The URL can be used to link to this page

Home My WebLink AboutT-Mobile West, LLC 2nd Amendment To Communications Site License Agreement - 4-4-24 DocuSign Envelope ID:493EE44C-E930-482E-A053-CC4618219342 SECOND AMENDMENT TO COMMUNICATIONS SITE LICENSE AGREEMENT This Second Amendment to Communications Site License Agreement (Second Amendment) is effective as of the last signature below (Effective Date) by and between City of Fresno, a municipal corporation (Licensor) and T-Mobile West LLC, a Delaware limited liability company (Licensee) (each a Party, or collectively, the Parties). Licensor and Licensee (or their predecessors-in-interest) entered into that certain Communications Site License Agreement dated November 1, 2002, including that certain First Amendment to Communications Site License Agreement dated April 1, 2019 (including all amendments, collectively, the License) regarding the leased premises (Premises) located at 801 Van Ness Avenue, Fresno, CA 93721 (Licensor's Property). For good and valuable consideration, Licensor and Licensee agree as follows: 1. At the expiration of the License on October 27, 2022, the License will extend two additional years. No additional extension shall be allowed. 2. At the commencement of the first Renewal Term on October 28, 2022, provided for in this Second Amendment, Licensee shall pay Licensor Seventeen Thousand Five Hundred and No/100 Dollars ($17,500.00) per year as Rent, partial year to be prorated in advance. Where duplicate Rent would occur, a credit shall be taken by Licensee for any prepayment of Rent by Licensee. 3. Licensee will pay to Licensor a one-time non-refundable amount of Ten Thousand and No/100 Dollars ($10,000.00) for the full execution of this Second Amendment. Licensee will pay Licensor the one-time non-refundable amount of Ten Thousand and No/100 ($10,000.00) to Licensor within sixty (60) days of the full execution of this Second Amendment. 4. Section 9 of the original License shall be amended as follows: Termination. Notwithstanding any other provision to the contrary, Licensor shall the have the right to terminate this License upon one hundred eighty days' notice to Licensee if there is a partial or complete sale of Licensor's Property, including the Premises. This License may be terminated without further liability on thirty days prior written notice as follows: (i) by either party upon a default of any covenant, condition, or term hereof by the other party, which default is not cured within sixty (60) days of receipt of written notice of default; (ii) by Licensee for any reason or for no reason, provided Licensee delivers written notice of termination to Licensor prior to October 28, 2022; (iii) by Licensee if it does not obtain licenses, permits or other approvals necessary to the construction or operation of Licensee's Facilities; or(iv) by Licensee if Licensee is unable to occupy or utilize the Premises due to ruling or directive of the FCC or other governmental or regulatory agency, including, but not limited to, a take back of channels or change in frequencies; or (v) by Licensee if Licensee determines that the Premises are not appropriate for its operations for economic, environmental or technological reasons, including without limitation, signal strength or interference. 5. Licensee may transmit and receive on any frequencies permitted by law. 1 TMO Site ID:SCO8734A 9/25/20 TMO Lease ID:102372 TMO Signatory Level: L06 NLG-87512 DocuSign Envelope ID:493EE44C-E930-482E-A053-CC4618219342 6. Section 12 of the original License shall be amended as follows: To the furthest extent allowed by law, Licensee shall indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, Licensee or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising or alleged to have arisen directly or indirectly out of Licensee's performance of this Agreement. Licensee's obligations under the preceding sentence shall apply regardless of whether City or any of its officers, officials, employees, agents or volunteers are passively negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or damages caused by the active or sole negligence, or the willful misconduct, of City or any of its officers, officials, employees, agents or volunteers. If Licensee should subcontract and/or contract all or any portion of the work to be performed under this Contract, Licensee shall require each subcontractor to indemnify, hold harmless and defend City and each of its officers, officials, employees, agents and volunteers in accordance with the terms of the preceding paragraph. Licensee, as a material part of the consideration to be rendered to City under this License, waives all claims against the City for damages to all Licensee's Facilities and personal property in, on, or about the Premises, and for injuries to persons in or about the Premises, from any cause arising at any time. City shall not be liable to Licensee for any damage by or from any act or negligence of any other occupant of the Premises or any occupant of adjoining or contiguous property. This section shall survive termination or expiration of this License. MINIMUM LIMITS OF INSURANCE Licensee shall procure and maintain for the duration of the contract, insurance with limits of liability not less than those set forth below: 1. COMMERCIAL GENERAL LIABILITY (i) $2,000,000 per occurrence for bodily injury and property damage; (ii) $2,000,000 per occurrence for personal and advertising injury; (iii) $4,000,000 aggregate for products and completed operations; and, (iv) $4,000,000 general aggregate applying separately to the work performed under the Agreement. 