor in performing any removal work and
any storage of Licensee's property after removal within thirty (30) days of the date of a written
demand for this payment from the Licensor.
6.8.3 To the extent the Licensor has actual knowledge thereof, the Licensor will
attempt promptly to inform Licensee of the displacement or removal of any Municipal Facility on
which any Equipment is located.
6.9 Unauthorized Equipment. If Licensor discovers any Equipment has been
installed on Municipal Facilities without authorization pursuant to a Supplement, Licensor may
send an invoice to Licensee for a sum equal to five (5) times the then -current License Fee (or
Alternate License Fee, if applicable) as compensation for the unauthorized attachments, and,
within sixty (60) days from the date of such invoice, Licensee shall (i) pay the invoiced amount to
Licensor and submit an Application for the unauthorized Equipment, or (ii) produce
documentation showing Licensor's prior approval of the Equipment identified in the invoice. If,
in accordance with this Section, Licensee fails to pay all fees and submit the Application or submit
documentation satisfactorily showing Licensor's prior approval within sixty (60) days of
Licensor's invoice, Licensor may remove the unauthorized Equipment at Licensee's expense. If
Licensor removes such unauthorized Equipment, such Equipment shall become the property of
Licensor, who shall have sole rights over such Equipment's disposition. Licensor's removal of
unauthorized Equipment shall not release Licensee from its obligation to pay those invoiced fees
accruing pursuant to this Section.
6.10 Termination of a Supplement.
6.10.1 Licensee shall have the right to terminate any Supplement on thirty (30)
days' notice to Licensor. In the event of such termination, removal of Equipment associated with
the terminated Supplement shall be governed by Section 6.11 below and Licensor shall retain any
License Fee (or Alternate License Fee, if applicable) paid.
6.10.2 Licensor shall have the right to terminate any Supplement in the following
circumstances: (a) if, after installation, Licensor determines the covered Equipment has been
inoperative or abandoned for sixty (60) consecutive days, and Licensee does not provide an
adequate explanation or commence to cure within thirty (30) days following notice; (b) if
Licensee's operation under a particular Supplement is deemed by Licensor to endanger or pose a
threat to the public health, safety or welfare or interfere with the normal day-to-day operation of
any Licensor department or service; or (c) Licensor is mandated by Law, a court order or decision,
or the federal, state, or local government to take certain actions that will cause or require the
removal of any Equipment.
6.11 Removal of Equipment. Within thirty (30) days after the expiration or earlier
termination of a Supplement, Licensee shall promptly, safely and carefully remove the Equipment
covered by the terminated or expired Supplement from the applicable Municipal Facility and
ROW. Within thirty (30) days after the expiration or earlier termination of the Agreement,
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Licensee shall promptly, safely and carefully remove all Equipment from all the applicable
Municipal Facilities and ROW. If Licensee fails to complete this removal work pursuant to this
Section, then the Licensor, upon written notice to Licensee, shall have the right at the Licensor's
sole election, but not the obligation, to perform this removal work and charge Licensee for the
actual costs and expenses, including, without limitation, reasonable administrative costs. Licensee
shall pay to the Licensor actual costs and expenses incurred by the Licensor in performing any
removal work and any storage of Licensee's property after removal within thirty (30) days of the
date of a written demand for this payment from the Licensor. After the Licensor receives the
reimbursement payment from Licensee for the removal work performed by the Licensor, the
Licensor shall promptly make available to Licensee the property belonging to Licensee and
removed by the Licensor pursuant to this Section at no liability to the Licensor. If the Licensor
does not receive reimbursement payment from Licensee within such thirty (30) days, or if Licensor
does not elect to remove such items at the Licensor's cost after Licensee's failure to so remove
pursuant to this Section, or if Licensee does not remove Licensee's property within thirty (30) days
of such property having been made available by the Licensor after Licensee's payment of removal
reimbursement as described above, any items of Licensee's property remaining on or about the
ROW, Municipal Facilities, or stored by the Licensor after the Licensor's removal thereof may, at
the Licensor's option, be deemed abandoned and the Licensor may dispose of such property in any
manner by allowed for by Law. Alternatively, the Licensor may elect to take title to abandoned
property, and Licensee shall submit to the Licensor an instrument satisfactory to the Licensor
transferring to the Licensor the ownership of such property. The provisions of this Section shall
survive the expiration or earlier termination of this Agreement.
