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HomeMy WebLinkAboutItem 12 - Municipal Facilities License Agreement with Los Angeles SMSAPublic Works Agency www.santa-ana.org/public-works Item # 12 City of Santa Ana 20 Civic Center Plaza, Santa Ana, CA 92701 Staff Report December 3, 2024 TOPIC: Municipal Facilities License Agreement AGENDA TITLE Municipal Facilities License Agreement with Los Angeles SMSA Limited Partnership, dba Verizon Wireless, a California Limited Partnership RECOMMENDED ACTION Authorize the City Manager to execute an agreement with Los Angeles SMSA Limited Partnership, dba Verizon Wireless, a California limited partnership, for the use of street lights for the installation of wireless devices other than small cell for a ten-year period, with provisions for two automatic five-year extensions (Agreement No. A-2024-XXX). GOVERNMENT CODE 484308 APPLIES: Yes DISCUSSION The Federal Communications Commission (FCC) and the Santa Ana Municipal Code (SAMC) establish rules and regulations for telecommunications companies installing, modifying, and operating wireless communication network devices on City -owned facilities within the public right-of-way (primarily street light poles). Wireless communications network devices are used by telecommunication companies to improve service area coverage without the need for new traditional large wireless towers and antennas. The City has an existing agreement with Los Angeles SMSA Limited Partnership (Verizon Wireless) for the installation of devices that meet the FCC definition as "small -cell" wireless devices. The proposed agreement will allow for the installation of other types of wireless devices with similar terms and conditions. Telecommunications companies are required to enter into City Council -approved master Municipal Facilities License Agreements (MFLA) that outline the general terms and conditions for installing, modifying, and operating equipment on City -owned facilities in the public right-of-way. The MFLA allows for subsequent, administratively approved, individual site specific license agreements (supplemental license agreements) which specify the details for equipment at specific locations. Typically, telecommunication companies' network devices exist on City street light poles. If approved, a site -specific license is issued for the proposed location and fees collected for the use of a City - owned facility within the public right-of-way. The proposed agreement will allow Verizon Wireless to install and maintain non -small -cell wireless devices on City -owned street lights in accordance to the provisions in the agreement, the site -specific license, and in Municipal Facilities License Agreement December 3, 2024 Page 2 accordance to the previously established City's Wireless Communication Installation Guidelines. Non -small -cell and small -cell communication devices have a similar appearance and dimensions, making them virtually indistinguishable to the average person. However, they differ significantly in their communication technology. The City generates revenue for each site license application and executed agreement. Under the proposed MFLA an initial application fee of $1,964 will be collected for each licensed location during FY 24-2025, after which the fee will be adjusted based on the City Council -adopted Miscellaneous Fee Schedule for future fiscal years. Additionally, an annual license fee of $1,500 shall apply and be subject to an annual increase of 3% applied on each anniversary of the effective date, December 3. Staff recommends the approval of the Municipal Facilities License Agreement with Verizon Wireless (Exhibit 1), to allow for this company to install and modify non -small - cell wireless devices as allowed by the FCC and as regulated by the SAMC. ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT The agreement will commence on December 3, 2024 and expire December 2, 2034. Revenues from the agreement will be deposited in the accounts listed below and will be budgeted for expenditure in future fiscal years. Fiscal Accounting Unit Fund Accounting Unit, Amount Year — Account No. Description Account Description Public Works Revenues, 2024-25 01117002-53741 General Fund Small Cell Compliance $292 Inspection Fee Public Works Revenues, 2024-25 01117002-53752 General Fund Small Cell Initial License $1,500 Fee Public Works- Public Works-Admin 2024-25 10117002-53740 Admin & Services Revenues, $1,350 Planning Small Cell App Fee for City Facilities Public Works- Public Works-Admin 2024-25 10117002-56305 Admin & Services Revenues, $1,964 Planning Engineering Service Charge Public Works Revenues, 2025-26 01117002-53741 General Fund Small Cell Compliance $292 Inspection Fee Municipal Facilities License Agreement December 3, 2024 Page 3 Public Works Revenues, 2025-26 01117002-53752 General Fund Small Cell Initial License $1,500 Fee Public Works Revenues, 2026-27 01117002-53741 General Fund Small Cell Compliance $292 Inspection Fee Public Works Revenues, 2026-27 01117002-53752 General Fund Small Cell Initial License $1,500 Fee Public Works Revenues, 2027-28 01117002-53741 General Fund Small Cell Compliance $292 Inspection Fee Public Works Revenues, 2027-28 01117002-53752 General Fund Small Cell Initial License $1,500 Fee Public Works Revenues, 2028-29 01117002-53741 General Fund Small Cell Compliance $292 Inspection Fee Public Works Revenues, 2028-29 01117002-53752 General Fund Small Cell Initial License $1,500 Fee Public Works Revenues, 2029-30 01117002-53741 General Fund Small Cell Compliance $292 Inspection Fee Public Works Revenues, 2029-30 01117002-53752 General Fund Small Cell Initial License $1,500 Fee Public Works Revenues, 2030-31 01117002-53741 General Fund Small Cell Compliance $292 Ins ection Fee Public Works Revenues, 2030-31 01117002-53752 General Fund Small Cell Initial License $1,500 Fee Public Works Revenues, 2031-32 01117002-53741 General Fund Small Cell Compliance $292 Ins ection Fee Public Works Revenues, 2031-32 01117002-53752 General Fund Small Cell Initial License $1,500 Fee Public Works Revenues, 2032-33 01117002-53741 General Fund Small Cell Compliance $292 Ins ection Fee Municipal Facilities License Agreement December 3, 2024 Page 4 Public Works Revenues, 2032-33 01117002-53752 General Fund Small Cell Initial License $1,500 Fee Public Works Revenues, 2033-34 01117002-53741 General Fund Small Cell Compliance $292 Inspection Fee Public Works Revenues, 2033-34 01117002-53752 General Fund Small Cell Initial License $1,500 Fee TOTAL $21,234 EXHIBIT(S): 1. Municipal Facilities License Agreement with Los Angeles SMSA Limited Partnership, dba Verizon Wireless, a California limited partnership Submitted By: Nabil Saba, P. E. Executive Director — Public Works Agency Approved By: Alvaro Nunez, City Manager MUNICIPAL FACILITIES LICENSE AGREEMENT BETWEEN CITY OF SANTA ANA AND LOS ANGELES SMSA LIMITED PARTNERSHIP, D/B/A VERIZON WIRELESS December 3, 2024 Nabil Saba, PE Executive Director Public Works Agency 190735027_1 TABLE OF CONTENTS RECITALS.....................................................................................................3 AGREEMENT...................................................................................................3 DEFINITIONS........................................................................................ 3 TERM; SUPPLEMENT TERM......................................................................4 REPRESENTATION CONCERNING SERVICES; TERMINATION WITHOUT CAUSE..................................................................................5 SCOPE OF AGREEMENT..........................................................................5 COMPENSATION.................................................................................... 7 CONSTRUCTION..................................................................................... 