Loading...
HomeMy WebLinkAboutCAG2020-129 - Original - New Cingular Wireless PCS, LLC - Telecommunications - Wireless Facilities on City-Owned Infrastructure - 04/27/2020 Agreement Routing Form • For Approvals,Signatures and Records Management This form combines&replaces the Request for Mayor's Signature and Contract Cover Sheet forms.K EN T WASHINGTON (Print on pink or cherry colored paper) Originator: Department: Kelly Finn and Tania Reyes-Selden Legal _ Date Sent: Date Required: M O a- Q Authorized to Sign: Date of Council Approval: 0" El Director or Designee ❑Mayor Q February 4, 2020 Budget Account Number: Grant? ❑Yes 0 No Budget? ❑Yes ❑ No Type: Vendor Name: Category: New Cingular Wireless PCS, LLC License Vendor Number: Sub-Category:, Other 0 a Project Name: Telecommunications E 0 Project Details: C r G O E Agreement Amount: Basis for Selection of Contractor: N QStart Date: C)LJ ,2:4 Termination Date: w 2 3 Local Business? ❑Yes El No* l *Ifineets requirements per KCC 3.70.100,please complete"Vendor Purchase-Local Exceptions"form on Cityspace. Notice required prior to disclosure? Contract Number: ❑Yes ❑No ^ n O2 D ^ 1 29 Date Received by City Attorney: Comments: C1 Resolution 2007 authorizes the execution of \ C individual MLAs with qualified applicants administratively. (V fA ***Wet signatures required on both copies, please return both to Legal after fully oc executed**** M c CM Date Routed to the Mayor's Office: N/A V'1 Date Routed to the City Clerk's Office: Visit Documents.KentWA.gov to obtain copies of all agreements MASTER LICENSE AGREEMENT FOR SMALL WIRELESS FACILITIES ON CITY-OWNED INFRASTRUCTURE This MASTER LICENSE AGREEMENT FOR SMALL WIRELESS FACILITIES ON CITY-OWNED INFRASTRUCTURE hereinafter ('License") is entered into by and between the City; a municipal corporation of the state of Washington (the "City") and New Cingular Wireless PCS, LLC, a Delaware limited liability company ("AT&T" or "Licensee"). RECITALS A. The City owns and controls certain City-owned infrastructure located in the public rights-of-way (ROW) situated within the city limits of Kent, WA. B. Licensee is engaged in the operation of communications technology and desires to license from the City, and the City is willing to license the City-owned infrastructure (defined below). C. This License applies only to the installation of Small Cell Facilities (defined below) on and to City-owned infrastructure which at a minimum comply with the requirements of Chapter 6.16 of the Kent City Code ("KCC"), subject to the terms and conditions of this License. The parties agree as follows: 1. Definitions 1.1 "City-owned infrastructure" has the same meaning as set forth in KCC 6.16.030, as adopted or hereinafter amended and, if available and approved by the City, any form of existing power supply, conduit or other infrastructure equipment for the delivery of power to a structure or pole located in the ROW. 1.2 "Combination Pole" has the same meaning as set forth in KCC 6.16.030, as adopted or hereinafter amended. 1.3 ' Design Standards" refer to the utility design standards in the right-of-way set forth in KCC Chapter 6.16, as adopted or hereinafter amended. 1.4 "Facilities" mean Facilities or small cell facilities has the same meaning as set forth in KCC 6.16.030, as adopted or hereinafter amended. 1.5 "Laws" mean any and all applicable statutes, codes, constitutions, ordinances, resolutions, regulations, judicial decisions, rules, tariffs, administrative orders, court orders, or other requirements of the City or other governmental agency having joint or several jurisdiction over the parties to this License as such laws may be amended from time to time. 1.6 "Rent Commencement Date" is the day that both Licensee and the City fully Master License Agreement execute a Site License Addendum. 1.7 "Site License Addendum" means the document in the form substantially similar to Exhibit A that, when fully executed by both parties, is subject and subordinate to the provisions of this License and authorizes Licensee to attach, install, operate, maintain, upgrade, remove, reattach, reinstall, relocate and replace specific small cell facilities on specific City-owned infrastructure together with City-owned infrastructure (if any) as identified in the specific Site License Addendum subject to the License. 2. License Granted 2.1 The City hereby licenses to Licensee a portion of individual City-owned infrastructure as identified in each fully executed Site License Addendum, incorporated herein by reference, together with non-exclusive access rights to the specified City-owned infrastructure, sufficient for Licensee's use of the City-owned infrastructure subject to the applicable Site License Addendum. All Site License Addendums are subject and subordinate to the terms and conditions of this License, the Kent City Code and all Laws. If City-owned conduit or other infrastructure equipment is used by Licensee for the delivery of power to its Facilities, in no event shall the City be liable for any loss or interruption of power to such Facilities. 2.2 Licensee may attach, install, operate, maintain, upgrade, remove, reattach, reinstall, relocate, and replace, at Licensee's sole responsibility and expense, the Facilities subject to this License, the applicable Site License Addendum, and compliance with the Design Standards. Licensee represents, warrants and covenants that Facilities installed pursuant to this License will be utilized solely for providing data/telecommunications services and Licensee is not authorized to and shall not use its Facilities to offer or provide any other services without prior written permission or agreement from the City. 2.3 Nothing contained within this License shall be construed to grant or convey any right, title, or interest in the City-owned infrastructure to Licensee other than for the purpose of placing and operating the Facilities. Further, nothing in this License shall be interpreted to create or vest in Licensee any easement or other ownership or property interest or other right to any City-owned infrastructure, property, or public ROW. This License shall not constitute an assignment of any City rights to City-owned infrastructure, property, or public right-of-way. 2.4 To the extent permitted under applicable law, the City's municipal functions or proprietary interests are not subordinated in any way to Licensee's interest under this License or Site License Addendum. If the City determines that the usage of City-owned infrastructure is not feasible or not in the best interest of the City due to the City's municipal obligations or proprietary interests, the City in its sole discretion and its decision being final may deny Licensee's request to use the City-owned infrastructure. Master License Agreement 2.5 Prior to any use of the City-owned infrastructure, both parties must have executed a Site License Addendum in the form substantially similar to Exhibit A. Upon review by the City of materials submitted for a Site License Addendum, the City may deny the installation of Facilities or require additional terms and/or conditions to determine whether the proposed small cell facility will comport with this License, the Design Standards, or to address health, safety, or other aesthetic concerns. 2.6 City-owned infrastructure is offered on an "as is" basis, in its present condition. 2.7 This License is made subject to all easements, restrictions, conditions, covenants, encumbrances, and claims of title which may affect this City- owned infrastructure, and it is understood that Licensee at its own cost and expense, shall obtain such other permissions, as may be necessary, consistent with any other existing rights. 2.8 Licensee is solely responsible for procuring electricity for its small cell facilities and directly paying its chosen electricity provider for such services. The City is not responsible for managing Licensee's electricity needs, payments, or for supplying electricity to the small cell facilities. Where possible when deploying, Licensee shall procure unmetered electricity services. Notwithstanding the foregoing the City may, at its sole discretion, permit Licensee to connect a Facility to the City's electrical supply to minimize disruption to existing ROW improvements, subject to a separate agreement, which shall include billing and payment procedures. 2.9 Licensee, in the performance and exercise of its rights and obligations under this License, shall not interfere in any manner with the existence and operation of any and all existing and future 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 which are pre-existing at that location, electroliers, cable television, location monitoring services, public safety and other then existing telecommunications equipment, utility, or municipal property, without the express written approval of the owner or owners of the affected property or properties, except as permitted by applicable Laws or this License. 3. Effective Date All references in this License to the "Effective Date", 'the date hereof", or similar references shall refer to the date that the License was fully executed by both Parties. 4. Term 4.1 The term of this License shall commence on the Effective Date and shall expire 10 years from the Effective Date (the "Term"). 