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HomeMy WebLinkAboutC-6016 - Temporary Telecommunications License AgreementTEMPORARY TELECOMMUNICATIONS LICENSE AGREEMENT BETWEEN THE CITY OF NEWPORT BEACH AND VERIZON WIRELESS This Temporary Telecommunications License Agreement ( "Agreement ") is entered into by and between, Los Angeles SMSA Limited Partnership, d.b.a. Verizon Wireless, a California Limited Partnership ( "Verizon "), with an address at One Verizon Way, Mail Stop 4AW100, Basking Ridge, New Jersey 07920 and the City of Newport Beach, a municipal corporation and charter city ( "City ") this 12 day of January, 2015 ( "Effective Date "). Verizon and City are individually referred to as "Party" and collectively as "Parties" herein. RECITALS A. City is the fee title owner of that certain real property located at 3201 Newport Boulevard in the City of Newport Beach, California, such property depicted more particularly in Exhibit "A," which depiction is fully incorporated herein by this reference ( "Real Property "); B. Verizon operates telecommunication facilities throughout the City, including a telecommunication facility on the Balboa Peninsula that is unexpectedly scheduled to be shut down due to the destruction of the building upon which it is located; C. The City's Fire Department relies upon Verizon's telecommunications facility for its Mobile Data Computers, electronic patient care reports, and for secondary communications in the event of a failure of the radio system, and many residents within the City rely upon it for their primary 911 telephone; D. Verizon desires to license from City, on a temporary non - exclusive basis, the right to temporarily use that certain portion of the Real Property depicted in Exhibit "B ", which is fully incorporated herein by this reference ( "License Area "), to operate a temporary monopole telecommunications facility and associated support equipment ( "Temporary Monopole "), described on Exhibit "C ", which is fully incorporated herein by this reference, to ensure there is no interruption in vital City services while Verizon secures a permanent location for its telecommunication facility on the Balboa Peninsula; and E. The City is directing Verizon to install the Temporary Monopole at the License Area pursuant to Newport Beach Municipal Code Section 20.49.020(C)(5) and Section G of City Council Policy L -23 to ensure there are no interruptions in the Fire Department's operations or disruptions to residents' access to emergency services. NOW THEREFORE, THE PARTIES AGREE AS FOLLOWS: Verizon Wireless Page 1 1. LICENSE 1.1 City grants a non - exclusive license ( "License ") to Verizon for the term of this Agreement, to temporarily install, operate, and maintain the Temporary Monopole on the License Area. 1.2 All installation and maintenance activities shall be at Verizon's sole cost and expense, including but not limited to the fees and costs associated with the installation of the Temporary Monopole and any required utilities or meters. Verizon shall at its sole cost and expense comply with all applicable federal, state and /or local laws and regulations. The License granted herein is subject to the terms, covenants and conditions hereinafter set forth, and Verizon covenants, as a material part of the consideration for this License, to keep and perform each and every term, covenant and condition of this Agreement. 1.3 Notwithstanding Verizon's construction and installation of the Temporary Monopole, it is the Parties' intention that Verizon's interest in the License Area and Real Property is restricted to this License and the City retains all rights, title and interest in the License Area and Real Property. 2. USES 2.1 Verizon shall use the License Area for the sole purpose of constructing, maintaining, securing and operating the Temporary Monopole. Construction and operation of the Temporary Monopole shall be at Verizon's sole expense. Verizon shall keep the License Area free from hazards or risk to the public health, safety or welfare. 2.2 Except as provided under this Agreement, Verizon shall not make or permit to be made any alterations, additions or improvements to the License Area or Real Property, or paint, install lighting or decorations, or install any signs, lettering or advertising media of any type or any other visual displays, on or about the License Area or Real Property without the prior written consent of City. Notwithstanding the foregoing, Verizon shall place warning signs on or about the Temporary Monopole in the manner required by Federal, State or local law. 3. GOVERNMENT APPROVALS In addition to this Agreement, Verizon shall, at its sole cost and expense, obtain a Building Permit from the Community Development Department, Building Division and all other governmental licenses, permits and approvals required by Federal, State or local governmental agencies, enabling Verizon to construct, operate, repair and remove the Temporary Monopole in the License Area. 4. TERM This Agreement shall commence upon the Effective Date and terminate upon Verizon constructing a permanent telecommunications facility at another location on the Balboa Peninsula or on May 31, 2015, whichever occurs first. Both Parties understand and agree, this Agreement is for a temporary limited period of time and this is not, and will not result in the permanent location of a Verizon wireless telecommunication facility on the License Area or Real Property. Verizon Wireless Page 2 5. FEES AND COSTS 5.1 Within five (5) days following the full execution of this Agreement, and on the first day (1s) of each month during the Term, Verizon shall pay to City a License Fee in an amount of FIFTEEN HUNDRED DOLLARS and NO CENTS ($1,500.00) per month. The License Fee for any partial month shall be prorated in accordance with the actual number of days in that month. 