9 INDEMNIFICATION AND WAIVER...........................................................14 PERFORMANCE BOND..........................................................................15 INSURANCE........................................................................................16 NOTICES.............................................................................................17 DEFAULT; CURE; REMEDIES..................................................................17 ASSIGNMENT AND CUSTOMER EQUIPMENT ........................................... IS RECORDS; AUDITS...............................................................................19 MISCELLANEOUS PROVISIONS..............................................................19 EXHIBITS...............................................................................................A & B Page 2 of 22 190735027_1 MUNICIPAL FACILITIES LICENSE AGREEMENT THIS MUNICIPAL FACILITIES LICENSE AGREEMENT (the "Agreement") is dated as of December 3 , 2024 (the date fully executed by all parties, referred to herein as "Effective Date"), and entered into by and between the City of Santa Ana, a California municipal corporation (the "Licensor" or "City"), and Los Angeles SMSA Limited Partnership, dba Verizon Wireless, a California limited partnership ("Licensee"). Recitals A. WHEREAS, the Licensor is the owner of certain Municipal Facilities (as defined in Section 1.6, below) located in the Public Rights -of -Way (as defined in Section 1.8 below) of the City of Santa Ana, California; and B. WHEREAS, Licensee is authorized to conduct business as a telephone corporation or wireless carrier in the State of California; and C. WHEREAS, Licensee desires to use space on certain of the Licensor's Municipal Facilities in the Public Rights -of -Way for modification, operation and maintenance of its Equipment (as defined in Section 1.1, below); and D. WHEREAS, Licensor is willing to allow Licensee to use and physically occupy portions of the Municipal Facilities for its Equipment in the Public Rights -of -Way subject to the terms and conditions of this Agreement. Agreement NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree to the following covenants, terms, and conditions: 1. DEFINITIONS. The following definitions shall apply generally to the provisions of this Agreement: 1.1 "Equipment" means antennas, equipment, utilities and fiber optic cables, wires, and related equipment, whether referred to individually or collectively, that are currently existing or proposed to be modified on a Municipal Facility and operated by Licensee under a particular Supplement. 1.2 "Hazardous Substance" means any substance, chemical or waste that is identified as hazardous or toxic in any applicable federal, state or local law or regulation, including, but not limited to, petroleum products and asbestos. 1.3 "Services" means the transmission and reception of communications signals for the provision of personal wireless services, telecommunications services and mobile data services as defined in federal law, but specifically excluding cable services and/or video services as defined by the Digital Infrastructure and Video Competition Act (as codified in Public Utilities Code section 5800 et seq.). Page 3 of 22 I90735027_1 1.4 "Laws" means any and all applicable statutes, codes, constitutions, ordinances, resolutions, regulations, judicial decisions, rules, tariffs, administrative orders, court orders, or other requirements of the Licensor or other governmental agency having joint or several jurisdiction over the parties to this Agreement as such laws may be amended from time to time. 1.5 "License Fee" have the meanings assigned to them in Section 5 of this Agreement. 1.6 "Municipal Facility(ies)" means Licensor -owned property in the ROW, including street lights (excluding double and single king poles), traffic control structures (excluding traffic signal poles), banners, street furniture, bus stops, billboards, or other poles, lighting fixtures, or electroliers located within the ROW, and may refer to such facilities in the singular or plural, as appropriate to the context in which used. The term includes Replacement FaciIity(ies) referred to in Section 4.1.3 of this Agreement. 1.7 "Person" means and includes any individual, partnership of any kind, corporation, limited liability company, association, joint venture or other organization, however formed, as well as trustees, heirs, executors, administrators, or assigns, or any combination of such persons. 1.8 "Public Right(s)-of-Way" or "ROW" has the same meaning as Section 33-231(q) of the Santa Ana Municipal Code ("SAMC"). 1.9 "PUC" means the California Public Utilities Commission. 1.10 "Supplement" shall mean each separate authorization, granted by Licensor to Licensee with regard to specific Equipment and Municipal Facility, the form of which is attached hereto as Exhibit A, which shall be subject to the terms and conditions of this Agreement. 1.11 "Transfer" means any transaction in which the rights and/or obligations held by Licensee under this Agreement or a Supplement are transferred, directly or indirectly, in whole or in part to a party other than Licensee. 2. TERM; SUPPLEMENT TERM. 2.1 Term. The initial term of this Agreement shall be for a period of ten (10) years (the "Initial Term"), commencing on the Effective Date and ending on the tenth (10th) anniversary thereof, unless sooner terminated as stated herein. Provided that Licensee is not in default of the Agreement or any Supplement following written notice and the expiration of any applicable cure period, this Agreement shall be automatically renewed for two (2) successive five (5) year renewal terms (each, a "Renewal Term"), unless either party gives the other party written notice of the intent not to renew this Agreement not more than twelve (12) and not less than ten (10) months prior to the expiration of the Initial Term or any Renewal Term, as applicable. The Initial Term and all Renewal Terms shall be collectively referred to herein as the "Term." Any holding over after the termination, or expiration of the Term or Renewal Term shall constitute a default by Licensee, notwithstanding that Licensor may elect to accept one or more payments of fees from Licensee. 2.2 Supplement Term. Unless otherwise specified in a Supplement, the initial term for each particular Supplement shall begin on its effective date ("Supplement Effective Date") Page 4 of 22 190735027_1 and shall end upon the expiration of the Initial Term, or the Renewal Term, if validly exercised, of this Agreement, unless such individual Supplement is earlier terminated or this Agreement is extended or terminated, as provided for herein (the "Supplement Term"). All of the provisions of this Agreement shall be in effect during the Supplement Tenn. The expiration or termination of the Agreement under Section 2.1 shall immediately terminate all Supplements. Any holding over after the expiration of the Supplement Term shall constitute a default by Licensee, notwithstanding that Licensor may elect to accept one or more payments of fees from Licensee. 3. REPRESENTATION CONCERNING SERVICES; TERMINATION WITHOUT CAUSE. Licensee represents, warrants and covenants that its Equipment installed pursuant to this Agreement and each Supplement will be utilized solely for providing the Services, and Licensee is not authorized to and shall not use its Equipment to offer or provide any other services not specified herein without Licensor's consent. At any time that Licensee ceases to operate as a provider of Services under Federal or state law, the Licensor shall have the option, in its sole discretion and upon six (6) months' written notice to Licensee, to terminate this Agreement and to require the removal of Licensee's Equipment from the ROW and from Municipal Facilities, including the cost of any site remediation, at no cost to the Licensor, without any liability to Licensee related directly or indirectly to such termination. 4. SCOPE OF AGREEMENT. Licensee shall only use Municipal Facilities pursuant to an approved Supplement as provided in Exhibit A. Any and all rights expressly granted to Licensee under this Agreement shall be exercised at Licensee's sole cost and expense, and shall be subject to the restrictions and conditions set forth herein. Parties acknowledge that this Agreement shall not apply to the installation of new Equipment where prior equipment did not exist, and is Iimited to new installations where prior Equipment existed, modifications to existing Equipment, or replacement of existing Equipment as provided herein. 4.1 Attachment to Municipal Facilities. Subject to the conditions herein, the Licensor hereby authorizes and permits Licensee to 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 Licensor an application in substantially the same form as attached hereto as Exhibit B ("Application") including a design for any Equipment that identifies both the Equipment and the Municipal Facilities Licensee being used. One Application is required per Municipal Facility. 