20-0826_NEW CINGULAR WIRELESS PCS, LLC_Municipal Facility License AgreementMUNICIPAL FACILITY LICENSE AGREEMENT
THIS MUNICIPAL FACILITY LICENSE AGREEMF.NI' s
(the "Agreement") is dated a
of e9. 2020 (the date fully executed by all parties, referred to herein as
"Effectia Date"), and entered into by and between the City of San Juan Capistrano, a California
municipal corporation (the "Licensor"), and New Cingular Wireless PCS, LLC, a Delaware limited
liability company ("Licensee"). Licensor and Licensee are referred to herein collectively m the
"Parties" or individually as a "Party."
Recitals
A. WHEREAS, the Licensor is the owner of certain Municipal Facilities (as defined
below) located in the Rights -of -Way (as defined below) of the City of San Juan Capistrano
("City");
B. WHEREAS, Licensee is authorized to conduct business as a telephone corporation
in the State of California;
C. WHEREAS, Licensee desires to use space on certain of the Licensor's Municipal
Facilities in the Rights -of -Way to construct, attach, install, operate, and maintain of its Equipment
(as defined below);
D. WHEREAS, Licensor is willing to allow Licensee to use and physically occupy
portions of the Municipal Facilities in the Rights -of -Way subject to the terms and conditions of
this Agreement.
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties agree to the following covenants, terms, and
conditions:
1. DEFINITIONS. The following definitions shall apply generally to the provisions of this
Agreement:
1.1 "Equipment" means the equipment cabinets, antennas, utilities, and fiber optic
cables, wires, and related equipment, whether referred to individually or collectively, to be
installed on a Municipal Facility and operated by Licensee under a particular Supplement.
1.2 "Hazardous Substance" means any substance, chemical or waste that is identified
as hazardous or toxic in any applicable federal, state or local law or regulation, including, but not
limited to, petroleum products and asbestos.
1.3 "Laws" means any and all applicable statutes, codes, constitutions, ordinances,
resolutions, regulations, judicial decisions, riles, tariffs, administrative orders, court orders, or
other requirements of the Licensor or other governmental agency having joint or several
jurisdiction over the parties to this Agreement as such laws may be amended from time to time.
1.4 "License Fee" means the compensation paid under any Supplement for use of the
Municipal Facilities.
1.5 "Make -Ready Work" means the work required on or in a Municipal Facility to
create space for the Equipment, and/or replacing and/or reinforcing the existing Municipal Facility
to accommodate Equipment including, but not limited to, rearrangement or transfer of existing
Equipment and the facilities of other entities, and Municipal Facility relocation and replacement
if applicable.
1.6 "Municipal Facilities" means City -owned structures, objects, and equipment in the
rights-of-way, including, but limited to, street lights, traffic signal control structures, banners,
street furniture, bus stops, billboards, or other poles, lighting fixtures, or electroliers located within
the rights-of-way.
1.7 "Person" means and includes any individual, partnership of any kind, corporation,
limited liability company, association, joint venture, or other organization, however formed, as
well as trustees, heirs, executors, administrators, or assigns, or any combination of such persons.
1.8 "PUC" means the California Public Utilities Commission.
1.9 "Right(s)-of-Way" or "ROW" means the surface of and the space above and below
the public streets, roads, and alley right-of-way, and public utility easements or other public ways
of any type whatsoever, now or thereafter located and existing within the City of San Juan
Capistrano limits, whether improved on not improved.
1.10 "Services" means the transmission and reception of communications signals for the
provision of personal wireless services and mobile data services, and the installation, construction,
modification, maintenance, operation, repair, replacement and upgrade of the Equipment to
provide such services.
1.11 "Supplement' shall mean each separate authorization, granted by Licensor to
Licensee with regard to a specific Equipment installation, the form of which is attached hereto as
Exhibit A, each and every of which shall be subject to the terms and conditions of this Agreement.
1.12 "Transfer" means any transaction in which the rights and/or obligations held by
Licensee under this Agreement or a Supplement are transferred, directly or indirectly, in whole or
in part to a party other than Licensee.
2. TERM; SUPPLEMENT TERM.
2.1 Term. The initial term of this Agreement shall be for a period of ten (10) years
(the "Initial Term"), commencing on the Effective Date and ending on the tenth (10th) anniversary
thereof, unless sooner terminated as stated herein. Provided that Licensee is not in default of the
Agreement or any Supplement following written notice and the expiration of any applicable cure
period, this Agreement shall be automatically renewed for two (2) successive five (5) year renewal
terms (each, a "Renewal Term"), unless either party gives the other party written notice of the
intent not to renew this Agreement at least six (6) months prior to the expiration of the Initial Tenn
or any Renewal Term, as applicable. The Initial Term and all Renewal Terms shall be collectively
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referred to herein as the "Term." Any holding over after the termination or expiration of the Term
shall constitute a default by Licensee, notwithstanding that Licensor may elect to accept one or
more payments of fees from Licensee after such default occurs.
2.2 Supplement Term. Unless otherwise specified in a Supplement, the initial term
for each particular Supplement shall begin on its effective date ("Supplement Effective Date") and
shall end upon the expiration of the Term, unless such individual Supplement is earlier terminated
or this Agreement is extended or terminated, as provided for herein (the "Supplement Term"). All
of the provisions of this Agreement shall be in effect during the Supplement Term. The expiration
or termination of the Agreement shall immediately terminate all Supplements. Any holding over
after the expiration of the Supplement Tenn shall constitute a default by Licensee, notwithstanding
that Licensor may elect to accept one or more payments of fees from Licensee after such default
occurs.
3. REPRESENTATION CONCERNING SERVICES; NO AUTHORIZATION TO PROVIDE OTHER
SERVICES. Licensee represents, warrants, and covenants that its Equipment installed pursuant to
this Agreement and each Supplement will be utilized solely for providing the Services, and
Licensee is not authorized to and shall not use its Equipment installed on Municipal Facilities to
offer or provide any other services not specified herein without Licensor consent. At any time that
Licensee ceases to operate as a provider of Services under federal or state law, it shall provide
written notice of the same to Licensor within seven (7) days of such cessation, at which time the
Licensor shall have the option, in its sole discretion and upon six (6) months' written notice to
Licensee, to terminate this Agreement and to require the removal of Licensee's Equipment from
the ROW and from Municipal Facilities, including the cost of any site remediation, at no cost to
the Licensor, without any liability to Licensee related directly or indirectly to such termination.
4. SCOPE OF AGREEMENT. Licensee may only use Municipal Facilities pursuant to an
approved Supplement. Any and all rights expressly granted to Licensee under this Agreement shall
be exercised at Licensee's sole cost and expense, and shall be subject to the restrictions set forth
herein
4.1 Attachment to Municipal Facilities. Subject to the conditions herein, Licensor
hereby authorizes and permits Licensee to locate, place, attach, install, operate, maintain, control,
remove, reattach, reinstall, relocate, and replace Equipment on identified Municipal Facilities
located in the ROW for the purpose of providing Services.
