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Boldyn Networks US LLC (Formerly Mobilitie LLC) - 2017-12-18 (2)
DocuSign Envelope ID:77339A23-178F-4B2D-9C88-7057E4F1B50A 24O I Boldyn Networks LLC 121 Innovation Dr Dr Stee 200 Irvine,CA 92617 NETWORKS 949-515-1500 I www.boldyn.com July 1, 20 City of Huntington Beach Office of Business Development 1685 Main Street Huntington Beach, CA 90401 Attn: Deputy Director RE: Notice of Site Permit Terminations Dear Deputy Director: Reference is made to that certain Small Cell License Agreement dated December 18, 2017 (the "Agreement") by and between the City of Huntington Beach and Boldyn Networks US LLC(f/k/a Mobilitie, LLC) ("Boldyn Networks"). Capitalized terms used but not otherwise defined herein shall have the meanings set forth in the Agreement. Pursuant to Section 3 of the Agreement, Boldyn Networks hereby provides notice of removal and termination of each Site Permit for the pole locations listed on Exhibit A attached hereto, with such termination effective August 27, 2024. Boldyn Networks has performed any necessary removal and restoration work at the pole locations listed on Exhibit A; therefore, Boldyn Networks has no attachments, Equipment, or other wireless facilities to remove. As of the termination effective date listed above, Boldyn Networks will no longer be liable for any additional annual fees. If you have any questions, please contact Sean Lacey, Director, Contracts, at (312) 859-2596 or sean.lacey@boldyn.com. Thank you for your attention to this matter. Best regards, Boldyn Networks US LLC DocuSigned by: S aSS 'Cl 4ei4Stass Senior Vice President, General Counsel Attachments (1): Exhibit A — Site Permits [SEC=PROTECTEvy n a care„ y 'ta_hrnents'F any)to the message even f such attachments are ' Such mormato sexcusvely`or he-ad ssee()and no t,er'ames d o he extent x ressiy stated above . .....t,e ressar e, .t re a id pressee,such tee:pent a oruh t tetl turn_ddSnt,or sn,h s nessage n.'xny way.f Jau naee received this ess,rre ea,e 5r,mecre arc rest,,h_ escape and ail sttachrnents. - DocuSign Envelope ID:77339A23-178F-4B2D-9C88-7057E4F1B50A Exhibit A Site Permits List Company Site ID Coordinates Address Municipality No. 1 9CAB014377_A/OG9OXSS57A 33.662821, -118.008962 1302 Pacific Coast Hwy Huntington Beach 2 9CAB014375_A/OG9OXSS55A 33.657526, -117.998177 106 Olive Ave Huntington Beath 3 9CAB004647_C/OG9OXS005C 33.658138, -118.001277 401-451 Walnut Ave Huntington Beach 4 9CAB004665_J/OG9OXS023J 33.711639, -118.041938 4900-4998 Los Patos Huntington Beach Ave 5 9CAB012101__A/OG9OXSA67A 33.664164, -117.997957 701-715 Lake St Huntington Beach 6 9CAB012342_C/OG9OXSD11C 33.661110, -118.006245 114 10th St Huntington Beach 7 9CAB012348_C/OG9OXSD17C 33.656263, -118.000307 101-137 2nd St Huntington Beach [SEC=PROTECTED] Page 2 boldyn Boldyn Networks 00 1ol Innovation Dr Steto 200 Irvine, CA 92617-3094 N i T W O R KS 949-515-1500jwww.boldyn.com 1i ] i i NOV 21 2023 November 17, 2023 By Huntington Beach City Attn: Office of Business Development 2000 Main Street Huntington Beach, CA 90401 RE: Name and Address Change - A02144 Small Cell License Agreement Dear Office of Business Development, Effective June 28, 2023, Mobilitie, LLC was rebranded and underwent a legal name change to Boldyn Networks US LLC. Our new notice address for all legal communication and notices shall be as follows: Boldyn Networks US LLC 121 Innovation Dr Ste 200 Irvine, CA 92617-3094 Attn: Legal Department with a copy to: am.us@boldyn.com Billing shall be as follows: Boldyn Networks US LLC 121 Innovation Dr Ste 200 Irvine, CA 92617-3094 with invoices emailed to: ap.us@boldyn.com and mobilitie-TN@prod.sourcehov.com with remittance emailed to: ar.us@boldyn.com Access, emergencies, or safety-related concerns contact: NOC noc.us@boldyn.com 1-866-265-3961 Agreement or payment concerns contact: Asset Management am.us@boldyn.com 949-515-1500 Please note, we have not assigned, novated, or otherwise transferred your contract, we have simply changed the name of the entity you do business with. Company registration/trade registry numbers, bank account numbers, taxpayer IDs, and other identifiers did not change. Thank you in advance for your cooperation and for updating your systems, invoices, and other forms of correspondence from today. If you are not the right recipient of this communication, please forward to the appropriate person. Sii�nc�errely,,deti di Cyndi Jolly, VP Asset Management [SEC=PROTECTED] City of Huntington Beach :' ; 2000 MAIN STREET CALIFORNIA 92648 • ,4 OFFICE OF BUSINESS DEVELOPMENT tt Business development • Housing • Real Estate 714.536.5582 www.hbbiz.com fax 714.175,5087 Mobilitie, LLC Attn: Barbara Breeden 2955 Red Hill Avenue,Suite 200 Costa Mesa,CA 92626 RE: Street Light Locations Reserved Exclusively for Mobilitie's Right-of-Way Small Cell Project Ms. Breeden, Please accept this letter as confirmation that the City-owned street lights in City of Huntington Beach at the locations below are exclusively reserved for Mobilitie small cell antennas and related equipment. These locations are part of a Master License Agreement which received City Council approval at the December 18, 2017 City Council meeting. Huntington Beach Public Works Engineering is working collaboratively with Mobilitie's Permitting Team to finalize permitting and details of installation. # Cascacm ID Lat Loug Nearby Address Municipality 1 OG9OXS005 OG9OXS005C 9CAB004647-C 33.658138 -118.0013 127 Main Street Huntinscton Beach 2 OG9OXS007 OG9OXS007C 9CAB004649-C 33.65961 -118.00103 500-548 Olive Ave Huntington Beach '9h t f 3 OG9OXS009 OG9OXS009A 9CAB004651-A 33.664156 -118.007335 306 13th St Huntington Beach � 4 4 OG9OXS010 OG9OXS010A 9CAB004652-A 33.665623 -118.007238 402 14th St Huntington Beach 5 0G90XS023 OG9OXS023J 9CAB004665-J 33.711639 -118.041938 4900-4998 Los Patos Huntington Beach r ' 6 OG9OXSA67 OG9OXSA67A 9CAB012101-A 33.664164 -117.997957 701-715 Lake St Huntington Beach CV>. 7 OG9OXSD15 OG9OXSD15C 9CAB012346-C 33.654357 -117.994744 Pacific View Ave Huntington Beach /4't�l U 8 OG9OXSD17 OG9OXSD17C 9CAB012348-C 33.656263 -118.0003 On 2nd St at PCH Huntington Beach 9 OG9OXSD76 OG9OXSD76D 9CAB012508-D 33.733967 -117.995059 7561 Center Avenue Huntington Beach 116 Unless Mobilitie formally withdraws a Wireless Application,no other carrier or carrier's agent may make application for the above-referenced locations. Please note that these sites still require further action before construction may commence. Dated this 20th Day of December,2017 Zik,1BY. Kellee Fritzal SIGNATURE PRINTED NAME TITLE: Deputy Director of the Office of Business Development www.huntingtonbeachca.gov f - CITY OF HUNTINGTON BEACH - 2000 MAIN STREET,HUNTINGTON BEACH,CALIFORNIA 92648-2702 .