4.1.2 Licensor may approve, approve with conditions, or disapprove an Application in its sole discretion, provided however, Licensor shall not unreasonably delay its decision. Any approved Equipment shall be included as part of the applicable Supplement. 4.1.3 If Licensee submits an Application to use a Municipal Facility that is structurally inadequate to accommodate its proposed Equipment, Licensor may permit the replacement of the Municipal Facility (a "Replacement Facility") with one that is acceptable to and approved by the Licensor as part of the applicable Supplement. Any Replacement Facility shall be installed, maintained, repaired, and/or replaced in accordance with Section 6 of this Agreement. Page 5 of 22 190735027_1 4.1.4 Unmetered electricity unless otherwise approved. Licensee shall be solely responsible for obtaining and maintaining the provision of electricity to the Equipment, including, but not limited to, making payments to electric utilities and installation of separate electric meters, if necessary. Licensee shall secure unmetered electricity services and shall not incorporate a meter box in its Equipment design unless otherwise approved by the Director of Public Works or required by the servicing utility company, or if the same is existing at the current Municipal Facilities at the time the Supplement is being entered into. 4.2 Additional Authority. Nothing in this Agreement shall limit in any way Licensee's obligation to obtain any additional required regulatory approvals from any City department, board or commission or other governmental agency that has regulatory authority over the Licensee's proposed activities involving use of the Municipal Facilities in the ROW. 4.3 No Interference. Licensee acknowledges and agrees that the primary purpose of the Municipal Facilities is to serve the Licensor and the public. Licensee in the performance and exercise of its rights and obligations under this Agreement shall not interfere in any manner with Licensor's own services or the existence and operation of any and all Public Rights -of -Way, sanitary sewers, water mains, storm drains, gas mains, poles, aerial and underground electrical and telephone wires, traffic signals, communication facilities owned by the Licensor, electroliers, cable television, location monitoring services, public safety and other then existing telecommunications equipment, utility, or municipal property, without the express written approval of the owner or owners of the affected property or properties, except as permitted by applicable laws or this Agreement. If such interference should occur, Licensee shall discontinue using the Equipment, methodology or technology that causes the interference until such time as Licensee takes corrective measures to eliminate such interference. In the event that such interference does not cease promptly, Licensor agrees to work in good faith with Licensee to resolve any interference to or by Licensee. 4.4 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 Supplement(s), encroachment, excavation or similar permits for work in connection with modifications of existing Equipment under this Agreement until such time as Licensee cures all of its defaults. 4.5 Compliance with Laws. Licensee shall comply with all applicable laws in the exercise and performance of its rights and obligations under this Agreement. 4.6 Non -Exclusive Use Rights. Notwithstanding any other provision of this Agreement, any and all rights expressly or impliedly granted to Licensee under this Agreement shall be non-exclusive, and shall be subject and subordinate to (1) the continuing right of the Licensor to use, and to allow any other person or persons to use, any and all parts of the ROW or Municipal Facilities, exclusively or concurrently with any other person or persons, and (2) the public easement for streets and any and all other deeds, easements, dedications, conditions, covenants, restrictions, encumbrances and claims of title (collectively, "Encumbrances") which may affect the ROW or Municipal Facilities now or at any time during the term of this Agreement, including, without limitation any Encumbrances granted, created or allowed by the Licensor at any Page 6 of 22 190735027_1 time. Nothing herein is intended to limit Licensee's right to use the ROW under any existing agreement with Licensor or under any applicable laws. 5. COMPENSATION. Licensee shall be solely responsible for the payment of all fees in connection with Licensee's performance under this Agreement, including those set forth below. 5.1 Application Fee. Each application for a Supplement shall be accompanied by a non-refundable application fee ("Application Fee") in the amount fixed by Licensor's Miscellaneous Fees Schedule that is in effect at the time the application for a Supplement is made to Licensor. 5.2 License Fees. 5.2.1 For each location covered by a Supplement, Licensee shall pay to the Licensor a License Fee in the base amount of $1,500 per year ("License Fee"). The base amount of the License Fee shall be subject to an annual adjustment of three percent (3%) applied on each anniversary of the Effective Date. There shall be no refunds of License Fee paid due to the termination or expiration of the Agreement for any reason. 5.3 Payment. 5.3.1 Licensee shall make the first payment of License Fee under any Supplement within forty-five (45) days of the Supplement Effective Date. The amount of the first payment of 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, License Fee shall be paid in advance for each Municipal Facility used under a Supplement 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 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 (ii) other documentation requested by Licensee in Licensee's reasonable discretion. From time to time during the Term of this Agreement and within thirty (30) days of a written request from Licensee, Licensor agrees to provide updated License Documentation in a form reasonably acceptable to Licensee. 5.3.2 The License Fee shall be paid by check made payable to the City and mailed or delivered to the City of Santa Ana _Public Works Agency Construction & Facilities Management, P.O. Box 1988 M-22 Santa Ana CA 92702. The place and time of payment may be changed at any time by Licensor upon thirty (30) days' written notice to Licensee. Mailed payments shall be deemed paid upon the date such payment is officially postmarked by the United States Postal Service. If postmarks are illegible to read, the payment shall be deemed paid upon actual receipt. Licensee assumes all risk of loss and responsibility for late payment charges if Page 7 of 22 190735027_1 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 ten percent (10%) 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 fee shall accrue interest on the amount due at the rate of ten percent (10%) per annum accruing as of the first day following the expiration of the foregoing 30-day period until paid in full. All late charges and interest payments shall become License Fee 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, including the installation of Replacement Facilities where authorized. Except as provided in Section 6.6, Licensee shall not attach, install, maintain, or operate any Equipment on Municipal Facilities without the prior written approval of an authorized representative of the Licensor for each location as evidenced in a signed Supplement. Licensee shall keep the Municipal Facilities free and clear from any liens arising out of any work performed, material furnished or obligations incurred by or for Licensee. 6.1 Installation and Operation. On a quarterly basis to the extent there has been a change in the number of Supplements between City and Licensee, Licensee must furnish to Licensor a current list and map that identifies the exact location of the Equipment in or on the Municipal Facility. That information must be provided in a format established by the Licensor and that is compatible with Licensor's information technology, including but not limited to ESRI compatible GIS shapefiles. 6.2 Intentionally Omitted. 