Mobilitie - 2018 ROW Agreement for Small Cell Wireless Telecomm EquipmentRIGHT -OF -WAY AGREEMENT
BETWEEN THE CITY OF GILROY AND MOBILITIE, LLC
This Right -of -Way Agreement ( "Agreement ") is entered into as of the date of the last
signature by a party hereto ( "Effective Date ") by and between the City of Gilroy,
California, a municipal corporation ( "the City "), and Mobilitie, LLC, a Nevada limited
liability company ( "Licensee ").
RECITALS
A. Licensee owns, maintains, operates and /or controls, in accordance with all
applicable regulations promulgated by the Federal Communications Commission and
the California Public Utilities Commission ( "PUC "), telecommunications networks
serving customers through small cell telecommunications facilities in public rights -of-
way ( "ROW ") in the State of California.
B. Licensee is a competitive local exchange carrier that holds a valid full-facilities -
based certificate of public convenience and necessity ( "CPCN ") issued by the PUC on
December 2, 2010 (Decision 10 -12 -004).
C. Licensee seeks to attach small cell wireless telecommunications equipment
( "Equipment ") to certain streetlight poles owned and maintained by the City ( "City
Pole "). The location of the City Poles is shown in Exhibit A. The Equipment will provide
radio frequency transport services, which will be used by Licensee's customers to
provide wireless telecommunications and data services to the residents and visitors of
the City. The Equipment will be designed to accommodate an initial carrier customer
( "Initial Carrier ") providing the services. The Equipment may also allow additional
carriers, besides the Initial Carrier, to provide the services from the Equipment
( "Additional Carriers ").
D. The Equipment may include antenna, nodes, radios, wireless microwave and
backhaul facilities, cabling, power sources, equipment enclosures and related
equipment to be located on the streetlights, as described and diagrammed in Exhibit A
attached hereto and incorporated herein by reference.
E. Licensee has rights to use the City's ROW to deploy the Equipment under state
and federal law, including, but not limited to, California Public Utilities Code sections
1001, 7901 and 7901.1 and California Government Code section 50030.
F. The right to occupy portions of the ROW for limited times, for the business of
providing telecommunications services, is a valuable economic privilege, the economic
benefit of which should be shared with all taxpayers of the City.
G. Licensee is willing to compensate the City in exchange for use of and physical
occupation of City Poles.
In consideration of the Recitals set forth above, the terms and conditions of this
Agreement and other valuable consideration, the adequacy of which is hereby
acknowledged, the parties agree as follows:
1) Scope of Use Agreement. All rights expressly granted to Licensee under this
Agreement, which shall be exercised at Licensee's sole cost and expense, are subject
to the prior and continuing right of the City under applicable law to use all parts of the
ROW exclusively or concurrently with any other person or entity, provided that such use
does not unreasonably interfere with Licensee's use of the ROW, and are further
subject to all deeds, easements, dedications, conditions, covenants, restrictions,
encumbrances, and claims of title record that may affect the ROW. Furthermore, all
work performed pursuant to the rights granted by this Agreement is subject to the prior
review and approval of the City in accordance with its customary permitting procedures.
Notwithstanding the foregoing or anything else in this Agreement to the contrary,
Licensee shall not be required to obtain additional governmental approvals for
modification to the Equipment if such modification (i) does not materially affect the
radiofrequency use by the Equipment; (ii) involves only substitution of internal
components, and does not result in any change to the external appearance,
dimensions, or weight of the Equipment; or (iii) involves replacement of the Equipment
with Equipment that is the same, or smaller in weight and dimensions as the approved
Equipment. Licensee shall send notification of any such changes to the equipment to
the City a minimum of thirty (30) days prior to any work to affect such changes. Nothing
in this Agreement may be deemed to grant, convey, create, or vest in Licensee a real
property interest in land, including any fee, leasehold interest, or easement.
Notwithstanding the foregoing, Licensee is hereby notified that any property interest
deemed to have been created by or as a result of this Agreement may be subject to
property taxation, and Licensee may be subject to the payment of property taxes levied
on the interest.
2) Interference. In the performance and exercise of its rights and obligations under
this Agreement, Licensee shall not interfere in any manner with the existence and
operation of any public or private rights -of -way, sanitary sewers, water mains, storm
drains, gas mains, poles, aerial and underground electrical and telephone wires,
electroliers, cable television and telecommunications facilities, utilities, or other
municipal facilities, without the express written approval of the owner or owners of the
affected property or properties, except as authorized by applicable laws and this
Agreement. In the event that Equipment causes interference or disturbance in violation
of FCC rules and regulations with radio or television reception within 500 feet of the
Equipment, Licensee shall repair the Equipment within thirty (30) days of notification or
cease its operation and attempt to remedy said interference.
3) Public Safety & Public Works Communication Systems. The following
provisions apply to any public communication system ( "Public System ") operated by a
public agency.
a) Public Safety Communication System — If any of the frequencies used by the
Equipment, whether that Equipment is the antennas, the amplifiers, or any other
Equipment, are close to frequencies used by the Public System used by the City of
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Gilroy and other state and county agencies for public safety purposes, Licensee
acknowledges the proximity may require extraordinary engineering measures,
especially in the choice of frequencies and radio ancillary hardware, to prevent
avoidable interference. Currently, the City of Gilroy public safety operates in the 150
to 170 MHz range; however, City of Gilroy public safety will be transitioning to a 700
MHz combination 150/700 analog and digital system. Prior to the installation of
Equipment, Licensee shall coordinate the use of frequencies and all Equipment with
the City's Public Safety Communications Supervisor to minimize, to the greatest
extent possible, any interference with the existing and planned Public Systems.