4.1.1 Licensee will submit to the authorized representative of the Licensor an
application substantially in the form of Exhibit B ("Application") hereto including a proposed
design for any proposed Equipment installations that identifies both the Equipment and the
Municipal Facilities Licensee proposes to use. One Application is required per Municipal Facility,
but Licensee may submit a batch of up to five (5) applications that have the same design, have the
same pole type, and are not in discouraged or prohibited locations (as identified in the City of San
Juan Capistrano's Design and Development Standards for Wireless Facilities in the Right -of -
Way).
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4.1.2 Licensor may approve, approve with conditions, or disapprove an
Application in its sole discretion; provided however, that Licensor shall not unreasonably delay its
decision. Any approved Equipment shall be included as part of the applicable Supplement.
4.1.3 If Licensee submits an Application to use a Municipal Facility that is
structurally inadequate to accommodate its proposed Equipment, Licensor may permit the
replacement of the Municipal Facility (a "Replacement Facility") with one that is acceptable to
and approved by the Licensor as part of the applicable Supplement. Any Replacement Facility
shall be installed and maintained in accordance with Section 6 of this Agreement.
4.1.4 Unmetered electricity where possible. Licensee shall be solely
responsible for obtaining and maintaining the provision of electricity to the Equipment, including,
but not limited to, making payments to electric utilities. Where commercially feasible and
available, Licensee shall secure unmetered electricity services.
4.2 Additional Authority. This Agreement is not an authorization to use the Right -
of -Way. Nothing in this Agreement shall limit in any way, or is a substitute for, Licensee's
obligation to obtain any additional required franchises, authorizations, approvals or permits from
any City department, board, commission, or other governmental agency that has authority over the
Licensee's activities involving use of the Municipal Facilities in the ROW or limit the Licensor's
exercise of rights that it may have in connection with the grant or exercise of such franchises,
authorizations, approvals or permits, whether or not such activities involve Services. Without
limiting the generality of the foregoing, Licensor believes it may have the right to require a
franchise and franchise fees under Cal. Cal. Const. Art. XII, Section 8, or franchise fees under
Section 5840(q) of the Digital Infrastructure and Video Competition Act (as codified in Public
Utilities Code section 5800 et seq.) ("DIVCA") or federal law, 47 U.S.C. 542, and Licensor does
not intend by entering into this Agreement to waive any of those rights or any legal arguments it
might make to defend such rights. Licensee by entering into this Agreement does not waive any
rights or arguments it might have under state or federal law. The Parties do not intend to resolve
those disputes here nor do they intend to create uncertainty about what services can be offered
under this Agreement. If Licensor demands a franchise or franchise fees pursuant to DIVCA or
other state or federal law, or if there is a change of law or other legal development under which
the services being provided by Licensee pursuant to this Agreement are subject to a franchise or
franchise fees under DIVCA or other state or federal law, the Parties will meet and confer in good
faith for a period not to exceed one hundred and twenty (120) days ("the Negotiation Period") to
negotiate terms, including any compensation owed by Licensee to the City under DIVCA or other
state or federal law. If the Parties are not able to reach agreement during the Negotiation Period,
the parties may exercise any remedies that they may have. However, the Parties agree that in no
instance shall Licensor seek to prevent Licensee from providing any such service under this
Agreement.
4.3 No Interference. Licensee acknowledges and agrees that the primary purpose of
the Municipal Facilities is to serve the Licensor and the public. In the performance and exercise of
its rights and obligations under this Agreement, Licensee shall not interfere in any manner with
Licensor's own services or the existence and operation of any and all public and private rights-of-
way, sanitary sewers, water mains, storm drains, gas mains, poles, aerial and underground
electrical and telephone wires, traffic signals, communication facilities owned by the Licensor,
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eleetroliers, cable television, location monitoring services, public safety and other then existing
telecommunications equipment, utilities, or municipal property, without the express written
approval of the owner or owners of the affected property or properties, except as permitted by
applicable laws or this Agreement. If such interference should occur, Licensee shall discontinue
using the Equipment, methodology, or technology that causes the interference until such time as
Licensee takes corrective measures to eliminate such interference. In the event that such
interference does not cease promptly, Licensee acknowledges that continuing interference may
cause irreparable injury and harm, and therefore, in addition to any other remedies, and without
limitation of any other remedy, Licensor shall be entitled to seek temporary and permanent
injunctions against the breach of this Subsection. Notwithstanding the foregoing, Licensor and
Licensee agree to work in good faith with each other and any other affected party to resolve any
interference to or by Licensee.
4.4 Permits; Default. In addition to any other remedies available hereunder, whenever
Licensee is in default of this Agreement or an applicable Supplement, after notice and applicable
cure periods, Licensor may deny further encroachment, excavation, or similar permits for work in
connection with installations under this Agreement until such time as Licensee cures all of its
defaults.
4.5 Compliance with Laws. Licensee shall comply with all Laws in the exercise and
performance of its rights and obligations under this Agreement.
4.6 Non -Exclusive Use Rights. Notwithstanding any other provision of this
Agreement, any and all rights expressly or impliedly granted to Licensee under this Agreement
shall be non-exclusive, and shall be subject and subordinate to (1) the continuing right of the
Licensor to use, and to allow any other person or persons to use, any and all parts of the ROW or
Municipal Facilities, exclusively or concurrently with any other person or persons, and (2) the
public easement for streets and any and all other deeds, easements, dedications, conditions,
covenants, restrictions, encumbrances, and claims of title (collectively, "Encumbrances") which
may affect the ROW or Municipal Facilities now or at any time during the term of this Agreement,
including, without limitation any Encumbrances granted, created, or allowed by the Licensor at
any time.
5. COMPENSATION. Licensee shall be solely responsible for the payment of all fees in
connection with Licensee's performance under this Agreement, including, but not limited to, those
set forth below.
5.1 One Time Fees. The Licensor activities described in Section 5.1 are "One -Time
Fees" that reimburse the City for its costs associated with reviewing and approving applications to
attach Equipment on identified Municipal Facilities located in the ROW, this Agreement and
Supplements to this Agreement for additional locations. The Licensor shall track its time spent
reviewing the Licensee submittals for Licenses, Supplements and associated permit activities
described below, and charge its hourly rate for any time spent above the amount to be recovered
from any deposit. The fee amounts shall be assessed and administered consistent with standard
Licensor practice and fee schedule(s) for an encroachment permit and inspections as currently
adopted and subsequently amended or replaced, in a manner consistent with applicable law.
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5.1.1 Permit Fees. Licensee shall be responsible for paying all costs associated
with City review, processing and inspection as part of all permit applications filed for the
installation, modification, maintenance and removal of Equipment on identified Municipal
Facilities located in the ROW.
5.1.2 License and Supplement Fee. Licensee shall be responsible for paying all
costs associated with City review and processing of this Agreement and any Supplements thereto
(or any amendment thereto) and/or the other administrative review, consultation, and inspection
described in this Agreement, including review of Company submittals.
5.2 License Fees.
5.2.1 Rent. Licensee acknowledges that the FCC has adopted a Declaratory
Ruling (FCC 18-133) that relates to the rent which went into effect on January 14, 2019 but that
Declaratory Ruling is currently the subject of litigation. Paragraphs 5.2.2, 5.2.3 and 5.2.4 govern
the payment of rent and how it may be impacted by the Declaratory Ruling and the resolution of
related litigation during the Term and any renewal terms.