6.3 Obtaining Required Permits. Licensee acknowledges that in addition to a signed Supplement, any modifications or maintenance to Equipment 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 modifications or maintenance as well as any future regulations that may be adopted by the City respecting such modifications or maintenance. Licensee shall apply for the appropriate permits and pay any standard and customary permit fees. 6.4 Replacement Facilities 6.4.1 Ownership of Replacement Facilities Licensor shall own any approved Replacement Facility. Where needed, Licensee shall cooperate with Licensor to transfer ownership and any associated manufacturers' warranties of any Replacement Facility from Licensee to Licensor. Page S of 22 190735027_1 6.4.2 Replacement Facility Provision. Licensee shall be responsible for providing and installing any approved Replacement Facility. 6.5 Damage, Maintenance & Repair. 6.5.1 Licensee shall, at its sole cost and expense and to the satisfaction of the Licensor: (a) remove, repair or replace any of its Equipment that is damaged or becomes detached; and/or (b) repair any damage to ROW, Municipal Facilities, or other property, whether public or private, caused by Licensee, its agents, employees or contractors in their actions relating to attachment, operation, repair or maintenance of Equipment. Licensee shall complete such removal, repair, or replacement within thirty (30) days' of written notice, unless time is extended by Licensor in writing, in its discretion, because Licensee has demonstrated that more time is required for the repairs. 6.5.2 For every ten (10) Municipal Facilities in use by Licensee, Licensee shall provide Licensor one (1) Replacement Facility for storage, up to a maximum of five (5) Replacement Facilities ("Replacement Facility(ies)"). Licensor shall store the Replacement Facilities free of charge. Licensee shall retrieve all Replacement Facilities within sixty (60) days of the expiration or earlier termination of this Agreement. 6.5.3 Licensor shall install, replace, and maintain the Municipal Facilities and Replacement Facilities authorized to be used by Licensee pursuant to any Supplement in good condition in accordance with Licensor's standard maintenance requirements. Such maintenance of Municipal Facilities and Replacement Facilities shall be at Licensoe's sole cost and expense, except to the extent this Agreement provides otherwise. If a Municipal Facility or Replacement Facility with Licensee Equipment on it needs to be cleared from the ROW (for example, due to an accident), Licensor shall perform or cause to be performed that work. If Licensee does not remove, repair, replace, or otherwise remediate damage to its Equipment, a Replacement Facility, or to the ROW, Municipal Facilities or other property as required in this Section, the Licensor shall have the option to perform or cause to be performed such removal, repair, or replacement on behalf of Licensee and shall charge Licensee for the actual costs incurred by the Licensor. If such damage causes a public health or safety emergency, as reasonably determined by the Licensor, the Licensor may immediately perform reasonable and necessary repair or removal work on behalf of Licensee and will notify Licensee as soon as practicable; provided, such repair work shall not include any technical work on Licensee's Equipment. Licensor shall have no obligation to maintain or safeguard the Equipment and shall not be responsible for any loss or damage to Licensee's Equipment. 6.5.4 Upon the receipt of a written demand for payment accompanied by supporting documentation for payment by the Licensor pursuant to this Section, Licensee shall within forty-five (45) days of such receipt reimburse the Licensor for such costs. 6.6 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 Page 9 of 22 190735027_1 representative of the Licensor. Any such approval shall take the form of an amendment to the applicable Supplement. In addition to any other submittal requirements, and if requested by Licensor, Licensee shall provide "load" (structural) calculations for Equipment changes. Notwithstanding the foregoing, Licensee may maintain, repair, and make like -kind replacements or modifications to any Equipment that do not increase the size, height, and weight of the Equipment or exceed the structural capacity of the Municipal Facility as established in an approved Supplement without requiring additional Applications or Supplements. 6.7 Relocation and Displacement of Equipment. 6.7.1 This Agreement creates no right in Licensee to receive any relocation assistance or payment for any reason under the Relocation Assistance Act, the Uniform Relocation Assistance Act or under any existing or future law upon any termination of tenancy. 6.7.2 Licensee understands and acknowledges that Licensor may require Licensee to relocate one or more of its Equipment installations. Licensee shall at Licensor's direction and upon ninety (90) days' prior written notice to Licensee, relocate such Equipment at Licensee's sole cost and expense whenever Licensor reasonably determines that the relocation is needed for any of the following purposes: (a) if required for the construction, modification, completion, repair, relocation, or maintenance of a Licensor or other public agency project; (b) because the Equipment is interfering with or adversely affecting proper operation of Licensor -owned Municipal Facilities; or (c) to protect or preserve the public health or safety. In any such case, Licensor shall use reasonable efforts, but is under no legal obligation, to afford Licensee a reasonably equivalent alternate location, as determined by the City. If Licensee shall fail to relocate any Equipment as requested by the Licensor within the ninety (90) days, Licensor shall be entitled to remove or relocate the Equipment at Licensee's sole cost and expense, without further notice to Licensee. Licensee shall pay to the Licensor actual costs and expenses incurred by the Licensor in performing any removal work and any storage of Licensee's property after removal within thirty (30) days of the date of a written demand for this payment from the Licensor. 6.7.3 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. 6.8 Unauthorized Equipment. If Licensor discovers any Equipment has been installed on Municipal Facilities without authorization pursuant to a Supplement, Licensor may send an invoice to Licensee for a sum equal to five (S) 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, or (ii) produce documentation showing Licensor's prior approval of the Equipment identified in the invoice. If, in accordance with this Section, Licensee fails to pay all fees and submit documentation satisfactorily showing Licensor's prior approval within sixty (60) days of Licensor's invoice, Licensor may remove the unauthorized Equipment at Licensee's expense. If Licensor removes such unauthorized Equipment, such Equipment shall become the property of Licensor, who shall have sole rights over such Equipment's disposition. Licensor's removal of unauthorized Equipment shall not release Licensee from its obligation to pay those invoiced fees accruing pursuant to this Section. Page 10 of 22 190735027_1 6.9 Termination of a Supplement. 6.9.1 Licensee shall have the right to terminate any Supplement on thirty (30) days' notice to Licensor. In the event of such termination, removal of Equipment associated with the terminated Supplement shall be governed by Section 6.10 below and Licensor shall retain any License Fee paid. 6.9.2 Licensor shall have the right to terminate any Supplement in the following circumstances: (a) if Licensor determines the covered Equipment has been inoperative or abandoned for sixty (60) consecutive days, and Licensee does not provide an adequate explanation or commence to cure within thirty (30) days following notice; (b) if Licensee's operation under a particular Supplement is deemed by Licensor to endanger or pose a threat to the public health, safety or welfare or interfere with the normal day-to-day operation of any Licensor department or service; (c) Licensor is unable to identify a reasonably equivalent alternate location as provided in Section 6.7.2 above, or (d) Licensor is mandated by law, a court order or decision, or the federal, state, or local government to take certain actions that will cause or require the removal of any Equipment. 