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CITY OF ARCADIA
MUNICIPAL RIGHT-OF-WAY FACILITIES USE AGREEMENT
THIS MUNICIPAL RIGHT-OF-WAY FACILITIES USE AGREEMENT
("Agreement") is entered into on 11ec t p er 1 , 2016 ("Effective Date"), by the
CITY OF ARCADIA. a California municipal corporation ("City"). and ExteNet Systems
Inc.. a California limited partnership ("Licensee"). City and Licensee are at times
collectively referred to hereinafter as the "Parties"or individually as the"Party."
RECITALS
A. City is the owner of certain Municipal Facilities (as defined in Sec. 1.4
below) located in the Public Way (as defined in Sec. 1.5 below).
B. Licensee desires to use space on certain Municipal Facilities in the Public
Way for installation, operation and maintenance of its Equipment (as defined in Sec. 1.1
below) for the transmission and reception of wireless, cellular telephone and/or data
communications, and is willing to compensate the City in exchange for a license to use
portions of particular Municipal Facilities in the Public Way.
AGREEMENT
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 apply generally to the
provisions of this Agreement:
1.1 "Equipment" means antennas, fiber optic cables, wires,and
related equipment. whether referred to singly or collectively. to be installed and operated
by Licensee pursuant to an approved Site License Authorization (as hereinafter defined).
Any Equipment must receive prior written approval from the City before it may be installed
on any Municipal Facility or placed on or in the Public Way.
1.2 `Installation Date- means the earlier of the installation date
listed on the Site License Authorization or the date that any Equipment is first installed by
Licensee pursuant to a Site License Authorization issued by the City in accordance with
this Agreement and is inspected and approved by City in accordance with its customary
permitting procedures. The Installation Date shall be documented in writing following
such determination.
1.3 "Laws" means applicable statutes,constitutions,ordinances.
resolutions. regulations,judicial decisions. rules. tariffs.administrative orders. certificates.
orders. or other requirements of the City or other governmental agency having joint or
several jurisdiction over the parties to this Agreement.
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1.4 "Municipal Facilities" means City-owned Streetlight Poles.
traffic light poles. lighting fixtures. electroliers. fiber-optic strands and conduit. or other
City-owned structures located within the Public Way. These facilities may be referred to
in the singular or plural. as appropriate to the context in which used.
1.5 "Public Way" or "Public Rights-of-Way" means the space
in.upon.above,along.across.and over the public streets.roads.lanes.courts,ways.alleys.
boulevards, sidewalks, bicycle lanes. and places, including all public utility easements and
public service easements as the same now or may hereafter exist, that are under the
jurisdiction of the City. This term does not include county. state. or federal rights-of-way
or any property owned by any person or entity other than the City. except as provided by
applicable laws or pursuant to an agreement between the City and any such person or entity.
1.6 "PUC" means the California Public Utilities Commission.
1.7 "Services" means the services specified in the applicable
Site License Authorization.
1.8 "Site License Authorization" means an authorization
granted by City to Licensee pursuant to this Agreement to install Equipment on a specified
Municipal Facility, the form of which is attached hereto as Exhibit A.
1.9 "Streetlight Pole" means any standard-design concrete.
fiberglass. metal. or wooden pole that has a mast arm for electrolier or traffic control
equipment support and is used for street lighting purposes.
2 TERM. This Agreement is effective on the Effective Date as
specified in Section 12.11 and will be for a term of ten (10) years commencing on the
Effective Date. unless earlier terminated by either party in accordance with the provisions
of Section 10. Within six months prior to the expiration of the initial 10-year term, and
upon Licensee's written request. the parties will meet and confer with regard to a five-year
renewal or extension of this Agreement. and the terms and conditions applicable to any
such renewal or extension. Any holding over after the expiration of the term shall constitute
a default by Licensee. notwithstanding that City may elect to accept one or more payments
of fees from Licensee.
3 SCOPE OF USE. All rights expressly granted to Licensee under
this Agreement. which will he exercised at Licensee's sole cost and expense. are subject to
the prior and continuing right of the City under applicable laws to use all parts of the Public
Way exclusively or concurrently with any other person or entity. Use of the Municipal
Facilities is further subject to all deeds. easements. dedications. conditions, covenants.
restrictions. encumbrances. and claims of title of record that may affect the Public Way.
