HomeMy WebLinkAboutXG Communities - Amended and Restated - Wireless Marketing - 2020 1 '1120 z.a
AMENDED AND RESTATED WIRELESS MARKETING AGREEMENT BETWEEN
THE CITY OF FRESNO
AND XG COMMUNITIES, LLC.
This Wireless Marketing Agreement (Agreement) is made and entered into on
September 15, 2020. (the Effective Date) between the City of Fresno (City) and XG
Communities, LLC., a Delaware limited liability company (XG) (each a Party and
collectively the Parties), with reference to the following facts and intentions, which the
Parties agree are true and correct to the best of their knowledge and belief:
BACKGROUND
A. City is a municipal corporation formed under the laws of the State of California,
operating under its charter.
B. XG is a limited liability company formed under the laws of Delaware.
C. XG offers master planning services and tools that merge technical expertise on
coverage needs with surveys of existing and forecasted wireless coverage
conditions. XG evaluates that information to identify existing municipal assets that
can meet wireless coverage needs.
D. XG provides planning tools so that subscribing municipal corporations may access
the information and identify intelligent options and solutions for the processing of
applications for wireless telecommunications facilities on a real time basis.
E. In October 2016, City invited interested parties to demonstrate their knowledge
and expertise for a Gigabit Wireless and/or Wired/Fiber System. A review
committee invited responders who met the requirements specified in the RFQ to
participate in an oral interview. XG was chosen as a qualified responder.
F. Pursuant to that certain Wireless Marketing Agreement dated June 20, 2017 (the
Original Agreement), City engaged XG to provide wireless consulting,
management and development services related to the use of City assets for the
purpose of planning and implementing a marketing plan for Wireless
Telecommunications Facilities (as that term is defined in Section 2, below) and to
proactively market City-owned underutilized assets on terms that maximize
revenue and minimize planning impacts and visual blight.
G. The parties now desire to modify their engagement pursuant to this Amended and
Restate Wireless Marketing Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing background, which is
incorporated into the operative provisions of this Agreement by this reference, and for
good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties agree as follows:
1. Term. This Agreement shall be effective on the date it is executed by all
Parties and shall be in effect for an initial term of five years, and shall automatically renew
in five-year periods, unless terminated pursuant to this Agreement. Upon sixty days'
written notice to the other Party, either Party may, without cause and without prejudice to
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any other right or remedy of City, elect to terminate this Agreement. In such case, neither
Party shall not pay damages, costs, or other payment due to the other Party except for
any payment due to the other Party for any other agreements in existence between the
Parties.
2. Scope and Nature of Services. XG may, at its election, provide the
following services described in this section (Services) for the purposes of XG: planning,
marketing, sublicensing, development, maintenance, and/or operation of certain tower(s),
pole(s), building(s), fiber, conduit(s), data room(s), street furniture, and any structure(s)
or object(s) of any kind or character not particularly mentioned herein (City Asset(s)),
which XG proposes to locate or cause to be located on City Property and within City Right
of Way for the purposes of promoting, transmitting or facilitating wireless communication
of telephone or data or any other means (Wireless Telecommunications Facilities).
Notwithstanding anything herein, XG has no obligation to provide any of the Services.
a. Consulting Services. XG may provide City the following consulting
services at no cost to City: identify available City Assets that would satisfy or
partially satisfy Coverage Needs, provide pricing and fee recommendations, form
factor and aesthetic policy development, technology refresh and advancement
updates, and other consultation specific to wireless broadband service providers.
b. Marketing Services. At no cost to City, XG may market the Master
Plan to wireless carriers, cable companies, internet service providers (ISPs), street
light providers, and Internet of Things (IOT) companies, (Wireless Services
Providers) to obtain their feedback and interest in locating and/or collocating on
any existing and/or proposed site(s) included in the Master Plan. XG shall market
the Master Plan to all Wireless Services Providers equally, and without any
discrimination and/or favoritism between Wireless Services Providers, with a goal
of ensuring that residents, visitors, and businesses within City's jurisdiction receive
the maximum benefit of all available services from all existing wireless services
providers. Upon entering into a license agreement (attached as Exhibit A) for the
development of Wireless Telecommunications Facilities with one of the wireless
carriers or any of the Wireless Services Providers, XG shall deliver sites to City
(the "License Agreement"). For the avoidance of doubt, the termination or
expiration of this Agreement shall not cause the termination of the License
Agreement.