6.10 Removal of Equipment. Within thirty (30) days after the expiration or earlier termination of a Supplement, Licensee shall promptly, safely and carefully remove the Equipment covered by the terminated or expired Supplement from the applicable Municipal Facility and ROW. Within thirty (30) days after the expiration or earlier termination of the Agreement, Licensee shall promptly, safely and carefully remove all Equipment from all the applicable Municipal Facilities and ROW. If Licensee fails to complete this removal work pursuant to this Section, then the Licensor, upon written notice to Licensee, shall have the right at the Licensor's sole election, but not the obligation, to perform this removal work and charge Licensee for the actual costs and expenses, including, without limitation, reasonable administrative costs. Licensee shall pay to the Licensor actual costs and expenses incurred by the Licensor in performing any removal work and any storage of Licensee's property after removal within thirty (30) days of the date of a written demand for this payment from the Licensor. After the Licensor receives the reimbursement payment from Licensee for the removal work performed by the Licensor, the Licensor shall promptly make available to Licensee the property belonging to Licensee and removed by the Licensor pursuant to this Section at no liability to the Licensor. If the Licensor does not receive reimbursement payment from Licensee within such thirty (3 0) days, or if Licensor does not elect to remove such items at the Licensor's cost after Licensee's failure to so remove pursuant to this Section, or if Licensee does not remove Licensee's property within thirty (30) days of such property having been made available by the Licensor after Licensee's payment of removal reimbursement as described above, any items of Licensee's property remaining on or about the ROW, Municipal Facilities, or stored by the Licensor after the Licensor's removal thereof may, at the Licensor's option, be deemed abandoned and the Licensor may dispose of such property in any manner by allowed for by Law. Alternatively, the Licensor may elect to take title to abandoned property, and Licensee shall submit to the Licensor an instrument satisfactory to the Licensor transferring to the Licensor the ownership of such property. The provisions of this Section shall survive the expiration or earlier termination of this Agreement. 6.11 Risk of Loss. Licensee acknowledges and agrees that Licensee, subject to the terms of this Agreement bears all risks of loss or damage or relocation or replacement of its Equipment Page 11 of 22 1907350271 and materials installed in the ROW or on Municipal Facilities pursuant to this Agreement from any cause, and the Licensor shall not be liable for any cost of replacement or of repair to damaged Equipment, including, without limitation, damage caused by the Licensee's removal of the Equipment, except to the extent that such loss or damage was caused by the willful misconduct or negligence of the Licensor, including, without limitation, each of its elected officials, department directors, managers, officers, agents, employees, and contractors, subject to the limitation of liability provided in Section 7.3 below. 6.12 Hazardous Substances, Licensee agrees that Licensee, its contractors, subcontractors, and agents, will not use, generate, store, produce, transport, or dispose any Hazardous Substance on, under, about or within the area of a ROW or Municipal Facility in violation of any Law. Except to the extent of the gross negligence or intentional misconduct of Licensor, Licensee will pay, indemnify, defend, and hold Licensor harmless against and to the extent of any loss or liability incurred by reason of any Hazardous Substance produced, disposed of, or used by Licensee pursuant to this Agreement. Licensee will ensure that any on -site or off - site storage, treatment, transportation, disposal or other handling of any Hazardous Substance will be performed by persons who are properly trained, authorized, licensed and otherwise permitted to perform those services. 6.13 Inspection. On an annual basis, Licensor will conduct regular safety inspections and oversight of Equipment on Municipal Facilities. Licensee shall have the right to be present at and observe any such inspections. Licensee shall pay Licensor for its reasonable costs for such safety inspections and oversight ("Annual Small Cell Compliance Inspection & Program Oversight Fee"), in the amount fixed by Licenser's Miscellaneous Fees Schedule that is in effect at the time such payment is due. Licensee shall pay Licensor this fee together with every payment of the License Fee and the fee shall be subject to the same adjustments and proration as the License Fee. 6.14 Access. Licensee shall have access to the Equipment for non -emergency purposes, between the hours of 7:00 am and 5:00 pm weekdays (excluding holidays), unless a required permit further limits the access hours. Prior to Licensee accessing its Equipment, Licensee shall provide email notice, at least 24 hours in advance, to the Licensor at the following email address: smallcells@santa-ana.org. In the event of an emergency at any time, Licensee will, if time permits, attempt to provide prior telephonic notice to the Licensor at the following telephone number: (714) 647-3380. It is responsibility of Licensee to coordinate its access with other users of the same Municipal Facility. 7. INDEMNIFICATION AND WAIVER. Licensee agrees to indemnify, defend, protect, and hold harmless the Licensor, its council members, officers, employees, agents and contractors from and against any and all claims, demands, losses, including pole warranty invalidation, damages, liabilities, fines, charges, penalties, administrative and judicial proceedings and orders, judgments, and all costs and expenses incurred in connection therewith, including reasonable attorney's fees and costs of defense (collectively, the "Losses") to the extent arising from, resulting from or caused by Licensee's activities undertaken pursuant to this Agreement, except to the extent arising from or caused by the negligence or willful misconduct of the Licensor, its council members, officers, employees, agents, or contractors. Licensee's obligation to indemnify and hold harmless excludes only such claim, loss or liability that is due to the negligence or willful misconduct of Licensor. Page 12 of 22 190735027_1 7.1 Waiver of Claims. Licensee waives any and all claims, demands, causes of action, and rights it may assert against the Licensor on account of any loss, damage, or injury to any Equipment or any loss or degradation of the Services as a result of any event or occurrence which is beyond the reasonable control of the Licensor. 7.2 Waiver of Subrogation. Licensee hereby waives and releases any and all rights of action for negligence against Licensor which may hereafter arise on account of damage to Equipment, Municipal Facilities or to the ROW, resulting from any fire, or other casualty of the kind covered by standard fire insurance policies with extended coverage, regardless of whether or not, or in what amounts, such insurance is now or hereafter carried by the Licensee. This waiver and release shall apply between the parties and they shall also apply to any claims under 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 (including negligence), strict liability or otherwise. S. PERFORMANCE BOND. In order to secure the performance of its obligations under this Agreement, Licensee will provide the following security instrument to the Licensor: 8.1 Performance Bond. Prior to the commencement of any work under this Agreement, Licensee must provide a performance bond running to the Licensor according to this Section 8.1. The amount of the Bond shall be based on the number of attachments in the following amounts, - Number of Municipal Facilities Required Security 1-25 $25,000 26-50 $50,000 51-100 $75,000 101-300 $100,000 301-1000 $150,000 Greater than 1000 $200,000 The performance bond is conditioned upon the faithful performance by Licensee of all the terms and conditions of this Agreement and upon the further condition that if Licensee fails to comply with any terms or conditions governing this Agreement, there shall be recoverable jointly and severally from the principal and surety of the bond any damage or loss suffered by the Licensor as a result, including the full amount of any compensation, indemnification, or costs of removal or abandonment of Licensee's property, plus costs and reasonable attorneys' fees up to the full amount of the performance bond. Licensee will keep the performance bond in place during the term of this Agreement. This bond shall also fulfill the requirements of Section 33-240(c)(7) of Page 13 of 22 190735027_1 the Santa Ana Municipal Code or any similar successor code provision, but only as pertaining to Licensee's Equipment on Municipal Facilities. 