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HomeMy WebLinkAboutContracts & Agreements_157-2019MUNICIPAL FACILITY LICENSE AGREEMENT THIS MUN,�C�IP LILITY LICENSE AGREEMENT ("Agreement") is made and entered into this ► �y``o { Effective Date ), by and between the City of Redlands, a California municipal corporation ("Licensor" or "City"), and Los Angeles SMSA Limited Partnership, d/b/a Venzon Wireless, a California hmited partnership ("Licensee") City and Licensee are sometimes individually referred to herein as a "Party" and, together, as the "Parties " RECITALS WHEREAS, City is the owner of certain Municipal Facilities (as defined below) located in the Rights -of -Way (as defined below) of the City, and WHEREAS, Licensee is authorized to conduct business as a telephone corporation in the State of California, and WHEREAS, Licensee desires to use space on certain of City's Municipal Facilities in the Rights -of -Way to construct, attach, install, operate, and maintain of its Equipment (as defined below), and WHEREAS, City is willing to allow Licensee to use and physically occupy portions of the Municipal Facilities in the Rights -of -Way subject to the terms and conditions of this Agreement, AGREEMENT NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree to the following covenants, terms, and conditions 1 Definitions The following definitions shall apply generally to the provisions of this Agreement 1 1 "Equipment" means the equipment cabinets, antennas, utilities, and fiber optic cables, wires, and related equipment, whether referred to individually or collectively, to be installed on a Municipal Facility and operated by Licensee under a particular Supplement 1 2 "Hazardous Substance" means any substance, chemical or waste that is identified as hazardous or toxic in any applicable federal, state or local law or regulation, including, but not limited to, petroleum products and asbestos 1 3 "Laws" means any and all applicable statutes, codes, constitutions, ordinances, resolutions, regulations, judicial decisions, rules, tariffs, administrative orders, court orders, or other requirements of the Licensor or other governmental agency having point or several jurisdiction over the Parties to this Agreement as such laws may be amended from time to time 14 "License Fee" means the compensation paid under any Supplement for use of the Municipal Facilities 1 I-1Tabitha\Agreements\MLA agreement\Verizon Comments\Verizan MLA Final 1 7.20.doex.jn 1 5 "Make -Ready Wolk" means the work required on oi in a Municipal Facility to create space foi the Equipment, and/oi replacing and/or reinforcing the existing Municipal Facility to accommodate Equipment including, but not limited to, rearrangement or transfer of existing Equipment and the facilities of othei entities, and Municipal Facility relocation and replacement if applicable 1 6 "Municipal Facilities" means Licensor -owned structures, objects, and equipment in the ROW, including, but not limited to, street lights , traffic control structures, street furniture, oi othei poles, lighting fixtures, or electroliers located within the ROW, and may refei to such facilities in the singulai oi plural, as appropriate to the context in which used The term includes Replacement Facilities referred to in Section 4 1 3 1 7 "Person" means and includes any individual, partnership of any kind, corporation, Limited Liability Company, association, joint venture, or other organization, howevei formed, as well as trustees, heirs, executors, administrators, 01 assigns, or any combination of such persons 1 8 "PUC" means the California Public Utilities Commission 1 9 "Riglit(s)-of-Way" of "ROW" means the improved or unimproved surface or subsurface of any public street, oi similai public way of any nature, dedicated or improved foi vehicular, bicycle, and/oi pedestrian related use Right -of -Way includes public streets, roads, lanes, alleys, sidewalks, medians, parkways, public utility easements, and landscaped lots The Public Right -of -Way does not include private streets 1 10 "Services" means the transmission and reception of communications signals for the provision of personal wireless services, telecommunications services and mobile data services as defined in federal law, but specifically excluding cable services and/or video services as defined by the Digital Infrastructure and Video Competition Act (as codified in Public Utilities Code section 5800 et seq ) 1 11 "Supplement" shall mean each separate authorization, granted by Licensor to Licensee with regard to a specific Equipment installation, the form of which is attached hereto as Exhibit "A", each and every of which shall be subject to the terms and conditions of this Agreement 1 12 "Transfer" means any transaction in which the rights and/or obligations held by Licensee under this Agreement or a Supplement are transferred, directly oi indirectly, in whole 01 in part to a Party other than Licensee 2 Term, Supplement Terri 2 1 Term The initial terrn of this Agreement shall be foi a period of ten (10) years (the "Initial Term"), commencing on the Effective Date and ending on the tenth (10) anniversary thereof, unless sooner terminated as stated herein Piovided that Licensee is not in default of the Agreement 01 any Supplement following written notice and the expiration of any applicable cure period, this Agreement shall be automatically renewed foi two (2) successive five (5) year renewal terms (each, a "Renewal Tetiti"), unless either Party gives the other Party written notice of the intent not to renew this Agreement at least six (6) months prioi to the expiration of the Initial Term 2 I \Tabttlra\Agreements\MLA agreement\Venzon Comments\Verizon MLA Final 1 7 20.docx or any Renewal Tenn, as applicable The Initial Term and all Renewal Terms shall be collectively referred to herein as the "Tenn " Any holding ovei after the termination 01 expiration of the Term shall constitute a default by Licensee, notwithstanding that Licensoi may elect to accept one of more payments of fees from Licensee after such default occurs 2 2 Supplement Tenn Unless otherwise specified in a Supplernent, the initial term foi each particular Supplernent shall begin on its effective date ("Supplement Effective Date") and shall end upon the expiration of the Tern, unless such individual Supplement is ember terminated or this Agreernent is extended 01 terminated, as provided for herein (the "Supplement Term") All of the provisions of this Agreement shall be in effect during the Supplernent Term The expiration or termination of the Agreement shall immediately terminate all Supplements Any holding over aftei the expiration of the Supplement Term shall constitute a default by Licensee, notwithstanding that Licensoi may elect to accept one 01 more payments of fees from Licensee aftei such default occurs 3 Representation Concerning Services, No Authorization to Provide Othei Services. Licensee represents, warrants, and covenants that its Equipment installed pursuant to this Agreement and each Supplement will be utilized solely foi providing the Services, and Licensee is not authorized to and shall not use its Equipment installed on Municipal Facilities to offer or provide any other services not specified herein without Licensoi prior written consent At any time that Licensee ceases to operate as a provider of Services under federal or state law, it shall provide written notice of the same to Licensoi within seven (7) days of such cessation, at which time the Licensor shall have the option, in its sole discretion and upon six (6) months' written notice to Licensee, to terminate this Agreernent and to require the removal of Licensee's Equipment from the ROW and from Municipal Facilities, including the cost of any site remediation, at no cost to the Licensoi, without any liability to Licensee related directly 01 indirectly to such termination 4 Scope of Agreement Licensee may only use Municipal Facilities pursuant to an approved Supplernent Any and all rights expressly granted to Licensee under this Agreement shall be exercised at Licensee's sole cost and expense, and shall be subject to the restrictions set forth herein 4 1 Attachment to Municipal Facilities Subject to the conditions herein, Licensoi hereby authorizes and permits Licensee to locate, place, attach, install, operate, maintain, control, remove, reattach, reinstall, relocate, and replace Equipment on identified Municipal Facilities located in the ROW for the purpose of providing Services 4 1 1 Licensee will submit to the authorized representative of the Licensoi an application substantially in the form of Exhibit "B" ("Application") hereto including a proposed design for any proposed Equipment installations that identifies both the Equipment and the Municipal Facilities Licensee proposes to use One Application is required per Municipal Facility 4 1 2 Consistent with applicable law, Licensor may approve, approve with conditions, or disapprove an Application in its sole discretion, provided howevei, that Licensoi