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ORD 19-011ORDINANCE NO. 19-011 AN ORDINANCE GRANTING NEW CINGULAR WIRELESS PCS, LLC A LICENSE TO ATTACH WIRELESS INSTALLATIONS ON CERTAIN PUBLIC STRUCTURES AND TO UTILIZE CERTAIN PUBLIC INFRASTRUCTURE WITHIN THE CITY OF CAMAS, WASHINGTON. WHEREAS, New Cingular Wireless PCS, LLC ("New Cingular") has been granted a non- exclusive franchise with the City of Camas for a period of ten years for the operation of wireless communications facilities within the City right-of-way pursuant to Ordinance No. 19-01 0; and WHEREAS, pursuant to Camas Municipal Code 18.35.040E, additional ancillary agreements may be required associated with the attachment of wireless installations to public structures and for the utilization of infrastructure; and WHEREAS, New Cingular and the City have negotiated the terms of a "License Agreement for Wireless Installations on Public Structures" attached hereto as Exhibit "A". NOW, THEREFORE, the Council of the City of Camas do ordain as follows: Section I Grant of License The License Agreement for Wireless Installations on Public Structures attached hereto as Exhibit "A" is hereby granted according to its terms. The Mayor is hereby authorized to execute said License Agreement on behalf of the City of Camas. Section II This Ordinance shall take force and be in effect five (5) days from and after its publication according to law. tJ PAS SED BY the Council and APPROVED by the Mayor this c1L_ day of SIGNE~"-~ ~ Mayor Clerk APPROVED as to form: City Attorney LICENSE AGREEMENT FOR WIRELESS INSTALLATIONS ON PUBLIC STRUCTURES This License Agreement For Wireless Installations on Public Structures ("Agreement") is made and entered into as of the Effective Date by and between the City of Camas ("Licensor") and NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company ("Licensee"). RECITALS WHEREAS, Licensee seeks to attach Wireless Installations to certain Structures and to utilize certain Infrastructure upon the terms and conditions set forth below; WHEREAS, Licensor is willing to accommodate Licensee's non-exclusive use of such Structures and Infrastructure in accordance with Laws and the terms and conditions of this Agreement; and WHEREAS, concurrently with the execution of this Agreement, Licensor and Licensee are entering into a Franchise Agreement pursuant to which Licensee may construct, maintain, operate, replace and repair wireless communications facilities in, along, under, through and below Licensor's public rights-of-way; and WHEREAS, any capitalized terms in this Agreement shall have the meaning ascribed to them in Exhibit 1 attached hereto and incorporated herein by reference. NOW, THEREFORE, FOR VALUABLE CONSIDERATION, receipt of which is hereby conclusively acknowledged, the Parties agree as follows: 1. GRANT OF LICENSE 1.1 Grant of License. To the extent not already governed by Laws, Licensor hereby grants Licensee a license for Licensee's use of the Licensed Site as necessary to utilize, replace or upgrade Licensor's Structures and Infrastructure, as provided herein and as provided in the individual Site License Agreements signed by the Parties pursuant to this Agreement. The license granted herein is revocable only in accordance with the terms and conditions of the Agreement. No use of Licensor's Structures or Infrastructure under this Agreement shall create or vest in Licensee any ownership or property rights in such Structures or Infrastructure. Nothing in this Agreement grants Licensee the right to make any Wireless Installation, or to install other facilities, including Wireless Installations, that do not conform to this Agreement. 1.2. Permitted Use. Licensee may use Licensor's Structures and Infrastructure for the Permitted Use, subject to the terms and conditions of this Agreement. 2. TERM 2.1 Agreement Term. This Agreement shall commence as of the Effective Date, and, if not lawfully terminated sooner, remain in full force and effect for the Agreement Initial Term. The Agreement will be automatically extended for three (3) successive five (5) year renewal terms, unless: (i) Licensee provides Licensor written notice of termination at least ninety (90) days prior to the expiration of the Agreement Initial Term or the then applicable renewal term, as the case may be, or (ii) with respect to the second renewal term or third renewal term, Licensor provides Licensee notice of its intent not to renew at least at least three hundred sixty five (365) days prior to the expiration of the first renewal term or second renewal term, as the case may be. 2.2 Site License Agreement Term. (a) The initial term for each individual Site License Agreement shall commence on the Commencement Date and shall be for the Site License Initial Term. Promptly following Licensee's receipt of Licensor's written request, the Parties shall confirm in an Acknowledgment the Commencement Date and expiration date of the Site License Initial Term. (b) Each Site License Agreement shall be automatically extended for up to three (3) successive Site License Renewal Terms unless Licensee notifies Licensor in writing of Licensee's intent License Agreement for Wireless Installations on Public Structures 11.16.18 not to renew the Site License at least thirty (30) days prior to the expiration of the Site License Initial Term or the then applicable Site License Renewal Term, as the case may be. (c) Notwithstanding anything herein, no Site License Agreement which was signed during the Term of the Agreement shall survive beyond the expiration or earlier termination of this Agreement, it being the intent of the parties that each Site License Agreement shall be coterminous with this Agreement, and upon the expiration or earlier termination of this Agreement, Licensee shall submit to Licensor for its review and approval, which shall not be unreasonably withheld or delayed, Licensee's plan for abandonment or removal its Wireless Installations then attached to Licensor's Structures. 3. CHARGES, BILLING AND PAYMENT 3.1 Annual Fee. (a) Licensee shall pay Licensor a Fee of Two Hundred Seventy and No/100 Dollars ($270.00) per Wireless Installation located in Licensor's right-of-way for each year of the Site License Term. The Fee is per Wireless Installation, and inG.ludes all Structure, Infrastructure, appurtenant equipment and facilities used in connection with each Wireless Installation. Except in the event of a voluntary termination of a Site License Agreement pursuant to Section 13.4(b) below, the Fee will be prorated for any partial year based on a 360-day calculation. (b) The Fee may be revised once per calendar year to an amount that is calculated pursuant to the terms and conditions of the FCC 2018 Order, calculated pursuant to a cost study which has been reviewed, adopted and approved by Licensor's City's Council and is not subject to further appeals or subject to a complaint before a competent regulatory agency or court. After the revised Fee is final as described in the preceding sentence, Licensor shall provide Notice to Licensee of the Fee in accordance with the notice requirements of this Agreement. The Fee payable under this Agreement will adjust to Licensor's Cost starting with Fee payments that are due at least 90 days after the date of such notice. (c) Licensor hereby represents and warrants as of the date hereof and covenants and agrees from and after the date hereof that none of the rates or fees offered to any other entity with respect to Wireless Installations is or will be more favorable than the Fee under this Agreement. If Licensor agrees to a rate or fee that is more favorable than the Fee under this Agreement, Licensee shall be entitled under this Agreement to such rate or fee on and after the date such rate or fee becomes effective. 