8.2 Assessment of the Bond. Upon Licensee's failure to pay the Licensor any amount owing under this Agreement, the performance bond may be assessed by the Licensor for purposes including, but not limited to: (a) Reimbursement of costs borne by the Licensor to correct violations of the Agreement not corrected by Licensee, after Licensor provides notice and a reasonable opportunity to cure such violations. This shall include but not be limited to removal of Equipment. (b) To provide monetary remedies or to satisfy damages assessed against Licensee due to a material breach of this Agreement. 8.3 Restoration of the Bond. Licensee must deposit a sum of money or a replacement instrument sufficient to restore the performance bond to its original amount within thirty (30) days after written notice from the Licensor that any amount has been recovered from the performance bond. Failure to restore the bond to its full amount within thirty (30) days will constitute a material breach of this Agreement. Licensee will be relieved of the foregoing requirement to replenish the bond during the pendency of an appeal from the Licensor's decision to draw on the performance bond. 8.4 Required Endorsement. The performance bond is subject to the approval of the Licensor and must contain the following endorsement: "This bond may not be canceled until sixty (60) days after receipt by the Licensor, by registered mail, return receipt requested, of a written notice of intent to cancel or not to renew. " 8.5 Reservation of Licensor Rights. The rights reserved by the Licensor with respect to the performance bond are in addition to all other rights and remedies the Licensor may have under this Agreement or any other law. 8.6 Admitted Surety Insurer. The surety supplying the bond shall be an "admitted surety insurer", as defined in California Code of Civil Procedure Section 995.120 and authorized to do business in the State of California. 8.7 Cash Deposit. In lieu of obtaining a performance bond, Licensee shall have the right to instead deposit a cash deposit with Licensor securing Licensee's obligations under this Agreement. 9. INSURANCE. Licensee shall obtain and maintain at all times during the term of this Agreement insurances of the types and in the amounts specified by Licensor from time to time, or if not specified, the amounts in this Section 9: Commercial General Liability insurance with a limit of two million dollars ($2,000,000) per occurrence for bodily injury and property damage and five million dollars ($5,000,000) general aggregate including premises -operations, contractual liability, personal injury and products completed operations; and Commercial Automobile Liability insurance covering all owned non -owned and hired vehicles with a limit of one million dollars Page 14 of 22 190735027_1 ($1,000,000) combined single limit each accident for bodily injury and property damage. The Commercial General Liability insurance policy shall include the Licensor, its council members, officers, and employees as additional insured as their interest may appear under this Agreement in respect to any covered liability arising out of Licensee's performance of work under this Agreement. Coverage shall be in an occurrence form and in accordance with the limits and provisions specified herein. Upon receipt of notice from its insurer, Licensee shall use its best efforts to provide the Licensor with thirty (30) days prior written notice of cancellation. Licensee shall be responsible for notifying the Licensor of such change or cancellation. 9.1 Filing of Certificates and Endorsements. Prior to the commencement of any work pursuant to this Agreement, Licensee shall file with the Licensor the required certificate(s) of insurance with blanket additional insured endorsements, which shall state the following: (a) the policy number; name of insurance company; name and address of the agent or authorized representative; name and address of insured; project name; policy expiration date; and specific coverage amounts; (b) that Licensee's Commercial General Liability insurance policy is primary as respects any other valid or collectible insurance that the Licensor may possess, including any self -insured retentions the Licensor may have; and any other insurance the Licensor does possess shall be considered excess insurance only and shall not be required to contribute with this insurance; and (c) that Licensee's Commercial General Liability insurance policy waives any right of recovery the insurance company may have against the Licensor. The certificatc(s) of insurance with endorsements and notices shall be mailed to the Licensor at the address specified in Section 10 below. 9.2 Workers' Compensation Insurance. Licensee shall obtain and maintain at all times during the term of this Agreement statutory workers' compensation and employer's liability insurance in an amount required by statute and shall furnish the Licensor with a certificate showing proof of such coverage. 9.3 Insurer Criteria. Any insurance provider of Licensee shall be admitted and authorized to do business in the State of California and shall carry a minimum rating assigned by A.M. Best & Company's Key Rating Guide of "A" Overall and a Financial Size Category of "VIL" 9.4 Severability of Interest. "Severability of interest" or "separation of insureds" clauses shall be made a part of the Commercial General Liability and Commercial Automobile Liability policies. 10. NOTICES. 101 Method and Delivery of Notices. All notices which shall or may be given 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: Page 15 of 22 190735027_1 If to the Licensor: CITY OF SANTA ANA, CA Public Works Agency 20 Civic Center Plaza, M-22 Santa Ana, CA, 92701 Attn: Executive Director If to Licensee: LOS ANGELES SMSA LIMITED PARTNERSHIP dba Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attention: Network Real Estate With a copy to: Basking Ridge Mail Hub Attn: Legal Intake One Verizon Way Basking Ridge, NJ 07920 10.2 Date of Notices; Changing Notice Address. Notices shall be deemed given upon receipt in the case of personal delivery, three days after deposit in the mail, or the next business day in the case of overnight delivery. Either parry may from time to time designate any other address for this purpose by written notice to the other party delivered in the manner set forth above. 11. DEFAULT; CURE; REMEDIES. 11.1 Licensee Default and Notification. This Agreement is granted upon each and every condition herein and each of the conditions is a material and essential condition to the granting of this Agreement. Except for causes beyond the reasonable control of Licensee, if Licensee fails to comply with any of the conditions and obligations imposed hereunder, and if such failure continues for more than thirty (30) days after written demand from the Licensor to commence the correction of such noncompliance on the part of Licensee, the Licensor shall have the right to revoke and terminate this Agreement, if such failure is in relation to the Agreement as whole, or any individual Supplement, if such failure is in connection solely with such Supplement, in addition to any other rights or remedies set forth in this Agreement or provided by law. 11.2 Cure Period. If the nature of the violation is such that it cannot be fully cured within thirty (30) days due to circumstances not under Licensee's control, the period of time in which Licensee must cure the violation shall be extended for such additional time reasonably necessary to complete the cure, provided that: (a) Licensee has promptly begun to cure; and (b) Licensee is diligently pursuing its efforts to cure. The Licensor may not maintain any action or effect any remedies for default against Licensee unless and until Licensee has failed to cure the breach within the time periods provided in these Sections 11.1 and 11.2. 11.3 Licensor Default. If Licensor breaches any covenant or obligation of Licensor under this Agreement in any manner and if Licensor fails to commence to cure such breach within Page 16 of 22 1907350271 thirty (30) days after receiving mitten notice from Licensee specifying the violation (or if Licensor fails thereafter to diligently prosecute the cure to completion), then Licensee may enforce any and all of its rights and/or remedies provided under this Agreement or by law or it may (although it shall not be obligated to) cure Licensor's breach and/or perform Licensor's obligations (on Licensor's behalf and at Licensor's expense) and require Licensor to reimburse to Licensee all reasonable costs and expenses (including reasonable attorneys' fees) incurred in connection with such cure and performance. 