shall not unreasonably delay its decision Any approved Equipment shall be included as part of the applicable Supplement 3 I ITabithalAgreentenis\MLA agreement\Venzon Comments\Venzon MLA Final 1 7 20.docx 4 1 3 If Licensee submits an Application to use a Municipal Facility that is structurally inadequate to accommodate its proposed Equipment, Licensor may permit the replacement of the Municipal Facility (a "Replacement Facility") with one that is acceptable to and approved by the Licensoi as part of the applicable Supplement Any Replacement Facility shall be installed and maintained in accordance with Section 6 of this Agreement 4 1 4 Licensee shall be solely responsible foi obtaining and maintaining the provision of electricity to the Equipment, including, but not limited to, making payments to electric utilities and installation of separate electric meters, if necessary Where commercially feasible and available, Licensee shall secure unmetered electricity services 4 2 Additional Authority Nothing in this Agreement shall limit in any way Licensee's obligation to obtain any additional required regulatory approvals or permits from any City department, board, commission, 01 othei governmental agency that has regulatory authority over the Licensee's proposed activities involving use of the Municipal Facilities in the ROW 4 3 No Interference Licensee acknowledges and agrees that the primary purpose of the Municipal Facilities is to serve the Licensoi and the public In the performance and exercise of its rights and obligations under this Agreement, Licensee shall not interfere in any manner with Licensor's own services 01 the existence and operation of any and all public and private rights-of- way, sanitary sewers, watei mains, storm drams, gas mains, poles, aerial and underground electncal and telephone wires, traffic signals, communication facilities owned by the Licensoi, electroliers, cable television, location monitoring services, public safety and othei then existing telecommunications equipment, utilities, 01 municipal property, without the express written approval of the ownei or owners of the affected property or properties, except as permitted by applicable laws 01 this Agreement If such interference should occur, Licensee shall discontinue using the Equipment, methodology, 01 technology that causes the interference until such time as Licensee takes corrective measures to eliminate such interference In the event that such interference does not cease piomptly, Licensee acknowledges that continuing interference may cause irreparable injury and harrn, and therefore, in addition to any other remedies, and without limitation of any othei remedy, Licensoi shall be entitled to seek temporary and permanent injunctions against the breach of this Subsection Notwithstanding the foregoing,Licensoi and Licensee agree to work in good faith with each othei and any other affected Party to resolve any interference to of by Licensee 4 4 Permits, Default In addition to any othei remedies available hereunder, whenever Licensee is in default of this Agreement 01 an applicable Supplement, after notice and applicable cure periods, Licensor may deny further encroachment, excavation, 01 similar permits for work in connection with installations under this Agreement until such time as Licensee cures all of its defaults 4 5 Compliance with Laws Licensee shall comply with all Laws in the exercise and performance of its rights and obligations under this Agreement 4 6 Non -Exclusive Use Rights Notwithstanding any other provision of this Agreement, any and all rights expressly 01 impliedly granted to Licensee under this Agreement shall be non-exclusive, and shall be subject and subordinate to (1) the continuing right of the 4 1Tabitha\Agreements\MLA agreement\Venzon Comments\Verizon MLA Final 1 7 20.docx Licensoi to use, and to allow any other person or persons to use, any and all parts of the ROW 01 Municipal Facilities, exclusively or concurrently with any other person of persons, and (2) the public easement foi streets and any and all other deeds, easements, dedications, conditions, covenants, restrictions, encumbrances, and claims of title (collectively, "Encumbrances") which may affect the ROW or Municipal Facilities now or at any time during the terns of this Agreement, including, without limitation any Encumbrances granted, created, 01 allowed by the Licensor at any time 5 Compensation Licensee shall be solely responsible foi the payment of all fees in connection with Licensee's performance under this Agreement, including, but not limited to, those set forth below 5 1 One Time Fees The Licensor activities described in Section 5 1 are "One -Time Fees" that reimburses the City for its costs associated with reviewing and approving applications to attach Equipment on identified Municipal Facilities located in the ROW, this Agreement and Supplements to this Agreement foi additional locations The Licensoi shall track its time spent reviewing the Licensee submittals foi Licenses, Supplements and associated permit activities described below, and charge its hourly rate foi any actual and reasonable time spent above the amount to be recovered by any lawful established fee The fee amounts shall be assessed and administered consistent with standard Licensoi practice and fee schedule(s) as curiently adopted and subsequently amended or replaced, in a manner consistent with applicable law 5 1 1 Permit Fees Licensee shall be responsible foi paying all costs associated with City review, processing and inspection as part of all permit applications filed for the installation, modification, maintenance and removal of Equipment on identified Municipal Facilities located in the ROW 5 1 2 License and Supplement Fee Licensee shall be responsible for paying all costs associated with City review and processing of this License and any Supplements thereto (or any amendment thereto) and/oi the othei administrative review, consultation, and inspection described in this License, including review of Company submittals 5 2 License Fees 5 2 1 License Fee Licensee acknowledges that the FCC has adopted a Declaratory Ruling {FCC 18-133) that relates to the license fee which went into effect on January 14, 2019 but that Declaratory Ruling is currently the subject of litigation Paragraphs 5 2 2, 5 2 3 and 5 2 4 govern the payment of a license fee and how it may be impacted by the Declaratory Ruling and the resolution of related litigation during the Term and any renewal terms 5 2 2 During any period rn which the FCC Declaratory Ruling (FCC 18-133) is in effect and during any period in which the Alternate Licensee Fee provisions rn paragraph 5 2 3 are not applicable, the Licensee shall pay the License Fee as described in this paragraph Licensee shall pay to the Licensoi the base amount of two hundred and seventy dollars ($270 00) per calendai year foi each location covered by a Supplement The base amount under all Supplements shall be subject to an annual adjustment of three percent (3%) applied on each anniversary of the Effective Date Any new Supplements entered into during a given year shall commence at the 5 1 ITabitha\Agreements\MLA agreement.IVenzon Comments\Venzon MLA Final 1 7 2fl.docx license fee, as adjusted by this Section to reflect the then -current rate (the "License Fee") The License Fee foi the first calendar year of a Supplement for each location shall be pro -rated based on the number of days covered from the Supplement Effective Date to the next anniversary of the Effective Date of the Agreement There shall be no refunds of the License Fee paid due to the termination 01 expiration of the License foi any reason 5 2 3 Alternate License Fee In the event the relevant provisions of the FCC Declaratory Ruling cease to be effective, (for example, because they are stayed after having gone into effect, or they are vacated or invalidated) and have not been replaced by the New Law with an alternative provision concerning the License Fee, the Licensee shall be obligated to pay the AIternate License Fee as described rn this paragraph and paragraph 5 2 4, if applicable For each location covered by a Supplement, Licensee shall pay to the Licensoi the Alternate License Fee negotiated between the parties consistent with then -current applicable Law, not to exceed the base amount of one thousand dollars ($1,000) per calendai year The base amount under all Supplements shall be subject to an annual adjustment of three percent (3%) applied on each anniversary of the Effective Date ("Alternate License Fee") The Alternate License Fee for the first calendai year of a Supplement foi each individual location shall be pro -rated based on the number of days covered from the Supplement Effective Date to the next anniversary of the Effective Date of the Agreement There shall be no refunds of the Alternate License Fee paid due to the termination or expiration of the License for any reason If the relevant part of the FCC Declaratory Ruling governing the License Fee is partially vacated oi