HomeMy WebLinkAboutNo Action Taken- Resolution No. 2017-50 approving a Small Ce 7-25 Page I of
Depth D ti g 1Date:10//16/2 17
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CITY OF HUNTINGTON BEACH
r REQUEST FOR. CITY COUNCIL ACTION
MEETING DATE: 10/16/2017
SUBMITTED TO: Honorable Mayor and City Council Members
SUBMITTED BY: Fred A. Wilson, City Manager
PREPARED BY: Kellee Fritzal, Deputy Director, Business Development
SUBJECT: Adopt Resolution No. 2017-50 approving a Small Cell Site License Agreement
Template and delegating authority to the City Manager and City Attorney to
execute on behalf of the City
Statement of Issue:
The City Council is asked to approve Resolution No. 2017-50, approving a Small Cell Site License
Agreement Template, delegating authority to the City Manager and City Attorney to execute on
behalf of the City. This action is consistent with the Huntington Beach Zoning and subdivision
Ordinance Section 230.69.
Financial Impact:
Revenue generated from each small cell site (City-owned street light) is estimated to be $1,500 per
year and will go into the General Fund.
Recommended Action:
A) Adopt 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 to Execute Small Cell License Agreements on Behalf of the
City of Huntington Beach;" and,
B) Authorize and approve the annual lease rate of$1,500 per pole for small cell attachments on
City-owned street lights.
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 Wireless Permit. In addition, the City is
KB -35- Item 4. - l
Dept. ID ED 17-25 Page 2 of 2
Meeting Date: 10/16/2017
finalizing its acquisition of the 10,000 streetlights from Southern California Edison, upon which
carriers will mount their small cell sites.
The Wireless Permit streamlined the process in which small cell sites are deployed on non-City-
owned utility poles and City-owned streetlight poles. The Wireless 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. The attached Agreement will
serve as a template by which wireless carriers and the City will execute as approved by the City
Attorney's Office. The Agreement will address terms such as: rent, duration of contract, insurance
requirements, no interference with public safety, indemnification, and default.
The current approval process for Agreements requires City Council approval. However, due to the
volume of available street lights, multiple carriers have already shown interest in deploying small
cell equipment on the City-owned street lights. In addition, staff has been receiving inquiries from
wireless carriers about Agreement requirements. The standardization of the Agreement by the City
Council will allow for a non-partial process. The Agreements will take effect on the date the small
cell facility is mounted on the streetlight pole.
The draft Agreement was developed and circulated to the following wireless carriers and related
companies for input: AT&T, Mobilitie, Verizon, and Crown Castle. The wireless carriers submitted
feedback regarding the initial term of the Agreement, the number of extensions, termination, and
the ability to assign the agreement. Staff in conjunction with the City Attorney's office revised the
template to accommodate the industry's needs while protecting the City.
Staff also conducted an extensive small cell attachment survey in order to determine market rates
for street light lease/license rates. The rates were obtained from other public agencies that have
similar wireless ordinances and lease/license their street lights. The survey disclosed rental rates
from $94/pole annually to $2,780/pole annually. Based on the data from the survey, staff
recommends an annual license rate of$1,500/street light pole.
SB 649
California State Senate Bill 649 (Hueso) was recently introduced prohibiting municipalities from
discretionary review of small cell wireless attachments as they affect adopted land uses and design
criteria. In addition to the elimination of discretionary review, SIB 649 will severely limit the amount
of revenue collected by municipalities to $250/year per attachment, which would limit funding for
basic city services. SIB 649, in its current version, does not void existing agreements regarding
leasing or licensing of vertical infrastructure, so long as it is executed prior to the effective date of
the legislation (Government Code Section 65964.2 [h] pending approval). SIB 649 was adopted by
the State Assembly and the State Senate and is awaiting approval or veto by the Governor. The
approval of the Agreement will allow staff to negotiate and secure small cell licenses with the
wireless carriers prior to the effective date of the legislation, thereby maximizing revenue potential.