12. ASSIGNMENT AND CUSTOMER EQUIPMENT. This Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties. 12.1 Licensee shall not assign this Agreement or its rights or obligations to any firm, corporation, individual, or other entity, without the prior written consent of Licensor and any such assignment, transfer, delegation or subcontract without the City's prior written consent shall be considered null and void. Notwithstanding the foregoing, Licensee may assign or transfer the rights and privileges granted herein to any parent or subsidiary of Licensee, to an entity with or into which Licensee may merge or consolidate, to an entity which Licensee is controlled by, or is under common control with such entity, or to any purchaser of all or substantially all of the assets of Licensee with prior notice to Licensor but without the requirement for Licensor approval, so long as the successor provides written confirmation to Licensor that it is then fully liable to the Licensor for compliance with all terms and conditions of this Agreement. The Licensee shall reimburse the Licensor for all direct and indirect costs and expenses reasonably incurred by the Licensor in considering a request to transfer or assign this Agreement. 12.2 Licensee need not own all components of Equipment subject to this Agreement, and may permit its customers to maintain ownership of Equipment components. However, (1) all Equipment must be wholly under the control and management of Licensee; and Licensee shall be Iiable for all acts or omissions, and all harms associated with the Equipment whether the same are its acts or omissions, or the acts or omissions of the owner of the Equipment; and (2) Licensee acknowledges and agrees that no rights of ownership in Equipment by Licensee's customers shall 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 modify Equipment, which shall be Licensee's sole responsibility. Further, Licensee may maintain Equipment it does not own on Municipal Facilities, unless the entity for on whose behalf the Equipment has been installed acknowledges and agrees, in a form acceptable to the Licensor: that the Licensor has not granted it a consent to be in the ROW for any purpose; that it is bound by Licensee's representations, obligations, limitiations, and duties hereunder; that it shall have no rights or claims against the Licensor of any sort related to the Equipment or Municipal Facilities; that its Equipment may be subject to taxes, fees or assessments as provided in the Laws or the Agreement, and that Licensor may treat any Equipment owned by such entity as if it were owned by Licensee for all purposes (including, but not limited to, removal and relocation); and that the Equipment may only be used for the purposes and uses permitted herein. Such acknowledgement may be provided for all Equipment on Municipal Facilities, and need not be provided separately, site by site. 13. RECORDs; AUDITS. Page 17 of 22 190735027_1 13.1 Records Required by Code. Licensee will maintain complete records pursuant to all applicable Laws. 13.2 Additional Records. The Licensor may require such additional reasonable non - confidential information, records, and documents from Licensee from time to time as are appropriate in order to reasonably monitor compliance with the terms of this Agreement. 13.3 Production of Records. Licensee shall provide such records within twenty (20) business days of a request by the Licensor for production of the same unless additional time is reasonably needed by Licensee, in which case, Licensee shall have such reasonable time as needed for the production of the same. If any person other than Licensee maintains records on Licensee's behalf, Licensee shall be responsible for 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 public inspection and copying under California law. 14. MISCELLANEOUS PROVISIONS. The provisions that follow shall apply generally to the obligations of the parties under this Agreement. 14.1 Waiver of Breach. The waiver by either party of any breach or violation of any provision of this Agreement shall not be deemed to be a waiver or a continuing waiver of any subsequent breach or violation of the same or any other provision of this Agreement. 14.2 Contacting Licensee. Licensee shall be available to the staff employees of any Licensor department having jurisdiction over Licensee's activities 24 hours a day, seven days a week, regarding problems or complaints resulting from the attachment, installation, operation, maintenance, or removal of the Equipment. The Licensor may contact by telephone the Licensee's network control center operator at telephone number 800-264-6620. 14.3 Governing Law; Jurisdiction. This Agreement shall be governed and construed by and in accordance with the laws of the State of California, without reference to its conflicts of law principles. If suit is brought by a party to this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of Orange County, California. 14.4 Change Of Law. If any provision of this Agreement is found to be unenforceable in a final judicial or administrative proceeding, the Parties shall enter into good faith negotiations with the intent of reaching an agreement that would place the Parties substantially in the same position as if this Agreement were fully enforceable. If the negotiations do not result in agreement between the parties within sixty days from the date of the final decision referred to in the preceding sentence, then either Party may call for binding arbitration within a further thirty days. Such arbitration shall have the goal of placing the Parties in the same positions they would occupy if this Agreement had been fully enforceable. The Parties shall select an independent, mutually acceptable arbitrator, who shall have available the full range of appropriate remedies. The arbitrator's decision shall be final and binding on both parties. The parties will each pay their own costs to appear before the arbitrator and will share the arbitrator's costs equally. Page 18 of 22 190735027_I 14.5 Force Majeure. Except for payment of amounts due, neither Parry shall have any liability for its delays or its failure of performance due to: fire, explosion, pest damage, power failures, strikes or labor disputes, acts of God, the elements, war, civil disturbances, acts of civil or military authorities or the public enemy, inability to secure raw materials, transportation facilities, fuel or energy shortages, or other causes reasonably beyond its control, whether or not similar to the foregoing. 14.6 Attorneys' Fees. Should any dispute arising out of this Agreement lead to litigation, the prevailing party shall be entitled to recover its costs of suit, including (without limitation) reasonable attorneys' fees. 14.7 "AS IS" condition of Municipal Facilities. Municipal Facilities licensed to Licensee pursuant to this Agreement are licensed to and accepted by Licensee "as is" and with all faults. The Licensor makes no representation or warranty of any kind as to the present or future condition of or suitability of the Municipal Facilities for Licensee's use and disclaims any and all warranties express or implied with respect to the physical, structural, or environmental condition of the Municipal Facilities and the merchantability or fitness for a particular purpose. Licensee is solely responsible for investigation and determination of the condition and suitability of any Municipal Facility for Licensee's intended use. 14.8 Representations and Warranties. Each of the parties to this Agreement represents and warrants that it has the full right, power, legal capacity, and authority to enter into and perform the party's respective obligations hereunder and that such obligations shall be binding upon such party without the requirement of the approval or consent of any other person or entity in connection herewith, except as provided in Section 4.2 above. This Agreement shall not be revocable or terminable except as expressly permitted herein. 14.9 Amendment of Agreement. This Agreement may not be amended except pursuant to a written instrument signed by moth parties. 