6.12 Risk of Loss. Subject to the terms of this Agreement, Licensee shall bear all risks
of loss or damage or relocation or replacement of its Equipment and materials installed in the ROW
or on Municipal Facilities pursuant to this Agreement from any cause, and the Licensor shall not
be liable for any cost of replacement or of repair to damaged Equipment, including, without
limitation, damage caused by the Licensor's removal of the Equipment, except to the extent that
such loss or damage was caused by the willful misconduct or negligence of the Licensor, including,
without limitation, each of its elected officials, department directors, managers, officers, agents,
employees, and contractors, subject to the limitation of liability provided in Section 7.3 below.
6.13 Hazardous Substances. Licensee agrees that Licensee, its contractors,
subcontractors, and agents, will not use, generate, store, produce, transport, or dispose any
Hazardous Substance on, under, about or within the area of a ROW or Municipal Facility in
violation of any Law. Except to the extent of the gross negligence or intentional misconduct of
Licensor, Licensee will pay, indemnify, defend, and hold Licensor harmless against and to the
extent of any loss or liability incurred by reason of any Hazardous Substance produced, disposed
of, or used by Licensee pursuant to this Agreement. Licensee will ensure that any on -site or off -
site storage, treatment, transportation, disposal or other handling of any Hazardous Substance will
be performed by Persons who are properly trained, authorized, licensed and otherwise permitted
to perform those services.
6.14 Inspection. On a quarterly basis, Licensor will conduct regular safety inspections
and oversight of Equipment on Municipal Facilities. Licensee shall have the right to be present at
and observe any such inspections. Licensee shall pay Licensor for its reasonable costs for such
safety inspections and oversight, which at the time of this Agreement have been established to be
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$645.00 per year. Licensee shall pay Licensor this fee together with every payment of the License
Fee (or Alternate License Fee, if applicable), and the fee shall be subject to the same adjustments
and proration as the License Fee (or Alternate License Fee, if applicable).
6.15 Access. Licensee shall have access to the Equipment for non -emergency purposes,
between the hours of 7:00 am and 5:00 pm weekdays (excluding holidays), unless a required permit
further limits the access hours. Prior to Licensee accessing its Equipment, Licensee shall provide
email notice, at least 24 hours in advance, to the Licensor at the following email address:
smallcells@santa-ana.org. In the event of an emergency at any time, Licensee will, if time permits,
attempt to provide prior telephonic notice to the Licensor at the following telephone number: (714)
647-3380. It is responsibility of Licensee to coordinate its access with other users of the same
Municipal Facility.
7. INDEMNIFICATION AND WAIVER. Licensee agrees to indemnify, defend, protect, and hold
harmless the Licensor, its council members, officers, employees, agents and contractors from and
against any and all claims, demands, losses, including pole warranty invalidation, damages,
liabilities, fines, charges, penalties, administrative and judicial proceedings and orders, judgments,
and all costs and expenses incurred in connection therewith, including reasonable attorney's fees
and costs of defense (collectively, the "Losses") to the extent arising from, resulting from or caused
by Licensee's activities undertaken pursuant to this Agreement, except to the extent arising from
or caused by the negligence or willful misconduct of the Licensor, its council members, officers,
employees, agents, or contractors. Licensee's obligation to indemnify and hold harmless excludes
only such claim, loss or liability that is due to the sole negligence or willful misconduct of
Licensor.
7.1 Waiver of Claims. Licensee waives any and all claims, demands, causes of action,
and rights it may assert against the Licensor on account of any loss, damage, or injury to any
Equipment or any loss or degradation of the Services as a result of any event or occurrence which
is beyond the reasonable control of the Licensor.