4.2 The Site License Addendums shall not extend this License. All Site License Addendums terminate with the expiration or termination of this License. Master License Agreement 4.3 Both the City and Licensee have the right to terminate this License upon 12- months' notice to the other party, if due to a change of Laws, either party can no longer technically, or practicably, comply with both the duties and obligations of this License and the requirements of the Laws, provided if any such law is reversed or revoked within the 12-month notice period, the termination notice will be deemed null and void. S. Fees and Chargess Licensee shall pay all fees and charges in connection with Licensee's performance under this License, including the following: 5.1 License Fee. The City may charge Licensee for the actual and reasonable administrative expenses incurred by the City directly related to reviewing and processing this License and Site License Addendums (or any amendment thereto). 5.2 Permit Fees. Licensee shall be responsible for paying all actual and reasonable costs associated with City review, processing and inspection as part of all permit applications filed for the installation, modification, maintenance and removal of small cell facilities or equipment. 5.3 Rent. 5.3.1 Licensee acknowledges that the Federal Communications Commission (FCC) has adopted a Declaratory Ruling (FCC 18-133) that relates to the rent but that Declaratory Ruling is currently the subject of litigation. This Section 5.3 governs the payment of rent and how it may be impacted by the resolution of related litigation during the Term and any Renewal Terms. 5.3.2 During any period in which the Alternate Rent provisions in Section 5.3.3 are not applicable, Licensee shall pay Rent as described in this Section 5.3.2. For Site License Addendums executed by both parties in 2019, Licensee shall pay to the City the base amount of two hundred and seventy dollars ($270.00) per calendar year for each individual pole or other City-owned infrastructure covered by a Site License Addendum (i.e., Site License Addendums may include more than one City Pole), and such base amount shall be increased on January 1 of each calendar year after 2019 by the Average CPI Increase, defined below (the "Rent"). For Site License Addendums executed by both parties in 2020 and subsequent years, the base amount of rent shall commence at the Rent, as adjusted annually by the Average CPI Increase to reflect the then-current rate. Rent for the first calendar year of a Site License Addendum for each individual City Pole shall be pro-rated based on the number of days covered from the Rent Commencement Date to December 31. The first payment of Rent shall be paid within 45 Master License Agreement days of the Rent Commencement Date. Every payment of Rent, after the first payment, shall be due and payable in advance on January 1 of each calendar year throughout the term of each such Site License Addendum. There shall be no refunds of Rent paid due to the termination or expiration of the License for any reason. 5.3.3 If the relevant provisions of the FCC Declaratory Ruling are reversed in a final and unappealable order of the FCC or a court of competent jurisdiction, and continuing for so long as no legal or regulatory requirement exists that would constrain or otherwise limit the Rent that the City may charge Licensee for the right to place small cells on the City Poles, the parties agree that Rent shall increase to the fair market value for the use of the City Poles as reasonably determined by the City ("Alternate Rent"). If Licensee disagrees with the Alternate Rent amount, it may utilize the arbitration process described in RCW 35.21.860. The Alternate Rent shall be due 60 days after the City issues the fair market value rent calculation, and may be prorated from the date of the issuance of the documentation stating the fair market value. If a subsequent legal or regulatory requirement becomes effective that would constrain or otherwise limit the Rent that the City may charge Licensee for the right to place small cells on the City's property in the public right-of-way, the parties agree that Alternate Rent shall again be adjusted to comply with such legal or regulatory requirement upon its effective date. 5.3.4 The City agrees that, irrespective of whether the relevant provisions of the FCC Declaratory Ruling (FCC 18-133) go into effect and then 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 5.3.2 for a calendar year, and the relevant provisions of the FCC Declaratory Ruling subsequently cease to be effective during the same calendar year, 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 the City on January 1 of the following year. 5.3.5 Rent or Alternate Rent shall be delivered or mailed to the City of Kent, Customer Service located at: 400 West Gowe, Kent, WA 98032. Rent payment must reference the City Pole Identifier (pole number and GIS location) Licensee's site ID# and Site License Addendum Number. 5.3.6 Receipt of any Rent or Alternate Rent by the City, with knowledge of any breach of this License 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 License, will not constitute a waiver of Master License Agreement any provision of this License. 5.3.7 If any sums payable to the City under this License are not received by the City on or before the 10th day following its due date, Licensee agrees to pay a late fee of 5% of the unpaid Rent or Alternate Rent for all Site License Addendums for which payment was not received. Where a check is returned to the City by a bank or other financial institution with the indication that the check cannot be honored, there shall be a fee assessed to Licensee based on the current statutory maximum allowed. The City and Licensee agree that such charges represent a fair and reasonable estimate of the costs incurred by the City by reason of late payments and uncollectible checks, and the failure by Licensee to pay any such charges by no later than 30 days after Licensee's receipt of written demand therefore by the City shall be a default under this License. The City's acceptance of less than the full amount of any payment due from Licensee will not constitute an accord and satisfaction, waiver, or compromise of such payment unless specifically agreed to in writing by the City. 6. Taxes. Assessments & utilities In addition to the Rent, Licensee shall pay when due directly to the applicable authority all applicable taxes arising with respect to Licensee's activities and business under this License including, without limitation, paying to the City the utility tax imposed pursuant to KCC Chapter 3.18, and the applicable leasehold excise tax, unless Licensee is centrally assessed by the State of Washington and provides documentation, that is acceptable to the City, of its central assessment, which evidence shall then be attached to this License as Exhibit B. Should the City collect from Licensee and pay to the Department of Revenue leasehold excise tax which is subsequently determined to be a duplicate payment or over-payment of tax by Licensee, Licensee shall not have any claim against the City, but shall look directly to the Department of Revenue for reimbursement. 7. Permits 7.1 Prior to performing any construction, maintenance or repair work on the City- owned infrastructure, Licensee shall secure all necessary federal (including any FCC or FAA requirements), state and local licenses, permits and approvals, including but not limited to, land use permits/approvals as required, small cell permits, street use permits, traffic control plans, proof of agency and permits for the construction and operation of the Facilities or installation of a replacement pole (collectively referred to hereinafter as "Government Approvals") at its sole expense. No Government Approval shall be considered a substitute for City approval required by this License, and no approval granted under this License shall be considered a Government Approval. 7.2 Licensee must obtain Governmental Approvals for each Site License Addendum and within 12 months after the effective date of the Site License Master License Agreement Addendum. The Site License Addendum shall automatically terminate on the expiration of this 12-month period if the necessary Government Approvals are not obtained; however, this 12-month period may be extended upon approval by the City, which approval shall not be unreasonably withheld, delayed or conditioned. 7.3 Licensee shall bear all costs for the installation of its Facilities pursuant to this License, including installing Facilities and removing and replacing existing City-owned infrastructure with a Combination Pole meeting the requirements of KCC Chapter 6.16 and the Site License Addendum. Such costs shall include, but are not limited to, costs for dismantling or removal of the existing City-owned infrastructure in compliance with the KCC, removal and replacement of foundation, replacement streetlight, replacement of junction boxes to non-skid boxes, additional conduit if needed, and geotechnical analysis (as appropriate for soil and foundation stability, etc.), replacement of hardscape, vegetation or other existing urban design features impacted by the work. Any such replacement shall be subject to prior approval by the City, which approval shall not be unreasonably withheld, delayed or conditioned, and approved as part of the Site License Addendum. 7.4 Prior to commencing any construction activities on City-owned infrastructure after the Effective Date or the effective date of any Site License Addenda, Licensee shall: 7.4.1 Mail notice of the construction of the Facilities to the residents of the real property within 100 feet of the location of the proposed Facility at least 10 days before commencing construction. The notice shall contain the location of the Facility, general information about the Facility itself, including a photographic example of a similar Facility, and contact information where additional information may be obtained; and 7.4.2 Submit to the City for approval such information regarding the proposed work as the City may reasonably request, including, without limitation, plans and specifications of the planned modifications and Licensee's proposed schedule, for the City's written approval, these plans shall include the results of the RF emissions tests consistent with the requirements of this License. 