5.2 Place for Payment of License Fee: All payments of the License Fee shall be made in lawful money of the United States of America and shall be paid to City on line at www.newportbeachca.gov, in person or by United States' mail, or overnight mail service, at the Cashier's Office located at 100 Civic Center Drive, Newport Beach, CA 92660, or to such other address as City may from time to time designate in writing to Verizon. Verizon assumes all risk of loss and responsibility for late charges and delinquency rates if payments are not timely received by the City regardless of the method of transmittal. 5.3 A ten percent (10 %) penalty shall be added to the License Fee if not received by City within five (5) days following the due date. In addition all unpaid fees shall accrue interest at the rate of five percent (5 %) per month or any portion of a month until paid in full. 6. INTERFERENCE WITH CITY TELECOMMUNICATIONS 6.1 Verizon agrees that its operation of the Temporary Monopole shall at all times comply with all Federal Communications Commission ( "FCC ") requirements and shall not cause any direct or indirect interference with the operation of the City's own wireless communications facilities, including but not limited to public safety transmissions, police and fire communications, water or sewer internal or external radio signals and communications, as they now exist or may from time -to -time hereafter exist ( "City's Facilities "). 6.2 In the event of any interference with City Police and Fire Department public safety communications, Verizon shall work with the affected Department to correct the interference within two (2) hours of City's written or telephone notice to Verizon. In the event of interference with City's wireless communications system or external radio signals and communications other than Police or Fire Department, Verizon shall work with City to correct the interference within twenty -four (24) hours of City's written or telephone notice. If it is determined the interference is caused by the Temporary Monopole and if Verizon is unable to correct interference to City's satisfaction, Verizon shall immediately cease its operation of the Temporary Monopole until the cause of the interference is corrected to City's satisfaction. If Verizon fails to correct any interference, City may, in addition to and without compromising any other available remedy cut off power to the Temporary Monopole as set forth in this Agreement. 6.3 Prior to making any changes to the frequency or operating conditions of the Temporary Monopole, Verizon shall submit plans for the proposed changes to City for its review and approval. Verizon agrees to fund any studies required to ensure that Verizon Wireless Page 3 any contemplated changes will be compatible with the City's Facilities. No Verizon change shall occur prior to the City's approval. 7. EMERGENCY 7.1 Verizon understands that the Temporary Monopole is located on public property and emergency situations may develop from time -to -time that require power to the Temporary Monopole to be immediately shut off and thereby interfere or temporarily terminate the Verizon's use of its Temporary Monopole and License Area. Verizon agrees that if such a situation occurs, and /or there are frequency interferences of any nature between City's Police and Fire Department public safety communications equipment or City's Facilities affecting operation of sewer or water service and that of Verizon in a manner that threatens public health or safety, City shall have the right to immediately shut off power to the Temporary Monopole and any equipment of Verizon's located on the License Area for the duration of the emergency. Verizon agrees not to hold City responsible or liable for and shall protect, defend, indemnify and hold City harmless for any damage, loss, claim or liability of any nature suffered as a result of the loss of the use of the Temporary Monopole or other communication facilities by the shut off of power. 7.2 Verizon agrees to install a clearly marked and accessible master power "cut -off' switch on their equipment for the purpose of assisting City in such an emergency. 7.3 Unless otherwise specifically provided in a notice of termination of this Agreement, City's exercise of the right to shut off any power to the Temporary Monopole is not intended to constitute a termination of this Agreement by either Party and such event is a risk accepted by the Verizon. Verizon and City shall meet after the City determines that an emergency situation has ended to establish the time and manner in which power shall be restored. The License Fee, prorated to a 365 -day year, shall be abated for any day, or part thereof, in which power to the Temporary Monopole is shut off by the City pursuant to this Agreement. 7.4 City shall have the right to reasonably determine what constitutes an "emergency situation" pursuant to this section. 