During this process, the "Best Practices Guide," as published by the Association of
Public Safety Communications Officials - International, Inc. and as endorsed by the
FCC, shall be followed.
b) Public Works Communication System — If any of the frequencies used by
Equipment, whether that Equipment is the antennas, the amplifiers, or any other
Equipment, are close to frequency of the Public Works communication system used
by the City of Gilroy and other state and county agencies, Licensee of acknowledges
the proximity may require extraordinary engineering measures, especially in the
choice of frequencies and radio ancillary hardware, to prevent avoidable
interference. Currently, the City of Gilroy Public Works operates at 453.900 MHz.
The City of Gilroy Public Works will be working in both the 450 MHz range, as well
as the 700MHz range when the new system is operational. Prior to the installation of
Equipment, Licensee shall coordinate the use of frequencies and Equipment with the
City's Public Safety Communications Supervisor to minimize, to the greatest extent
possible, any interference with the existing Public Works communications systems.
c) Post - installation Test — Prior to activating the Equipment, Licensee shall provide
a post - installation test, at Licensee's expense and subject to the approval of the
Gilroy Police, Fire, and Public Works staff via the City's Public Safety
Communications Supervisor, to identify any interference with the City's Public
System. The test shall address the cumulative effects of any other existing wireless
communication facilities within the Equipment's coverage area, and the qualified
third party conducting the test shall be pre- approved by the City's Public Safety
Communications Supervisor. In the event that a level of interference that is
unacceptable to the City, the "Best Practices Guide" shall be followed to attempt to
resolve, to the greatest extent possible, any interference issues. If the Public Safety
Communications Supervisor, in coordination with Police, Fire, and Public Works
staff, determines that the proposed frequencies are not reasonably expected to
interfere with the City's Public System, testing under this section shall not be
required.
d) Future Interference Issues — Upon notification by a public agency regarding
potential interference between the Equipment and the City's Public System,
Licensee shall meet with the public agency and follow the "Best Practices Guide" to
attempt to resolve, to the greatest extent possible, any interference issues.
e) Future Operational Frequency Changes — Once the Equipment becomes
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operational, Licensee shall not make any changes to frequencies, channels,
hardware or any other Equipment without first coordinating such changes with the
City's Public Safety Communications Supervisor to minimize, to the greatest extent
possible, any interference with the Public System. The "Best Practices Guide" shall
be followed during this process. A post - installation test may be required at the
discretion of the City's Public Works, Police, and Fire staff
f) Single Point of Contact — Licensee may be contacted twenty -four hours a day
by calling 877 - 244 -7889 to report any emergency or frequency interference issues.
Licensee shall also be required to promptly provide to the Community Development
Department and the Communications Division any contact information changes that
may occur from time to time.
g) Termination — If in the City's determination, Licensee's Equipment is the cause
of interference with the City's Public System, Licensee will take immediate steps to
remedy such interference, consistent with the provision of this section, and shall
cooperate with Public Safety to that end. If such interference from Licensee's
Equipment rises to the level which interferes with the City's Public System and
causes an impairment to the Public System, the City shall contact Licensee at the
number in the section above, and Licensee shall use commercially reasonable
efforts to shut down the Equipment which is the cause of the impinging frequency
within 1 hour. If Licensee is unable to shut down the interfering Equipment within
such 1 hour - period despite commercially reasonable efforts, the City may use the
disconnect switch installed by Licensee to shut down the power to the Equipment at
the site of the Equipment provided that the City has informed Licensee that it is
going to do so by contacting Licensee's single point of contact set forth above.
Nothing in this section limits the City's ability to take any steps reasonably deemed
necessary by the City, in its discretion, to shut down Licensee's Equipment if
necessary to prevent material injury to persons or property
4) Construction. Licensee shall comply with all applicable federal, state, and City
technical specifications and requirements and all applicable state and local codes
related to the construction, installation, operation, maintenance, and control of the
Equipment installed pursuant to this Agreement. Licensee may not attach, install,
maintain, or operate any Equipment without the City's prior written approval for each
location.
5) Damage to Public Way. Whenever the installation, maintenance, removal, or
relocation of Equipment permitted in conjunction with this Agreement causes the ROW
to be damaged, Licensee, at its sole cost and expense, shall promptly repair and return
the ROW in which the Equipment is located to a safe and satisfactory condition as
directed by, and to the satisfaction of the City's Public Works Director, including but not
limited to the application for and approval of necessary City permits to complete such
repairs.
6) Most Favored Municipality Clause. If Licensee enters into an attachment,
right -of -way, or franchise agreement with another municipality within Santa Clara
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County (not including the City of San Jose) and such agreement contains a Pole Rent,
or substantially similar compensation mechanism, pursuant to which such other
municipality is more highly compensated than City under this Agreement, City shall
have the right, commencing on the fifth anniversary of the Effective Date and every
subsequent fifth anniversary of the Effective Date thereafter, to require that Licensee
modify this Agreement to incorporate the same or substantially the same Pole Rent or
other substantially similar compensation, mutatis mutandis, as such other agreement.
7) No Authorization to Provide Other Services. Licensee represents that its
Equipment installed pursuant to this Agreement shall be used solely for the purpose of
providing telecommunications services pursuant to Licensee's CPCN and Licensee's
customers' FCC licenses. Licensee shall not use its Equipment to offer or provide any
other services not specified herein. Licensee's failure to comply with these limitations
shall constitute a material breach of this Agreement and City, after providing written
notice to Licensee, may begin to levy monetary penalties in an amount not to exceed
$1,000 per day, ten (10) days after City issues written notice until the breach is cured.