Nothing in this Agreement may be deemed to grant. convey, create. or vest in Licensee a
real property interest in land. including any fee. leasehold interest. or easement. No
reference herein to a "Public Way" shall be deemed to be a representation or warranty by
City that its interest or other rights to control the use of the Public Way is sufficient to
permit its use for Licensee's purposes. and Licensee shall be deemed to gain only those
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rights to use as are properly in City and as City may have the undisputed right and power
to give. Licensee acknowledges and agrees that Cite is entering into this Agreement in its
capacity as a property owner of Municipal Facilities in the Public Way and not in its
capacity as a regulatory agency. Nothing in this Agreement shall limit in any way
Licensee's obligation to obtain any 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 Public Way. All work performed pursuant to the rights granted by this Agreement is
subject to the prior review and approval of the City in accordance with its customary
permitting procedures (see. Section 5.1 below). Licensee shall have the right to terminate
any Site License Authorization at any time during the term. Notice of Licensee's exercise
of its right to terminate shall be given to City in accordance with the notice provisions set
forth in Paragraph 9 and shall he effective upon the mailing of such notice by Licensee. or
upon such later date as designated by Licensee. All rentals paid to said termination date
shall be retained by City. The Licensee shall have no further obligations for the payment
of rent to City for the terminated Site License Authorization.
3.1 Attachment to Municipal Facilities. The City authorizes
Licensee to locate. place. attach. install, operate. maintain. control. remove. reattach.
reinstall. relocate. and replace Equipment in or on Municipal Facilities subject to the terms
of this Agreement. Licensee may only use Municipal Facilities pursuant to an approved
Site License Authorization, substantially in the form attached hereto as Exhibit A.
3.2 No Interference. Licensee acknowledges and agrees that the
primary purpose of the Municipal Facilities is to serve the City and the public. City is
willing to permit the installation of Licensee's Equipment in or on Municipal Facilities
only w here such use will not interfere with City's own existing(as of the Installation Date)
and future primary service requirements and facilities, or the primary service requirements
of others authorized to use the Municipal Facilities of City existing as of the Installation
Date. In the performance and exercise of its rights and obligations under this Agreement.
Licensee must not interfere in any manner with the existence and operation of any existing
(as of the Installation Date) public or private rights-of-way. sanitary sewers. water mains.
storm drains, gas mains, poles, aerial and underground electrical and telephone wires.
electroliers.cable television and telecommunications facilities, utilities.existing and future
licensed municipal communication frequencies.or existing and future Municipal Facilities.
without the express approval of the owner or owners of the affected property or properties.
except as authorized 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 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, City shall be
entitled to seek temporary and permanent injunctions against the breach of this Subsection.
Further. Licensee shall install a disconnect device at each Municipal Facility on which it
installs Equipment pursuant to a Site License Authorization so that in case of emergency.
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the City may disconnect such Equipment from its power source and safely shut it down.
3.3 Compliance with Laws. Licensee will comply with all
applicable laws. including regulations and PUC General Orders. in the exercise of its rights
and the performance of its obligations under this Agreement.
3.4 No Authorization to Install Unauthorized Equipment or
Provide Other Services. Licensee represents that its Equipment installed pursuant to this
Agreement will be used solely for the purpose of providing the Services identified in the
applicable Site License Authorization and that Licensee will not install unauthorized
Equipment for any purpose or use its authorized Equipment to offer or provide any other
services. Licensee's failure to comply with these limitations will constitute a material
breach of this Agreement. For unauthorized Equipment Cite. after providing written notice
to Licensee. may impose liquidated damages in an amount not to exceed $1,000. and in
addition. Licensee shall from the date of such written notice be obligated to pay for such
unauthorized Equipment an amount which is five times the applicable fee in Section 4.1
until the breach is cured by Licensee b) applying for and obtaining a Site License
Authorization for such unauthorized Equipment. For unauthorized Services, City, after
providing written notice to Licensee. may impose liquidated damages in an amount not to
exceed $1.000. and in addition. Licensee shall from the date of such written notice be
obligated to pay fees for the Site License Authorization(s) for Equipment being used to
provide services not identified in the applicable Site License Authorization(s) in an amount
which is five times the applicable fee in Section 4.1 until the breach is cured by Licensee
by ceasing to provide such unauthorized services or obtaining the City's consent to provide
such services in amended Site License Authorization(s).