7.5 Representatives of the City shall have the right to inspect any and all improvements and to require reasonable revisions to Licensee's improvements to ensure that the respective uses of the City-owned infrastructure are compatible. This right does not impose any obligation upon the City to make inspections to ascertain the safety of Licensee's improvements, Facilities, or the condition of the City-owned infrastructure. 7.6 Except as otherwise provided in this Section 7.6, revisions to equipment after initial installation require an amendment to the Site License Addendum and payment for the actual and reasonable administrative expenses incurred by Master License Agreement the City directly related to any amendment. Approval of the City under this License of these revisions does not relieve Licensee from obtaining permits and/or Governmental Approvals as necessary to commence such modifications. Replacement of like parts or modification during maintenance and repair is acceptable without specific approval under this License provided that: (a) such like-for-like replacement or modification does not change the visual appearance or size, or increase weight beyond the loading or utilization or noise of the Facilities, and (b) Licensee provides written notice explaining in reasonable detail the nature of the parts replacement and/or other modifications within 10 days of occurrence, including certification that the level of RF emissions exposure from the Facilities remains within the limits for general population/uncontrolled population exposure. At the City's written request, Licensee must conduct a new on-site RF emissions testing in accordance with applicable rules, and certify actual compliance with the applicable RF emissions limits for general population/uncontrolled RF exposure, and provide a copy of such updated compliance report to the City. S. Interference 8.1 Licensee agrees to install equipment of the type and frequency which will not cause harmful interference which is measurable in accordance with then existing industry standards to any City equipment or other licensees of the City-owned infrastructure which existed prior to the Effective Date of this License. If Licensee's equipment causes such interference, Licensee agrees to take all commercially reasonable steps necessary to correct and eliminate the interference. 8.2 Licensee's Facilities shall not interfere with any City operations (including, but not limited to, traffic lights, radio systems, or other City communications infrastructure), or PSERN (or its successor entity) communications operation or equipment. If the City reasonably determines that the Facilities cause such interference, Licensee shall respond to the City's request to address the source of the interference as soon as practicable, but in no event later than 48 hours of receipt of written notice. The City may require, by written notice, that Licensee cease operation of the specific Facility causing such interference and either modify, remove or relocate such Facilities. If, within 30 days after receipt of such written notice from the City of such interference, Licensee has not abated such interference, the City or Licensee may terminate the applicable Site License Addendum, or terminate the Site License Addendum to the extent applicable to the interfering Facilities, upon 30 days' notice to the other party and neither party shall have any further obligations or responsibilities under the Site License Addendum. 8.3 If Licensee determines that interference is occurring, then the City will meet and confer with Licensee within 5 days of the City's receipt of notice of interference from Licensee, and otherwise diligently work in good faith with Licensee to determine the root cause of the interference and to develop workable solutions to resolve the interference in a mutually acceptable Master License Agreement manner. The City and Licensee agree that the use of the City-owned infrastructure shall be governed by and subject to FCC rules and regulations. 8.4 To the extent any Facilities interfere or disturb equipment owned by any third party, Licensee shall notify such third party directly and make good faith efforts to resolve the matter before involving the City. 9. Compliance w6th Laws; Hazardous Materials 9.1 Compliance with Laws. Licensee shall, at all times and at its sole responsibility and expense, comply with all applicable Laws relating to the installation, operation, maintenance, repair and/or removal of small cell facilities, including FCC regulations for compliance with limits on human exposure to radio frequency (RF) emissions. Licensee shall not cause or permit any nuisance, nor trespass, nor do any act on City-owned infrastructure which would increase the rate of insurance thereon. Licensee shall defend, indemnify and hold harmless the City and its employees and agents against any claims arising from any violations by Licensee, its agents or employees, of any such Laws. The indemnity provision of this paragraph shall survive the termination or expiration of this License. 9.2 RF Exposure Compliance. Licensee's Facilities must comply with all standards and regulations of the FCC and any other state or federal government agency with the authority to regulate exposure to radio frequency (RF) emissions. Licensee or its representative shall include in any application for a Site License Addendum certification that the small cell facilities will comply with applicable RF emissions limits, and at the City's written request, which shall be no more than once per year, must conduct on-site post- installation RF emissions testing in accordance with applicable rules, and certify actual compliance with the applicable RF emissions limits for general population/uncontrolled RF exposure, and provide a copy of such post- installation compliance report to the City. 9.3 Hazardous Materials. Licensee shall not introduce or use any hazardous substances (chemical or waste), in violation of any applicable law or regulation, nor shall Licensee allow any of its agents, contractors or any person under its control to do the same. Licensee will be solely responsible for and will defend, indemnify and hold the City, its officers, officials, employees, agents and volunteers harmless from and against any and all claims, costs and liabilities including reasonable attorney's fees and costs, arising out of or in connection with the cleanup or restoration of the property associated with Licensee's use, storage, or disposal of hazardous substances, whether or not intentional, and the use, storage or disposal of such substances by Licensee's agents, contractors or other persons acting under Licensee's control, whether or not intentional. Master License Agreement 10. Maintenance. Restoration and Rel2air 10.1 Licensee Responsibilities. 10.1.1 Licensee shall, at its sole cost and expense and to the reasonable satisfaction of the City: (a) maintain its Facilities in a safe condition, in good repair and in a manner suitable to the City; (b) remove, repair or replace any of its Facilities that is damaged or becomes detached; (c) keep Facilities free of debris and anything of a dangerous, noxious or offensive nature or which would create a nuisance or hazard; and/or (d) repair any damage to the right-of- way, City-owned infrastructure, 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 Facilities. Licensee shall complete such removal, repair, or replacement within 30 days of receipt of the City's written notice. 10.1.2 If Licensee does not complete or commence all necessary repairs within the 30-day period, to the City's reasonable satisfaction, the City reserves all rights to do so at Licensee's expense. 10.1.3 The terms of this Section 10.1 shall survive the expiration, completion or earlier termination of this License. 10.2 City Maintenance of City-owned Infrastructure. 10.2.1 The City reserves the right to make alterations, repairs, additions, removals and improvements to all or any part of the City-owned infrastructure for any operational purpose. The City shall make a good faith effort to give Licensee 72 hours' prior notice of any City work if such work will impair the operation of the Facilities. 10.2.2 Licensee will turn antennas and other Facilities producing radio frequency off, or authorize the City to do so, when the City performs any work on the City-owned infrastructure. If Licensee fails to turn off the Facilities producing radio frequency within 72 hours of receipt of notice, the City may take reasonable steps to turn them off. 10.2.3 The City shall not be liable for any indirect, special or consequential damages to any person or property, nor shall Licensee be relieved from any of its obligations under this License, as a direct or indirect result of temporary interruption in the electrical power provided to the City-owned infrastructure. 10.2.4 If the City, while making any repairs or improvements to City-owned infrastructure as described by this section, or conducting such emergency work as described by this section, should incur any extra costs derived from the presence of Facilities, then Licensee shall Master License Agreement reimburse the City for all reasonable costs within 45 days of receipt of an invoice detailing costs. 