ARTICLE 1
INSTALLATION OF SMALL CELL EQUIPMENT
ARTICLE 1.1 Permitted Installation. Licensee may at Licensee's sole
cost and expense and during the Term of this Agreement, locate, place, attach, install,
operate, use, control, repair, upgrade, enhance and maintain in the City's ROW the
Equipment depicted and described in Exhibit A. Licensee shall undertake and perform
any work authorized by this Agreement in a skillful, diligent, and workmanlike manner.
ARTICLE 1.2 Compliance with Laws. This Agreement is subject to any
and all applicable Laws and the parties shall comply with any such Laws in the exercise
of their rights and performance of their obligations as such are allocated under this
Agreement. "Laws" or "Law" as used in this Agreement means any and all statutes,
constitutions, ordinances, resolutions, regulations, judicial decisions, rules, permits,
approvals or other applicable requirements of the City or other governmental entity or
agency having joint or several jurisdiction over the parties to this Agreement or having
jurisdiction that is applicable to any aspect of this Agreement, that are in force on the
Effective Date and as they may be enacted, issued or amended during the Term of this
Agreement. Applicable laws and regulations include but are not limited to those set forth
by the Federal Communications Commission ( "FCC ") and the PUC.
ARTICLE 1.3 Permits. Licensee shall obtain any discretionary,
nondiscretionary, and /or ministerial permits relating to the installation of the Equipment
to the extent required by Law, including without limitation, those permits listed below
(the "Permits ").
1.3.1 Architectural and Site Permits. Licensee shall obtain approval of necessary
Architectural and Site Permits by the City's Planning Manager for requisite permitting of
the time, place, and manner of the proposed installation of antennas and related
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antenna Equipment in the City's ROW
1.3.2 Encroachment Permits. Licensee shall obtain any necessary encroachment
permits from the City for the installation of the Equipment and for any other work within
the City's ROW if required by the City's Municipal Code ( "Code ").
1.3.3 Building Permits. Licensee shall obtain any necessary Building Permits from the
City for the installation of the Equipment and for any other work within the City's ROW if
required by the Code.
1.3.4 Compliance with Permits. All work within the City's ROW shall be performed in
strict compliance with the applicable Permits and all applicable regulatory requirements.
ARTICLE 1.4 Compensation. Licensee and City agree that compensation
should be as set forth below.
1.4.1 Fee. In the first month following the issuance of the final Permit required to be
obtained by Licensee to install Equipment in the City's ROW in conformance with
Exhibit A, Licensee shall pay to City an annual fee in the amount of one thousand five
hundred dollars ($1,500) per streetlight ( "Pole Rent ").
1.4.2 Pole Rent will increase by 3% per year starting on the first anniversary of the
Effective Date of this Agreement until expiration of this Agreement or termination as set
forth in Article 2 of this Agreement. For each Additional Carrier whose Equipment
Licensee installs on a City Pole beyond the Initial Carrier whose Equipment Licensee
installs on such City Pole, the Pole Rent for such City Pole shall increase by five
hundred dollars ($500) per year, with the 3% increase to the Pole Rent for such
Additional Carrier starting after the first year such Additional Carrier's Equipment is
installed. If an Additional Carrier's Equipment is installed in the middle of the Initial
Carrier's rental year, the Pole Rent for the Additional Carrier shall be paid concurrently
with the Pole Rent for the Initial Carrier and shall be prorated as appropriate.
1.4.3 City Reimbursement. If Licensee fails to perform work authorized or required
under this Agreement, City shall provide Licensee written notice of such failure.
Licensee shall cure the default to the reasonable satisfaction of City within thirty (30)
days after receiving the notice of default. Alternatively, if Licensee determines that such
default is not curable within thirty (30) days, Licensee shall promptly provide City with an
estimated date upon which the default shall be cured, not to exceed ninety (90) days
from receipt of the notice of default, and shall cure the default within the time frame
provided. If Licensee fails to comply with the time frames specified above, including
completion of work no later than ninety (90) days after receipt of notice of default, the
City shall have the option to perform or cause to be performed the necessary work. City
may charge Licensee for reasonable costs associated with the work. Upon receipt of a
demand for payment by City, Licensee shall reimburse City for those costs within thirty
(30) days.
ARTICLE 1.5 Hazardous Materials.
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1.5.1 Hazardous Materials on City Poles. Licensee shall not introduce any Hazardous
Materials (as defined below) to the City Property (excluding any Hazardous Materials
which are components of commercially available products) unless the Hazardous
Materials are transported, obtained, handled, stored, and /or disposed of in accordance
with all federal, state, and local laws, ordinances, rules, regulations, or policies.
1.5.2 Hazardous Materials Defined. The term "Hazardous Material(s)" shall mean any
toxic or hazardous substance, material, or waste or any pollutant or contaminant or
infectious or radioactive material, including but not limited to, those substances,
materials, or wastes regulated now or in the future under any of the following statutes or
regulations and any and all of those substances included within the definitions of
"hazardous substances," "hazardous waste," "hazardous chemical substance or
mixture," "imminently hazardous chemical substance or mixture," "toxic substances,"
"hazardous air pollutant," "toxic pollutant" or "solid waste" in the (a) "CERCLA" or
"Superfund" as amended by SARA, 42 U.S.C. Secs. 9601 et seq., (b) RCRA, 42 U.S.C.
Secs. 6901 et seq., (c) CWA, 33 U.S.C. Secs. 1251 et seq., (d) CAA, 42 U.S.C. Secs.
