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HomeMy WebLinkAboutCity Council - 2017-50 RESOLUTION NO. 2017-50 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF HUNTINGTON BEACH / APPROVING THE TEMPLATE SMALL CELL LICENSE AGREEMENT AND DELEGATING THE AUTHORITY TO THE CITY MANAGER AND CITY ATTORNEY T1O EXECUTE SMALL CELL LICENSE AGREEMENTS ON BEHALF OF TH/CITY F HUNTINGTON BEACH WHEREAS, on August 7, 2017 the Huntington Beach City Council hel a public hearing in which it adopted Ordinance No. 4136 amending Chapter 230 of the Hunt gton Beach Zoning and Subdivision Ordinance relating to Wireless Communications Fa6ilities (Zoning Text Amendment No. 17-003) ("Wireless Ordinance"); and The City of Huntington Beach has acquired a significant Zmber of street lights, located within the public rights-of--way, from Southern Californi7,easornable, /("SCE"); and The City Council desires to provide fair, nondiscriminatory, and nonexclusive access to City-owned streetlights with' te public rights-of-way to wireless telecommunication companies ("Wireless Carriers") install utility mounted telecommunication equipment on City-owned street lights and other rtical infrastructure as identified by the City in accordance with a License Agreement, and t Wireless Ordinance, for purposes of increasing wireless coverage in underserved portions of t e City; and The Wireless Ordinance requires ireless Carriers to enter into a license agreement to install Small Cell Sites on City-owned treet lights; and In order to expedite the a roval process of Small Cell Sites, the City Council desires to create a template agreement t be used with certain licensing of City property to Wireless Carriers pursuant to the City' Wireless Ordinance and to delegate authority to the City Manager and City Attorney to exec e the License Agreement attached hereto; and NOW, THER ORE, the City Council of the City of Huntington Beach does hereby resolve as follows: Sectio The City Council hereby approves the Small Cell License Agreement template, att ched hereto as Exhibit "A" and incorporated herein by reference. ection 2. The City Council hereby authorizes the City Manager and City Attorney to enter ' to Small Cell License Agreements on behalf of the City in the form attached hereto. Avv Itc-1 16/l -T a/ 17-5952/167045/RLS 8/2/17/mv 1 RESOLUTION NO. 2017-50 PASSED AND ADOPTED by the City Council of the City of Huntington Beach at a regular meeting thereof held on the day of October, 2017. Mayor REVIEWED AND APPROVED APPROVED A TO FORM City Manager C'{y Attorney � v I TIATED AND APPROVED Deputy Diree�r Office of Business Development 17-5952/167045/RLS 8/2/17/mv 2 E X HIBIT A SMALL CELL LICENSE AGREEMENT THIS SMALL CELL LICENSE AGREEMENT (the"Agreement") is dated as of , 20 (the "Effective Date"), and entered into by and between the City of Huntington Beach, a municipal corporation of the State of California ("LICENSOR" or "City"), and ("LICENSEE"). Recitals A. WHEREAS, the LICENSOR is the owner of certain Pole ocated in the Rights-of-Way of the City of Huntington Beach; and B. WHEREAS, LICENSEE desires to use spac on certain of the LICENSOR's Poles for installation, operation and maintenanc of its Small Cell and/or Equipment, permitted by the Federal Communications Co ission ("FCC") and in accordance with all Laws including but not limited to FC rules and regulations and the City's Municipal Code; and D. WHEREAS, LICENSEE wishes to cate, place, attach, install, operate, control, and maintain Small Cell and/or Equipm t on the Poles in the Rights-of-Way, owned by the LICENSOR; and E. WHEREAS, LICENSEE a owledges that before obtaining a license, LICENSEE must first obtain a Site Licen F. WHEREAS, LICEN E is willing to compensate the LICENSOR in exchange for a grant and right to L' ense portions of the Poles. Agreement NOW, THEREFO for good and valuable consideration, the receipt and sufficiency of which e hereby acknowledged, the parties agree to the following covenants, terms, and nditions: 1. DEFINIT NS. The following definitions shall apply generally to the provisions oft ' Agreement: 1. Equipment. "Equipment" means the equipment cabinets, antennae, high ower radios (up to 2), utilities and underground fiber optic cables, wires, meters and related equipment, whether referred to singly or collectively, to be installed and operated by LICENSEE only as approved by the City under a particular Wireless Permit and that comprise a Small Cell installation. 17-5952/167054/RLS 8/2/17/mv I 1.2 Information service. "Information service" means generating, acquiring, storing, transforming, processing, retrieving, utilizing, or making available information and content via telecommunications, and includes electronic publishing, as the same may evolve over time. 1.3 Laws. . "Laws" means any and all applicable Federal, State and cal statutes, constitutions, ordinances, resolutions, regulations, judicial de 'sions, rules, tariffs, administrative orders, certificates, orders, or other legal re irements as such Laws may be amended from time to time. 1.4 Municipal Facilities. "Municipal Facilities" means LI NSOR-owned property including City-owned Light Poles ("Poles" or "Ci Poles"), lighting fixtures,or electroliers located within the ROW and may re r to such facilities in the singular or plural, as appropriate to the context in whi used. 1.5 .Network. "Network" or collectively `Networks" means the telecommunication network operated by LICENSE to serve its customers. 