partially invalidated, the Parties shall promptly meet and confer and negotiate rn good faith an adjustment to the Alternate License Fee consistent with the outcome (i e , the partial vacation or partial invalidation of the relevant part of the FCC Declaratory Ruling) 5 2 4 The Licensor agrees that irrespective of whether the relevant provisions of the FCC Declaratory Ruling (FCC 18-133) cease to be effective, no Alternate License Fee shall be due for any periods during which the relevant provisions of the FCC Declaratory Ruling were m effect However, if Licensee has paid the License Fee pursuant to the provisions of Section 5 2 2 above foi a calendar year, and the relevant provisions of the FCC Declaratory Ruling subsequently cease to be effective during the same calendai yeas, the Licensee shall pay the difference between the License Fee and the Alternate License Fee foi the period from the date the relevant provisions of the FCC Declaratory Ruling ceased to be effective, until December 31 of that year ("License Fee Adjustment") Such License Fee Adjustment shall be paid to Licensor along with the next License Fee payment 5 2 5 Receipt of any License Fee or Alternate License Fee by the Licensor, with knowledge of any breach of this License by Licensee, oi of any default on the part of Licensee in the observance or performance of any of the conditions 01 covenants of this License, shall not be deemed a waives of any provision of this License 5 3 Payment 5 3 1 Licensee shall make the first payment of the License Fee under any Supplement within forty-five (45) days of the Supplement Effective Date (as defined therein) The amount of the first payment of the License Fee foi any Supplement shall be prorated to cover the period from the Supplement Effective Date of the applicable Supplement to the next anniversary 6 1 1Tabitha\Agreements\MLA agreement\Verizon Comments\Verizon MLA Final 17 20 docx of the Effective Date of this Agreement Thereafter, the License Fee shall be paid in advance foi each Municipal Facility used on or before each anniversary of the Effective Date Acceptance by Licensoi of any payment of the License Fee shall not be deemed a waiver by Licensoi of any breach of this Agreement occurring prioi thereto, nor will the acceptance by Licensoi of any such payment preclude Licensoi from latei establishing that a greatei amount was actually due 01 from collecting any balance that is due As a prerequisite to the payment of License Fee, Licensoi hereby agrees to provide to Licensee certain documentation (the "License Documentation") evidencing Licensor's interest in, and right to receive payments undei, this Agreement, including without limitation (i) a complete and fully executed Internal Revenue Service Form W-9, at equivalent, in a form acceptable to Licensee, for any Party to whom License Fee payments are to be made pursuant to this Agreement, and (n) othei documentation requested by Licensee m Licensee's reasonable discretion From time to time during the Tenn of this Agreement and within thirty (30) days of a written request from Licensee, Licensor agrees to provide updated License Documentation m a form reasonably acceptable to Licensee 5 3 2 The License Fee shall be paid by check made payable to the Qty and mailed of delivered to the City Clerk's Office, at the address provided foi in Section 10 below The place and time of payment may be changed at any time by Licensoi upon thirty (30) days' written notice to Licensee Mailed payments shall be deemed paid upon the date such payment is officially postmarked by the United States Postal Service If postmarks are illegible to read, the payment shall be deemed paid upon actual receipt Licensee assumes all risk of loss and responsibility foi late payment charges if payments are made by mail Notwithstanding the foregoing, upon agreement of the Parties, Licensee may pay the License Fee by electronic funds transfei, and if agreed, the Licensor will provide to Licensee bank routing information foi such purpose upon request of Licensee 5 4 Delinquent Payment A five percent (5%) late fee shall be added to the License Fee if not received by Licensor within thirty (30) calendar days aftei the due date In addition, all unpaid fees shall accrue interest on the amount due at the rate of ten percent (10%) per annum until paid in full AlI late fees and interest payments shall be treated as part of, and subject to the same terms as, the License Fee under this Agreement 5 5 Additional Remedies The late fee set forth in Section 5 4 above is not exclusive, and does not preclude the Licensoi from pursuing any othei oi additional remedies in the event that payments become overdue by more than thirty (30) days 6 Construction Licensee shall comply with all applicable federal, state, and local codes related to the construction, installation, operation, maintenance, and control of Licensee's Equipment installed on Municipal Facilities Licensee shall not attach, install, maintain, or operate any Equipment on Municipal Facilities without the prioi written approval of an authorized representative of the Licensor for each location as evidenced in a signed Supplement Licensee shall keep the Municipal Facilities free and cleat from any liens arising out of any work performed, material furnished, oi obligations incurred by or foi Licensee 6 1 Installation and Operation Within thirty (30) days of the completion of each installation, Licensee shall promptly furnish to Licensoi As -Built drawings of the current location of the Equipment in 01 on the Municipal Facility 7 i 1TabithalAgreements\MLA agreement\Venzon Comments\Verizon MLA Final 1 7 20.dacx 6 2 Design Standards The Equipment and any Replacement Facility shall comply with the design standards set forth pursuant to Section 12 60 30(G)(3), or any applicable successor provision(s), except as may be otherwise approved by City Further, Licensee shall design, construct, and install the Equipment and any Replacement Facility in compliance with the City permit and conditions of approval All future Supplements and modifications to existing Equipment shall be subject to then -current design standards m the City of Redlands By entering into this Agreement, Licensee agrees that the design standards required by this Section are technically feasible and reasonably directed at accomplishing the aesthetic goals of Licensoi 6 3 Obtaining Required Permits Licensee acknowledges that in addition to a signed Supplement, each installation of Equipment and maintenance thereof shall also be subject to then - current City permitting requirements as set out in the City's Municipal Code Licensee agrees to comply with the current applicable ordinances regarding such installations and maintenance as well as any future regulations that may be adopted by the City related to such installations and maintenance Licensee shall apply foi the appropriate permits and pay any lawful standard and customary permit fees 6 4 Relocation and Displacement of Equipment 6 4 1 This Agreement creates no right foi Licensee to receive any relocation assistance 01 payment foi any reason under the Relocation Assistance Act, the Uniform Relocation Assistance Act, oi undei any existing or future law upon any termination of tenancy 6 4 2 Licensee understands and acknowledges that Licensoi may require Licensee to relocate one 01 more of its Equipment installations Licensee shall, at Licensor's direction, and upon one hundred eighty (180) days' prior written notice to Licensee, relocate such Equipment at Licensee's sole cost and expense whenevei Licensoi reasonably determines that the relocation is needed foi any of the following purposes (a) if required foi the construction, modification, completion, repan, relocation, oi maintenance of a Licensoi 01 othei public agency pioject, (b) because the Equipment is interfering with or adversely affecting proper operation of Licensoi-owned Municipal Facilities, 01 (c) to protect 01 preserve the public health 01 safety, including, but not limited to, the safe or efficient use of rights-of-way In any such case, Licensoi shall use reasonable efforts to afford Licensee a reasonably equivalent alternate location If Licensee shall fail to relocate any Equipment as requested by the Licensoi within the prescribed time, Licensoi shall be entitled to remove or relocate the Equipment at Licensee's sole cost and expense, without further notice to Licensee Licensee shall pay to the Licensoi actual costs and expenses incurred by the Licensor in performing any removal work and any storage of Licensee's property after iemoval within sixty (60) days of the date of a written demand foi and evidence substantiating this payment from the Licensor 6 4 3 To the extent the Licensoi has actual knowledge thereof, the Licensoi will attempt promptly to inform Licensee of the displacement or removal of any Municipal Facility on which any Equipment is located 6 5 Relocations at Licensee's Request In the event Licensee desires to relocate any Equipment from one Municipal Facility to