8. ACCEPTANCE OF CONDITION OF VERIZON AREA Verizon accepts use of the License Area in an "as is" condition, with no warranty, express or implied from the City as to any latent, patent, foreseeable and unforeseeable condition of the License Area, including its suitability for the use intended by Verizon. To the best of City's knowledge, the License Area has not been used for generation, storage, treatment or disposal of Hazardous Substances as defined in this Agreement. Verizon has conducted its own appropriate due diligence investigation of the License Area prior to its execution of this Agreement. 9. NO INTEREST IN PROPERTY Nothing herein shall be deemed to create a lease, or easement of any property right, or to grant any, possessory or other interest in the License Area, Real Property, or any public right -of -way, other than a real property license to use and access the License Verizon Wireless Page 4 Area, revocable and for a temporary term as set forth in this Agreement 10. RESERVATION OF RIGHTS Verizon understands, acknowledges and agrees that any and all authorizations granted to Verizon under this Agreement are non - exclusive and shall remain subject to all prior and continuing regulatory and propriety rights and powers of City to regulate, govern and use City property, as well as any existing encumbrances, deeds, covenants, restrictions, easements, dedications and other claims of title that may affect City property. 11. UTILITIES Verizon shall not do, nor shall it permit anything to be done that may interfere with the effectiveness and accessibility of the Real Property, except as may be specifically permitted by this Agreement. Verizon shall install a submeter in connection with the operation of the Temporary Monopole. In addition to the License Fee, Verizon shall be responsible for the cost of all utility services necessary for the operation of the Temporary Monopole, and if required by City, shall have such utilities installed underground and /or connected if already installed, and maintained at Verizon's sole cost and expense (along with all ongoing use charges). Subject to City's approval, Verizon shall obtain an encroachment permit from City's Public Works Department and submit plans for underground construction of any required utility lines to City for its review and approval prior to commencement of construction. Notwithstanding the requirement to install submeter, with the City Manager's written consent, Verizon may obtain power for the Temporary Monopole through the existing building located upon the Real Property provided it does not interfere or prevent use of the building, including the building's power for normal operation. As a practical matter, the building is currently unoccupied so that any electrical expense associated with the building is attributable to, or for the benefit of, Verizon, thus Verizon shall pay the full electrical charge for the building during the term of this Agreement. Verizon shall reimburse the City for any power used via the existing building within thirty (30) calendar days of the submission of an invoice from the City, which invoices are to be sent to Verizon Wireless, M/S 3846, Post Office Box 2375, Spokane, Washington 99210 -2375. Verizon shall restore those portions of the building disturbed in connection with the installation of the submeter to their condition existing immediately prior to such disturbance as approved by the City upon the termination or expiration of this Agreement. 12. INSPECTION City shall be entitled, at any time, to inspect the License Area and Temporary Monopole for compliance with the terms of this Agreement, and with all applicable Federal, State and local (including those of the City) government regulations. 13. CITY RETENTION RIGHTS Verizon's right to use the License Area during the term of this Agreement shall be subordinate and junior to the rights of City to use and occupy the License Area and Real Property for any purpose that does not interfere with Verizon's use of the License Area as provided herein. Verizon Wireless Page 5 14. VERIZON'S RETENTION OF TITLE Title to the Temporary Monopole placed on the License Area by Verizon shall be held by Verizon or its equipment lessors, successors, or assigns. The Temporary Monopole shall not be considered a fixture. Verizon has the right to remove the Temporary Monopole at its sole expense from time -to -time and in all events by the expiration of this License or within thirty (30) calendar days after an early termination of this License. 15. SURRENDER Upon expiration or termination of this Agreement, Verizon at its sole cost and expense, shall within thirty (30) calendar days of written notice from City, remove the Temporary Monopole, restore the License Area to its original condition or to a condition satisfactory to and approved by City, and vacate the License Area. Should Verizon fail to restore the License Area to a condition satisfactory to City, City may perform such work or have such work performed by others and Verizon shall immediately reimburse City for all direct and indirect costs associated with such work upon receipt of an invoice for such costs. Verizon shall continue to pay the License Fee until the License Area is so restored as required by this Agreement. 