1.6 Poles. "Poles" shall mean any pole(s that is owned and/or Licensed by the LICENSOR. 1.7 PUC. "PUC"means the Califo a Public Utilities Commission. 1.8 Rights-of-Way. "Rights-o -Way" or "ROW" means public property including air space, owned, de cated, granted, held, prescriptively used, by LICENSOR or otherwise auth ized by patent of the United States of America, for or by LICENSOR. 1.9 Small Cell. "S 11 Cell" shall mean equipment at a node/location that transmits and/or provi es connection to a mobile communication system and complies with Hunt' gton Beach Municipal Code and Public Works Design Standards and be a axed to an existing City Pole including a light standard. 1.10 Site. " ite" shall mean the location of the Pole(s) described in Exhibit "A" and depi ed in Exhibit"B", attached hereto. 1.11 Si e Permit. "Site Permit" shall mean a Permit pursuant to Section 12.13.0 0 of the City of Huntington Beach Municipal Code and a Wireless Permit as se forth pursuant to Huntington Beach Zoning and Subdivision Ordinance (" ZSO") Section 230.96. .12 Telecommunications Services. "Telecommunications Services" or "Services" has the same meaning as that term is defined in the United States Code, 47 U.S.C. 153 (53) or any other use authorized by and licensed to LICENSEE by the FCC. 17-5952/167054/RLS 8/2/17/mv 2 2. TERM. 2.1 The initial term of this Agreement shall be for a period of ten (10) ye s (the "Initial Term"), commencing on the first day of the month following tual execution of this Agreement (the "Agreement Commencement Date") an ending on the tenth anniversary thereof, or until the expiration of the ' e Permit whichever is first or unless sooner terminated as stated herein. Th nitial Term may be extended for two (2) additional five (5) year periods upo utual consent of City and Licensee, evidenced in writing. City may withhol consent to extend this Agreement with or without cause, in which case t s Agreement shall terminate. 2.2. The initial term for each particular Site shall the first day of the month following the date LICENSEE has commenced ' stallation of its Small Cell and/or Equipment at a particular location pu uant to the Site Permit (the "Commencement Date") and shall be for an i tial term of ten (10) years ("Site Initial Term"). In no event shall the Comm cement Date be later than 60 days from approval of the Site Permit, and w' in 180 days if a new pole is to be installed. Should LICENSEE fail to co ence construction within the 60 or 180 day period, the License as to that Smal ell shall terminate. 2.3. The Site Permit Initial Te and all Site Permit Renewal Terms shall be collectively referred to herein s the "Site Permit Term." Notwithstanding anything herein, after the exp' ation of this Agreement, its terms and conditions shall survive and govern wi respect to any remaining Small Cell location that has a Site Permit in effect til the expiration or termination of the Site License. 3. REPRESENTATION ONCERNING SERVICES; TERMINATION WITHOUT CADS . This License shall automatically terminate without any notice from City in the vent the LICENSEE ceases to operate as a provider of Telecommunications Ser ices under applicable Federal, State or Local law or the Site is found to jeopardize p lic health and safety. In the event the License terminates as described above, LIC SEE shall remove its Small Cell and/or Equipment no later than 90 days from the to of such termination at its sole cost and expense, and shall be required to retu he site to its condition prior to installation as required by the City Engineer at the censee's sole cost and expense. In the event e LICENSOR at its sole discretion determines LICENSEE has failed to fulfill its o igation as provided under this License Agreement, LICENSOR shall provide LICENS written notice detailing the obligations which the LICENSOR claims LICEN E has failed to fulfill and notify LICENSEE that it is deemed to be in breach of this L' ense Agreement. LICENSEE shall have 30 days to remedy breach. If breach is not ed within 30 days, then the LICENSOR may terminate the Agreement by issuing en notice to LICENSOR and this License Agreement shall terminate no sooner than t (10) days from the date of issuance of the notice. Upon termination, LICENSEE shall emove its Equipment pursuant to Section 6.4. LICENSEE may terminate this License 17-5952/167054/RLS 8/2/17/mv 3 Agreement by providing LICENSOR with 60-day written notice. In the event the License, with the exception of hazardous conditions that jeopardize public health and safety, is terminated, City shall determine at its sole discretion whether any particular Site Permit shall also Terminate and in the case of any Site Permit termination, LICENSOR shall remove all Small Cell components and/or Equipment from City ROW ins talle pursuant to this License Agreement no later than 90 days from the date of s ch termination and return the ROW (including Light Pole) to its condition be the installation at Licensee's sole cost. 4. SCOPE OF AGREEMENT. Any and all rights expressly granted LICENSEE under this License Agreement, which shall be exercised at LICENSE s sole cost and expense, shall be subject to the prior and continuing right of the ICENSOR under applicable Laws to use any and all parts of the ROW exclusively concurrent licenses with any other person or entity and shall be further subject t all deeds, easements, dedications, conditions, covenants, restrictions, encumbranc , and claims of title of record which may affect the ROW as of the date of the indiv' ual Site . 