Environmental Status: Not applicable
Strategic Plan Goal: Strengthen economic and financial sustainability
Attachment(s):
1. Resolution No. 2017-50, including Exhibit "A" Small Cell License Agreement Template
2. Rental Rate Survey
Item 4. - 2 HB -36-
ATTACHMENT # 1
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
EXECUTE SMALL CELL LICENSE AGREEMENTS ON BEHALF OF THE CITY
HUNTING TON 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 F ilities (Zoning Text
Amendment No. 17-003) ("Wireless Ordinance"); and
The City of Huntington Beach has acquired a significant mber of street lights, located
within the public rights-of-way, from Southern California Edis ("SCE"); and
The City Council desires to provide fair, easonable, nondiscriminatory, and
nonexclusive access to City-owned streetlights with' the 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 e City; and
The Wireless Ordinance requires ireless Carriers to enter into a license agreement to
install Small Cell Sites on City-owned reet lights; and
In order to expedite the a roval process of Small Cell Sites, the City Council desires to
create a template agreement 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, THE 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.
NO /-c_/_/6/ 1 /?tKa\l
APPOUEL -7-O
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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
�A4 FORM
City Manager C' y Aft ey r-j V
TIATED AND APPROVED
Deputy Direr Office of Business
Development
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E X HIM 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 emission ("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 a 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 of the 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.
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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 ocal
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 ENSOR-owned
property including City-owned Light Poles ("Poles" or "CiPoles"), 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 Gated, 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. "Sn 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 ixed 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.
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2. TERM.
2.1 The initial term of this Agreement shall be for a period of ten ) years
(the "Initial Term"), commencing on the first day of the month follo ng mutual
execution of this Agreement (the "Agreement Commencement Dat ) and ending
on the tenth anniversary thereof, or until the expiration of e Site Permit
whichever is first or unless sooner terminated as stated herei . The Initial Term
may be extended for two (2) additional five (5) year period upon mutual consent
of City and Licensee, evidenced in writing. City may wi hold consent to extend
this Agreement with or without cause, in which se this Agreement shall
terminate.
2.2. The initial term for each particular Site all be the first day of the month
following the date LICENSEE has comme ced installation of its Small Cell
and/or Equipment at a particular locati pursuant to the Site Permit (the
"Commencement Date") and shall be fo an initial term of ten (10) years ("Site
Initial Term"). In no event shall the mmencement Date be later than 60 days
from approval of the Site Permit, d within 180 days if a new pole is to be
installed. Should LICENSEE fail commence construction within the 60 or 180
day period, the License as to that mall Cell shall terminate.
2.3. The Site Permit Initi I Term and all Site Permit Renewal Terms shall be
collectively referred to Lein as the "Site Permit Term." Notwithstanding
anything herein, after th9 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 fect until the expiration or termination of the Site License.
3. REPRESENTA ION CONCERNING SERVICES; TERMINATION
WITHOUT USE. This License shall automatically terminate without any
notice from City i the event the LICENSEE ceases to operate as a provider of
Telecommunicatio�}} s Services under applicable Federal, State or Local law or the Site is
found to jeoparize public health and safety. In the event the License terminates as
described abov , LICENSEE shall remove its Small Cell and/or Equipment no later than
90 days fro the date of such termination at its sole cost and expense, and shall be
required to eturn the site to its condition prior to installation as required by the City
Engineer the Licensee's sole cost and expense.
In the vent the LICENSOR at its sole discretion determines LICENSEE has failed to
fulfi its obligation as provided under this License Agreement, LICENSOR shall provide
/not
NSEE written notice detailing the obligations which the LICENSOR claims
NSEE has failed to fulfill and notify LICENSEE that it is deemed to be in breach of
icense Agreement. LICENSEE shall have 30 days to remedy breach. If breach is
ured within 30 days, then the LICENSOR may terminate the Agreement by issuing
n notice to LICENSOR and this License Agreement shall terminate no sooner than
0) days from the date of issuance of the notice. Upon termination, LICENSEE shall
ve its Equipment pursuant to Section 6.4. LICENSEE may terminate this License
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Agreement by providing LICENSOR with 60-day written notice. In the event the
License, with the exception of hazardous conditions that jeopardize public health an
safety, is terminated, City shall determine at its sole discretion whether any particular to
Permit shall also Terminate and in the case of any Site Permit termination, LICE SOR
shall remove all Small Cell components and/or Equipment from City ROW installed
pursuant to this License Agreement no later than 90 days from the d e of such
termination and return the ROW (including Light Pole) to its conditi before the
installation at Licensee's sole cost.
