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HomeMy WebLinkAboutContracts & Agreements_155-2019MUNICIPAL FACILITY LICENSE AGREEMENT THIS MUNICIPAL FACILITY LICENSE AGREEMENT ("Agreement") is made and entered into this `ITS! day of March, 2020 ("Effective Date"), by and between the City of Redlands, a California mumcipal corporation ("Licensor" or "City"), and New Cingular Wireless PCS, LLC, a Delaware limited liability company ("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 m 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 wilting 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 Defimtions. The following definitions shall apply generally to the provisions of this Agreement 11 "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 12 "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, admiiustrative orders, court orders, or other requirements of the Licensor or other governmental agency having joint or several jurisdiction over the Parties to this Agreement as such laws may be amended from time to time 14 "License Fee" means the compensation paid under any Supplement for use of the Municipal Facilities 1 1 \TabithalAgreements\MLA agreement\MLA Redlands.docx 15 "Make -Ready Work" means the work required on or in a Municipal Facility to create space for the Equipment, and/or replacing and/or reinforcing the existing Municipal Facility to accommodate Equipment including, but not limited to, rearrangement or transfer of existing Equipment and the facilities of other entities, and Municipal Facility relocation and replacement if applicable 16 "Municipal Facilities" means Licensor -owned structures, objects, and equipment in the ROW, including, but not limited to, street lights , traffic control structures, street furniture, or other poles, lighting fixtures, or electrohers located within the ROW, and may refer to such facilities in the singular or plural, as appropriate to the context in which used The term includes Replacement Facilities referred to in Section 4 1 3 17 "Person" means and includes any individual, partnership of any kind, corporation, Limited Liability Company, association, joint venture, or other organization, however formed, as well as trustees, heirs, executors, administrators, or assigns, or any combination of such persons 18 "PUC" means the California Public Utilities Commission 19 "Right(s)-of-Way" or "ROW" means the improved or unimproved surface or subsurface of any public street, or similar public way of any nature, dedicated or improved for vehicular, bicycle, and/or 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 110 "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, and also shall include "Telecommumcations Services" as that term is defined in Umted States Code, 47 U S C 153 (53) or any other use authorized by and licensed to Licensee by the FCC 111 "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 112 "Transfer" means any transaction in which the rights and/or obligations held by Licensee under this Agreement or a Supplement are transferred, directly or indirectly, in whole or in part to a Party other than Licensee 2 Term, Supplement Term 2.1 Term The initial term of this Agreement shall be for a penod 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 Provided that Licensee is not in default of the Agreement or any Supplement following written notice and the expiration of any applicable cure period, this Agreement shall be automatically renewed for two (2) successive five (5) year renewal terms (each, a "Renewal Term"), unless either Party gives the other Party written notice of the intent not to renew this Agreement at least six (6) months prior to the expiration of the Initial Term or any 2 11TabithalAgreements\MLA agreement\MLA - Redlands.docx Renewal Term, as applicable The Initial Term and all Renewal Terms shall be collectively referred to herein as the "Term " Any holding over after the termination or expiration of the Term shall constitute a default by Licensee, notwithstanding that Licensor may elect to accept one or more payments of fees from Licensee after such default occurs 2.2 Supplement Term Unless otherwise specified in a Supplement, the initial term for each particular Supplement shall begin on its effective date ("Supplement Effective Date") and shall end upon the expiration of the Term, unless such individual Supplement is earlier terminated or this Agreement is extended or terminated, as provided for herein (the "Supplement Term") All of the provisions of this Agreement shall be in effect during the Supplement Term The expiration or termination of the Agreement shall immediately terminate all Supplements Any holding over after the expiration of the Supplement Term shall constitute a default by Licensee, notwithstanding that Licensor may elect to accept one or more payments of fees from Licensee after such default occurs 3 Representation Concerning Services, No Authorization to Provide Other Services Licensee represents, warrants, and covenants that its Equipment installed pursuant to this Agreement and each Supplement will be utilized solely for providing the Services, and Licensee is not authorized to and shall not use its Equipment installed on Municipal Facilities to offer or provide any other services not specified herein without Licensor 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 Licensor 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 Agreement and to require the removal of Licensee's Equipment from the ROW and from Municipal Facilities, including the cost of any site remediation, at no cost to the Licensor, without any liability to Licensee related directly or indirectly to such termination. 4 Scope of Agreement Licensee may only use Municipal Facilities pursuant to an approved Supplement Any and all rights expressly granted to Licensee under this Agreement shall be exercised at Licensee's sole cost and expense, and shall be subject to the restrictions set forth herein 4.1 Attachment to Municipal Facilities Subject to the conditions herein, Licensor hereby authorizes and permits Licensee to locate, place, attach, install, operate, maintain, control, remove, reattach, reinstall, relocate, and replace Equipment on identified Municipal Facilities located in the ROW for the purpose of providing Services 411 Licensee will submit to the authorized representative of the Licensor an application substantially in the form of Exhibit "B" ("Application") hereto including a proposed design for any proposed Equipment installations that identifies both the Equipment and the Municipal Facilities Licensee proposes to use One Application is required per Municipal Facility 412 Consistent with applicable law, Licensor may approve, approve with conditions, or disapprove an Application in its sole discretion, provided however, that Licensor shall not unreasonably delay its decision Any approved Equipment shall be included as part of the applicable Supplement 413 If Licensee submits an Application to use a Municipal Facility that is structurally inadequate to accommodate its proposed Equipment, Licensor may permit the 3 I 1TabithalAgreements\MLA agreement\MLA - Redlands.docx replacement of the Municipal Facility (a "Replacement Facility") with one that is acceptable to and approved by the Licensor as part of the applicable Supplement Any Replacement Facility shall be installed and maintained in accordance with Section 6 of this Agreement 4.14 Licensee shall be solely responsible for obtaining and maintaining the provision of electricity to the Equipment, including, but not hmited 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 42 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, or other governmental agency that has regulatory authority over the Licensee's proposed activities involving use of the Municipal Facilities in the ROW 4 3 No Interference Licensee acknowledges and agrees that the primary purpose of the Municipal Facilities is to serve the Licensor and the public. 