7.2 Waiver of Subrogation. Licensee hereby waives and releases any and all rights
of action for negligence against Licensor which may hereafter arise on account of damage to
Equipment, Municipal Facilities or to the ROW, resulting from any fire, or other casualty of the
kind covered by standard fire insurance policies with extended coverage, regardless of whether or
not, or in what amounts, such insurance is now or hereafter carried by the Licensee. This waiver
and release shall apply between the parties and they shall also apply to any claims under orthrough
either party as a result of any asserted right of subrogation. All such policies of insurance obtained
by Licensee concerning the Municipal Facilities, Equipment or the ROW shall waive the insurer's
right of subrogation against the Licensor.
7.3 Limitation on Consequential Damages. Neither party shall be liable to the other,
or any of their respective agents, representatives, employees for any lost revenue, lost profits, loss
of technology, rights or services, incidental, punitive, indirect, special or consequential damages,
loss of data, or interruption or loss of use of service, even if advised of the possibility of such
damages, whether under theory of contract, tort (including negligence), strict liability or otherwise.
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8. PERFORMANCE BOND. In order to secure the performance of its obligations under
this Agreement, Licensee will provide the following security instrument to the Licensor:
8.1 Performance Bond. Prior to the commencement of any work under this
Agreement, Licensee must provide a performance bond running to the Licensor according to this
Section 8.1. The amount of the Bond shall be based on the number of attachments in the following
amounts:
Number of Municipal Facilities
Required Security
1-50
$50 000
51-100
$75,000
101-300
$100,000
301-1000
$150,000
Greater than 1000
$200,000
The performance bond is conditioned upon the faithful performance by Licensee of all the terms
and conditions of this Agreement and upon the further condition that if Licensee fails to comply
with any terms or conditions governing this Agreement, there shall be recoverable jointly and
severally from the principal and surety of the bond any damage or loss suffered by the Licensor as
a result, including the full amount of any compensation, indemnification, or costs of removal or
abandonment of Licensee's property, plus costs and reasonable attorneys' fees up to the full
amount of the performance bond. Licensee will keep the performance bond in place during the
Term of this Agreement. This bond shall also fulfill the requirements of Section 33-240(c)(7) of
the Santa Ana Municipal Code or any similar successor code provision, but only as pertaining to
Licensee's Equipment on Municipal Facilities.
8.2 Assessment of the Bond. Upon Licensee's failure to pay the Licensor any amount
owing under this Agreement, the performance bond may be assessed by the Licensor for purposes
including, but not limited to:
(a) Reimbursement of costs borne by the Licensor to correct violations
of the Agreement not corrected by Licensee, after Licensor provides notice and a reasonable
opportunity to cure such violations. This shall include but not be limited to removal of Equipment.
(b) To provide monetary remedies or to satisfy damages assessed
against Licensee due to a material breach of this Agreement.
8.3 Restoration of the Bond. Licensee must deposit a sum of money or a replacement
instrument sufficient to restore the performance bond to its original amount within 30 days after
written notice from the Licensor that any amount has been recovered from the performance bond.
Failure to restore the bond to its full amount within thirty (30) days will constitute a material breach
of this Agreement. Licensee will be relieved of the foregoing requirement to replenish the bond
during the pendency of an appeal from the Licensor's decision to draw on the performance bond.
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8.4 Required Endorsement. The performance bond is subject to the approval of the
Licensor and must contain the following endorsement:
"This bond may not be canceled until sixty (60) days after receipt
by the Licensor, by registered mail, return receipt requested, of a
written notice of intent to cancel or not to renew. "
8.5 Reservation of Licensor Rights. The rights reserved by the Licensor with respect
to the performance bond are in addition to all other rights and remedies the Licensor may have
under this Agreement or any other Law.
8.6 Admitted Surety Insurer. The surety supplying the bond shall be an "admitted
surety insurer", as defined in California Code of Civil Procedure Section 995.120 and authorized
to do business in the State of California.
8.7 Cash Deposit. In lieu of obtaining a performance bond, Licensee shall have the
right to instead deposit a cash deposit with Licensor securing Licensee's obligations under this
Agreement.