• OFFICE OF THE CITY MANAGER FRED A.WILSON Mobilitie,LLC Attn:Barbara Breeden 2955 Red Hill Avenue,Suite 200 Costa Mesa,CA 92626 RE: Street Light Locations Reserved Exclusively for Mobilitie's Right-of-Way Small Cell Project Ms.Breeden, Please accept this letter as confirmation that the City-owned street lights in City of Huntington Beach at the locations below are exclusively reserved for Mobilitie small cell antennas and related equipment.Wireless Applications for these small cell sites were submitted and accepted on October 5,2017,with corresponding fees paid in full.A Master License Agreement is in final stages of execution,slated for City Council approval at the upcoming December 18,2017 meeting.Meanwhile,Huntington Beach Public Works Engineering is working collaboratively with Mobilitie's Permittin Team to finalize details of installation. Candidate Po1obiliti2 Cede Candidate ID 14unicipality Location/Arne La±ituda Longitude InctallationType 1 0690X5008B 9CAB004650-B Huntington Beach 7th Stand Walnut 33.659816 -31&40335 Replacement Light Pole • 2 0G90XSO11G 9CA8004659.G Huntington Beach lSthSt and PCH 33.663689 -118A1062 Replacement Light Rote 3 0690XS020A 9CABOO466Z-A Huntington Beach Lynn Lane and lames Orate 33.714139 -118.04566 Replacement Light Pole 4 OG9OXS021A 9CAB004663-A Huntington Beach Sims lane and Warner Ave 33.715575 -118.04799 Replacement Light Pole S OG9OXSASSA 9CAB012089-A Huntington Beach Weymouth and Whitbum 33.681811 117.98584 Replacement Light Pole !E 6 069010844A 9CA8012177-A Huntington Beach Warner at Ocean Breeze Apts . 33.71566 118.01635 Replacement Light Pole 7 0690XS8450 9CA13012178-B Huntington Beach Edwards St and Wrentield Dr 33.713433 -118.0151A Replacement Light Pole 8 OG90XSD04B SCA8012335-B Huntington Beach Warner and Hoskins 33.715473 -1111.04447 Replacement Light Pole 9 OG90XSD11C 9CAB012342-C Huntington Beach 10111 Stand Walnut 33.661199 -118.00615 Replacement Light Pole 10 OG90XSD16C 9CAB012347-C Huntington Beach 6th Stand Walnut Ave 33.668878 41840289 Replacement Light Pate 11 OG90XSE78B 9CA110125084 Huntington Beach Palm and Newland St 33.702243 -11798083 Replacement Light Pole Unless Mobilitie formally withdraws a Wireless Application,no other carrier or carrier's agent may make application for the above-referenced locations.Please note that these sites still require further action before construction may commence. F Dated this Da f November,2017 BY: /�ei/ee n 1.74 / SI A PRINTED NAME Ti rec4 Try Dep r�-f-y r o,¢ ► Fax 714.5365233 Office:714.536.5575 • Dept. ID ED 17-33 Page 1 of 3 Meeting Date: 12/18/2017 APRQOveD -�L o CITY OF HUNTINGTON BEACH REQUEST FOR. CITY COUNCIL ACTION MEETING DATE: 12/18/2017 SUBMITTED TO: Honorable Mayor and City Council Members SUBMITTED BY: Fred A. Wilson, City Manager PREPARED BY: Kellee Fritzal, Deputy Director, Business Development SUBJECT: Approve and authorize execution of a Small Cell License Agreement between the City of Huntington Beach and Mobilitie LLC for installation of small cell attachments on Citv-owned streetlights Statement of Issue: The City Council is asked to approve and authorize the execution of a Small Cell License Agreement between the City of Huntington Beach and Mobilitie LLC to allow the installation of up to 20 wireless attachments on City -owned streetlights. At the November 20, 2017, meeting, City Council directed Staff to conduct additional research pertaining to market rate for small cell attachments. Mobilitie LLC has agreed to the rate of $2,200 per pole. Financial Impact: Revenue from the Agreement will go into the General Fund (10000100.43165) Real Estate Rentals when all 20 attachments are deployed. Recommended Action: A) Approve the "Small Cell License Agreement" between the City of Huntington Beach and Mobilitie, LLC; and, B) Authorize the City Manager and City Clerk to execute the "Small Cell License Agreement." Alternative Action(s): Do not authorize and direct staff accordingly. Analysis: On August 7, 2017, the City Council adopted Zoning Text Amendment (ZTA) No. 17-003 to amend the Huntington Beach Zoning and Subdivision Ordinance (HBZSO) Section 230.69 which revised the review process in which pole mounted small cell sites are reviewed in accordance with City design standards and approved with the issuance of a Site Permit. .Item 13. - 1 HB - i 72- Dept. ID ED 17-33 Page 2 of 3 Meeting Date: 12/18/2017 In addition, the City has finalized its acquisition of the nearly 11,000 streetlights from Southern California Edison, upon which carriers will mount their small cell sites. The Site Permit streamlined the process in which small cell sites are deployed on non -City owned utility poles and City -owned streetlight poles. The Site Permit requires that any wireless carrier interested in mounting a small cell facility on a City -owned streetlight must enter into a separate Small Cell License Agreement ("Agreement") with the City. In order to establish competitive pricing for the streetlights, Staff engaged the services of an appraiser to conduct a market study for Huntington Beach. The appraiser was selected based on their expertise in conducting market studies for the wireless industry and public agencies. After the November 20, 2017, meeting, Staff researched and obtained numerous signed small cell site agreements and pending agreements to identify current market rates. Municipality Company Status - Polaft i nc, C6mmen1~ . rs City of Arcadia Verizon Approved $1,500.00 10 CPI 11 /22/2016 City of Long Beach Crown Approved $1,500.00 3% Dedication of 6.78 Castle 8/15/2017 miles of fiber City of Carlsbad Crown Approved $1,500.00 10 4% $8,000 admin fee, Castle 8/22/2017 $2,000.00 (2 $1,000/pole carriers) reservation fee& $2,500.00 (3 Dedication of 6 carriers) strands of fiber in all installations City of Lake Forest Verizon Pending $2,000.00 City of Newport Mobilitie Pending $2,790.00 5 Pricing established, Beach but other terms being negotiated City of Santa Monica Mobilitie 11/28/2017 $3,204.00 10 4% Submitted & pending City signature City of San Diego Freedom Approved $4,000.00 10 3.5% Telecom 8/18/2016 City of San Diego Mobilitie Approved $4,000.00 10 3.5% 7/11 /2017 City of San Diego AT&T Pending $4,000.00 10 3.5% Submitted & pending City signature Averages $2,721.56 10 3.6% The contracts in the table have been approved by the respective City or are pending approval. The market study revealed a range of rental rates from $1,500/pole/year to $4,000/pole/year. Mobilitie, LLC has expressed interest in entering into a license agreement to install up to 20 small cell wireless attachments onto City -owned street lights. The terms of the Agreement are summarized below: • Term: Five-year • Option: one additional five-year extension • Base Monthly Rent: $2,200/pole/year • Increases: annual CPI increases or 2%, whichever is greater EBB -1733- Item 13. - 2 Dept. ID ED 17-33 Page 3 of 3 Meeting Date: 12/18/2017 The agreed upon base monthly rent with Mobilitie LLC is consistent with the results of the market study. Staff recommends approval of the Small Cell License Agreement with Mobilitie LLC. Environmental Status: Not applicable Strategic Plan Goal: Strengthen economic and financial sustainability Attachment(s): Small Cell License Agreement Item 13. - 3 H B -174- SMALL CELL LICENSE AGREEMENT THIS SMALL CELL LICENSE AGREEMENT (the "Agreement") is