5.2.2 During any period in which the FCC Declaratory Ruling (FCC 18-133) is
in effect and during any period in which the Alternate Rent provisions in paragraph 5.2.3 are not
applicable, the Licensee shall pay Rent as described in this paragraph. Licensee shall pay to the
Licensor the base amount of two hundred and seventy dollars ($270.00) per calendar year for each
location covered by a Supplement. The base amount under all Supplements shall be subject to an
annual adjustment of three percent (3%) applied on each anniversary of the Effective Date. Any
new Supplements entered into during a given year shall commence at the rent, as adjusted by this
Section to reflect the then -current rate. (the "Rent"). Rent for the first calendar year of a
Supplement for each location shall be pro -rated based on the number of days covered from the
Supplement Effective Date to the next anniversary of the Effective Date of the Agreement. There
shall be no refunds of Rent paid due to the termination or expiration of the Agreement or any
Supplement for any reason.
5.2.3 Alternate Rent. In the event the relevant provisions of the FCC Declaratory
Ruling cease to be effective, (for example, because they are stayed after having gone into effect,
or they are vacated or invalidated and have not been replaced by the FCC with an alternative
provision setting a specific amount as Rent), the Licensee shall automatically and immediately be
obligated to pay Alternate Rent as described in this paragraph and paragraph 5.2.5, if
applicable. For each location covered by a Supplement, Licensee shall pay to the Licensor
alternate rent in the base amount of one thousand five hundred dollars ($1,500.00) per calendar
year. The base amount under all Supplements shall be subject to an annual adjustment of three
percent (3%) applied on each anniversary of the Effective Date. ("Alternate Rent'). Altcrnate
Rent for the first calendar year of a Supplement for each individual location shall be pro -rated
based on the number of days covered from the Supplement Effective Date to the next anniversary
of the Effective Date of the Agreement. There shall be no refunds of Alternate Rent paid due to
the termination or expiration of the Agreement or any Supplement for any reason. If the relevant
part of the FCC Order governing rents is partially vacated or partially invalidated, at Licensee's
request, the parties can meet and confer in good faith on whether any modification to this provision
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is warranted to reflect the outcome (i.e. the partial vacation or partial invalidation of the relevant
part of the FCC Order).
5.2.4 The Licensor agrees that irrespective of whether the relevant provisions of
the FCC Declaratory Ruling (FCC 18-133) cease to be effective, no Alternate Rent shall be due
for any periods during which the relevant provisions of the FCC Declaratory Ruling were in
effect. However, if Licensee has paid Rent pursuant to the provisions of Section 5.2.2 above for a
calendar year, and the relevant provisions of the FCC Declaratory Ruling subsequently cease to be
effective during the same calendar year, the Licensee shall pay the difference between the Rent
and the Alternate Rent for the period from the date the relevant provisions of the FCC Declaratory
Ruling ceased to be effective, until December 31 of that year ("Rent Adjustment"). Such Rent
Adjustment shall be paid to Licensor along with the next License Fee payment.
5.2.5 Receipt of any Rent or Alternate Rent by the Licensor, with knowledge of
any breach of this Agreement by Licensee, or of any default on the part of Licensee in the
observance or performance of any of the conditions or covenants of this Agreement, shall not be
deemed a waiver of any provision of this Agreement.
5.3 Payment.
5.3.1 Licensee shall make the first payment of the License Fee under any
Supplement within forty-five (45) days of the Supplement Effective Date (as defined therein). The
amount of the first payment of the License Fee for any Supplement shall be prorated to cover the
period from the Supplement Effective Date of the applicable Supplement to the next anniversary
of the Effective Date of this Agreement. Thereafter, the License Fee shall be paid in advance for
each Municipal Facility used on or before each anniversary of the Effective Date. Acceptance by
Licensor of any payment of the License Fee shall not be deemed a waiver by Licensor of any
breach of this Agreement occurring prior thereto, nor will the acceptance by Licensor of any such
payment preclude Licensor from later establishing that a greater amount was actually due or from
collecting any balance that is due. As a prerequisite to the payment of License Fee, Licensor
hereby agrees to provide to Licensee certain documentation (the "License Documentation")
evidencing Licensor's interest in, and right to receive payments under, this Agreement, including
without limitation: (i) a complete and fully executed Internal Revenue Service Form W-9, or
equivalent, in a form acceptable to Licensee, for any party to whom License Fee payments are to
be made pursuant to this Agreement; and (ii) other documentation requested by Licensee in
Licensee's reasonable discretion. From time to time during the Term of this Agreement and within
thirty (30) days of a written request from Licensee, Licensor agrees to provide updated License
Documentation in a form reasonably acceptable to Licensee.
5.3.2 The License Fee shall be paid by check made payable to the City and mailed
or delivered to the Finance Department, at the address provided for in Section 10 below. The place
and time of payment may be changed at any time by Licensor upon thirty (30) days' written notice
to Licensee. Mailed payments shall be deemed paid upon the date such payment is officially
postmarked by the United States Postal Service. If postmarks arc illegible to read, the payment
shall be deemed paid upon actual receipt. Licensee assumes all risk of loss and responsibility for
late payment charges if payments are made by mail. Notwithstanding the foregoing, upon
agreement of the parties, Licensee may pay the License Fee by electronic funds transfer, and if
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agreed, the Licensor will provide to Licensee bank routing information for such purpose upon
request of Licensee.
5.4 Delinquent Payment. A five percent (5%) late fee shall be added to the License
Fee if not received by Licensor within ten (10) calendar days after the due date. In addition, all
unpaid fees shall accrue interest on the amount due at the rate of one percent (1%) until paid in
full. All late fees and interest payments shall be treated as part of, and subject to the same terms
as, the License Fee under this Agreement.
5.5 Additional Remedies. The late fee set forth in Section 5.4 above is not exclusive,
and does not preclude the Licensor from pursuing any other or additional remedies in the event
that payments become overdue by more than thirty (30) days.
6. CONSTRUCTION. Licensee shall comply with all applicable federal, state, and local codes
related to the construction, installation, operation, maintenance, and control of Licensee's
Equipment installed on Municipal Facilities. Licensee shall not attach, install, maintain, or operate
any Equipment on Municipal Facilities without the prior written approval of an authorized
representative of the Licensor for each location as evidenced in a signed Supplement. Licensee
shall keep the Municipal Facilities free and clear from any liens arising out of any work performed,
material furnished, or obligations incurred by or for Licensee.
6.1 Installation and Operation. Within thirty (30) days of the completion of each
installation, Licensee shall promptly furnish to Licensor As -Built drawings of the current location
of the Equipment in or on the Municipal Facility. That information must be provided in a format
that is compatible with Licensor's information technology, including but not limited to ESRI
compatible GIS shapefiles, which Licensor shall provide to Licensee upon request.