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 or the existence and operation of any and all public and private rights-of- way, sanitary sewers, water mains, storm drains, gas mains, poles, aerial and underground electrical and telephone wires, traffic signals, communication facilities owned by the Licensor, electroliers, cable television, location monitoring services, public safety and other then existing telecommunications equipment, utilities, or municipal property, without the express written approval of the owner or owners of the affected property or properties, except as permitted by applicable laws or this Agreement If such interference should occur, Licensee shall discontinue using the Equipment, methodology, or technology that causes the interference until such time as Licensee takes corrective measures to eliminate such interference In the event that such interference does not cease promptly, Licensee acknowledges that continuing interference may cause irreparable injury and harni, and therefore, in addition to any other remedies, and without limitation of any other remedy, Licensor shall be entitled to seek temporary and permanent inunctions against the breach of this Subsection Notwithstanding the foregoing, Licensor and Licensee agree to work in good faith with each other and any other affected Party to resolve any interference to or by Licensee 4.4 Permits, Default In addition to any other remedies available hereunder, whenever Licensee is in default of this Agreement or an applicable Supplement, after notice and applicable cure periods, Licensor may deny further encroachment, excavation, or similar permits for work in connection with installations under this Agreement until such time as Licensee cures all of its defaults 4 5 Compliance with Laws Licensee shall comply with all Laws in the exercise and performance of its rights and obligations under this Agreement 4 6 Non -Exclusive Use Rights Notwithstanding any other provision of this Agreement, any and all rights expressly or impliedly granted to Licensee under this Agreement shall be non- exclusive, and shall be subject and subordinate to (1) the continuing right of the Licensor to use, and to allow any other person or persons to use, any and all parts of the ROW or Municipal Facilities, exclusively or concurrently with any other person or persons, and (2) the public easement 4 i 1TabrthalAgreements\MLA agreement'MLA - Rediands.docx for streets and any and all other deeds, easements, dedications, conditions, covenants, restrictions, encumbrances, and claims of title (collectively, "Encumbrances") which may affect the ROW or Municipal Facilities now or at any time during the term of this Agreement, including, without limitation any Encumbrances granted, created, or allowed by the Licensor at any time 5 Compensation Licensee shall be solely responsible for the payment of all fees in connection with Licensee's performance under this Agreement, including, but not limited to, those set forth below 51 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 for additional locations The Licensor shall track its time spent reviewing the Licensee submittals for Licenses, Supplements and associated permit activities described below, and charge its hourly rate for 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 Licensor practice and fee schedule(s) as currently adopted and subsequently amended or replaced, in a manner consistent with applicable law 5 1 1 Permit Fees Licensee shall be responsible for 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/or the other administrative review, consultation, and inspection described in this License, including review of Company submittals 52 License Fees 521 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 52.2, 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 Tem and any renewal terms 522 During any period in which the FCC Declaratory Ruling (FCC 18-133) is in effect and during any period in which the Alternate Licensee Fee provisions m paragraph 5 2 3 are not applicable, the Licensee shall pay the License Fee as described in this paragraph Licensee shall pay to the Licensor the base amount of two hundred and seventy dollars ($270 00) per calendar year for 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 license fee, as adjusted by this Section to reflect the then -current rate (the "License Fee") The License Fee for 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 ofthe Effective Date of 5 I 1Tabrtha\Agreements\MLA agreement\MLA - Redlands.docx the Agreement There shall be no refunds of the License Fee paid due to the termination or expiration of the License for any reason 52.3 Alternate License Fee In the event the relevant provisions of the FCC Declaratory Ruling cease to be effective, (for example, because they are stayed after having gone into effect, or they are vacated or invalidated and have not been replaced by the FCC with an alternative provision setting a specific amount as the License Fee), the Licensee shall automatically and immediately be obligated to pay Alternate License Fee as described in this paragraph and paragraph 5 2 4, if applicable For each location covered by a Supplement, Licensee shall pay to the Licensor the Alternate License Fee m the base amount of one thousand dollars ($1,000) per calendar 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 calendar year of a Supplement for 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 524 The Licensor agrees that irrespective of whether the relevant provisions of the FCC Declaratory Ruling (FCC 18-133) cease to be effective, no Alternate License Fee shall be due for any periods during which the relevant provisions of the FCC Declaratory Ruling were in effect However, if Licensee has paid the License Fee pursuant to the provisions of Section 5 2 2 above for a calendar year, and the relevant provisions of the FCC Declaratory Ruling subsequently cease to be effective during the same calendar year, the Licensee shall pay the difference between the License Fee and the Alternate License Fee for the period from the date