3.2 Timing of Payment. Licensee shall make the first payment of the Fee under any Site License Agreement within ninety (90) days of the full execution of the Acknowledgment. Thereafter, the Fee shall be paid on or before each anniversary of the Commencement Date during the Site License Term. 3.3 Billing and Payment Generally. All bills and other requests for payment to Licensor under this Agreement (other than the payment of the Fee) shall be presented in writing to Licensee and accompanied with reasonable substantiation of the costs incurred by Licensor. Properly presented invoices shall be paid by Licensee within ninety (90) days of receipt of invoice accompanied by such substantiation. All charges payable under this Agreement shall be billed by Licensor within one (1) year from the end of the calendar year in which the charges were incurred. Any charges beyond such period shall not be billed by Licensor, and shall not be payable by Licensee. 4. SITE LICENSE PROCESS 4.1 Site License Application. Subject to Section 4.4 below, before installing any new or additional Wireless Installation onto any Structure or utilizing any Infrastructure, Licensee shall apply for a Site License Agreement from Licensor using a Site License Application in the form attached as Exhibit 2. Licensee will identify in the Site License Application any Licensor Work it believes needs to be performed in connection with Licensee's use of the Structure and/or Infrastructure. 4.2 Processing of Site License Application. Unless Laws provide otherwise, Licensor will take reasonable steps to notify Licensee of the specific deficiencies in any Site License Application within ten (10) days of its submission. If the initial Site License Application is incomplete, the review timeframe will License Agreement for Wireless Installations on Public Structures 11.16.18 2 be reset upon resubmittal of the missing documents. If a resubmitted application is deemed incomplete, the review timeframe will pause (not reset) until the missing information is submitted. Licensor will take reasonable steps to approve or reject each Site License Application within sixty ( 60) days of its submission for sites that have existing Poles, and ninety (90) days for Sites that do not have an existing Pole. Licensor may, on Technical Grounds, deny all or part of a Site License Application, or limit the number and/or technical characteristics (e.g., weight or size) of any Wireless Installation on any Structure or Infrastructure. In the event Licensor determines, based upon Technical Grounds, that inadequate space or structural capacity exists on its Structure(s) or inadequate space or capacity exists on its Infrastructure to accommodate any proposed Wireless Installation, Licensee may elect to have such Structure(s) replaced or upgraded as part of Licensor Work or such Infrastructure replaced or upgraded as part of Licensor Work, at Licensee's sole expense, with Structure(s) or Infrastructure with adequate space and structural capacity to accommodate the proposed Wireless Installation. In the event of rejection on Technical Grounds of a Site License Application, Licensor shall provide a written explanation to Licensee of the basis for the rejection. In the event that Licensor approves Licensee's Site License Application, then the Parties shall promptly proceed in good faith to sign and deliver a Site License Agreement for the Wireless Installation in the form attached as Exhibit 3 fully consistent with Licensor's approval of the Site License Application. 4.3 Consolidated Site License Application. For small cell networks involving Wireless Installations on multiple Structures and/or Infrastructure, Licensee may, in its discretion, file a consolidated application for utilization of multiple Structures and Infrastructure, and upon approval by Licensor, the Parties shall enter into a separate Site License Agreement for each approved Structure and/or Infrastructure location. 4.4 Modifications and Replacements. Except for any Wireless Installation installed upon a decorative Structure or upon a Structure located within either a scenic or historic district, subsequent to the original Wireless Installation approved by Licensor, Licensee may, without submitting a new Site License Application, modify or replace all or a portion of the Wireless Installation so long as such modification or replacement (a) results in the installation of equipment within the spaces designated or depicted in the Site License Application and (b) the resulting installation does not increase the load on the applicable Structure or the utilization of the Infrastructure beyond the loading or utilization, if any, that was established in the original Site License Application. Licensee shall still be required to notify the Licensor of the work and obtain any other permits required by the Camas Municipal Code to complete the work. 4.5 Pre-Approved Wireless Installations. Once a Wireless Installation design has become a Pre-Approved Wireless Installation for Licensee's use of a Structure and/or Infrastructure, then Licensee shall be allowed to install a Wireless Installation using any such Pre-Approved Wireless Installation without further land use review or approval by Licensor, subject to space and structural capacity and loading review by Licensor during the building permit review process. All other municipal reviews and approvals, including the execution of a Site License Agreement, building permits and right of way permits, shall apply to the installation of any Pre-Approved Wireless Installation. 4.6 Additional License and Permits Required by Camas Municipal Code. To the extent not in contravention of any applicable Law, Wireless Installations will be installed, operated and maintained by or on behalf of Licensee in accordance with applicable provisions of the Camas Municipal Code regulating wireless communications facilities. Licensee or its designee may be required to apply for and obtain additional permits from the Licensor, including but not limited to a permit issued by the Licensor for work performed within the rights-of-way, prior to Licensor issuing a Site License Agreement. Execution of this Agreement or any Site License Agreement does not constitute the issuance of a Permit. 