6.2 Design Standards. Licensee shall design, construct, and install the Equipment and
any Replacement Facility in compliance with the design standards set forth pursuant to Section 7-
10.05(c) of the City of San Juan Capistrano Municipal Code, or any applicable successor
provision(s), and the City permit and conditions of approval. All future Supplements and
modifications to existing Equipment shall be subject to then -current design standards in the City
of San Juan Capistrano. By entering into this Agreement, Licensee agrees that the design standards
required by this Section are technically feasible and reasonably directed at accomplishing the
aesthetic goals of Licensor.
6.3 Obtaining Required Permits. Licensee acknowledges that in addition to a signed
Supplement, each installation of Equipment and maintenance thereof shall also be subject to then -
current City permitting requirements as set out in the City's Municipal Code. Licensee agrees to
comply with the current applicable ordinances regarding such installations and maintenance as
well as any future regulations that may be adopted by the City related to such installations and
maintenance. Licensee shall apply for the appropriate permits and pay any standard and customary
permit fees.
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6.4 Relocation and Displacement of Equipment.
6.4.1 This Agreement creates no right for Licensee to receive any relocation
assistance or payment for any reason under the Relocation Assistance Act, the Uniform Relocation
Assistance Act, or under any existing or future law upon any termination of tenancy.
6.4.2 Licensee understands and acknowledges that Licensor may require
Licensee to relocate one or more of its Equipment installations. Licensee shall at Licensor's
direction and upon one hundred twenty (120) days' prior written notice to Licensee, relocate such
Equipment at Licensee's sole cost and expense whenever Licensor reasonably determines that the
relocation is needed for any of the following purposes: (a) if required for the construction,
modification, completion, repair, relocation, or maintenance of a Licensor or other public agency
project; (b) because the Equipment is interfering with or adversely affecting proper operation of
Licensor -owned Municipal Facilities; or (c) to protect or preserve the public health or safety,
including, but not limited to, the safe or efficient use of rights-of-way. In any such case, Licensor
shall use reasonable efforts to afford Licensee a reasonably equivalent alternate location. If
Licensee shall fail to relocate any Equipment as requested by the Licensor within the prescribed
time, Licensor shall be entitled to remove or relocate the Equipment at Licensee's sole cost and
expense, without further notice to Licensee. Licensee shall pay to the Licensor actual costs and
expenses incurred by the Licensor in performing any removal work and any storage of Licensee's
property after removal within forty-five (45) days of the date of a written demand, and supporting
documentation, for this payment from the Licensor.
6.4.3 To the extent the Licensor has actual knowledge thereof, the Licensor will
attempt, within two business days, to inform Licensee of the displacement or removal of any
Municipal Facility on which any Equipment is located.
6.5 Relocations at Licensee's Request. In the event Licensee desires to relocate any
Equipment from one Municipal Facility to another, Licensee shall so advise Licensor. Licensor
will use reasonable efforts to accommodate Licensee by making another reasonably equivalent
Municipal Facility available for use in accordance with and subject to the terms and conditions of
this Agreement. Licensor may require Licensee to submit an application and/or enter into a new
Supplement for the prospective relocation site. Licensee shall be liable for all costs of relocation,
including any costs which Licensor may incur.
6.6 Make Ready
6.6.1 Make Ready Work and Costs.
(a) Licensee shall bear responsibility for all Make -Ready Work. If a
Person other than Licensee or Licensor would have to rearrange or adjust any of its facilities in
order to accommodate new Equipment, Licensee shall be responsible, at Licensee's sole expense,
to coordinate such activity. Licensee shall be responsible for directly paying such other Person for
its charges for the same. If Licensee is requested by another Person, in comparable circumstances,
to relocate or adjust any Equipment to accommodate that Person's facilities, subject to Licensor's
written approval of such relocation, Licensee shall reasonably cooperate with such request.
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(b) Construction, installation, and operation of the Equipment shall be
conditioned on the completion of all Make -Ready Work needed to establish full compliance with
NESC, and with Licensor's regulatory rules and engineering standards; provided, however, that
Licensee shall not be responsible for any third -party or Licensor costs necessary to correct third
party or Licensor attachments that are non-compliant at the time of Licensee's Application.
6.6.2 Notification of Completion of Installation. Within twenty (20) business
days of completing the installation of Equipment on each Municipal Facility, Licensee shall notify
Licensor of such completion.
6.7 Replacement Facilities
6.7.1 Ownership of Replacement Facilities
Licensor shall own any approved Replacement Facility. Where needed, Licensee shall cooperate
with Licensor to transfer ownership and any associated warranties of any Replacement Facility
from Licensee to Licensor without charge to Licensor.
6.7.2 Replacement Facility Installation
If Licensee is performing Make -Ready Work, Licensee shall be responsible for providing
and installing any approved Replacement Facility.
6.8 Damage, Maintenance & Repair.
6.8.1 Licensee shall, at its sole cost and expense and to the satisfaction of the
Licensor: (a) remove, repair, or replace any of its Equipment that is damaged or becomes detached;
and/or (b) repair any damage to ROW, Municipal Facilities, or other property, whether public or
private, caused by Licensee, its agents, employees, or contractors in their actions relating to
attachment, operation, repair, or maintenance of Equipment. Licensee shall complete such
removal, repair, or replacement within thirty (30) days' of written notice.
6.8.2 Licensor shall maintain and keep the Municipal Facilities authorized to be
used by Licensee pursuant to any Supplement (other than any Replacement Facilities) in good
condition in accordance with Licensor's standard maintenance requirements. Such maintenance of
Municipal Facilities shall be at Licensor's sole cost and expense, except to the extent this
Agreement provides otherwise. In the event that a Replacement Facility needs to be cleared from
the ROW, Licensor shall conduct this work. In the event a Replacement Facility needs to be
replaced or repaired, Licensee shall conduct this work at Licensee's own expense. In this case
Licensee will notify Licensor by contacting the City Engineer at (949) 443-6353 before beginning
the work.
6.8.3 If Licensee does not remove, repair, replace, or otherwise remediate such
damage to its Equipment, a Replacement Facility, or to the ROW, Municipal Facilities or other
property as required in this Section 6.8, the Licensor shall have the option to perform or cause to
be performed removal, repair, or replacement on behalf of Licensee and shall charge Licensee for
the actual costs incurred by the Licensor. If such damage causes a public health or safety
emergency, as reasonably determined by Licensor, Licensor may immediately perform reasonable
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and necessary repair or removal work on behalf of Licensee and will notify Licensee as soon as
practicable; provided, however, that such repair work shall not include any technical work on
Licensee's Equipment. Licensor shall have no obligation to maintain or safeguard the Equipment.
6.8.4 Upon the receipt of a demand for payment by the Licensor pursuant to this
Section 6.8, Licensee shall within forty-five (45) days of such receipt reimburse the Licensor for
such costs.
6.8.5 The terms of this Section 6.8 shall survive the expiration termination of this
Agreement.
6.9 Change in Equipment. If Licensee desires to install Equipment which is different
in any material way from the then -existing and approved Equipment, then Licensee shall first
obtain the written approval for the use and installation of such Equipment from an authorized
representative of the Licensor. Any such approval shall take the form of an amendment to the
applicable Supplement. In addition to any other submittal requirements, and if requested by
Licensor, Licensee shall provide "load" (structural) calculations for all Equipment changes. In
addition to the foregoing, Licensee shall comply with any other applicable City permitting or
approval process for the Equipment change. Notwithstanding the foregoing, Licensor's approval
for modifications or an amendment to the applicable Supplement shall not be required in
connection with routine maintenance or modifications that consist of upgrades or replacement of
"like -kind" Equipment which is substantially similar (or smaller in size) in appearance,
dimensions, weight, and RF emissions to the then -existing and approved Equipment.