the relevant provisions of the FCC Declaratory Ruling ceased to be effective, until 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, or of any default on the part of Licensee in the observance or performance of any of the conditions or covenants of this License, shall not be deemed a waiver 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 for any Supplement shall be prorated to cover the period from the Supplement Effective Date of the applicable Supplement to the next anniversary of the Effective Date of this Agreement Thereafter, the License Fee shall be paid in advance for each Municipal Facility used on or before each anniversary of the Effective Date Acceptance by Licensor of any payment of the License Fee shall not be deemed a waiver by Licensor of any breach of this Agreement occurring prior thereto, nor will the acceptance by Licensor of any such payment preclude Licensor from later establishing that a greater amount was actually due or from 6 i 1TabithalAgreements\MLA agreement\MLA - Aediands.docx collecting any balance that is due As a prerequisite to the payment of License Fee, Licensor hereby agrees to provide to Licensee certain documentation (the "License Documentation") evidencing Licensor's interest in, and right to receive payments under, this Agreement, including without limitation (i) a complete and fully executed Internal Revenue Service Form W-9, or equivalent, in a form acceptable to Licensee, for any Party to whom License Fee payments are to be made pursuant to this Agreement, and (n) other documentation requested by Licensee in Licensee's reasonable discretion From time to time during the Term of this Agreement and within thirty (30) days of a wntten request from Licensee, Licensor agrees to provide updated License Documentation in a form reasonably acceptable to Licensee 5 3 2 The License Fee shall be paid by check made payable to the City and mailed or delivered to the City Clerk's Office, at the address provided for in Section 10 below Theplace and time of payment may be changed at any time by Licensor upon thirty (30) days' wntten 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 for 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 transfer, and if agreed, the Licensor will provide to Licensee bank routing information for such purpose upon request of Licensee 5 4 Delinquent Payment A five percent (5%) late fee shall be added to the License Fee if not received by Licensor within thirty (30) calendar days after 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 All 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 Licensor from pursuing any other or 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 prior written approval of an authonzed representative of the Licensor for each location as evidenced in a signed Supplement Licensee shall keep the Municipal Facilities free and clear from any hens arising out of any work performed, material furnished, or obligations incurred by or for Licensee 6.1 Installation and Operation Within thirty (30) days of the completion of each installation, Licensee shall promptly furnish to Licensor As -Built drawings of the current location of the Equipment in or on the Municipal Facility 62 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) 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 7 11TabithalAgreements\MLA agreement\MLA Redlands.docx Supplements and modifications to existing Equipment shall be subject to then -current design standards in the City of Redlands 63 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 for the appropriate permits and pay any lawful standard and customary permit fees 64 Relocation and Displacement of Equipment 6.4.1 This Agreement creates no right for Licensee to receive any relocation assistance or payment for any reason under the Relocation Assistance Act, the Uniform Relocation Assistance Act, or under any existing or future law upon any termination of tenancy 6.42 Licensee understands and acknowledges that Licensor may require Licensee to relocate one or more of its Equipment installations Licensee shall, at Licensor's direction, and upon one hundred eighty (180) days' prior written notice to Licensee, relocate such Equipment at Licensee's sole cost and expense whenever Licensor reasonably determines that the relocation is needed for any of the following purposes (a) if required for the construction, modification, completion, repair, relocation, or maintenance of a Licensor or other public agency project, (b) because the Equipment is interfering with or adversely affecting proper operation of Licensor - owned Municipal Facilities, or (c) to protect or preserve the public health or safety, including, but not limited to, the safe or efficient use of rights-of-way In any such case, Licensor shall use reasonable efforts to afford Licensee a reasonably equivalent alternate location If Licensee shall fail to relocate any Equipment as requested by the Licensor within the prescribed time, Licensor shall be entitled to remove or relocate the Equipment at Licensee's sole cost and expense, without further notice to Licensee Licensee shall pay to the Licensor actual costs and expenses incurred by the Licensor in performing any removal work and any storage of Licensee's property after removal within sixty (60) days of the date of a written demand for and evidence substantiatmg this payment from the Licensor 64.3 To the extent the Licensor has actual knowledge thereof, the Licensor will attempt promptly to inform Licensee of the displacement or removal of any Municipal Facility on which any Equipment is located 6.5 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 Municipal Facility available for use in accordance with and subject to the terms and conditions of this Agreement, Licensor may require Licensee to submit an application and/or enter into a new Supplement for the prospective relocation site Licensee shall be liable for all costs of relocation, including any costs that Licensor may incur 8 11TabithalAgreements\MLA agrcement\MLA Redlands.docx 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 or 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 for directly paying such other Person for 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 Licensor'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 for any third -party or Licensor costs necessary to correct third Party or Licensor attachments that are non-compliant at the time of Licensee' s Application 6.62 Notification of Completion of Installation Within twenty (20) business days of completing the installation of Equipment on each Municipal Facility, Licensee shall notify Licensor of such completion 67 Replacement Facilities 6.7.1 Ownership of Replacement Facilities Licensor shall retain ownership of any approved Replacement Facility Licensor acknowledges that Licensee shall have the exclusive right to install, operate, maintain, modify, repair, and replace its Replacement Facilities, subject to any aesthetic or other applicable requirements of the Licensor Licensor acknowledges and agrees that Licensee may enter into subleases, subhcenses, or other use agreements with one or more third Party communications or other utility providers for 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 or approval requirements of the Licensor 6.72 Replacement Facility Installation. If Licensee is performing Make -Ready Work, Licensee shall be responsible for providing and installing any approved Replacement Facility. 