16. ASSIGNMENT 16.1 All of the terms and provisions of this Agreement shall inure to the benefit of and shall be binding upon the Parties and their respective successors and assigns. This Agreement and the rights and obligations of Verizon shall not be assigned, transferred, or hypothecated (collectively referred to as "transferred "), in whole or in part, without the express written consent of the City, which consent shall not be unreasonably withheld, delayed or conditioned and may be withheld if assignee is of lesser financial status than Verizon when this Agreement was executed. Any attempted transfer in violation of this Section shall be void. Except as provided below, the transfer of the rights and obligations of Verizon to any successor in interest or entity acquiring fifty -one percent (51 %) or more of Verizon's stock or assets, shall be deemed an assignment requiring consent. Verizon shall provide City at least thirty (30) calendar days advance written notice of any proposed transfer. 16.2 If Verizon desires at any time to effect a transfer, it shall first deliver to City: (1) a written request for approval; (2) the name, address and most recent financial statements of the proposed transferee; and (3) the proposed instrument of assignment or sublease, which in the case of assignment shall include a written assumption by the assignee of all obligations of this Agreement arising from and after the effective date of assignment. 16.3 Notwithstanding Section 16.1 above, Verizon may, without prior approval from time -to -time, do any of the following: 16.4 Grant to any person or entity a security interest in some or all of Verizon's Temporary Monopole which lien shall be subordinate and junior to this Agreement; and 16.5 Assign its rights hereunder: (i) to any entity which has, directly, or indirectly, a thirty percent (30 %) or greater interest in Verizon (a "Parent ") or in which Verizon Wireless Page 6 Verizon or a Parent has a thirty percent (30 %) or greater interest (an "Affiliate "); (ii) to any entity with which Verizon and /or any Affiliate may merge or consolidate; (iii) to a buyer of substantially all of the outstanding ownership units or assets of Verizon or any Affiliate; or (iv) to the holder or transferee of the FCC license under which the Temporary Monopole is operated, upon FCC approval of any such transfer. Any such assignment shall be conditioned upon and not be effective until Verizon cures any defaults under this Agreement and the assignee signs and delivers to City a document in which the assignee accepts responsibility for all of Verizon's post, current and future obligations under the Agreement. 16.6 No assignment by Verizon shall release Verizon from continuing liability under this Agreement with the exception of a buyout of the Verizon by another entity which formally assumes all post, current and future obligations of the Verizon under this Agreement. 17. TAXES Verizon shall pay all personal interest property taxes, real property taxes, fees and assessments which may at any time be imposed or levied by any public entity and attributable to the Temporary Monopole authorized herein. City hereby gives notice to Verizon, pursuant to Revenue and Tax Code Section 107.6 that this Agreement may create a possessory interest which is the subject of property taxes levied on such interest, the payment of which taxes shall be the sole obligation of Verizon. 18. RELOCATION Verizon agrees that whenever any City improvements may be required (for example, the widening of a street), the City may require the relocation of the Temporary Monopole at Verizon's expense, without making any claim against the City for reimbursement or damage therefore. Except in the event of an emergency or other situation requiring immediate relocation of the Temporary Monopole, City shall provide Verizon with not less than thirty (30) calendar days written notice of relocation specifying a date by which the relocation is to take place. 19. TERMINATION This Agreement may be terminated by either Party, for any reason, with or without cause, by giving thirty (30) calendar days written notice to the other Party. 20. CONSTRUCTION 20.1 Verizon agrees to take all prudent action to protect the License Area, Real Property and City Facilities from any damage or injury caused by any work performed by or on behalf of Verizon regarding the construction, installation, operation, inspection, maintenance, repair, reconstruction, replacement, relocation, or removal of the Temporary Monopole or the failure, deterioration or collapse of such Temporary Monopole. 20.2 Verizon shall, at its sole cost and expense, continually maintain in a first - class manner, and repair any damage to the License Area, to the extent such damage is caused by Verizon or any of its agents, representatives, employees, contractors, Verizon Wireless Page 7 subcontractors, or invitees. Verizon shall immediately notify the City Manager and the appropriate public safety agency (e.g., police and fire department) of any damage or injury caused by work authorized pursuant to this Agreement. 20.3 Without limitation of any other remedy available hereunder or at law or in equity, if Verizon fails to repair or refinish any such damage, City may, at its sole discretion, but not be required to, repair or refinish such damage and Verizon shall reimburse City of all costs and expenses incurred in such repair or refinishing. 