7401 et seq., (e) TSCA, 15 U.S.C. Secs. 2601 et seq., (f) The Refuse Act of 1899, 33
U.S.C. Secs. 407, (g) OSHA, 29 U.S.C. Secs. 651 et seq. (h) Hazardous Materials
Transportation Act, 49 U.S.C. Secs. 5101 et seq., (i) USDOT Table (49 CFR Sec.
172.101 App. A and amendments) or the EPA Table (40 CFR Part 302 and
amendments), 0) Carpenter- Presley- Tanner Hazardous Substance Account Act, Cal.
Health & Safety Code Secs. 25300 et seq., (k) California Hazardous Waste Control Act,
Cal. Health & Safety Code Secs. 25100 et seq., (1) Porter - Cologne Act, Cal. Water Code
Secs. 13000 et seq., (m) Hazardous Waste Disposal Land Use Law, Cal. Health &
Safety Code Sec. 25220 et seq., (n) "Proposition 65," Cal. Health and Safety Code Sec.
25249.5 et seq., (o) Hazardous Substances Underground Storage Tank Law, Cal.
Health & Safety Code Sec. 25280 et seq., (p) California Hazardous Substance Act, Cal.
Health & Safety Code Secs. 108100 et seq., (q) Air Resources Law, Cal. Health & Safety
Code Secs. 39000 et seq., (r) Hazardous Materials Release Response Plans and
Inventory, Cal. Health & Safety Code Secs. 25500 et seq., (s) TPCA, Cal. Health and
Safety Code Secs. 25208 et seq., and (t) regulations promulgated pursuant to said laws
or any replacement thereof, or as similar terms are defined in the federal, state and
local laws, statutes, regulations, orders or rules. Hazardous Materials shall also mean any
and all other substances, materials and wastes which are, or in the future become
regulated under applicable local, state or federal law for the protection of health or the
environment, or which are classified as hazardous or toxic substances, materials or
wastes, pollutants or contaminants, as defined, listed or regulated by any federal, state
or local law, regulation or order or by common law decision, including, without limitation,
(i) trichloroethylene, tetracholoethylene, perch Ioroethylene and other chlorinated
solvents, (ii) any petroleum products or fractions thereof, (iii) asbestos, (iv)
polychlorinated biphenyls, (v) flammable explosives, (vi) urea formaldehyde, and (vii)
radioactive materials and waste.
1.5.3 Hazardous Materials Indemnity. Licensee shall indemnify, defend (by counsel
reasonably acceptable to City), protect and hold City harmless from and against any
and all claims, liabilities, penalties, forfeitures, losses, and /or expenses, including,
without limitation, diminution in value of the City Poles or City property, damages for the
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loss or restriction on use of the rentable or usable space or of any amenity of City Poles
or, damages caused by any adverse impact or marketing of the City Poles and sums
paid in settlement of claims, response costs, cleanup costs, site assessment costs,
attorneys' fees, consultant and expert fees, judgments, administrative rulings, or orders,
fines, costs of death of or injury to any person or damage to any property whatsoever
(including, without limitation, groundwater, sewer systems and atmosphere) to the
extent caused by, either prior to or during the Term, the presence or discharge in, on,
under or about the City Poles by Licensee, Licensee's agents, employees, Licensee or
invitees or at Licensee's direction, of Hazardous Material, or by Licensee's failure to
comply with any Hazardous Materials Law, whether knowingly or by strict liability.
Licensee's indemnification obligations shall include, without limitation, and whether
foreseeable or unforeseeable, all costs of any required or necessary Hazardous
Materials management plan, investigation, repairs, cleanup or detoxification or
decontamination of the City Poles or project, and the presence and implementation of
any closure, remedial action or other required plans, and shall survive the expiration of
or early termination of the Term. For purposes of the indemnity, any acts or omissions
of Licensee or its employees, agents, customers, assignees, contractors, or
subcontractors of Licensee (whether or not they are negligent, intentional, willful, or
unlawful) shall be strictly attributable to Licensee.
1.5.4 City's Right to Perform Tests. At any time during the Term, City shall have the
right to enter upon City Poles in order to conduct tests of water and soil and to deliver to
Licensee the results of such tests to demonstrate that levels of any Hazardous Materials
in excess of permissible levels has occurred as a result of Licensee's use of the City
Poles. Licensee shall be solely responsible for and shall indemnify, protect, defend and
hold City harmless from and against all claims, costs and liabilities including actual
attorneys' fees and costs arising out of or in connection with any removal, remediation,
clean up, restoration and materials required hereunder to return the City Poles and any
other property of whatever nature to their condition existing prior to the appearance of
the Hazardous Materials introduced by Licensee. The testing shall be at Licensee's
expense if City has a reasonable basis for suspecting and confirms the presence of
such Hazardous Materials in the soil or surface or groundwater in on, under, or about
the City Poles or the project, which has been caused by or resulted from the activities of
Licensee, its agents, employees, contractors, or invitees. Licensee shall demonstrate
that the antenna meets or exceeds all appropriate FCC requirements. Licensee shall
provide results of any test results on the antenna prepared for the FCC or any other
testing body.
1.5.5 Survival. This entire Article 1.5 of this Agreement shall survive termination of the
Agreement, as to any activities during the Term or Renewal Term of this Agreement.
1.5.6 Termination of License. City shall have the right to terminate the Term of the
Agreement in City's sole and absolute discretion in the event that (i) any anticipated use
of the City Poles or City property by Licensee involves the generation or storage, use,
treatment, disposal, or release of Hazardous Material in a manner or for a purpose
prohibited or regulated by any governmental agency, authority or Hazardous Materials
Laws; (ii) Licensee has been required to take remedial action in connection with
Hazardous Material contaminating the City Poles or City property, if the contamination
resulted from Licensee's action or use of the City Poles or City property; or (iii) Licensee
is subject to an enforcement order issued by any governmental authority in connection
with the release, use, disposal, or storage of a Hazardous Material on the City Poles or
City property.