68 Damage, Maintenance & Repair 6X1 Licensee shall, at its sole cost and expense and to the satisfaction of the Licensor (a) remove, repair, or replace any of its Equipment that is damaged or becomes detached, and/or (b) repair any damage to ROW, Municipal Facilities, or other property, whether public or private, caused by Licensee, its agents, employees, or contractors in their actions relating to attachment, operation, repair, or maintenance of Equipment Licensee shall complete such removal, repair, or replacement within thirty (30) days' of wntten notice 9 1 \TabihalAgreements\MLA agreement\MLA Rcdlands.docx 682 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 Licensor by email at jdonaldson@7a cityofredlands org before beginning the work 6.83 If Licensee does not remove, repair, replace, or otherwise remediate such damage to its Equipment, Replacement Facility, or to the ROW, Municipal Facilities, or other property as required in this Section 6 8, the Licensor shall have the option to perform or cause to be performed such removal, repair, or replacement on behalf of Licensee and shall charge Licensee for the actual costs incurred by the Licensor If such damage causes a public health or safety emergency, as reasonably determined by Licensor, Licensor may immediately perform reasonable and necessary repair or removal work on behalf of Licensee and will notify Licensee as soon as practicable, provided, however, that such repair work shall not include any technical work on Licensee's Equipment Licensor shall have no obligation 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 Licensor pursuant to this Section, Licensee shall, within sixty (60) days of such receipt, reimburse the Licensor for such costs 685 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 other submittal requirements, and if requested by Licensor, Licensee shall provide "load" (structural) calculations for all Equipment changes. In addition to the foregoing, Licensee shall comply with any other applicable City permitting or approval process for the Equipment change Notwithstanding the foregoing, Licensor's approval for modifications or an amendment to the applicable Supplement shall not be required in connection with routine maintenance or modifications that consist of upgrades or replacement of "like -kind" Equipment which is substantially similar (or smaller in size) in appearance, dimensions, weight, and RF emissions to the then existing and approved Equipment 610 Unauthorized Equipment If Licensor discovers any Equipment has been installed on Municipal Facilities without authorization pursuant to a Supplement, subject to the cure period term provided in Section 11 below, Licensor may send an invoice to Licensee for a sum equal to three (3) times 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 for the unauthorized Equipment, or (n) produce documentation showing Licensor's prior approval of the Equipment identified in the invoice If, in accordance with this Section, Licensee fails to pay all fees and submit the Application or submit documentation satisfactorily showing Licensor's prior approval within sixty (60) days of Licensor's invoice, then Licensor may remove the unauthorized Equipment at Licensee's expense If Licensor removes such 10 I \Tabitha\Agreements\MLA agreement\MLA Redlands.docx unauthorized Equipment, then such Equipment shall become the property of Licensor, who shall have sole rights over such Equipment's disposition Licensor's removal of unauthorized Equipment shall not release Licensee from its obligation to pay those invoiced fees accruing pursuant to this Section 6.11 Termination of a Supplement 6.111 Licensee shall have the nght to terminate any Supplement on thirty (30) days' notice to Licensor In the event of such termination, removal of Equipment associated with the terminated Supplement shall be governed by Section 6 12 below and Licensor shall retain any License Fee paid, without refund or setoff 6.112 Licensor shall have the nght to terminate any Supplement in any of the following circumstances if Licensor determines the covered Equipment has been inoperative, or abandoned, for one hundred and twenty (120) consecutive days, if Licensee's operation under a particular Supplement is deemed by Licensor to endanger or pose a threat to the public health, safety, or welfare or interfere with the normal day-to-day operation of any Licensor department or service; or Licensor is mandated by law, a court order or decision, or the federal, state, or local government to take certain actions that will cause or require the removal of Equipment Licensor shall provide written notice to Licensee regarding its intent to terminate the apphcable Supplement pursuant to this Section, after 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 other time penod as previously contemplated, Licensor may then terminate the applicable Supplement upon written notice to Licensee 612 Removal of Equipment Within sixty (60) days after the expiration or earlier termination of a Supplement, Licensee shall promptly, safely, and carefully remove the Equipment covered by the terminated or expired Supplement from the applicable Municipal Facility and ROW Within sixty (60) days after the expiration or earlier termination of this Agreement, Licensee shall promptly, safely, and carefully remove all Equipment from all apphcable Municipal Facilities and ROW If Licensee fails to complete removal work pursuant to this Section, then the Licensor, upon written notice to Licensee, shall have the nght at the Licensor's sole election, but not the obligation, to perform this removal work and charge Licensee for the actual costs and expenses, including, without limitation, reasonable administrative costs Licensee shall pay to the Licensor actual costs and expenses incurred by the Licensor in performing any removal work and any storage of Licensee's property after removal within 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 Licensor receives the reimbursement payment from Licensee for the removal work performed by the Licensor, the Licensor shall promptly make available to Licensee the property belonging to Licensee and removed by the Licensor pursuant to this Section at no additional liability to the Licensor 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, or if Licensee does not remove Licensee's property within thirty (30) days of such property having been made available by the Licensor after Licensee's payment of removal reimbursement as described above, any items of Licensee's property remauung on or about the ROW