another, Licensee shall so advise Licensor Licensor will use reasonable efforts to accommodate Licensee by making another reasonably equivalent 8 I ITabitiia\Agreements\MLA agreement\Verizon CommentsVerizon MLA Final 1 7 20.docx Municipal Facility available foi use m accordance with and subject to the terms and conditions of this Agreement Licensoi may require Licensee to submit an application and/or enter into a new Supplement foi the prospective relocation site Licensee shall be liable foi all costs of relocation, including any costs that Licensor may incui 6 6 Make Ready 6 6 1 Make Ready Work and Costs (a) Licensee shall bear responsibility for all Make -Ready Work If a Person other than Licensee 01 Licensor would have to rearrange or adjust any of its facilities in order to accommodate new Equipment, Licensee shall be responsible, at Licensee's sole expense, to coordinate such activity Licensee shall be responsible foi directly paying such othei Person foi its charges for the same If Licensee is requested by another Person, in comparable circumstances, to relocate or adjust any Equipment to accommodate that Person's facilities, subject to Licensoi 's written approval of such relocation, Licensee shall reasonably cooperate with such request (b) Construction, installation, and operation of the Equipment shall be conditioned on the completion of all Make -Ready Work needed to establish full compliance with NESC, and with Licensor's regulatory rules and engineering standards, provided, however, that Licensee shall not be responsible foi any third -party or Licensoi costs necessary to correct third Party 01 Licensor attachments that are non-compliant at the time of Licensee's Application 6 6 2 Notification of Completion of Installation Within twenty (20) business days of completing the installation of Equipment on each Municipal Facility, Licensee shall notify Licensoi of such completion 6 7 Replacement Facilities 6 7 1 Ownership of Replacement Facilities Licensoi shall retain ownership of any approved Replacement Facility Licensor acicnowledges that Licensee shall have the exclusive right to install, operate, maintain, modify, repair, and replace its Replacement Facilities, subject to any aesthetic or othei applicable requirements of the Licensoi Licensor acknowledges and agrees that Licensee may enter into subleases, subhcenses, or other use agreements with one or more third Party communications of other utility providers foi the purpose of subleasing, licensing, or otherwise granting use rights to such providers on its Replacement Facilities, provided, however, that such third Party uses shall remain subject to any necessary permitting 01 approval requirements of the Licensor 6 7 2 Replacement Facility Installation If Licensee is performing Make -Ready Work, Licensee shall be responsible foi providing and installing any approved Replacement Facility 6 8 Damage, Maintenance & Repair 6 8 1 Licensee shall, at its sole cost and expense and to the satisfaction of the Licensor (a) remove, repan, or replace any of its Equipment that is damaged or becomes detached, and/oi (b) repair any damage to ROW, Municipal Facilities, or other property, whether public 01 9 I 1Tabitlm\Agreements\MLA agreement\Verizon Commen€s\Verizon MLA Final 17 20 docx private, caused by Licensee, its agents, employees, or contractors ui their actions relating to attachment, operation, repair, or maintenance of Equipment Licensee shall complete such iernoval, repan, 01 replacement within thirty (30) days' of written notice 6 8 2 In the event a Replacement Facility needs to be replaced, repaired, or cleared from the ROW, as a result of actions by Licensee, it agents, employees, or contractors, Licensee shall conduct this work at own Licensee's own expense In this case Licensee will notify Licensoi by email at jdonaldson@cityofredlands org before beginning the work 6 8 3 If Licensee does not remove, repan, replace, 01 otherwise remediate such damage to its Equipment, Replacement Facility, or to the ROW, Municipal Facilities, 01 other property as required in this Section 6 8, the Licensor shall have the option to perform oi cause to be performed such removal, repair, 01 replacement on behalf of Licensee and shall charge Licensee for the actual costs incurred by the Licensoi If such damage causes apublic health oi safety emergency, as reasonably determined by Licensor, Licensoi may immediately perform reasonable and necessary repan of removal woik on behalf of Licensee and will notify Licensee as soon as practicable, provided, howevei, that such repair work shall not include any technical work on Licensee's Equipment Licensor shall have no obglrgation to maintain or safeguard the Equipment but shall use reasonable care when handling Licensee's equipment 6 8 4 Upon the receipt of a demand for payment substantiating such costs by the Licensoi pursuant to this Section, Licensee shall, within sixty (60) days of such receipt, reimburse the Licensor for such costs 6 8 5 The terms of this Section 6 8 shall survive the expiration termination of this Agreement 6 9 Change in Equipment If Licensee desires to install Equipment which is different in any material way from the then -existing and approved Equipment, then Licensee shall first obtain the written approval for the use and installation of such Equipment from an authorized representative of the Licensor Any such approval shall take the form of an amendment to the applicable Supplement In addition to any othei submittal requirements, and if requested by Licensor, Licensee shall provide "load" (structural) calculations foi. all Equipment changes In addition to the foregoing, Licensee shall comply with any othei applicable City permitting 01 approval process for the Equipment change Notwithstanding the foregoing, Licensor's approval foi modifications 01 an amendment to the applicable Supplement shall not be required in connection with routine maintenance 01 modifications that consist of upgrades oi replacement of "like -kind" Equipment which is substantially similar (or smallei in size) in appearance, dimensions, weight, and RF emissions to the then existing and approved Equipment 6 10 Unauthorized Equipment If Licensor discovers any Equipment has been installed on Municipal Facilities without authorization pursuant to a Supplement, subject to the clue period term provided in Section 11 below, Licensor may send an invoice to Licensee for a sum equal to three (3) tunes the then -current License Fee as compensation for the unauthorized attachments, and, within sixty (60) days from the date of such invoice, Licensee shall (i) pay the invoiced amount to Licensor and submit an Application foi the unauthorized Equipment, or (n) produce documentation showing Licensor's prior approval of the Equipment identified m the invoice If, m accordance with 10 i ITabithalAgreements\MLA agreement\Vernzon Commenis\Verizan MLA Final 1 7 20.dacx this Section, Licensee fails to pay all fees and submit the Application oi submit documentation satisfactorily showing Licensor's prior approval within sixty (60) days of Licensor's invoice, then Licensor may remove the unauthorized Equipment at Licensee's expense If Licensoi removes such unauthorized Equipment, then such Equipment shall become the property of Licensor, who shall have sole rights ovei such Equipment's disposition Licensor's removal' of unauthorized Equipment shall not release Licensee from its obligation to pay those invoiced fees accruing pursuant to this Section 6 11 Termination of a Supplement 6 11 1 Licensee shall have the right to terminate any Supplement on thirty (30) days' notice to Licensoi In the event of such termination, removal of Equipment associated with the terminated Supplement shall be governed by Section 6 12 below and Licensoi shall retain any License Fee paid, without refund oi setoff 6 11 2 Licensoi shall have the right to terminate any Supplement in any of the following circumstances if Licensor determines the covered Equipment has been inoperative, 01 abandoned, for one hundred and twenty (120) consecutive days, if Licensee's operation under a particulai Supplement is deemed by Licensor to endanger or pose athreat to the public health, safety, or welfare or interfere with the normal day-to-day operation of any Licensoi department or service, 01 Licensor is mandated by law, a court order 01 decision, oi the federal, state, or local government to take certain actions that will cause oi require the removal of Equipment Licensor shall provide written notice to Licensee regarding its intent to terminate the applicable Supplement pursuant to this Section, aftei which Licensee shall have thirty (30) calendar days to cure, or longer pursuant to the mutual agreement of Licensor and Licensee if the reason for termination cannot reasonably be cured with thirty (30) calendar days If Licensee does not cure within thirty (30) days following notice, or such othei time period as previously contemplated, Licensoi may then terminate the applicable Supplement upon written