2. COMMERCIAL AUTOMOBILE LIABILITY $1,000,000 per accident for bodily injury and property damage. 3. Workers' Compensation Insurance as required by the State of California with statutory limits and EMPLOYER'S LIABILITY with limits of lia_bility not less than: 2 TMO Site ID:SCO8734A 9/25/20 TMO Lease ID:102372 TMO Signatory Level: L06 NLG-87512 DocuSign Envelope ID:493EE44C-E930-482E-A053-CC4618219342 (i) $1,000,000 each accident for bodily injury; (ii) $1,000,000 disease each employee; and, (iii) $1,000,000 disease policy limit. UMBRELLA OR EXCESS INSURANCE In the event LICENSEE purchases an Umbrella or Excess insurance policy(ies) to meet the "Minimum Limits of Insurance,"this insurance policy(ies) shall "follow form" and afford no less coverage than the primary insurance policy(ies). In addition, such Umbrella or Excess insurance policy(ies) shall also apply on a primary and non-contributory basis for the benefit of the CITY, its officers, officials, employees, agents and volunteers, with respect to the negligent acts or willful misconduct of LICENSEE. DEDUCTIBLES AND SELF-INSURED RETENTIONS LICENSEE shall be responsible for payment of any deductibles contained in any insurance policy(ies) required herein and LICENSEE shall also be responsible for payment of any self-insured retentions. Any self-insured retentions must be commercially reasonable for the telecommunications industry: (i) At no time shall CITY be responsible for the payment of any deductibles or self-insured retentions. OTHER INSURANCE PROVISIONS/ENDORSEMENTS (i) All policies of insurance required herein shall be endorsed to provide that the coverage shall not be cancelled except after thirty (30) calendar days written notice has been given to CITY, LICENSEE shall provide thirty (30) calendar days written notice to the CITY for any cancellation, non-renewal, or reduction in coverage or in limits. LICENSEE shall provide advance notice to the CITY for any cancellation as a result of non-payment of premium. Upon issuance by the of a notice of cancellation, non-renewal, or reduction in coverage or in limits, LICENSEE shall furnish CITY with a new certificate and applicable endorsements for such policy(ies). In the event any policy is due to expire during the work to be performed for CITY, LICENSEE shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy prior to the expiration date of the expiring policy. (ii) The Commercial General and Automobile Liability insurance policies shall be written on an occurrence form. (iii) The Commercial General and Automobile Liability insurance policies shall include City, its officers, officials, agents, employees and volunteers as an additional insured. LICENSEE shall establish additional insured status for the City and for all ongoing and completed operations under the Commercial General policy by use of ISO Forms or an executed manuscript insurance company endorsement providing additional insured status. The Commercial General endorsements must be as broad as that contained in 3 TMO Site ID:SCO8734A 9/25/20 TMO Lease ID:102372 TMO Signatory Level: L06 NLG-87512 DocuSign Envelope ID:493EE44C-E930-482E-A053-CC4618219342 ISO Forms: GC 20 10 or both CG 20 10 & CG 20 37. (iv) The Commercial General and Automobile Liability insurance shall contain, or be endorsed to contain, that the LICENSEE' insurance shall be primary to and require no contribution from the City, with respect to the negligent acts or willful misconduct of LICENSEE. The Commercial General policy is required to include primary and non contributory coverage in favor of the City for both the ongoing and completed operations coverage. These coverages shall contain no special limitations on the scope of protection afforded to City, its officers, officials, employees, agents and volunteers. (v) Should any of these policies provide that the defense costs are paid within the Limits of Liability, thereby reducing the available limits by defense costs, then the requirement for the Limits of Liability of these polices will be twice the above stated limits. (vi) For any claims related to this Agreement, LICENSEE' insurance coverage shall be primary insurance with respect to the CITY, its officers, officials, agents, employees and volunteers with respect to the negligent acts or willful misconduct of LICENSEE. Any insurance or self-insurance maintained by the CITY, its officers, officials, agents, employees and volunteers shall be excess of the LICENSEE' insurance and shall not contribute with it. (vii) The Commercial General and Automobile insurance policies shall contain, or be endorsed to contain, a waiver of subrogation as to CITY, its officers, officials, agents, employees and volunteers. PROVIDING OF DOCUMENTS - LICENSEE shall furnish CITY with all certificate(s) and applicable endorsements effecting coverage required herein All certificates and applicable endorsements are to be received and approved by the CITY'S Risk Manager or his/her designee prior to CITY'S execution of the Agreement and before work commences. All non-ISO endorsements amending policy coverage shall be executed by a licensed and authorized