4. SCOPE OF AGREEMENT. Any and all rights expressly anted to LICENSEE
under this License Agreement, which shall be exercised at LIC NSEE's sole cost and
expense, shall be subject to the prior and continuing right f the LICENSOR under
applicable Laws to use any and all parts of the ROW exclu vely or concurrent licenses
with any other person or entity and shall be further su sect to all deeds, easements,
dedications, conditions, covenants, restrictions, encu rances, and claims of title of
record which may affect the ROW as of the date of th ndividual Site .
4.1 Plan for Attachment to City Po es or Municipal Facilities. Prior to
installation, LICENSEE will submit the authorized representative of the
LICENSOR a proposed plan for t e design for any proposed Small Cell
installations that will include all Equipment LICENSEE proposes to use.
LICENSEE shall include in the an proof of Insurance, a provision to provide
City employees and contractor with safety training related to the Small Cell
and/or Equipment and install
nstal tions. City may reject the plan including any
component thereto at its sol discretion and said Small Cell shall not be allowed
as part of this License Agr ement. Any approved Plan shall be included as part of
an applicable Site Permit
4.1.1 Subje to the conditions of this License Agreement and as
authorized y the Huntington Beach Municipal Code including the
HBZSO, CENSEE may enter upon the ROW to locate, place, attach,
install, erate, maintain, control, remove, reattach, reinstall, relocate, and
replac Small Cell and/or Equipment permitted and approved by the City
in or n City Pole providing Telecommunications Services.
4 .2 LICENSEE will make arrangements with Southern California
dison 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
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.
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4.1.4 If LICENSEE selects a Pole that is structurally inadequate
accommodate Equipment, at the City's sole discretion with prior wri en
approval, LICENSEE may, at its sole cost and expense, replace the ole (a
"Replacement Pole") with one that is acceptable to and approv by the
LICENSOR and dedicate such Replacement Pole to the LICEN OR.
4.2 No Interference. LICENSEE in the performance and exercise of its
rights and obligations under this Agreement shall not interfere i any manner with
the existence and operation of any and all public and pr' ate rights-of-way,
sanitary sewers, water mains, storm drains, gas mai , poles, aerial and
underground electrical and telephone wires, traffic sig Is, wired and wireless
telecommunications facilities owned by the LIC SOR or Third Party;
electroliers, cable television, location monitoring services, public safety and other
then existing telecommunications equipment, ut' ity, or municipal property,
without the express written approval of the o er or owners of the affected
property or properties, except as permitted by a plicable Laws or this Agreement.
However, the LICENSOR agrees that its ten ts, licensees, or users of the ROW
who currently have or in the future take ssession of space within the ROW
within three hundred feet (300') of any L ENSEE Small Cells will be permitted
to install only such components an or equipment that is of the type and
frequency which will not cause ha ful interference which is measurable in
accordance with then existing indus standards to the then existing equipment of
LICENSEE.
4.3 Permits; Default. W never LICENSEE is in default of this Agreement
or an applicable Permit, a er notice and a 30-day cure period in any of its
obligations under this Agr ement, the LICENSOR may suspend this License and
deny encroachment, exc vation or similar work until such time as LICENSEE
cures all of its defaults.
4.4 No Author' ation to Provide Other Services. LICENSEE represents,
warrants and cov ants that its Small Cell and/or Equipment installed pursuant to
this Agreement and each Site Permit will be utilized solely for providing the
Telecommuni tions Services identified herein and LICENSEE is not authorized
to and shall of use its Small Cell and/or Equipment to offer or provide any other
services n specified herein.
4.5 onexclusive Use Rights. Notwithstanding any other provision of this
Agre ent, any and all rights expressly or impliedly granted to LICENSEE under
thi Agreement shall be non-exclusive, and shall be subject and subordinate to
L ENSOR use of the ROW including: (1) the continuing right of the
ICENSOR 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,
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encumbrances and claims of title (collectively, "Encumbrances") which may
affect the ROW or Municipal Facilities now or at any time during the term oft 's
Agreement, including, without limitation any Encumbrances granted, creat or
allowed by the LICENSOR at any time.