notice to Licensee 6 12 Removal of Equipment Within ninety (90) days aftei the expiration or earlier termination of a Supplement, Licensee shall promptly, safely, and carefully remove the Equipment covered by the terminated or expired Supplement from the applicable Municipal Facility and ROW Within ninety (90) days aftei the expiration 01 eatltei termination of this Agreement, Licensee shall promptly, safely, and carefully remove all Equipment from all applicable Municipal Facilities and ROW If Licensee fails to complete removal work pursuant to this Section, then the Licensoi, upon written notice to Licensee, shall have the right at the Licensor's sole election, but not the obligation, to perform this removal work and charge Licensee for the actual costs and expenses, including, without limitation, reasonable administrative costs Licensee shall pay to the Licensoi actual costs and expenses incurred by the Licensoi in performing any removal work and any storage of Licensee's property after removal within sixty (60) days of the date of a written demand for and evidence substantiating the amount of the demand for payment from the Licensor After the Licensoi receives the reimbursement payment from Licensee for the removal work performed by the Licensoi, the Licensoi shall promptly make available to Licensee the pioperty belonging to Licensee and removed by the Licensor pursuant to this Section at no additional liability to the Licensoi If the Licensor does not receive reimbursement payment from Licensee within such sixty (60) days, or if Licensor does not elect to remove such items at the Licensor's cost after Licensee's failure to so remove pursuant to this Section, 01 if Licensee does not remove Licensee's property within thirty (30) days of such 11 11Tabit1a\Agreements\MLA agreement\Venzon Comnnents\Venzon MLA Frnal 1 7 20.docx property having been made available by the Licensoi aftei Licensee's payment of removal rennbursement as described above, any items of Licensee's property remaining on or about the ROW of Municipal Facilities, 01 stored by the Licensoi aftei the Licensor's removal thereof, may, at the Licensor's option, be deemed abandoned and the Licensor may dispose of such property in any manner allowed foi by Law Alternatively, the Licensoi may elect to take title to the abandoned property, and Licensee shall submit to the Licensoi an instrument satisfactory to the Licensor transferring to the Licensor the ownership of such property The provisions of this Section shall survive the expiration or eaihei termination of this Agreement 6 13 Risk of Loss Licensee acknowledges and agrees that Licensee, subject to the terins of this Agreement, bears all risks of loss, damage, relocation, or replacement of its Equipment and materials installed in the ROW or on Municipal Facilities pursuant to this Agreement from any cause, and Licensoi shall not be liable for any cost of replacement or of iepan to damaged Equipment, including, without limitation, damage caused by the Licensoi 's removal of the Equipment, except to the extent that such loss or damage was caused by the willful misconduct 01 gross negligence of the Licensor, including, without limitation, each of its elected officials, department directors, managers, officers, agents, employees, and contractors, subject to the limitation of liability provided in Section 7 3 below 614 Hazardous Substances Licensee agrees that Licensee, its contractors, subcontractors, and agents, will not use, generate, store, produce, transport, of dispose any Hazardous Substance on, undei, about or within the area of a ROW or Municipal Facility in violation of any Law Except to the extent of the gross negligence or intentional misconduct of Licensor, Licensee will pay, indemnify, defend, and hold Licensoi harmless against and to the extent of any loss or liability incurred by reason of any Hazardous Substance produced, disposed of, or used by Licensee pursuant to this Agreement Licensee will ensure that any on-site or off-site storage, treatment, transportation, disposal or other handling of any Hazardous Substance will be performed by persons who are properly trained, authorized, licensed and otherwise permitted to perform those services 6 15 Inspection Licensor may conduct inspections of Equipment on Municipal Facilities Except in circumstances where Licensoi has special reason to be concerned about potential violations or in case of an emergency, Licensor will give Licensee thirty (30) days' prior written notice of such inspections, and Licensee shall have the right to be present at and observe any such inspections Licensee shall pay Licensor for its reasonable costs for safety inspections performed for the purpose of determining if a safety violation of which Licensor has provided notice to Licensee has been corrected by Licensee 6 16 Access Prior to Licensee accessing its Equipment foi non -emergency purposes, Licensee shall provide email notice, at least twenty-four (24) hours in advance, to the Licensoi at the following email address jdonaldson@cityofredlands org In the event of an emergency at any time, Licensee will, if time permits, attempt to provide prior telephonic notice to the Licensor at the following telephone number (909) 798-7655 7 Indemnification and Waiver Licensee agrees to indemnify, defend, protect, and hold harmless the Licensor, its council members, officers, employees, agents and contractors from and against any and all claims, demands, losses, including pole warranty invalidation, damages, 12 i 1Tabitlia\Agreements\MLA agreemenl\Verizon Comments\Verizon MLA Final 1 7 20.docx liabilities, fines, charges, penalties, administrative and judicial proceedings and orders, judgments, and all costs and expenses incurred in connection therewith, including reasonable attorney's fees and costs of defense (collectively, the "Losses") to the extent arising from, resulting from, 01 caused by Licensee's activities undertaken pursuant to this Agreement, including, without limitation, the construction, design, use, 01 operation of the Equipment oi provision of the Services, except to the extent arising from oi caused by the gross negligence or willful misconduct of the Licensoi, its council members, officers, employees, agents, 01 contractors 7 1 Waives of Claims Licensee waives any and all claims, demands, causes of action, and rights it inay assert against the Licensor on account of any loss, damage, or injury to any Equipment or any loss or degradation of the Services as a result of any event 01 occurrence which is beyond the reasonable control of the Licensor 7 2 Waives of Subrogation Each Party hereby waives and releases any and all rights of action foi negligence, except gross negligence and wanton 01 willful acts or omissions, against the othei Party which may hereaftei arise on account of damage to Equipment, Municipal Facilities, or to the ROW, regardless of whethei or not, or in what amounts, such insurance is now 01 hereaftei carried by the each Party This waives and release shall apply between the Parties and shall also apply to any claims under or through eithei Party as a result of any asserted right of subrogation Alt such policies of insurance obtained by Licensee concerning the Municipal Facilities, Equipment, 01 the ROW shall waive the insurer's right of subrogation against the Licensoi 7 3 Limitation on Consequential Damages Neithei Party shall be liable to the othei, or any of their respective agents, representatives, employees for any lost revenue, lost profits, loss of technology, rights 01 services, incidental, punitive, indirect, special or consequential damages, loss of data, or interruption 01 loss of use of service, even if advised of the possibility of such damages, whethei undei theory of contract, tort (including negligence), strict liability or otherwise 8 Performance bond In order to secure the performance of its obligations under this Agreement, Licensee will provide the following security instrument to the Licensor 8 1 Performance Bond Prioi to the commencement of any work under this Agreement, Licensee must provide a performance bond running to the Licensor according to this Section The amount of the bond shall be based on the nunnbei of attachments in the following amounts Nuinbei of Municipal Facilities Required Security 1-50 $100,000 51-100 $250,000 101-300 $500,000 310-1000 $750,000 The performance bond is conditioned upon the faithful performance by Licensee of all the terns and conditions of this Agreement and upon the further condition that, if Licensee fails to comply 13 I ITabithalAa eemcnts\MLA agreement\Verizon Comments\Venzon MLA Final 1 7 20.docx with any terms 01 conditions governing this Agreement, there shall be recoverable jointly and severally from the principal and surety of the bond any damage 01 loss suffered by the Licensor as a result, including, without Iimitation, the full amount of any compensation, indemnification, 01 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 shall keep the performance bond in place