5. LICENSOR WORK FOR STRUCTURES AND INFRASTRUCTURE 5.1 Licensor Work. At the time of approving the Site License Application, Licensor will advise Licensee whether Licensor is willing to perform Licensor Work identified in the Site License Application. If Licensor indicates it is willing to perform the Licensor Work, Licensor will provide Licensee with a Licensor Work Cost Estimate within fourteen (14) days of Licensor authorizing the Site License License Agreement for Wireless Installations on Public Structures 11.16.18 3 Agreement in accordance with Section 4.2, unless Laws provides a different deadline. Licensee shall have sixty ( 60) days from the receipt of such a Licensor Work Cost Estimate to accept the estimate, unless Laws provides a different deadline. 5.2 Licensor Work Time line. Licensor will begin Licensor Work promptly after it has received Licensee's Approved Licensor Work Cost Estimate and full payment thereof and complete all Licensor Work within sixty (60) days thereafter. IfLicensor does not indicate that it is willing to perform the Licensor Work, Licensee may perform the Licensor Work itself. 5.3 Licensor Work Reconciliation. If the actual and reasonable costs incurred by Licensor in completing a Licensor Work exceed the pre-paid Approved Licensor Work Cost Estimate, Licensee shall pay Licensor the shortfall amount of such costs within ninety (90) days of receipt of the invoice accompanied by reasonable substantiation. If such Licensor Work costs are less than the pre-paid Approved Licensor Work Cost Estimate, Licensor will refund the excess Licensor Work payment to Licensee within ninety (90) days following completion of the Licensor Work. No interest shall accrue on any Licensee overpayment or underpayment for Licensor Work 5.4 Costs To Rearrange/Adjust Facilities of Others. If a Person, other than Licensor, must rearrange or adjust any of its facilities to accommodate a new Wireless Installation, Licensee shall coordinate such activity at Licensee's sole expense; provided, however, that Licensee shall not be responsible for any third-party or Licensor costs necessary to correct third party or Licensor attachments that are non-compliant with Laws. 6. GENERAL LICENSEE OBLIGATIONS 6.1 Technical Requirements and Specifications. At its own expense, Licensee shall erect, install, repair and maintain its Wireless Installations in safe condition and good repair in accordance with (a) the requirements and specifications of Safety Codes; (b) Licensor's reasonable standards, and (c) any current or future rules or orders of the FCC, the State public utility commission, or any other federal, state or local authority having jurisdiction. Changes to the requirements, specifications, standards, rules and orders in subsections (a), (b) and (c) shall not apply retroactively unless required by Laws, and Licensor shall give at least sixty ( 60) days' written notice of changes to the standards in subsection (c). 6.2 No Liens. Licensee will not allow to exist any lien with respect to any Structure or Infrastructure or other Licensor property or facility resulting from any work performed by or on behalf of Licensee pursuant to this Agreement, or any act or claim against Licensee or any of its contractors, agents, or customers. Licensee will, at its sole expense, promptly bond or otherwise discharge any such lien within thirty (3 0) days of receipt of written notice form Licensor of the existence of such lien. 6.3 Worker Qualifications; Responsibility for Agents and Contractors. Each Party shall ensure that its employees, agents or contractors which perform work in furtherance of this Agreement are adequately trained and skilled to access Structures and Infrastructure in accordance with all applicable industry and governmental standards and regulations. 7. UTILITIES. Licensee shall install or cause to be installed a separate electric meter on a ground mounted pedestal or on Licensee's pad mounted equipment cabinet as required by the electric provider for the operation of its Equipment. Licensee shall be responsible for paying all charges for any electricity furnished by a utility Licensee furnishing service to the Equipment. 8. OPERATION AND MAINTENANCE 8.1 .. RF Emissions. Licensee's operation of its Wireless Installations will comply with all FCC regulations regarding RF emissions and exposure limitations. Licensee is allowed to install signage and other mitigation, such as a power cut-off switch on Structures, to allow workers and third parties to avoid excess exposure to RF emissions. Except in an Emergency, Licensor's authorized field personnel will contact Licensee's designated point of contact with reasonable advance notice, but in no event less than one ( 1) business day in advance, to inform Licensee of the need for a temporary power-shut-down. In the event of an unplanned outage or cut -off of power or an Emergency, the power -down will be performed with such License Agreement for Wireless Installations on Public Structures 11.16.18 4 advance notice as practicable. Once the work has been completed and the worker(s) have departed the exposure area, the party who accomplished the power-down shall restore power and inform Licensee as soon as possible that power has been restored. The Parties acknowledge that they understand the vital nature of Licensee's Wireless Installations and agree to limit the frequency of power-downs and to restore power as promptly as much as reasonably possible. 8.2 Interference. (a) Licensee will operate its Wireless Installations in compliance with all FCC regulations regarding Interference with the radio signal transmissions of Licensor and other third parties in or upon a Structure, which transmissions are operated in compliance with Laws. (b) Licensor will not grant after the date of this Agreement a permit, license or any other right to any third party if, at the time such third party applies to use a Structure or Infrastructure, Licensor knows that such third party's use shall cause Interference with the Licensee's existing Wireless Installations, Licensee's use of the Structure or Infrastructure, or Licensee's ability to comply with the terms and conditions of this Agreement. (c) Licensor will not, nor will Licensor permit its employees, invitees, agents or independent contractors to intentionally cause Interference with Licensee's existing Wireless Installations, Licensee's use of the Structure or Infrastructure, or Licensee's ability to comply with the terms and conditions of this Agreement. If Licensee reasonably determines that Interference is occurring, then Licensor will meet and confer with Licensee within five (5) days of Licensor'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 manner. 9. RELOCATION AND ABANDONMENT 9.1 Licensee agrees and covenants at no cost to Licensor, to relocate its Wireless Installations when requested to do so by Licensor for a public project, provided that, Licensee shall in all such cases have the privilege, upon approval by Licensor, to temporarily bypass, in the authorized portion of the same right of way any Wireless Installations required to be relocated. 