5. COMPENSATION. LICENSEE shall be solely responsible for the ayment of
all fees in connection with LICENSEE's performance under this Agree ent, including
those set forth below.
5.1 License Fee. In order to compensate the LICENS R for LICENSEE's
entry upon and deployment of Small Cell and/or Equipme t on City-owned Poles,
LICENSEE shall at the commencement of each ite Term, pay to the
LICENSOR, on an annual basis, an amount of one t usand five hundred dollars
($1,500.00) per Pole (the "License Fee"). LIC NSEE shall make the first
payment of License Fee under any Site Permit 'thin thirty (30) days of the full
execution of the Acknowledgment. Thereafter License Fee shall be paid on or
before each anniversary of the Commenceme Date during the Site Permit Term.
5.2 License Fee Adjustment. Eff ctive on the first anniversary of the
Commencement Date of any Site Perm* Term, and continuing annually thereafter
during the applicable Site Term, the icense Fee shall be subject to adjustment
("Adjusted License Fee"), in the m nner hereinafter set forth, with a floor of 3%
and a ceiling of 8% every year, f increases in the index known as United States
Department of Labor, Bureau f Labor Statistics, Consumer Price Index, All
Urban Consumers, Los Ange s-Anaheim-Riverside Statistical Area Average, All
Items, (1982 84=100) (" PI") or the successor index that most closely
approximates the CPI. n no event shall the Adjusted License Fee, after
adjustment under the ovisions set forth above, be less than the amount of
License Fee in effect reunder immediately prior to such adjustment.
5.3 Business License. The Licensee shall obtain a Business License from the
City and pay all plicable taxes, or fees associated with performance of the terms
contained herei .
5.4 Pay ent. LICENSEE shall pay the License Fee monthly to City at the
City Trea rer's Office, P.O. Box 711, Huntington Beach, California, 92648, or at
such ot1 r place or places as City may from time-to-time designate by written
notice delivered to LICENSEE. LICENSEE shall pay the License Fee, which
mu be received by the City Treasurer within fifteen (15) calendar days ("Due
D e") on the anniversary of the Commencement Date, or on the next business
ay 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.
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Notwithstanding the foregoing, upon agreement of the parties, LICENSE /mayy
pay License Fee by electronic funds transfer and in such event, the LIC SOR
agrees to provide to LICENSEE bank routing information for such pu ose upon
request of LICENSEE.
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, LI L�NSEE shall pay the
following late charge and penalty: a late payment charg 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 ch€irges, 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 amo,uZnts 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 terminati7g this License agreement and all permits
issued thereto in the event that paymerfts become overdue by more than 60 days.
6. CONSTRUCTION. LICENSEF�all comply with all applicable Federal, State,
and City codes related to the constr ction, installation, operation, maintenance, and
control of LICENSEE's Small Cell d/or Equipment installed in the ROW. Except as
otherwise provided herein, LICEN E shall not attach, install, maintain, or operate any
Small Cell and/or Equipment i or on the ROW without obtaining all City permits
including a wireless permit an with additional prior written approval of an authorized
representative of the LICENS for each location.
6.1 Obtaining equired Site Permits. LICENSEE shall apply for and obtain
all appropriate p rmits and pay all applicable permit fees and/or taxes as a
condition prec dent to installation of any Small Cell and/or Equipment
contemplated in this License Agreement. LICENSEE shall maintain all
appropriate ermits and pay all applicable permit fees and/or taxes.
6.2 location and Displacement of Equipment. LICENSEE understands,
ackno edges and agrees that LICENSOR may require LICENSEE to relocate
one o more of its Small Cell and/or Equipment installations. LICENSEE shall at
LI NSOR's direction and upon ninety (90) days prior written notice to
L ENSEE, relocate such Small Cell and/or Equipment at LICENSEE's sole cost
nd 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
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by the LICENSOR at its sole discretion. In any such case, LICEN OR shall use
reasonable efforts to afford LICENSEE a reasonably equivalent a ernate location.