9. INSURANCE. Licensee shall obtain and maintain at all times during the Term of this
Agreement insurances of the types and in the amounts specified by Licensor from time to time, or
if not specified, the amounts in this Section 9: Commercial General Liability insurance with a limit
of two million dollars ($2,000,000) per occurrence for bodily injury and property damage and five
million dollars ($5,000,000) general aggregate including premises -operations, contractual liability,
personal injury and products completed operations; and Commercial Automobile Liability
insurance covering all owned non -owned and hired vehicles with a limit of one million dollars
($1,000,000) each accident for bodily injury and property damage. The Commercial General
Liability insurance policy shall include the Licensor, its council members, officers, and employees
as additional insured as respects any covered liability arising out of Licensee's performance of
work under this Agreement. Coverage shall be in an occurrence form and in accordance with the
limits and provisions specified herein. Upon receipt of notice from its insurer, Licensee shall use
its best efforts to provide the Licensor with thirty (30) days prior written notice of cancellation.
Licensee shall be responsible for notifying the Licensor of such change or cancellation.
9.1 Filing of Certificates and Endorsements. Prior to the commencement of any
work pursuant to this Agreement, Licensee shall file with the Licensor the required certificate(s)
of insurance with blanket additional insured endorsements, which shall state the following:
(a) the policy number; name of insurance company; name and address
of the agent or authorized representative; name and address of insured; project name; policy
expiration date; and specific coverage amounts;
(b) that Licensee's Commercial General Liability insurance policy is
primary as respects any other valid or collectible insurance that the Licensor may possess,
including any self -insured retentions the Licensor may have; and any other insurance the Licensor
does possess shall be considered excess insurance only and shall not be required to contribute with
this insurance; and
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(c) that Licensee's Commercial General Liability insurance policy
waives any right of recovery the insurance company may have against the Licensor.
The certificate(s) of insurance with endorsements and notices shall be emailed to the
Licensor at the address specified in Section 10 below.
9.2 Workers' Compensation Insurance. Licensee shall obtain and maintain at all
times during the Term of this Agreement statutory workers' compensation and employer's liability
insurance in an amount not less than the amount required by statute and shall furnish the Licensor
with a certificate showing proof of such coverage.
9.3 Insurer Criteria. Any insurance provider of Licensee shall be admitted and
authorized to do business in the State of California and shall carry a minimum rating assigned by
A.M. Best & Company's Key Rating Guide of "A-" Overall and a Financial Size Category of "VIL"
9.4 Severability of Interest. "Severability of interest" or "separation of insureds"
clauses shall be made a part of the Commercial General Liability and Commercial Automobile
Liability policies.
10. NOTICES.
10.1 Method and Delivery of Notices. All notices which shall or may be given pursuant
to this Agreement shall be in writing and delivered via email or transmitted (a) through the United
States mail, by registered or certified mail, postage prepaid; or (b) by means of prepaid overnight
delivery service, addressed as follows:
If to the Licensor: CITY OF SANTA ANA, CA
Public Works Agency
20 Civic Center Plaza, M-22
Santa Ana, CA, 92701
Attn: Executive Director
Email: smallcells@,santa-ana.org
If to Licensee: T-Mobile West LLC
12920 SE 38"' Street
Bellevue, WA 98006
Attn: Lease Compliance (Small Cells)
10.2 Date of Notices; Changing Notice Address. Notices shall be deemed given upon
receipt in the case of personal delivery, three days after deposit in the mail, or the next business
day in the case of overnight delivery. Either party may from time to time designate any other
address for this purpose by written notice to the other party delivered in the manner set forth above.
11. DEFAULT; CURE; REMEDIES.
11.1 Licensee Default and Notification. This Agreement is granted upon each and
every condition herein and each of the conditions is a material and essential condition to the
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granting of this Agreement. Except for causes beyond the reasonable control of Licensee, if
Licensee fails to comply with any of the conditions and obligations imposed hereunder, and if such
failure continues for more than thirty (30) days after written demand from the Licensor to
commence the correction of such noncompliance on the part of Licensee, the Licensor shall have
the right to revoke and terminate this Agreement, if such failure is in relation to the Agreement as
whole, or any individual Supplement, if such failure is in connection solely with such Supplement,
in addition to any other rights or remedies set forth in this Agreement or provided by Law.
