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HomeMy WebLinkAboutItem 11c - Municipal Facilities Right-of-Way Agreement with New Cingular Wireless PCS, LLC (AT&T) DATE: November 5, 2019 TO: Honorable Mayor and City Council FROM: Jason Kruckeberg, Assistant City Manager/Development Services Director Philip A. Wray, Deputy Director of Development Services/City Engineer SUBJECT: MUNICIPAL RIGHT-OF-WAY FACILITIES USE AGREEMENT WITH NEW CINGULAR WIRELESS PCS, LLC (AT&T), FOR USE OF CITY FACILITIES FOR INSTALLATION, OPERATION, AND MAINTENANCE OF CELLULAR EQUIPMENT Recommendation: Approve SUMMARY Several years ago, the City Attorney prepared a Municipal Right-of-Way Facilities Use Agreement (the “Agreement”) to allow cellular providers to use City facilities for their equipment. The Agreement is intended to be the master contractual document for approving installations by cell providers on City facilities, such as streetlight poles, in the right-of-way; each location is subsequently administratively approved using the Site License Authorization form attached to the Agreement as an exhibit. The Agreement includes, among other things, an annual fee of $1,500 for use of each City streetlight. In 2016, both Verizon Wireless and Extenet Systems Inc., entered into the Agreement with the City. In 2018, the Federal Communications Commission (the “FCC”) adopted a Small Cell Order that purports to limit local government authority to collect “fair and reasonable compensation” for use of its facilities in the public right-of-way. Specifically, the order established a “safe harbor” fee for use of City property such as streetlights in the amount of $270 per year. The fee may be higher if it can be demonstrated to comply with the FCC Small Cell Order’s requirements that it is cost-based and reasonable, and non- discriminatory. The order has been appealed and is pending a decision in the Ninth Circuit Court of Appeals. Municipal Facilities Right-of-Way Agreement with New Cingular Wireless PCS, LLC (AT&T) November 5, 2019 Page 2 of 5 New Cingular Wireless PCS, LLC (“AT&T”), a cellular service provider, has recently inquired about using City facilities to install their equipment. They have reviewed the City’s Agreement, and have requested that the annual pole fee be reduced to $270 to be consistent with the FCC order. Because the order does not automatically preempt existing agreements; Verizon Wireless and Extenet have not questioned the validity of the fee in the Agreement. The order is under appeal, and City staff has taken the position that it should not vary from its adopted rate of $1,500 at this time. AT&T does not agree with the City’s position, and has put forth an alternative fee provision for the City Council’s consideration. It is recommended that the City Council confirm continued use of the City’s standard Municipal Right-of-Way Facilities Use Agreement with an annual pole usage fee of $1,500, and approve, and authorize and direct the City Manager to execute a Municipal Right-of-Way Facilities Use Agreement with New Cingular Wireless PCS, LLC, for use of City facilities for installation, operation, and maintenance of cellular equipment. BACKGROUND Cellular service providers are regulated by the Federal Communications Commission, and, under state law, have the right to use City public rights-of-way for their facilities, provided that the facilities do not “incommode” (or inconvenience) the public use of the right-of-way. In order to control these types of installations to the greatest extent, the City has developed a Wireless Facilities in Public Right-of-Way Application permit document, which provides requirements and guidance to cellular providers in making applications for cellular facilities installations. As part of the permit review process, wireless providers are asked to consider locating their facilities on existing facilities, such as streetlights or utility poles, to minimize the impact to the City. For the use of utility poles, the cellular provider needs the authorization of the pole owner. For the use of City facilities, the City Attorney prepared a standard agreement, entitled a Municipal Right-of-Way Facilities Use Agreement, to allow cellular providers to use City facilities for the installation, operation, and maintenance of their cellular equipment. The Agreement, which requires City Council approval, is intended to be the master document for any and all installations on City-owned facilities by a cellular provider. Each location is subsequently administratively approved with the issuance of the Site Authorization Form attached to the agreement as an exhibit. The Agreement specifies an annual amount of $1,500 for the use of a City Street light. The City Attorney suggested this amount as a reasonable rate based on the range of rates approved by other municipalities in the region. This amount is also substantially less than what is charged for locations on City-owned properties such as parks or water facilities. Municipal Facilities Right-of-Way Agreement with New Cingular Wireless PCS, LLC (AT&T) November 5, 2019 Page 3 of 5 The City currently has three (3) cellular providers under agreements for use of City facilities. NextG Networks/Crown Castle entered into an older, different agreement in November 2009, and Verizon Wireless and Extenet Systems entered into the current Municipal Right-of-Way Facilities Use Agreement in 2016, with the annual streetlight use fee of $1,500. In 2018, the Federal Communications Commission (the “FCC”) adopted an order (FCC 18-133) pertaining to the deployment of small wireless facilities, including the use of municipal facilities by cellular providers. The order, referred to as the Small Cell Order, determined that failing to allow use of municipal facilities for cellular equipment could be an “effective prohibition” of wireless service under federal law. Further, the order limited local government authority to collect “fair and reasonable compensation” for use, and established a “safe harbor” fee in the amount of $270 per year for use of a City facility like a streetlight pole. The fee may be higher if it can be demonstrated to comply with the FCC small cell order’s requirements that the fee reflects a reasonable approximation of actual costs, and is non-discriminatory. With regard to existing agreements, the FCC order did not preempt the fees, but stated that the order’s effect on any particular existing agreement will depend upon all the facts and circumstances of that specific case and may or may not impact any particular agreement entered into before the order took effect. The order has been appealed and fully briefed, and is pending oral argument and a decision in the Ninth Circuit Court of Appeals. DISCUSSION AT&T has requested the use of City right-of-way facilities for the installation, operation, and maintenance of their small cell equipment, and is primarily interested in City streetlight poles. The City’s standard Municipal Right-of-Way Facilities Use Agreement includes the following key elements:  The Agreement has a term of 10 years, with one 5-year extension.  The City must approve each location with a Site License Authorization form in advance of each installation.  The City will receive an annual fee of $1,500 per street light installation, with annual CPI adjustment.  The Agreement allows for the use of other City facilities, like conduit, if requested.  Additional fees for the use of other facilities are to be determined upon request and agreed upon by both parties.  Electricity is not provided by the City.  