ARTICLE 2
TERM AND TERMINATION
ARTICLE 2.1 Term. The initial term of this Agreement shall be for ten (10)
years beginning on the Effective Date of this Agreement ( "Initial Term "). The Agreement
shall automatically renew for two (2) additional 10 -year terms ( "Renewal Term ") unless
either party delivers to the other a written notice within 180 days prior to the expiration
of the Initial Term or Renewal Term, if any, of its intent not to renew. The Initial Term
and Renewal Term collectively are referred to herein as the "Term."
ARTICLE 2.2 Termination of Use. Notwithstanding Article 2.1 above,
Licensee may terminate its use and right to use of any or all of the ROW locations set
forth in Exhibit A by providing the City with sixty (60) days prior written notice and
removing its Equipment from such ROW location during the 60 -day notice period. If
Licensee removes all of its Equipment from all City's ROWS, Licensee may terminate
this Agreement at any time by providing the City with thirty (30) days prior written notice.
ARTICLE 3
REMOVAL AND RELOCATION
ARTICLE 3.1 Removal Due to Public Project. Except to the extent not
permitted by Law, upon receipt of a written demand from the City pursuant to this Article
3, Licensee, at its sole cost and expense, shall remove and relocate, within a 90 -day
period after the notification, any part of the Equipment, constructed, installed, used and/
or maintained by Licensee under this Agreement, whenever the City reasonably
determines that the removal and /or relocation of any part of the Equipment is needed
for any of the following purposes. due to any work proposed to be done by or on
behalf of the City or any other governmental agency, including but not limited to, any
change of grade, alignment or width of any street, sidewalk or other public facility,
installation of curbs, gutters or landscaping and installation, construction, maintenance
or operation of any underground or aboveground facilities such as sewers, water mains,
drains, storm drains, pipes, gas mains, poles, power lines, telephone lines, cable
television lines and tracks; (b) because any part of the Equipment is interfering with or
adversely affecting the proper operation of City -owned light poles, traffic signals, or
other City facilities; or (c) to protect or preserve the public health and safety.
Notwithstanding the foregoing, if a City- imposed condition of approval associated with a
permit issued to private developer requires the relocation of the Equipment, all
reasonable costs to relocate shall be borne by the developer using Licensee's vendors.
The City shall cooperate with Licensee in relocating any portion of the Equipment
removed pursuant to this Article 3.1 in a manner that allows Licensee to continue
providing service to its customers, including, but not limited to, expediting approval of
any necessary permits required for the relocation of that portion of the Equipment
relocated under this Article.
ARTICLE 3.2 Removal Due to Termination. Except to the extent not
permitted by Law, no later than one hundred eighty (180) days after termination of this
Agreement pursuant to the provisions of this Agreement, Licensee shall, at its sole cost
and expense, remove the Equipment and, if such removal disturbs the City's ROW,
restore the City's ROW to its original condition, including landscaping and related
irrigation equipment that was disturbed or removed by Licensee (as such may have
been modified over the Term), reasonable wear and tear excepted, and further
excepting Licensee - installed landscaping and related irrigation equipment, or other
aesthetic improvements made by Licensee to the City's ROW at the City's discretion.
Alternatively, the City may allow Licensee to abandon its Equipment in place at the
City's discretion, and transfer them, at Licensee's sole cost to the City. Licensee shall
abandon any and all fiber placed in the City's ROW and associated conduit in place and
convey it to the City.
ARTICLE 3.3 Abandonment. In the event Licensee ceases to operate or
maintain, and abandons the Equipment, or any part thereof, for a period of ninety (90)
days or more, Licensee shall, at its sole cost and expense and within the time period
specified in this Article 3.3, vacate and remove the Equipment or the abandoned part
thereof. If such removal disturbs the City's ROW, Licensee shall also, at its sole cost
and expense, restore the City's ROW to its original condition, reasonable wear and tear
excepted, and further excepting landscaping and related irrigation equipment, or other
aesthetic improvements made by Licensee to the City's ROW. Alternatively, the City
may allow Licensee to abandon its Equipment in place at the City's discretion, and
convey, at Licensee's sole cost to the City. Licensee shall abandon any and all fiber
placed in the City's ROW and associated conduit in place and convey to the City without
delay.
ARTICLE 4
MAINTENANCE AND REPAIR
ARTICLE 4.1 Electricity Use. Licensee shall pay the servicing utility
company for the electricity its Equipment consumes in its operations at the rate charged
by the servicing utility company. City will continue to pay for electricity consumed for
operation of its street lighting.
ARTICLE 4.2 Maintenance and Repair. Licensee shall, at Licensee's sole
cost and expense, perform all maintenance and repairs reasonably needed to maintain
the Equipment in good condition and appearance, and in compliance with all applicable
Laws. In the event any part of the Equipment requires replacement because such part
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cannot be repaired, Licensee shall, at Licensee's sole cost and expense, replace the
irreparable part of the Equipment.