20.4 Verizon, prior to the installation of the Temporary Monopole shall submit to the City and, throughout the Term, maintain in effect, a bond, letter of credit or other security, in the principal amount of Ten Thousand and 00/100 Dollars ($10,000.00) ( "Security ") to ensure and secure faithful compliance with the conditions of this Agreement. The Security shall be in a form acceptable to the City, and shall remain in effect throughout the term of this Agreement. The purpose of the Security is to provide payment to the City for any and all expenditures incurred by the City under this Agreement, including but not limited to costs of repairs and cost of removal of the Temporary Monopole upon expiration or termination of this Agreement should Verizon fail to do so as required by this Agreement. The Security shall in no way limit the liability or obligations of Verizon or its insurers under this Agreement. If the funds represented by the Security become exhausted, Verizon shall immediately provide the City with a new security in the amount necessary to provide full required Security. 21. MAINTENANCE At its sole cost and expense, Verizon shall take good care of the Temporary Monopole and keep the License Area neat, clean and free from graffiti, dirt and rubbish at all times. 22. INDEMNIFICATION To the fullest extent permitted by law, Verizon shall indemnify, defend and hold harmless City, its City Council, boards and commissions, officers, agents, volunteers, and employees (collectively, the "Indemnified Parties ") from and against any and all claims (including, without limitation, claims for bodily injury, death or damage to property), demands, obligations, damages, actions, California Coastal Commission enforcement actions, causes of action, suits, losses, judgments, fines, penalties, liabilities, costs and expenses (including, without limitation, attorney's fees, disbursements and court costs) of every kind and nature whatsoever (individually, a Claim; collectively, "Claims "), which may arise from or in any manner relate (directly or indirectly) to Verizon's breach of the terms and conditions of this Agreement, any latent or patent defects in the design and construction of the Temporary Monopole, or work thereon conducted under this Agreement including, without limitation, defects in workmanship or materials or Verizon's presence or performance of duties on the License Area and /or Real Property (including the negligent and/or willful acts, errors and /or omissions of Verizon, its principals, officers, agents, employees, vendors, suppliers, subcontractors, anyone employed directly or indirectly by any of them or for whose acts they may be liable or any or all of them). Verizon Wireless Page 8 Notwithstanding the foregoing, nothing herein shall be construed to require Verizon to indemnify the Indemnified Parties from any Claim arising from the sole negligence or willful misconduct of the Indemnified Parties. Nothing in this indemnity shall be construed as authorizing any award of attorney's fees in any action on or to enforce the terms of this Agreement. This indemnity shall apply to all claims and liability regardless of whether any insurance policies are applicable. The policy limits do not act as a limitation upon the amount of indemnification to be provided by the Verizon. 23. INSURANCE 23.1 Without limiting Verizon's indemnification of City, and prior to commencement of work, Verizon shall obtain, provide and maintain at its own expense during the term of this Agreement, policies of insurance of the type and amounts described below and in a form satisfactory to City. 23.2 Proof of Insurance. Verizon shall provide certificates of insurance to City as evidence of the insurance coverage required herein, along with a waiver of subrogation for workers' compensation. Insurance certificates must be approved by City's Risk Manager prior to commencement of performance. Current certification of insurance shall be kept on file with City at all times during the term of this Agreement. City reserves the right to require complete, certified copies of all required insurance policies in the event of loss. 23.2.1 Verizon shall procure and maintain for the duration of the Agreement insurance against claims for injuries to persons or damages to property, which may arise from or in connection with the performance of the Work hereunder by Verizon, or its employees. Verizon shall also require that its agents, representatives, and contractors maintain the insurance required hereunder. The cost of such insurance shall be included in Verizon's bid. 23.3 Acceptable Insurers. All insurance policies shall be issued by an insurer currently authorized by the Insurance Commissioner to transact business of insurance in the State of California, with an assigned policyholders' Rating of A- (or higher) and Financial Size Category Class VII (or larger) in accordance with the latest edition of Best's Key Rating Guide, unless otherwise approved by the City's Risk Manager. 23.4 Coverage Requirements. 23.4.1 Workers' Compensation Coverage. Verizon shall maintain Workers' Compensation Insurance (Statutory Limits) and Employer's Liability Insurance (with limits of at least one million dollars ($1,000,000)) each accident/disease /policy limit for Verizon's employees in accordance with the laws of the State of California, Section 3700 of the Labor Code In addition, Verizon shall require each subcontractor to similarly maintain Workers' Compensation Insurance and Employer's Liability Insurance in accordance with the laws of the State of California, Section 3700 for all of the subcontractor's employees. 