C. 'Manaciement Services. During the Agreement Term, XG may at any
time request in writing that City make City Assets available for the development of
Wireless Telecommunications Facilities. Upon a determination of approval, City
shall notify XG of such determination in writing, and shall offer to enter into a
license with XG, which license shall be in a form that is substantially consistent
with the form set forth in Exhibit A to this Agreement. Thereafter, XG or an affiliate
of XG, at no cost to City, shall construct or cause the construction of the Wireless
Telecommunications Facilities, and sublicense the City Assets (either as improved
with Wireless Telecommunications Facilities, or subject to improvement with
Wireless Telecommunications Facilities) in accordance with the terms of this
Agreement and a license agreement to be executed for each designated City Asset
(provided, however, that a single license agreement may be utilized for multiple or
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all sites that are the subject of this Agreement). XG understands and
acknowledges that City shall have the final determination as to whether to move
forward with the execution of a license and/or other agreement of substantially
equivalent purpose (or an amendment to any such license and/or other agreement)
for any existing structure (e.g., rooftop, existing City owned tower, etc.). XG further
understands and acknowledges that it must comply (or cause compliance) with
and receive (or cause receipt of) all necessary entitlements and permits from City,
including but not limited to complying (or causing compliance)with City's ordinance
governing Wireless Telecommunications Facilities, all applicable building codes
and public works requirements, as well as comply (or cause compliance) with and
receive (or cause receipt of) all necessary and applicable permits from any other
regulatory agency, before XG undertakes (or causes the undertaking of) any
construction on a City Asset.
d. Exclusions.
ii. City Assets intended for direct-marketing by the City for
macro-cell site development are identified in writing by the City (City
Marketed Assets). City Marketed Assets shall be marketed, if at all, directly
by the City only; marketing rights for such assets shall not be granted,
delegated, or contracted to any third party.
iii. This Agreement shall not require or allow the provision of
Services by XG for facilities licensed to any municipal, county, district,
agency, state or Federal government for stations in the Private Land Mobile
Radio Services, Maritime Radio Services, Aviation Radio Services, other
stations designated for Homeland Security or Law Enforcement
communications or the circuits necessary to support such facilities
(Excluded Services). This Agreement shall not limit, control, or govern the
provision of the Excluded Services by City.
e. It is further mutually understood and agreed by and between the
PARTIES hereto that inasmuch as XG represents to City that XG and its
subcontractors, if any, are skilled in the profession and shall perform in accordance
with the standards of said profession necessary to perform the Services agreed to
be done by it under this Agreement, the City relies upon the skill of XG and any
subcontractors to do and perform such services in a skillful manner and XG agrees
to thus perform the services and require the same of any subcontractors.
Therefore, any acceptance of such services by the City shall not operate as a
release of XG or any subcontractors from said professional standards.
3. Telecommunications Ordinance Revision. Within 184 days after the
Effective Date, City shall reasonably consider revisions to its telecommunications
ordinance to specify that the City's review of Wireless Telecommunications Facilities that
are (i) on City Assets, and (ii) subject to a license agreement that substantially conforms
to the form attached as Exhibit A, will be accomplished exclusively through the licensing
process described in this Agreement.
4. Right of Entry Agreement. XG shall have the right to analyze the suitability
of the City Property designated by the City for XG' intended use. The City and XG shall
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enter into a Right of Entry Agreement for XG and its employees, agents, contractors,
engineers, and surveyors to have the right to enter upon City Property, upon reasonable
written notice to City, to inspect, conduct, perform and examine soil borings, drainage
testing, material sampling, surveys and other geological or engineering tests or studies
of City Property, to apply for all licenses and permits required for XG' use of the
designated City Property from all applicable governmental or regulatory entities, and to
do those things on or off the designated City Property that, in the sole opinion of XG, are
necessary to determine the physical condition of designated City Property, the
environmental history of the designated City Property, and the feasibility or suitability of
the designated City Property for XG' use (Due Diligence Investigation). Activities
conducted in connection with XG' Due Diligence Investigation shall be at the sole expense
and cost of XG. The Right of Entry Agreement shall grant XG access to the designated
City Property for a defined and specific period of time as set forth in the Right of Entry
Agreement. The proposed form of Right of Entry Agreement is attached hereto and
incorporated by reference herein as Exhibit B.
5. City-Owned Wireless Telecommunications Facilities and City
Licenses. City shall retain ownership of all City leases, licenses, and other agreements
in existence as of the Effective Date with wireless providers located within City's
jurisdictional boundaries. City shall retain ownership of any Wireless Telecommunications
Facilities City subsequently develops on property owned or leased by City for City's own
non-commercial use. XG and/or its sublicensees shall own the Wireless
Telecommunications Facilities developed on City Assets pursuant to this Agreement. City
leases, licenses, and other agreements in existence as of the Effective Date and any City
owned/developed Wireless Telecommunications Facilities in existence as of the Effective
Date shall not be subject to this Agreement and/or any accompanying agreements
between City and XG, unless specifically designated otherwise in writing.
6. Compensation.
a. City shall be entitled to 75% of recurring gross payments that are
received by XG as a result of the addition of one or more Wireless
Telecommunications Facilities to the site of a City-owned Wireless
Telecommunications Facility that was constructed under the Original Agreement.
b. City shall be entitled to 100% of recurring gross payments that are
received by City from sublicensees on new Wireless Telecommunications
Facilities that are on City Assets licenses to XG pursuant to this Agreement.