4.1 Plan for Attachment to City Poles or unicipal Facilities. Prior to installation, LICENSEE will submit to the authorized representative of the LICENSOR a proposed plan for the de ign for any proposed Small Cell installations that will include all Equ' ment LICENSEE proposes to use. LICENSEE shall include in the plan p of of Insurance, a provision to provide City employees and contractors wit safety training related to the Small Cell and/or Equipment and installatio . City may reject the plan including any component thereto at its sole dis etion and said Small Cell shall not be allowed as part of this License Agreeme t. Any approved Plan shall be included as part of an applicable Site Permit. 4.1.1 Subject t the conditions of this License Agreement and as authorized by e Huntington Beach Municipal Code including the HBZSO, LIC SEE may enter upon the ROW to locate, place, attach, install, oper e, maintain, control, remove, reattach, reinstall, relocate, and replace S all Cell and/or Equipment permitted and approved by the City in or on ity Pole providing Telecommunications Services. 4.1. LICENSEE will make arrangements with Southern California Ed' on to provide the Equipment with power as approved in the c nstruction plans. Payment for said power is the sole responsibility of ICENSEE. LICENSEE will power its equipment in a way as to reduce the disruption to City-owned equipment or facilities. All work subcontracted by Licensee, including electric work, shall be performed by a licensed contractor that is approved by the LICENSOR. 4.1.3 Prior to execution of any License to install or operate a Small Cell, Licensee shall obtain and/or possess any required City, State of Federal permits or licenses. 17-5952/167054/RLS 8/2/17/mv 4 r 4.1.4 If LICENSEE selects a Pole that is structurally inadequate to accommodate Equipment, at the City's sole discretion with prior written,/' approval, LICENSEE may, at its sole cost and expense, replace the Pole(a "Replacement Pole") with one that is acceptable to and approved by{he LICENSOR and dedicate such Replacement Pole to the LICENSORe/ 4.2 No Interference. LICENSEE in the performance and exercise of its rights and obligations under this Agreement shall not interfere in any manner with the existence and operation of any and all public and priv /rights-of-way, sanitary sewers, water mains, storm drains, gas mains, poles, aerial and underground electrical and telephone wires, traffic signals,,' wired and wireless telecommunications facilities owned by the LICE"MSOR or Third Party; electroliers, cable television, location monitoring - - / s, 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. However, the LICENSOR agrees that its tenants, licensees, or users of the ROW who currently have or in the future take P ssession of space within the ROW within three hundred feet (300') of any LICENSEE Small Cells will be permitted to install only such components and/or equipment that is of the type and frequency which will not cause hrrystandards riful interference which is measurable in accordance with then existing indus to the then existing equipment of LICENSEE. 4.3 Permits; Default. Whenever LICENSEE is in default of this Agreement or an applicable Permit, after notice and a 30-day cure period in any of its obligations under this Agreement, the LICENSOR may suspend this License and deny encroachment, e 'avation or similar work until such time as LICENSEE cures all of its defaul . 4.4 No Auth rization to Provide Other. Services. LICENSEE represents, warrants and c enants that its Small Cell and/or Equipment installed pursuant to this Agreem t and each Site Permit will be utilized solely for providing the Telecomm cations Services identified herein and LICENSEE is not authorized to and sh not use its Small Cell and/or Equipment to offer or provide any other service of specified herein. 4.5 Nonexclusive Use Rights. Notwithstanding any other provision of this A eement, any and all rights expressly or impliedly granted to LICENSEE under .s Agreement shall be non-exclusive, and shall be subject and subordinate to LICENSOR use of the ROW including: (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, 17-5952/167054/RLS 8/2/17/mv 5 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. S. COMPENSATION. LICENSEE shall be solely responsible for the payment o all fees in connection with LICENSEE's performance under this Agreement, inclu ing those set forth below. 