dated as of 20/7 (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 Mobilitie, LLC, a Nevada limited liability company ("LICENSEE"). Recitals A. WHEREAS, the LICENSOR is the owner of certain Poles located in the Rights -of -Way of the City of Huntington Beach; and B. WHEREAS, LICENSEE desires to use space on certain of the LICENSOR's Poles for installation, operation, maintenance, repair and replacement of its Small Cell and/or Equipment, permitted by the Federal Communications Conunission ("FCC'') and/or PUC and in accordance with all Laws including but not limited to FCC rules and regulations and the City's Municipal Code; and C. WHEREAS, LICENSEE wishes to locate, place, attach, install, operate, control, and maintain Small Cell and/or Equipment on the Poles in the Rights -of -Way, owned by the LICENSOR; and D. WHEREAS, LICENSEE acknowledges that before obtaining a license, LICENSEE must first obtain a Site Permits; and E. WHEREAS, LICENSEE is willing to compensate the LICENSOR in exchange for a grant and right to license portions of the Poles, on the terms and conditions set forth herein and the respective Site Permits. 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, "Equipment" means the equipment cabinets, antennas, high power 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 Site Permit and that comprise a Small Cell installation. 1 17-6168/170788/MV HB -175- Item 13. - 4 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 Local statutes, constitutions, ordinances, resolutions, regulations, judicial decisions, rules, tariffs, administrative orders, certificates, orders, or other legal requirements as such Laws may be amended from time to time. 1.4 Municipal Facilities. "Municipal Facilities" means LICENSOR -owned property including City -owned 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. 1.5 Network. "Network" or collectively "Networks" means the telecommunication network operated by LICENSEE to serve its customers. 1.6 Poles. "Poles" or "City Poles" shall mean any light pole(s) that is owned and/or licensed by the LICENSOR. 1.7 PUC. "PUC" means the California Public Utilities Commission. 1.8 Rights -of -Way. "Rights -of -Way" or "ROW" means public property including air space, owned, dedicated, granted, held, prescriptively used, by LICENSOR or otherwise authorized, for or by LICENSOR. 1.9 Small Cell. "Small Cell" shall mean equipment at a node/location that transmits and/or provides connection to a mobile communication system and complies with Huntington Beach Municipal Code and Public Works Design Standards and be affixed to an existing City Pole including a light standard. 1.10 Site. "Site" shall mean the location of the Pole(s) described in Exhibit "A" and depicted in Exhibit "B", attached hereto. 1.11 Site Permit. "Site Permit" shall mean a Permit pursuant to Section 12,13.010 of the City of Huntington Beach Municipal Code and a Wireless Permit as set forth pursuant to Huntington Beach Zoning and Subdivision Ordinance ("HBZSO") Section 230.96. 1.12 Telecommunications Services. "Telecommunications Services" or "Services" has the same meaning as that tern is defined in the United States Code, 47 U.S.C. 153 (53) or any other use authorized by the PUC and/or the FCC to LICENSEE. 2 ' 7-r 168/170788/MV Item 1.3. - 5 HB -176- 2. TERM. 2.1 The initial term of this Agreement shall be for a period of five (5) years (the "Initial Term"), commencing on the first day of the month following mutual execution of this Agreement (the "Agreement Commencement Date") and ending on the fifth (5th) anniversary thereof, or until the expiration of the last remaining Site Permit, whichever is later, unless this Agreement is sooner terminated as provided herein. The Initial Term may be extended for one (1) additional five (5) year period (the "Renewal Term") upon an amendment to this Agreement executed in writing. The Initial Term and Renewal Term shall be collectively referred to herein as the "Tern." City may withhold consent to extend this Agreement with or without cause, in which case this Agreement shall terminate. 2.2 The initial term for each particular Site shall be the first day of the month following the date LICENSEE has commenced installation of its Small Cell and/or Equipment at a particular Site pursuant to the applicable Site Permit (the "Commencement Date") and shall be for an initial term of five (5) years ("Site Initial Term"). Each Site Initial Term may be extended for one (1) additional five (5) year period upon an amendment to this Agreement executed in writing (the "Site Permit Renewal Term"). Unless otherwise authorized by the City, in writing, the Commencement Date shall not be later than ninety (90) days from approval of the Site Permit, or within one hundred eighty (180) days if a Replacement Pole is to be installed. Unless otherwise authorized by the City Manager or his/her designee, in writing, should LICENSEE fail to commence construction within the ninety (90) or one hundred eighty (180) day periods, respectively, the license and Site Permit as to that Small. Cell shall terminate. 2.3 The Site Permit Initial Term and Site Permit Renewal Term shall be collectively referred to herein as the "Site Permit Term." Notwithstanding anything herein, after the expiration of this Agreement, its terms and conditions shall survive and govern with respect to any remaining Small Cell location that has a Site Permit in effect until the expiration or termination of the Site Permit. 3. REPRESENTATION CONCERNING SERVICES; TERMINATION. This Agreement shall automatically terminate without any notice from City in the event the LICENSEE ceases to operate as a provider of Telecommunications Services under applicable Laws. In the event this Agreement terminates as described above, LICENSEE shall remove its Small Cell and/or Equipment no later than ninety (90) days from the date of such termination at its sole cost and expense, and shall be required to return the Site to its condition prior to installation as required by the City Engineer at the LICENSEE's sole cost and expense. In the event the LICENSOR at its sole discretion determines LICENSEE has failed to fulfill its material obligation as provided under this Agreement, LICENSOR shall provide LICENSEE written notice detailing the material obligations which the LICENSOR claims LICENSEE has failed to fulfill and notify LICENSEE that it is deemed to be in 3 17-6168/170788/MV K13 -177- Item 13. - 6 default of this Agreement. The determination of material obligations shall be at LICENSEE's discretion. LICENSEE shall have thirty (30) days to cure the default; provided, however, where such default cannot reasonably be cured within thirty (30) days, LICENSEE shall not be in default if it commences to cure such default within said thirty (30) day period and diligently pursues cure to completion, not to exceed ninety (90) days. If default is not cured within the prescribed time frame, then the LICENSOR may terminate the Agreement by issuing written notice to LICENSEE and this Agreement