ARTICLE 4.3 Repair of ROW. Licensee shall be responsible for any
damage, ordinary wear and tear excepted, to street pavement, existing facilities and
utilities, curbs, gutters, sidewalks, landscaping, and all other public or private facilities to
the extent caused by Licensee's construction, installation, maintenance, access, use,
repair, replacement, relocation, or removal of the Equipment in the City's ROW
( "Licensee's Activities "). Licensee shall promptly repair such damage and return the
City's ROW and any affected adjacent property to a safe and satisfactory condition to
the City in accordance with the City's applicable street restoration standards or to the
property owner if not the City. Additionally, Licensee shall receive approval of any
required Permits, including but not limited to Public Works Encroachment Permits, for
any repair work. Licensee's obligations under this Article 4.3 shall survive for one (1)
year past the completion of such reparation and restoration work and return of the
affected part of the City's ROW by Licensee to the City.
ARTICLE 4.4 Bond. Licensee shall provide a bond in an amount of $5,000
per City Pole on which Licensee installs Equipment, which has been determined by the
City to represent the estimated cost of Licensee's obligations under Articles 3 and 4 of
this Agreement, and the City may require Licensee to increase this amount from time to
time (but no more frequently than every five years during the Term) to reflect the
reasonable estimated increase in cost of performing such obligations, to secure
performance of Licensee's obligations under Articles 3 and 4. Bonds shall be in a form
acceptable to the City and shall not be changed without City consent.
ARTICLE 5
TAXES
ARTICLE 5.1 Taxes. Licensee agrees that it will be solely responsible for
the payment of any and all lawful taxes, fees and assessments levied on its use and
maintenance of the Equipment. Pursuant to Section 107.6 of the California Revenue
and Taxation Code, the City hereby advises, and Licensee recognizes and
understands, that Licensee's use of the City's ROW may create a possessory interest
subject to real property taxation and that Licensee may be subject to the payment of
real property taxes levied on such interest. Licensee will cooperate with the Santa Clara
County Assessor in providing any information necessary for the Assessor to make a
property tax determination. Licensee reserves the right to challenge any such
assessment, and the City agrees, at no cost or expense to City, to provide any public
information, including but not limited to approved plans, to Licensee in connection with
any such challenge.
ARTICLE 6
INDEMNIFICATION
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ARTICLE 6.1 Indemnity. Licensee shall indemnify, defend, and hold
harmless the City, its council members, officers, employees, agents, and contractors
(collectively "Indemnified Parties "), from and against liability, claims, demands, losses,
damages, fines, charges, penalties, administrative and judicial proceedings and orders,
judgments, and the costs and expenses incurred in connection therewith, including
reasonable attorneys' fees and costs of defense ( "Claims ") to the extent caused by the
negligence or willful misconduct of Licensee or its officers, agents, employees, or
contractors, any breach of this Agreement, or Licensee's Activities (including but not
limited to any actions related to electromagnetic frequencies), except to the extent such
Claims arise from or are caused by the negligence or willful misconduct of the City or its
Indemnified Parties.
ARTICLE 6.2 Limitation of Liability. In all cases, not just those related to
indemnification, neither party to this Agreement will be responsible to the other for
consequential, indirect, special, incidental, or punitive damages.
ARTICLE 6.3 Waiver of Claims. Licensee waives all claims, demands,
causes of action, and rights it may assert against the City on account of any loss,
damage, or injury to any portion of the Equipment, or any loss or degradation of the
services provided by the Equipment resulting from any event or occurrence except to
the extent of City's (and its employees', agents', and contractors') negligence, willful
misconduct, or breach of this Agreement.
ARTICLE 6.4 Limitation of City's Liability. The City will be liable only for
the cost of repair to damaged portions of the Equipment arising from the negligence,
willful misconduct, or breach of this Agreement of City, its employees, agents, or
contractors.
ARTICLE 7
INSURANCE
ARTICLE 7.1 Minimum Insurance Requirements. Licensee shall obtain
and maintain at its sole cost and expense for the duration of this Agreement insurance
pursuant to the terms and conditions described in this Article. The insurance coverage
limits required herein may be satisfied by a combination of primary, umbrella, and /or
excess liability insurance policies.
a) Minimum Insurance. Licensee shall at all times during the Term of this
Agreement carry, maintain, and keep in full force and effect, insurance as follows:
i) General Liability: A policy or policies of Comprehensive General Liability
Insurance, with minimum limits of $2,000,000 combined single limit per
occurrence for bodily injury, personal injury, death, loss and property damage
resulting from wrongful or negligent acts by Licensee. If Commercial General
Liability Insurance or other form with a general aggregate limit is used, either the
12
general aggregate limit shall apply separately to this project/location or the
general aggregate limit shall be twice the required occurrence limit.
ii) Automobile Liability: A policy or policies of Comprehensive Vehicle
Liability Insurance covering personal injury and property damage, with minimum
limits of $1,000,000 combined single limit per accident for bodily injury and
property damage covering any vehicle utilized by Licensee in performing the
work covered by this Agreement.
iii) Workers' Compensation and Employer's Liability: Workers' compensation
limits as required by the California Labor Code, and Employer's Liability limits of
$1,000,000 per accident.
b) Deductibles and Self- Insured Retentions. Any deductibles or self- insured
retentions shall not exceed $25,000; provided, however, if Licensee's insurance
policy expressly provides (i) that the insurer is required to pay covered claims with
no deduction for all or any part of the Licensee's deductible, and (ii) insurer's
obligation to pay covered claims is triggered irrespective of whether or not the
insured pays the deductible, then Licensee's deductible shall not exceed $100,000
for Comprehensive General Liability Insurance, $100,000 for Comprehensive
Vehicle Liability Insurance and $250,000 for Workers' Compensation and
Employer's Liability coverage.
c) Other Insurance Provisions. The policies shall contain, or be endorsed to contain,
the following provisions:
i) General Liability and Automobile Liability Coverage.