9.2 If Licensor determines that a public project necessitates the relocation of Licensee's existing Wireless Installations, Licensor shall: (a) At least seventy-five (75) days prior to the commencement of such project, provide Licensee with written notice of known Wireless Installations requiring such relocation; and (b) Provide Licensee with copies of any plans and specifications pertinent to the requested relocation and a proposed temporary or permanent relocation for Licensee's Wireless Installations. (c) Meet with Licensee, if requested, within five ( 5) business days to discuss the scope, requirements and challenges of the relocation work. 9.3 After receipt of such notice and such plans and specifications and meeting, Licensee shall complete relocation of its Wireless Installations at no charge or expense to Licensor at least ten (10) days prior to commencement of the project. 9.4 Licensee may, after receipt of written notice requesting a relocation of its Wireless Installations, submit to Licensor written alternatives to such relocation. Licensor shall evaluate such alternatives and advise Licensee in writing as soon as practicable if any of the alternatives is suitable to accommodate the work that otherwise necessitates the relocation of the Wireless Installations. If so requested by Licensor, Licensee shall submit additional information to assist Licensor in making such evaluation. Licensor shall give each alternative proposed by Licensee as full and fair a consideration as the project schedule will allow. In the event Licensor ultimately determines that there is no other reasonable alternative, Licensee shall relocate its Wireless Installations as directed by Licensor and in accordance with this Section License Agreement for Wireless Installations on Public Structures 11.16.18 5 9 of this Agreement. 9.5 Licensor will notify Licensee as soon as practical of any Wireless Installations that are not identified during the design of the public project, but are discovered during the course of construction and need to be relocated. Licensee will work with Licensor to design and complete a relocation to facilitate the completion of the public project with minimum delay. 9.6 Failure to complete a relocation requested by Licensor in accordance with this Section 9 of this Agreement by the date included in the notice provided for thereby may subject Licensee to liquidated damages as provided in Section 14 of this Agreement, except in the event Licensee suffers a force majeure or other event beyond its reasonable control. Alternatively, should Licensor's project be delayed as a result of Licensee's failure to complete a relocation requested in accordance with this Section 9 of this Agreement and provided Licensee has not suffered a force majeure or other event beyond its reasonable control, then Licensor may, at Licensee's sole expense, have the Wireless Installations relocated by Licensor's contractor. In such event, Licensee shall pay the cost of relocation within 30 days of submission of an invoice by Licensor. This Section shall only apply if applied in a non-discriminatory manner and it is necessary for all Wireless Installations and appurtenances to be moved in the same location. 9. 7 The provisions of this Section of this Agreement shall in no manner preclude or restrict Licensee from making any arrangements it may deem appropriate when responding to a request for relocation of its Wireless Installations by any person other than Licensor, where the improvements to be constructed by said person are not or will not become Licensor-owned, operated or maintained, provided that such arrangements do not unduly delay a Licensor construction project. The provisions of this Agreement are subject to RCW 35.99.060. In the event of a conflict between the provisions of this Agreement and the RCW, the RCW shall control. 9.8 Licensee recognizes the need for Licensor to maintain adequate width for installation and maintenance of sanitary sewer, water and storm drainage utilities owned by Licensor and other public utility providers. Thus, Licensor reserves the right to maintain clear zones within the public right of way for installation and maintenance of said utilities. The clear zones for each right of way segment shall be noted and conditioned with the issuance of each right of way permit. If adequate clear zones are unable to be achieved on a particular right of way, Licensee shall locate in an alternate right of way, obtain easements from private property owners, or propose alternate construction methods which maintain and/or enhance the existing clear zones. 9.9 No portion of the Wireless Installations attached to the Structures or Infrastructure by Licensee may be abandoned by Licensee without the express written consent of Licensor. Any plan for abandonment or removal of Licensee's Wireless Installations must be first approved by the Public Works Director, which shall not be unreasonably withheld or delayed, and all necessary permits must be obtained prior to such work. 10. INSURANCE 10.1 Insurance Term. Licensee shall procure and maintain for the duration of this Agreement, insurance against claims for injuries to persons or damage to property which may be caused, in whole or in part, by operations or activities performed by or on Licensee's behalf with the issuance of this Agreement. 10.2 No Limitation. Licensee's maintenance of insurance as required by this Agreement shall not be construed to limit the liability of Licensee to the coverage provided by such insurance, or otherwise limit Licensor's recourse to any remedy available at law or in equity. License Agreement for Wireless Installations on Public Structures 11.16.18 6 10.3 Scope of Insurance. Licensee shall obtain insurance of the types and coverage described below: (a) Commercial General Liability insurance shall be at least as broad as Insurance Services Office (ISO) occurrence form CG 00 01 or its equivalent and shall cover liability caused, in whole or in part, by operations, products-completed operations, and contractual liability. There shall be no specific exclusion for liability arising from explosion, collapse or underground property damage. Licensor shall be included as an additional insured under Licensee's Commercial General Liability insurance policy using ISO Additional Insured-State or Political Subdivisions-Permits CG 20 12 or a substitute endorsement providing at least as broad coverage. (b) Automobile Liability insurance if vehicles will be used in the performance of this contract, covering all owned, non-owned, hired and leased vehicles. Coverage shall be at least as broad as Insurance Services Office (ISO) form CA 00 01. 10.4 Amounts of Insurance. Licensee shall maintain the following insurance limits: (a) Commercial General Liability insurance shall be written with limits of $1,000,000 each occurrence, $2,000,000 general aggregate and a $2,000,000 products-completed operations aggregate limit. (b) Automobile Liability insurance with a combined single limit for bodily injury and property damage of $1,000,000 per accident. 10.5 Other Insurance Provision. Licensee's Commercial General Liability insurance policy or policies are to contain, or be endorsed to contain that they shall be primary insurance as respect Licensor. Any Insurance, self-insurance, or self-insured pool coverage maintained by Licensor shall be excess of the Licensee's insurance and shall not contribute with it. 10.6 Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best rating of not less than A-: VII. 10.7 Verification of Coverage. Licensee shall furnish Licensor with original certificates and a copy of the amendatory endorsements, including the additional insured endorsement, evidencing the insurance requirements of Licensee before issuance of the Permit. 