shall terminate no sooner than ten (10) days from the date of issuance of the notice. Upon termination, LICENSEE shall remove its Equipment pursuant to Section 6.4. LICENSEE may terminate this Agreement or any Site Permit by providing LICENSOR with sixty (60) days written notice. Upon the removal of the Small Cell and/or Equipment related to a terminate Site Permit, the obligation of LICENSEE to pay any and all fees hereunder shall automatically cease. In the event this Agreement is tenninated, City shall determine at its sole discretion whether any particular Site Permit shall also terminate. In the case of any Site Permit termination, LICENSOR shall remove all Small Cell components and/or Equipment from City ROW installed pursuant to this Agreement no later than ninety (90) days from the date of such tennination and return the ROW (including Pole) to its condition before the installation, reasonable wear and tear excepted, at LICENSEE's sole cost. 4. SCOPE OF AGREEMENT. Any and all rights expressly granted to LICENSEE under this Agreement, which shall be exercised at LICENSEE's sole cost and expense, shall be subject to the prior and continuing right of the LICENSOR under applicable Laws to use any and all parts of the ROW exclusively or concurrent licenses with any other person or entity and shall be further subject to all deeds, easements, dedications, conditions, covenants, restrictions, encumbrances, and claims of title of record which may affect the ROW as of the date of the individual Site. 4.1 Plan for Attachment to City Poles or Municipal Facilities. Prior to installation, LICENSEE will submit to the authorized representative of the LICENSOR a proposed plan for the design for any proposed Small Cell installations that will include all Equipment LICENSEE proposes to use. LICENSEE shall include in the plan proof of insurance, a provision to provide City employees and contractors with safety training related to the Small Cell and/or Equipment and installations. City may reject the plan including any component thereto at its sole discretion and said Small Cell shall not be allowed as part of this Agreement. Any approved plan shall be included as part of an applicable Site Permit. 4.1.1 Subject to the conditions of this Agreement and as authorized by the Huntington Beach Municipal Code including the HBZSO, LICENSEE may enter upon the ROW to locate, place, attach, install, operate, maintain, control, remove, reattach, reinstall, relocate, and replace Small Cell and/or Equipment permitted and approved by the City in or on City Pole providing Telecommunications Services. 17-6168/170788/MV Item 13. - 7 HB -178- 4.1.2 LICENSEE will make arrangements with Southern California Edison to provide the Equipment with power as approved in the construction plans. Payment for said power is the sole responsibility of LICENSEE. LICENSEE will power its equipment in a way as to reduce the disruption to City -owned equipment or facilities. All work contracted or subcontracted by LICENSEE, including electric work, shall be performed by a licensed contractor that is approved by the LICENSOR. :LICENSOR agrees to promptly approve or disapprove LICENSEE's proposed contractors, a list of whom may be submitted in advance of any Site Permits or the commencement of any work related thereto. 4.1.3 Prior to commencement of any work to install or operate a Small Cell or Equipment, LICENSEE shall obtain and/or possess any required City, State of Federal permits or licenses. 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 the LICENSOR. and dedicate such Replacement Pole to the LICENSOR upon installation thereof. If LICENSEE's Small Cells or Equipment are installed on any Replacement Poles, LICENSEE shall provide and deliver to LICENSOR one (1) additional Replacement Pole (excluding mast arm) so that a replacement is immediately available to LICENSOR in case an existing Replacement Pole in use by LICENSEE is damaged or destroyed and is no longer suitable to support LICENSEE's Small Cell or Equipment. If an existing standard Pole has been replaced with a Replacement Pole and such Replacement Pole is damaged or destroyed or is no longer suitable to support LICENSEE's Small Cell or Equipment, LICENSEE shall be responsible for the cost difference, if any, in replacing such Replacement Pole. 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 private 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 LICENSOR or any third party; 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 tl�s Agreement. However, the LICENSOR agrees that its tenants, licensees, or users of the ROW who currently have or in the future take possession 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 5 17-6168/170788/MV HB -1 ?9- Item 13. - 8 frequency which will not cause harmful interference which is measurable in accordance with then existing industry standards to the then existing Equipment of LICENSEE. 4.3 Permits; Default. Whenever LICENSEE is in default of this Agreement or an applicable Site Permit, after notice and a thirty (30) day cure period, or where such default cannot reasonably be cured within thirty (30) days but LICENSEE commences to cure such default within said thirty (30) day period and diligently pursues cure to completion, not to exceed ninety (90) days, in all. instances, in any of its obligations under this Agreement, the LICENSOR may suspend this Agreement and/or deny encroachment, excavation or similar work until such time as LICENSEE cures all of its defaults. 4.4 No Authorization to Provide Other Services. LICENSEE represents, warrants and covenants that its Small Cell and/or Equipment installed pursuant to this Agreement and each Site Permit will be utilized solely for providing the Telecommunications Services identified herein and LICENSEE is not authorized to and shall not use its Small Cell and/or Equipment to offer or provide any other services not specified herein. 4.5 Nonexclusive 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 LICENSOR's 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, encumbrances and claims of title (collectively, "Encumbrances") which may affect the ROW or Municipal Facilities now or at any time during the Term of this Agreement, including, without limitation any Encumbrances granted, created or allowed by the LICENSOR at any time. 5. COMPENSATION. LICENSEE shall be solely responsible for the payment of all fees in connection with LICENSEE's performance under this Agreement, including those set forth below. 