4 COMPENSATION; UTILITY CHARGES. Licensee is solely
responsible for the payment of all fees in connection with Licensee's performance under
this Agreement. including those set forth below.
4.1 Annual Fee. In order to compensate City for Licensee's
entry upon and deployment within the Public Way. and as compensation for the use of
Municipal Facilities. Licensee will pay to the City an annual fee (collectively the
"Aggregate Annual Fee') that consists of the following:
(i) Pole Fee. A fee ("Pole Fee") in the amount of One
Thousand Five Hundred Dollars($1500.00) for the
use of each Streetlight Pole or other similar
Municipal Facility located within the Cit, 's Right-
of-Way used by Licensee:
(ii) Non-Pole Municipal Facility Fee. A fee ("Non-
Pole Fee`) in an amount to be agreed by the parties
and specified in the applicable Site License
Authorization for use of other Municipal Facilities
such as conduit.
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The Aggregate Annual Fee to be paid with respect to each year of the term will be
based on an amount equal to (i) the sum of the number of(a) Streetlight Poles or other
similar Municipal Facility upon which Equipment was installed (prorated as appropriate
based on Installation Date set forth in the Site License Authorization to the anniversary' of
the Effective Date and based on 365 days),and (h) Streetlight Poles or Municipal Facilities
which were not initially installed but contained Equipment.during the preceding 12 months
multiplied by the annual Pole Fee:and(ii)collectively.the annual Non-Pole Fee calculated
as agreed by the parties and shown in the Site License Authorization (and prorated as
appropriate based on the Installation Date set forth in the Site License Authorization to the
anniversary of the Effective Date and based on 365 days). The Aggregate Annual Fee is
due and payable in arrears and not later than 45 days after each anniversary of the Effective
Date. if Licensee discovers any error in the amount of compensation due. the City shall be
paid within 30 days after discovery of the error or determination of the correct amount.
including interest at the rate specified in Section 4.4. Any overpayment to the City through
error or otherwise will be offset against the next payment due.
Acceptance by City of any payment of the Aggregate Annual Fee shall not he
deemed a waiver by City of any breach of this Agreement occurring prior thereto. nor will
the acceptance by City of any such payment preclude City from later establishing that a
greater amount was actually due or from collecting any balance that is due.
4.2 CPI Adjustment. Commencing on the first anniversary of
the Effective Date and continuing on each anniversary thereafter during the term, the Pole
Fee and Non-Pole Fee for the ensuing year will be adjusted by a percentage amount equal
to the percentage change in the U.S. Department of Labor. Bureau of Labor Statistics
Consumer Price Index (All Items. All Consumers. 1982 1984=100) that occurred during
the previous one year period for the Los Angeles-Riverside-Orange County Metropolitan
Statistical Area as measured in the month two months prior to the anniversary of the
Effective Date.
4.3 Electricity Charges. The Equipment must have an
independent source of electricity and may not draw electricity from the power associated
with the Municipal Facility to which it is attached or installed. Licensee is solely
responsible for the payment to the utility service provider of all electrical utility charges
that are attributable to the Equipment's usage of electricity. including the cost of installing
meters for any item of Equipment
4.4 Delinquent Payment. if Licensee fails to pay any amounts
due to City under this Section 4 within 30 days from the specified due date. Licensee must
pay. in addition to the unpaid fees.a sum of money equal to two percent(2%)of the amount
due for each month or fraction thereof during which the payment is due and unpaid.