10.2.5 The City has no duty to Licensee to make any repairs or improvements to the City-owned infrastructure except for damage caused by the City, its employees or agents. The City is not responsible for any third-party damage to Facilities. 10.3 Emergency Measures. 10.3.1 The City retains the right to take necessary, appropriate or useful measures, in response to any public health or safety emergency. If the City becomes aware of an emergency before Licensee, then the City shall notify Licensee by telephone or e-mail promptly upon learning of the emergency and shall exercise reasonable efforts to avoid an interruption of Licensee's operations. The City may require Licensee to deactivate such Facilities if any of the City's employees or agents must move closer to the Facilities than the FCC recommended minimum distance. In this case, the City will contact Licensee to request immediate deactivation. Licensee's Facilities shall include an emergency override switch for use by the City that would turn off the system in case of a public safety emergency that presents the threat of immediate and irreparable harm, such that notification to Licensee is not feasible or practical. 10.3.2 The City will not be liable in any manner, and Licensee hereby waives any claims, for any inconvenience, disturbance, loss of business, nuisance, or other damage arising out of the City's access to the Facilities, including the removal of Facilities from City-owned infrastructure in an emergency, except damage resulting directly and exclusively from the negligence or willful misconduct of the City or its agents and not contributed to by the acts, omissions, or negligence of Licensee, its agents, or contractors. 11. Sub-licensing Subleasing & Assignment by Ucensee The rights and privileges granted to Licensee as provided in this License may not be assigned or transferred to any other entity without written approval of the City, which shall not be unreasonably withheld, conditioned or delayed; provided, however, that upon written notice to the City, 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 controls, is controlled by, or is under common control with such entity or to any purchaser of all or substantially all of the assets of Licensee in the market defined by the FCC in which the City-owned infrastructure are located without the requirement for City approval, so long as the successor provides written notice to the City that it is then fully liable to the City for compliance with all terms and conditions of this License. Licensee shall reimburse the City for all actual and Master License Agreement reasonable costs and expenses reasonably incurred by the City in considering a request to transfer or assign this License. 12. Insurance 12.1 At Licensee's sole cost and expense, Licensee shall maintain throughout the term of this License insurance as set forth in Exhibit D. 12.2 No more than once per 24-month period, the City may require increases in this coverage by 60 days written notice to Licensee, as the City deems reasonably necessary, generally consistent with industry standards. 12.3 Licensee's maintenance of insurance as required by this Section 12 shall not be construed to limit the liability of Licensee to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or equity. Further, Licensee's maintenance of insurance policies required by this License shall not be construed to excuse unfaithful performance by Licensee. 13. Hold Harmless 13.1 The City and its employees and agents shall not be liable for injury or damage to any persons or property, including City-owned infrastructure, resulting from the installation, operation or maintenance of the Facilities or facilities on City- owned infrastructure, except for injury or damage caused by the City's, its employees' or agents' negligence or willful misconduct. 13.2 Licensee releases, covenants not to bring suit, and agrees to indemnify, defend, and hold harmless the City, its officers, employees, agents, and representatives from any and all claims, costs, judgments, awards, or liability to any person, for injury or death of any person, or damage to property caused by or arising out of any acts or omissions of Licensee, its agents, servants, officers, employees and contractors in the performance of this License and any rights granted within this License, or the presence of the Facilities, except if caused by the City's, its employees' or agents' negligence or willful misconduct. 13.3 Inspection or acceptance by the City of any work performed by Licensee at the time of completion of construction shall not be grounds for avoidance by Licensee of any of its obligations under this Section 13. 13.4 The City shall promptly notify Licensee of any claim or suit and request in writing that Licensee indemnify the City. The City's failure to so notify and request indemnification shall not relieve Licensee of any liability that Licensee might have, except to the extent that such failure prejudices Licensee's ability to defend such claim or suit. 13.5 Licensee may choose counsel to defend the City at Licensee's sole expense subject to this Section 13, provided the City consents to Licensee's choice of counsel, which consent shall not be unreasonably withheld. If Licensee refuses Master License Agreement the tender of defense in any suit or any claim, as required pursuant to the indemnification provisions within this License, and this refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties shall agree to decide the matter), to have been a wrongful refusal on the part of Licensee, Licensee shall pay all of the City's reasonable costs for defense of the action, including all expert witness fees, costs, and attorney's fees, and including costs and fees incurred in recovering under this indemnification provision. If separate representation to fully protect the interests of both parties is necessary, such as a conflict of interest between the City and the counsel selected by Licensee and approved by the City to represent the City, then upon the prior written approval and consent of Licensee, which shall not be unreasonably withheld, the City shall have the right to employ separate counsel in any action or proceeding and to participate in the investigation and defense thereof, and Licensee shall pay the reasonable fees and expenses of such separate counsel. The City's fees and expenses shall include all out-of-pocket expenses, such as consultants and expert witness fees, and shall also include the reasonable value of any services rendered by the counsel retained by the City (including the use of in- house counsel). Each party agrees to cooperate and to cause its employees and agents to cooperate with the other party in the defense of any such claim and the relevant records of each party shall be available to the other party with respect to any such defense. 13.6 The parties acknowledge that this License is subject to RCW 4.24.115. Accordingly, in the event of liability for damages arising out of bodily injury to persons or damages to property caused by or resulting from the concurrent negligence of Licensee and the City, its officers, officials, employees, and volunteers, Licensee's liability shall be only to the extent of Licensee's negligence. It is further specifically and expressly understood that the indemnification provided constitutes Licensee's waiver of immunity under Title 51 RCW, solely for the purposes of this indemnification. This waiver has been mutually negotiated by the parties. 13.7 Licensee acknowledges and agrees that Licensee bears all risks of loss or damage or relocation or replacement of its Facilities from any cause, and the City shall not be liable for any cost of replacement or of repair to damaged Facilities, including, without limitation, damage caused by the City's removal of the Facilities, loss of line of sight path, activities conducted by the City, its officers, agents, employees, volunteers, elected and appointed officials, or contractors, except to the extent any such damage or destruction is caused by or arises from any negligent, willful misconduct, or criminal actions on the part of the City, its officers, agents, employees, volunteers, or elected or appointed officials, or contractors. Licensee releases and waives any and all such claims against the City, its officers, agents, employees, volunteers, or elected or appointed officials, or contractors. 13.8 Licensee shall indemnify, hold harmless and defend the City against any claims for damages, including, but not limited to, consequential, special, indirect, business interruption damages and lost profits, brought by or under Master License Agreement users of the Facilities as the result of any interruption of service due to damage or destruction of the Facilities caused by or arising out of activities conducted by the City, its officers, agents, employees or contractors, or any third parties, except to the extent any such damage or destruction is caused by or arises from the negligence, willful misconduct, or criminal actions on the part of the City, its officers, employees, or elected or appointed officials. This limitation of liability shall apply even if the City is advised of the possibility thereof, whether such damages arise out of breach of contract, breach of warranty, negligence, strict liability or any other theory of liability and whether such damages were foreseeable or not at the time this License was executed. 13.9 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. 13.10 The provisions of this Section 13 shall survive the expiration, revocation, or termination of this License. 