or Municipal Facilities, or stored by the Licensor after the Licensor's removal thereof, may, at the Licensor's option, be deemed abandoned and the Licensor may dispose of such property in any 11 T ITabithalAgrcements\MLA agreement\MLA Redlands.docx manner allowed for by Law Alternatively, the Licensor may elect to take title to the abandoned property, and Licensee shall submit to the Licensor an instrument satisfactory to the Licensor transferring to the Licensor the ownership of such property The provisions of this Section shall survive the expiration or earlier termination of this Agreement 613 Risk of Loss Licensee acknowledges and agrees that Licensee, subject to the terms 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 Licensor shall not be liable for any cost of replacement or of repair to damaged Equipment, including, without limitation, damage caused by the Licensor's removal of the Equipment, except to the extent that such loss or damage was caused by the willful misconduct or negligence of the Licensor, including, without limitation, each of its elected officials, department directors, managers, officers, agents, employees, and contractors, subject to the limitation of liability provided in Section 7 3 below 614 Hazardous Substances Licensee agrees that Licensee, its contractors, subcontractors, and agents, will not use, generate, store, produce, transport, or dispose any Hazardous Substance on, under, about or within the area of a ROW or Municipal Facility in violation of any Law Except to the extent of the negligence or intentional misconduct of Licensor, Licensee will pay, indemnify, defend, and hold Licensor harmless against and to the extent of any loss or liability incurred by reason of any Hazardous Substance produced, disposed of, or used by Licensee pursuant to this Agreement Licensee will ensure that any on-site or off-site storage, treatment, transportation, disposal or other handling of any Hazardous Substance will be performed by persons who are properly trained, authorized, licensed and otherwise permitted to perform those services 615 Inspection Licensor may conduct inspections of Equipment on Municipal Facilities Except in circumstances where Licensor 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 determmmg if a safety violation of which Licensor has provided notice to Licensee has been corrected by Licensee 616 Access Prior to Licensee accessing its Equipment for non -emergency purposes, Licensee shall provide email notice, at least twenty-four (24) hours in advance, to the Licensor 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, liabilities, fines, charges, penalties, administrative and judicial proceedings and orders, judgments, and all costs and expenses incurred in connection therewith, including reasonable attorney's fees and costs of defense (collectively, the "Losses") to the extent arising from, resulting from, or caused by Licensee's activities undertaken pursuant to this Agreement, including, without limitation, the construction, design, use, or operation of the Equipment or provision of the Services, except to the extent arising from or caused by the negligence or willful misconduct of the Licensor, its council 12 I 1TabithalAgreements\MLA agreement\MLA - Redlands.docx members, officers, employees, agents, or contractors 71 Waiver of Claims Licensee waives any and all claims, demands, causes of action, and rights it may assert against the Licensor on account of any loss, damage, or injury to any Equipment or any loss or degradation of the Services as a result of any event or occurrence which is beyond the reasonable control of the Licensor 72 Waiver of Subrogation Licensee hereby waives and releases any and all rights of action for negligence, except gross negligence and wanton or willful acts or omissions, against Licensor which may hereafter arise on account of damage to Equipment, Municipal Facilities, or to the ROW, regardless of whether or not, or in what amounts, such insurance is now or hereafter carried by the Licensee This waiver and release shall apply between the Parties and shall also apply to any claims under or through either Party as a result of any asserted right of subrogation All such policies of insurance obtained by Licensee concerning the Municipal Facilities, Equipment, or the ROW shall waive the insurer's right of subrogation against the Licensor 7 3 Limitation on Consequential Damages Neither Party shall be liable to the other, or any of their respective agents, representatives, employees for any lost revenue, lost profits, loss of technology, rights or services, incidental, punitive, indirect, special or consequential damages, loss of data, or interruption or loss of use of service, even if advised of the possibility of such damages, whether under theory of contract, tort (includmg 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 81 Performance Bond Prior to the commencement of any work under this Agreement, Licensee must provide a performance bond running to the Licensor according to this Section The amount of the bond shall be based on the number of attachments in the following amounts. Number of Municipal Facilities Required Security 1-50 $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 terms and conditions of this Agreement and upon the further condition that, if Licensee fails to comply with any terms or conditions governing this Agreement, there shall be recoverable jointly and severally from the principal and surety of the bond any damage or loss suffered by the Licensor as a result, including, without limitation, the full amount of any compensation, indemnification, or costs of removal or abandonment of Licensee's property, plus costs and reasonable attorneys' fees up to the full amount of the performance bond Licensee shall keep the performance bond in place during the term of this Agreement 82 Assessment of the Bond The performance bond may be assessed by the Licensor 13 1•ITabithalAgreements\MLA agreement\MLA Redlands.docx for any failure by Licensee to pay Licensor an amount owed under this Agreement beyond any applicable notice and cure periods, including, but not limited to (a) Reimbursement of costs borne by the Licensor to correct violations of the Agreement not corrected by Licensee, after Licensor provides notice and a reasonable opportunity to cure such violations This shall include, without limitation, removal of Equipment. (b) Providing monetary remedies or satisfying damages assessed against Licensee due to a matenal 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 after written notice from the Licensor that any amount has been recovered from the performance bond Failure to restore the bond to its full amount within sixty (60) days will constitute a material breach of this Agreement Licensee will be relieved of the foregoing requirement to replenish the bond during the pendency of an appeal from the Licensor's decision to draw on the performance bond 8.4 Required Endorsement The performance bond is subject to the approval of the