7. Construction Engineering, and Other Costs. City shall have no financial
responsibility for planning, construction, and engineering costs associated with the
implementation of this Agreement. XG may recover from Wireless Service Providers
construction costs, installation costs, utilities, or other expenses incurred by XG, to the
extent said reimbursement does not reduce the rent to be paid by Wireless Service
Providers, and such recovered sums shall not be included in the computation of
compensation hereunder. XG shall require Wireless Service Providers to furnish and
install an electrical sub-meter for all improvements to measure the electricity used by the
Wireless Service Providers.
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8. Default. If there is a default by either Party to this Agreement, the Party
claiming a default of any term or condition of this Agreement shall provide the defaulting
Party with written notice of the default pursuant to the provisions contained in Paragraph
16(i) of this Agreement. After receipt of such notice, the defaulting Party shall have thirty
days in which to cure any monetary default and sixty days in which to cure a non-monetary
default. If a non-monetary default reasonably requires more than a sixty-day cure period,
the defaulting Party shall diligently pursue cure to completion and shall request additional
time to cure from the non-defaulting party. The non-defaulting party shall not
unreasonably withhold approval of additional time to cure. Subject to and without limiting
the foregoing, the Parties agree that a failure by XG to diligently market the Master Plan
in accordance with Paragraph 2(b), above, shall constitute a default under this Paragraph
8 with no damages, costs, or other payment due to XG except for any percentage
payment due to XG for any agreements approved by Council on a date prior to date of
termination of agreement.
9. Right to Audit. During the Term of this Agreement the Parties shall
maintain originals, or when originals are not available copies, of all records, books, papers
and documents relating to this Agreement and all accompanying License Agreements
between the Parties. At all reasonable times, the Parties shall allow each other to have
access to examine, copy, and audit such records. Additionally, XG shall allow City, and
City shall have the right, at any time, to have access to and examine, copy and audit
records, books, papers and documents relating to or evidencing XG' efforts to obtain
sublicenses as such records, books, papers and documents may or may not exist in the
normal course of XG' business.
10. Indemnification. XG shall indemnify, defend, and hold harmless City, its
elected and appointed officials, officers, employees, agents, and contractors, from and
against liability, claims, demands, losses, damages, fines, charges, penalties,
administrative and judicial proceedings and orders, judgments, and the costs and
expenses incurred in connection therewith, including reasonable attorneys' fees and
costs of defense, to the extent directly or proximately resulting from XG activities
undertaken pursuant to this Agreement, except to the extent arising from or caused by
the gross negligence or willful misconduct of City, its elected and appointed officials,
officers, employees, agents, or contractors. City shall promptly notify XG of any claim,
action or proceeding covered by this Section 9.
11. Insurance. At the time XG signs and delivers this Agreement to City, as
well as at all times during the Agreement Term, XG shall maintain, at a minimum, the
required insurance as set forth in the attached Exhibit C to this Agreement. This
Agreement's insurance provisions shall be separate and independent from the
indemnification and defense provisions of Section 10 of this Agreement and shall not in
any way limit the applicability, scope or obligations of the indemnification defense
provisions in Section 10.
12. Compliance With Local Ordinances. Subject to Section 3 above, XG shall
comply with all City ordinances pertaining to Wireless Telecommunications Facilities, and
all such additional City regulations that are consistent with such ordinances (such
ordinances and regulations are collectively referred to as the Ordinance).
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13. Intellectual Property.
a. Ownership of Services. XG retains all right, title, and interest in any
underlying software subject to the limitations set forth in this Agreement.
b. License. XG hereby grants to City a limited, non-exclusive,
non-transferable, non-sublicensable license during the term of this Agreement to
use the Services for the purposes of offering, promoting, managing, tracking, the
development and use of Wireless Telecommunications Facilities\
C. Exclusivity. Nothing in this Agreement shall be construed to mean
that XG has the sole right to market and license City assets.
d. Additional City Commitments. City acknowledges that it is using
licensed software containing propriety and intellectual property and shall: (i) not
copy, modify, transfer, display, share, or use any portion of the licensed software
except as expressly authorized in this Agreement or in the applicable
documentation; (ii) not contest or do or aid others in contesting or doing anything
which impairs the validity of any proprietary or intellectual property rights, title, or
interest of XG in and to any software; (iii) not engage in any activity that interferes
with or disrupts XG' provision of the Services; and (iv) use the Services exclusively
for authorized and legal purposes, consistent with all applicable laws, regulations,
and the rights of others.
14. Governinq Law and Venue. This Agreement shall be governed by the laws
of the State of California. Venue for purposes of the filing of any action regarding the
enforcement or interpretation of this Agreement and any rights and duties hereunder shall
be Fresno County, California.