5 CONSTRUCTION. Licensee must comply with all applicable
federal, state. and City technical specifications and requirements and all applicable state
and local codes related to the construction.installation,operation.maintenance,and control
of Licensee's Equipment installed in or on Municipal Facilities in the City. Licensee may
not attach. install. maintain, or operate any Equipment in or on Municipal Facilities
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without the City's prior written approval for each location. 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.
5.1 Obtaining Required Permits. Notwithstanding the
provisions of Sections 3.l and 5.2, Licensee acknowledges that any installation of
Equipment shall also be subject to a City encroachment permit (as set forth in Arcadia
Municipal Code. Sections 7300 et 5e a.). Licensee agrees to comply with the City's current
ordinances regarding such installations as well as any future regulations that may be
adopted by the City respecting such installations that are consistent with the City s rights
under applicable law.
5.2 Location of Equipment. The proposed locations of
Licensee's planned initial installation of Equipment will be provided to the City promptly
after Licensee's review of available Municipal Facilities maps and prior to any deployment
of the Equipment. Prior to installation of the Equipment in or on any Municipal Facility.
Licensee must obtain the City's prior written approval. Licensee will submit an application
to the authorized representative of the City for a Site License Authorization showing the
proposed design for any proposed installations including Equipment in or on Municipal
Facilities which Licensee desires to use. The City may approve. approve with conditions.
or disapprove a location and installation, in its sole discretion. Any approved Equipment
shall be included as part of an applicable Site License Authorization. If Licensee selects a
Municipal Facility that is structurally inadequate to accommodate Equipment, Licensee
may at its sole cost and expense replace the Municipal Facility with one that is acceptable
to and approved by the City as part of the Site License Authorization, and dedicate such
replacement Municipal Facility to City. Upon the completion of each installation. Licensee
must promptly furnish to the City a current list and map that identifies the exact location
of the Equipment in or on the Municipal Facility. That information must he provided in a
format that is compatible with City's information technology. including but not limited to
FSRI compatible GIS shapefiles. Licensee may replace its approved Equipment with like-
kind or similar Equipment without prior written approval of City hereunder. However. if
Licensee proposes 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 the unauthorized Equipment from the hieewiofCity. Any
such approval shall take the form of an amendment to the applicable Site License
Authorization.
5.3 Relocation and Displacement of Equipment. 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. Licensee
acknowledges that City may require Licensee to relocate one or more of its Equipment
installations. Licensee will at City's direction relocate that Equipment. at Licensee's sole
cost and expense. whenever City reasonably determines that the relocation is needed for
any of the following purposes: (a) if required for the construction. completion. repair.
relocation. or maintenance of a City project: (b) because the Equipment is interfering with
or adversely affecting proper operation of City-owned Streetlight Poles. traffic signals, or
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other Municipal Facilities: or(c) to protect or preserve the public health or safety. Within
sixty (60) days after receipt of notice from the CITY. Licensee shall relocate the
Equipment. If Licensee fails to relocate any Equipment as requested by the City in sixty
(60) days under the circumstances described above. City is entitled to relocate the
Equipment at Licensee's sole cost and expense. without further notice to Licensee. To the
extent City has actual knowledge thereof. the City will endeavor promptly to inform
Licensee of the displacement or removal of any Municipal Facility on which any
Equipment is located. Licensee's obligations to reimburse the City for relocation of
Equipment under this section shall survive the expiration or termination of this Agreement.
5.4 Relocations at Licensee's Request. If Licensee desires to
relocate any Equipment from one Municipal Facility to another. Licensee must so advise
City by submitting an application for a Site License Authorization for the new location.
City will use reasonable efforts to accommodate Licensee by making another reasonably
equivalent Municipal Facility available for use in accordance with and subject to the terms
and conditions of this Agreement.
5.5 Damage to Municipal Facilities or Public Way. Whenever
the removal or relocation of Equipment is required or permitted under this Agreement. and
that removal or relocation causes the Municipal Facilities or Public Way to be damaged,
Licensee, at its sole cost and expense. must promptly repair and return the Municipal
Facilities or Public Way to a safe and satisfactory condition as directed by, and to the
reasonable satisfaction of.the City Engineer. If Licensee does not repair the site as required
above. then Cite will have the option. upon i5 days' prior written notice to Licensee. to
perform or cause to be performed all reasonable and necessary work on behalf of Licensee.