5.1 License Fee. in order to compensate the LICENSOR for LICENSEE's entry upon and deployment of Small Cell and/or Equipment on City -owned Poles, LICENSEE shall pay to the LICENSOR, on an annual basis, an amount of two thousand seven hundred dollars ($2,700.00) per Site if LICENSEE has nine (9) or fewer Site Permits in effect, or two thousand four hundred fifty dollars ($2,450.00) per Site if LICENSEE has ten (10) to nineteen (19) Site Permits in effect, or two thousand two hundred dollars ($2,200.00) per Site if LICENSEE has twenty (20) or more Site Permits in effect (the "License Fee"). LICENSEE shall make the first payment of License Fee under any Site Pen -nit within thirty rel 1 -,_r,, hsii 7o78sMy Item 13. - 9 HB -1 g0_ (30) days of the applicable Commencement Date for the applicable Site. For the first payment, the total number of Site Permits in effect as of the Site Permit's Commencement Date shall determine the amount owed for that License Fee. Thereafter, License Fees shall be paid on or before each anniversary of the Commencement Date during the Site Permit Term and the total number of Site Permits in effect as of that anniversary of the Site Permit's Commencement Date shall detennine the amount owed for that License Fee. 5.2 License Fee Adjustment. Effective on the first anniversary of the Commencement Date of any Site Permit Term, and continuing annually thereafter during the applicable Site Permit Term, the License Fee shall be subject to adjustment ("Adjusted License Fee"), in the manner hereinafter set forth, with a floor of three percent (3%) and a ceiling of five percent (5%), for increases compared to the previous year in the index known as United States Department of Labor, Bureau of Labor Statistics, Consumer Price Index, All Urban Consumers, Los Angeles -Anaheim -Riverside Statistical Area Average, All Items, (1982- 84=100) ("CPI") or the successor index that most closely approximates the CPI. In no event shall the Adjusted License Fee, after adjustment under the provisions set forth above, be less than the amount of License Fee in effect hereunder immediately prior to such adjustment. 5.3 Business License. The LICENSEE shall obtain a Business License from the City and pay all applicable taxes, or fees associated with performance of the terms contained herein. 5.4 Payment. LICENSEE shall pay the License Fee monthly to City at the City Treasurer's Office, P.O. Box 711, Huntington Beach, California, 92648, or at such other place or places as City may from time -to -time designate by written notice delivered to LICENSEE. LICENSEE shall pay the License Fee, which must be received by the City Treasurer within fifteen (15) calendar days ("Due Date") on the anniversary of the Commencement Date, or on the next business day if the fifteenth day falls on a weekend or holiday. License Fee mailed payments shall be deemed paid upon the date such payment is officially postmarked by the United States Postal Service. If postmarks are illegible to read, the payment shall be deemed paid upon actual receipt. LICENSEE assumes all risk of loss and responsibility for late payment charges if payments are made by mail. Notwithstanding the foregoing, upon agreement of the parties, LICENSEE may pay 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. 7 17-6168/170788MN HB -1S1- Item 13. - 10 5.5 Delinquent Payment. If LICENSEE fails to pay any amounts due pursuant to this Agreement after sixteen (16) days from the Due Date, or the next business day if the day falls on a weekend or holiday, LICENSEE shall pay the following late charge and penalty: a late payment charge shall equal ten percent (10%) of the amount due to the City, or ten percent (10%) of the amount remaining unpaid to the City if a portion was timely paid. Interest shall 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 the amount becomes delinquent until the date that all delinquent amounts are paid to the City. 5.6 Additional Remedies. The remedy provisions set forth in §5.5 above are not exclusive, and do not preclude the LICENSOR from pursuing any other or additional remedy including terminating this Agreement and all Site Permits issued thereto in the event that payments become overdue by more than sixty (60) days. 6. CONSTRUCTION. LICENSEE shall comply with all applicable Federal, State, and City codes related to the construction, installation, operation, maintenance, and control of LICENSEE's Small Cell and/or Equipment installed in the ROW. Except as otherwise provided herein, LICENSEE shall not attach, install, maintain, or operate any Small Cell and/or Equipment in or on the ROW without obtaining all City permits including a Site Permit and with additional prior written approval of an authorized representative of the LICENSOR for each location whose approval is required by the City Municipal Code. 6.1 Obtaining Required Site Permits; Modifications. LICENSEE shall apply for and obtain all appropriate permits and pay all applicable permit fees and/or taxes as a condition precedent to installation of any Small Cell and/or Equipment contemplated in this Agreement. LICENSEE shall maintain all appropriate permits and pay all applicable permit fees and/or taxes. 6.2 Relocation and Displacement of Equipment. LICENSEE understands, acknowledges and agrees that LICENSOR may require LICENSEE to relocate one or more of its Small Cell and/or Equipment installations. LICENSEE shall at LICENSOR's direction and upon one hundred eighty (180) days prior written notice to LICENSEE for subsection (a) below, or upon ninety (90) days prior written notice to LICENSEE for subsections (b) and (c) below, relocate such Small Cell and/or 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 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 by the LICENSOR at its sole discretion. In any such case, LICENSOR shall use reasonable efforts to N. 1 'l-(1 /R/170788/Mv Item 13. - 11 HB -182- afford LICENSEE a reasonably equivalent alternate location. If LICENSEE shall fail to relocate any Small Cell and/or Equipment as requested by the LICENSOR in accordance with the foregoing provision, LICENSOR shall be entitled to remove or relocate the Small Cell and/or 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. To the extent the LICENSOR has actual knowledge thereof, the LICENSOR will attempt promptly to inform LICENSEE of the displacement or removal of any Pole on which any Small Cell and/or Equipment is located. If the Municipal Facility is damaged or downed for any reason, and as a result is not able to safely hold the Equipment, the LICENSOR. will have no obligation to repair or replace such Municipal Facility for the use of LICENSEE's Equipment and assume no loss 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 may choose to replace such Municipal Facilities pursuant to the provisions of §4.1.5 above. Nothing in this Agreement shall limit LICENSOR's right to act to protect the public if the condition of a Municipal Facility, Pole, Small Cell, or Equipment at any Site poses an immediate threat to public health or safety. In such instances, if LICENSOR is unable to provide LICENSEE with prior notice, LICENSOR shall provide LICENSEE with notice about the action LICENSOR took to protect the public from an immediate threat at any Site within a reasonable period of time after LICENSOR takes such action. 