14. Performance Bond Licensee shall furnish a surety bond or bonds, in a form reasonably acceptable to the City, covering faithful performance of this License and payment of all obligations arising thereunder, including but not limited to proper construction, long-term facility maintenance, rent, timely removal of equipment and restoration. The bond shall be in-force during the entire term or subsequent extensions or month-to-month tenancies. The performance bond for this License shall not only indemnify the City for the usual performance provisions of this License, but in addition shall be a bond to guarantee payment of any and all tax liability of any type, kind, nature or description due as a result of this License. This performance bond shall be issued to the City prior to the issuance of any approvals for the construction of its Facilities on the City-owned infrastructure. If the City so uses or applies any portion of the performance bond, Licensee shall, upon 30 days' written notice, restore the performance bond to the full amount above specified, and Licensee's failure to do so shall constitute a material breach of this License. This performance bond shall be in addition to any construction or maintenance bonds imposed by the City as part of its permitting process. This performance bond shall remain in place until all of Licensee's Facilities have been removed by Licensee unless otherwise permitted to remain by the City. The amount of the bond shall be dependent on the number of City Poles used by Licensee as follows: $25,000 bond for authorization to use 1-10 City Poles; $125,000 bond for authorization to use 11-50 City Poles; and $250,000 bond for authorization to use 50 or more City Poles. Licensee may Master License Agreement elect to combine the bond required by Licensee's permits together with the bond required by this License provided: (i) the combined bond meets all requirements for the performance bond outlined in this License and also meets all of the requirements of the permit; and (ii) the City approves the combining of bonds, such approval not to be unreasonably withheld. 15. Nondiscrimination Licensee, for itself, its successors, and assigns does hereby covenant and agree to comply with all civil rights and anti-discrimination requirements of Laws applicable to City-owned infrastructure, including, without limitation, chapter 49.60 RCW and Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally assisted programs of the U.S. Department of Transportation-Effectuation of Title VI of the Civil Rights Act of 1964, and as these regulations may be amended. If any of the above nondiscrimination covenants are breached, the City may terminate the License and to re-enter and repossess the City-owned infrastructure, and hold the same as if this License had never been made or issued. 16. Site License Addendum A121210cation Process 16.1 Prior to installation of any Facilities on a City-owned infrastructure, Licensee shall first obtain a Site License Addendum executed by the City. To request a Site License Addendum, Licensee shall submit the Site License Addendum in the form attached as Exhibit A, executed by Licensee and accompanied by all of the submittal requirements specified by the City. The Site License Addendum must include Licensee's certification that the plans submitted comply with the Design Requirements. The Public Works Director or designee, is authorized to execute a Site License Addendum provided that all submittal requirements have been met. 16.2 The City may in its reasonable discretion require Licensee to make design modifications in order to comply with the Design Requirements, to address safety concerns, or applicable contractual, regulatory, or legal requirements or may ask additional questions as necessary to determine feasibility of use of the City-owned infrastructure. 16.3 If the City receives more than one Site License Addendum for the same City Pole, then the City Pole shall be awarded to the first Site License Addendum signed by both parties and for which Licensee has submitted the first payment of Rent or Alternate Rent. 17. Default: City Remedies 17.1 Default. The following occurrences will constitute an "Event of Default" by Licensee, if any such occurrence continues beyond the applicable notice and cure period set forth in Section 19: 17.1.1 Failure to Pay. Licensee fails to pay any sum, including Rent or Master License Agreement taxes, due under this License upon the due date. 17.1.2 Abandonment. Licensee's failure to remove Facilities as further described in Section 21.2. 17.1.3 Insolvency. Immediately, upon written notice, if a receiver is appointed to take possession of Licensee's assets, Licensee makes a general assignment for the benefit of creditors, or Licensee becomes insolvent or takes a suffers action under the Bankruptcy Act. Waiver or acceptance by the City of any default of the terms of this License by Licensee shall not operate as a release of Licensee's responsibility for any prior or subsequent default. 17.1.4 Lapsed Governmental Approvals. Licensee fails to maintain or obtain any Governmental Approvals required to install and operate small cell facilities and continues to operate such facilities. 17.1.5 Failure to Maintain Insurance. Licensee fails to maintain appropriate insurance as required pursuant to Exhibit D. 17.1.6 Prohibited Assignment. Licensee assigns this License in violation of Section 11. 17.1.7 Interference. Licensee operates or maintains its Facilities in violation of the interference obligations in Section 8. 17.1.8 Unauthorized Construction. Licensee constructs or installs Facilities without first obtaining a Site License Addendum. 17.1.9 Failure to Construct or Install Per Approved Design. Licensee constructs, installs or modifies any Facilities in any manner which does not comply with the requirements of the applicable Site License Addendum or modification rights as set forth in Section 7.6. 17.1.10 Ceases to Provide Telecommunications Services. That Licensee ceases to operate as a provider of telecommunications services under federal law and fails to terminate this License and the existing Site License Addendums. 17.1.11 Other Defaults. Licensee violates any material agreement, term or covenant of this License. 17.2 City Remedies. Subject to the cure period described in Section 19, the City shall have the following remedies upon an Event of Default. The City's rights and remedies under this License shall be cumulative, and none shall exclude any other right or remedy allowed by law. 17.2.1 Continuation of License. Without prejudice to its right to other remedies, the City may continue this License and applicable Site License Addendums in effect, with the right to enforce all of its rights and remedies, including the right to payment of Rent and other Master License Agreement charges as they become due for the remainder of the then-existing term. The City may elect, in its discretion, upon written notice to Licensee, to suspend processing or response of any/all Licensee requests, or granting of any/all approvals required of the City, with respect to any matter (or requested matter) pursuant to this License. 17.2.2 Termination of License. If Licensee's default is of such a serious nature in the City's sole judgment that the default materially affects the purposes of this License, the City may terminate this License. Termination of this License will affect the termination of all Site License Addendums issued under it automatically and without the need for any further action by the City. Upon termination of this License, Licensee will remain liable to the City for damages in an amount equal to the Rent and other sums that would have been owed by Licensee under this License for the balance of the year in which the termination is effective. 17.2.3 Termination of Site License Addendums. If an Event of Default specific to one or more Site License Addendums is not cured by Licensee within the applicable cure period, the City may terminate such specific Site License Addendum(s). 17.2.4Interest and Collection Costs on Past Due Monetary Obligations. If Licensee fails or refuses to pay any of its payment obligations due under this License (including without limitation any Site License Addendum) on the due date then Licensee is obligated to pay and shall immediately pay interest on amount due calculated at the lesser of 10% per annum or the highest rate of interest allowed under applicable law. Interest shall be calculated on a per day basis commencing on the due date and continuing until paid in full. If Licensee fails or refuses to pay any or all amounts due upon written demand then Licensee shall be liable to pay all collection costs and reasonable attorney's fees incurred with respect thereto. The accrual of interest on past due monetary obligations is automatic and does not require the giving of notice. 18. Termination of Site License Addendum In addition to the City's rights contained in Section 17 (upon the occurrence of an Event of Default), the parties have the following termination rights. 18.1 City's Termination Rights. Subject to the cure provision of Section 19, the City may terminate any Site License Addendum if the City determines that Licensee's exercise of its rights under this License: 18.1.1 Interferes with the City's use of the City-owned infrastructure and/or the structures on City-owned infrastructure for the municipal purposes for which the City owns and administers such structures/site, which may include the necessity to widen a street or Master License Agreement for other municipal projects that result in removing the streetlight; 18.1.2 Poses a threat to public health or safety, or constitutes a public nuisance; or 18.1.3 Unreasonably interferes with the use of the City-owned infrastructure or attached equipment by a governmental agency with which the City has an agreement to provide services to the City, e.g., PSERN or its successor entity. 