15. Confidential Information and Ownership of Documents.
a. Any reports, information, or other data prepared or assembled by XG
pursuant to this Agreement shall not be made available to any individual or
organization by XG without the prior written approval of the Administrator. During
the term of this Agreement, and thereafter, XG shall not, without the prior written
consent of the City, disclose to anyone any Confidential Information. The term
Confidential Information for the purposes of this Agreement shall include all
proprietary and confidential information of the City, including but not limited to
business plans, marketing plans, financial information, materials, compilations,
documents, instruments, models, source or object codes and other information
disclosed or submitted, orally, in writing, or by any other medium or media. All
Confidential Information shall be and remain confidential and proprietary in the
City.
b. Any and all writings and documents prepared or provided by XG
pursuant to this Agreement are the property of the City at the time of preparation
and shall be turned over to the City upon expiration or termination of the
Agreement. XG shall not permit the reproduction or use thereof by any other
person except as otherwise expressly provided herein.
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C. If XG should subcontract all or any portion of the services to be
performed under this Agreement, XG shall cause each subcontractor to also
comply with the requirements of this Section 5.
d. This Section shall survive expiration or termination of this
Agreement.
16. General Provisions.
a. Independent Contractor. XG shall, during the Agreement Term, be
construed as an independent contractor and not an employee of City. This
Agreement is not intended nor shall it be construed to create an employer-
employee relationship, a joint venture relationship, or to allow City to exercise
discretion or control over the professional manner in which XG performs the
services which are the subject matter of this Agreement; however, the services to
be provided by XG shall be provided in a manner consistent with all applicable
standards and regulations governing such services. XG shall pay all salaries and
wages, employer's social security taxes, unemployment insurance and similar
taxes relating to employees and shall be responsible for all applicable withholding
taxes.
b. Authorizations. All individuals executing this Agreement on behalf
of the respective Parties certify and warrant that they have the capacity, and have
been duly authorized to so execute this Agreement on behalf of the entity so
indicated.
C. Cooperative Purchasing. City acknowledges and agrees that it has
followed all applicable purchasing and procurement procedures in entering into
this Agreement, and that XG shall have the right and ability to offer this Agreement
as a template for cooperative or piggybacking purchasing agreements with other
public agencies which, to the extent allowed by California or applicable State law
and the ordinances and regulations of those other public agencies, may serve as
a basis to forego competitive procurement processes for such future agreement(s).
As used in this article, "public agency" includes, but is not limited to, the federal
government or any federal department or agency, this state, another state or any
state department or agency, a county, county board of education, county
superintendent of schools, city, public corporation, public district, regional
transportation commission of this state or another state, or any joint powers
authority formed pursuant to this article by any of these agencies. In furtherance
of the foregoing, XG agrees other public agencies may purchase additional items
on the same terms as are set forth in this Agreement. To the extent XG enters into
such subsequent agreement(s), this Agreement shall be construed to contain an
express "Assignment" clause that provides for the assignment of all or part of the
specified deliverables and/or provided, however, that City shall not be a signatory,
obligee, beneficiary, or third party beneficiary under such future agreements with
other public agencies. XG shall remit monthly to City a 2% revenue share of all
gross revenues received from subsequent agreements executed with public
agencies that benefit from this Agreement.
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d. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
e. Entire Agreement and Amendment. This Agreement captures all
terms, agreements, and understandings of the Parties and supersedes any prior
promises, representations, agreements, warranties or undertakings by any of the
Parties, either oral or written, of any character or nature binding except as stated
herein. This Agreement may be modified, altered or amended only by an
instrument in writing, executed by the Parties to this Agreement, and by no other
means. Each Party waives its right to claim, contest or assert that this Agreement
was modified, canceled, superseded or changed by any oral agreement, course of
conduct, waiver or estoppel.
f. Good Faith. The Parties agree to exercise their reasonable best
efforts and utmost good faith to effectuate all the terms and conditions of this
Agreement, and to execute such further instruments and documents as are
necessary or appropriate to effectuate all of the terms and conditions of this
Agreement.
g. Assignment. XG may assign this Agreement to a person or entity
with demonstrated capacity to carry out XG' obligations under this Agreement after
receiving written City consent. XG shall provide any information requested or
necessary for City to determine whether the proposed assignee has the capacity
to fulfill XG obligations under this Agreement. XG shall provide thirty days prior
written notice of such assignment to City.
h. Discrimination. XG shall not discriminate because of race, color,
creed, religion, sex, marital status, sexual orientation, age, national origin,
ancestry, or disability, as defined and prohibited by applicable law, in the
recruitment, selection, training, utilization, promotion, termination or other
employment related activities. XG affirms that it is an equal opportunity employer
and shall comply with all applicable federal, state and local laws and regulations.
i. Notices. All notices, approvals, acceptances, demands and other
communication required or permitted under this Agreement, to be effective, shall
be in writing and, unless otherwise provided herein, shall be deemed validly given
on the date either: (1) personally delivered to the address indicated below; or (2)
on the third business day following deposit, postage prepaid, using certified mail,
return receipt requested, in any U.S. Postal mailbox or at any U.S. Post Office; or
(3) one business day after the dispatch date by overnight delivery service; or (4)
on the date of transmission by e-mail to the number provided below. All notices,
demands, or requests shall be addressed to the following:
City:
Phone:
Fax:
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With a copy to:
Phone:
Fax:
XG: Cheryl Prout, General Counsel
XG Communities
4675 Macarthur Court,
Newport Beach, CA 92660Phone: 949-
514-4617
Fax: 949-266-9160
Any Party may change its address by giving the other Parties written notice of its new
address as provided above.
j. Successors. This Agreement shall be binding on and shall inure to
the benefit of the Parties and their respective successors.