6.10 Unauthorized Equipment. If Licensor discovers any Equipment has been
installed on Municipal Facilities without authorization pursuant to a Supplement, Licensor may
send an invoice to Licensee for a sum equal to five (5) times the then -current License Fee as
compensation for the unauthorized attachments, and, within sixty (60) days from the date of such
invoice, Licensee shall (i) pay the invoiced amount to Licensor and submit an Application for the
unauthorized Equipment, or (ii) produce documentation showing Licensor's prior approval of the
Equipment identified in the invoice. If, in accordance with this Section, Licensee fails to pay all
fees and submit the Application or submit documentation satisfactorily showing Licensor's prior
approval within sixty (60) days of Licensor's invoice, Licensor may remove the unauthorized
Equipment at Licensee's expense. If Licensor removes such unauthorized Equipment, such
Equipment shall become the property of Licensor, who shall have sole rights over such
Equipment's disposition. Licensor's removal of unauthorized Equipment shall not release
Licensee from its obligation to pay those invoiced fees accruing pursuant to this Section.
6.11 Termination of a Supplement.
6.11.1 Licensee shall have the right to terminate any Supplement on thirty (30)
days' notice to Licensor. In the event of such termination, removal of Equipment associated with
the terminated Supplement shall be governed by Section 6.12 below and Licensor shall retain any
License Fee paid, without refund or setoff.
6.11.2 Licensor shall have the right to terminate any Supplement in any of the
following circumstances: (a) if, after initial installation, Licensor determines the covered
- 11 -
Equipment has been inoperative, or abandoned, for ninety (90) consecutive days; (b) if Licensee's
operation under a particular Supplement is deemed by Licensor to endanger or pose a threat to the
public health, safety, or welfare or interfere with the normal day-to-day operation of any Licensor
department or service; or (c) Licensor is mandated by law, a court order or decision, or the federal,
state, or local government to take certain actions that will cause or require the removal of an
Equipment. Licensor shall provide written notice to Licensee regarding its intent to terminate the
applicable Supplement pursuant to this Section, after which Licensee shall have thirty (30) days to
cure, or longer pursuant to the mutual agreement of Licensor and Licensee if the reason for
termination cannot be cured within thirty (30) calendar days. If Licensee does not cure within
thirty (30) days following notice, or such other time period as established by mutual agreement of
Licensor and Licensee, Licensor may then terminate the applicable Supplement upon written
notice to Licensee.
6.12 Removal of Equipment. Within sixty (60) days after the expiration or earlier
termination of a Supplement or this Agreement, Licensee shall promptly, safely, and carefully
remove the Equipment covered by the terminated or expired Supplement from the applicable
Municipal Facility and ROW. Within sixty (60) days after the expiration or earlier termination of
this Agreement, Licensee shall promptly, safely, and carefully remove all Equipment from all
applicable Municipal Facilities and ROW. If Licensee fails to complete removal work pursuant to
this Section, then the Licensor, upon written notice to Licensee, shall have the 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 sixty (60) 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 additional liability to the Licensor. If the
Licensor does not receive reimbursement payment from Licensee within such sixty (60) days, or
if Licensor does not elect to remove such items at the Licensor's cost after Licensee's failure to so
remove pursuant to this Section, or if Licensee does not remove Licensee's property within thirty
(30) days of such property having been made available by the Licensor after Licensee's payment
of removal reimbursement as described above, any items of Licensee's property remaining on or
about the ROW, Municipal Facilities, or stored by the Licensor after the Licensor's removal
thereof may, at the Licensor's option, be deemed abandoned and the Licensor may dispose of such
property in any manner by allowed for by Law. Alternatively, the Licensor may elect to take title
to the abandoned property, and Licensee shall submit to the Licensor an instrument satisfactory to
the Licensor transferring to the Licensor the ownership of such property. The provisions of this
Section shall survive the expiration or earlier termination of this Agreement.
6.13 Risk of Loss. Licensee acknowledges and agrees that Licensee, subject to the terms
of this Agreement, bears all risks of loss, damage, relocation, or replacement of its Equipment and
materials installed in the ROW or on Municipal Facilities pursuant to this Agreement from any
cause, and Licensor shall not be liable for any cost of replacement or of repair to damaged
Equipment, including, without limitation, damage caused by the Licensor's removal of the
Equipment, except to the extent that such loss or damage was caused by the willful misconduct or
gross negligence of the Licensor, including, without limitation, each of its elected officials,
-12-
department directors, managers, officers, agents, employees, and contractors, subject to the
limitation of liability provided in Section 7.3 below.
6.14 Hazardous Substances. Licensee agrees that Licensee, its contractors,
subcontractors, and agents, will not use, generate, store, produce, transport, or dispose any
Hazardous Substance on, under, about or within the area of a ROW or Municipal Facility in
violation of any Law. Except to the extent of the gross negligence or intentional misconduct of
Licensor, Licensee will pay, indemnify, defend, and hold Licensor harmless against and to the
extent of any loss or liability incurred by reason of any Hazardous Substance produced, disposed
of, or used by Licensee pursuant to this Agreement. Licensee will ensure that any on-site or off-
site storage, treatment, transportation, disposal or other handling of any Hazardous Substance will
be performed by persons who are properly trained, authorized, licensed and otherwise permitted
to perform those services.
6.15 Inspection. Licensor may conduct inspections of Equipment on Municipal
Facilities. Except in circumstances where Licensor has special reason to be concerned about
potential violations or in case of an emergency, Licensor will give Licensee thirty (30) days' prior
written notice of such inspections, and Licensee shall have the right to be present at and observe
any such inspections. Licensee shall pay Licensor for its actual and reasonable costs for safety
inspections performed for the purpose of determining if a safety violation of which Licensor has
provided notice to Licensee has been corrected by Licensee.
6.16 Access.
Licensee shall have access to the Equipment for non -emergency purposes, between the hours of
8:00 am and 4:00 pm, Monday through Friday consistent with the Municipal Code's limitation on
construction noise and/or activity. If Licensee requires non -emergency access outside of these
hours, Licensee shall make a request during business hours by calling the following telephone
number: (949) 493-1171. In the event of an emergency at any time, Licensee will, if time permits,
attempt to provide prior telephonic notice to the Licensor at the following telephone number: (949)
493-1171.
7. INDEMNIFICATION AND WAIVER. Licensee agrees to indemnify, defend, protect, and hold
harmless the Licensor, its council members, officers, employees, agents and contractors from and
against any and all claims, demands, losses, including pole warranty invalidation, damages,
liabilities, fines, charges, penalties, administrative and judicial proceedings and orders, judgments,
and all costs and expenses incurred in connection therewith, including reasonable attorney's fees
and costs of defense (collectively, the "Losses") to the extent arising from, resulting from, or
caused by Licensee's activities undertaken pursuant to this Agreement, including, without
limitation, the construction, design, use, or operation of the Equipment or provision of the Services,
except to the extent arising from or caused by the gross negligence or willful misconduct of the
Licensor, its council members, officers, employees, agents, or contractors.