5.1 License Fee. In order to compensate the LICENSOR for L ENSEE's entry upon and deployment of Small Cell and/or Equipment on Ci owned Poles, LICENSEE shall at the commencement of each Site Te pay to the LICENSOR, on an annual basis, an amount of one thousand e hundred dollars ($1,500.00) per Pole (the "License Fee"). LICENSEE hall make the first payment of License Fee under any Site Permit within thkrty (30) days of the full execution of the Acknowledgment. Thereafter, Licen /Fee shall be paid on or before each anniversary of the Commencement Date uring the Site Permit Term. 5.2 License Fee Adjustment. Effective , n the first anniversary of the Commencement Date of any Site Permit Te , and continuing annually thereafter during the applicable Site Term, the Lice e Fee shall be subject to adjustment ("Adjusted License Fee"), in the manner ereinafter set forth, with a floor of 3% and a ceiling of 8% every year, for inc uses in the index known as United States Department of Labor, Bureau of L or Statistics, Consumer Price Index, All Urban Consumers, Los Angeles- aheim-Riverside Statistical Area Average, All Items, (1982 84=100) ("CPI" or the successor index that most closely approximates the CPI. In o event shall the Adjusted License Fee, after adjustment under the prov' ions set forth above, be less than the amount of License Fee in effect here der immediately prior to such adjustment. 5.3 Business Lice se. The Licensee shall obtain a Business License from the City and pay all app 'cable taxes, or fees associated with performance of the terms contained herein. 5.4 Paym t. LICENSEE shall pay the License Fee monthly to City at the City Treasu is Office, P.O. Box 711, Huntington Beach, California, 92648, or at such other lace or places as City may from time-to-time designate by written notice d ivered to LICENSEE. LICENSEE shall pay the License Fee, which must received by the City Treasurer within fifteen(15) calendar days ("Due Dat ') on the anniversary of the Commencement Date, or on the next business d if the fifteenth day falls on a weekend or holiday. License Fee mailed ayments 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. 17-5952/167054/RLS 8/2/17/mv 6 Notwithstanding the foregoing, upon agreement of the parties, LICENSEE may pay License Fee by electronic funds transfer and in such event, the LICENSOR agrees to provide to LICENSEE bank routing information for such purpose upon request of LICENSEE. 5.5 Delinquent Payment. If LICENSEE fails to pay any amounts e pursuant to this Agreement after sixteen (16) days from the Due Date, or th ext business day if the day falls on a weekend or holiday, LICENSEE shall ay the following late charge and penalty: a late payment charge shall equal t n percent (10%) of the amount due to the City, or ten percent (10%) of t e amount remaining unpaid to the City if a portion was timely paid. Interes hall accrue on all unpaid monies due, exclusive of late payment charges, at the rate of one half of one percent per month of the total amount due from the date e amount becomes delinquent until the date that all delin/in uent amounts are pa' to the City. 5.6 Additional Remedies. The rovision set forth in §5.5 above are not exclusive, and do not precludeENEO from pursuing any other or additional remedy including termins Li rise agreement and all permits issued thereto in the event that paymo overdue by more than 60 days. 6. CONSTRUCTION. LICENSEE sly with all applicable Federal, State, and City codes related to the constructiollation, operation, maintenance, and control of LICENSEE's Small Cell and/or ent installed in the ROW. Except as otherwise provided herein, LICENSEE shaach, install, maintain, or operate any Small Cell and/or Equipment in or on e ROW without obtaining all City permits including a wireless permit and with ditional prior written approval of an authorized representative of the LICENSOR for ch location. 6.1 Obtaining Requir d Site Permits. LICENSEE shall apply for and obtain all appropriate permits and pay all applicable permit fees and/or taxes as a condition precedent o installation of any Small Cell and/or Equipment contemplated in t s License Agreement. LICENSEE shall maintain all appropriate permi and pay all applicable permit fees and/or taxes. 6.2 Reloc on and Displacement of Equipment. LICENSEE understands, acknowledg and agrees that LICENSOR may require LICENSEE to relocate one or mo of its Small Cell and/or Equipment installations. LICENSEE shall at LICENS R's direction and upon ninety (90) days prior written notice to LIC EE, relocate such Small Cell and/or Equipment at LICENSEE's sole cost and xpense whenever LICENSOR reasonably determines that the relocation is ne ded for any of the following purposes: (a) if required for the construction, odification, completion, repair, relocation, or maintenance of a LICENSOR or other public agency project; (b) because the Small Cell and/or Equipment is interfering with or adversely affecting proper operation of LICENSOR-owned Poles, traffic signals, communications, or other Municipal Facilities; or (c) to protect