If LICENSEE shall fail to relocate any Small Cell and/or Equi ent as requested
by the LICENSOR in accordance with the foregoing provisi , LICENSOR shall
be entitled to remove or relocate the Small Cell nd/or Equipment at
LICENSEE's sole cost and expense, without furthe notice to LICENSEE.
LICENSEE shall pay to the LICENSOR actual costs expenses incurred by the
LICENSOR in performing any removal work and ny storage of LICENSEE's
property after removal within thirty (30) days of t e date of a written demand for
this payment from the LICENSOR. To the e ent the LICENSOR has actual
knowledge thereof, the LICENSOR will atte t promptly to inform LICENSEE
of the displacement or removal of any Poe on which any Small Cell and/or
Equipment is located. If the Municipal F cility is damaged or downed for any
reason, and as a result is not able to saf y hold the Equipment, the LICENSOR
will have no obligation to repair or rep ace such Municipal Facility for the use of
LICENSEE's Equipment and ass e no loss whatsoever to LICENSEE.
LICENSEE shall bear all risk of to as a result of damaged or downed Municipal
Facilities pursuant to §6.8 belo , and may choose to replace such Municipal
Facilities pursuant to the provisi ns of§4.1.5 above.
6.3 Damages Caused by LICENSEE. LICENSEE shall, at its sole cost and
expense and to the satisfa ion of the LICENSOR: (a) remove, repair or replace
any of its Small Cell an or Equipment that is damaged or becomes detached;
and/or(b) repair any d age to ROW, City Pole or other property, whether public
or private, caused by ICENSEE, its agents, employees or contractors in their
actions relating to achment, operation, repair or maintenance of Small Cell
and/or Equipment. f LICENSEE does not remove, repair or replace such damage
to its Small Cell nd/or Equipment or to ROW, City Pole of Facilities or other
property, the LI ENSOR shall have the option, upon 30 days' prior written notice
to LICENSE to perform or cause to be performed such removal, repair, or
replacement n behalf of LICENSEE and shall charge LICENSEE for the actual
costs incu d by the LICENSOR. If such damage causes a public health or
safety em rgency, as reasonably determined by the LICENSOR, the LICENSOR
may im ediately perform reasonable and necessary repair or removal work on
behalf f LICENSEE and will notify LICENSEE as soon as practicable; provided,
such epair work only involves reattachment of LICENSEE's Small Cell and/or
Equ' ment to a Pole or repair of the Pole itself, and shall not include any technical
wo k on LICENSEE's Equipment. Upon the receipt of a demand for payment by
t e LICENSOR, LICENSEE shall within 30 days of such receipt reimburse the
ICENSOR for such costs. The terms of this provision shall survive the
expiration, 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
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expiration or earlier termination of this Agreement. If LICENSEE fails o
complete this removal work pursuant to this Section, then the LICENSOR, pon
written notice to LICENSEE, shall have the right at the LICENSOD s sole
election, but not the obligation, to perform this removal work d charge
LICENSEE for the actual costs and expenses, including, wit limitation,
reasonable administrative costs. LICENSEE shall pay to the LI NSOR actual
costs and expenses incurred by the LICENSOR in performing y removal work
and any storage of LICENSEE's property after removal wit in thirty days of the
date of a written demand for this payment from the L ENSOR. After the
LICENSOR receives the reimbursement payment firm LICENSEE for the
removal work performed by the LICENSOR, the CENSOR shall promptly
make available to LICENSEE the property belongi to LICENSEE and removed
by the LICENSOR pursuant to this Section at no iability to the LICENSOR. if
the LICENSOR does not receive reimburse ent payment from LICENSEE
within such thirty days, or if LICENSOR do s not elect to remove such items at
the LICENSOR's cost after LICENSEE's ailure to so remove pursuant to this
Section, or if LICENSEE does not remo LICENSEE's property within 30 days
of such property having been ma e available by the LICENSOR after
LICENSEE's payment of removal r mbursement as described above, any items
of LICENSEE's property remaim on or about the ROW, Municipal Facilities,
or stored by the LICENSOR aft the LICENSOR's removal thereof may, at the
LICENSOR's option, be deem d abandoned and the LICENSOR may dispose of
such property in any ma r by Law. If LICENSOR incurs e-waste and
hazardous disposal fees part of any Federal, State, or Local regulatory
environmental requireme s, LICENSOR shall have the option to bill LICENSEE
for said disposal fees d LICENSEE agrees to reimburse LICENSOR within
thirty (30) days o receiving reimbursement request. Alternatively, the
LICENSOR may ect to take title to abandoned property, provided that
LICENSEE shall ubmit to the LICENSOR an instrument satisfactory to the
LICENSOR tra ferring to the LICENSOR the ownership of such property. The
provisions of t is Section shall survive the expiration or earlier termination of this
Agreement.