7.1 Waiver of Claims. Licensee waives any and all claims, demands, causes of action,
and rights it may assert against the Licensor on account of any loss, damage, or injury to any
Equipment or any loss or degradation of the Services as a result of any event or occurrence which
is beyond the control of the Licensor.
-13-
7.2 Waiver of Subrogation. Licensee hereby waives and releases any and all rights
of action for negligence against Licensor which may hereafter arise on account of damage to
Equipment, Municipal Facilities, or to the ROW, regardless of whether or not, or in what amounts,
such insurance is now or hereafter carried by the Licensee. This waiver and release shall apply
between the parties and shall also apply to any claims under or through either party as a result of
any asserted right of subrogation. All such policies of insurance obtained by Licensee concerning
the Municipal Facilities, Equipment, or the ROW shall waive the insurer's right of subrogation
against the Licensor. Licensee self -insures its property coverage and shall include Licensor as joint
loss payee in satisfaction of the waiver of subrogation requirement.
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. INSURANCE. Licensee shall obtain and maintain at all times during the Term (a)
Commercial General Liability insurance with a limit of ten million dollars ($10 million) per
occurrence for bodily injury and property damage and eleven million dollars ($11 million) general
aggregate including premises -operations, contractual liability, personal injury, and products
completed operations; and (b) Commercial Automobile Liability insurance covering all owned,
non -owned, and hired vehicles with a limit of five million ($5 million) each accident for bodily
injury and property damage. The required insurance policies shall name the Licensor, its
elected/appointed officials, commission members, officers, representatives, agents, 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 form and in accordance with the
limits and provisions specified herein. Upon receipt of notice from its insurer, Licensee shall use
its best efforts to provide the Licensor with thirty (30) days prior written notice of cancellation.
Licensee shall be responsible for notifying the Licensor of such change or cancellation. Licensee's
indemnity and other obligations shall not be limited by the foregoing insurance requirements. If
Licensee fails, for any reason, to obtain or maintain insurance coverage required by this Agreement
or fails to furnish certificates of insurance as detailed in Section 8.1, such failure shall be deemed
a material breach of this Agreement, giving Licensor, in its discretion, the option to terminate this
Agreement and obtain damages therefor.
8.1 Filing of Certificates and Endorsements. Prior to the commencement of any
work pursuant to this Agreement, Licensee shall file with the Licensor the required certificate(s)
of insurance with blanket additional insured endorsements, which shall state the following:
(a) the policy number; name of insurance company; name and address
of the agent or authorized representative; name and address of insured; project name; policy
expiration date; and specific coverage amounts;
(b) that Licensee's Commercial General Liability insurance policy is
primary as respects any other valid or collectible insurance that the Licensor may possess,
including any self-insured retentions the Licensor may have; and any other insurance the Licensor
-14-
does possess shall be considered excess insurance only and shall not be required to contribute with
this insurance; and
(c) that Licensee's Commercial General Liability insurance policy
waives any right of recovery the insurance company may have against the Licensor.
The certificate(s) of insurance with endorsements and notices shall be mailed to the
Licensor at the address specified in Section 9 below.
8.2 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 ($1 million) and shall furnish the Licensor with
a certificate showing proof of such coverage. A waiver of subrogation is required for workers'
compensation insurance.
8.3 Insurer Criteria. Any insurance provider of Licensee shall be admitted and
authorized to do business in the State of California and shall carry a minimum rating assigned by
A.M. Best & Company's Key Rating Guide of "A" Overall and a Financial Size Category of "VII."
8.4 Severability of Interest. "Severability of interest" or "separation of insureds"
clauses shall be made a pari of the Commercial General Liability and Commercial Automobile
Liability policies.
8.5 Self-insurance. Notwithstanding the forgoing. Licensee may, in its sole discretion,
self -insure any of the required insurance under the same terms as required by this Agreement. In
the event Licensee elects to self -insure its obligation under this Agreement to include Licensor as
an additional insured, the following conditions apply: (i) Licensor shall promptly and no later than
thirty (30) days after notice thereof provide Licensee with a written notice of any claim, demand,
lawsuit, or the like for which its seeks coverage pursuant to this Section and provide Licensee with
copies of any demands, notices, summonses, or legal papers received in connection with such
claim, demand, lawsuit, or the like, (ii) Licensor shall not settle any such claim, demand, lawsuit,
or the like without the prior written consent of Licensee, (iii) Licensor shall reasonably cooperate
with Licensee in the defense of the claim, demand, lawsuit, or the like, and (iv) Licensee shall
provide Licensor with proof of self-insured status and proof that Licensor is named as an additional
insured.
9. NOTICES.
9.1 Method and Delivery of Notices. All notices pursuant to this Agreement shall be
in writing and delivered personally or transmitted (a) through the United States mail, by registered
or certified mail, postage prepaid; or (b) by means of prepaid overnight delivery service, addressed
as follows:
If to the Licensor: City of San Juan Capistrano
32400 Paseo Adelanto
San .luan Capistrano, CA 92675
Attn. Finance Department
-15-
If to Licensee: New Cingular Wireless PCS, LLC
Attn: Tower Asset Group —Lease Administration
Re: Wireless Installation on Public .Structures
(City of San Juan Capistrano, CA)
FA No.
1025 Lenox Park Blvd NE
3'd Floor
Atlanta, GA 30319
With a copy to: New Cingular Wireless PCS, LLC
Atin: AT&T Legal Dept.- Network Operations
Re: Wireless Installation on Public Structures
(City of San Juan Capistrano, CA)
FA No.
208S. Akard Street
Dallas, TX 75202-4206
9.2 Date of Notices; Changing Notice Address. Notices shall be deemed given upon
receipt in the case of personal delivery, three days after deposit in the mail, or the next business
day in the case of overnight delivery. Either 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 in
this Section.
10. DEFAULT; CURE; REMEDIES.
10.1 Licensee Default and Notification. This Agreement is granted upon each and
every condition herein, and each of the conditions is a material and essential condition to the
granting of this Agreement. Except for causes beyond the reasonable control of Licensee, if
Licensee fails to comply with any of the conditions and obligations imposed hereunder, and if such
failure continues for more than forty five (45) days after written demand from the Licensor to
commence the convection of such noncompliance on the part of Licensee, the Licensor shall have
the right to revoke and terminate this Agreement by written notice to Licensee, if such failure is in
relation to the Agreement as whole, or any individual Supplement, if such failure is in connection
solely with such Supplement, in addition to any other rights or remedies set forth in this Agreement
or provided by law.
10.2 Cure Period. If the nature of the violation is such that it cannot be fully cured
within forty five (45) days due to circumstances not under Licensee's control, the period of time
in which Licensee must cure the violation shall be extended for such additional time reasonably
necessary to complete the cure, provided that: (a) Licensee has promptly begun to cure; (b)
Licensee is diligently pursuing its efforts to cure; and (c) Licensee provides a timeline to complete
its cure efforts and responds within forty-eight (48) hours of any status request by Licensor.