17. Waiver. No waiver of any provision of this Agreement, or consent to any
action, shall constitute a waiver of any other provision of this Agreement, or consent to
any other action. No waiver or consent shall constitute a continuing waiver or consent or
commit a Party to provide a waiver or consent in the future except to the extent specifically
stated in writing. No waiver shall be binding unless executed in writing by the Party making
the waiver, based on a full and complete disclosure of all material facts relevant to the
waiver requested.
[Signatures follow on the next page.]
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IN WITNESS WHEREOF, the parties have executed this Agreement at Fresno,
California, on the day and year first above written.
CITY OF FRESNO, XG COMMUNITIES, LLC.,
A California municipal corporation A Delaware Lim d Lia 'lity Co parry
�._ P
By_ �` By: y.
APPROVED AS TO FORM: Title:
DOUGLAS T. SLOAN LChair,
rporation or LC., Board
City Attorney Pres. ice Pres.)
By: Lauwa
Raj Singh adhesha Dat I"
Supervising Deputy City Attorney Name: Uylov t--
Title:
ATTEST: (If corporation or LLC., CFO,
YVONNE SPENCE, MMC Treasurer, Secretary or Assistant
City Clerk Secretary)
Deputy
Attachments:
Exhibit A - License Agreement
Exhibit B - Right of Entry Agreement
Exhibit C - Insurance Requirements
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EXHIBIT A
AMENDED AND RESTATED LICENSE AGREEMENT
THIS LICENSE AGREEMENT is made as of the date of the final signature below, by and
between the City of Fresno, a municipal corporation, having a mailing address of 2600
Fresno Street, Fresno, CA 93721 (Licensor) and XG Communities, LLC., a Delaware
limited liability company, with an address at 4675 Macarthur Court, Newport Beach, CA
92660 (Licensee).
1. Definitions.
"Agreement" means this License Agreement.
"Approvals" means all certificates, permits, licenses and other approvals that
Licensee must obtain as required by law in order for Licensee or its agents or
sublicensees to use the Licensed Premises for the purpose intended by this Agreement.
"Company Facilities" means any and all Wireless Telecommunications Facilities to
be developed by Licensee on the Licensed Premises.
"City Facilities " means any and all existing facilities, inclusive of but not limited to
all buildings and improvements owned by and under the possession and control of
Licensor, including but not limited to utility poles, lamp posts, other utility facilities, fences,
gates, and all roof tops of all such buildings, facilities and/or improvements.
"Defaulting Party" means the party to this Agreement that has defaulted as
provided for in Section 26 of this Agreement.
"Easement" and "Utility Easement" have the meanings set forth in Section 7 of this
Agreement.
"Harmful Interference" means Interference that endangers the functioning of a
radio navigation service or of other safety services or seriously degrades, obstructs, or
repeatedly interrupts a radio communication service operating in accordance with both
International Telecommunications Union Radio Regulations and the regulations of the
Federal Communications Commission.
"Hazardous Material" means any substance which is (i) designated, defined,
classified or regulated as a hazardous substance, hazardous material, hazardous waste,
pollutant or contaminant under any Environmental Law, as currently in effect or as
hereafter amended or enacted, (ii) a petroleum hydrocarbon, including crude oil or any
fraction thereof and all petroleum products, (iii) PCBs, (iv) lead, (v) asbestos, (vi)
flammable explosives, (vii) infectious materials, or (viii) radioactive materials.
"Environmental Law(s)" means the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. Section 9601 el seq., the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et seq., the Toxic
Substances Control Act, 15 U.S.C. Section 2601 et seq., the Hazardous Materials
Transportation Act, 49 U.S.C. Section 5101 et seq., and the Clean Water Act, 33 U.S.C.
Section 1251 et seq., as said laws have been supplemented or amended to date, the
regulations promulgated pursuant to said laws and any other federal, state or local law,
statute, rule, regulation or ordinance that regulates or proscribes the use, storage,
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disposal, presence, clean-up, transportation or release or threatened release into the
environment of Hazardous Material.
"Improvements" means a Wireless Telecommunications Facility(ies).
"Interference" means the effect of unwanted energy due to one or a combination
of emissions, radiations, or inductions upon reception in a radio communication system,
manifested by any performance degradation, misinterpretation, or loss of information.
"Licensed Premises " means a list of those portions of Licensor's Property
described in Exhibit A, which list shall be updated from time to time by mutual consent
between the Parties.