or preserve the public health or safety including aesthetics as determined 17-5952/167054/RLS 8/2/17/mv 7 by the LICENSOR at its sole discretion. In any such case, LICENSOR shall use reasonable efforts to afford LICENSEE a reasonably equivale/ENR ate location. If LICENSEE shall fail to relocate any Small Cell and/or Equas requested by the LICENSOR in accordance with the foregoing provisioNSOR s be entitled to remove or relocate the Small Cell anuipme at LICENSEE's sole cost and expense, without further notLIC SEE. LICENSEE shall pay to the LICENSOR actual costs and expe ed by theLICENSOR in performing any removal work and any storaCENSEE'sproperty after removal within thirty (30) days of the date of a demand forthis payment from the LICENSOR. To the extent the LIC has actualknowledge thereof, the LICENSOR will attempt promptly t normLICENSEE of the displacement or removal of any Pole on which y Small Cell and/or Equipment is located. If the Municipal Facility is d aged or downed for any reason, and as a result is not able to safely hold the quipment, the LICENSOR will have no obligation to repair or replace such M nicipal Facility for the use of LICENSEE's Equipment and assume no 10 whatsoever to LICENSEE. LICENSEE shall bear all risk of loss as a result of damaged or downed Municipal Facilities pursuant to §6.8 below, and in choose to replace such Municipal Facilities pursuant to the provisions of§4. .5 above. 6.3 Damages Caused by LICEN E. LICENSEE shall, at its sole cost and expense and to the satisfaction of t LICENSOR: (a) remove, repair or replace any of its Small Cell and/or Eq i ment that is damaged or becomes detached; and/or (b) repair any damage to OW, City Pole or other property, whether public or private, caused by LIC EN EE, its agents, employees or contractors in their actions relating to attachm t, operation, repair or maintenance of Small Cell and/or Equipment. If LIC SEE does not remove, repair or replace such damage to its Small Cell and/or quipment or to ROW, City Pole of Facilities or other property, the LICENS R shall have the option, upon 30 days' prior written notice to LICENSEE, to rform or cause to be performed such removal, repair, or replacement on be alf of LICENSEE and shall charge LICENSEE for the actual costs incurred b the LICENSOR. If such damage causes a public health or safety emerge y, as reasonably determined by the LICENSOR, the LICENSOR may immedi tely perform reasonable and necessary repair or removal work on behalf of L ENSEE and will notify LICENSEE as soon as practicable; provided, such rep .r work only involves reattachment of LICENSEE's Small Cell and/or Equip nt to a Pole or repair of the Pole itself, and shall not include any technical work n LICENSEE's Equipment. Upon the receipt of a demand for payment by the ICENSOR, LICENSEE shall within 30 days of such receipt reimburse the L ENSOR for such costs. The terms of this provision shall survive the xpiration, completion or earlier termination of this Agreement. 6.4 Removal of Equipment. Within 90 days after the expiration or earlier termination of this Agreement, and/or a Site Permit, LICENSEE shall at its sole cost, safely and carefully remove the Small Cell and/or Equipment from all Municipal Facilities and ROW. Such obligation of LICENSEE shall survive the 17-5952/167054/RLS 8/2/17/mv 8 expiration or earlier termination of this Agreement. If LICENSEE fails to complete this removal work pursuant to this Section, then the LICENSOR, 4KOln written notice to LICENSEE, shall have the right at the LICENSOR' sole election, but not the obligation, to perform this removal work a�d charge LICENSEE for the actual costs and expenses, including, withou limitation, reasonable administrative costs. LICENSEE shall pay to the LIC SOR actual costs and expenses incurred by the LICENSOR in performing removal work and any storage of LICENSEE's property after removal withi thirty days of the date of a written demand for this payment from the LI NSOR. After the LICENSOR receives the reimbursement payment fro LICENSEE for the removal work performed by the LICENSOR, the LI NSOR shall promptly make available to LICENSEE the property belonging o LICENSEE and removed by the LICENSOR pursuant to this Section at no l' bility to the LICENSOR. If the LICENSOR does not receive reimbursem nt payment from LICENSEE within such thirty days, or if LICENSOR does of elect to remove such items at the LICENSOR's cost after LICENSEE's f ure to so remove pursuant to this Section, or if LICENSEE does not remove ICENSEE's property within 30 days of such property having been mad available by the LICENSOR after LICENSEE's payment of removal re' ursement as described above, any items of LICENSEE's property remaining n or about the ROW, Municipal Facilities, or stored by the LICENSOR after e LICENSOR's removal thereof may, at the LICENSOR's option, be deemed bandoned and the LICENSOR may dispose of such property in any marine by Law. If LICENSOR incurs e-waste and hazardous disposal fees as art of any Federal, State, or Local regulatory environmental requirement LICENSOR shall have the option to bill LICENSEE for said disposal fees an LICENSEE agrees to reimburse LICENSOR within thirty (30) days of eceiving reimbursement request. Alternatively, the LICENSOR may el t to take title to abandoned property, provided that LICENSEE shall s mit to the LICENSOR an instrument satisfactory to the LICENSOR trans f ing to the LICENSOR the ownership of such property. The provisions of this ection shall survive the expiration or earlier termination of this Agreement. 