Licensor and must contain the following endorsement This bond may not be canceled until sixty (60) days after receipt by the Licensor, by registered mail, return receipt requested, of a written notice of intent to cancel or not to renew " 8.5 Reservation of Licensor Rights The nghts reserved by Licensor with respect to the performance bond are in addition to all other rights and remedies Licensor may have under this Agreement or any other Law 8.6 Admitted Surety Insurer The surety supplying the bond shall be an "admitted surety insurer", as defined in California Code of Civil Procedure Section 995 120 and authorized to do business in the State of California 87 Cash Deposit In lieu of obtaining a performance bond, Licensee shall have the right to instead deposit a cash deposit with Licensor secunng Licensee's obligations under this Agreement 9 Insurance. Licensee shall obtain and maintain at all times during the Term (a) Commercial General Liability insurance written on ISO form CG 00 01 or its equivalent with a limit of One Million Dollars ($1,000,000 00) per occurrence for bodily injury and property damage and Two Million 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 limit of One Million Dollars ($1,000,000 00) each accident for bodily injury and property damage The required insurance policies shall include the Licensor, its elected/appointed officials, commission members, officers, representatives, agents, and employees as additional insured as respects any covered liability caused, in whole or in part, by Licensee's performance of work under this Agreement 14 11TabithalAgreements\MLA agreement\MLA - Redlands.docx Coverage shall be in an occurrence form and in accordance with the limits and provisions specified herein Upon receipt of notice from its insurer, Licensee shall use its best efforts to provide the Licensor with thirty (30) days prior written notice of cancellation 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, for any reason, to obtain or maintain insurance coverage required by this Agreement or fails to furnish certificates of insurance as detailed in Section 9 1, such failure shall be deemed a material breach of this Agreement, giving Licensor, in its discretion, the option to terminate this Agreement 91 Filing of Certificates and Endorsements Prior to the commencement of any work pursuant to this Agreement, Licensee shall file with the Licensor the required certificate(s) of insurance with blanket additional insured endorsements, which shall evidence the following (a) the policy number, name of insurance company, name and address of the agent or authorized representative, name and address of insured, policy expiration date, and specific coverage amounts; (b) that Licensee's Commercial General Liability insurance policy is primary as respects any other valid or collectible insurance that the Licensor may possess, including any self-insured retentions the Licensor may have, and any other insurance the Licensor does possess shall be considered excess insurance only and shall not be required to contribute with this insurance, and (c) that Licensee's Commercial General Liability insurance policy waives any right of recovery the insurance company may have against the Licensor The certificate(s) of insurance with endorsements and notices shall be mailed to the Licensor at the address specified in Section 10 below 92 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 of One Million Dollars ($1,000,000 00) per accident, per disease per employee, per disease policy limit and shall furnish the Licensor with a certificate showing proof of such coverage 93 Insurer Criteria Any insurance provider 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 " 9.4 Severability of Interest "Severability of interest" or "separation of insureds" clauses shall be made a part of the Commercial General Liability and Commercial Automobile Liability policies 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 under this Agreement to include Licensor as an additional insured, the following conditions apply (i) Licensor shall promptly and no later than thirty 15 I.1TabithalAgree►nentslNMLA agreement\NMLA Redlands.docx (30) days after notice thereof provide Licensee with written notice of any claim, demand, lawsuit, or the like for 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, or the like, (ii) 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 in the defense of the claim, demand, lawsuit, or the like 10 Notices 101 Method and Delivery of Notices All notices pursuant to this Agreement shall 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 service, addressed as follows If to the Licensor If to the Licensee with a copy to City of Redlands 35 Cajon Street P 0 Box 3005 (mailing) Redlands, CA 92373 Attn City Clerk Email jdonaldson@cityofredlands org New Cmgular Wireless PCS, LLC Attn Tower Asset Group — Lease Administration Re Wireless Installation on Public Structures (City of Redlands, CA) 1025 Lenox Park Blvd NE 3rd Floor Atlanta, GA 30319 New Cingular Wireless PCS, LLC Attn AT&T Legal Dept - Network Operations Re Wireless Installation on Public Structures (City of Redlands, CA) 208 S Akard Street Dallas, TX 75202-4206 102 Date of Notices, Changing Notice Address Notices shall be deemed given upon receipt in the case of personal delivery, three days after deposit in the mail, or the next business day in the case of overnight delivery, Either Party may from time to time designate any other address for tins purpose by written notice to the other Party delivered in the manner set forth in this Section. 11 Default, Cure, Remedies 11 1 Licensee Default and Notification This Agreement is granted upon each and every condition herein, and each of the conditions is a material and essential condition to the granting of 16 11Tabitha\Agreements\MLA agreement\MLA Redlands.docx this Agreement Except for causes beyond the reasonable control of Licensee, if Licensee fails to comply with any of the conditions and obligations imposed hereunder, and if such failure continues for more than ninety (90) days after written demand from the Licensor to commence the correction of such noncompliance on the part of Licensee, the Licensor shall have the right to revoke and terminate this Agreement by written notice to Licensee, if such failure is in relation to the Agreement as a whole, or any individual Supplement, if such failure is in connection solely with such Supplement, in addition to any other nghts or remedies set forth in this Agreement or provided by law 112 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 for 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 cure, and (c) Licensee provides a timeline to complete its cure efforts and responds within forty-eight (48) hours of any status request by Licensor Licensor may not maintain any action or effect any remedies for default against Licensee, unless and until Licensee has failed to cure the breach within the time penods provided in these Sections 111 and 112 11.3 Licensor Default If