Agreement requires the Facility to be relocated, if requested by the City. Municipal Facilities Right-of-Way Agreement with New Cingular Wireless PCS, LLC (AT&T) November 5, 2019 Page 4 of 5  Equipment must be removed upon abandonment of service, or termination of Agreement, or it becomes the sole property of the City.  Carrier to post a Performance Bond in the amount of $50,000 for up to 50 locations and $100,000 for more than 50. AT&T has reviewed the City’s standard agreement, and has requested that the annual streetlight pole usage fee be reduced to $270 to be consistent with the FCC order. AT&T believes that because the small cell order has been adopted, it should be honored by municipalities, even though the order itself is under appeal. AT&T has also offered that if the appeal is upheld, they would agree to the City’s fee of $1,500 at that time. The counterargument to that request is that because the order is currently under appeal, the $1,500 rate should apply until the appeal is decided. This is also consistent with the rates being charged currently to the other providers in town. The City has offered to include the provision that if the appeal is vacated or invalidated by a court, the City will honor the $270 rate with no further City Council action required. The City‘s standard agreement is attached, along with the City Attorney’s recommended language as discussed above, and AT&T’s alternative language. AT&T currently has one small cell installation application for the use of a City streetlight pending with the City, and is awaiting the outcome of this action. It is recommended that the City Council deny AT&T’s request to lower the rate at this time and instead charge the $1,500 rate in the City’s standard agreement pending the outcome of any appeals to the FCC Order. FISCAL IMPACT With the City’s standard agreement, the City would receive $1,500 per year for each installation on a streetlight, at least until the appeal is decided. With AT&T’s proposed alternative agreement, the City would receive $270 per year for each installation on a streetlight, until the appeal is decided. Both alternatives would adjust the rate based on the results of the pending appeal. RECOMMENDATION It is recommended that the City Council approve, and authorize and direct the City Manager to execute a Municipal Right-of-Way Facilities Use Agreement with New Cingular Wireless PCS, LLC (AT&T) for use of City facilities for installation, operation, and maintenance of cellular equipment. Municipal Facilities Right-of-Way Agreement with New Cingular Wireless PCS, LLC (AT&T) November 5, 2019 Page 5 of 5 Attachment: City’s Municipal Right-of-Way Facilities Use Agreement BB&K’s Draft Municipal Right-of-Way Facilities Use Agreement AT&T’s requested Draft Municipal Right-of-Way Facilities Use Agreement 1 CITY OF ARCADIA MUNICIPAL RIGHT-OF-WAY FACILITIES USE AGREEMENT THIS MUNICIPAL RIGHT-OF-WAY FACILITIES USE AGREEMENT (“Agreement”) is entered into on ________________, 20__ (“Effective Date”), by the CITY OF ARCADIA, a California municipal corporation (“City”), and [INSERT NAME], a [INSERT TYPE OF ENTITY - CORPORATION, PARTNERSHIP, SOLE PROPRIETORSHIP OR OTHER LEGAL ENTITY]. (“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. 2 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 b y 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 be 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 3 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 City 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 be 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 where 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, 4 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 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 for such unauthorized Equipment an amount which is five times the applicable fee in Section 4.1 until the breach is cured by Licensee by 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 City’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. 5 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 (b) 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 be 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 6 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 3.1and 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 be provided in a format that is compatible with City’s information technology, including but not limited to ESRI 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 LicensorCity. 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 7 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 City will have the option, upon 15 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 by City, Licensee must promptly reimburse City for those costs, which obligation shall survive 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 City 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 8 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 be 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: 9 (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 be 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 information the disclosure of 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 California Public Records Act, and therefore the parties agree that should Tenant provide any information pursuant to this Section 7.4 which Tenant claims to be confidential and/or proprietary (“Confidential Information”), then City shall use reasonable efforts 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 insureds” clauses shall 10 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 11 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 be canceled until sixty (60) days after 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 be 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 Attn: Jason Kruckeberg Assist. City Manager 240 West Huntington Drive Arcadia, CA 91066 If to Licensee: If to Licensee: __________________________ __________________________ __________________________ __________________________ 9.1 Date of Notices; Changing Notice Recipient or Address. Notices will 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 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. 12 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, if 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. 13 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 be 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. 14 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: By: _________________________________ CITY OF ARCADIA By: _____________________________ Title: ____________________________ Date: ____________________________ ATTEST: _________________________________ City Clerk LICENSEE ___________________________________ ___________________________________ ___________________________________ By: _____________________________ Name: ________________________ Title: ____________________________ Date: ____________________________ 15 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 [ if 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 _____________________________ 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] 16 CITY OF ARCADIA By: _____________________________ Title: ____________________________ Date: ____________________________ ACCEPTED BY LICENSEE: LICENSEE _______________________________ __________________________________ __________________________________ By: _____________________________ Name: ___________________________ Title: ___________________________ Date: ____________________________