City may charge Licensee for all costs to be incurred. or the actual costs incurred by City.
in the manner that City customarily determines costs if the work is performed by City, or
at actual cost if the work is performed by a third party. Upon receipt of a demand for
payment . Licensee must promptly reimburse City for those costs,which obligation
shall sure k e the expiration or termination of this Agreement.
5.6 Removal of Equipment. Licensee shall remove the
Equipment within 60 days after abandonment of the Municipal Facility or termination of
this Agreement or the applicable Site License Authorization. at Licensee's sole cost and
expense. If Licensee fails to remove the Equipment,City is entitled to remove and dispose
of the Equipment at Licensee's sole cost and expense. upon 30 days written notice to
Licensee. In lieu of removal at Licensee's sole cost and expense. any Equipment that is
abandoned and not removed by Licensee within the time frames set forth in this section
may be declared by the City (by providing written notice to Licensee after expiration of
the 60-day period) to have become its sole and exclusive property. after which the Citti
may utilize or dispose of the Equipment as it sees fit. Licensee's obligations to reimburse
the City for removal and disposal of Equipment under this section shall survive the
expiration or termination of this Agreement.
5.7 Risk of Loss. Licensee acknowledges and agrees that
Licensee bears all risks of loss or damage of its Equipment and materials installed in or on
Municipal Facilities pursuant to this Agreement from any cause. and the City shall not be
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liable for any cost of repair to damaged Equipment. including. without limitation, damage
caused by the City's removal of the Equipment, except to the extent that such loss or
damage was solely caused by the willful misconduct or negligence of the City. 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
6.2 below.
6 INDEMNIFICATION AND WAIVER. Licensee will indemnify.
defend. protect. and hold harmless the City. its councilmembers, officers. employees.
agents.and contractors.from and against liability,claims,demands.losses.damages. fines.
charges. penalties, administrative and judicial proceedings and orders.judgments. and all
costs and expenses incurred in connection therewith. including reasonable attorneys' fees
and costs of defense (collectively, the "Losses") arising from. resulting from or caused by
Licensee's activities undertaken pursuant to this Agreement including activities undertaken
by its employees. officers. agents and contractors, except to the extent arising from or
caused by the negligence or willful misconduct of the City. its councilmembers, officers.
employees. agents. or contractors.
6.1 Waiver of Claims. Licensee waives all claims, demands.
causes of action. and rights it may assert against City on account of any loss, damage. or
injury to any Equipment. or any loss or degradation of the Services, resulting from any
event or occurrence that is beyond the City's reasonable control.
6.2 Limitation of City's Liability. City will be liable only for
the cost of repair to damaged Equipment arising from the sole negligence or willful
misconduct of City. its employees.agents.or contractors,and City will in no event he liable
for indirect or consequential damages.
7 INSURANCE. Licensee shall obtain and maintain during the term
of this Agreement Commercial General Liability insurance in the amount not less than One
Million Dollars($1.000.000)per occurrence for bodily injury and property damage. and in
an amount not less than Two Million Dollars ($2.000.000) general aggregate including
personal and advertising injury and products-completed operations. and Commercial
Automobile Liability in the amount of not less than One Millions Dollars ($1.000.000)
combined single limit each accident for bodily injury and property damage. The
Commercial General Liability insurance policy shall include the City, its councilmembers.
officers. and employees as an additional insured as their interest may appear under this
Agreement as respects any covered liability arising out of Licensee's performance of'work
under this Agreement. Coverage must be in an occurrence form and in accordance with the
limits and provisions specified herein. Claims-made policies are not acceptable. Upon
receipt of notice from its insurer. Licensee will use its best efforts to provide the City with
thirty (30)days prior written notice of cancellation
7.1 Filing of Certificates and Endorsements. Prior to the
commencement of any work pursuant to this Agreement, Licensee must file with City the
required original certificates of insurance with blanket additional insured endorsements.
which must state the following:
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(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; and
• (b) That Licensee's Commercial General Liability
insurance policy is primary as respects any other
valid or collectible insurance that City may possess.
including any self insured retentions that City may
have: and that any other insurance the City possesses
will be considered excess insurance only and will not
be required to contribute with this insurance.