6.3 Damages Caused by LICENSEE. LICENSEE shall, at its sole cost and expense and to the satisfaction of the LICENSOR: (a) remove, repair or replace any of its Small Cell and/or Equipment that is damaged or becomes detached; and/or (b) repair any damage to ROW, City Pole 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 Slnall Cell and/or Equipment, reasonable wear and tear excepted. If LICENSEE does not remove, repair or replace such damage to its Small Cell and/or Equipment or to ROW, City Pole or other property, the LICENSOR shall have the option, upon thirty (30) days' prior written notice to LICENSEE, 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 only involves reattachment of LICENSEE's Small Cell and/or Equipment to a Pole or repair of the Pole itself, and shall not include any technical work on LICENSEE's Equipment. Upon the receipt of a demand for payment by the LICENSOR, LICENSEE shall within thirty (30) days of such receipt reimburse the LICENSOR for such costs. The terms of this provision shall survive the 9 17-6168/170788/N4V FIB -183- Item 13. - 12 expiration, completion or earlier termination of this Agreement. 6.4 Removal of Equipment. Within ninety (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 expiration or earlier termination of this Agreement. 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 (30) 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 Law. If LICENSOR incurs e-waste and hazardous disposal fees as part of any Federal, State, or Local regulatory environmental requirements, LICENSOR shall have the option to bill LICENSEE for said disposal fees and. LICENSEE agrees to reimburse LICENSOR within thirty (30) days of receiving reimbursement request. Alternatively, the LICENSOR may elect to take title to abandoned property, provided that 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. 6.5 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 Small Cell and/or Equipment 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 LICENSOR's removalof the Equipment, except to the extent that such loss or damage was caused by the willful misconduct or negligence of the LICENSOR, 10 17-6168/17078S/A4V Item 13. - 13 HB -18 _ including, without limitation, each of its elected officials, department directors, managers, officers, agents, employees, and contractors, subject to the limitation of liability provided in §7.2 below. In the event of damage by fire or other casualty to the Municipal Facilities, Poles, Small Cell, or Equipment that cannot reasonably be expected to be repaired within forty-five (45) days following same, or, if the Municipal Facilities, Poles, Small Cell, or Equipment are damaged by fire or other casualty so that such damage may reasonably be expected to disrupt LICENSEE's operations for more than forty-five (45) days, then LICENSEE may, at any time following such fire or other casualty, provided LICENSOR has not completed the restoration required at Municipal Facilities or Poles to permit LICENSEE to resume its operations, terminate the Site Permit upon fifteen (15) days prior written notice to LICENSOR. Any such notice of termination shall cause the Site Permit to expire with the same force and effect as though the date set forth in such notice were the date originally set as the expiration date of the Site Permit and the parties shall make an appropriate adjustment, as of such termination date, with respect to payments due to the other under the Site Permit. Notwithstanding the foregoing, the rent shall abate during the period of repair following such fire or other casualty in proportion to the degree to which LICENSEE's operations are impaired. 7. INDEMNIFICATION AND WAIVER. LICENSEE agrees to indemnify, defend, protect, and hold harmless the City of Huntington Beach, its City Council or any elected official its members, officers, officials, employees or agents (collectively, the "Indernnitees") 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 attorney's fees and costs of defense (collectively, the "Losses") resulting from this Agreement, except to the extent that the Losses are caused by the Indemnitees' negligence or willful misconduct. 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 Small Cell and/or Equipment or any loss or degradation of the Telecommunications Services or Information Service as a result of any event or occurrence which is beyond the reasonable control of the LICENSOR. 7.2 Waiver of Subrogation. The parties hereby waive and release any and all rights of action for negligence against the other which may hereafter arise on account of damage to Municipal Facilities, Small Cell 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 parties, or either of them. These waivers and releases shall apply between the parties and they shall 11 17-6168/170788/MV HB -185- Item 13. - 14 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 either party concerning the Municipal Facilities, Small Cell or the ROW shall waive the insurer's right of subrogation against the other party. 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 8. SECURITY FOR PERFORMANCE. Before any construction begins in the ROW by LICENSEE, and if requested by LICENSOR, LICENSEE shall provide the LICENSOR with performance bonds, and if considered necessary by the LICENSOR, payment bonds, in amounts equal to the full amount of the replacement of each Pole. The payment bond shall be solely for the protection of claimants supplying labor or materials for 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 the State of California, and acceptable to the LICENSOR and shall be kept in place for the duration of the work. 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 aggregate including premises -operations, contractual liability, personal in and products completed operations; and Commercial Automobile Liability insurance covering all owned non -owned and hired vehicles with a limit of $1,000,000 each accident for bodily injury and property damage. In any case, the Commercial General Liability insurance policy shall name the LICENSOR, its commission members, officers, and employees as additional insured as respects any covered liability arising out of LICENSEE's performance of work under this Agreement. Coverage shall be in an occurrence from 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; 12 1'7_6 1 FR/170788/W Item 13. - 15 H B -186- (b) that LICENSEE's Commercial General Liability insurance policy is primary as respects any other valid or collectible insurance that the LICENSOR may possess, including any self -insured retentions the LICENSOR may have; and any other insurance the LICENSOR does possess shall be considered excess insurance only and shall not be required to contribute with this insurance; and (c) that LICENSEE's Commercial General Liability insurance policy waives any right of recovery the insurance company may have against the LICENSOR. The certificate(s) of insurance with endorsements and notices shall be mailed to the LICENSOR at the address specified in § 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 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 minimum rating assigned by AM 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. 