10.8 Notice of Cancellation. Licensee shall provide Licensor with written notice of any required policy cancellation or nonrenewal that is not replaced, within two business days of their receipt of such notice. 10.9 Failure to Maintain Insurance. Failure on the part of Licensee to maintain the insurance as required shall constitute a material breach of the Agreement entitling Licensor to Liquidated Damages under Section 14, below, or such other and further relief provided for herein or by law. Alternatively, Licensor may, after giving thirty (30) days' notice to Licensee to correct the breach, immediately terminate this Agreement. 10.10 Self-Insurance. Notwithstanding the foregoing, Licensee shall have the right to self- insure the coverages required in subsection (a). In the event Licensee elects to self-insure its License Agreement for Wireless Installations on Public Structures 11.16.18 7 obligation to include Licensor as an additional insured, the following provisions shall apply (in addition to those set forth in subsection (a)): (i) Licensee or its parent company shall have and continuously maintain a tangible net worth of at least two hundred million dollars ($200,000,000.00); (ii) Licensee continuously maintains appropriate loss reserves for the amount of its self-insurance obligations under this Section 10, which reserves are annually approved by Ernst & Young, or any successor auditing company; (iii) Licensee shall undertake the defense of any self-insured claim for which a defense and/or coverage would have been available from the insurance company, including a defense of Licensor, at Licensee's sole cost and expense, with counsel selected by Licensee and reasonably acceptable to Licensor; (iv) Licensee shall use its own funds to pay any claim or replace property or otherwise provide the funding which would have been available from insurance proceeds but for Licensee's election to self-insure; (v) Licensee shall pay any and all amounts due in lieu of insurance proceeds which would have been payable if Licensee had carried the insurance policies, which amounts shall be treated as insurance proceeds for all purposes under this Agreement; and (vi) All amounts which Licensee pays or is required to pay and all loss or damages resulting from risks for which Licensee has elected to self- insure shall not limit Licensee's indemnification obligations set forth in this Agreement. 11. LIMITATION OF LIABILITY. NOTWITHSTANDING ANY PROVISION OF THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES SUFFERED BY THE OTHER PARTY OR BY ANY CUSTOMER OR ANY PURCHASER OF SUCH PARTY OR ANY OTHER PERSON, FOR LOST PROFITS OR OTHER BUSINESS INTERRUPTION DAMAGES, WHETHER BY VIRTUE OF ANY STATUTE, IN TORT OR IN CONTRACT, EXCEPT THAT THE EXPRESS INDEMNIFICATION OBLIGATIONS MADE BY THE PARTIES IN SECTION 12 OF THIS AGREEMENT SHALL STILL APPLY. 12. INDEMNIFICATION 12.1 Licensee agrees to indemnify, save and hold harmless, and defend Licensor, its elected officials, officers, authorized agents, boards and employees, acting in official capacity, from and against any liability, damages or claims, costs, expenses, settlements or judgments arising out of, or resulting from the granting of this Agreement or Licensee's activities, or any casualty or accident to person or property that occurs as a result of any construction, excavation, operation, maintenance, reconstruction or any other act done pursuant to the terms of this Agreement, provided that Licensor shall give Licensee timely written notice of its obligation to indemnify Licensor. Licensee shall not indemnify Licensor to the extent any damages, liability or claims result from Licensor's negligence, willful misconduct, or breach of obligation of Licensor, its officers, authorized agents, employees, attorneys, consultants, or independent contractors for which Licensor is legally responsible, or for any activity or function conducted by any person other than Licensee. 12.2 In the event Licensee refuses to undertake the defense of any suit or any claim, after Licensor's request for defense and indemnification has been made pursuant to the indemnification clauses contained herein, and Licensee's 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, then Licensee shall pay all of Licensor's reasonable costs and reasonable expenses for defense of the action, including reasonable attorneys' fees of recovering under this indemnification clause, as well as any judgment against Licensor. License Agreement for Wireless Installations on Public Structures 11.16.18 8 Should a court of competent jurisdiction or such other tribunal as the parties agree shall decide the matter, determine that this Agreement is subject to RCW 4.24.115, then, 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 Licensor, its officers, employees and agents, Licensee's liability hereunder shall be only to the extent of Licensee's negligence. It is further specifically and expressly understood that the indemnification provided in Section 12 of this Agreement 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. DEFAULT AND TERMINATION 13.1 Licensee's Default and Licensor's Remedies. If Licensee does not cure its Default, then thereafter Licensor may elect any of the following remedies: (a) suspend Licensee's access to the Structure or Infrastructure to which the Default pertains; (b) terminate the specific Site License Agreement(s) or affected portion thereof covering the Structure(s) or Infrastructure to which the Default pertains; (c) require Licensee's obligation to which the Default has been declared to be specifically performed; or (d) maintain an action at law against Licensee for damages directly incurred by Licensor arising directly from Licensee's uncured Default. 13.2 Licensor's Default and Licensee's Remedies. If Licensor does not cure its Default, then thereafter, Licensee may elect to pursue any rights or remedies available to Licensee at law or in equity. 13.3 Voluntary Termination of Site License Agreement. (a) A Site License Agreement may be terminated by Licensee for any reason or no reason, and without further liability to Licensee, at any time prior to the Commencement Date effective upon written notice to Licensor. (b) A Site License Agreement may be terminated by Licensee after the Commencement Date for any reason or no reason effective upon the later of (i) thirty (30) days' following written notice to Licensor and (ii) the date of removal of the Wireless Installation. In the event Licensee has paid a Fee to Licensor for the use of the Licensed Site, then Licensor shall have the right to retain the Fee without refund or other credit to Licensee. 14. LIQUIDATED DAMAGES. 