23.4.1.1 Reserved. Verizon Wireless Page 9 23.4.1.2 Verizon shall submit to City, along with the certificate of insurance, a Waiver of Subrogation endorsement, blanket endorsement, or policy coverage forms in favor of City, its officers, agents, employees and volunteers. 23.4.2 General Liability Coverage. Verizon shall maintain commercial general liability insurance in an amount not less than one million dollars ($1,000,000) per occurrence for bodily injury, and property damage, including without limitation, blanket contractual liability. 23.4.2.1 The policy shall carry a general liability special endorsement, blanket endorsement, or policy coverage forms naming the City of Newport Beach, its elected or appointed officers, employees, agents and volunteers as additional named insured in the amount of one million dollars ($1,000,000) per occurrence. 23.4.2.2 Verizon's insurance coverage shall be primary insurance and /or primary source of recovery as respects to City, its elected or appointed officers, agents, officials, employees and volunteers as respects to all claims, losses, or liability arising directly or indirectly from the Verizon's operations or services provided to the City. Any insurance or self- insurance maintained by City, its officers, officials, employees and volunteers shall be excess of the Contractor's insurance and shall not contribute with it. 23.4.3 Automobile Liability Coverage. Verizon shall maintain automobile insurance covering all owned, non -owned and hired vehicles in the amount of one million dollars ($1,000,000) combined single limit for each accident for bodily injury and property damage. 23.5 Other Insurance Provisions or Requirements. The policies are to contain, or be endorsed to contain, the following provisions: 23.5.1 Waiver of Subrogation. The worker's compensation coverage maintained or procured pursuant to this Agreement shall include a waiver of subrogation in favor of the City, its elected or appointed officers, officials, employees and volunteers. 23.5.2 Enforcement of Agreement Provisions. Verizon acknowledges and agrees that any actual or alleged failure on the part of the City to inform Verizon of non- compliance with any requirement imposes no additional obligations on the City nor does it waive any rights hereunder. 23.5.3 Requirements not Limiting. Requirements of specific coverage features or limits contained in this Section are not intended as a limitation on coverage, limits or other requirements. 23.5.4 Reserved. 23.6 Timely Notice of Claims. Verizon shall give City prompt and timely notice of claims made or suits instituted that arise out of or result from Verizon's performance under this Agreement. Verizon Wireless Page 10 23.7 Additional Insurance. Verizon shall also procure and maintain, at its own cost and expense, any additional kinds of insurance, which in its own judgment may be necessary for its proper protection and prosecution of the work. 24. HAZARDOUS SUBSTANCES 24.1 From the date of execution of this Agreement throughout the Term, Verizon shall not use, store, manufacture or maintain on the License Area or Real Property any Hazardous Substances except (i) in such quantities and types found customary in construction, repair, maintenance and operations of the Temporary Monopole approved by this Agreement, (ii) petroleum and petroleum products contained within regularly operated motor vehicles. Verizon shall handle, store and dispose of all Hazardous Substances it brings onto the License Area or Real Property in accordance with applicable laws. 24.2 For purposes of this Agreement, the term "Hazardous Substance" means: (i) any substance, product, waste or other material of any nature whatsoever which is or becomes listed, regulated, or addressed pursuant to the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. ( "CERLCA "); the Hazardous Materials Transportation Act, 49 U.S.C. Section 1801, et seq.; the Resource Conversation and Recovery Act, 42 U.S.C. Section 6901 et seq. ( "RCRA "); the Toxic Substances Control Act, 15 U.S.C. Section 2601 et seq.; the Clean Water Act, 33 U.S.C. Section 1251 et seq.; the California Hazardous Waste Control Act, Health and Safety Code Section 25100 et seq.; the California Hazardous Substance Account Act, Health and Safety Code Sections 25330 et seq.; the California Safe Drinking Water and Toxic Enforcement Act, Health and Safety Code Sections 25249.5 et seq.; California Health and Safety Code Sections 25280 et seq. (Underground Storage of Hazardous Substances); the California Hazardous Waste Management Act, Health and Safety Code Sections 25170.1 et seq.; California Health and Safety Code Sections 25501 et seq. (Hazardous Materials Response Plans and Inventory); or the Porter - Cologne Water Quality Control Act, Water Code Sections 13000 et seq., all as they, from time -to -time may be amended, (the above -cited statutes are here collectively referred to as "the Hazardous Substances Laws') or any other Federal, State or local statute, law, ordinance, resolution, code, rule, regulation, order or decree regulating, relating to, or imposing liability or standards of conduct concerning, any hazardous, toxic or dangerous waste, substance or material, as now or at any time hereafter in effect; (ii) any substance, product, waste or other material of any nature whatsoever which may give rise to liability under any of the above statutes or under any statutory or common law theory, including but not limited to negligence, trespass, intentional tort, nuisance, waste or strict liability or under any reported decisions of a state or federal court; (iii) petroleum or crude oil; and (iv) asbestos. 