14.10 Entire Agreement. This Agreement contains the entire understanding between the parties with respect to the subject matter herein. There are no representations, agreements, or 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. 14.11 Non -Exclusive Remedies. No provision in this Agreement made for the purpose of securing enforcement of the terms and conditions of this Agreement shall be deemed an exclusive remedy or to afford the exclusive procedure for the enforcement of said terms and conditions, but the remedies herein provided are deemed to be cumulative. 14.12 No Third -Party Beneficiaries. It is not intended by any of the provisions of this Agreement to create for the public, or any member thereof, a third -party beneficiary right or remedy, or to authorize anyone to maintain a suit for personal injuries or property damage pursuant to the provisions of this Agreement. The duties, obligations, and responsibilities of the Licensor with respect to third parties shall remain as imposed by state law. Page 19 of 22 190735027_1 14.13 Construction of Agreement. The terms and provisions of this Agreement shall not be construed strictly in favor of or against either party, regardless of which parry drafted any of its provisions. This Agreement shall be construed in accordance with the fair meaning of its terms. 14.14 Effect of Acceptance. Licensee (a) accepts and agrees to comply with this Agreement and all applicable federal, state and local laws and regulations; (b) agrees that this Agreement was entered into pursuant to processes and procedures consistent with applicable law; and (c) agrees that it will not raise any claim to the contrary or allege in any claim or proceeding against the Licensor that at the time of acceptance of this Agreement any provision, condition or term of this Agreement was unreasonable or arbitrary, or that at the time of the acceptance of this Agreement any such provision, condition or term was void or unlawful or that the Licensor had no power or authority to make or enforce any such provision, condition or term. 14.15 Time is of the Essence. Time is of the essence with regard to the performance of all of Licensee's obligations under this Agreement. 14.16 Taxes. Licensee shall be responsible for payment of all fees and taxes charged in connection with the right, title, and interest in and construction, modification, maintenance, and operation of Equipment for the purposes set forth herein. 14.17 Tax Notice. Licensor hereby provides notice pursuant to California Revenue and Taxation Code Section 107.6, and Licensee acknowledges that this Agreement may create a possessory interest and Licensee may be subject to property taxes levied on such interest, as described in California Revenue and Taxation Code Section 107.6. Licensee shall pay directly to the appropriate authority, when due, all real and personal property taxes, fees and assessments, assessed against the area licensed and the Equipment. 14.18 Counterparts. This Agreement (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] Page 20 of 22 190735027_1 IN WITNESS THEREOF, the pal lies hereto have caused this Agreement to be legally executed in duplicate effective as of the Effective Date as defined in the introductory paragraph to this Agreement. CITY OF SANTA ANA Alvaro Nunez City Manager APPROVED AS TO FORM Sonia R. Carvalho City Attorney Jonathan T. Maitin Assistant City Attorney RECOMMENDED FOR APPROVAL Digitally signed by Nabil lala Nabil S aba Date: 2024.11.13 10:55:04-08'00' Nabil Saba, PE. Executive Director Public Works Agency Exhibits: Exhibit A - Supplement Exhibit B - Application ATTEST Jennifer L. Hal City Clerk LICENSEE: LOS ANGELES SMSA LIMITED PARTNERSIDP, a California limited partnership d/b/a Verizon Wireless, by AirTouch Cellular Inc., Its General Partner Name:,/vi,chQe-1 A4rws-,v%;es Its: Page 21 of 22 190735027_1 EXHIBIT A FORM OF SUPPLEMENT This Supplement ("Supplement"), is approved by Licensor this day of , 20 (the date executed by all parties, referred herein as "Supplement Effective Date"). I. Supplement. Licensee has submitted an application for approval to use a Municipal Facility in connection with its Equipment pursuant to that certain Municipal Facility License Agreement between Licensor and Licensee dated , 2024 ("Agreement"). Licensor has reviewed the application and grants approval subject to the terms of this Supplement. All of the terms and conditions of the Agreement are incorporated hereby by reference and made a part hereof without the necessity of repeating or attaching the Agreement. In the event of a contradiction, modification or inconsistency between the terms of the Agreement and this Supplement, the terms of this Supplement shall govern. Capitalized terms used in this Supplement shall have the same meaning described for them in the Agreement unless otherwise indicated herein. IF THE SUPPLEMENT IS NOT COUNTER -SIGNED BY LICENSEE AND RETURNED TO LICENSOR WITHIN THIRTY (30) DAYS AFTER LICENSOR HAS GRANTED APPROVAL, THE SUPPLEMENT SHALL BE VOID AND OF NO LEGAL EFFECT. IF LICENSEE STILL WANTS TO USE THE MUNICIPAL FACILITY, LICENSEE WILL BE REQUIRED TO SUBMIT A NEW APPLICATION AND ASSOCIATED FEES. 2. Licensed Area Description and Location. Licensee shall have the right to use the space on the specific Municipal Facility (the "Licensed Area") depicted in Attachment 1 attached hereto to, and install, maintain or modify Equipment as further listed in Attachment 2 attached hereto. 3. Equipment. The Equipment to be installed and/or modified at the Licensed Area is described and depicted in Attachment 1. 4. Term. The term of this Supplement shall commence on the Supplement Effective Date and continue for the life of the Agreement, as described in Paragraph 2 of the Agreement. 5. License Fee. The initial fee for this Supplement shall be as set forth in Section 5.2.1 of the Agreement. This fee is subject to annual increase as provided in the Agreement, and is payable in accordance with the Agreement. 6. Performance Bond. The Performance Bond [circle one] is / is not covered by existing performance bond. If not covered by existing performance bond, a bond is required pursuant to Section 8 of the Agreement. 7. Miscellaneous. [Signature page follows] A-1 190735027_1 IN WITNESS THEREOF, the parties hereto have caused this Supplement to be legally executed in duplicate, effective upon execution by both parties. Accepted: Licensor: CITY OF SANTA ANA, CA By: Name: Title: Date: Licensee: LOS ANGELES SMSA LIMITED PARTNERSHIP, a California limited partnership dlbla Verizon Wireless, by AirTouch Cellular Inc., Its General Partner By:_ Name: Title: Date: Attachments: Attachment 1 — Licensed Area Attachment 2 — Equipment List and Description AT2 190735027_1 Attachment 1 Licensed Area [site plan showing licensed area of applicable Municipal Facility and showing Equipment A-3 1907350271 Attachment 2 Equipment List and Description with the proposed Scope of Work A-4 190735027_1 EXHIBIT B Applicant: APPLICATION TO USE MUNICIPAL FACILITY Date: Licensee: Application/License#: Type of Municipal Facility Alteration Required Equipment Heights (provide both (1) the overall height ofpole structure with added facilities; and (2) the height of individual facilities Equipment and Base Equipment weights Equipment and Base Equipment Dimensions Location of Any Existing Equipment [street light] [Pole [Installed on Pole, specify [traffic light] Reinforcement] attachment height, weight [other, [Pole and dimensions] specify] Replacement] [Installed on/in Ground (None] (Vault), specific dimensions] [Other Location] [Not Applicable/Needed] APPLICANT SHALL PROVIDE THE FOLLOWING AS APPLICABLE: • Site plan and engineering design and specifications for 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. • If necessary, include a load bearing study that determines whether the pole requires reinforcement or replacement in order to accommodate attachment of proposed Equipment. • If the Equipment 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 conduits) and cables currently installed and/or proposed to be modified. • Description of the utility services required to support the Equipment. • List of the contractors and subcontractors, and their contact information, authorized to work on the project. • A check for the applicable Application Fee made payable to the City of Santa Ana (refer to Section 5.1 of the Municipal Facilities License Agreement). APPLICANT SIGNATURE: PRINT NAME: TITLE: B-1 190735027_1