agent or broker. All subcontractors working under the direction of LICENSEE shall also be required to provide all documents noted herein. CLAIMS-MADE POLICIES - If any coverage required is written on a claims-made coverage form: (i) The retroactive date must be shown, and must be before the effective date of the Agreement or the commencement of work by LICENSEE. (ii) Insurance must be maintained and evidence of insurance must be provided for at least five (5) years after completion of the work or termination of the Agreement, whichever first occurs. (iii) If coverage is canceled or non-renewed, and not replaced with another claims-made policy form with a retroactive date prior to the effective date of the Agreement, or work commencement date, LICENSEE must purchase "extended reporting" period coverage for a minimum of five (5) years after completion of the work or termination of the Agreement, whichever first occurs. 4 TMO Site ID:SC08734A 9/25/20 TMO Lease ID:102372 TMO Signatory Level: L06 NLG-87512 DocuSign Envelope ID:493EE44C-E930-482E-A053-CC4618219342 SUBCONTRACTORS - If LICENSEE subcontracts and/or contracts any or all of the services to be performed under this Agreement, LICENSEE shall require, at the discretion of the CITY Risk Manager or designee, subcontractor(s)to enter into a separate Side Agreement with the City to provide required indemnification and insurance protection. Any required Side Agreement(s) and associated insurance documents for the subcontractors must be reviewed and preapproved by CITY Risk Manager or designee. If no Side Agreement is required, LICENSEE will be solely responsible for ensuring that it's subcontractors maintain insurance coverage at levels no less than those required by applicable law and is customary in the relevant industry. All notices, requests, demands and other communications shall be in writing and shall be deemed to have been delivered upon receipt or refusal to accept delivery, and are effective only when deposited into the U.S. certified mail, return receipt requested, or when sent via a nationally recognized courier to the addresses set forth below. Licensor or Licensee may from time to time designate any other address for this purpose by providing written notice to the other Party. Certificates of Insurance will be delivered via e-delivery. If to Licensee: T-Mobile USA, Inc. 12920 SE 38th Street Bellevue, WA 98006 Attn: Lease Compliance/ Site SC08734A If to Licensor: City of Fresno Department of Public Works-Traffic Operations 2600 Fresno Street Fresno, CA 93721 5 TMO Site ID:SCO8734A 9/25/20 TMO Lease ID:102372 TMO Signatory Level: L06 NLG-87512 DocuSign Envelope ID:493EE44C-E930-482E-A053-CC4618219342 7. Licensee and Licensor will reasonably cooperate with each other's requests to approve permit applications and other documents related to the Licensor's Property without additional payment or consideration. 8. Except as expressly set forth in this Second Amendment, the License otherwise is unmodified. To the extent any provision contained in this Second Amendment conflicts with the terms of the License, the terms and provisions of this Second Amendment shall control. Each reference in the License to itself shall be deemed also to refer to this Second Amendment. 9. This Second Amendment may be executed in duplicate counterparts, each of which will be deemed an original. Signed electronic, scanned, or facsimile copies of this Second Amendment will legally bind the Parties to the same extent as originals. 10. Each of the Parties represents and warrants that it has the right, power, legal capacity and authority to enter into and perform its respective obligations under this Second Amendment. Licensor represents and warrants to Licensee that the consent or approval of a third party has either been obtained or is not required with respect to the execution of this Second Amendment. If Licensor is represented by any property manager, broker or any other leasing agent ("Agent"), then (a) Licensor is solely responsible for all commission, fees or other payment to Agent and (b) Licensor shall not impose any fees on Licensee to compensate or reimburse Licensor for the use of Agent, including any such commissions, fees or other payments arising from negotiating or entering into this Second Amendment or any future amendment 11. This Second Amendment will be binding on and inure to the benefit of the Parties herein, their heirs, executors, administrators, successors-in-interest and assigns. [SIGNATURES ON FOLLOWING PAGE] 6 TMO Site ID:SCO8734A 9/25/20 TMO Lease ID:102372 TMO Signatory Level: L06 NLG-87512 DocuSign Envelope ID:493EE44C-E930-482E-A053-CC4618219342 IN WITNESS, the Parties execute this Second Amendment as of the Effective Date. CITY OF FRESNO T-Mobile West LLC., a California municipal corporation a Delaware limited liability company Oocusigned by: ❑wwspgned by: ul 4/4/2024 L�6- e/% 4pv- By: BY: Georgeanne White Geri Roper Digitally City Manager Name: TMOMg-d by Legpoo Legal tee:. Title Director al tor �30 0' 0500 APPROVED AS TO FORM 11/15/2023 1 1:42 PM PST ANDREW JANZ City Attorney Jay, By; F;ZLV- bW 4/4/2024 B ra Q B rH4W.61eo l let Senior Deputy City Attorney ATTEST: TODD STERMER, CMC City Clerk ❑vcoSigned by: 4/4/2024 Ftitn.a. By: M, 6Vr De „V3057997C 04 Date 7 TMO Site ID:SCO8734A 9/25/20 TMO Lease ID:102372 TMO Signatory Level: L06 NLG-87512