The certificates of insurance with blanket additional insured endorsements and
notices must be emailed to the City at the address specified below in Section 9.
7.2 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 One Million
Dollars ($1,000,000) each accident/disease/policy limit, and must furnish to City a
certificate showing proof of that coverage.
7.3 Insurer Criteria. All insurance policies obtained by
Licensee must he issued by companies that are admitted and licensed to do business in the
State of California and that have a minimum rating assigned by A.M. Best & Company's
Key Rating Guide of"A" Overall and a Financial Size Category of"X" (i.e.. a size of
$500.000.000 to $750.000.000 based on capital. surplus. and conditional reserves).
Insurance policies and certificates issued by non-admitted insurance companies are not
acceptable.
7.4 Severability of Interest. All deductibles or self-insured
retentions must be stated on the certificates of insurance, which must be sent to and
approved by City, provided however, this sentence shall not apply to Tenant provided
Tenant reasonably demonstrates to the City's satisfaction that it has a net worth in excess
of$100 million. City may request proof'of Tenant's net worth at any time(s) during the
term of this Agreement. In no event shall Tenant be required to provide any confidential
financial informantion or information which could be interpreted to be in breach of any
state or federal securities regulations. Tenant acknowledges that City is a public agency
subject to the C'alifirnia Public Records Act. and therefore the parties agree that should
Tenant provide any information pursuant to this Section 7.4 which Tenant claims to he
confidential and/or proprietary("Confidential Information").then City shall use reasonable
ettorts not to disclose. reproduce. or disseminate the Confidential Information without the
prior express written consent of Tenant;provided however that City may. upon request and
if deemed legally necessary to comply with the California Public Records Act or other
applicable law, release such Confidential Information without first obtaining Tenant's
consent and without any liability to Tenant._"Severability of interest" or "separation of
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insureds" clauses shall be made a part of the Commercial General Liability and
Commercial Automobile Liability policies.
8 PERFORMANCE BOND. In order to secure the performance of
its obligations under this Agreement. Licensee will provide the following security
instrument to the City:
8.1 Performance Bond. Prior to the commencement of any
work under this Agreement, Licensee must provide a performance bond running to the
City, in the sum of: (i) for 1-25 Site License Authorizations, a total sum of Twenty-Five
Thousand Dollars($25.000): (ii)for 25-50 Site License Authorizations.a total sum of Fifty
Thousand Dollars ($50,000): and 51 or more Site License Authorizations, a total sum of
One Hundred Thousand Dollars ($100.000). If Licensee expands the number of Site
License Authorizations during the term of this Agreement. Licensee shall adjust its
performance security in accordance with the scale identified above. The performance bond
is conditioned upon the 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 City as a
result. including the full amount of any compensation.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.
8.2 Assessment of the Bond. Upon Licensee's failure to pay the
City any amount owing under this Agreement, the performance bond may be assessed by
the City for purposes including. but not limited to:
(a) Reimbursement of costs borne by the City to correct
violations of the Agreement not corrected by
Licensee. after City provides notice and a reasonable
opportunity to cure such violations.
(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 City that any amount has been
recovered from the performance bond. Failure to restore the bond to its full amount within
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
City's decision to draw on the performance bond.
8.4 Costs of Collection. If the performance bond is drawn upon,
all of City's costs of collection and enforcement of the provisions relating to the bond that
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are specified in this section, including reasonable attorneys' fees and costs,will be paid by
Licensee.
8.5 Required Endorsement. The performance bond is subject
to the approval of the City Attorney and must contain the following endorsement:
"This bond may not he canceled until sixty (60) days atter
receipt by the City Attorney, by registered mail. return
receipt requested. of a written notice of intent to cancel or
not to renew. "
8.6 Reservation of city Rights. The rights reserved by the City
with respect to the performance bond are in addition to all other rights and remedies the
City may have under this Agreement or any other law.