18.1.4 Notwithstanding the above and not subject to the cure provisions of Section 19, the City shall have the following additional termination rights: a. The City may, in its sole discretion, determine that exigent circumstances require immediate removal of Facilities from City-owned infrastructure. Such exigent circumstances may only include reasons of public health, safety or the need to provide street lighting. Licensee shall remove its Facilities within 48 hours, unless a longer period is provided by the City. The applicable Site License Addendum will terminate upon the removal of the Facilities. b. The City may, in its sole discretion, remove any City-owned infrastructure that it determines is unnecessary for its municipal purposes. If the City decides to remove City-owned infrastructure, it shall provide Licensee with at least 120 days' written notice to remove its Facilities. The applicable Site License Addendum will terminate upon the removal of the Facilities. 18.2 Termination by Licensee. Licensee has the right to terminate any Site License Addendum upon 90 days' notice if Licensee determines in its sole discretion that it desires to discontinue use of the City-owned infrastructure for any reason. 18.3 General Termination Rights. 18.3.1 Condemnation. If all or any portion of the City-owned infrastructure is needed, taken, vacated, conveyed, or condemned for any public purpose such that Licensee cannot use its Facilities on the City-owned infrastructure, either party may terminate the applicable Site License Addendum. All proceeds from any taking or condemnation of the Site or City-owned infrastructure shall belong and be paid to the City. Licensee shall have all rights to its Facilities, which shall not be included in any taking or condemnation. 18.3.2 Fire or Casualty. If all or any portion of the City-owned infrastructure is so damaged by fire or other casualty that it cannot reasonably be Master License Agreement expected to be repaired within 90 days following the date of such damage, either party may terminate the applicable Site License Addendum upon 90 days' written notice to the other party. 19. Cure If there is a breach by a Party with respect to any provisions or obligations of this License, the non-breaching Party shall give the breaching Party written notice of the breach. After receipt of this written notice, the breaching Party shall have 30 days in which to cure any breach. If the breach cannot reasonably be cured within 30 days, the breaching party shall not be in default if the party has commenced the cure within the 30-day period and continuously and diligently pursues the cure to completion. 20. Relocation 20.1 Relocation Reauirement. Licensee understands and acknowledges that the City may require Licensee to relocate, temporarily or permanently, one or more of its Facilities when reasonably required by the City by reason of traffic conditions, public safety, dedications of new Rights-of-Way, the establishment and improvement of new Rights-of-Way, widening or improvement of existing Rights-of-Way or both, street vacations, freeway construction, change or establishment of street grade, or the construction of any public improvement or structure by any governmental agency acting in a governmental capacity or as otherwise necessary for the operations of the City or other governmental entity to meet adopted land use or design standards. Collectively, such matters are referred to within this License with the term "Public Improvement." The City may also require relocation because the Facilities interfere with or adversely affect proper operation of City-owned poles, traffic signals, communications, or other City-owned infrastructure or to protect or preserve the public health or safety. 20.2 Relocation. If the request for relocation from the City arises from a Public Improvement, in which structures or poles are either replaced or removed, then Licensee shall relocate or remove its Facilities as required by the City, and at no cost to the City, subject to the procedure in this Section 20. Licensee acknowledges and agrees that the placement of Facilities on City- owned structures does not convey an ownership interest in these structures. 20.3 Locate. Upon written request of the City, or a third party performing work in the Right-of-Way, and in order to facilitate the design of City street and Right- of-Way improvements, Licensee agrees, at its sole cost and expense, to locate, and if determined necessary by the City, to excavate and expose its Facilities for inspection so that the Facilities' location may be taken into account in the improvement design. The decision as to whether any Facilities need to be relocated in order to accommodate the Public Improvement shall be made by the City upon review of the location and construction of Licensee's Facilities. The City shall provide Licensee at least 30 days' written notice prior to any excavation or exposure of Facilities. Licensee shall be Master License Agreement responsible for any delays due to failure to locate its Facilities when requested, except that Licensee shall not be responsible for delays or damages due to circumstances beyond the control of Licensee. 20.4 Notice and Relocation Process. If the City determines that the Public Improvement necessitates the relocation of Licensee's existing Facilities, the City shall: 20.4.1 At least 90 days prior to commencing the project, provide Licensee with written notice requiring such relocation and a date by which relocation must be complete; provided, however, that in an emergency situation, defined for purposes of this Franchise as a condition posing an imminent threat to property, life, health, or safety of any person or entity, the City shall give Licensee written notice as soon as practicable; and 20.4.2 At least 90 days prior to commencing the project, provide Licensee with copies of pertinent portions of the plans and specifications for the improvement project and a proposed location for Licensee's Facilities so that Licensee may relocate its Facilities on other City-owned infrastructure to accommodate the improvement project; and 20.4.3 After receipt of such notice and such plans and specifications, Licensee shall complete relocation of its Facilities consistent with the date for relocation established in accordance with this Section 20 at no charge or expense to the City, except as otherwise provided by law. Relocation shall be accomplished in such a manner as to accommodate the Public Improvement. 20.5 Alternative Arranciements. Licensee may make its own appropriate arrangements in response to a request for relocation of its Facilities from a person or entity other than the City, so long as any improvements being constructed are not or will not become City-owned, operated or maintained; except that any such arrangements shall not unduly delay the Public Improvement and the proper permits are obtained. In this case, the Site License Addendum may be terminated in accordance with Section 17.2.3. 20.6 Contractor Delay Claims. Licensee shall be solely responsible for the actual and reasonable out-of-pocket costs incurred by the City for delays in a Public Improvement to the extent the delay is caused by or arises out of Licensee's failure to comply with the final schedule for the relocation (other than as a result of a Force Majeure Event or causes or conditions caused by the acts or omissions of the City or any third party unrelated to Licensee; Licensee vendors and contractors will not be considered unrelated third parties). Such out-of-pocket costs may include, but are not limited to, payment to the City's contractors and/or consultants for increased costs and associated court costs, interest, and reasonable attorney's fees incurred by the City to the extent directly attributable to such Licensee's caused delay in the Public Master License Agreement Improvement. 20.7 Indemnification. Licensee will indemnify, hold harmless, and pay the costs of defending the City, in accordance with the provisions of Section 13. 20.8 City's Costs. If Licensee fails, neglects, or refuses to remove or relocate its Facilities as directed by the City following the procedures outlined in this Section 20, the City may perform such work or cause it to be done, and the City's actual and reasonable costs shall be paid by Licensee. The City may also terminate this License and repossess the City-owned infrastructure and hold the same as if this License had never been made or issued in accordance with Section 16.1. 20.9 Survival. The provisions of this Section 20 shall survive the expiration or termination of this Franchise during such time as Licensee continues to have Facilities on City-owned infrastructure. 20.10 No Relocation. Licensee acknowledges that the signing of this License does not entitle Licensee to assistance under the Uniform Relocation and Real Property Acquisition Policy (chapter 8.26 RCW). 21. Removal of Facilities U12on Termination 21.1 Within 60 days after the expiration or earlier termination of a Site License Addendum or this License, unless a shorter window of time applies under this License, upon request by the City, Licensee shall, at Licensee's sole expense, replace the Combination Pole with a replacement pole meeting the standard design and construction criteria of the City. Rent shall continue to accrue during any time period in which Licensee continues to have Facilities on the City-owned infrastructure. This obligation shall survive the expiration or earlier termination of this License. Any Facilities which are not removed within 180 days, shall automatically become the property of the City. Any actual and reasonable costs incurred by the City in safeguarding such Facilities or removing the Facilities shall be reimbursed by Licensee. Nothing within this Section 21 prohibits the City from compelling Licensee to remove Facilities through judicial action when Licensee has not been permitted to abandon the Facilities in place. 