"Licensee" means XG Communities, LLC., a Delaware limited liability company.
"Licensee's Notice Address" means 4675 Macarthur Court, Newport Beach, CA
92660.
"Licensor" means City of Fresno, a municipal corporation.
"Licensor's Notice Address " means 2600 Fresno Street, Fresno, CA 93721.
"Licensor's Properties" means those properties (each of which is a subject of this
License Agreement),
"Non-Defaulting Party" means the party to this Agreement that has not defaulted
as provided for in Section 26 of this Agreement.
"Rent" means $270/year for each Licensed Premise..
"Sublicensee Revenue" means the total amount of rent (excluding any
reimbursement from Sublicensee(s) of taxes, construction costs, installation costs,
utilities, or other expenses incurred by Licensee to the extent said reimbursement is not
an offset of rent to be paid by Sublicensee(s)) paid to Licensee by all Sublicensee(s) using
each of the Licensed Premises, whether pursuant to a license or other similar agreement
as modified, renewed, or assigned.
"Sublicensee" means a third party to which Licensee has granted the right to use
and occupancy of one or more of the Licensed Premises, subject to the terms and
conditions contained herein.
"Subscription Agreement" means the Wireless Marketing Agreement Regarding
Licenses and Sublicenses of Publicly-Owned Properties Pertaining to Wireless
Telecommunications Facilities, between Licensor and Licensee, dated September 15,
2020.
"Wireless Telecommunications Facilities" means the equipment and associated
structures needed to transmit and/or receive electromagnetic signals. A wireless
telecommunication facility typically includes antennas, supporting structures, enclosures
and/or cabinets housing associated equipment, cable, access roads and other accessory
development.
2. Licensor's Cooperation. During the Lease Term, Licensor shall: (i) cooperate
with Licensee in its efforts to obtain all of the Approvals and (ii) take no action that would
adversely affect any of the Licensed Premises; provided, however, that if Licensor elects
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to replace infrastructure on the Licensed Premises that is unrelated to the delivery of
Wireless Telecommunications services, then such replacement shall be accomplished in
a manner calculated to minimize interference with the Wireless Telecommunications
infrastructure on the Licensed Premises. Licensor acknowledges that Licensee's ability
to use each of the Licensed Premises is contingent upon Licensee obtaining and
maintaining the Approvals. Additionally, Licensor authorizes Licensee and its employees,
representatives, agents, and consultants to prepare, and submit, file and present on
behalf of Licensor building, permitting, zoning or land-use applications with the
appropriate local, state and/or federal agencies necessary to obtain land use changes,
special exceptions, zoning variances, conditional use permits, special use permits,
administrative permits, construction permits, operation permits and/or building permits.
Licensor understands that any such application and/or the satisfaction of any
requirements thereof may require Licensor's cooperation, which Licensor hereby agrees
to provide. Licensor shall not knowingly do or permit anything that will interfere with or
negate any Approvals pertaining to the Improvements or Licensed Premises or cause
them to be in nonconformance with applicable local, state or federal laws. Licensor agrees
to execute such documents as may be necessary to obtain and thereafter maintain the
Approvals, and agrees to be named as the applicant for said Approvals. The provisions
of this Section shall not apply in the event of any dispute between and/or involving
Licensor and Licensee.
3. Subdivision. In the event that a subdivision of Licensor's Property is legally
required to license the any of the Licensed Premises to Licensee, Licensor agrees to seek
subdivision approval at Licensee's expense. The Licensor agrees to license no less than
700 Licensed Premises under this Agreement.
4. Term. The Term of this Agreement shall commence on September 15, 2020
(Commencement Date) and continue until the license for each Licensed Premise listed in
Exhibit A has expired. The term of each License listed in Exhibit A shall begin on the
commencement date listed for such Licensed Premises on Exhibit A, and shall continue
for a period of five years and shall automatically renew in five-year periods, unless
terminated pursuant to this Agreement. For the avoidance of doubt, termination or
expiration of the Subscription Agreement shall not cause the termination of this
Agreement.
5. Rent Sublicenses and Accounting.
a. Rent. From and after the Commencement Date and effective upon
Licensee's receipt of Sublicense Revenue, Licensee shall cause Sublicensee to
directly pay Rent to Licensor for the each of the Licensed Premises.
b. Sublicenses. Licensee shall exercise discretion as to whether, and on what
terms, to sublicense, license or otherwise allow occupancy of the Licensed
Premises, subject to the following:
i. Licensee shall make every reasonable effort to ensure that each
proposed Wireless Telecommunications Facility will not affect, detract, or
impact the operation of existing Licensor facilities, particularly traffic signal
control and street lighting devices.
13
ii. Licensee shall ensure that the proposed Wireless
Telecommunications Facility is not dependent on the resources dedicated
to Licensor facilities.
iii. Licensee shall propose new locations for Wireless
Telecommunications Facilities to Licensor, and Licensor shall have the final
authority to approve or reject said locations.
iv. In the event of damage, Licensor shall not be obligated to repair or
restore the Wireless Telecommunications Facility to normal operating
conditions unless Licensor is the primary and direct cause of such damage.