14.1 Licensor and Licensee recognize the delays, expense and unique difficulties involved in proving in a legal preceding the actual loss suffered by Licensor as a result of Licensee's breach of certain provisions of this Agreement. Accordingly, instead of requiring such proof, . Licensor and Licensee agree that Licensee shall pay to Licensor, the sum set forth below for each day or part thereof that Licensee shall be in breach of specific provisions of this Agreement. Such amount is agreed to by both parties as a reasonable estimate of the actual damages Licensor would suffer in the event of Licensee's breach of such provisions of this Agreement. (a) Subject to the provision of written notice to Licensee and a thirty (30) day right to cure period, Licensor may assess against Licensee liquidated damages as follows: two hundred dollars ($200.00) per day for any material breach of the Agreement. (b) Licensor shall provide Licensee a reasonable extension of the thirty (30) License Agreement for Wireless Installations on Public Structures 11.16.18 9 day right to cure period described in Section 14.1(a) of this Agreement if Licensee has commenced work to cure the violation, is diligently and continuously pursuing the cure to completion and requested such an extension, provided that any such cure is completed within one hundred and twenty (120) days from the written notice of default. (c) If liquidated damages are assessed by Licensor, Licensee shall pay any liquidated damages within forty-five (45) days after they are assessed and billed. (d) In the event Licensee fails to cure within the specified cure period, or any agreed upon extensions thereof, liquidated damages accrue from the date Licensor notifies Licensee that there has been a violation. 14.2 The recovery of amounts under Section 14.1(a) of this Agreement shall not be construed to limit the liability of Licensee under the Agreement or an excuse for unfaithful performance of any obligation of Licensee. Similarly, the parties agree imposition of liquidated damages are not intended to be punitive, but rather, for Licensor cost recovery purposes. 15. CASUALTY. In the event of damage to a Structure and/or Infrastructure due to a Casualty Event that cannot reasonably be expected to be repaired within forty-five (45) days following such Casualty Event or which Licensor elects not to repair, or if such Casualty Event is reasonably be expected to disrupt Licensee's operations on the Structure and/or Infrastructure for more than forty-five (45) days, then Licensee may, at any time following such Casualty Event; (i) terminate the applicable Site License Agreement or affected portion thereof upon fifteen (15) days' written notice to Licensor; (ii) place a temporary facility, if feasible, at a location equivalent to Licensee's current use of the Structure and/or Infrastructure, as the case may be, until such time as the Structure and/or Infrastructure is restored and the Wireless Installation is returned to full on-air operation in the ordinary course of Licensee's business; or (iii) submit a new Site License Application for an alternate location equivalent to Licensee's current use of the Structure and/or Infrastructure, in which case Licensor shall waive the application fee and transfer all remaining rights to the new Structure and Infrastructure, as the case may be, as long as such relocation was due to a Casualty Event not caused by Licensee. If Licensee elects to terminate the Site License Agreement, notice of termination shall cause the applicable Site License Agreement or affected portion thereof to terminate with the same force and effect as though the date set forth in such notice were the date originally set as the expiration date of the applicable Site License Agreement. Licensee will be entitled to collect all insurance proceeds payable to Licensee on account thereof, and to be reimbursed for any prepaid Fee on a pro rata basis. If Licensee does not elect to terminate the applicable Site License Agreement, then the Fee shall fully abate during the period of repair following such Casualty Event until the date that the Wireless Installation is returned to full on-air operation in the Licensed Site in the ordinary course of Licensee's business. 16. MISCELLANEOUS PROVISIONS 16.1 Notices. All notices, requests and demands hereunder will be given by first class certified or registered mail, return receipt requested, or by a nationally recognized overnight courier, postage prepaid, License Agreement for Wireless Installations on Public Structures 11.16.18 10 to be effective when properly sent and received, refused or returned undelivered. Notices will be addressed to the Parties as follows: If to Licensee (including invoices): New Cingular Wireless PCS, LLC Attn: Tower Asset Group-Lease Administration Re: Wireless Installation on Public Structures (City of Camas) (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 Camas) (WA) FA No: 208 S. Akard Street Dallas, TX 75202-4206 Contact Number for day to day operation: Licensor: Licensee: 1-360-834-6864 1-800-63 8-2822 If to Licensor: City of Camas Attn: City Administrator 616 NE 4th Avenue Camas, WA 98607 Any Party may change its address or other contact information at any time by giving the other Party, and Persons named above, written notice of said change. 16.2 Force Majeure. This Agreement shall not be revoked, nor shall Licensee be liable for damages, due to any act or omission that would otherwise constitute a violation or breach that occurs without fault of Licensee or occurs as a result of circumstances beyond Licensee's reasonable control. Provided, however, Licensee acts diligently to correct any such act or omission. 16.3 Assignment and Transfer. This Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the Parties. Except as otherwise provided in this Agreement, neither Party shall assign this Agreement or its rights or obligations to any firm, corporation, individual, or other entity, without the written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, upon thirty (30) days' written notice, either Party may assign this Agreement or its rights or obligations to (a) an Affiliate or (b) in connection with the sale or other transfer of substantially all ofLicensee's assets in the FCC market area where the Structures are located. 16.4 Compliance with Laws. Licensee and Licensor agree to comply with all Laws. 16.5 Applicable Law. This Agreement shall be interpreted, construed, and enforced, in accordance with the laws of the state where the Structures are located without regard to its conflict of laws principles, and, where applicable, federal law. 16.6 Waiver of Jury Trial. Each Party waives its right to a trial by jury on disputes arising from this Agreement. 16.7 Change of Law. Either Party may, upon thirty (30) days' written notice, require that the terms of this Agreement which are affected by any New Law be renegotiated to conform to the New Law on a going forward basis for all existing and new Wireless Installations, unless the New Law requires retroactive application, except that, notwithstanding a New Law, the Fee shall remain unchanged for any License Agreement for Wireless Installations on Public Structures 11.16.18 11 Wireless Installations in place as of the time the New Law became effective. In the event that the Parties are unable to agree upon such new rates, terms of conditions within ninety (90) days after such notice, then any rates contained in the New Law shall apply as of the effective date of the New Law forward (except as to the Fee for any Wireless Installations in place as of the time the New Law became effective) until the negotiations are completed or a Party obtains a ruling regarding the appropriate conforming terms from a commission or court of competent jurisdiction. Except as provided in the preceding sentence, all terms in the existing Agreement shall remain in effect while the Parties are negotiating. 