10.1 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: If to the LICENSOR: City of Huntington Beach Office of Business Development Attention: Deputy Director 1685 Main Street Huntington Beach, CA 90401 13 17-6168/ 1.70788/W HB -187- Item 13. - 16 if . to LICENSEE: Mobilitie, LLC Attn: Legal Department 660 Newport Center Drive Suite 200 Newport Beach, CA 92660 With a copy to: Mobilitie, LLC Attn: Asset Management 660 Newport Center Drive Suite 200 Newport Beach, CA 92660 10.2 Date of Notices; Changing Notice Address. Notices shall be deemed given upon receipt in the case of personal delivery, three (3) days after deposit in the mail, or the next business day in the case of facsimile, email, or overnight delivery. Either party may from time to time designate any other address for this purpose by written notice to the other party delivered in the manner set forth above. 11. RESERVED 12. ASSIGNMENT. This Agreement may be assigned by LICENSEE to any parent company, subsidiary, affiliate, or any person, firm, or corporation that shall control, be under the control of, or be under common control of the LICENSEE or to any entity into which LICENSEE may have 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, conditioned or delayed. 13. RECORDS; AUDITS. 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, 14 t 7_(,t rR/I 70 788/MV Item 13. - 17 HB -188- 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. 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 Severability of Provisions. If any one or more of the provisions of this Agreement shall be held by a court of competent jurisdiction in a final judicial action to be void, voidable, or unenforceable, such provision(s) shall be deemed severable from the remaining provisions of this Agreement and shall not affect the legality, validity, or constitutionality of the remaining portions of this Agreement. Each party hereby declares that it would have entered into this Agreement and each provision hereof regardless of whether any one or more provisions may be declared illegal, invalid, or unconstitutional. 1.4.3 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 network control center operator at telephone number (877) 244-7889 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 County of Orange. 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 California. 14.5 Attorneys' Fees. Should any dispute arising out of this Agreement lead to litigation, the prevailing party shall NOT be entitled to recover its costs of suit, including (without limitation) reasonable attorneys' fees, 14.6 Consent Criteria. In any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this Agreement, such party shall not unreasonably delay, condition, or withhold its approval or consent. 15 17-616$/170788/MV HB -189- Item 13. - 18 1.4.7 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 § 4.2 above. This Agreement shall not be revocable or terminable except as expressly permitted herein. 14.8 Amendment of Agreement. This Agreement may not be amended except pursuant to a written instrument signed by both parties. 1.4.9 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. 14.10 Public Records. LICENSEE acknowledges that information submitted to the LICENSOR may be open to public inspection and copying under state law. 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. 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 party 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 granted 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 16 17_6 t 6R/170788/MV Item 13. - 19 HB -190- 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 the parties' obligations under this Agreement. 14.16 Compliance with Law. LICENSEE shall at all times comply with all applicable Federal, State and Local laws and regulations, including any permit requirements or conditions. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the day and year first above written. "LICENSEE" "LICENSOR" and "CITY" CITY OF HUNTINGTON BEACH, Municipal corporation of the State of California By: - City anager Its: APPROVED AS -TO FORM: Signed in Counterpart Exhibits: Exhibit A — GPS Coordinates& Depiction Exhibit B. — Site Permit ttorncy t,�,/ 17 1 7-61ssn7o7as/W 1-lg -191- Item 1.3. - 20 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the day and year first above written. "LICENSEE" "LICENSOR" and "CITY" CITY OF HUNTINGTON BEACH, Municipal corporation of the State of California By: City Manager Its: 1 C% ��1��` COUNTERPART Exhibits: Exhibit A — GP Coordinates& Depiction Exhibit B — Site Permit 18 APPROVED AS TO FORM: City Attorney Exhibit "A" UPS Coordinates To be submitted by Supplemental Communication 18 17-6I68/170788/MV Ha -193- Item 13. - 22 W 'o m m m m m m rn rn rn m m r r rn m m m m r r c m m rn rn m m rn m m m m rn m m m m rn m rn m fV y tO N O W Q rn C CO > m b N v N Cl U1 m �O th m �O r N n N N V Ol (7 O) rn O pn M tNtpp m M M A M M V1 r O O M N O W ymy Om0 O�1 � p o o 0 m 0 o 0 0 0 0 0� g n m g au'o rn rn rn tD o u' 0 3 0 o o m m o o rn rn m rn m m J m m OD 00 OO OD GO r n ep ap ap ap n aD n n n m rn m m m m m m �O O O M m m N rn a � m Mm m th rl N M M M c� M th N Nl cl M M N M N N1 M Cl th th [h M M M M M M c'1 th c� C] th M M W N O W N W W W N W O W W UI W UI m N W w m m m d m m v w v d w d m w m w v w m W C C C C C C C C C C C C C C C C C C C C _. 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IF -_.I if LIP M %Tn Wit" -i I ,Tcli 1iI'ITS'41jI1�isirz�E �iFiiiEli " x I _ y'�` tali _ jiii�illi IEEE E- .dr. vtr� H �(� , =:rem-';•�1;. r ice= -1 tji E r� _ _i. -• /7y` i ITE _ rE i I �I iTL i'_=i4:41 `' `� "'I•(r, /". 14—i.i _�I'IF �.q�'.+� 41i�-Yii� 4� _{IIi Yb FFYT�".', _ , 11,4 Il {I1T ;9 Ilk . ♦ Ind `l i l ;� r p i iTf; �Lrl••i_,, t � '}F if _E �,•fi' =•I_ �rL Tilki=� ypi(;il W iiiili.lil} a ' O eai vl - Erll MLry V—ai /� s.mupir- s° iry INSURANCE AND INDEMNIFICATION WAIVER MODIFICATION REQUEST 1. Requested by: Carlos Marquez 2. Date: 12/15/2017 3. Name of contractor/permittee: Mobilitie, LLC 4. Description of work to be performed: Installation of small cell equipment on City -owned street lights 5. Value and length of contract: $44,000 annually. 10 years 6. Waiver/modification request: General Liability waiver in leiu of Umbrella policy 7. Reason for request and why it should be granted: Mobilitie is submitting an umbrella Policy that provides $6million total occ and $7 million total aggregate. 8. Identify the risks to the City in approving this waiver/modification: In addition Mobilitie is required to submit plans and obtain permits subject to City discretionary review, which also mandates that all insurance certificates are approved by Risk Management. Staff will not issue any encroachment permits until all certs are approved by RM. Head Signature LZ1(S (7 Date: APPROVALS Approvals must be obtained in the order listed on this form. Two approvals are required for a request to be granted. Approval from the City Administrator's Office is only required if Risk Management and the City Attey's Office disagree. 