6.5 Ris of Loss. LICENSEE acknowledges and agrees that LICENSEE, subject to he terms of this Agreement bears all risks of loss or damage or /installe o or replacement of its Small Cell and/or Equipment and materials in the ROW or on Municipal Facilities pursuant to this Agreement from se, and the LICENSOR shall not be liable for any cost of replacement or ir to damaged Equipment, including, without limitation, damage caused by ENSOR's removal of the Equipment, except to the extent that such loss or was caused by the willful misconduct or negligence of the LICENSOR, g, without limitation, each of its elected officials, department directors, rs, officers, agents, employees, and contractors, subject to the limitation of provided in §7.2 below. 17-5952/167054/RLS 8/2/17/mv 9 7. INDEMNIFICATION AND WAIVER. LICENSEE agrees to inde , defend, protect, and hold harmless the City of Huntington Beach, its City Council r any elected official its members, officers, officials, employees or agents from and a inst any and all claims, demands, losses, including Pole warranty invalidation, damages, liabilities, fines, charges, penalties, administrative and judicial proceed and orders, judgments, and all costs and expenses incurred in connection the ewith, including attorney's fees and costs of defense (collectively, the "Losses") esulting from this Agreement, except to the extent that the Losses are caused by e LICENSOR's sole negligence or willful misconduct. 7.1 Waiver of Claims. LICENSEE waives y and all claims, demands, causes of action, and rights it may assert again the LICENSOR on account of any loss, damage, or injury to any Small Ce and/or Equipment or any loss or degradation of the Telecommunications S ices or Information Service as a result of any event or occurrence which ' beyond the reasonable control of the LICENSOR. 7.2 Waiver of Subrogation. T parties hereby waive and release any and all rights of action for negligence ainst the other which may hereafter arise on account of damage to Municip Facilities, Small Cell or to the ROW, resulting from any fire, or other casu ty of the kind covered by standard fire insurance policies with extended co erage, regardless of whether or not, or in what amounts, such insurance is now or hereafter carried by the. parties, or either of them. These waivers d releases shall apply between the parties and they shall also apply to any cla' s under or through either party as a result of any asserted right of subrogatio . All such policies of insurance obtained by either party concerning the nicipal Facilities, Small Cell or the ROW shall waive the insurer's right o ubrogation against the other party. 7.3 Lim' ation on Consequential Damages. Neither party shall be liable to the other, any of their respective agents, representatives, employees for any lost revenue, ost profits, loss of technology, rights or services, incidental, punitive, indirec , special or consequential damages, loss of data, or interruption or loss of use o service, even if advised of the possibility of such damages, whether under the ry of contract, tort (including negligence), strict liability or otherwise 8. ECURITY FOR PERFORMANCE. Before any construction begins in the ROW by LICENSEE, and if requested by LICENSOR, LICENSEE shall provide the LIC NSOR with performance bonds, and if considered necessary by the LICENSOR, pa ment bonds, in amounts equal to the full amount of the replacement of each Pole. The yment bond shall be solely for the protection of claimants supplying labor or materials or the required construction work and the performance bond shall be solely for the protection of the LICENSOR, conditioned upon the faithful performance of the required construction work. Bonds shall be executed by a surety company duly authorized to do business in Huntington Beach, and acceptable to the LICENSOR and shall be kept in place for the duration of the work. 17-5952/167054/RLS 8/2/17/mv 10 9. INSURANCE. LICENSEE shall obtain and maintain at all times during the term of this Agreement Commercial General Liability insurance with a limit of$2,000,000 per occurrence for bodily injury and property damage and $2,000,000 general aggregat including premises-operations, contractual liability, personal injury and prod is completed operations; and Commercial Automobile Liability insurance coveri g all owned non-owned and hired vehicles with a limit of$1,000,000 each accident bodily injury and property damage. In any case, the Commercial General Liabili insurance policy shall name the LICENSOR, its commission members, officers, an employees as additional insured as respects any covered liability arising out LICENSEE's performance of work under this Agreement. Coverage shall be in occurrence form and in accordance with the limits and provisions specified herein. pon receipt of notice from its insurer LICENSEE shall use its best efforts to provi the LICENSOR with thirty (30) days prior written notice of cancellation. LICENSE shall be responsible for notifying the LICENSOR of such change or cancellation. 