during the term of this Agreement 8 2 Assessment of the Bond The performance bond may be assessed by the Licensoi for any failure by Licensee to pay Licensoi an amount owed undei this Agieement beyond any applicable notice and cure periods, including, but not Iimited to (a) Reimbursement of costs borne by the Licensoi to corect violations of the Agreement not corrected by Licensee, aftei Licensoi piovides notice and a reasonable opportunity to cure such violations This shall include, without limitation, removal of Equipment (b) Providing monetary remedies or satisfying 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 sixty (60) days aftei written notice from the Licensoi that any amount has been recovered from the performance bond Failure to restore the bond to its full amount within sixty (60) days will constitute a matenal breach of this Agreement Licensee will be relieved of the foregoing requirement to replenish the bond during the pendency of an appeal from the Licensoi 's decision to draw on the performance bond 8 4 Required Endorsement The performance bond is subject to the approval of the Licensoi and must contain the following endorsement "This bond may not be canceled until sixty (60) days after receipt by the Licensor, by register ed mail, r eturn receipt requested, of a written notice of intent to cancel or not to renew " 8 5 Reservation of Licensoi Rights The rights reserved by Licensor with respect to the performance bond are in addition to all othei rights and remedies Licensoi may have undei this Agreement or any other Law 8 6 Admitted Surety Insures The surety supplying the bond shall be an "admitted surety mazer", as defined in California Code of Civil Procedure Section 995 120 and authorized to do business in the State of California 8 7 Cash Deposit In lieu of obtaining a performance bond, Licensee shall have the right to instead deposit a cash deposit with Licensor securing Licensee's obligations under this Agreement 9 Insurance Licensee shall obtain and maintain at all times during the Tenn (a) Commercial General Liability insurance written on ISO form 01 its equivalent with a limit of One Million Dollars ($1,000,000 00) pei occurrence for bodily injury and property damage and Two Million 14 I'1TabithalAgreements\MLA agreement\Verizon Commentslverizon MLA Final 1 7 20 docx Dollars ($2,000,000 00) general aggregate including premises -operations, contractual liability, personal injury, and products completed operations, and (b) Commercial Automobile Liability Insurance covering all owned, non -owned, and hired vehicles with a combined single limit of One Million Dollars ($1,000,000 00) each accident for bodily injury and property damage The required insurance policies shall include the Licensoi, its elected/appointed officials, commission members, officers, representatives, and employees as additional insured as then interest may appear under this Agreement as respects any covered liability caused, in whole 01 in part, by Licensee's performance of work undei this Agreement Coverage shall be in an occurrence form and in accordance with the limits and provisions specified herein Upon receipt of notice from its insurer, Licensee shall use its best efforts to provide the Licensoi with thirty (30) days prior written notice of cancellation of any required coverage that is not replaced Licensee's indemnity and other obligations shall not be limited by the foregoing insurance requirements If Licensee fails, foi any reason, to obtain or maintain insurance coverage required by this Agreement or fails to furnish certificates of insurance as detailed m Section 9 1, such failure shall be deemed a material breach of this Agreement, giving Licensor, in its discretion, the option to temnnate this Agreement 9 1 Filing of Certificates and Endorsements Prior to the commencement of any work pursuant to this Agreement, Licensee shall file with the Licensor the required certificate(s) of insurance witli blanket additional insured endorsements, which shall evidence the following (a) the policy nuinber, name of insurance company, naive and address of the agent 01 authorized representative, name and address of insured, policy expiration date, and specific coverage amounts, (b) that Licensee's Commercial General Liabihty insurance policy is primary as respects any othei valid 01 collectible insurance that the Licensoi may possess, including any self-insured retentions the Licensor may have, and any other insurance the Licensor does possess shall be considered excess insurance only and shall not be required to contribute with this insurance, and (c) that Licensee's Commercial General Liability insurance policy waives any right of recovery the insurance company inay have against the Licensoi The certificate(s) of insurance with endorsements and notices shall be mailed to the Licensoi at the address specified in Section 10 below 9 2 Workers' Compensation Insurance Licensee shall obtain and maintain at all times during the term of this Agreement statutory workers' compensation and ernployei's liability insurance in an amount of One Million Dollars ($1,000,000 00) per accident, pei disease pei employee, pei disease policy limit and shall fwmsh the Licensor with a certificate showing proof of such coverage 9 3 Insurer Criteria Any insurance providei of Licensee shall be eligible to do business in the State of California and shall carry a minimum rating assigned by A M Best & Company s Key Rating Guide of "A-" Overall and a Financial Size Category of "VII " 15 11TabitbalAgreeme is\MLA agreement\Verizon Comments\Verizon MLA Final 1 7 20.docx 9 4 Severability of Interest "Severability of interest" 01 "separation of insureds" clauses shall be made a part of the Commercial General Liability and. Commercial Automobile Liability policies 9 5 Self -Insurance Notwithstanding the forgoing, Licensee may, in its sole discretion, self -insure any of the required insurance under the same terms as required by this Agreement In the event Licensee elects to self -insure its obligation undei this Agreement to include Licensoi as an additional insured, the following conditions apply (i) Licensoi shall promptly and no Iatei than thirty (30) days aftei notice thereof provide Licensee with written notice of any claim, demand, lawsuit, 01 the Iike foi which it seeks coverage pursuant to this Section and provide Licensee with copies of any demands, notices, summonses, or legal papers received in connection with such claim, demand, lawsuit, of the like, (n) Licensor shall not settle any such claim, demand, lawsuit, or the like without the prior written consent of Licensee, and (in) Licensor shall fully cooperate with Licensee m the defense of the claim, demand, lawsuit, or the like 10 Notices 10 1 Method and Delivery of Notices All notices pursuant to this Agreement shall be in writing and delivered personally of transmitted (a) through the United States mail, by registered or certified mail, postage prepaid, or (b) by means of prepaid overnight delivery service, addressed as follows If to the Licensor If to the Licensee with a copy to City of Redlands 35 Capon Street P 0 Box 3005 (mailing) Redlands, CA 92373 Attn City Clerk Email jdonaldson@cityofredlands org Company Los Angeles SMSA Limited Partnership, d/b/a Verizon Wireless Attn Network Real Estate 180 Washington Valley Road Bedininstei, NJ 07921 Company Los Angeles SMSA Limited Partnership, d/b/a Verizon Wireless Attn Legal Department 180 Washington Valley Road Bedininstei, NJ 07921 10 2 Date of Notices, Changing Notice Address Notices shall be deemed given upon receipt in the case of personal delivery, three days aftei deposit in the mail, 01 the next business day in the case of overnight delivery, Eithei Party may from time to time designate any othei address for this purpose by written notice to the other Party delivered m the manner set forth in this Section 16 1 ITabitha\AgreementslMLA agreement\Verizon Comments\Venzon MLA Final 1 7 20.docx 11 Default, Cuie, Remedies 11 1 Licensee Default and Notification This Agreement is granted upon each and every condition herein, and each of the conditions is a material and essential condition to the granting of this Agreement Except for causes beyond the reasonable control of Licensee, if Licensee fails to comply with any of the conditions and obligations imposed hereunder, and if such faihire continues foi more than ninety (90) days after written demand from the Licensoi to commence the correction of such noncompliance on the part of Licensee, the Licensoi shall have the right to revoke and terminate this Agreement by written notice to Licensee, if such failure is in relation to the Agreement as a whole, 01 any individual Supplement, if such failure is in connection solely with such Supplement, in addition to any other rights or remedies set forth in this Agieement of provided by law 11 2 Cure Period if the nature of the violation is such that it cannot be fully cured within ninety (90) days due to circumstances not under reasonable Licensee's control, the