1. Risk Management ►p /ice, � XApproved El Denied 7 I nature Date 2. City Attorney's Office lApproved ❑ Denie Signature Date 3. City Manager's Office ❑ Approved ❑ Denied Signature Date If approved, the completed waiver/modification request is to be submitted to the City Attorney's Office along with the contract for approval. Once the contract has been approved, this form is to be filed with the Risk Management Division of Human Resources Mobilitie. Insurance Waiver Form.doc 12/15/2017 4:54:00 PM MOINV-3 OP ID: JK CERTIFICATE OF LIABILITY INSURANCE D12114/201'1'1'Y) 211412017 THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder Is an ADDITIONAL INSURED, the policy(ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this certificate does not confer rights to the certificate holder In lieu of such endorsements . PRODUCER Silverstone Insurance Services Jetton & Assoc Ins Svs Inc CONTACT NAME: Brent Jetton, AAI, CIC PHONE FAX AIc No Ext : 909-980-4211 Arc No : 909-9804785 P.O. BOX 1200 (Lic #0004829) Rancho Cucamonga„ CA 91729-1200 Brent Jetton, AAI, CIC E-MAIL ADDRESS: INSURERS) AFFORDING COVERAGE NAIC # INSURERA -Federal Insurance Company 20281 INSURED Mobilitie, LLC INSURERS: Great American E&S Ins Co 37532 660 Newport Center Dr. #200 Newport Beach, CA 92660 INSURERC: Underwriters Lloyds London IL 15792 INSURER D : INSURER E : INSURER F : COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE POLICY NUMBER POLICY EFF MMIDD POLICY EXP MMIDD LIMITS GENERAL LIABILITY EACH OCCURRENCE $ 1,000,00 A X COMMERCIAL GENERAL LIABILITY X X 36036868 11/11/2017 11/11/2018 PREMISES (Ea occurrence) 500,000 CLAIMS -MADE F—xl OCCUR MED EXP (Any one person) $ 5,000 PERSONAL & ADV INJURY $ 1,000,00 GENERAL AGGREGATE $ 2,000,00 CONTRACTUAL LIAB GEN'L AGGREGATE LIMIT APPLIES PER PRODUCTS - COMP/OP AGG $ 2,000,00 17 POLICY PRC LOC $ AUTOMOBILE LIABILITY COMBINED SINGLE LIMIT Ea accident $ 1,000,00 BODILY INJURY (Per person) $ A X ANY AUTO 73591570 11/11/2017 11/11/2018 ALL OWNED SCHEDULED AUTOS AUTOS BODILY INJURY (Per accident) $ X HIRED AUTOS X AUUTOSWNED ( ERRERTY ACC DENT)DAM $ $ X UMBRELLALIAB X OCCUR EACH OCCURRENCE $ 5,000,00 AGGREGATE $ 5,000,00 A EXCESS LIAB CLAIMS -MADE 79897229 11/11/2017 11/11/2018 DED I I RETENTION $ $ Follow Form WORKERS COMPENSATION X TORY LIMITS OETH R AND EMPLOYERS' LIABILITY YIN E L. EACH ACCIDENT $ 1,000,00 A ANY PROPRIETOR(PARTNEPJEXECUTIVE 71749062 11/1112017 11111/2018 OFFICER/MEMBER EXCLUDED? F—N] N / A E L DISEASE - EA EMPLOYEE $ 1,000,00 (Mandatory in NH) If yes, descnbe under DESCRIPTION OF OPERATIONS below E L DISEASE - POLICY LIMIT $ 1,000,00 B Pollution Liab PRE315985702 11/11/2017 11111/2018 EaClm/Agg 5,000,00 C Professional Liab PMOB1000917 11/11/2017 11/11/2018 EaCim/Agg 5,000,00 DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) R" Small Cell License Agreement City of Huntington Beach, its commission members, officers, and employees ABOVE are additional insured with respects to general liability where required by written contract or agreement. Waiver of subrogation applies to general liability. Gge5 $ %- bpE t4 C 04 Bep,C1-! of 1-1v�'NG� CERTIFICATE HOLDER CANCFLLATION V CAHUNTI SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN ACCORDANCE WITH THE POLICY PROVISIONS. City of Huntington Beach 2000 Main Street AUTHORIZED REPRESENTATIVE Huntington Beach, CA 92648 ©1988-2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010105) The ACORD name and logo are registered marks of ACORD C H U B B° Liability Insurance Endorsement Policy Period NOVEMBER 11, 2017 TO NOVEMBER 11, 2018 Effective Date NOVEMBER 11, 2017 Policy Number 3603-68-68 PLE Insured Name of Company FEDERAL INSURANCE COMPANY Date Issued NOVEMBER 15, 2017 This Endorsement applies to the following forms: GENERAL LIABILITY --- _ ...... ........_... __....._ ............... ...... .._....... Under Who Is An Insured, the following provision is added, Who is An insured City of Huntington Beach, its commission members, officers, and employees Additional Insured - Persons or organizations shown in the Schedule are insureds; but they are insureds only if you are Scheduled Person obligated pursuant to a contract or agreement to provide them with such insurance as is afforded by Or Organization this policy. However, the person or organization is an insured only: • if and then only to the extent the person or organization is described in the Schedule; • to the extent such contract or agreement requires the person or organization to be afforded status as an insured; • for activities that did not occur, in whole or in part, before the execution of the contract or agreement; and • with respect to damages, loss, cost or expense for injury or damage to which this insurance applies. No person or organization is an insured under this provision: • that is more specifically identified under any other provision of the Who Is An Insured section (regardless of any limitation applicable thereto). • with respect to any assumption of liability (of another person or organization) by them in a contract or agreement. This limitation does not apply to the liability for damages, loss, cost or expense for injury or damage, to which this insurance applies, that the person or organization would have in the absence of such contract or agreement. Liability Insurance Additional Insured - Scheduled Person Or Organization continued Form 80-02-2367 (Rev. 5-07) Endorsement Page I Liability Endorsement (continued) Under Conditions, the following provision is added to the condition titled Other Insurance. Conditions Other Insurance — If you are obligated, pursuant to a contract or agreement, to provide the person or organization Primary, Noncontributory shown in the Schedule with primary insurance such as is afforded by this policy, then in such case Insurance — Scheduled this insurance is primary and we will not seek contribution from insurance available to such person Person Or Organization or organization. _......._ .._........_...... ....................................... ............................................. ................ ........ ... .......... ...,............ ....................._................... ....................................................... ....... Schedule Persons or organizations that you are obligated, pursuant to a contract or agreement, to provide with such insurance as is afforded by this policy. All other terms and conditions remain unchanged. Authorized Representative Q__.� V —if a Liability Insurance Additional Insured - Scheduled Person or organization Form 80-02-2367 (Rev. 5-07) Endorsement lastpage Page 2 City of Huntington Beach 2000 Main Street ♦ Huntington Beach, CA 92648 (714) 536-5227 ® www.huntingtonbeachca.gov Office of the City Clerk Robin Estanislau, City Clerk December 22, 2017 Mobilitie, LLC Attn: Natalia Morales, Legal Department 660 Newport Center Drive, Suite 200 Newport Beach, CA 92660 Dear Ms. Morales: Enclosed for your records is a copy of the fully executed "Small Cell License Agreement." Sincerely, Robin Estanislau, CIVIC City Clerk RE:pe Enclosure Sister Cities: Anjo, Japan ♦ Waitakere, New Zealand