As between Licensee and Licensor, Licensee shall bear all other costs
incurred to repair or restore Wireless Telecommunications Facilities;
provided, however, the Licensee may allocate its responsibility under this
sentence to a third party, including a Sublicensee.
V. Licensee shall make every reasonable effort to restore Licensor
facilities in a safe and efficient manner. Licensor shall not be held
responsible for lack of revenue during the down time.
vi. Licensee shall give Licensor reasonable notice (or no less than
fourteen days) prior to impacting Licensor facilities in a manner that is
beyond the routine maintenance and operation of Wireless
Telecommunications Facilities.
vii. Any sublicense agreement shall include the requirement that the
Sublicensee must comply with the terms and conditions of this Agreement.
viii. Any sublicense agreement shall include a provision substantially
consistent with the following, relating to interference with city facilities and
communications systems:
Notwithstanding any other provisions in Sublicense Agreement,
Sublicensee agrees to operate any and all of its Wireless
Telecommunications Facilities on the Property in full compliance with
the technical standards set forth in the Rules and Regulations of the
Federal Communications Commission (FCC) as codified in 47
C.F.R. and upon notice of non-compliance agree to take all steps
necessary to bring its operation into full compliance. Licensee and
Sublicensee both recognize and stipulate that City's public safety
communications systems are vital to the life, health, and safety of the
public safety personnel and of members of the general public, and
agree that protecting such systems against harmful interference is
an integral responsibility of this agreement.
Licensee and Sublicensee agree to meet and confer with the City on
a case-by-case basis, and at the request of any Party and/or the City,
in the event that additions or changes to Wireless
Telecommunications Facilities on the property cause
incompatibilities with the City's installed communications system(s).
14
Licensee and Sublicensee agree that in the event of harmful
interference or degradation to City's public safety radio operations,
City may require on a case-by-case basis that the use of the
interfering Wireless Telecommunications Facility be suspended
upon reasonable notice by the City to Licensee and the applicable
Sublicensee pending resolution of the cause and cure of such
interference or degradation
The findings of the City's communications engineering
representative shall be determinant in declaring harmful interference
caused by such non-compliance, and in the event of a dispute the
burden of seeking a determination of compliance from the Federal
Communications Commissions shall be on the Sublicensee.
This procedure shall not be invoked unless absolutely necessary.
These provisions shall be binding on Licensee, Sublicensee, and any
successor, assignee, or service provider designated by Licensee
and/or Sublicensee.
ix. Except as specified in this Section 5(b), Licensor shall not
unreasonably interfere with Licensee's discretion relating to the terms of
sublicenses, licenses or the grants of occupancy of the Licensed Premises.
X. Upon termination of this Agreement all leases, licenses, subleases,
and sublicenses shall be assigned and/or transferred to Licensor.
C. Accounting/Adjustments. The parties hereto acknowledge that all
information needed to calculate Rent may, from time to time, not be readily
available. Accordingly, the parties agree that Licensee may base Rent on
Sublicensee agreements, and later make adjustments if overpayments or
underpayments occur. At any time, Licensor may request that Licensee provide an
accounting of the Rent in such form and content as Licensor may reasonably
request.
6. Construction, Engineering, and Other Costs.
a. Licensor shall have no financial responsibility for planning, construction,
and engineering costs associated with the implementation of this License
Agreement.
b. Licensee may recover from Sublicensee's taxes, construction costs,
installation costs, utilities, or other expenses incurred by Licensee, to the extent
said reimbursement is not an offset of rent to be paid by Sublicensee(s), and such
recovered sums shall not be included in the computation of Rent.
C. Licensee shall require Sublicensee to furnish and install an electrical sub-
meter for all improvements to measure the electricity used by the Wireless Service
Providers.
7. Licensed Premises; Survey. Licensee has provided Licensor with a copy of an
"as-built" survey for each Licensed Premises, which shall depict and identify the
15
boundaries of each Licensed Premises and the Easements. The description of the each
Licensed Premises set forth in Exhibit A shall control in the event of any discrepancies.
8. Access. Conditioned upon and subject to commencement of the License Term,
Licensor grants to Licensee and Licensee's employees, agents, contractors,
sublicensees, licensees and their employees, agents, and contractors access to land
located within Licensor's Property to Licensee, for the purpose of constructing, repairing,
maintaining, replacing, demolishing and removing the facility to be located upon each
Licensed Premises as necessary to obtain or comply with any Approvals (the Access
License). Licensee may request and Licensor shall not unreasonably deny or withhold
the granting of an alternate Utility License either to Licensee or directly to the public utility
at no cost and in a location acceptable to Licensee and the public utility. The Access
Licenses and Utility Licenses (collectively, the Access/Utility Licenses) shall be utilized
for the purposes provided during the License Term and thereafter for a reasonable period
of time necessary for Licensee to remove the Improvements.