1) The City, and its elected and appointed council members, board
members, commissioners, officers and officials (the "Insureds ") shall be
named as additional insureds on all required insurance policies, except for
Workers' Compensation and Employer's Liability policies.
2) Licensee's insurance coverage shall be primary insurance as respects the
Insureds with respect to the matters covered by this Agreement. Any
insurance or self- insurance maintained by the Insureds shall be in excess of
Licensee's insurance and shall not contribute with it.
3) Any failure of Licensee to comply with reporting provisions of the policies
shall not affect coverage provided to the Insureds.
4) Licensee's insurance shall apply separately to each of the Insureds
against whom a claim is made or suit is brought, except with respect to the
limits of the insurer's liability. Each of the Insureds is subject to all policy
terms and conditions and has an obligation, as an Insured, to report claims
made against them to the insurance carrier.
ii) Worker's Compensation and Employers Liability Coverage: The insurer
13
shall agree to waive all rights of subrogation against the Insureds for losses
arising from work performed by Licensee in the City's ROW.
iii) All Coverages. Except for non - payment of premium, each insurance policy
required by this clause shall be endorsed to state that coverage shall not be
cancelled except after thirty (30) days' prior written notice has been given to the
City.
If for any reason insurance coverage is canceled or, reduced in coverage, or in
limits, Licensee shall, within two (2) business days of notice from the insurer,
notify the City by phone or fax of the changes to or cancellation of the policy and
shall confirm such notice via certified mail, return receipt requested.
d) Acceptability of Insurers. Insurance shall be placed with insurers admitted and
licensed to do business in the State of California with an A.M. Best rating of no less
than A:VII.
e) Verification of Coverage. Licensee shall furnish the City with certificates of
insurance required by this Article 7. The certificates for each insurance policy are to
be signed by a person, either manually or electronically, authorized by that insurer to
bind coverage on its behalf. All certificates are to be received and approved by the
City before work commences.
ARTICLE 7.2 Secondary Parties. In the event Licensee hires any independent
contractors or agents ( "Secondary Parties ") to locate, place, attach; install, operate, use,
control, replace, repair or maintain the Equipment, Licensee shall require the Secondary
Parties to obtain and maintain similar policy types and limits of insurance required by
Article 7.1 of this Agreement. It shall be Licensee's responsibility to ensure compliance
with this Article 7.2.
ARTICLE 8
MISCELLANEOUS PROVISIONS
ARTICLE 8.1 No Waiver; Consents. The parties do not intend, and
nothing in this Agreement shall be interpreted as, a waiver of any of Licensee's rights
under state and /or federal law, including, but not limited to, California Public Utilities
Code section 7901 and 7901.1 and California Government Code section 50030. If
either party holds an approval or consent right in connection with the other party's
performance hereunder, such approval or consent shall not be unreasonably withheld,
conditioned, or delayed.
ARTICLE 8.2 Nonexclusive Use. Licensee acknowledges that this
Agreement does not provide Licensee with exclusive use of the City's ROW or any
municipal facility and that City retains the right to permit other providers of
communications services to install equipment or devices in the City's ROW and on
municipal facilities. Licensee acknowledges that the City may make information
14
available to other providers of communications services concerning the presence or
planned deployment of the Equipment in the City's ROW.
ARTICLE 8.3 Notices. All notices which shall or may be given pursuant to
this Agreement shall be in writing and personally served or transmitted through first
class, certified or registered United States mail return receipt requested and postage
prepaid, or by reputable national private delivery systems, postage prepaid, to the
following address or such other address of which a party may give written notice:
City:
City of Gilroy
7351 Rosanna Street
Gilroy, CA 95020
Attention: City Administrator
With a copy to:
Berliner Cohen,
10 Almaden Blvd., 11th Floor
San Jose, CA 95113
Licensee:
Mobilitie, LLC
660 Newport Center Drive, Suite 200
Newport Beach, CA 92660
Attn: West Asset Management
With a copy to:
Mobilitie, LLC
660 Newport Center Drive, Suite 200
Newport Beach, CA 92660
Attn: Legal Department
Any notice required or provided for under this Agreement shall be deemed served at the
time of personal service. Mailed notices will be deemed served as of the day of receipt.
ARTICLE 8.4 Attorneys' Fees. If legal action is brought by either party
because of a breach of this Agreement or to enforce a provision of this Agreement, the
prevailing party is entitled to recover reasonable attorneys' fees and court costs.
ARTICLE 8.5 Transfers. Licensee shall provide thirty (30) days' prior
written notice to the City prior to any assignment of this Agreement to a third party. An
assignment shall not be effective until the proposed assignee agrees in writing to
15
comply with, assume, and be subject to all the terms and conditions of this Agreement
and the Code. No such assignment shall relieve Licensee of any obligation under this
Agreement that accrued before such assignment. Without limiting any provision in this
Agreement to the contrary, Licensee may in the ordinary course of its business and
without the prior written consent of or notice to the City: (a) license the Equipment, or
any portion thereof, to another person or enter into a license agreement with another
person under which Licensee installs and maintains Equipment in the City's ROW that
is owned and /or operated by an Initial Carrier or Additional Carrier, (b) grant an
indefeasible right of use interest in the Equipment or any portion thereof to another
person, or (c) offer or provide capacity or bandwidth from the Equipment to another
person, (provided that whether Licensee does any of these three things listed in (a) -(c)
of this article, it or one of its affiliates must at all times retain exclusive responsibility for
the Equipment, including for locating, servicing, repairing, maintaining, replacing,
relocating, or removing the Equipment pursuant to the provisions of this Agreement.