8.7 Admitted Surety Insurer. The surety supplying the bond
shall be an "admitted surety insurer". as defined in Code of Civil Procedure §995.120 and
authorized to do business in the State of California.
9 NOTICES. All notices to be given pursuant to this Agreement must
he in writing and delivered personally or transmitted(a)through the United States mail,by
registered or certified mail. postage prepaid: or(b) by means of prepaid overnight delivery
addressed as follows:
If to City:
CITY OF ARCADIA
Atm: Jason Kruckeberg
Assist. City Manager
240 West Huntington Drive
Arcadia. CA 91066 If to Licensee:
If to Licensee:
ExteNet Systems, Inc.
3030 Warrenville Road
Suite 340
Lisle. IL 60532
Phone: (630) 505-3800
Fax: (630) 577-1332
Attention: Fabian Bautista
9.1 Date of Notices; Changing Notice Recipient or Address.
Notices will he 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 facsimile. email. or overnight
delivery. Either party may from time to time designate any other recipient or address for
this purpose by written notice to the other party delivered in the manner set forth above.
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10 TERMINATION FOR DEFAULT. This Agreement may be
terminated by either party upon 45 days' prior written notice to the other party upon a
default by the other party of any material covenant or term. which default is not cured
within 45 days of receipt of written notice of default (or. if such default is not curable
within 45 days. it'the defaulting party fails to commence that cure within 45 days or fails
thereafter diligently to prosecute such cure to completion); provided, that the grace period
for any monetary default will be 10 days from receipt of notice.
11 ASSIGNMENT. This Agreement and each Site License
Authorization under it may be sold. assigned or transferred by the Licensee with notice to
City but without any approval or consent of the City to any entity that controls or is
controlled by Licensee. or is under common control with Licensee. For purposes of this
section. an entity shall be deemed to control another entity if it owns or controls. directly
or indirectly, at least fifty percent (50%) of the voting equity of another entity (or other
comparable interest for an entity other than a corporation). Any permitted assignee shall
assume all assigned obligations of its assignor under the Agreement. This Agreement may
not otherwise be assigned by Licensee without the express written consent of City. which
consent will not be unreasonably withheld. conditioned. or delayed.
12 MISCELLANEOUS PROVISIONS. The following provisions
apply generally to the obligations of the parties under this Agreement.
12.1 Nonexclusive Use. Licensee acknowledges that this
Agreement does not provide Licensee with exclusive use of any Municipal Facility and
that City retains the right to install and to permit others to install equipment or devices in
or on Municipal Facilities provided the same does not interfere with Licensee's use of the
Municipal Facility (unless required to serve City's own primary service requirements).
12.2 Waiver of Breach. The waiver by either party of any breach
or violation of any provision of this Agreement will 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.
12.3 Severability of Provisions. If any provision of this
Agreement is held by court of competent jurisdiction in a final judicial action to be void,
voidable, or unenforceable. that provision will be deemed to be severable from the
remaining provisions of this Agreement and will not affect the legality. validity. or
constitutionality of the remaining portions of this Agreement. Each party represents that it
would have entered into this Agreement. and each of its provisions, regardless of whether
any one or more provisions may be declared illegal. invalid, or unconstitutional.
12.4 Contacting Licensee. Licensee will be available to the
employees of any City 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. City may contact by
telephone the Licensee at telephone number 800-264-6620 regarding these problems or
complaints.
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12.5 Governing Law; Jurisdiction. This Agreement will be
governed and construed by and in accordance with the laws of the State of California,
without reference to its conflicts of law principles. If suit is brought by a party to this
Agreement. the parties agree that trial of that action will be vested exclusively in the state
courts of California. County of Los Angeles. or in the United States District Court for the
Southern District of California.
12.6 Attorneys' Fees. If any dispute arising out of this
Agreement results in litigation, the prevailing party will be entitled to recover its costs of
suit. including (without limitation) reasonable attorneys' fees.
12.7 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 City makes no representation or
warranty of any kind as to the present or future 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.