6.5 . k of Loss. LICENSEE acknowledges and agrees that LICENSEE,
subject o the terms of this Agreement bears all risks of loss or damage or
reloca on or replacement of its Small Cell and/or Equipment and materials
inst ed in the ROW or on Municipal Facilities pursuant to this Agreement from
an cause, and the LICENSOR shall not be liable for any cost of replacement or
o repair to damaged Equipment, including, without limitation, damage caused by
he LICENSOR's removal of the Equipment, except to the extent that such loss or
damage was caused by the willful misconduct or negligence of the LICENSOR,
including, without limitation, each of its elected officials, department directors,
managers, officers, agents, employees, and contractors, subject to the limitation of
liability provided in §7.2 below.
17-5952/167054/RLS 8/2/17/mv 9
7. INDEMNIFICATION AND WAIVER. LICENSEE agrees to indemnif ,
defend, protect, and hold harmless the City of Huntington Beach, its City Council or ny
elected official its members, officers, officials, employees or agents from and agai t any
and all claims, demands, losses, including Pole warranty invalidation, amages,
liabilities, fines, charges, penalties, administrative and judicial proceedings nd orders,
judgments, and all costs and expenses incurred in connection there w' including
attorney's fees and costs of defense (collectively, the "Losses") res ting from this
Agreement, except to the extent that the Losses are caused by the ICENSOR's sole
negligence or willful misconduct.
7.1 Waiver of Claims. LICENSEE waives any nd all claims, demands,
causes of action, and rights it may assert against th LICENSOR on account of
any loss, damage, or injury to any Small Cell a /or Equipment or any loss or
degradation of the Telecommunications Servi s or Information Service as a
result of any event or occurrence which is b and the reasonable control of the
LICENSOR.
7.2 Waiver of Subrogation. The ies hereby waive and release any and all
rights of action for negligence agai t the other which may hereafter arise on
account of damage to Municipal F cilities, Small Cell or to the ROW, resulting
from any fire, or other casualty f the kind covered by standard fire insurance
policies with extended cover ge, regardless of whether or not, or in what
amounts, such insurance is w or hereafter carried by the parties, or either of
them. These waivers and leases shall apply between the parties and they shall
also apply to any claims rider or through either party as a result of any asserted
right of subrogation. 11 such policies of insurance obtained by either party
concerning the Mun' ipal Facilities, Small Cell or the ROW shall waive the
insurer's right of sut ogation against the other party.
7.3 Limitat' n on Consequential Damages. Neither party shall be liable to
the other, or a y of their respective agents, representatives, employees for any lost
revenue, to profits, loss of technology, rights or services, incidental, punitive,
indirect, s ecial or consequential damages, loss of data, or interruption or loss of
use of s vice, even if advised of the possibility of such damages, whether under
theory f contract, tort (including negligence), strict liability or otherwise
8. S URITY FOR PERFORMANCE. Before any construction begins in the
ROW b LICENSEE, and if requested by LICENSOR, LICENSEE shall provide the
LICE OR with performance bonds, and if considered necessary by the LICENSOR,
pay ent bonds, in amounts equal to the full amount of the replacement of each Pole. The
pa ment bond shall be solely for the protection of claimants supplying labor or materials
r 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 t
of this Agreement Commercial General Liability insurance with a limit of$2,000,0 0 per
occurrence for bodily injury and property damage and $2,000,000 general gregate
including premises-operations, contractual liability, personal injury a products
completed operations; and Commercial Automobile Liability insuranc covering all
owned non-owned and hired vehicles with a limit of$1,000,000 each ac ident for bodily
injury and property damage. In any case, the Commercial General iability insurance
policy shall name the LICENSOR, its commission members, offic s, and employees as
additional insured as respects any covered liability arisin out of LICENSEE's
performance of work under this Agreement. Coverage shall e in an occurrence form
and in accordance with the limits and provisions specified h ein. Upon receipt of notice
from its insurer LICENSEE shall use its best efforts to rovide the LICENSOR with
thirty (30) days prior written notice of cancellation. LI NSEE shall be responsible for
notifying the LICENSOR of such change or cancellati n.