Licensor may not maintain any action or effect any remedies for default against Licensee, unless
and until Licensee has failed to cure the breach within the time periods provided in these Sections
10.1 and 10.2.
-16-
10.3 Licensor Default. If Licensor breaches any covenant or obligation of Licensor
under this Agreement in any manner, and if Licensor fails to commence to cure such breach within
forty (45) days after receiving written notice from Licensee specifying the violation (or if Licensor
fails thereafter to diligently prosecute the cure to completion), then Licensee may enforce any and
all of its rights and/or remedies provided under this Agreement or by Law.
11. ASSIGNMENT AND CUSTOMER EQUIPMENT. This Agreement shall be binding upon, and
inure to the benefit of, the successors and assigns of the parties.
11.1 Licensee shall not assign this Agreement or its rights or obligations to any firm,
corporation, individual, or other entity, without the prior written consent of Licensor, which
consent shall not be unreasonably withheld. Notwithstanding the foregoing, upon thirty (30) days'
prior written notice but without the need for Licensor's consent, Licensee may assign or transfer
the rights and privileges granted herein to any parent or subsidiary of Licensee, to an entity with
or into which Licensee may merge or consolidate, to an entity which Licensee is controlled by, or
is under common control; or in connection with the sale or other transfer of such entity or to any
purchaser of all or substantially all of Licensee's assets in the FCC market area where the
Equipment is located, provided that the successor is bound by all the terms and conditions of this
Agreement and provides written confirmation to Licensor that it is then fully liable to the Licensor
for compliance with all terms and conditions of this Agreement. The Licensee shall reimburse the
Licensor for all direct and indirect costs and expenses reasonably incurred by the Licensor in
considering a request to transfer or assign this Agreement.
11.2 Licensee need not own all components of Equipment subject to this Agreement,
and may permit its customers to maintain ownership of Equipment components. However, (1) all
Equipment must be wholly under the control and management of Licensee; and Licensee shall be
liable for all acts or omissions, and all harms associated with the Equipment whether the same are
its acts or omissions, or the acts or omissions of the owner of the Equipment; and (2) Licensee
acknowledges and agrees that no rights of ownership in Equipment by Licensee's customers shall
permit any such customer to enter upon, or use the any portion of the Municipal Facilities or the
Equipment, in any other manner or at any other place, including to add to, or modify or install
Equipment, which shall be Licensee's sole responsibility. Further, Licensee may not install
Equipment it does not own on Municipal Facilities, unless the entity for on whose behalf the
Equipment has been installed acknowledges and agrees, in a form acceptable to the Licensor, that
the Licensor has not granted it a consent to be in the ROW for any purpose; that it is bound by
Licensee's representations, obligations and duties hereunder; that it shall have no rights or claims
against the Licensor of any sort related to the Equipment or Municipal Facilities; that its Equipment
may be subject to taxes, fees or assessments as provided in the Laws or the Agreement, and that
Licensor may treat any Equipment owned by such entity as if it were owned by Licensee for all
purposes (including, but not limited to, removal and relocation); and the Equipment may only be
used for the purposes and uses permitted herein. Such acknowledgement may be provided for all
Equipment on Municipal Facilities, and need not be provided separately, site by site.
12. RECORDS; AUDITS.
12.1 Records Required by Code. Licensee will maintain complete records pursuant to
all applicable Laws.
-17-
12.2 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.
12.3 Production of Records. Licensee shall provide such records within twenty (20)
business days of a request by the Licensor for production of the same, unless additional time is
reasonably needed by Licensee, in which case, Licensee shall have such reasonable time as needed
for the production of the same. If any person other than Licensee maintains records on Licensee's
behalf, Licensee shall be responsible for making such records available to the Licensor for auditing
purposes pursuant to this Section.
12.4 Public Records. Licensee acknowledges that information submitted to Licensor
may be open to public inspection and copying under the Law.
13. MISCELLANEOUS PROVISIONS. The provisions that follow shall apply generally to the
obligations of the parties under this Agreement.
13.1 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.
13.2 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.
13.3 Contacting Licensee. Licensee shall be available to the staff employees of any
Licensor department having jurisdiction over Licensee's activities twenty-four (24) hours a day,
seven days a week, regarding problems or complaints resulting from the attachment, installation,
operation, maintenance, or removal of the Equipment. The Licensor may contact by telephone the
Licensee's network control center operator at telephone number: (800) 832-6662.
13.4 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. if suit is brought by a party to this Agreement, the parties agree that trial of such
action shall be vested exclusively in the state courts of Orange County, California.
13.5 Change Of Law. During the Initial Term, in the event that any legislative,
regulatory, judicial, or other action ("New Law") affects the rights or obligations of the Parties or
any term of the Agreement, the Parties agree that the Agreement shall nonetheless remain in effect
until the end of the Initial Term unless mutually agreed to in writing by the Parties.
13.6 Force Majeure. Except for payment of amounts due, neither Party shall have any
liability for its delays or its failure of performance due to: fire, explosion, pest damage, power
failures, strikes or labor disputes, acts of God, the elements, war, civil disturbances, acts of civil
-18-
or military authorities or the public enemy, inability to secure raw materials, transportation
facilities, fuel or energy shortages, or other causes reasonably beyond its control, whether or not
similar to the foregoing.
13.7 Attorneys' Fees. Should any dispute arising out of this Agreement lead to
litigation, the prevailing party shall be entitled to recover its costs of suit, including (without
limitation) reasonable attorneys' fees.
13.8 "AS IS" condition of Municipal Facilities. Municipal Facilities licensed to
Licensee pursuant to this Agreement are licensed to and accepted by Licensee "as is" and with all
faults. The Licensor makes no representation or warranty of any kind as to the present or future
condition of or suitability of the Municipal Facilities for Licensee's use and disclaims any and all
warranties express or implied with respect to the physical, structural, or environmental condition
of the Municipal Facilities and their merchantability or fitness for a particular purpose. Licensee
is solely responsible for investigation and determination of the condition and suitability of any
Municipal Facility for Licensee's intended use.
13.9 Representations and Warranties. Each of the parties to this Agreement
represents and warrants that it has the full right, power, legal capacity, and authority to enter into
and perform the party's respective obligations hereunder and that such obligations shall be binding
upon such party without the requirement of the approval or consent of any other person or entity
in connection herewith, except as provided in Section 4.2 above. This Agreement shall not be
revocable or terminable except as expressly permitted herein.
13.10 Amendment of Agreement. This Agreement may not be amended except pursuant
to a written instrument signed by both parties.
13.11 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.
13.12 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.
13.13 No Third -Party Beneficiaries. It is not intended by any of the provisions of this
Agreement to create for the public, or any member thereof, a third -party beneficiary right or
remedy, or to authorize anyone to maintain a suit for personal injuries or property damage pursuant
to the provisions of this Agreement. The duties, obligations, and responsibilities of the Licensor
with respect to third parties shall remain as imposed by state law.
13.14 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
-19-
of its provisions. This Agreement shall be construed in accordance with the fair meaning of its
terms.