11.2 Cure Period. If the nature of the violation is such that it cannot be fully cured
within thirty (30) days due to circumstances not under Licensee's control, the period of time in
which Licensee must cure the violation shall be extended for such additional time reasonably
necessary to complete the cure, provided that: (a) Licensee has promptly begun to cure; and (b)
Licensee is diligently pursuing its efforts to cure. The Licensor may not maintain any action or
effect any remedies for default against Licensee unless and until Licensee has failed to cure the
breach within the time periods provided in these Sections 11.1 and 11.2.
11.3 Licensor Default. If Licensor breaches any covenant or obligation of Licensor
under this Agreement in any manner and if Licensor fails to commence to cure such breach within
thirty (30) days after receiving written notice from Licensee specifying the violation (or if Licensor
fails thereafter to diligently prosecute the cure to completion), then Licensee may enforce any and
all of its rights and/or remedies provided under this Agreement or by Law or it may (although it
shall not be obligated to) cure Licensor's breach and/or perform Licensor's obligations (on
Licensor's behalf and at Licensor's expense) and require Licensor to reimburse to Licensee all
reasonable costs and expenses (including reasonable attorneys' fees) incurred in connection with
such cure and/or performance.
12. ASSIGNMENT AND CUSTOMER EQUIPMENT. This Agreement shall be binding upon, and
inure to the benefit of, the successors and assigns of the parties.
12.1 Licensee shall not assign this Agreement or its rights or obligations to any firm,
corporation, individual, or other entity, without the prior written consent of Licensor.
Notwithstanding the foregoing, Licensee may assign or transfer the rights and privileges granted
herein to any parent or subsidiary of Licensee, to an entity with or into which Licensee may merge
or consolidate, to an entity which Licensee is controlled by, or is under common control with such
entity, or to any purchaser of all or substantially all of the assets of Licensee with notice to Licensor
but without the requirement for Licensor approval, so long as the successor provides written
confirmation to Licensor that it is then fully liable to the Licensor for compliance with all terms
and conditions of this Agreement. The Licensee shall reimburse the Licensor for all direct and
indirect costs and expenses reasonably incurred by the Licensor in considering a request to transfer
or assign this Agreement.
12.2 Licensee need not own all components of Equipment subject to this Agreement,
and may permit its customers to maintain ownership of Equipment components. However, (1) all
Equipment must be wholly under the control and management of Licensee; and Licensee shall be
liable for all acts or omissions, and all harms associated with the Equipment whether the same are
its acts or omissions, or the acts or omissions of the owner of the Equipment; and (2) Licensee
acknowledges and agrees that no rights of ownership in Equipment by Licensee's customers shall
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permit any such customer to enter upon, or use the any portion of the Municipal Facilities or the
Equipment, in any other manner or at any other place, including to add to, or modify or install
Equipment, which shall be Licensee's sole responsibility. Further, Licensee may not install
Equipment it does not own on Municipal Facilities, unless the entity for on whose behalf the
Equipment has been installed acknowledges and agrees, in a form acceptable to the Licensor: that
the Licensor has not granted it a consent to be in the ROW for any purpose; that it is bound by
Licensee's representations, obligations and duties hereunder; that it shall have no rights or claims
against the Licensor of any sort related to the Equipment or Municipal Facilities; that its Equipment
may be subject to taxes, fees or assessments as provided in the Laws or the Agreement, and that
Licensor may treat any Equipment owned by such entity as if it were owned by Licensee for all
purposes (including, but not limited to, removal and relocation); and that the Equipment may only
be used for the purposes and uses permitted herein. Such acknowledgement may be provided for
all Equipment on Municipal Facilities, and need not be provided separately, site by site.
13. RECORDS; AUDITS.
13.1 Records Required by Code. Licensee will maintain complete records pursuant to
all applicable Laws.
13.2 Additional Records. The Licensor may require such additional reasonable non -
confidential information, records, and documents from Licensee from time to time as are
appropriate in order to reasonably monitor compliance with the terms of this Agreement.