24.3 Notwithstanding any contrary provision of this Agreement, and in addition to the indemnification duties of Verizon set forth in this Agreement, Verizon agrees to indemnify, defend with counsel reasonably acceptable to City, protect, and hold harmless the City, its officials, officers, employees, agents, and assigns from and against any and all losses, fines, penalties, claims, damages, judgments, or liabilities, including, but not limited to, any repair, cleanup, detoxification, or preparation and implementation of any remedial, response, closure or other plan of any kind or nature which the City, its officials, officers, employees, agents, or assigns may sustain or incur Verizon Wireless Page 11 or which may be imposed upon them in connection with the use of the License Area provided under this Agreement by Verizon, arising from or attributable to the storage or deposit of Hazardous Substances on or under the License Area by Verizon. This Section is intended to operate as an agreement pursuant to Section 107(e) of CERCLA, 42 USC Section 9607(e), and California Health and Safety Code Section 25364, to insure, protect, hold harmless, and indemnify City for any claim pursuant to the Hazardous Substance Laws or the common law. 24.4 City agrees that City will not, and will not authorize any third party to use, generate, store, or dispose of any Hazardous Substances on, under, about or within the License Area in violation of any law or regulation. City and Verizon each agree to defend, indemnify and hold harmless the other and the other's partners, affiliates, agents and employees against any and all losses, liabilities, claims and /or costs arising from any breach of any representation, warranty or agreement contained in this Section. This Section shall survive the termination of this Agreement. Upon expiration or earlier termination of this Agreement, Verizon shall surrender and vacate the License Area and deliver possession thereof to City on or before the termination date free of any Hazardous Substances released into the environment at, on or under the License Area that are directly attributable to Verizon. 25. COMPLIANCE WITH LAWS Verizon, at its sole cost, shall observe, perform, and comply with all laws, statutes, ordinances, rules, and regulations promulgated by any governmental agency and applicable to the Temporary Monopole and the License Area, or the use thereof, including all RF safety standards, Americans with Disability Act requirements, applicable zoning ordinances, building codes and environmental laws. Verizon shall not occupy or use the Temporary Monopole and License Area or permit any portion of the Temporary Monopole and License Area to be occupied or used for any use or purpose that is unlawful in part or in whole, or deemed by City to be disreputable in any manner or extra hazardous on account of fire. 26. NOT AGENT OF CITY Neither anything in this Agreement nor any acts of Verizon shall authorize Verizon or any of its employees, agents or contractors to act as agent, contractor, joint venturer or employee of City for any purpose. 27. NO THIRD PARTY BENEFICIARIES City and Verizon do not intend, by a provision of this Agreement, to create in any third party, any benefit or right owed by one Party, under the terms and conditions of this Agreement, to the other Party. 28. NOTICES All notices and other communications required or permitted to be given under this Agreement, including any notice of change of address, shall be in writing and given by personal delivery, or deposited with the United States Postal Service, postage prepaid, addressed to the parties intended to be notified. Notice shall be deemed given as of the date of personal delivery, or if mailed, upon the date of deposit with the United States Verizon Wireless Page 12 Postal Service. Notice shall be given as follows: To City: City Manager City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Real Property Administrator City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 and with respect to insurance issues: To Verizon: City Risk Manager City of Newport Beach 100 Civic Center Drive Newport Beach, CA 92660 Los Angeles SMSA Limited Partnership d /b /a Verizon Wireless 180 Washington Valley Road Bedminster, New Jersey 07921 Attention: Network Real Estate (Site: Newport Bay Relo Temp) 29. CITY BUSINESS LICENSE Verizon shall obtain and maintain during the duration of this Agreement, a City business license as required by the Newport Beach Municipal Code. 30. TIME IS OF THE ESSENCE Time is of the essence for this Agreement. 31. STANDARD PROVISIONS 31.1 Waiver. The waiver by either Party of any breach or violation of any term, covenant or condition of this Agreement, or of any ordinance, law or regulation, shall not be deemed to be a waiver of any other term, covenant, condition, ordinance, law or regulation, or of any subsequent breach or violation of the same or other term, covenant, condition, ordinance, law or regulation. The subsequent acceptance by either Party of any fee, performance, or other consideration which may become due or owing under this Agreement, shall not be deemed to be a waiver of any preceding breach or violation by the other Party of any term, condition, covenant of this Agreement or any applicable law, ordinance or regulation. Verizon Wireless Page 13 31.2 Integrated Contract. This Agreement represents the full and complete understanding of every kind or nature whatsoever between the Parties hereto, and all preliminary negotiations and agreements of whatsoever kind or nature are merged herein. No verbal agreement or implied covenant shall be held to vary the provisions herein. 