12.8 Representations and Warranties. Each of the parties
represents and warrants that it has the full right, power. legal capacity. and authority to
enter into and perform its obligations hereunder and that those obligations will be binding
upon that party without the approval or consent of any other person or entity. Licensee
represents that it has a franchise or other authorization to use the Public Ways for purposes
contemplated in this Agreement. City represents that City owns all Municipal Facilities
for the use of which it is collecting from Licensee the Annual Fee pursuant to this
Agreement.
12.9 Amendment of Agreement. This Agreement may be
amended only by a written instrument signed by both parties.
12.10 Entire Agreement. This Agreement contains the entire
understanding between the parties with respect to its subject matter. There are no
representations.agreements,or understandings(whether oral or written)between or among
the parties relating to the subject matter of this Agreement that are not fully expressed
herein.
12.11 Effective Date. It is the intention of the parties that Licensee
will first execute this Agreement and then submit it to the City. The effective date will he
the date on which this Agreement is executed on behalf of the City. The City Clerk will
insert the effective date in the introductory paragraph of all counterparts of this Agreement.
attest to their execution by a duly authorized officer of the City. and transmit one or more
fully executed counterparts to Licensee.
Signature Page Follows]
13
X1352147_1
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81352147 1
TO EFFECTUATE THIS AGREEMENT. each of the parties has caused this
Agreement to be executed by its duly authorized representative as of the date set forth
below the authorized signature.
APPROVED AS TO FORM: CITY OF ARCADIA
B -71-c5;') 558e'
-
b'. ►c44
C tTY CA Iry fzhlC.S' —
Title: Gam...' t e1 1CZ
Date: f,t'b_+ 4 u IO;
ATTEST:
Mik4/AMA
City Clerk
LICENSEE
ExteNet Systems. Inc.
3030 Warrenville Road
Suite 340
Lisle. IL 60532
Phone: (630) 505-3800
Fax: (630) 577-1332
B. -�
Name: /'�4a_ 45.4..-/a/r -
Title: ....See,;•••• /vl....d.g..
Date: 9-/- 2014.
•
15
81352147_I
Exhibit A
Site License Authorization
1. Licensee has submitted an application for a Site License Authorization
("Authorization") pursuant to that certain Municipal Right-of-Way Facilities Use
Agreement between the City of Arcadia and Licensee dated ("Agreement").
2. City has reviewed the application and grants approval subject to the terms of this
Authorization.
3. 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 Authorization, the terms of this Authorization shall
govern. Capitalized terms used in this Authorization shall have the same meaning
described for them in the Agreement unless otherwise indicated herein.
4. Project Description and Locations. Licensee shall have the right to attach the
Equipment described in Attachment 1 to the specific space on or in the specific
Municipal Facility identified in Attachment 2.
5. Services. The Equipment shall be used for constructing. maintaining, repairing
and operating a communications facility and uses incidental thereto.
6. Term. The term of this Authorization shall be as set forth in Section 2 of the
Agreement.
7. Annual Fees. Pole Fee [insert applicable .starting amount (One Thousand
Five Hundred Dollars($1.500.00) as adjusted.for CPI per Section 4.2) ]
Non-Pole Fee [ i1 applicable. insert negotiated amount per Section
4.1]
Annual Fees are subject to annual increase as provided in Section 4.2 of
Agreement
8. Installation Date. The earlier,of c.S e /2 *A , 2 o♦cv or the date
that any Equipment is first installed by Licensee pursuant to a Site License Authorization
issued by the City in accordance with the Agreement and is inspected and approved by
City in accordance with its customary permitting procedures. The Installation Date shall
be documented in writing following such determination.
9. Additional Conditions.
[Signature page follows]
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81352147 I
CITY OF ARCADIA
APPROVED AS TO FORM:
By:
Stephen P. Deitsch
City Attorney Title:
City of Arcadia
Date:
ACCEPTED BY LICENSEE: LICENSEE
ExteNet Systems, Inc.
3030 Warrenville Road
Suite 340
Lisle, IL 60532
Phone:(630)50.5-3800
Fax:(630) 577-1332
By:
Name: „OP/,6's►.. „OP p/'3s �
Title: Sen..+� /1.1"sA c.
a--
Date: 9-/- 2 0/4.
17
813G2147 1