13.3 Production of Records. Licensee shall provide such records within twenty (20)
business days of a request by the Licensor for production of the same unless additional time is
reasonably needed by Licensee, in which case, Licensee shall have such reasonable time as needed
for the production of the same. if any Person other than Licensee maintains records on Licensee's
behalf, Licensee shall be responsible for snaking such records available to the Licensor for auditing
purposes pursuant to this Section.
13.4 Public Records. Licensee acknowledges that information submitted to Licensor
may be open to public inspection and copying under California law.
14. MISCELLANEOUS PROVISIONS. The provisions that follow shall apply generally to the
obligations of the parties under this Agreement.
14.1 Waiver of Breach. The waiver by either party of any breach or violation of any
provision of this Agreement shall not be deemed to be a waiver or a continuing waiver of any
subsequent breach or violation of the same or any other provision of this Agreement.
14.2 Contacting Licensee. Licensee shall be available to the staff employees of any
Licensor department having jurisdiction over Licensee's activities 24 hours a day, seven days a
week, regarding problems or complaints resulting from the attachment, installation, operation,
maintenance, or removal of the Equipment. The Licensor may contact by telephone the Licensee's
network control center operator at telephone number 877-611-5868.
14.3 Governing Law; Jurisdiction. This Agreement shall be governed and construed
by and in accordance with the laws of the State of California, without reference to its conflicts of
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law principles. If suit is brought by a party to this Agreement, the parties agree that trial of such
action shall be vested exclusively in the state courts of Orange County, California.
14.4 Change Of Law. If any provision of this Agreement is found to be unenforceable
in a final judicial or administrative proceeding, the parties shall enter into good faith negotiations
with the intent of reaching an agreement that would place the parties substantially in the same
position as if this Agreement were fully enforceable. If the negotiations do not result in agreement
between the parties within sixty days from the date of the final decision referred to in the preceding
sentence, then either party may call for binding arbitration within a further thirty days. Such
arbitration shall have the goal of placing the parties in the same positions they would occupy if
this Agreement had been fully enforceable. The parties shall select an independent, mutually
acceptable arbitrator, who shall have available the full range of appropriate remedies. The
arbitrator's decision shall be final and binding on both parties. The parties will each pay their own
costs to appear before the arbitrator and will share the arbitrator's costs equally.
14.5 Force Majeure. Except for payment of amounts due, neither party shall have any
liability for its delays or its failure of performance due to: fire, explosion, pest damage, power
failures, strikes or labor disputes, acts of God, the elements, war, civil disturbances, acts of civil
or military authorities or the public enemy, inability to secure raw materials, transportation
facilities, fuel or energy shortages, or other causes reasonably beyond its control, whether or not
similar to the foregoing.
14.6 Attorneys' Fees. Should any dispute arising out of this Agreement lead to
litigation, the prevailing party shall be entitled to recover its costs of suit, including (without
limitation) reasonable attorneys' fees.
14.7 "AS IS" condition of Municipal Facilities. Municipal Facilities licensed to
Licensee pursuant to this Agreement are licensed to and accepted by Licensee "as is" and with all
faults. The Licensor makes no representation or warranty of any kind as to the present or fixture
condition of or suitability of the Municipal Facilities for Licensee's use and disclaims any and all
warranties express or implied with respect to the physical, structural, or environmental condition
of the Municipal Facilities and the merchantability or fitness for a particular purpose. Licensee is
solely responsible for investigation and determination of the condition and suitability of any
Municipal Facility for Licensee's intended use.
14.8 Representations and Warranties. Each of the parties to this Agreement
represents and warrants that it has the full right, power, legal capacity, and authority to enter into
and perform the party's respective obligations hereunder and that such obligations shall be binding
upon such party without the requirement of the approval or consent of any other Person or entity
in connection herewith, except as provided in Section 4.2 above. This Agreement shall not be
revocable or terminable except as expressly permitted herein.
14.9 Amendment of Agreement. This Agreement may not be amended except pursuant
to a written instrument signed by both parties.
14.10 Entire Agreement. This Agreement contains the entire understanding between the
parties with respect to the subject matter herein. There are no representations, agreements, or
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understandings (whether oral or written) between or among the parties relating to the subject
matter of this Agreement which are not fully expressed herein.