Licensor breaches any covenant or obligation of Licensor under this Agreement in any manner, and if Licensor fails to commence to cure such breach within 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 121 Licensee shall not assign this Agreement or its nghts or obhgations to any firm, corporation, individual, or other entity, without the prior written consent of the other Party, which consent shall not be unreasonably withheld Notwithstanding the foregoing, upon thirty (30) days' written notice, either Party may assign this Agreement or its rights or obligations to (a) any entity that controls, Licensee may assign or transfer the rights and privileges granted herein to any parent or subsidiary of Licensee, to an entity with or into which Licensee may merge or consolidate, to an entity which Licensee is controlled by, or is under common control of a Party, or (b) in connection with the sale or other transfer of such entity or to any purchaser of all or substantially all of Licensee's assets in the FCC market area where the Equipment is located with prior notice to Licensor but without the requirement for Licensor approval, so long as the successor provides wntten confirmation to Licensor that it is then fully hable to the Licensor for compliance with all terms and conditions of this Agreement The Licensee shall reimburse the Licensor for all direct and indirect costs and expenses reasonably incurred by the Licensor in considering a request to transfer or assign this Agreement 122 Licensee need not own all components of Equipment subject to this Agreement, and may permit its customers to maintain ownership of Equipment components However, (1) all Equipment must be wholly under the control and management of Licensee, and Licensee shall be liable for all acts or omissions, and all harms associated with the Equipment whether the same are 17 11TabithalAgreements\MLA agreement\MLA Redlands.docx its acts or omissions, or the acts or omissions of the owner of the Equipment, and (2) Licensee acknowledges and agrees that no rights of ownership in Equipment by Licensee's customers shall permit any such customer to enter upon, or use the any portion of the Municipal Facilities or the Equipment, in any other manner or at any other place, including to add to, or modify or install Equipment, which shall be Licensee's sole responsibility Further, Licensee may not install Equipment it does not own on Municipal Facilities, unless License at all times retains exclusive control over the Equipment and remains responsible for locating, servicing repairing,mamtaming 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 owner of the Equipment that Licensor may treat any Equipment owned by such entity as if it were owned by Licensee for all purposes (including, but not limited to, removal and relocation), and the Equipment may only be used for the purposes and uses permitted herein Such acknowledgement may be provided for all Equipment on Municipal Facilities, and need not be provided separately, site by site. 13 Records, Audits 131 Records Required by Code Licensee will maintain complete records pursuant to all applicable Laws 132 Additional Records The Licensor may require such additional reasonable non - confidential information, records, and documents from Licensee from time to time as are appropriate m order to reasonably monitor compliance with the terms of this Agreement 13 3 Production of Records Licensee shall provide such records within twenty (20) business days of a request by the Licensor for production of the same, unless additional time is reasonably needed by Licensee, in which case, Licensee shall have such reasonable time as needed for the production of the same. If any person other than Licensee maintains records on Licensee' s behalf, Licensee shall be responsible for making such records available to the Licensor for auditing purposes pursuant to this Section 13.4 Public Records Licensee acknowledges that information submitted to Licensor may be open to pubhc 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 141 Waiver of Breach The waiver by either Party of any breach or violation of any provision of this Agreement shall not be deemed to be a waiver or a continuing waiver of any subsequent breach or violation of the same or any other provision of this Agreement 14.2 Severability of Provisions If any one or more of the provisions of this Agreement shall be held by a court of competent jurisdiction m 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, or constitutionality of the remainmg portions of this Agreement Each Party hereby declares that it would have entered into this Agreement and each provision hereof regardless of whether any one or more provisions may be declared illegal, invalid, or unconstitutional 18 i\TabithalAgreements\MLA agreernent\MLA - Redlands.docx 143 Contacting Licensee Licensee shall be available to the staff employees of any Licensor department having jurisdiction over Licensee's activities twenty-four (24) hours a day, seven days a week, regarding problems or complaints resulting from the attachment, installation, operation, maintenance, or removal of the Equipment 144 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 Agreement, 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 other action ("New Law") affects the rights or obligations of the Parties or any term of the Agreement, the Parties agree that the Agreement shall nonetheless remain in effect until the end of the Initial Term unless mutually agreed to in writing by the Parties 14.6 Force Majeure Except for payment of amounts due, neither Party shall have any liability for its delays or its failure of performance due to fire, explosion, pest damage, power failures, strikes or labor disputes, acts of God, the elements, war, civil disturbances, acts of civil or military authorities or the public enemy, inability to secure raw materials, transportation facilities, fuel or energy shortages, or other causes reasonably beyond its control, whether or not similar to the foregoing 14 7 Attorneys' Fees Should any dispute ansing out of this Agreement lead to litigation, the prevailing Party shall be entitled to recover its costs of suit, including (without limitation) reasonable attorneys' fees 14 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 Licensor 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 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 for 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 enter into and perform the Party's respective obligations hereunder and that such obligations shall be binding upon such Party without the requirement of the approval or consent of any other person or entity in connection herewith, except as provided in Section 4 2 above This Agreement shall not be revocable or terminable except as expressly permitted herein 1410 Amendment of Agreement This Agreement may not be amended except pursuant to a wntten instrument signed by both Parties 1411 Entire Agreement This Agreement contains the entire understanding