9.1 Filing of Certificates and Endorsemen . Prior to the commencement of any work pursuant to this Agreement, LICE EE shall file with the LICENSOR the required certificate(s) of insuranc with blanket additional insured endorsements, which shall state the folio ng: (a) the policy number; na e of insurance company; name and address of the agent or authorized epresentative; name and address of insured; project name; policy expi tion date; and specific coverage amounts; (b) that LICENS 's Commercial General Liability insurance policy is primary as resp is any other valid or collectible insurance that the LICENSOR ma possess, including any self-insured retentions the LICENSOR m have; and any other insurance the LICENSOR does possess shall e considered excess insurance only and shall not be required to ntribute with this insurance; and (c) t at LICENSEE's Commercial General Liability insurance policy waive any right of recovery the insurance company may have against the LIC SOR. The cert' icate(s) of insurance with endorsements and notices shall be mailed to the LI NSOR at the address specified in §10 below. 9.2 Workers' Compensation Insurance. LICENSEE shall obtain and intain at all times during the term of this Agreement statutory workers' ompensation and employer's liability insurance in an amount not less than One Million Dollars ($1,000,000) 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 17-5952/167054/RLS 8/2/17/mv 11 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 "separati of insureds" clauses shall be made a part of the Commercial General LiabJ ty and Commercial Automobile Liability policies. 10. NOTICES. 10.1 Method and Delivery of Notices. All notices w ich shall or may be given pursuant to this Agreement shall be in writing and elivered personally or transmitted (a) through the United States mail, by re .stered or certified mail, postage prepaid; or (b) by means of prepaid overnig delivery service, addressed as follows: if to the LICENSO . City of Huntingt Beach Office of Busi ess Development Attention: puty Director 1685 Mai Street Huntin on Beach, CA 90401 if t LICENSEE: 10.2 Date of otices; Changing Notice Address. Notices shall be deemed given upon ree eipt in the case of personal delivery, three days after deposit in the mail, or th next business day in the case of facsimile, email, or overnight delivery. ither party may from time to time designate any other address for this purpose y written notice to the other parry delivered in the manner set forth above 11. RE RVED 12. SSIGNMENT. This Agreement may be assigned by LICENSEE to any parent co any, subsidiary, affiliate, or corporation that shall control, be under the control of, or be nder common control of the LICENSEE or to any entity into which LICENSEE may ve merged, consolidated, acquired the assets of the LICENSEE that are subject to this Agreement in its entirety, substantially, or partially, with the express written consent of the LICENSOR, of which consent shall not be unreasonably withheld. 17-5952/167054/RLS 8/2/17/mv 12 13. RECORDS; AUDITS. 13.1 Records Required by Code. LICENSEE will maintain complete reco s pursuant to all applicable Laws. 13.2 Additional Records. The LICENS/ICENSEE, y require such dditional reasonable non-confidential information, and doc ents from LICENSEE from time to time as are approprrder to rea nably monitor compliance with the terms of this Agreement. 13.3 Production of Records. LICENSEEovi e such records within twenty (20) business days of a request by theS R for production of the same unless additional time is reasonably neeICENSEE, in which case, LICENSEE shall have such reasonable time ad for the production of the same. If any person other than LICENSEE s records on LICENSEE's behalf, LICENSEE shall be responsibleformch records available to the LICENSOR for auditing purposes pursuant t his Section. 14. MISCELLANEOUS PROVISIONS. he provisions that follow shall apply generally to the obligations of the parties unde this Agreement. 14.1 Waiver of Breach. The w iver by either party of any breach or violation of any provision of this Agree ent shall not be deemed to be a waiver or a continuing waiver of any subs uent breach or violation of the same or any other provision of this Agreement. 14.2 Severability of P ovisions. If any one or more of the provisions of this Agreement shall be he by a court of competent jurisdiction in a final judicial action to be void, vo' able, or unenforceable, such provision(s) shall be deemed severable from the r maining provisions of this Agreement and shall not affect the legality, validity, constitutionality of the remaining portions of this Agreement. Each parry here b declares that it would have entered into this Agreement and each provision here regardless of whether any one or more provisions may be declared illegal, invali , or unconstitutional. 