period of time in which Licensee must cure the violation shall be extended foi such additional time reasonably necessary to complete the cure, provided that (a) Licensee has promptly begun to cure, (b) Licensee is diligently pursuing its efforts to ciu-e, and (c) Licensee provides a timeline to complete its cure efforts and responds within forty-eight (48) hours of any status request by Licensor Licensoi may not maintain any action 01 effect any remedies for default against Licensee, unless and until Licensee has failed to cure the breach within the time periods provided in these Sections 111 and 112 11 3 Licensoi Default If Licensoi breaches any covenant of obligation of Licensor under this Agreement in any manner, and if Licensoi fails to commence to cure such breach within ninety (90) days after receiving written notice from Licensor specifying the violation (or if Licensor fails thereafter to diligently prosecute the cure to completion), then Licensee may enforce any and all of its rights and/or remedies provided under this Agreement or by Law 12 Assignment And Customer Equipment This Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the Parties 12 1 Licensee shall not assign this Agreement of its rights or obligations to any firm, corporation, individual, oi other entity, without the prioi written consent of Licensoi, which consent shall not be unreasonably withheld Notwithstanding the foregoing, upon thirty (30) days' prior written notice, but without the need foi Licensor's consent, Licensee may assign or transfei this Agreement 01 its rights or obligations to (a) any parent or subsidiary of Licensee, to an entity with 01 into which Licensee may merge or consolidate, to an entity which Licensee is controlled by, oi is under common control, oi (b) in connection with the sale or othei transfei of such entity or to any purchaser of all oi substantially all of Licensee's assets in the FCC maiket area where the Equipment is located, provided that the successoi is bound by all of the terms and conditions of this Agreement and provides written confirmation to Licensor that it is then fully liable to the Licensoi for compliance with all terms and conditions of this Agreement The Licensee shall reimburse the Licensoi foi all direct and indirect costs and expenses reasonably incurred by the Licensoi in considering a request to transfer 01 assign this Agreement 17 i 1Tabttha\Agreements\MLA agrcernentlVerizon Cominents\Verizon MLA Final 17 20.docx 12 2 Licensee need not own all components of Equipment subject to this Agreement, and may permit its customers to maintain ownership of Equipment components Howevei, (1) all Equipment must be wholly under the control and management of Licensee, and Licensee shall be liable for all acts or omissions, and all harms associated with the Equipment whether the same are its acts 01 omissions, or the acts or omissions of the ownei of the Equipment, and (2) Licensee acknowledges and agrees that no rights of ownership in Equipment by Licensee's customers shall permit any such customer to enter upon, 01 use the any portion of the Municipal Facilities or the Equipment, in any othei mannei or at any othei place, mcluding to add to, or modify or install Equipment, which shall be Licensee's sole responsibility Further, Licensee may not install Equipment it does not own on Municipal Facilities, unless License at all times retains exclusive control over the Equipment and remains responsible foi locating, servicing repairing, maintaining replacing, relocating, or removing the Equipment pursuant to the provisions of this Agreement and Licensee agrees on its own behalf and on behalf of the ownei of the Equipment that Licensoi may treat any Equipment owned by such entity as if it were owned by Licensee for all purposes (including, but not limited to, removal and relocation), and the Equipment may only be used for the purposes and uses permitted herein Such acknowledgement may be provided foi all Equipment on Municipal Facilities, and need not be provided separately, site by site 13 Records, Audits 13 1 Records Required by Code Licensee will maintain complete records pursuant to all applicable Laws 13 2 Additional Records The Licensoi may require such additional reasonable non - confidential information, records, and documents from Licensee from time to time as are appropriate in order to reasonably monitor compliance with the terns of this Agreement 13 3 Production of Records Licensee shall provide such records within twenty (20) business days of a request by the Licensoi foi production of the same, unless additional time is reasonably needed by Licensee, in winch case, Licensee shall have such reasonable time as needed foi the production of the same If any person othei than Licensee maintains records on Licensee's behalf, Licensee shall be responsible foi making such records available to the Licensoi foi auditing purposes pursuant to this Section 13 4 Public Records Licensee acknowledges that information submitted to Licensor may be open to public inspection and copying under the Law 14 Miscellaneous Provisions The provisions that follow shall apply generally to the obligations of the Parties under this Agreement 14 1 Waiver of Breach The waiver by either Party of any breach 01 violation of any provision of this Agreement shall not be deemed to be a waiver or a continuing waiver of any subsequent breach or violation of the same or any othei provision of this Agreement 14 2 Severability of Provisions If any one or more of the provisions of this Agreement shall be held by a court of competent jurisdiction in a final judicial action to be void, voidable, or unenforceable, such provision(s) shall be deemed severable from the remaining provisions of this Agreement and shall not affect the legality, validity, 01 constitutionality of the remaining portions 18 [ 1TabitltalAgreements\MLA agreement\Verizon Comments\Verizon MLA Final 1 7 20.docx of this Agreement Each Party hereby declares that it would have entered into this Agreement and each provision hereof regardless of whether any one of more provisions may be declared illegal, invalid, of unconstitutional 14 3 Contacting Licensee Licensee shall be available to the staff employees of any Licensoi department having jurisdiction over Licensee's activities twenty -foul (24) hours a day, seven days a week, regarding problems 01 complaints resulting from the attachment, installation, operation, maintenance, oi removal of the Equipment 14 4 Governing Law, Jurisdiction This Agreement shall be governed and construed by and in accordance with the laws of the State of California, without reference to its conflicts of law principles If suit is brought by a Party to this Agreenient, the Parties agree that trial of such action shall be vested exclusively in the state courts of San Bernardino County, California or in the United States District Court for the Central District of California 14 5 Change of Law During the Initial Term, in the event that any legislative, regulatory, judicial, or othei action ("New Law") affects the rights 01 obligations of the Parties oi any term of this Agreement, the Parties agree that except as provided in Section 5 2 3, this Agreement shall nonetheless remain in effect until the end of the Initial Term unless mutually agreed to in writing by the Parties, provided howevei, at eithei Party's request, the Parties shall promptly meet and confer and negotiate in good faith a modification of this Agreement consistent with the New Law 14 6 Force Majeure Except foi payment of amounts due, neithei Party shall have any liability foi its delays 01 its failure of performance due to fire, explosion, pest damage, powei failures, strikes 01 labor disputes, acts of God, the elements, war, civil disturbances, acts of civil or military authorities oi the public enemy, inability to secure raw materials, transportation facilities, fuel or energy shortages, or other causes reasonably beyond its control, whethei 01 not similai to the foregoing 14 7 Attorneys' Fees Should any dispute arising out of this Agreement lead to litigation, the prevailing Party shall be entitled to recovei its costs of suit, including (without limitation) reasonable attorneys' fees 14 8 "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 Licensoi makes no representation oi warranty of any land as to the present 01 future condition of of suitability of the Municipal Facilities foi 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 their merchantability or fitness for a particular purpose Licensee is solely responsible for investigation and determination of the condition and suitability of any Municipal Facility foi Licensee's intended use 14 9 Representations and Warranties Each of the Parties to this Agreement represents and warrants that it has the full right, power, legal capacity, and authority to entei into and perform the Party's respective obligations hereundei and that such obligations shall be binding upon such Party without the requirement of the approval or