between the Parties with respect to the subject matter herein There are no representations, agreements, or 19 h\TabithalAgreements\MLA agreement\MLA Redlands.docx understandings (whether oral or written) between or among the Parties relating to the subject matter of this Agreement which are not fully expressed herein In witness whereof, and in order 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 1412 Non -Exclusive Remedies No provision in this Agreement made for the purpose of securing enforcement of the terms and conditions of this Agreement shall be deemed an exclusive remedy or to afford the exclusive procedure for the enforcement of said terms and conditions, but the remedies herein provided are deemed to be cumulative 14.13 No Third -Party Beneficiaries It is not intended by any of the provisions of this Agreement to create for the public, or any member thereof, a third -Party beneficiary right or remedy, or to authorize anyone to maintain a suit for personal injuries or property damage pursuant to the provisions of this Agreement The duties, obligations, and responsibilities of the Licensor with respect to third Parties shall remain as imposed by state law 1414 Construction of Agreement The terms and provisions of this Agreement shall not be construed strictly in favor of or against either Party, regardless of which Party drafted any of its provisions This Agreement shall be construed in accordance with the fair meaning of its terms 1415 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 or allege in any claim or proceeding against the Licensor that at the time of acceptance of this Agreement any provision, condition or term of this Agreement was unreasonable or arbitrary, or that at the time of the acceptance of this Agreement any such provision, condition or term was void or unlawful or that the Licensor had no power or authority to make or enforce any such provision, condition, or term 1416 Time is of the Essence Time is of the essence with regard to the performance of all of Licensee' s obligations under this Agreement 1417 Taxes Licensee shall be responsible for payment of all fees and taxes charged in connection with the nght, title, and interest in and construction, installation, maintenance, and operation of Equipment for the purposes set forth herein 1418 Tax Notice Licensor hereby provides notice pursuant to California Revenue and Taxation Code Section 107 6, and Licensee acknowledges, that this Agreement may create a possessory interest and Licensee may be subject to property taxes levied on such interest, as described in California Revenue and Taxation Code Section 107 6 Licensee shall pay directly to the appropriate authority, when due, all real and personal property taxes, fees, and assessments, assessed against the area licensed and the Equipment 1419 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 [signature page to follow] 20 I' 1Tabitha\Agreements\MLA agreement\MLA Redlands.docx 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 ATTEST e Donaldson, Clerk Exhibits Exhibit A — Supplement Exhibit B — Application 11Tabitha1Agreements\MLA agreement\MLA Redlands.docx City CITY OF REDLANDS By Paul W Foster, Mayor Licensee NEW CINGULAR WIRELESS PCS, LLC By AT&T Mobility Corporation Its Manager By Name Christopher Edwards Title Director Access -Construction & Engineering 21 EXHIBIT A FORM OF SUPPLEMENT SUPPLEMENT This Supplement ("Supplement"), is approved by Licensor this day of 20 (the date executed by all Parties, referred herein as "Supplement Effective Date") 1 Supplement Licensee has submitted an application for approval to use a Municipal Facility pursuant to that certain Municipal Facility License Agreement between Licensor, City of Redlands, a California municipal corporation, and Licensee, New Cingular Wireless PCS, LLC, a Delaware limited liability company, dated March , 2020 ("Agreement") Licensor has reviewed the Application to Use Mumcipal Facility and grants approval subject to the terms of tins 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 or attaching the Agreement In the event of a contradiction, modification, or inconsistency between the terms of the Agreement and this Supplement, the terms of this Supplement shall govern Capitalized terms used in this Supplement shall have the same meaning described for them in the Agreement unless otherwise indicated herein IF THE SUPPLEMENT IS NOT COUNTER -SIGNED BY LICENSEE AND RETURNED TO LICENSOR WITHIN 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 Descnption and Location Licensee shall have the nght to use the space on the specific Municipal Facility (the "Licensed Area") depicted in Attachment 1 attached hereto to install Equipment as further listed m Attachment 2 attached hereto 3 Equipment The Equipment to be installed at the Licensed Area is described in Attachment 2 and depicted an Attachment 1 4 Tenn The term of this Supplement shall commence on the Supplement Effective Date and continue for in the Term of the Agreement 5 License Fee The initial License Fee for this Supplement shall be as follows per year 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 7 Miscellaneous [signature page follows] A-1 IN WITNESS THEREOF, the Parties hereto have caused this Supplement to be legally executed in duplicate, effective upon execution by both Parties Accepted Attachments Attachment 1 — Attachment 2 — Licensor CITY OF REDLANDS By Name Title Date Licensee NEW CINGULAR WIRELESS PCS, LLC By. AT&T Mobility Corporation Its Manager By Name Title Date Licensed Area 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 New Cingular Wireless PCS, Licensee LLC, dba AT&T Mobility Date Application/License # Type of Municipal Facility Alteration Required Small Cell Equipment Heights (provide both (1) 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 [streetlight] [Pole [Installed on Pole, [traffic light] Reinforcement] spec fy attachment [other specify] [Pole Replacement] height, weight and [None] dimensions] [Installed on/in Ground (Vault) specific dimensions] [Other Location] [Not Applicable/Needed] APPLICANT SHALL PROVIDE THE FOLLOWING AS APPLICABLE • Site plan and engineering design and specifications for installation 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 whether [unmetered electricity] is available at the site • Include a load bearing study that determines whether the pole requires reinforcement or replacement in order to accommodate attachment of proposed Equipment • If the proposed installation will require reinforcement or replacement of an existing pole, provide applicable design and specification drawings • The number, size, type, and proximity to the facilities of all communications conduit(s) and cables to be installed • Description of the utility services required to support the facilities to be installed • List of the contractors and subcontractors, and their contact mformation, authorized to work on the project • A check for ($ ) for the ApplicationFee APPLICANT REPRESENTATIVE PRINT NAME TITLE TELEPHONE EMAIL B-1