16.8 Exhibits. In the event of any inconsistency between the provisions of this Agreement and any Exhibits attached hereto, the provisions of this Agreement shall supersede the provisions of any such incorporated Exhibits unless such Exhibit specifies otherwise. 16.9 Waiver; Severability. No provision of this Agreement may be waived except in a writing signed by both Parties. The failure of either Party to insist on the strict enforcement of any provision of this Agreement shall not constitute a waiver of any provision. If any portion of this Agreement is found to be unenforceable, the remaining portions shall remain in effect, and the Parties shall begin negotiations for a replacement of the invalid or unenforceable portion. 16.10 Survival. The terms and provisions of this Agreement that by their nature require performance by either Party after the termination or expiration of this Agreement, shall be and remain enforceable notwithstanding such termination or expiration of this Agreement for any reason whatsoever. 16.11 Entire Agreement; Amendments. This Agreement (including the Exhibits hereto) embodies the entire agreement between Licensee and Licensor with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous agreements and understandings, oral or written, with respect thereto. Each Party acknowledges that the other Party has not made any representations other than those contained herein. This Agreement may not be amended or modified orally, but only by an agreement in writing signed by the Party or Parties against whom any waiver, change, amendment, modification, or discharge may be sought to be enforced. 16.12 Execution in Counterparts. This Agreement may be executed in multiple counterparts, including by counterpart facsimiles or scanned email counterpart signature, each of which shall be deemed an original, and all such counterparts once assembled together shall constitute one integrated instrument. [SIGNATURES APPEAR ON FOLLOWING PAGE] License Agreement for Wireless Installations on Public Structures 11.16.18 12 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be duly executed as of the Effective Date. City of Camas, a Washington Municipal Corporation Name: Shannon Turk Its: Mayor Date: lb -J-l-I q NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company By: AT&T Mobility Corporation Its: Manager By:_z:;--------t-----~_±__ Name: ~'-(.jL ~co~~ --~~~------------------- Its: ------------------------------ Date: ---------------------------- License Agreement for Wireless Installations on Public Structures 11 .16.18 13 EXHIBIT 1 DEFINED TERMS As used herein, the following capitalized terms in the Agreement have the meaning ascribed to them below. "Abandon" means to permanently relinquish ownership of a Structure and/or Infrastructure in its then existing location. "Acknowledgment" means a written memorandum signed by the Parties confirming the Commencement Date and the date of expiration of the Site License Initial Term. "Affiliate" means any entity that controls, is controlled by, or is under common control with a Party. "Agreement Initial Term" means an initial term often (10) years. "Annual Term" means a term of one (1) year. "Approved Licensor Work Cost Estimate" means Licensee's written approval of a Licensor Work Cost Estimate. "Casualty Event" means any casualty, frre, act of God, or other harm affecting a Structure and/or Infrastructure licensed in whole or in part to Licensee pursuant to a Site License Agreement. "Commencement Date" means the first day of the month following the day Licensee commences installation of the Wireless Installation at a particular location under a Site License. "Days" means calendar days. If deadline or other date falls on a non-business day (including weekends, holidays recognized by the federal government, and holidays recognized by the state where the Structure is located), that date shall be extended to the next business day. "Default" means the failure by a Party to perform any material term of condition of this Agreement where such failure continues for a period of more than thirty (30) days after receipt of written notice from the other Party of such failure identified with reasonable specificity as to the material term or condition of this Agreement which the Party is alleged to have failed to perform Notwithstanding the foregoing, no Default will be deemed to exist if a Party has commenced to cure the alleged failure to perform within such thirty (30) day period, and thereafter such efforts are prosecuted to completion with reasonable diligence. Delay in curing an alleged failure to perform will be excused if due to causes beyond the reasonable control of the Party again whom the failure to perform has been alleged. "Effective Date" means the latest date in the signature blocks in the Agreement. "Emergency" means a situation in which there is an imminent threat of injury to person or property, or loss of life. "FCC" means the Federal Communications Commission. "FCC 2018 Order" means the Federal Communications Commission's Declaratory Ruling and Third Report and Order, FCC 18-133, Released September 27, 2018. "Fee" means the annual payment for Licensee's Permitted Use of the Structure and Infrastructure at the Licensed Site. "Holdover Term" means a month to month term following the termination of a Site License Agreement. "Infrastructure" means any and all forms of existing power supply, conduit, or other form of infrastructure fixtures or equipment for the delivery of power or communication services to a Structure or otherwise located in the public right of way or other location controlled or owned by Licensor. Exhibit 1, Page 1 "Interference" means any material and adverse physical obstruction or impairment with the radio signals or operation of Licensee's Wireless Installation utilizing a Structure or Infrastructure authorized to be used by Licensee pursuant to Site License Agreement. "Laws" means all federal, state and local laws, orders, rules and regulations applicable to Licensee's use of the Wireless Installation on the Structure and/or Infrastructure and Licensor's ownership and use of the Structure, Infrastructure and any other improvements or equipment in the public right of way, as the case maybe. "Licensed Site" means the areas approved for Licensee's Permitted Use as described or depicted in a Site License Agreement. "Licensee Indemnitees" means Licensee, its employees, affiliates, officers, directors, successors and assigns. "Licensor Indemnitees" means Licensor, its officers, officials and employees. "Licensor's Cost" means Licensor's cost calculated pursuant to the terms and conditions of the FCC 2018 Order. "Licensor Work" means the work required on, in or to Licensor's Structure and/or Infrastructure to accommodate Licensee's Wireless Installation, including relocating, replacing, upgrading and/or reinforcing the existing Structure or Infrastructure. "Licensor Work Cost Estimate" means Licensor's written estimate of the estimated direct costs, including fully loaded labor costs to perform the Licensor Work in a Site License Application. "NEC" means the National Electric Code. "NESC" means the National Electrical Safety Code. "New Laws" means any legislative, regulatory, judicial, or other action affecting the rights or obligations of the Parties, or establishing rates, terms or conditions for the construction, operation, maintenance, repair or replacement of Wireless Installation on public infrastructure or in the right-of-way, that differ, in any material respect from the rates, terms or conditions of the Agreement. "Person" or "Persons" means any person or entity; "Parties" means Licensor and License collectively. "~" means individually Licensor and Licensee. "Permitted Use" means the transmission and reception of communications signals, and the installation, construction, modification, maintenance, operation, repair, replacement and upgrade of the Wireless Installation necessary for the successful and secure use of the Licensor's Structures and Infrastructure. "Pre-Approved Wireless Installation" means any Wireless Installation design for Licensee's use of a Structure and/or Infrastructure which has been approved in writing by Licensor. "RF" means radio frequency. "Safety Codes" means collectively the NEC, NESC, and any and all other applicable regulatory codes for safe practices when performing work on or near a Structure and/or Infrastructure. "Site License Agreement" means the Site License Agreement attached as Exhibit 3. "Site License Application" means an application by Licensee to use a Licensed Site in the form attached as Exhibit 2. "Site License Initial Term" means an initial term often (10) years. Exhibit 1, Page 2 "Site License Renewal Term" means a renewal term of five (5) years upon the same terms and conditions as set forth in the applicable Site License. "Site License Term" means collectively the Site License Initial Term, any Site License Renewal Terms, any Annual Terms and any Holdover Term. "Technical Grounds" means, in light of prevailing industry engineering standards, reasons of insufficiency of capacity, safety, reliability and/or generally applicable engineering purposes consistent with applicable Laws. "Term" means the Agreement Initial Term and any renewal terms exercised pursuant to Section 2.1 of the Agreement. "Wireless Installation" means antennas, communications equipment, electric and communications cables, and related accessories and improvements, including facilities that operate on FCC-approved frequencies in the bands authorized for commercial wireless communication services pursuant to FCC licenses issued to Licensee, and all associated equipment, located in, under, upon, adjacent to or through a Structure or Infrastructure owned or controlled by Licensor pursuant to a Site License Agreement (in accordance with Section 4.2 hereof) approved in writing by Licensor. Exhibit 1, Page 3 EXHIBIT2 SITE LICENSE APPLICATION Page 1 of2 Eguiement Owner Aeelicant {if different than Eguiement Owner} Application Date: Name: New Cingular Wireless PCS, LLC Name: Site Name/Project #: Address: Address: Contact Contact Name: Name: Approved by: Phone#: Phone#: Date: Email: Approval of this application does not constitute as the permitting approval of the Wireless Installation; a separate application for permitting is required for construction and operation. WIRELESS INSTALLATION-ATTACHMENT TO EXISTING STRUCTURE Location/GPS Coordinates Antenna Grade Antenna Equipmen Transmit Receive Output LAT LONG (Highest Point) Dimensions tWeight Frequenc Frequenc Power Structure Pole# (HxWxD) y y Level Notes: EXHIBIT2 SITE LICENSE APPLICATION Page 2 of2 WIRELESS INSTALLATION-STRUCTURE REPLACEMENT Locatlon/GPS Coordinates Antenna Grade Antenna Dimensions Equipment Transmit Receive Output Structure Pole # LAT LONG (Highest Point) (HxWxD) Weight Frequency Frequency Power Level Existing New Existing New Existing New Existing New Existing New Existing New Existing New Existing New Notes: EXHIBIT 3 FORM OF SITE LICENSE AGREEMENT This is Site License Agreement, is made this day of , 20_, between [name of City/TownNillage/County/etc.] ("Licensor") and NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company ("Licensee"). 1. License Agreement for Wireless Installations on Public Structures. This Site License Agreement as referenced in that certain License Agreement for Wireless Installations On Public Structures, between Licensor and Licensee dated , 20 __ ("Agreement"). Licensee has submitted a Site License Application pursuant to the Agreement, and Licensor has reviewed the application and grants approval subject to the terms of this Site License Agreement. All of the terms and conditions of the Agreement are incorporated hereby by reference and made a part hereof without the necessity of repeating or attaching the Agreement. In the event of a contradiction or inconsistency between the terms of the Agreement and this Site License Agreement, the terms of this Site License Agreement shall govern. Capitalized terms used in this Site License Agreement shall have the same meaning ascribed to them in the Agreement unless otherwise indicated herein. 2. Project Description and Locations. Licensee shall have the right to install and attach Wireless Installations on, under, and above the public right of way owned or controlled by Licensor, on, in and adjacent to the specific Structure and Infrastructure as identified and described in Exhibit 1 attached hereto (collectively the "Licensed Site"). 3. Term. The Site License Term of this Site License Agreement shall be as set forth in Section __ of the Agreement. 4. Fee. The Fee shall be in the amount and otherwise payable in accordance with the Agreement as set forth in Section __ of the Agreement. 5. Special Provisions, If Any (Specific to the Licensed Site). [SIGNATURES APPEAR ON FOLLOWING PAGE] Exhibit 3, Page 1 LICENSOR: LICENSEE: EXHIBITS City of Camas By: ~0-.-"-~ ~ Name:-,41 tl y f' 1,)-r:; hannDh Tvrk fv{ "-j D (' Title: NEW CINGULAR WIRELESS PCS, LLC, a Delaware Limited Liability Company By: AT&T Mobility Corporation Its: Mana By: Print Name: ~ ~f:._ WOO~ Title: 3> \.~~c ~CL_ Date: \o -~ \..c2 -\ 9 1 Licensed Site, Wireless Installation Equipment List and Plans Exhibit 3, Page 2 EXHIBIT 1 TO SITE LICENSE AGREEMENT Licensed Site, Wireless Installation Equipment List and Plans Licensee Wireless Installation Reference: [LICENSEE TO COMPLETE] FA/USID: Site Name: CRAN POLYGON NAME NODE# -- PTN /PACE: Structure pole number: [LICENSOR TO COMPLETE] Structure Latitude and Longitude (Approximate): [LICENSEE TO COMPLETE] Wireless Installation Equipment List: [LICENSEE TO COMPLETE] Wireless Installation Plans: See the attached plan set dated ______ consisting of(_) page( s ). Exhibit 3, Page 3 20 prepared by