consent of any othei person or entity in connection 19 [ 1TabithalAgreementsVMLA agreement\Venzon CommentsWenzon MLA Final 1 7 20.docx herewith, except as provided m Section 4 2 above This Agieement shall not be revocable 01 terminable except as expressly permitted herein 14 10 Amendment of Agreement This Agreement may not be amended except pursuant to a written instrument signed by both Parties 14 11 Entire Agreement This Agreement contains the entire understanding between the Parties with respect to the subject inattei herein There are no representations, agreements, 01 understandings (whether oral oi written) between oi among the Parties relating to the subject mattei of this Agreement which are not fully expressed herein In witness whereof, and in ordei to bind themselves legally to the terms and conditions of this Agreement, the duly authorized representatives of the Parties have executed this Agreement as of the Effective Date 14 12 Non -Exclusive Remedies No provision in this Agreement made for the purpose of securing enforcement of the terins and conditions of this Agi eement shall be deemed an exclusive remedy or to afford the exclusive procedure for the enforcement of said terms and conditions, but the remedies herein provided are deemed to be cumulative 14 13 No Third -Party Beneficiaries It is not intended by any of the provisions of this Agreement to create foi the public, 01 any member thereof, a third -Party beneficiary right or remedy, or to authorize anyone to maintain a suit foi personal injuries of property damage pursuant to the provisions of this Agreement The duties, obligations, and responsibilities of the Licensor with respect to thud Parties shall remain as imposed by state law 14 14 Construction of Agreement The terms and provisions of this Agreement shall not be construed strictly in favoi of of against either Party, regardless of which Party drafted any of its provisions This Agreement shall be construed in accordance with the fair meaning of its terms 14 15 Effect of Acceptance Licensee (a) accepts and agrees to comply with this Agreement and all Laws, (b) agrees that it will not raise any claim to the contrary 01 allege in any claim of proceeding against the Licensoi that at the time of acceptance of this Agreement any provision, condition oi term of this Agreement was unreasonable 01 arbitrary, or that at the time of the acceptance of this Agreement any such provision, condition 01 term was void or unlawful or that the Licensor had no power or authority to make or enforce any such provision, condition, 01 term 14 16 Time is of the Essence Time is of the essence with regard to the performance of all of Licensee's obligations under this Agreement 14 17 Taxes Licensee shall be responsible foi payment of all fees and taxes charged rn connection with the right, title, and interest rn and construction, installation, maintenance, and operation of Equipment for the purposes set forth herein 14 18 Tax Notice Licensoi hereby provides notice pursuant to California Revenue and Taxation Code Section 107 6, and Licensee acknowledges, that this Agreement may create a possessory interest and Licensee may be subject to property taxes levied on such interest, as described in California Revenue and Taxation Code Section 107 6 Licensee shall pay directly to 20 i 1TabithalAgreements\MLA agreerneni\Verizon Comments\Verizon MLA Final 1 7 20.docx the appropriate authority, when due, all real and personal property taxes, fees, and assessments, assessed against the area licensed and the Equipment 14 19 Counterparts This Agreement (and any Supplement) may be executed in multiple counterparts, including by electronic means, each of which shall be deemed an original, and all such counterparts once assembled together shall constituted one integrated instrument [szgnature page to follow] 21 T ITabnha\Agreements\MLA agrcement\Venzon Comments\Verizon MLA Final 1 7 20.dacx SIGNATURE PAGE TO MUNICIPAL FACILITY LICENSE AGREEMENT IN WITNESS THEREOF, the Parties have caused this Agreement to be legally executed as of the Effective Date City CITY OF REDLANDS By ATTEST e Donaldson, Clerk Paul W Foster, Mayor Licensee LOS ANGELES SMSA LIMITED PARTNERSHIP, D/B/A VERIZON WIRELESS By Airtouch Cellu Its General Part By Name 64-e e-6. 44 nib Title D[f'ec.E-b+'8.601 rey- Exhibits Exhibit A — Supplement Exhibit B — Application 22 I 1TabitkralAgreements\MLA agreement\Verizon Comments\Verizon MLA Final 1 7 20.docx EXHIBIT A FORM OF SUPPLEMENT SUPPLEMENT This Supplement ("Supplement"), is approved by Licensoi this day of 20 (the date executed by all Parties, referred herein as "Supplement Effective Date") 1 Supplement Licensee has submitted an application foi approval to use a Municipal Facility pursuant to that certain Municipal Facility License Agreement between Licensor, , and Licensee, , dated , 20_ ("Agreement") Licensoi has reviewed the Application to Use Municipal Facility and grants approval subject to the terms of this Supplement All of the terms and conditions of the Agreement are incorporated herein by reference and made a part hereof without the necessity of repeating 01 attaching the Agreement In the event of a contradiction, modification, 01 inconsistency between the terms of the Agreement and this Supplement, the terms of this Supplement shall govern Capitalized terms used in this Supplement shall have the same meaning described for them in the Agreement unless otherwise indicated herein IF THE SUPPLEMENT IS NOT COUNTER -SIGNED BY LICENSEE AND RETURNED TO LICENSOR WITHIN 60 DAYS AFTER LICENSOR HAS GRANTED APPROVAL, THE SUPPLEMENT SHALL BE VOID AND OF NO LEGAL EFFECT IF LICENSEE STILL WANTS TO USE THE MUNICIPAL FACILITY, LICENSEE WILL BE REQUIRED TO SUBMIT A NEW APPLICATION AND ASSOCIATED FEES 2 Licensed Area Description and Location Licensee shall have the right to use the space on the specific Municipal Facility (the "Licensed Area") depicted m Attachment 1 attached heieto to install Equipment as further listed in Attachment 2 attached hereto 3 Equipment The Equipment to be installed at the Licensed Area is described in Attachment 2 and depicted in Attachment 1 4 Term The term of this Supplement shall shall commence on the Supplement Effective Date and continue for in the Term of the Agreement 5 License Fee The initial License Fee foi this Supplement shall be as follows per yeas License Fee is subject to annual increase and is payable in accordance with Section 5 of the Agreement 6 Performance Bond The amount of the Performance Bond shall be as provided in Section 8 of the Agreement 7 Miscellaneous [szgnatur e page follows] A- I IN WITNESS THEREOF, the Parties hereto have caused this Supplement to be legally executed in duplicate, effective upon execution by both Parties Accepted Licensor By Name Title Date Licensee By Name Title Date Attachments Attachment 1 — Licensed Area Attachment 2 — Equipment List and Description A-2 Attachment 1 Licensed Area [site plan showing licensed area of applicable Municipal Facility and showing proposed Equipment installation] A-3 Attachment 2 Equipment List and Description A-4 EXHIBIT B APPLICATION TO USE MUNICIPAL FACILITY Applicant Date Licensee ApplicationlLicense# Type of Municipal Facility Alteration Required Small Cell Equipment Heights (provide both (i) the overall height of pole structure with added facilities and (2) the height of individual facilities) Small Cell and Base Equipment Weights Small Cell And Base Equipment Dimensions Location of Any Additional Equipment `street light] [Pole [Installed on Pole specify [traffic light] Reinfoi ceme attachment height, weight `other, specify] nt] and dimensions] [Pole [Installed on/in Ground Replacemen (Vault), specific t] dunensions] [None] [Other Location] [Not Applicable/Needed] APPLICANT SHALL PROVIDE THE FOLLOWING AS APPLICABLE • Site plan and engineering design and specifications foi installation of Equipment, including the location of radios, antenna facilities, transmitters, equipment shelters, cables, conduit, point of demarcation, backhaul solution, electrical distribution panel, electric meter, and electrical conduit and cabling Where applicable, the design documents should include specifications on design, pole modification, and ADA compliance Also indicate whethei [umnetered electricity] is available at the site • Include a load bearing study that determines whether the pole requires reinforcement 01 replacement m ordei to accommodate attachment of proposed Equipment • If the proposed installation will iequne reinforcement 01 replacement of an existing pole, provide applicable design and specification drawings • The numbei, size, type, and proximity to the facilities of all communications conduit(s) and cables to be installed • Description of the utility services required to support the facilities to be installed • List of the contractors and subcontractors, and then contact information, authorized to work on the project • A check for ($ ) for the Application Fee APPLICANT REPRESENTATIVE B-1 PRINT NAME TITLE TELEPHONE EMAIL B-2