21.2 The Facilities, in whole or in part, may not be abandoned by Licensee without written approval by the City. Any plan for abandonment or removal of Facilities must be first approved by the City, and all necessary permits must be obtained prior to such work. Notwithstanding the above, the City may permit Facilities to be abandoned and placed in such a manner as the City may prescribe. Upon permanent abandonment, Licensee shall execute such necessary documents to transfer title to the City. 21.3 Prior to removal of its Facilities, Licensee shall notify the City in writing when the Facilities have been removed, and comply with any other requirements under Law. Master License Agreement 21.4 The provisions of this Section 21 shall survive the expiration, revocation, or termination of this License. 22. Records; Audits 22.1 Information Request. 22.1.1 The City may require such information, records, and documents from Licensee from time to time as are appropriate to reasonably monitor compliance with the terms of this License. This required information may include, but is not limited to, any installation inventory, location of existing or planned Facilities, maps, plans, operational data, and as-built drawings of Licensee's Facilities in the City. Licensee shall warrant the accuracy of all information provided to the City. 22.1.2 Licensee shall provide such records, at no cost to the City, within thirty (30) days of a written request by the City 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, but no longer than sixty (60) days. If any person other than Licensee maintains records on Licensee's behalf, Licensee shall be responsible for making such records available to the City. 22.2 Current Inventory. Licensee shall maintain a current inventory of Facilities throughout the Term of this License. Licensee shall provide to the City a copy of the inventory report by December 31 of each year and within 30 days of a reasonable request by the City, which request shall be no more than once per year. The inventory report shall include GIS coordinates, date of installation, type of pole used for installation, description/type of installation for each Facility and photographs taken before and after the installation of the Facility and taken from the public street. 22.3 Public Records Act. 22.3.1 Licensee acknowledges that information submitted to the City is subject to the Washington Public Records Act, Chapter 42.56 RCW, and is open to public inspection, subject to any exceptions permitted by law (i.e., unless an exemption applies). 22.3.2 Licensee may identify documents submitted to the City that Licensee believes are non-disclosable, such as trade secrets. Licensee is responsible for clearly and conspicuously identifying the work as confidential or proprietary, and shall provide a brief written explanation as to why such information is confidential and how it may be treated as such under state or federal law. The City agrees to keep confidential any proprietary or confidential books or records to the extent permitted by law. Master License Agreement 22.3.3 If the City receives a public records request under Chapter 42.56 RCW or similar law for the disclosure of the documents or any part of the documents Licensee has designated as confidential, trade secret, or proprietary, the City shall provide Licensee with written notice of the request, including a copy of the request prior to disclosure so that Licensee can take appropriate steps to protect its interests. Nothing in this Section 22.3 prohibits the City from complying with Chapter 42.56 RCW or any other applicable law or court order requiring the release of public records, and the City shall not be liable to Licensee for compliance with any law or court order requiring the release of public records. The City will not assert an exemption from disclosure or production on Licensee's behalf. 22.3.4 The City shall comply with any injunction or court order obtained by Licensee that prohibits the disclosure of any such confidential records. If a higher court overturns an injunction or court order and such higher court action is or has become final and non-appealable, Licensee shall reimburse the City for any fines or penalties imposed for failure to disclose such records within 45 days of a request from the City, unless additional time is reasonably necessary under the circumstances and is agreed to by the parties. 23. Miscellaneous 23.1 Entire Agreement. This License constitutes the entire understanding and agreement between the parties as to the subject matter herein and no other agreements or understandings, written or otherwise, shall be binding upon the parties upon execution of this License, except that any subsequently adopted City policies and procedures for telecommunications/communications license agreements, Site License Addendums and final applicable permits shall be binding on the parties. 23.2 Modifications. The City and Licensee hereby reserve the right to alter, amend, or modify the terms and conditions of this License upon written agreement of both parties to such alteration, amendment or modification. 23.3 Non-Waiver. The failure of the City to insist upon strict performance of any of the covenants and agreements of this License or to exercise any option in any one or more instances, shall not constitute a waiver or relinquishment of any such covenants, agreements or option or any other covenants, agreements or option. 23.4 Police Powers and City Ordinances. Nothing within this License restricts the City's ability to adopt and enforce all necessary and appropriate ordinances regulating the performance of the conditions of this License, including any valid ordinance made in the exercise of its police powers in the interest of public safety and for the welfare of the public. The City has the authority at all times to reasonably control by appropriate regulations the Master License Agreement location, elevation, manner of construction and maintenance of Facilities by Licensee, and Licensee shall promptly conform with all such regulations unless compliance would cause Franchisee to violate other requirements of law. In the event of a conflict between the provisions of this License and any other generally applicable ordinance(s) enacted under the City's police power authority, such other ordinances(s) shall take precedence over the provisions set forth in this License. 23.5 Conflicts. If any provision of this License or the applicable Site License Addendum conflicts or inconsistencies with the terms, conditions or requirements of the Design Standards, then the stricter term shall have precedence. 23.6 Cooperation in Execution of Subseauent Documents. The City and Licensee agree to cooperate in executing any documents necessary to protect the rights of the parties granted by this License. 23.7 Headings. The headings to paragraphs or sections of this License are for convenience only, and shall have no effect on the construction or interpretation of any paragraph hereof. 23.8 Notices. Except as otherwise designated in this License, any notice, request, demand, statement, or consent herein required or permitted to be given by either party to the other hereunder, shall be in writing, signed by or on behalf of the party giving the notice and addressed to the other at the address as set forth in Exhibit C. Each party may by notice in writing change its address for the purpose of this License, which address shall thereafter be used in place of the former address. Each notice, demand, request, or communication which shall be mailed to any of the aforesaid shall be deemed sufficiently given, served, or sent for all purposes hereunder (i) two business days after it shall be mailed by United States registered or certified mail, postage prepaid and return receipt requested, in any post office or branch post office regularly maintained by the United States Postal Service, (ii) upon personal delivery, or (iii) one business day after deposit with any recognized commercial air courier or express service. Any communication made by e-mail or similar method shall not constitute notice pursuant to this License. 23.9 Authority to Execute. Any individual executing this License, represents and warrants that he or she is duly authorized to execute and deliver this License on behalf of such party and this License is binding upon such party in accordance with its terms. 23.10 Executed in Counterparts. This License may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute but one instrument. 23.11 Governing Law and Venue. This License shall be governed and construed by and in accordance with the laws of the State of Washington, without reference to its conflicts of law principles. The venue for any dispute related to Master License Agreement this License shall be the United States District Court for the Western District of Washington, or King County Superior Court, without waiver for any right to removal. 23.12 Binding on Successors. This License shall be binding upon and inure to the benefits of the heirs, executors, administrators, successors and assigns of the parties. 