31.3 Conflicts or Inconsistencies. In the event there are any conflicts or inconsistencies between this Agreement or any other attachments attached hereto, the terms of this Agreement shall govern. 31.4 Interpretation. The terms of this Agreement shall be construed in accordance with the meaning of the language used and shall not be construed for or against either Party by reason of the authorship of the Agreement or any other rule of construction which might otherwise apply. 31.5 Amendments. This Agreement may be modified or amended only by a written document executed by both Verizon and City and approved as to form by the City Attorney. 31.6 Severability. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 31.7 Controlling Law and Venue. The laws of the State of California shall govern this Agreement and all matters relating to it and any action brought relating to this Agreement shall be adjudicated in a court of competent jurisdiction in the County of Orange. 31.8 Eaual Opportunity Employment. Verizon represents that it is an equal opportunity employer and it shall not discriminate against any subcontractor, employee or applicant for employment because of race, religion, color, national origin, handicap, ancestry, sex or age. 31.9 No Attorney's Fees. In the event of any dispute or legal action arising under this Agreement, the prevailing Party shall not be entitled to attorney's fees. 31.10 Counterparts. This Agreement may be executed in two (2) or more counterparts, each of which shall be deemed an original and all of which together shall constitute one (1) and the same instrument. [SIGNATURES NEXT PAGE] Verizon Wireless Page 14 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed in duplicate on the dates indicated below. APPROVED AS TO FORM: OFFICE OFT Date: E ITY ATTORNEY By: Aaron C. Harp CAA I!�/)Y City Attorney ATTEST: Date: I. 1b, 16 By: Leilani I. Brown City Clerkpp� p� 10Cf FOR© CITY OF NEWPORT BEACH, A California municipal corporation Date: By. �: Dave Ki City Manager LOS ANGELES SMSA LIMITED PARTNERSHIP, DBA VERIZON WIRELESS A California Limited Partnership Date: By: AirTouch Cellular, its General Partner Name:Brian Mecum Title: Area Vice President Network Date: [END OF SIGNATURES] Exhibit A: Real Property Depiction Exhibit B: License Area Depiction Exhibit C: Temporary Monopole Description Verizon Wireless Page 15 Exhibit B License Area Depiction Verizon Wireless Page B -1 4 CI N (JI - - -- -- -- OA191lIOdM3N --- ---� —� __ _ —_ --- r II I I I 19 II I I I ��18nd� �11d - C-- -- , It ZZ 3= t v Z a aQ e�� a w, imr3n uuoerez lase eryze voewi 1191HX33SN3O1I �anpv�j� ��m�ssr ssalwim Y� L/dA Ntlld 3115 NW6VO'HOV391dOdM3N - - - -- ^ r p a w $ 3 u 'OAl91dOdM3N LOZf A136 AV91dOdM3N. 3WVN 3115 J 5 4 CI N (JI - - -- -- -- OA191lIOdM3N --- ---� —� __ _ —_ --- r II I I I 19 II I I I ��18nd� �11d - C-- -- , It ZZ 3= t v Z a aQ e�� a w, ao 538�2JIM II Ip =VNN31NV SNdi n _ n =w . ... 31NV ONV 3W1d0 MdW313f3NMU 3N 3NN LOZ£ 3N. �3WdN 3L5 - Cie 3� 8; s w r fY J r a a s4 a. < a < . X42 wp M8 b �o �1 lox i�t 3hsq 3tl5 � $a4 opaw o ae -5 "M a y4 y E � Exhibit C Temporary Monopole Description Balboa Peninsula Temporary Monopole & Cell on Wheels Verizon Wireless is proposing to deploy a COW (cell on wheels) from January 15, 2015, until the approved permanent site located at 3421 Via Oporto and the parking structure at 3434 Via Lido is constructed and online. The permanent site is expected to be completed and online before June 1, 2015. The COLT will be servicing an area that was previously serviced by a permanent site located at 3355 Via Lido; however, the building that the permanent site is located on is set for demolition January 16, 2015. Verizon Wireless is entering into a license agreement with the City of Newport Beach to locate a temporary site at 3201 Newport Boulevard until the new permanent site is completed and online. Once the COW is online January 15th, it will operate 24/7 until it is deconstructed once the new permanent site is constructed and online. The COW will consist of (6) multi -beam panel antennas and (1) microwave dish mounted on an 8' x 8' ballast- based, 50 -foot tall monopole tower, a trailer mounted (COW) equipment room, and (1) "quiet whisper watt" 45kv trailer mounted generator to be used for emergency back -up power. Generator is to be surrounded by hay bales (if necessary) for sound attenuation purposes. The site will also include a chain link fence with green screen mesh to fully enclose the equipment area. The COW will be set up in an approximate 9' X 56' parcel behind the existing building occupying 3 parking stalls, provided by the City of Newport Beach. The temporary site is needed to provide coverage in the area due to the loss of the permanent site until the newly approved permanent site design receives plan check approval /building permit and is constructed. Verizon Wireless Page C -1