9.1 Filing of Certificates and Endors ments. Prior to the commencement of
any work pursuant to this Agreement, CENSEE shall file with the LICENSOR
the required certificate(s) of ins ance with blanket additional insured
endorsements, which shall state the llowing:
(a) the policy numb e ; name of insurance company; name and address
of the agent or autho 'zed representative; name and address of insured;
project name; policy xpiration date; and specific coverage amounts;
(b) that LIC SEE's Commercial General Liability insurance policy
is primary as espects any other valid or collectible insurance that the
LICENSOR may possess, including any self-insured retentions the
LICENSO may have; and any other insurance the LICENSOR does
possess all be considered excess insurance only and shall not be
require to contribute with this insurance; and
(c) that LICENSEE's Commercial General Liability insurance policy
w ives any right of recovery the insurance company may have against the
ICENSOR.
The certificate(s) of insurance with endorsements and notices shall be mailed to
th 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
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 " eparation 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 noti -es which shall or may be
given pursuant to this Agreement shall be in writirand delivered personally or
transmitted (a) through the United States mail, by registered or certified mail,
postage prepaid; or (b) by means of prepaid ov night delivery service, addressed
as follows:
if to the LICE OR:
City of Hun mgton Beach
Office of Wusiness Development
Attention: Deputy Director
1685 Main Street
Huntington Beach, CA 90401
i to LICENSEE:
10.2 Date o otices; Changing Notice Address. Notices shall be deemed
given upon re 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 party delivered in the manner set forth
above.
1/nder
RVED
1GNMENT. This Agreement may be assigned by LICENSEE to any parent
cbsidiary, affiliate, or corporation that shall control, be under the control of, or
bmmon control of the LICENSEE or to any entity into which LICENSEE may
hd, 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 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 pro ide such records within
twenty (20) business days of a request by the LICE OR for production of the
same unless additional time is reasonably needed b LICENSEE, in which case,
LICENSEE shall have such reasonable time as eded for the production of the
same. If any person other than LICENSEE intains records on LICENSEE's
behalf, LICENSEE shall be responsible for aking such records available to the
LICENSOR for auditing purposes pursuant o this Section.
14. MISCELLANEOUS PROVISIONS. The provisions that follow shall apply
generally to the obligations of the parties un r this Agreement.
14.1 Waiver of Breach. The aiver by either party of any breach or violation
of any provision of this Agre ment shall not be deemed to be a waiver or a
continuing waiver of any sub equent breach or violation of the same or any other
provision of this Agreemen .
14.2 Severability of rovisions. If any one or more of the provisions of this
Agreement shall be Id by a court of competent jurisdiction in a final judicial
action to be void, v idable, or unenforceable, such provision(s) shall be deemed
severable from th remaining provisions of this Agreement and shall not affect the
legality, validity, or constitutionality of the remaining portions of this Agreement.
Each party he by declares that it would have entered into this Agreement and each
provision he of regardless of whether any one or more provisions may be declared
illegal, inv id, or unconstitutional.
14.3 Contacting LICENSEE. LICENSEE shall be available to the staff
emp yees of any LICENSOR department having jurisdiction over LICENSEE's
ac 'vities 24 hours a day, seven days a week, regarding problems or complaints
sulting 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 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
Count of Los Angeles. If suit is brought b a art to this Agreement, the artie�
Y g g Y party g � p
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 withhol�3 its approval or consent.
14.7 Representations and Warranties. Each o he 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 respective obligations hereunder
and that such obligations shall be bind' g upon such party without the
requirement of the approval or consent of a yother person or entity in connection
herewith, except as provided in § 4.2 above. This Agreement shall not be
revocable or terminable except as expre sly permitted herein.
14.8 Amendment of Agreemen This Agreement may not be amended except
pursuant to a written instrument s' ned by both parties.