14.11 Non -Exclusive Remedies. No provision in this Agreement made for the purpose
of securing enforcement of the terms and conditions of this Agreement shall be deemed an
exclusive remedy or to afford the exclusive procedure for the enforcement of said terms and
conditions, but the remedies herein provided are deemed to be cumulative.
14.12 No Third -Party Beneficiaries. It is not intended by any of the provisions of this
Agreement to create for the public, or any member thereof, a third -party beneficiary right or
remedy, or to authorize anyone to maintain a suit for personal injuries or property damage pursuant
to the provisions of this Agreement. The, duties, obligations, and responsibilities of the Licensor
with respect to third parties shall remain as imposed by state law.
14.13 Construction of Agreement. The terms and provisions of this Agreement shall
not be construed strictly in favor of or against either party, regardless of which party drafted any
of its provisions. This Agreement shall be construed in accordance with the fair meaning of its
terms.
14.14 Effect of Acceptance. Licensee (a) accepts and agrees to comply with this
Agreement and all applicable federal, state and local laws and regulations; (b) agrees that this
Agreement was entered into pursuant to processes and procedures consistent with applicable Law;
and (c) agrees that it will not raise any claim to the contrary or allege in any claim or proceeding
against the Licensor that at the time of acceptance of this Agreement any provision, condition or
term of this Agreement was unreasonable or arbitrary, or that at the time of the acceptance of this
Agreement any such provision, condition or term was void or unlawful or that the Licensor had no
power or authority to make or enforce any such provision, condition or term.
14.15 Time is of the Essence. Time is of the essence with regard to the performance of
all of Licensee's obligations under this Agreement.
14.16 Taxes. Licensee shall be responsible for payment of all fees and taxes charged in
connection with the right, title, and interest in and construction, installation, maintenance, and
operation of Equipment for the purposes set forth herein.
14.17 Tax Notice. Licensor hereby provides notice pursuant to California Revenue and
Taxation Code Section 107.6, and Licensee acknowledges that this Agreement may create a
possessory interest and Licensee may be subject to property taxes levied on such interest, as
described in California Revenue and Taxation Code Section 107.6. Licensee shall pay directly to
the appropriate authority, when due, all real and personal property taxes, fees and assessments,
assessed against the area licensed and the Equipment.
14.18 Counterparts. This Agreement, any Supplement, and any amendments to either
may be executed in multiple counterparts, including by electronic means, each of which shall be
deemed an original, and all such counterparts once assembled together shall constituted one
integrated instrument.
[Signature page to follow]
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IN WITNESS THEREOF, the parties hereto have caused this Agreement to be legally executed
in duplicate effective as of the Effective Date as defined in the introductory paragraph to this
Agreement.
APPROVED AS TO FORM
CITY ATTORNEY'S OFFICE
BY: "l "
JOSE MONTOYA
Assistant City Attorney
RECOMMENDED FOR APPROVAL
NABIL SABA
Executive Director
Public Works Agency
Exhibits:
Exhibit A — Supplement
Exhibit B — Application
Licensor:
CITY OF SANTA ANA
om Hatch
Interim City Manager
Licensee:
T-MOBILE WEST LLC
Docusigneannby:
bWtAS
BY. 21Wggg164RE4Rl..
NAME: Cheryl Downs
TITLE:Sr D*rPrtnr, Strategy R Planning
DoocuSSig/ned by:
E 6;1,
1FA]59C]gF124AF...
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EXHIBIT A
FORM OF SUPPLEMENT
This Supplement ("Supplement"), is approved by Licensor this day of
20_ (the date executed by all parties, referred herein as "Supplement Effective Date").