13.15 Effect of Acceptance. Licensee (a) accepts and agrees to comply with this
Agreement and all Laws; (b) agrees that this Agreement was entered into pursuant to processes
and procedures consistent with Law; and (c) agrees that it will not raise any claim to the contrary
or allege in any claim or proceeding against the Licensor that at the time of acceptance of this
Agreement any provision, condition or term of this Agreement was unreasonable or arbitrary, or
that at the time of the acceptance of this Agreement any such provision, condition or term was
void or unlawful or that the Licensor had no power or authority to make or enforce any such
provision, condition, or term.
13.16 Time is of the Essence. Time is of the essence with regard to the performance of
all of Licensee's obligations under this Agreement.
13.17 Taxes. Licensee shall be responsible for payment of all fees and taxes charged in
connection with the right, title, and interest in and construction, installation, maintenance, and
operation of Equipment for the purposes set forth herein.
13.18 Tax Notice. Licensor hereby provides notice pursuant to California Revenue and
Taxation Code Section 107.6, and Licensee acknowledges, that this Agreement may create a
possessory interest and Licensee may be subject to property taxes levied on such interest, as
described in California Revenue and Taxation Code Section 107.6. Licensee shall pay directly to
the appropriate authority, when due, all real and personal property taxes, fees, and assessments,
assessed against the area licensed and the Equipment.
13.19 Counterparts. This Agreement (and any Supplement) may be executed in multiple
counterparts, including by electronic means, each of which shall be deemed an original, and all
such counterparts once assembled together shall constituted one integrated instrument.
[signature page to followl
-20-
SIGNATURE PAGE TO MUNICIPAL FACILITY LICENSE AGREEMENT
IN WITNESS THEREOF, the parties hereto have caused this Agreement to be legally
executed as of the Effective Date.
APPROVED AS TO I
CITY ATTORNEY'S
Jeff Ballinger, City Aaomey
Exhibits:
Exhibit A — Supplement
Exhibit B —Application
Licensor:
CITY OF SAN JUAN CAPISTRANO
By:
a Narlj;n $iegel
Title: City Manager
Licensee:
NEW CINGULAR WIRELESS PCS, LLC, a
Delaware limited liability
By: AT&T Mobility Corporation
Its: Manager
By:
Name: Christopher Edwards
Title: Director Access -Construction & Engineering
-21-
EXHIBIT A
FORM OF SUPPLEMENT
SUPPLEMENT
This Supplement ("Supplement"), is approved by Licensor this day of ,
20 (the date executed by all parties, referred herein as "Supplement Effective Date").
1. Supplement. Licensee has submitted an application for approval to use a Municipal
Facility pursuant to that certain Municipal Facility License Agreement between Licensor, City of
San Juan Capistrano, a California municipal corporation, and Licensee, New Cingular Wireless
PCS, LLC, a Delaware limited liability company, dated '2020 ("Agreement").
Licensor has reviewed the Application to Use Municipal Facility and grants approval subject to
the terms of this Supplement. All of the terms and conditions of the Agreement are incorporated
hereby by reference and made a part hereof without the necessity of repeating or attaching the
Agreement. In the event of a contradiction, modification, or inconsistency between the terms of
the Agreement and this Supplement, the terms of this Supplement shall govern. Capitalized terns
used in this Supplement shall have the same meaning described for them in the Agreement unless
otherwise indicated herein. IF THE SUPPLEMENT IS NOT COUNTER -SIGNED BY
LICENSEE AND RETURNED TO LICENSOR WITHIN 30 DAYS AFTER LICENSOR HAS
GRANTED APPROVAL, THE SUPPLEMENT SHALL BE VOID AND OF NO LEGAL
EFFECT. IF LICENSEE STILL WANTS TO USE THE MUNICIPAL FACILITY, LICENSEE
WILL BE REQUIRED TO SUBMIT A NEW APPLICATION AND ASSOCIATED FEES.
2. Licensed Area Description and Location. Licensee shall have the right to use the space on
the specific Municipal Facility (the "Licensed Area") depicted in Attachment 1 attached hereto to
install Equipment as further listed in Attachment 2 attached hereto.
3.ui ment. The Equipment to be installed at the Licensed Area is described in Attachment
2 and depicted in Attachment 1.
4. Tenn. The term of this Supplement shall commence on the Supplement Effective Date and
continue for the Term of the Agreement.
5.
License Fee. The initial License Fee for this Supplement shall be as follows per year:
. License Fee is subject to annual increase and is payable in
accordance with Section 5 of the Agreement.
6. Miscellaneous.
[signature page follows]
A-1
IN WITNESS THEREOF, the parties hereto have caused this Supplement to be legally
executed in duplicate, effective upon execution by both parties.
Accepted:
Licensor:
CITY OF SAN JUAN CAPISTRANO
By:_
Name:
Title:
Date:
Licensee:
By:
Its:
NEW CINGULAR WIRELESS PCS, LLC, a
Delaware limited liability
By: AT&T Mobility Corporation
Its: Manager
By:
Name:
Title:
Date:
Attachments:
Attachment 1— Licensed Area
Attachment 2 — Equipment List and Description
A-2
Attachment 1
Licensed Area
[site plan showing licensed area of applicable Municipal Facility and showing proposed
Equipment installation]
A-3
Attachment 2
Equipment List and Description
A-4
EXHIBIT B
APPLICATION TO USE MUNICIPAL FACILITY
Applicant: Date:
Licensee: Application/License#:
Type of
Alteration
Small Cell Equipment
Small Cell
Small Cell
Location of Any
Municipal
Required
� ov(providel t oipoie)
Equi Equipment Base
Equipme t
Additional Equipment
Facility
structure with added
weights
Blmeusions
facilities; and (2) the height
of individual facilities
[street light]
[Pole
[Installed on Pole, specify
[traffic light]
Reinforcemen
attachment height, weight and
[other, specify]
t]
dimensions]
[Pole
[Installed on/in Ground
Replacement]
(Vault), specific dimensions]
[None]
[Other Location]
[Not Applicable/Needed]
APPLICANT SHALL PROVIDE THE FOLLOWING AS APPLICABLE:
• Site plan and engineering design and specifications for installation of Equipment, including the location
of radios, antenna facilities, transmitters, equipment shelters, cables, conduit, point of demarcation,
backhaul solution, electrical distribution panel, electric meter, and electrical conduit and cabling. Where
applicable, the design documents should include specifications on design, pole modification, and ADA
compliance. Also indicate whether unmetered electricity is available at the site.
• Include a load bearing study that determines whether the pole requires reinforcement or replacement in
order to accommodate attachment of proposed Equipment.
• If the proposed installation will require reinforcement or replacement of an existing pole, provide
applicable design and specification drawings.
• The number, size, type, and proximity to the facilities of all communications conduit(s) and cables to
be installed.
• Description of the utility services required to support the facilities to be installed.
• List of the contractors and subcontractors, and their contact information, authorized to work on the project.
• A fee deposit in an amount determined by City staff, pursuant to Section 5.1 of the Agreement.
APPLICANT REPRESENTATIVE:
:tel! .ul
TITLE:
TELEPHONE: EMAIL:
B-1