Licensee may, without the prior consent of City but following the provision of notice to
the City, assign this Agreement to any Affiliate or to any entity acquiring all or
substantially all of the assets of Licensee. For purposes of this Agreement, an "Affiliate"
of Licensee is an entity under the control of Licensee or under common control with
Licensee or is either a wholly -owned direct or indirect subsidiary of Licensee.
ARTICLE 8.6 Binding Effect. This Agreement shall be binding upon and
inure to the benefit of the parties and their respective heirs, legal representatives,
successors, assigns and transferees.
ARTICLE 8.7 Entire Agreement; Modification; Waiver. This Agreement
constitutes the entire agreement between the parties relating to the subject matter
hereof. All prior and contemporaneous agreements, representations, negotiations, and
understandings of the parties, oral or written, relating to the subject matter hereof, are
merged into and superseded by this Agreement. Any modification or amendment to this
Agreement shall be of no force and effect unless it is in writing and signed by the
parties. No waiver of any of the provisions of this Agreement shall be deemed, or shall
constitute, a waiver of any other provision, whether or not similar. No waiver or consent
shall constitute a continuing waiver or consent or commit either party to provide a
waiver in the future except to the extent specifically set forth in writing. No waiver shall
be binding unless executed in writing by the party making the waiver.
ARTICLE 8.8 Severability. 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 or provisions shall be deemed
separable from the remaining provisions of this Agreement and shall in no way affect
the validity of the remaining portions of this Agreement.
ARTICLE 8.9 Governing Law and Choice of Law. This Agreement shall
be interpreted and enforced according to, and the parties' rights and obligations
governed by, the domestic law of the State of California, without regard to its laws
regarding choice of applicable law. Any proceeding or action to enforce this Agreement
16
shall occur in the federal court with jurisdiction over Santa Clara County and the state
courts located in Santa Clara County, California.
ARTICLE 8.10 Survival of Terms. All of the terms and conditions in this
Agreement related to payment, removal due to termination, indemnification, limits of
City's liability, attorneys' fees and waiver shall survive termination of this Agreement.
ARTICLE 8.11 Captions and Paragraph Headings. Captions and
paragraph headings used herein are for convenience only. They are not a part of this
Agreement and shall not be used in construing this Agreement.
ARTICLE 8.12 Exhibits. All Exhibits referenced in this Agreement are
hereby incorporated as though set forth in full herein.
ARTICLE 8.13 Drafting. The parties agree that this Agreement is the
project of joint draftsmanship and that should any of the terms be determined by a court,
or in any type of quasi - judicial or other proceeding, to be vague, ambiguous and /or
unintelligible, that the same sentences, phrases, clauses or other wording or language
of any kind shall not be construed against the drafting party in accordance with
California Civil Code Section 1654, and that each party to this Agreement waives the
effect of such statute.
ARTICLE 8.14 Execution in Counterparts. This Agreement may be
executed in one or more identical counterparts and all such counterparts together shall
constitute a single instrument for the purpose of the effectiveness of this Agreement.
ARTICLE 8.15 Authority to Execute This Agreement. Each person or
persons executing this Agreement on behalf of a party, warrants and represents that he
or she has the frill right, power, legal capacity and authority to execute this Agreement
on behalf of such party and has the authority to bind such party to the performance of its
obligations under this Agreement without the approval or consent of any other person or
entity.
[Signatures on next page.]
17
[Signatures to
RIGHT -OF -WAY AGREEMENT
BETWEEN THE CITY OF GILROYAND MOBILITIE, LLCJ
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date set
forth below.
CITY
City of Gilroy, a municipal corporation
By:
Name: Gabriel Gonzalez
Title: City Administrator
Date: ( e C
APPROVED AS TO FORM:
City Attorney
18
LICENSEE
Mobilitie, LLC, a Nevada limited
liability company
By:
Name: Christopher Glass
Title: SVP, General Counsel
Date: 0'6 _ \ �) �() 6&
" Ly rX
(Signatures to
RIGHT -OF -WAY AGREEMENT
BETWEEN THE CITY OF GILROYAND MOBILITIE, LLC.J
IN WITNESS WHEREOF, the parties have signed this Agreement as of the date set
forth below.
CITY
City of Gilroy, a municipal corporation
Name: Gabriel Gonzalez
Title: City Administrator
Date:
APPROVED AS TO FORM-
IN U Mro �.
Attorney
18
LICENSEE
Mobilitie, LLC, a Nevada limited
liability company
WON,
.�rygrffi'
Name: Christopher Glass
Title: SVP, General Counsel
Date: ~ t) _ aC Rv
ATTEST:
City Clerk
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EXHIBIT A
Site Locations
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Candidate Code
Mobilitie Site ID
Latitude
Longitude
Nearest Address
SF90XS3E9B
9CABO13979
37.02414600
- 121.56535900
Public ROW near 601
Leavesley Rd.
SF90XS3B1 D
9CABO13941
37.00587000
- 121.56975300
Public ROW near 7371
Eigleberry St.
Description of Equipment
The equipment plans for Candidate Code SF90XS3E9B attached to that certain Uniform
Application for Architectural /Site Review File # AS 17 -17 (Encompass #17040010)
received by the City's Community Development Department Planning Division on April
17, 2017, and as further amended by Uniform Application for Minor Modification File #
MM 18 -17 (Encompass #18040021) approved by the Planning Division on April 16,
2018, are incorporated herein by this reference.
The equipment plans for Candidate Code SF90XS3131 D attached to that certain
Uniform Application for Architectural /Site Review File # AS 17 -03 (Encompass
#17020007) received by the City's Community Development Department Planning
Division on March 24, 2017 are incorporated herein by this reference.
19