23.13 No Recording. Licensee shall not record any documents (such as, for example, a memorandum, lien, assignment or security interest) against the City's title without the City's express prior written approval which it may withhold in its sole discretion. 23.14 Business License. Prior to constructing any Facilities or providing services within the City, Licensee shall obtain a business and/or utility license from the City. 23.15 Severability. The provisions of this License shall be deemed severable and if any portion shall be held invalid, illegal or unenforceable for any reason, the remainder of this License shall be effective and binding upon the parties. 23.16 No Third Party Beneficiaries. It is not intended by any of the provisions of this License 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 License. 23.17 Force Majeure. Time periods for performance under this Agreement shall be deemed extended day for day for time lost attributable to any delay resulting from any Event of Force Majeure. An "Event of Force Majeure" means any act of God, strike or material or labor shortage, or other events, if the occurrence was not reasonably foreseeable by the party and is beyond the reasonable control of the party whose performance is required under the License. 24, Notice Any Notice or information required or permitted to be given to the parties under this Franchise agreement may be sent to the following addresses unless otherwise specified: Master License Agreement If to Licensee (including invoices): If to the City: New Cingular Wireless PCS, LLC CITY OF KENT Attn: Tower Asset Group - Lease Attn: City Clerk Administration 220 Fourth Avenue South Re: Wireless Installation on Public Kent, WA 98032 Structures (City of Kent) (WA) FA No.: 1025 Lenox Park Blvd. NE 3rd Floor Atlanta GA 30319 With a copy to the AT&T Legal Department: New Cingular Wireless PCS, LLC Attn: AT&T Legal Dept. - Network Operations Re: Wireless Installation on Public Structures (City of Kent) (WA) FA No: 208 S. Akard Street Dallas TX 75202-4206 Master License Agreement IN WITNESS WHEREOF, the parties hereto have executed this License on the respective dates below indicated. LICENSEE: New Cingular Wireless CITY OF KENT: PCS, LLC By: AT&T Mobility Corporation By: Its: Manager sig ature Print Name:_ af►a4kvi4 4- ituc, iY Its By: -- k r e- a c5 �f lre K (signature) ' DATE: _,,, Print Name: Its 4 (title) DATE: 4 - � - ZQ APPROVED AS TO FORM: ATTES-N oe : y Kent Law Department Kent City Clerk Master License Agreement Exhibit A Site License Addendum This Site License Addendum ("Addendum"), dated between the City of Kent, ("City") and New Cingular Wireless PCS, LLC ("Licensee"): 1. Addendum. This is a Site License Addendum as referenced in the Master License Agreement between the City and Licensee, dated ("License"). The purpose of the Site License Addendum is for the Licensee to reserve one or more City-owned infrastructure at the following location(s): This Addendum is subject and subordinate to the terms and conditions of the License. In the event of a contradiction, modification or inconsistency between the terms of the License and this Addendum, the terms of the License shall govern. Unless otherwise indicated, terms used in this Addendum have the same meaning as set forth in the License. 2. Term. The term of this Addendum shall commence on the Rent Commencement Date and shall terminate upon the License termination unless earlier terminated by a party consistent with the License. Upon termination of the License and, consequently, this Addendum, Licensee shall comply with all applicable License terms and conditions. 3. Fees/Payments Due. 3.1 Rent. Licensee shall pay Rent for Facilities to be installed on each City- owned infrastructure pursuant to this Site License Addendum in accordance with the License. 3.2 Additional Fees. In addition, Licensee shall pay such additional fees and charges, including Administrative or Permit Fees, such as are required pursuant to the terms of the License. Master License Agreement This Addendum is not valid or enforceable until fully executed by authorized representatives of both parties. LICENSEE: NEW CINGULAR CITY OF KENT: WIRELESS PCS, LLC By: AT&T Mobility Corporation By: Its: Manager (signature) Print Name: By: Its (signature) Print Name: DATE: Its (title) DATE: APPROVED AS TO FORM: ATTEST: Kent Law Department Kent City Clerk Master License Agreement Exhibit B Leasehold Excise Tax Exemption To be inserted, if applicable Master License Agreement Exhibit C Contact Information/Notices If to City: If to Licensee: City of Kent New Cingular Wireless PCS, LLC 220 Fourth Avenue SAttn: Tower Asset Group - Lease Kent, WA 98032 Administration ATTN: Transportation Director Re: Wireless Installation on Public Structures (City of Kent) (WA) 1025 Lenox Park Blvd. NE 3rd Floor tlanta, GA 30319 With copies to: With copies to: New Cingular Wireless PCS, LLC City of KentAttn: AT&T Legal Dept. - Network 220 Fourth Avenue S Operations Kent, WA 98032 Re: Wireless Installation on Public ATTN: City Attorney Structures (City of Kent) (WA) 208 S. Akard Street City of Kent Dallas, TX 75202-4206 220 Fourth Avenue S Kent, WA 98032 ATTN: City Engineer For Emergencies: For Emergencies: City of Kent 220 Fourth Avenue S Kent, WA 98032 City shall notify Licensee via email ATTN: with names, address, phone, email o person(s) to contact in case o emergency NOC: 1-800-832-6662 Master License Agreement Exhibit D Insurance Requirements The Licensee shall procure and maintain for the duration of this License insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Licensee, or its agents, representatives, employees or subcontractors. Such insurance certificates and required endorsements evidencing the insurance required below shall be provided to the City upon execution of this License. The cost of such insurance shall be paid by the Licensee. Insurance shall meet or exceed the following limits and shall be maintained for the Term and so long as Licensee has Facilities on any City-owned infrastructure. A. Minimum Insurance. 1. Commercial General Liability coverage with limits of $3,000,000 per occurrence / $6,000,000 annual aggregate. 2. Stop Gap/Employers Liability coverage with limits of $2,000,000 per accident/disease policy limit. 3. Commercial Automobile Liability coverage with combined single limits of $2,000,000 per each accident for bodily injury and property damage covering all owned, non-owned, and hired vehicles. 4. Worker's Compensation coverage or qualified self-insurance as required by the Industrial Insurance Laws of the State of Washington. 5. Excess Liability with limits of $15,000,000 per occurrence and in the aggregate. The Licensee may use any combination of primary and excess to meet required limits. B. Other Provisions. Required Commercial General Liability and the Excess Liability policies shall: 1. Be endorsed to include the City, its officials, employees and volunteers as additional insureds as their interests may appear under the Agreement. A blanket insurance additional insured endorsement is acceptable; 2. State the policy number; name of insurance Licensee; name and address of the agent or authorized representative; name and address of insured; project name; policy expiration date; and specific coverage amounts; 3. Provide that Licensee's Commercial General Liability insurance policy is primary as respects any other valid or collectible insurance that the City may possess, including any self-insured retentions the City may have; and any other insurance the City does possess shall be considered excess insurance only and shall not be required to contribute with this insurance; Master License Agreement 4. That Licensee's Commercial General Liability insurance policy waives any right of recovery the insurance Licensee may have against the City; and 5. Endeavor to provide that coverage shall not be canceled except after 30 days' written notice has been given to the City. Further, within 5 days prior to send cancellation or intent not to renew, Licensee shall obtain and furnish to City replacement insurance policies meeting the above requirements. Licensee shall provide at least 30 days written notice of cancellation or nonrenewal of any required coverage that is not replaced. C. Acceptability of Insurers. Insurance shall be placed with insurers with a rating of A.M. Best & Licensee's Key Rating Guide of A Overall and a Financial Size Category of "VII." D. Verification of Coverage. Licensee shall furnish the City with certificates of insurance required by this License. The certificates are to be received by the City before work commences. E. Subcontractors. Subcontractors are to provide coverage which complies with the requirements with reasonable and prudent limits and practices of the City for the issuance of right of way use permits. F. Self-Insurance. As of the effective date of this License and the use granted herein, Licensee is not self-insured for any coverage other than worker's compensation (if applicable). Should Licensee wish to become self-insured for any other required coverage at the levels outlined in this License at a later date, Licensee must provide the City with thirty (30) days advanced written notice of its intent to self-insure. In order to self-insure, Licensee shall comply with the following: (i) Licensee or its parent Licensee shall maintain throughout the term of this License a net worth of at least $250,000,000; (ii) Licensee shall provide the City, upon written request, a letter outlining the current equity balance of Licensee (or parent entity); (iii) Licensee is responsible for all payments within the self- insured retention, if any; and (iv) Licensee assumes all defense and indemnity obligations as outlined in this License. Master License Agreement