14.3 C ntacting LICENSEE. LICENSEE shall be available to the staff employ es of any LICENSOR department having jurisdiction over LICENSEE's activi es 24 hours a day, seven days a week, regarding problems or complaints res ing from the attachment, installation, operation, maintenance, or removal of t Equipment. The LICENSOR may contact by telephone the network control enter operator at telephone number regarding such problems or complaints. 14.4 Governing Law; Jurisdiction. This Agreement shall be governed and construed by and in accordance with the laws of the State of California, without reference to its conflicts of law principles with jurisdiction in the courts of the 17-5952/167054/RLS 8/2/17/mv 13 County of Los Angeles. If suit is brought by a parry to this Agreement, the partie agree that trial of such action shall be vested exclusively in the state court of California. 14.5 Attorneys' Fees. Should any dispute arising out of this Agr ment lead to litigation, the prevailing parry shall NOT be entitled to recover it costs of suit, including (without limitation) reasonable attorneys' fees. 14.6 Consent Criteria. In any case where the approval o consent of one party hereto is required, requested or otherwise to be given un r this Agreement, such party shall not unreasonably delay, condition, or wit d its approval or consent. 14.7 Representations and Warranties. Each the parties to this Agreement represents and warrants that it has the full r' t, power, legal capacity, and authority to enter into and perform the party' respective obligations hereunder and that such obligations shall be bin 'ng upon such party without the requirement of the approval or consent of y other person or entity in connection herewith, except as provided in § 4.2 above. This Agreement shall not be revocable or terminable except as exp ssly permitted herein. 14.8 Amendment of Agreeme . This Agreement may not be amended except pursuant to a written instrument igned by both parties. 14.9 Entire Agreement. This Agreement contains the entire understanding between the parties with espect to the subject matter herein. There are no representations, agreeme ts, or understandings (whether oral or written) between or among the parties r ating to the subject matter of this Agreement which are not fully expressed rein. In witness whereof, and in order to bind themselves legally to the to s and conditions of this Agreement, the duly authorized representatives o the parties have executed this Agreement as of the Effective Date. 14.10 Publ Records. LICENSEE acknowledges that information submitted to the LICEN OR may be open to public inspection and copying under state law. 14. 11 on-Exclusive Remedies. No provision in this Agreement made for the purpo e of securing enforcement of the terms and conditions of this Agreement shal e deemed an exclusive remedy or to afford the exclusive procedure for the e rcement of said terms and conditions, but the remedies herein provided are d emed 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 17-5952/167054/RLS 8/2/17/mv 14 duties, obligations, and responsibilities of the LICENSOR with respect to third parties shall remain as imposed by state law. 14.13 Construction of Agreement. The terms and provisions f this Agreement shall not be construed strictly in favor of or against ei er party, regardless of which party drafted any of its provisions. This Agree ent shall be construed in accordance with the fair meaning of its terms. 14.14 Effect of Acceptance. LICENSEE (a) accepts and a ees to comply with this Agreement and all applicable federal, state and local 1 s and regulations; (b) agrees that this Agreement was granted pursuant to ocesses and procedures consistent with applicable law; and (c) agrees that it w' not raise any claim to the contrary or allege in any claim or proceeding agai t the LICENSOR that at the time of acceptance of this Agreement any prov' ion, condition or term of this Agreement was unreasonable or arbitrary, or t t at the time of the acceptance of this Agreement any such provision, condition r term was void or unlawful or that the LICENSOR had no power or authority make or enforce any such provision, condition or term. 14.15 Time is of the Essence. T e is of the essence with regard to the performance of all of LICENSEE' bligations under this Agreement. 14.16 Compliance with La . LICENSEE shall at all times comply with all applicable Federal, State an Local laws and regulations, including any permit requirements or conditions. [Signature page follows 17-5952/167054/RLS 8/2/17/mv 15 IN WITNESS WHEREOF, the parties have caused this Agreement to be execut the day and year first above written. "LICENSEE" "LICENSOR" and " TY" CITY OF HUN GTON BEACH, municipal co oration of the State of California By: Ci Manager Its: APPROVED AS TO FORM: By: Its: City Attorney Exhibits: Exhibit A— PS Coordinates & Depiction Exhibit B - Site Permit 17-5952/167054/RLS 8/2/17/mv 16 Exhibit"A" GPS Coordinates 17-5952/167054/RLS 8/2/17/mv 17 Exhibit "B" Map 17-5952/167054/RLS 8/2/17/mv 18