14.9 Entire Agreement. his Agreement contains the entire understanding
between the parties with spect to the subject matter herein. There are no
representations, agreeme s, 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 h ein. In witness whereof, and in order to bind themselves
legally to the to and conditions of this Agreement, the duly authorized
representatives of he 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
sha be deemed an exclusive remedy or to afford the exclusive procedure for the
e orcement of said terms and conditions, but the remedies herein provided are
eemed 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/respectoparties shall remain as imposed by state law.
14.13 Construction of Agreement. The terms and pro
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�Iocal laws and regulations; (b)
t agrees that this Agreement was granted pursu to processes and procedures
consistent with applicable law; and (c) agrees tt will not raise any claim to the
contrary or allege in any claim or proceeding/against the LICENSOR that at the
time of acceptance of this Agreement any provision, condition or term of this
Agreement was unreasonable or arbitrary or that at the time of the acceptance of
this Agreement any such provision, condition or term was void or unlawful or that
the LICENSOR had no power or authority to make or enforce any such provision,
condition or term.
14.1.5 Time is of the Essen e. Time is of the essence with regard to the
performance of all of LICEN E's obligations under this Agreement.
14.16 Compliance with LICENSEE shall at all times comply with all
applicable Federal, Stat /and Local laws and regulations, including any permit
requirements or Condit' ns.
[Signature page fol ows]
17-5952/167054/RLS 8/2/17/mv 15
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed the
day and year first above written.
» II
"LICENSEE" "LICENSOR and CITY
CITY OF HUNTINGTON BEACH,
municipal corporatio�of the State of
California
By:
City Manager
Its: �
'PROVED AS TO FORM:
By:
Its: City Attorney
Exhibits:
Exhibit A— S Coordinates & Depiction
Exhibit B - ite 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
ATTACHMENT #2
Orange County
StreetlightPole • (Agency• Agency or '• Escalation
City of Aliso Viejo SCE Not Applicable �
City of Anaheim Anaheim $ 94.00 20 Automatic None
City of Brea SCE Not Applicable
City of Buena Park SCE Not Applicable
City of Dana Point SCE Not Applicable v
City of Fountain Valley Fountain Valley $ 2,000.00 10 2(5-year) 3%
City of Fullerton SCE Not Applicable
City of Huntington Beach Huntington Beach $ 1,500.00 10 2(5-YEAR) 3%<CPI<8%
City of Garden Grove SCE Not Applicable
City of Irvine SCE Not Applicable
City of La Habra SCE Not Applicable
City of La Palma SCE Not Applicable
_ 1
City of Laguna Beach SCE Not Applicable
City of Laguna Hills SCE Not Applicable
City of Laguna Nigel SCE Not Applicable F
City of Laguna Woods SCE Not Applicable
City of Lake Forest SCE Not Applicable
City of Los Alamitos SCE Not Applicable 4
City of Mission Viejo SCE Not Applicable
City of Newport Beach Newport Beach $ 2,790.00 10 3%
City of Orange SCE Not Applicable
City of Placentia SCE Not Applicable ;,
City of Rancho Santa Margarita SCE Not Applicable
City of San Clemente SCE $ 966.00 10 2(S-YEAR) 3%
City of San Juan Capistrano SCE Not Applicable s _
City of Santa Ana Santa Ana Not Available
City of Seal Beach SCE Not Applicable
City of Stanton SCE Not Applicable
._, City of Tustin Finalizing Acquisition from Edison Not Applicable
City of Villa Park SCE Not Applicable
City of Westminster SCE Not Applicable
N
W
CD
City of Yorba Linda SCE Not Applicable
LOS ANGELES COUNTY CITIES
lV
City of Arcadia Arcadia $ 1,500.00 20 2(5-year) 3%
City of Encinitas Encinitas $ 1,000.00 20 None 3%
City of Los Angeles Los Angeles $ 700.00 10 3(5-YEAR) 2.50%
City of Pomona Pomona $ 700.00 20 Automatic 3%
City of Redondo Beach Redondo Beach $ 1,000.00 10 3(5-YEAR) 3%
City of San Diego San Diego $ 4,000.00 10 2(5-year) 3%
v,