1. Supplement. Licensee has submitted an application for approval to use a Municipal
Facility pursuant to that certain Municipal Facility License Agreement between Licensor and
Licensee dated , 20 ("Agreement'). Licensor has reviewed the application and
grants approval subject to the terms of this Supplement. All of the terms and conditions of the
Agreement are incorporated hereby by reference and made a part hereof without the necessity of
repeating or attaching the Agreement. In the event of a contradiction, modification or inconsistency
between the terms of the Agreement and this Supplement, the terms of this Supplement shall
govern. Capitalized terms used in this Supplement shall have the same meaning described for
them in the Agreement unless otherwise indicated herein. IF THE SUPPLEMENT IS NOT
COUNTER -SIGNED BY LICENSEE AND RETURNED TO LICENSOR WITHIN 30 DAYS
AFTER LICENSOR HAS GRANTED APPROVAL, THE SUPPLEMENT SHALL BE VOID
AND OF NO LEGAL EFFECT. IF LICENSEE STILL WANTS TO USE THE MUNICIPAL
FACILITY, LICENSEE WILL BE REQUIRED TO SUBMIT A NEW APPLICATION AND
ASSOCIATED FEES.
2. Licensed Area Description and Location. Licensee shall have the right to use the space on
the specific Municipal Facility (the "Licensed Area") depicted in Attachment 1 attached hereto to
install Equipment as further listed in Attachment 2 attached hereto.
3. Equipment. The Equipment to be installed at the Licensed Area is described and depicted
in Attachment 1.
4. Term. The term of this Supplement shall commence on the Supplement Effective Date and
continue for the life of the Agreement, as described in Paragraph 2 of the Agreement.
5. License Fee/Alternate License Fee. The initial fee for this Supplement shall be as follows
per year: . This fee is subject to annual increase as provided in the Agreement,
and is payable in accordance with the Agreement.
6. Performance Bond. This Supplement [circle one] is / is not covered by existing
performance bond. If not covered by existing performance bond, a bond is required pursuant to
Section 8 of the Agreement.
7. Miscellaneous.
[Signature page follows]
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IN WITNESS THEREOF, the parties hereto have caused this Supplement to be legally
executed in duplicate, effective upon execution by both parties.
Accepted:
Licensor:
CITY OF SANTA ANA, CA
By:_
Name:
Title:
Date:
Licensee
T-Mobile West LLC
By:
Name:
Title:
Date:
Attachments:
Attachment 1 — Licensed Area
Attachment 2 — Equipment List and Description
FEW
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Attachment 1
Licensed Area
[site plan showing licensed area of applicable Municipal Facility and showing proposed
Equipment installation]
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Equipment List and Description
Attachment 2
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EXHIBIT B
APPLICATION TO USE MUNICIPAL FACILITY
Applicant: Date:
Licensee: Application/License#:
Type of
Municipal
Facility
AlterationLocation
Required
Small Cell Equipment
Heights (provide both (1) tha
overall height ofpole structure
with added facilities; and (2)
the height of individual
facilities)
Small Cen
and Base
Equipment
Weights
Small Cell
And Base
Equipment
Dimensions
of Any
Additional Equipment
Street Light
None
[Installed on Pole, specify
attachment height, weight
and dimensions]
[Installed on/in Ground
(Vault), specific
dimensions]
[Other Location]
[Not Applicable/Needed]
APPLICANT SHALL PROVIDE THE FOLLOWING AS APPLICABLE:
• Site plan and engineering design and specifications for installation ofEquipment, including
the location of radios, antenna facilities, transmitters, equipment shelters, cables, conduit,
point of demarcation, backhaul solution, electrical distribution panel, electric meter, and
electrical conduit and cabling. Where applicable, the design documents should include
specifications on design, pole modification, and ADA compliance. Also indicate whether
unmetered electricity is available at the site.
• Include a load bearing study that determines whether the pole requires reinforcement or
replacement in order to accommodate attachment of proposed Equipment.
• If the proposed installation will require reinforcement or replacement of an existing pole,
provide applicable design and specification drawings.
• The number, size, type and proximity to the facilities of all communications conduit(s) and
cables to be installed.
• Description of the utility services required to support the facilities to be installed.
• List of the contractors and subcontractors, and their contact information, authorized to work on
the project.
• A check for the applicable Application Fee made payable to the City of Santa Ana (refer to
Section 5.1 of the Municipal Facilities License Agreement).
APPLICANT SIGNATURE:
PRINT NAME:
TITLE: