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17-083 GTE Mobilnet, dba Verizon Wireless, Small Cell License Agreement
SMALL CELL LICENSE AGREEMENT THIS SMALL CELL LICENSE AGREEMENT (the "Agreement") is dated as of Ha~ I LP , 20 rt (the "Effective Date"), and entered into by and between the City of Cupertino, a political subdivision of the State of California (the "LICENSOR"), and GTE Mobilnet of California Limited Partnership, d/b/a Verizon Wireless ("LICENSEE"). Recitals A. WHEREAS , the LICENSOR is the owner of certain Poles (as defined in § 1.11, below) located in the Rights-of-Way (as defined in Section 1.13 below) of the City of Cupertino; and B. WHEREAS, GTE Mobilnet of California Limited Partnership, d /b/a Verizon Wireless is duly organized and existing under the laws of the State of California, and its lawful successors, assigns, and transferees , are authorized to conduct bu s iness in the State of California; and C. WHEREAS, LICENS EE desires to use space on certain of the LICENSOR's Poles and/or the Rights-of-Way for construction, operation and maintenance of its telecommunications Network (as defined in §1.10, below) serving LICENSEE's wireless customers and utilizing Equipment (as defined in § 1.6, below), permitted by the Federal Communications Commission ("FCC") and in accordance with FCC rules and regulations; and D. WHEREAS , for the purpose of operating the Network, LICENSEE wishes to locate ,,place , attach, install, operate, control , and maintain Equipment on the Poles in the Rights-of-Way , owned by the LICENSOR; and E. WHEREAS, LICENS EE is willing to compensate the LICENSOR in exchange for a grant and right to use and physically occupy portions of the Poles and/or the Rights-of-Way. Agreement NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree to the following covenants, terms , and conditions: 1. DEFINITIONS. The following definitions shall apply ge nerally to the provisions of this Agreement: 1.1 Affiliate. Affiliate means each person or entity which falls into one or more of the following categories: (a) each person or entity having , directly or 80875362 _3 indirectly, a controlling interest in LICENS E E; (b) each person or entity in which LICENSEE has , directly or indirectly, a controlling interest; or (c) each person or entity that, directly or indirectly , is controlled by a third party which also directly or indirectly controls LICENSEE . An "Affiliate" shall in no event mean any creditor of LICENSEE solely by virtue of its status as a creditor and which is not otherwise an Affiliate by reason of owning a controlling interest in , being owned by , or being under common ownership, common management, or common control with , LICENSEE. 1.2 Assignment or Transfer. "Assignment" or "Transfer" means any transaction, in which the rights and /or obligations held by LIC ENSEE under this Agreement or an Encroachment Agreement are transferred, directly or indirectly , to a party other than an Affiliate. An "Assignment" shall not include a mortgage , pledge or other encumbrance as security for money owed. 1.3 City. "City" means the City of Cupertino , a municipality under the laws of the State of California. 1.4 Commencement Date. "Commencement Date" shall mean the date determined in the Encroachment Agreement. 1.5 Commence Installation. "Commence Installation" shall mean the date that LICENSEE commences to install its E quipment, or any expansion thereof, in LICENSOR ROW. 1.6 Commence Operation. "Commence Operation" shall mean the date that Equipment is installed and operational by LICE NSEE pursuant to this Agreement. 1.7 Encroachment Agreement. "Encroachment Agreement" shall mean each separate encroachment license , entered into between the LICENSOR and LICENSEE with regard to a specific Small Cell installation, the form of which is attached hereto as Exhibit A , which shall be subject to the terms and conditions of this Agreement. 1.8 Equipment. "Equipment" means the equipment cabinets , antennae, utilities and fiber optic cables , wires , and related equipment, whether referred to singly or collectively , to be installed and operated by LICENSEE under a particular Encroachment Agreement and that comprise a Small Cell installation. 1.9 Information service. "Information service" means the offering of a capability for generating, acquiring , storing, transforming , processing , retrieving, utilizing , or making available information and content via telecommunications, and includes electronic publishing, as the same may evolve over time. 1.10 Law. "Law" means any and all applicable statutes , constitutions , ordinances, resolutions , regulations , judicial decisions , rules , tariffs , 2 808 7536 2_3 adm ini strative orders, certificates, orders, or other req uirements of the LICENSOR or other governmental agency having joint or severa l jurisdiction over the parties to this Agreement as such laws may be amend ed from time to t ime. 1.11 Municipa l Facilities. "Mu nic ipal Faci li ties" means LICENSOR-owned Poles, li ghting fixtures, or e lectroliers located with in the ROW and may refer to s uch faci liti es in the s in gu lar or plural , as appropriate to the context in which u sed . 1.12 Network. "Network" or collectively "Networks " means the telecommunication network operated by LICENSEE to serve its customers. 1.13 Poles. "Poles" shall mean any pole(s) that is owned and/or leased by the LICENSOR. 1.14 PUC. "PUC" means the Public Utilities Commission of Ca li fornia. 1.15 Rights-of-Way. "Rights-of-Way" or "ROW" means public property including air space, dedicated , granted, held , prescriptively u sed, or a uthorized by patent of the United States of America, for LICENSOR's public street and public utility purposes, except as limi ted by any under lying grant, or the Ca li forn ia Department of Tran sportation. 1.16 Small Cell. "S mall Ce ll " shall mean the Equipment at a particular location that comprises part of the Network. 1.17 Telecommunications Services. "Te lecommunications Services" or "Serv ices" has the same meaning as that term is defined in the United States Code, 47 U .S.C. 153 (53) or any other use authorized by a nd li censed to LICENSEE by the FCC . 2. TERM. 2.1 Initial Term. The term of this Agreement sha ll be for a period of five ( 5) yea rs beginni ng on the Effective Date and terminating on th e fifth anniversary of the Effective Date , unl ess terminated earlier ("Initial Term"). 2.2 Option to Extend. Provided LICENSEE is not in defau lt, either at th e time of exercise o r at the tim e th e extend ed Term commences, Licensee s hall have the opt ion to exten d the initi a l Term of t hi s Lease for two (2) add ition a l per iod s of five (5) years ("Opt ion Period") on the sa me terms , cove na nt s and conditions provided. LICENSEE s ha ll exe rci se it s option by g ivin g C ity written notice ("O ption Notice") at leas t s ixty (60) days prior to the exp ir at ion of the Initi a l Term of this Agree ment , or the s ucce ss ive term. The Initi a l Term and Option Periods s ha ll collectively be referred to as the "Term ." The term for each particu lar Encroachm ent Agreement be g ins o n the Co mmen cement Date of the E ncroachme nt Agreement, and ends upon the expiratio n of the Initial Term , or the 3 80875362 _3 Option Term , if validly exercised , under thi s A g reem e nt, unless such individual Encroa chment A g reement is earlier te rminated, o r thi s A g re em e nt is exte nded furth e r extended by mutual agreem e nt of the parties. 3. REPRESENTATION CONCERNING SERVICES; TERMINATION WlTHOUT CAUSE. At any time that LICENSEE ceases to operate as a provider of Telecommunications Services under Federal law, the LICENSOR shall have the option, in its sole discretion and upon sixty days written notice to LICENSEE, to terminate this Agreement and to require the removal of LICENSEE 's Equipment from the ROW and from Municipal Facilities, including the cost of any site remediation , at no cost to the LICENSOR, without any liability to LICENSEE related directly or indirectly to such termination. 4. SCOPE OF AGREEMENT. Any and all rights expressly granted to LICENSEE under this Agreement, which shall be exercised at LICENSEE 's sole cost and expense, shall be subject to the prior and continuing right of the LICENSOR under applicable Law to use any and all parts of the ROW exclusively or concurrently with any other person or entity and shall be further subject to all deeds , easements , dedications , conditions , covenants , restrictions , encumbrances, and claims of title of record which may affect the ROW as of the date of the individual Encroachment Agreement. 4.1 Attachment to Municipal Facilities. LICENSEE will submit to the authorized representative of the LICENSOR an application and a proposed design for any proposed Small Cell installations that will include Equipment and Municipal Facilities LICENSEE proposes to use. Any approved Equipment shall be included as part of an applicable Supplement. 808 75362 _3 4.1.1 If adequate Municipal Facilities do not exist for the attachment of Equipment, LICENSEE may install its Equipment on other poles in the ROW lawfully owned and o perated by third parties. 4.1.2 Subject to the conditions herein and upon the execution of a Encroachment Agreement, the Licensor hereby authorizes and permits LICENSEE to enter upon the ROW and to locate, place, attach , install , operate, maintain , control , remove , reattach, reinstall, relocate , and replace Equipment in or on identified Municipal Facilities and in the ROW for the purposes of operating the Network and providing Telecommunications Services as shown in the Encroachment Agreement. 4.1.3 To reduce the disruption to Municipal Facilities, LICENSEE may power its Equipment by usi ng the power sources that service the existing Pole structure ard its components. The power used by LICENSEE 's Equipment shall be determ ined on an individual site by site basis. All electrical work and installations related to the power sharing authorized by this Subsection 4.1 .3 shall be performed by a licensed contractor that is approved by the LICENSOR and in a manner that is approved by the LICENSOR. LICENSEE shall make all requests for power sharing arrangements pursuant to this Subsection 4.1.3 in advance and in writing. 4 LICENSEE shall reimburse the LICENSOR, as provided in Subsection 5.4 , for the increased power costs that the LICENSOR incurs as a result of any power sharing author ized by this Subsection 4.1.3. 4.1.4 To the extent permitt ed by Law, LICENSOR reserves the right to deny any application for the attachment or installation of Equipment to Mun icip a l Faci li ties at the sole, but reasonab le discretion of the C it y Engineer. 4.1.5 If LICENSE E se lects a Pole that is structurally inadequate to accommodate Equipment, LICENSEE may at its sole cost and expense, and at the discretion of the City Engineer, replace the Po le (a "Replacement Pole") with one that is acceptable to and approved by the LICENSOR and dedicate such Replacement Pole to the LICENSOR. 4.1.6 In the event of an emergency or to protect the public health or safety , prior to the LICENSOR accessing or performing any work on a Municipal Faci lit y on wh ich LICENSEE has installed Equipment, the LICENSOR may require LICENSEE to deactivate such Equipment if any of LICENSOR's emp loyees or agents must move c loser to the Equ ipm ent than the recommended one foot minimum distance. In such case, LICENSOR wi ll contact LICENSEE at the contact te lephone number referenced in § 14.3 herein to request immediate deactivation. If LICENSOR does not get a response , LICENSOR may proceed to deactivate such Equipment. 4.2 Intentionally Omitted. 4.3 Preference for Municipal F acilities. In any s itu at ion where LICENSEE has a choice of attaching its Equ ipm ent to either Municipal Faci liti es or third- party-owned property in the ROW, LICENSEE sha ll use good fa ith efforts to attach to the Municipal Facilities , provided that (a) such Municipal Faci li ties are at least equa ll y suitab le functionally for the operation of the Network and (b) the use fee, construction and installation costs associated with such attachment over the length of the term are equal to or less than the fee or cost to LICENSEE of attaching to the a lt ernative third-party-owned property. 4.4 No Interference. LICENSEE in the performance and exercise of its rights and ob li gations under th is Agreement shal l not interfere in any manner with the existence and operation of any and all pub li c and private rights-of-way, sanitary sewers, water mains , storm drains , gas mains, poles , aeria l and und erground e lectrica l and telephone wires , traffic signals, comm uni cation fac ili ties owned by the LICENSOR, electroliers , cable television, location monitoring services, public safety and other then existing telecommunications equipment, utility, or municipal property , without the express written approva l of the owner or owners of the affected property or properties , except as permitted by 5 808 75362 _3 applicable Law or this Agreement. However, the LICENSOR agrees that the LICENSOR and /or any other tenants , licensees , or users of the ROW who currently have or in the future take possession of space within the ROW adjacent to any LICENSEE Small Cells will be permitted to install only such equipment that is of the type and frequency which will not cause harmful interference which is measurable in accordance with then existing industry standards to the then existing equipment of LICENS EE. LICENSEE shall act reasonably to accommodate future providers so that the public right of way may be used by additional providers. 4.5 Permits; Default. Whenever LICE NSEE is in default of this Agreement or an applicable Encroachment Agreement, after notice and applicable cure periods , in any of its obligations under this Agreement, the LICENSOR may deny further encroachment, excavation or similar permits , or require removal of existing facilities located on LICENSOR facilities subject to such default, under this Agreement until s uch time as LICENS EE cures all of its defaults . 4.6 Compliance with Law. LICENS EE sha ll comply with all applicable laws in the exercise and performance of its rights and obligations under this Agreement. 4.7 No Authorization to Provide Other Services. LICENSEE represents , warrants and covenants that its E quipment installed pursuant to this Agreement and each Encroachment Agreement will be utili z ed solely for providing the Telecommunications Services identified herein and any Information Services that may be provided over the Network and LICE NSEE is not authorized to and shall not use its Equipment to offer or provide an y other services not specified herein. 4.8 Nonexclusive Use Rights. Notwithstanding any other provision of this Agreement, any and all rights ex pressly or impliedly granted to LICENSEE under this Agreement shall be non-exclusive , and shall be subject and subordinate to (1) the continuing right of the LICE NSOR to use , and to allow any other person or persons to use , any and all parts of the ROW or Municipal Facilities, exclusively or concurrently with any other person or persons, and (2) the public easement for streets and any and all other deeds , easements, dedications, conditions , covenants , restrictions , encumbrances and claims o f title (collectively , "E ncumbrances") which may affect the ROW or Municipal Facilities now or at any time during the term of this Agreement, including, without limitation any Encumbrances granted , created or allowed by the LICENSOR at any time. This includes but is not limited to future use of the ROW by other providers using the same or similar technology . 5. COMPENSATION. LICENSEE shall be solely responsible for the payment of all lawful fees in connection with LIC ENSEE' s performance under this Agreement, including those set forth below. 6 80875362 _3 5.1 Rent. In order to compensate the LICENSOR for LICENSEE 's entry upon and deployment of Equipment within the ROW or on any M uni cipal Facilities, LICENSEE shall , as of the Commencement Date for any Encroachment Agreement, pay to the LICENSOR, on a n annual basis, an amount equal to Fifteen Hundred and 00/100 Dollars ($1 ,500.00) per Pole (the "Rent"). At the start of the Option Term , the rental rate shall be adjusted to equal the highest annual rental rate paid by LICENSEE to any city within the County of Santa C lara (excluding San Jose) or to the County of Santa C lara itself (the "Adjusted Rental Rate"), provided, however, that the Adjusted Rental Rate shall be based on cash consideration only. This rental rate shall be the base rent for the first year of the five (5) year Option Term . This rental rate shall be subject to the annual rent increase as described in Section 5.2 below. Should the rent paid under this Agreement equal or exceed that paid to other jurisdictions at the start of each additional five (5) year term, no rental adjustment at the start of the five (5) year term shall be required. The Commencement Date shall be acknowledged in writing (the "Acknowledgement") by LICENSOR AND LICENSEE. LICENSEE shall make the first payment of Rent under any Encroachment Agreement within sixty (60) days of the full execution of the Acknowledgment. Thereafter, Rent shall be paid on or before each anniversary of the Commencement Date during the term of Encroachment Agreement. LICE NSOR hereby agrees to provide to LICENSEE certain documentation (the "Rental Documentation ") evidencing LICENSOR's interest in , and right to receive payments under, this Agreement, including without limitation: (i) a complete and fully executed Internal Revenue Service Form W-9, or equivalent, in a form acceptable to LICENSEE, for any party to whom renta l payments are to be made pursuant to this Agreement; and (ii) other reasonable documentation requested by LICENSEE. From time to time during the Term of this Agreement and within thirty (30) days of a written request from LICENSEE, LICENSOR agrees to provide updated Rental Documentation in a form reasonably acceptab le to LIC ENSEE. Delivery of Rental Documentation to LICENSEE shall be a prerequisite for the payment of any rent by LICENSEE and notwithstanding anything to the contrary herein, LICENSEE shall have no obligation to make any re ntal payments until Rental Documentation has been supp li ed to LICENS EE as provided herein. 5.2 Rent Adjustment. Effective on the first anniversary of the Commencement Date of any E ncroachment Agreement, and continuing annua ll y thereafter during the applicable term of the E ncroachment Agreement, the Rent for the then existing Supplement shall be increased by three percent (3%) over the Rent paid for the immediately preceding year. 5.3 Business License Fee/Rent Tax. T he Rent in Subsection 5.1 of this Section includes any business li cense fee or tax on rent pursuant to app li cable Law . 5.4 Payment to PG&E or Other Utility of Power Costs. LICENSEE shall cause a separate line to be run to it s Equipment and shall pay al l electricity costs 7 808 75362 _3 directly to PG&E or such other electrical provider. LICENSEE shall not use LICENSOR's electricity to power its equipment. LICENSEE shall make good faith efforts to negotiate a flat rate with the utility providing electricity or to install low profile wireless smart meters on LICENSOR 's poles or utilize an underground vault for the meter. Should LICENSEE be unable to utilize these methods on a commercially reasonable basis , then a ground mounted meter or pole mounted meter shall be utilized subject to approval of the location and design by the City Engineer. All antennas shall have a master cutoff switch installed which will allow power shut down to the antennas in case of emergency; provided however, LICENSOR shall use good faith efforts to provide LICENSEE prior notice of any emergency shutoff. 5.5 Payment. The Rent shall be paid by check made payable to City of Cupertino, and mailed or delivered to the City of Cupertino, Finance Department, at the address provided for in Section 10 below. The place and time of payment may be changed at any time by LICENSOR upon 30 days ' written notice to LICENSEE. Mailed payments shall be deemed paid upon the date such payment is officially postmarked by the United States Postal Service. If postmarks are illegible to read, the payment shall be deemed paid upon actual receipt. LICENSEE assumes all risk of loss and responsibility for late payment charges if payments are made by mail. Notwithstanding the foregoing , upon agreement of the parties, LICENSEE may pay rent by electronic funds transfer and in such event, the LICENSOR agrees to provide to LICENSEE bank routing information for such purpose upon request of LICENSEE. 5.6 Delinquent Payment. If LICENSEE fails to pay any amounts due pursuant to this Agreement within 45 days from the due date , LICENSEE will pay, in addition to the unpaid fees , a sum of money equal to two percent (2%) of the amount due , including penalties and accrued interest, for each month and /or fraction thereof during which the payment is due and unpaid. 5.7 Additional Remedies. The remedy provisions set forth in §5.6 above are not exclusive, and do not preclude the LICENSOR from pursuing any other or additional remedy in the event that payments become overdue by more than 60 days. 6. CONSTRUCTION. LICENSEE shall comply with all applicable Federal , State, and local codes related to the construction, installation, operation, maintenance, and control of LICENSEE's Equipment installed in the ROW and on Municipal Facilities. Except as otherwise provided herein , LICENSEE shall not attach, install , maintain, or operate any Equipment in or on the ROW and/or on Municipal Facilities without the prior written approval of an authorized representative of the LIC ENSOR for each location. 8 808 75362_3 6.1 Commencement of Installation and Operation. LICENSEE shall Commence Installation of its initial Small Cell approved by the LICENSOR no later than two (2) years after the mutual execution of an applicable Encroachment Agreement, and shall Commence Operation no later than six (6) months after LICENSEE Commences Installation, which such dates delayed for due to any force majeure event. Failure of LICENSEE to Commence Installation or Commence Operation of the applicable Small Cell as provided above shall permit LICENSOR to terminate the affected Supplement upon thirty (30) days' notice to LICENSEE unless within such thirty (30) day period , LICENSEE shall Commence Installation or Commence Operation, as applicable. Notwithstanding the foregoing, LICENSEE's obligat ions under this §6.1 shall be conditioned upon LICENSEE's completion of its due diligence with regard to a particular Small Cell. 6.2 Obtaining Required Permits. The attachment, installation , or location of the Equipment in the ROW may require governmental permits. LICENSEE shall apply for the appropriate permits and pay any standard and customary permit fees. LICENSOR shall promptly respond to LICENSEE's requests for permits and shall otherwise cooperate with LICENSEE in facilitating the deployment of the Network in the ROW in a reasonab le and timely manner. 6.3 Relocation and Displacement of Equipment. LICENSEE understands and acknowledges that LICENSOR may require LICENSEE to relocate one or more of its Equipment installations. LJCENSEE shall at LICENSOR's direction and upon ninety (90) days prior written notice to LICENSEE, relocate such Equipment at LICENSEE's sole cost and expense whenever LICENSOR reasonably determines that the relocation is needed for any of the following purposes: (a) if required for the construction , modification, completion , repair , relocation , or maintenance of a LICENSOR or other public agency project; (b) because the Equipment is interfering with or adversely affecting proper operation of LICENSOR-owned Poles, traffic signals, communications, or other Municipal Facilities; or (c) to protect or preserve the public health or safety. In any such case, LICENSOR shall use reasonable efforts to afford LICENSEE a reasonably equivalent alternate location. If LICENSEE shall fail to relocate any Equipment as requested by the LICENSOR in accordance with the foregoing provision, LICENSOR shall be ent itled to remove or relocate the E quipment at LICENSEE 's sole cost and expense, without further notice to LICENSEE. LICENSEE shall pay to the LICENSOR actual costs and expenses incurred by the LICENSOR in performing any removal work and any storage of LICENSEE 's property after removal within thirty (30) days of the date of a written demand for this payment from the LICENSOR. To the extent the LlCENSOR has actual knowledge thereof, the LICENSOR will attempt promptly to inform LICENSEE of the displacement or removal of any Pole on which any Equipment is located. If the Municipal Facility is damaged or downed for any reason, and as a result is not able to safely hold the Equipment, the LICENSOR will have no obligation to repair or replace such Municipal Facility for the use of LICENSEE's Equipment. 9 80875362 _3 LICENSEE shal l bear a ll risk of loss as a result of damaged or downed Municipal Faci liti es pursuant to §6.8 below, and may choose to replace such Municipal Faci liti es pursuant to the provisions of §4.1.5 above. 6.4 Relocations at LICENSEE's Request. In the event LICENSEE desires to relocate any Equipment from one Municipal Facility to another, LICENSEE shall so advise LICENSOR . LICENSOR will use reasonable efforts to accommodate LICENSEE by making another reasonably equivalent Municipal Facility avai lab le for use in accordance with and subject to the terms and conditions of this Agreement. 6.5 Damages Caused by LICENSEE. LICENSEE shall , at it s sole cost and expense and to the satisfaction of the LICENSOR: (a) remove , repair or replace any of its Equipment that is damaged or becomes detached; and/or (b) repair any damage to ROW , Municipal Facilities or other property , whether public or private, caused by LICENSEE, its agents , employees or contractors in their actions relating to attachment, operation, rep air or maintenance of Equipment. If LICENSEE does not remove , repair or replace such damage to its Equipment or to ROW, Municipal Faci liti es or other property , the LICENSOR shall have the option, upon 30 days' prior written notice to LICENSEE, to perform or cause to be performed such removal , repair, or replacement on behalf of LICENSEE and shall charge LICENSEE for the actua l costs incurred by the LICENSOR. If such damage causes a public health or safety emergency, as reasonably determined by the LICENSOR, the LICENSOR may immediately perform reasonable and necessary repair or removal work on behalf of LICENSEE and will notify LICENSEE as soon as practicable; provided , such repair work involves reattachment of LICENSEE 's Equipment to a Po le or repair of the Pole itself, and sha ll not include any technical work on LICENSEE's Equipment. Upon the receipt of a demand for payment by the LICENSOR, LICENSEE shall within 30 days of such receipt reimburse the LICENSOR for such costs. The terms of this provision s h a ll survive the expiration, completion or earli er termination of this Agreement. 6.6 Change in Equipment. If LICENSEE proposes to in stall Equipment which is different in any material way from the then-existing and approved Equipment or that shown in Exhibit B attached hereto , then LICENSEE s hall first obtain the written approval for the use and installation of the unauthorized Equipment from the City Engineer of LICENSOR, which approval shall not be unreasonably withheld or delayed. In addition to any other submittal requirements , and if requested by LICENSOR, LICENSEE shal l provide "load " (structural) calcul ations for all Poles upon which it intends to install Equipment in the ROW, notwithstanding original installation or by way of Equipment type changes. LICENSEE sha ll pay review fees for review of design drawings or calcu lations to the extent, and in the amount, required by Laws . Notwithstand in g the foregoing, LICENSEE may modify its Eq uipment (a) with like-kind or simi lar 10 80875362 _3 Equipment, and /or (b) as shown in Exhibit B, without prior written approval of the LICENSOR. 6.7 Termination of an Encroachment Agreement. LICENSEE shall have the right to terminate any Encroachment Agreement on ninety (90) days' notice to LICENSOR. In the event of such termination , LICENSEE shall remove its Eq uipm ent in accordance with §6.8 below and LICENSOR s ha ll retain any Rent paid to suc h date. 6.8 Removal of Equipment. Within 60 days after the expiration or earlier termination of an Encroachm ent Agreement, LICENSEE s ha ll promptly , safe ly and carefu lly remove the Equipment from all Municipal Faci litie s and ROW. S uc h ob li gation of LICENSEE shall survive the expiration or earlier termination of this Agreement. If LICENSEE fails to comp lete this removal work pursuant to this Section , then the LICENSOR, up on written notice to LICENSEE, shall have the right at the LICENSOR's so le e lection , but not the ob li gation , to perform this removal work and charge LICENSEE for the actua l costs and expenses , includin g, without limitati on, reasonable administrative costs. LICENSEE shall pay to the LICENSOR actual costs and expenses incurred by the LICENSOR in performing a ny removal work and any storage of LICENSEE 's property afte r removal within thirty days of the date of a written demand for this payment fro m the LICENSOR. After the LICENSOR receives the reimb ur sement payment from LICENSEE for the remova l work performed by the LICENSOR, the LICENSOR sha ll promptly make avai lab le to LICENSE E the property belonging to LICENSEE a nd removed by the LICE NSOR pursuant to this Section at no li abi lity to the LICENSOR. If the LICENSOR does not receive reimbursement payment from LICENSEE within such thirty days , or if LICENSOR does not e lect to remove such items at the LICENSOR's cost after LICENSEE's fai lur e to so remove pursuant to this Section , or if LICENSEE does not remove LICENSEE's property within 30 days of such property having been made avai lab le by · the LICENSOR after LICENSEE 's payment of removal reimb ursement as described above , any items o f LICENSEE 's property remaining on or abo ut the ROW, Municipal Faci liti es , or stored by the LICENSOR after the LICENSOR's removal thereof may , at the LICENSOR 's option , be deemed abandoned and the LICENSOR may dispose of such property in any manner by Law. A lt ernative ly , the LICENSOR may e lect to take tit le to abandoned property, provided that LICENSEE sha ll submit to the LICENSOR a n in strument satisfactory to the LICENSOR transferring to the LICE NSOR the ownership of suc h property. The provisions of this Section sha ll surv ive the expiration or earli er termination of this Agreement. 6.9 Bond Requirement. At or before the Effective Date, LICENSEE sha ll file with LICENSOR a good and su fficient surety bond in accordance with t he requirements of California State law. The form and terms of the surety bond and the id entity of the surety s ha ll be subject to the reasonable approva l of the City Attorney and the surety shall guaranty the ful l performance of LICENSEE's 11 8087536 2_3 restoration obligations ansmg upon expiration , termination or abandonment of this Agreement. Any acceptable surety instrument having an expiration date earlier than the expiration of the Term shall be automatically renewable. Any company issuing such a surety instrument must give LICENSOR at least thirty (30) days advance written notice prior to the effective date of cancellation or expiration of such surety instrument. The amount of the surety bond shall be $50 ,000 .00 , which is based upon the estimated cost of removing Licensee 's E quipment from twenty five (25) M unicipal F acilities and the storing or disposing thereof. In the event Licensee has installed E quipment on more than 25 Municipal Facilities, Licensor may reasonably require an increase in the amount of the surety bond based on an e stimated restoration and/or disposal cost of $2 ,000.00 per Municipal Facility . 6.10 Risk of Loss. LICENSEE acknowledges and agrees that LICENS E E, s ubject to the terms of this Agreement bears all risks of Joss o r damage or relocation or replacement of its Equipment and materials installed in the ROW or on Municipal Facilities pursuant to this Agreement from any cause , and the LICENSOR shall not be liable for any cost of replacement or of repair to damaged E quipment, including, without limitation , damage caused by the LICENSOR's removal of the Equipment, ex cept to the extent that such los s or damage was caused by the willful misconduct or ne g ligence of the LICE NSOR, including, without limitation , each of it s e lected officials , department directors , managers, officers , agents , employees, and contractors , subject to the limitation of liability provided in §7.2 below . 6.11 Access . Prior to LICENSEE accessin g its E quipment for non-emergency purposes at any time , LICENSEE shall provide email notification to the Public Works Department. In the event of an emergency at any time, LIC ENSEE will , if time permits , attempt to provide prior email or telephonic notice to the Public Works Department. In the event LICENSEE is unable to provide such notice , LICENSEE will notify the Public Works Department following such access. 7. INDEMNIFICATION AND WAIVER. LI CENSEE agrees to indemnify , defend , protect, and hold harmless the LIC ENSOR, it s c o mmiss ion members, officers , and employees from and against any and all claims , demands , losses , including Pole warranty inv a lidation , damages , liabilities , fines , charges , penalties , administrative and judicial proceedings and orders , judgments, and all costs and expenses incurred in connection therewith, including reasonable attorney's fees and costs of defense (collectively, the "Losses") directly or proximately re sulting from LIC EN SEE 's activities undertaken pursuant to this Agreement, except to the extent arising from or caused by the s ole negligence or willful misconduct of the LICENSOR, its LICENSOR Commission members, officers , employees, agents , or contractors. 7.1 Waiver of Claims. LICEN SEE waives any and all claims , demands , causes of action , and rights it may asse rt a g ainst the LICE NSOR on account of any loss , damage , or injury to any E quipment o r a ny loss or de g radation of the 12 80875362 _3 Telecommunications Services or Information Service as a resu lt of any event or occurrence which is beyond the reasonable control of the LICENSOR. 7.2 Waiver of Subrogation. The parties h e reby waive and release any and all rights of action for negligence against the other which may hereafter arise on account of damage to Municipal Facilities, Smal l Ce ll or to the ROW, resulting from any fire , or other casualty of the kind covered by standard fire insurance policies with extended coverag e , regardless of whether or not, or in what amounts, such insurance is now or hereafter carr ied by the parties, or e ith er of them. These waivers and re leases shall apply between the parties and they shal l a lso apply to any claims under or through either party a s a result of any asserted right of s ubro gation. A ll such policies of insurance obta in ed by either party concerning the Municipal Facil iti es , Small C ell or the ROW sha ll waive the insurer's right of subrogation against the other party. 7.3 Limitation on Consequential Damages. Neither party shall be liable to the other, or any of their respective agents , representatives , emp loyees 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 adv ised of the possibility of s uch damages, whether under theory of contract, tort (inc ludi ng negligence), strict liability or otherwise 8. SECURITY FOR PERFORMANCE. Before any construction begins in the ROW by LICENSEE , and if requested by LICE NSOR, LICE NSE E sha ll provide the LIC ENSOR with performance bonds , and if considered necessary by the LICE NSOR, payment bonds , in amounts equal to the full amount of the written con struction contract purs uant to which such construction is to be done. The payment bond shall be so lely for the protection of c laimants supp lying labor or materials for the required con struction work and the performance bond shall be so le ly for the protection of the LICENSOR, co nditi oned up on the faithful performance of the required construction work. Bonds shall be executed by a surety co mp any duly auth orized to do business in California, and acceptab le to the LICENSOR and shall be kept in place for the duration of the work. 9. INSURANCE. A. Genera l Requirements . On or before the commencement of the term of this Agreement, LICENSEE sha ll furnish LICE NSOR with certificates of insurance showing the type, amount, class of operations covered, effective dates and date s of expiration of insurance coverage in compliance with the requirements li sted below. LICENSEE shall maintain in force at al l times during the performance of this Agreement al l appropriate in surance coverage required by this Agreement with an insurance company that is reasonably acceptable to LICENSOR and lic ensed , a uth orized or permitted to do insurance business in the State of C alifornia. LICENSOR shall be included as an addit ional insured as their interest may appear under the Agreement on the commercial g enera l li abi lity and commercial automobi le liability policy and a blanket additional insured endorsement shall be submitted with the in surance certifi cates. 13 80875362 _3 B. Subrogation Waiver. LICENSEE agrees that in the event of loss due to any of the perils for which it has agreed to provide commercial genera l li abi lity and commercial automobi le li abi li ty insurance , LICENSE E shall look sole ly to its insurance for recovery. C. Fai lure to Secure or Maintain Insurance. If LICENSEE at any time during the term hereof should fail to secure or maintain the foregoing insurance, and should such failure continue for twenty (20) days following written notice from LICENSOR, LICENSOR sha ll be permitted to obtain such insurance in the LICENSEE'S name or as an agent of the LICENSEE and shall be compensated by the LICENSEE for the costs of the insurance premiums at a rate not to exceed the maximum rate permitted by law and computed from the date written notice is received that the premiums have not been paid. D. Additional Insured. LICENSOR, its City Council, boards and commissions, officers, employees and volunteers shal l be included as an additional insured as their interest may appear under this Agreement under a ll insurance coverages except workers compensation and emp loyer's liability. The inclusion of an additional insured sha ll not affect any recovery to which such additional in sured wou ld be e nti tled under this policy if not included as such additional insured. The additional insured shall not be held li able for any premium , deductible portion of any loss, or expense of any nature on this policy or any extension thereof. Any other insurance held by an additional insured shall not be required to contribute anything toward any loss or expense covered by the insurance provided by this policy. E. Sufficiency of Insurance . The insurance limits required by LICENSOR are not represented as being suffic ient to protect LICENSEE. LICENSEE is advised to confer with LICENSEE's insurance broker to determine adequate coverage for LICENSEE. F. Insurance Amo unts. LICENSEE shall obtain and maintain at a ll times during the term of this Agreement Commercial General Liability insurance with a limit of $1,000 ,000 per occurrence for bodily injury and property damage and $2,000,000 genera l aggregate including premises-operations , contractual liability , personal injury and products completed operat ions; and Commercial Automobi le Liabi lity insurance covering all owned non-owned and hired vehic les with a limit of $1 ,000 ,000 each accident for bodily injury and property damage. 9.1 Filing of Certificates and Endorsements. Prior to the commencement of any work pursuant to this Agreement, LICE NSEE sha ll file with the LICENSOR the required certificate(s) of insurance with b lanket additional insured endorsements, which certificates shal l state the following: 8087536 2_3 (a) the policy number; name of insurance company; name and address of the agent or authorized representative; name and address of insured ; project name ; policy expiration date ; and specific coverage amounts; 14 (b) that LICENSEE's Commercial General Liability insurance policy is primary as respects any other valid or co ll ectib le in surance that the LICENSOR may possess, including any self-insured retentions the LICENSOR may have ; and any other insurance the LICENSOR does possess shall be considered excess insurance on ly and shall not be required to contribute with this insurance ; and (c) that LICENSEE's Commercial General Liability in surance policy waives any right of recovery the insurance company may have against the LICENSOR. The certificate(s) of insurance and blanket additional insured endorsement shall be mailed to the LICENSOR at the address specified in § 10 below. 9.2 Workers' Compensation Insurance. LICENSEE shall obtain and maintain at all times during the term of this Agreement statutory workers' compensation and emp loyer's liab ility insurance in the amount of One Million Dollars ($1,000 ,000) each accident/disease/policy limit and shall furnish the LICENSOR wit h a certificate showing proof of such coverage. 9.3 Insurer Criteria. Any insurance provider of LICENSEE sha ll be admitted and authorized to do business in the State of California and sha ll carry a minimum rating assigned by A.M Best & Company's Key Rating Guide of "A" Overall and a Financia l Size Category of "VII." 9.4 Severability of Interest. "Severability of interest" or "separation of insureds " c lauses shall be made a part of the Commercial General Liability and Commercia l Automob il e Liability policies. 10. NOTICES. 10.1 Method and Delivery of Notices. All notices which sha ll or may be given pursuant to this Agreement shall be in writing and delivered personally or transmitted (a) through the United States mail , by registered or certified mail , postage prepaid; or (b) by means of prepaid overnight delivery service, addressed as follows: 80875362 _3 if to the LICENSOR: City Manager City of Cupertino 10300 Torre Avenue Cupertino, CA 95014-3202 Copy to: 15 Randolph Hom City Attorney City of Cupertino 20410 Town Center Lane, Suite 210 Cupertino, CA 95014-3255 if to LICENSEE: GTE Mobilnet of California Limited Partnership d/b/a Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attention: Network Real Estate 10 .2 Date of Notices; Changing Notice Address. Notices shall be deemed given upon receipt in the case of personal delivery, three days after deposit in the mail , or the next business day in the case of facsimile, email, or overnight delivery. Either party may from time to time designate any other address for this purpose by written notice to the other party delivered in the manner set forth above. 11. DEFAULT; CURE; REMEDIES; LIQUIDATED DAMAGES. 11.1 Licensee Default and Notification. This Agreement is granted upon each and every condition herein and each of the conditions is a material and essential condition to the granting of this Agreement. Exce pt for causes beyond the reasonable control of LICENSEE, if LICE NSEE fails to comply with any of the conditions and obligations imposed hereunder, and if such failure continues for more than 30 days after written demand from the LICENSOR to commence the correction of such noncompliance on the part of LICENSEE, the LICENSOR shall have the right to revoke and terminate this Agreement, if such failure is in relation to the Agreement as whole, or any individual Encroachment Agreement, if such failure is in connection solely with s uch E ncroachment Agreement, in addition to any other rights or remedies set forth in this Agreement or provided by law. 11.2 Cure Period. If the nature of the violation is such that it cannot be fully cured within 30 days due to circumstances not under LICENSEE's control, the period of time in which LICENSEE must cure the violation shall be extended for such additional time reasonably necessary to complete the cure , provided that: (a) LICENSEE has promptly begun to cure; a nd (b) LICENSEE is diligently pursuing its efforts to cure. The LICENSOR may not maintain any action or effect any remedies for default against LICENSEE unless and until LICENSEE has failed to cure the breach within the time periods provided in these Sections 11.l and 11.2 . 16 80875362 _3 11.3 Licensor Default. If LICENSOR breaches any covenant or obligation of LICENSOR under this Agreement in any manner and if LICENSOR fails to commence to cure such breach within thirty (30) days after receiving written notice from LICENSOR specifying the violation (or if LICENSOR fails thereafter to diligently prosecute the cure to completion), then LICENSEE may enforce any and all of its rights and/or remedies provided under this Agreement or by law or it may (although it shall not be ob l igated to) cure LICENSOR's breach and /or perform LICENSOR's obligations (on LICENSOR's behalf and at LICENSOR's expense) and require LICENSOR to reimburse to LICENSEE all reasonable costs and expenses (including reasonable attorneys' fees) incurred in connection with such cure and /or performance (which amount may be deducted from Rent payable under this Agreement). 12. ASSIGNMENT. This Agreement shall not be assigned by LICENSEE without the express written consent of the LICENSOR, which consent shall not be unreasonably withheld , conditioned, or delayed. Notwithstanding the foregoing, the transfer of the rights and obligations of LICENSEE to an Affiliate or to any entity which acquires all or substantially all of LICENSEE's assets in the market defined by the Federal Communications Commission in which the ROW is located by reason of a merger, acquisition or other business reorganization (collectively, "Exempted Transfers") shall not require the consent of the LICENSOR. 13. RECORDS; AUDITS. 13.1 Records Required by Code. LICENSEE will maintain complete records pursuant to all applicable Law. 13.2 Additional Records. The LICENSOR may require such additional reasonable non-confidential information , records , and documents from LICENSEE from time to time as are appropriate in order to reasonably monitor compliance with the terms of this Agreement. 13.3 Production of Records. LICENSEE shall provide such records within twenty (20) business days of a request by the LICENSOR for production of the same unless additional time is reasonably needed by LICENSEE, in which case, LICENSEE shall have such reasonable time as needed for the production of the same. If any person other than LICENSEE maintains records on LICENSEE 's behalf, LICENSEE shall be responsible for making such records available to the LICENSOR for auditing purposes pursuant to this Section. 14. MISCELLANEOUS PROVIS[ONS. The provisions that follow shall apply generally to the obi igations of the parties under this Agreement. 14.1 Waiver of Breach. The waiver by either party of any breach or violation of any provision of this Agreement shall not be deemed to be a waiver or a 17 80 875362 _3 continuing waiver of any subsequent breach or violation of the same or any other provision of this Agreement. 14.2 Severability of Provisions. If any one or more of the provisions of this Agreement shall be held by a court of competent jurisdiction in a final judicial action to be void , voidable, or unenforceable, such provision(s) shall be deemed severable from the remaining provisions of this Agreement and shall not affect the legality, validity, or constitutionality of the remaining portions of this Agreement. Each party hereby declares that it would have entered into this Agreement and each provision hereof regardless of whether any one or more provisions may be declared illegal , invalid, or unconstitutional. 14.3 Contacting LICENSEE. LI CE NS EE shall be available to the staff employees of any LICENSOR department having jurisdiction over LICENSEE 's activities 24 hours a day , seven days a week, regarding problems or complaints resulting from the attachment, installatio n , operation , maintenance, or removal of the Equipment. The LICENSOR may contact by telephone the network control center operator at telephone number 800-264-6620 regarding such problems or complaints. 14.4 Governing Law; Jurisdiction. This Agreement shall be governed and construed by and in accordance with the laws of the State of California, without reference to its conflicts of law principles. If suit is brought by a party to this Agreement, the parties agree that trial of such action shall be vested exclusively in the state courts of California. 14.5 Attorneys' Fees. Should any dispute arising out of this Agreement lead to litigation, the prevailing party shall be entitled to recover its costs of suit, including (without limitation) reasonable attorneys' fees. 14.6 Consent Criteria. In any case where the approval or consent of one party hereto is required, requested or otherwise to be given under this Agreement, such party shall not unreasonably delay , condition , or withhold its approval or consent. 14.7 Representations and Warranties; Authority. Each of the parties to this Agreement represents and warrants that it has the full right, power, legal capacity, and authority to enter into and perform the party's respective obligations hereunder and that such obligations shall be binding upon such party without the requirement of the approval or consent of any other person or entity in connection herewith, except as provided in § 4.2 above. This Agreement shall not be revocable or terminable except as expressly permitted herein. LICENSOR hereby designates, and authorizes , the Public Works Director to execute all Encroachment Agreements entered into under this Agreement. This designation and authorization may be changed by LICENSOR upon written notice to LICENSEE. 18 808 7536 2_3 14.8 Amendment of Agreement. T hi s Agreement may not be amended except pursuant to a written instrument signed by both parties. 14.9 Entire Agreement. This Agreement contains the entire und erstand in g between the parties with respect to the subject matter herein. There are no representations , agreements, or understandings (whether oral or written) between or among the parties relating to the subject matter of this Agreement which are not fully expressed herein. In witness whereof, and in order to bind themselves lega ll y to the terms and conditions of this Agreement, the duly authorized representatives of the parties have executed this Agreement as of the Effective Date. 14.10 Public Records. LICENSEE acknowledges that information submitted to the LICENSOR may be open to public inspection and copying under state law. LICENSEE may identify in formation , such as trade secrets, proprietary financial records , customer information o r technical in formatio n, s ubmitted to the LIC E NSOR as confidential. LICENSEE shall prominently mark any information for which it claims confidentiality with the word "Confidential" on each page of such in formation prior to submitting such information to the LICENSOR. The LICENSOR shall treat any information so marked as confidential until the LICENSOR receives any request for disclosure of such information. As soon as reasonably possible of receiving any such request, the LICENSOR sha ll provide UCENSEE with written notice of th e request, including a copy of the request. LICENSEE shall promptly re spond , noting the 10 day requirement under the Ca li forn ia Public Records Act to provide a written response to the LICENSOR, before the LICENSOR will disclose any of the requested confidential information. The LICENSOR retains the final discretion to determine whether to re lease the requested confidential information, in accordance with app lic ab le laws . 14. 11 Non-Exclusive Remedies. No provision in this Agreement made for the purpose of securing enforcement of the term s and conditi o ns of this Agreement shall be deemed an exc lu sive remedy or to afford the exc lu s iv e procedure for the enforcement of said terms and conditions , but the remed ies herein provided are deemed to be cumulative. 14.12 No Third-Party Beneficiaries. It is riot intended by any of the provisions of this Agreement to create for the public, or any member thereof, a third-party beneficiary right or remedy , or to authorize anyone to maintain a suit for personal injuries or property damage pursuant to the provisions of this Agreement. The duties , obligations, and re s ponsibilities of the LIC ENSOR with respect to third parties shall remain as imposed by state law. 14.13 Construction of Agreement. The terms and prov1s1ons of this Agreement shall not be construed str ictly in favor of or against either party , 19 808 7536 2_3 regardless of which party drafted any of its provisions. This Agreement shall be construed in accordance with the fair meaning of its terms . 14.14 Effect of Acceptance. LICENSEE (a) accepts and agrees to comply with this Agreement and all applicable federal , state and local laws and regulations ; (b) agrees that this Agreement was granted pursuant to processes and procedures consistent with applicable law; and (c) agrees that it will not raise any claim to the contrary or allege in any claim or proceeding against the LICENSOR that at the time of acceptance of this Agreement any provision, condition or term of this Agreement was unreasonable or arbitrary , or that at the time of the acceptance of this Agreement any such provision, condition or term was void or unlawful or that the LICENSOR had no power or authority to make or enforce any such provision , condition or term. 14.15 Time is of the Essence. Time is of the essence with regard to the performance of all of LICENSEE's obli g ations under this Agreement. [Signature page follows] 20 80875 362 _3 IN WITNESS THEREOF, the parties hereto have caused this Agreement to be legally executed in duplicate this I Lo day of H llLt , 2 0 --1::l:_. A~ft G~~~n~r1 APPROVED AS TO FORM CITY ATTORNEY 'S OFFICE p : )QU( . I)/ Ra~dolph Hom (_9F City Attorney Exhibits: Exhibit A -Encroachment Agreement 80875362_3 LICENSOR: City of Cupertino , a po litical subdivision 0£..the State of California By: Name: Title: LICE NS EE: GTE MOBILNE T OF CALIFORNIA LIMITED PARTNERSHIP, DI BI A V E RIZON WIRELESS by Cellco Partnership , its Managing Partner By: c:Sc~!J, S4z.,;~ Name: Seed-\ 1:>kwu\t Title: ))\no ,ckc-Ne.:\.wo(\s 21 EXHIBIT A FORM OF SUPPLE M ENT ENCROACHMENT AGREEME NT This Encroachment Agreement ("Encroachment Agreement"), made this __ day of _____ , 20 __ ("Effective Date") between the City of Cupertino, a political subdivision of the State of California, hereinafter designated "Licensor" and GTE Mobilnet of California Limited Partnership, d/b/a Verizon Wireless , with its principal offices at c/o Verizon Wireless, 180 Washington Valley Road, Bedminster, New Jersey 07921 , hereinafter designated "Licensee": 1. Encroachment Agreement. This is an Encroachment Agreement as referenced in that certain Small Cell License Agreement between Licensor and Licensee dated • , ,,, . , .., , ~ ("Agreement"). This Encroachment Agreement shall serve as an encroad hme ~t license. All of the terms and conditions of the Agreement are incorporated hereby by reference and made a part hereof without the necessity of repeating or attaching the Agreement. In the event of a contradiction, modification or inconsistency between the terms of the Agreement and thi s Encroachment Agreement, the terms of the Encroachment Agreement shall govern. Capitalized terms used in this Encroachment Agreement shall have the same meaning described for them in the Agreement unless otherwise indicated herein. 2 . Project Description and Locations. Licensee shall have the right to use the ROW for a Small Cell at the designated areas in the ROW as further described in Attachment 1 attached hereto (the "Licensed Area"). 3. Equipment. The Small Cell to be installed at the Licensed Area is described in Attachment 1 attached hereto. 4. Term. The term of this Encroachment Agreement shall be as set forth in Section 2 of the Agreement. 5. Fees. The initial Rent for the term of this E ncroachment Agreement shall be ______ , as determined in accordance with Paragraph 5.1 of the Agreement, as adjusted by Paragraph 5.2 . 6. Commencement Date. The first day of the month following the date Licensee has Commenced Installation of its E quipment at the Licensed Area. 7. Approvals/Fiber. It is understood and agreed that Licensee's ability to use the Licensed Area is contingent upon its obtaining all of the certificates , permits and other approvals ( collectively the "Governmental Approvals") that may be required by any Federal , State or Local authorities , as well as a satisfactory fiber and electrical connection 22 808 75362 _3 which will permit Licensee use of the Licensed Area as set forth above. In the event that (i) any of such applications for such Governmental Approvals should be finally rejected; (ii) any Governmental Approval issued to Licensee is canceled, expires, lapses , or is otherwise withdrawn or terminated by governmental authority; (iii) Licensee determines that such Governmental Approvals may not be obtained in a timely manner; (iv) Licensee determines that it will be unable to obtain in a satisfactory manner, or maintain any fiber or power connection ; or (v) Licensee determines that the Licensed Area is no longer technically compatible for its use, Licensee shall have the right to terminate this Encroachment Agreement. Notice of Licensee's exercise of its right to terminate shall be given to Licensee in writing by certified mail, return receipt requested , and shall be effective upon the mailing of such notice by Licensee , or upon such later date as designated by Licensee. All rentals paid to said termination date shall be retained by Licensor. Upon such termination , this Encroachment Agreement shall be of no further force or effect except to the extent of the representations , warranties and indemnities made by each party to the other hereunder. Otherwise, Licensee shall have no further obligations for the payment of Rent to Licensor. 8. Miscellaneous. ------------------------- [Signature page follows] 23 808 75362_3 EXE CUTED to be effective as of the date s hown above. APPROVED AS TO FORM CITY ATTORNEY'S OFFICE ~y/ .~ ~ Randolph Horn C ity Atto rn ey Exhib its: Attac hment 1 80875362 _3 LICENSOR: C ity of C up ertin o , a political subdivision 0£..~e State of Cali fo rni a '~ By: Name: ---=-....~'-----rl-~~~~---- T itl e: LICENSEE: GTE MOBILNET OF CALIFORNIA LIMITE D PARTNERSHIP , D /B / A VE RIZON WIRELESS by Cellco Partnership , it s Managing Partner By: ~cJA )\tw~ ~1 1(11 Name: 6c D% '.S\.:e \l)CJ..[\: T itl e : ~\J(...C__ \oc ~ D~ ~DS:~ 24 80875362 _3 Attachment 1 Licensed Area 25 Map of Ve rizon Proposed Steel Pole Locations -Cupertino -;,;;;;\ f. 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OF (2) l'llt:±=ltll----(N) EQU IPMENT ~ MOUNTING FRAME '"========~ __J (N) TWIN DIPLEXER , -TYP . OF (2) PLAN Ff· ----------(N) ST EEL LIGHT POLE i . l l "iit--=i (N) SHT. MTL . BASE PLATE COVER -----+-----(N) TWIN DIPLEXER , TYP . OF (2) -+------(N) STEEL PEDESTAL BASE , W/ LOUVERED PANELS ··n~~ ~, ~, ,, ·· llfittl'ff , l .=ft I' 11 I (N) EQUIPMENT MOUNTING FRAME 1~LiWe -.;,+-----(N) RRUS 32 UNIT W/ PSU AC 08 POWER 9~, -" ;..::;; [!) .rui11 1-, I',, lo ., 1.U 1;l ~]i:::3~ • . ~:;:.... ~~ ~]TI .d · : ·1 j· 4.,~ UJ ·m:;;i -;,1 · !:::: ~A <f ·· I\'\-"' ~ : ~ ·j~\ • ••• en , ·, , .. ' INTERFACE , TYP . OF (2) (N) FIBER DEMARC (E) CONCRETE SIDEWALK • --. •a ·. " . UJ ' ~-----~ ..,_. ~=.-_hlfl'=:----------- -~ J,.\MES VACCARO -A R C H I T E C T, I N c_ 411 DONDEEWAY,UWTC PACIFICA I C A i 94044 4 !5.608.3670 PHONE I '115.963.4471 FAX INFO i JV ARCHITECT .COM WWW.JVARCHITEC!.COM I ~ 1W -. c:i l] ' c::::: IIl l ' f- z 0 i= .,: D z ::, 0 LL ~ LL 0 I f- 0.. UJ D . ,,. •· ·4 . . I ., ) _4~ • .<l ~.d . . . ,,l . , I ' ,,. . i ". ~ (N) CONDUIT FOR POWER/ FIBER ·4~ ~- -t-----(N) CONCRETE FOUNDATION " «l ' PRELIMINARY SECTION A NOT FOR CONSTRUCTION J:;,LIENT @) MODUS, INC. 240 STOCKTON STREET, 3RD FlOOR SAN FRANCISCO, CA 94108 verizon" ____ .. _______ _ VERIZON WIRELESS 27e5 MITCHELL DRIVE. SUITE 9 WALNVf CREEK. CA 94598 VERIZON WIRELESS CUPERTINO ODAS STREET LIGHT PROJECT REV I DAT E 1 I 6/912017 2 I 6/14/2017 ISSUE CO NCEPTU AL PEDESTAL BASE CO NCEPTUA L PED ES TAL BASE SHEET TITLE CONCEPTUAL PEDESTAL BASE SH EET NUMBER SK .. 13 ____, I DATE(MM/DDIYYYY) AC<:>Rc,® CERTIFICATE OF LIABILITY INSURANCE ..____.. 05/10/2017 THIS CERTIFICATE IS ISSUED AS A MATIER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMP ORTANT : If the certificate holder is an ADDITIONAL INSURED , the policy(ies) must have ADDITIONAL INSURED provisions or be endorsed. If SUBROGATION IS WAIVED , subject to t he terms and conditions of the policy , certain policies may require an end ors ement. A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER CONTACT Aon Risk Services Northeast, Inc. NAM E: New York NY office rig~~o. Ext): (866) 283-7122 I rffc. No.l: (800) 363-0105 199 water Street E-MAIL New Yo rk NY 10038-3551 USA AD DRE SS: IN SURER (S) AFFORDING COVERAGE NA IC# INSURED INS URER A: National Union Fire Ins Co of Pi ttsburgh 19445 GTE MOBILNET OF CALIFORNIA, LP IN SURE R B: New Hampshire Ins Co 2384 1 dba Ver i zon wire l ess Illinois National Insurance Co 23817 1095 Avenue of the Amer icas INSUR ER C: New Yor k NY 10036 USA INS URER D: INS URER E: INS URER F: COVERAGES CERTIFI CATE NUMBER: 570066440987 REVISION NUMBER: THIS IS TO C ERTIFY TH A T THE POLIC IE S O F IN SURANCE LISTED BELOW H AVE BEEN ISSUED TO THE INSURED NA MED ABOVE FOR THE POLIC Y PER IOD IND ICATED . NOTWITHSTAN DING ANY R EQU IR EMENT, TERM OR COND IT ION OF ANY CONTRACT OR OTHER DOCUMENT W ITH RESP ECT TO WH IC H THI S CERTIFI CATE MAY BE ISSUED OR MAY PERTAIN , THE IN SURANC E AFFO RDED BY THE POLIC IE S DESCRIBED HERE IN IS SUBJECT T O A LL THE TERMS , EXCLUSIONS AND COND IT IONS O F SUCH POLI C IE S . LIMITS SHOWN MAY HAV E BEEN REDUCED BY PAID CLAIMS . Limits shown are as requested U N~ TYPE OF INSURANC E ~uu, ~Ut,H POLICY NUMBE R ,~~J-J'6Mvv1 l~~J-~'6)',My LIMIT S LTR INSD WVD A X COMM ERCIAL GENE RAL LIAB ILI TY GU7'1ooH Ub/ jU/ LU .Lt I Ub/ jU/ LU.LI EACH OCC URREN CE $1 ,000 ,000 -D CLA IMS -MAD E 0occuR DAMAGE TO t<~N I w $2 ,000,000 PREMISES (Ea occurrence) - ME D EXP (Any one person ) $10,000 PERSON AL & ADV INJURY $1,000,000 GEN'L AGGR EG ATE LIMIT APPLI ES PER: GENERAL AGGREGATE $2,000,000 Fl D PRO-DLOC $2,000 ,000 POLICY JECT PRODUCTS -COMP/OP AGG OTHER: A AUTOMOBILE LIABILITY CA 774-21-38 06/30/2016 06/30/2017 COMB INED SINGLE LI MI T $1,000,000 <Ea accident) AOS A X ANY AU TO CA 774 -21-39 06/30/2016 06/30/2017 BOD ILY INJURY ( Per person) >--OWNED -SCHEDULED MA BOD IL Y INJURY (Per accident) A -AUTOS ONLY AUTOS CA 774-21-40 06 /3 0 /20 16 06 /30 /2 017 -PROPERTY DAMAGE HIRED AU TOS NON-OWNED VA (Per accident) -ONLY -AUTOS ON LY UMBRELLA LIAB li--1 OCCUR EACH OCCURRENCE -AGGREGATE EXCESS LIAB CLA IMS -MAD E DED I I RETENTION B WORKERS COMPENSATION AN D WC020681870 06/30/20 1 6 06/30/2017 XI PER I JoTH-EMP LOYERS ' LI ABILITY AOS STATUTE IFR Y/N B ANY PROPR IET OR/ PARTN ER / EXECUT IVE ~ WC020681871 06 /30 /2 016 06 /30/2017 E.L. EACH ACC IDENT $1 ,000 ,000 OFFI CER/MEMB ER EXCLUDED? N/A (M andatory in NH) MN E.L. DISEASE-EA EMPLOYEE $1,000,000 If yes. describe under DESCR IPT ION OF OPERATIONS below E.L. DISEASE-POLICY LI MIT $1,000,000 DES CRIPTION OF OPERATIONS/ LOCATI ONS/ VEHICLES (ACORD 101, Additional Remarks Schedule, may be attached if more s pace is required) City of Cupert ino, its City Council, bo ards and commissions, officers, em~loyees and volu nteer s are included as A dditiona l Insured with respect to the Genera l Liability and Automobile Li abi lity po icies . The General Liability policy shall appl y as Primary and Non -Co nt ributory Insurance to each Addit iona l Insured li sted he rein. wh ere p ermitted by l aw, the Named Insured pa r ties li s ted herein wa ive a ll Rights aga ins t the City of Cupert i no li sted herein for recovery of damages to t h e extent the se damages are covered by the abov e-re fe r enced General Liability and A utomob il e Liability policies, and, as fu rthe r limited by written contract between the partie s . The above-referenced Genera l Liability policy shall cover t h e tort liability of the certificate Holder ass um ed under the un derlying agreement between parties for which t h e certificate has been i ssued . CERTIFICATE HOLDER CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCEL LED BE FORE THE EXPIRATION DATE THEREOF, NOT ICE WILL BE DELIVERED IN ACCORDANC E WI TH THE POLICY PR OV ISIONS . City of Cupertino Att n: city Ma n ager AUTHORIZED REPRESENTATIVE 10300 Torre Avenue ~~!?~~~~ Cupertino CA 95014 -3202 USA ! ~ C: Q) -c ... Q) -c 0 J: l'- CX) "' 0 ..,. ..,. <O <O 0 0 I'- "' 0 z Q) .; 0 ;;: 'f Q) u -~ ~ ~ ~ ~ ~ ~ ..:.... :~ ,:::.:! ~ r_-~=-..:....: ~ -©1988-2015 ACORD CORPORATION . All rights reserved. ACORD 25 (20 16/03 ) The ACORD name and logo are registered marks of ACORD AGE NCY CU STOM ER ID: 5700000273 66 LO C #: ~ AC:<:>RC>® 1..-.----· ADDITIONAL REMARKS SCHEDULE Page _ of_ AG ENCY NA MED INSURED Aon Risk serv i ces Northeast , Inc. GT E MOBILNET OF CA LIFORNIA, L P POLICY NUMBER se e certificate Number: 57006644098 7 CARRIER I NAIC COD E see certifi cate Number: 5700664409 8 7 EFFECTIV E DATE : AD DITI O NAL RE MARKS THI S ADD ITI O NAL RE M AR KS FO RM IS A SC HED ULE TO ACORD FORM , FO RM NUM BE R: ACORD 25 FORM TITLE: Certificate of Liability Insu rance IN S URER(S) AFFORDIN G COV ERAGE NAIC# INSURER INSURER INSURER INSURER ADDITI ONAL POLICIES Ifa p o licy b e l ow d oes not i n c lude limit inform ation , r efer to t h e correspon d ing po licy o n t h e ACORD I certificat e form for p o licy l i mits. PO LI CY PO LI CY I NS R TY PE OF INSURANCE ADD L SU BR POLICY NUMBER EFFECT I VE EXPIR4.TI ON LTR INSD \V V D LI MITS DATE DATE l(MM/DD/YYYYl (MM/D D/YYYY l WORK ER S COM PE NSATI ON A N/A WC 0 20 6818 72 0 6/30 /201 6 06 /30 /2017 CA C N/A WC0 20 68 18 7 3 06/30 /20 1 6 06 /30 /2017 FL B N/A WC 0 20681874 06 /30 /2016 06 /30 /2017 ME B N/A WC 02068187 5 0 6/30 /2016 06 /3 0/2017 NJ,NY,TX,VA B N/A WC 0 20 68 1 876 0 6/30 /201 6 06 /30 /2017 MA,N D,OH,WA,W I ,WY ACORD 101 (2008/01) © 2008 ACORD CORPORATION . All r ig hts reserved . The ACORD name and logo ar e regi stered m arks of ACORD POLICY NUMBER: GL 379-66-51 COMMERCIAL GENERAL LIABILITY CG 20 26 0413 THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED -DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEDULE Name Of Additional Insured Person(s) Or Organization(s): ANY PERSON OR ORGANIZATION THAT YOU HAVE AGREED IN WRITING IN A CONTRACT OR AGREEMENT TO ADD AS AN ADDITIONAL INSURED ON YOUR POLICY. Information requiredj() c_C>r1}Qlete this Schedule, if not shown above, will be shown in the Declarations. A. Section II -Who Is An Insured is amended to include as an additional insured the person(s) or organization(s) shown in the Schedule , but only with respect to liability for "bodily injury", "property damage" or "personal and advertising injury" caused, in whole or in part, by your acts or omissions or the acts or omissions of those acting on your behalf: 1. In the performance of your ongoing operations; or 2. In connection with your premises owned by or rented to you. However: 1. The insurance afforded to such additional insured only applies to the extent permitted by law; and 2. If coverage provided to the additional insured is required by a contract or agreement, the insurance afforded to such additional insured will not be broader than that which you are required by the contract or agreement to provide for such additional insured. B. With respect to the insurance afforded to these additional insureds , the following is added to Section Ill -Limits Of Insurance: If coverage provided to the additional insured is required by a contract or agreement, the most we will pay on behalf of the additional insured is the amount of insurance: 1. Required by the contract or agreement ; or 2. Available under the applicable Limits of Insurance shown in the Declarations; whichever is less. This endorsement shall not increase the applicable Limits of Insurance shown in the Declarations. CG 20 26 0413 © Insurance Services Office , Inc., 2012 Page 1 of 1 ENDORSEMENT This endorsement , effective 12 :01 A.M . 06/30/2016 forms a part of Policy No. CA 774-21-38 issued to VERIZON COMMUNICATIONS INC . by NATIONAL UNION FIRE INSURANCE COMPANY OF PITTSBURGH , PA THIS ENDORSEMENT CHANGES THE POLIC Y . PLEASE READ IT CAREFULLY. ADDITIONAL INSURED -WHERE REQU IRED UN DER CONTRACT OR AGREEMENT This endorsement modifies insurance provided under the following: BUSINESS AUTO COVERAGE FORM SCHEDULE ANY PERSON OR ORGANIZATION FOR WHOM YOU ARE CONTRACTUALLY BOUND TO PROVIDE ADDITIONAL INSURED STATUS, BUT ONLY TO THE EXTENT OF SUCH PERSON 'S OR ORGANIZATION 'S LIABILITY ARISING OUT OF THE USE OF A COVERED "AUTO". I. SECTION II -LIABILITY COVERAGE, A. Cove rage , 1. -W ho Is Insured, is amended to add : d. Any person or organization , shown in the schedule above , to whom you become obligated to include as an additional insu red under this policy, as a result of any contract or agreement you enter into which requires you to furnish insurance to that person or organization of the type provided by this policy , but only with respect to liability arising out of use of a covered "auto". However, the insurance provided will not exceed the lesser of: (1) The coverage and /or limits of this policy , or (2) The coverage and/or limits required by said con tract or agreement. 87950 (10/05) ~ •. ~ \~\~~. ..... .. . ........ --·--'j ··' -·-----' . . . - :.la(\' i~ ORIZED REPRESENTATIVE