9. Use of Property. The Licensed Premises and the Access/Utility Licenses shall be
used for the purpose of constructing, maintaining and operating the Improvements and
for uses incidental thereto. All Improvements shall be constructed at no expense to
Licensor. All Improvements, inclusive of security fences, shall comply with the
requirements of the Fresno Municipal Code and all other laws and regulations applicable
thereto, and Licensee shall obtain all required and necessary governmental agency
Approvals and permits. Licensee will maintain the Licensed Premises in a safe condition.
It is the intent of the parties that Licensee's Improvements shall not constitute a fixture.
a. Maintenance and Operation. At its sole cost and expense, Licensee shall
construct, install, and maintain Wireless Telecommunication Facilities on
Licensor's Properties in accordance and conformity with all applicable laws,
polices, guidelines, and contractual obligations to Licensor. Licensor shall not be
responsible for any cost of maintaining or operating any Wireless
Telecommunication Facility. If the Licensor elects, in its sole discretion, to remove
or relocate the pole, Licensee shall promptly remove and reinstall its Wireless
Telecommunication Facility, at no cost to Licensor. In the event of a pole
relocation, the Licensor shall provide thirty days' notice to Licensee. Licensor shall
not be responsible for any damage to any Wireless Telecommunication Facility in
the event that a pole falls or is knocked down. Nor shall Licensor be responsible
for any damage to Licensee's Wireless Telecommunication Facilities caused by a
pole removal or relocation.
10. Removal of Obstructions. Licensee has the right to remove obstructions from
Licensor's Property, as approved by the Licensor, which approval shall be requested in
writing by Licensee and shall not be unreasonably withheld, conditioned or delayed by
Licensor. Potential obstructions include but are not limited to vegetation, which may
encroach upon, interfere with or present a hazard to Licensee's use of the Licensed
Premises or the Access/Utility Licenses. Licensee shall dispose of any materials
removed.
11. Hazardous Materials.
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a. Licensee's Obligation and Indemnity. Licensee shall not (either with or
without negligence) cause or permit the escape, disposal or release of any
Hazardous Materials on or from the Licensed Premises in any manner prohibited
by law. Licensee shall indemnify and hold Licensor harmless from and against any
and all claims, damages, fines, judgments, penalties, costs, liabilities or losses
(including, without limitation, any and all sums paid for settlement of claims,
attorneys' fees, and consultants' and experts' fees) from the release of any
Hazardous Materials on the Licensed Premises if caused by Licensee or persons
acting under Licensee.
b. Licensor's Obli ation and Indemnity. Licensor shall not (either with or
without negligence) cause or permit the escape, disposal or release of any
Hazardous Materials on or from Licensor's Property or Licensed Premises in any
manner prohibited by law. Licensor shall indemnify and hold Licensee harmless
from and against any and all claims, damages, fines, judgments, penalties, costs,
liabilities or losses (including, without limitation, any and all sums paid for
settlement of claims, attorneys' fees, and consultants' and experts' fees) from the
presence or release of any Hazardous Materials on Licensor's Property or
Licensed Premises unless caused by Licensee or persons acting under Licensee.
Licensee agrees that this Agreement shall in no way act to abrogate or waive any
immunities available to Licenser under the Tort Claims Act of the State of
California.
12. Real Estate Taxes. To the extent that a possessory interest is deemed created,
Licensee acknowledges that notice is and was hereby given to Licensee pursuant to
California Revenue and Taxation Code Section 107.6 that use or occupancy of any public
property may subject the Licensee to possessory interest taxes or other taxes levied
against Licensee's right to possession, occupancy or use of any public property. Licensee
shall pay all applicable (federal, state, county, city, local) excise, sales, consumer use,
possessory interest, or other similar taxes required by law that are levied upon this
Agreement or upon Licensee's services under this Agreement. Licensee agrees to
reimburse Licensor for any documented increase in real estate or personal property taxes
levied against Licensor's Property that are directly attributable to the Improvements.
Licensor agrees to provide Licensee any documentation evidencing the increase and how
such increase is attributable to Licensee's use. Licensee reserves the right to challenge
any such assessment, and Licensor agrees to cooperate with Licensee in connection with
any such challenge.
13. Insurance. At all times during the performance of its Due Diligence Investigation
and during the License Term, Licensee, at its sole expense, shall obtain and keep in force
the required insurance as set forth in the attached Exhibit C. The insurance provisions
shall be separate and independent from the indemnification and defense provisions
between the Licensee and Licensor and shall not in any way limit the applicability, scope
or obligations of the indemnification defense provisions in Section 14.
14. Indemnification.
a. Licensee shall indemnify, defend, and hold harmless Licensor, its elected
and appointed officials, officers, employees, agents, and contractors, from and
17
against liability, claims, demands, losses, damages, fines, charges, penalties,
administrative and judicial proceedings and orders, judgments, and the costs and
expenses incurred in connection therewith, including reasonable attorneys' fees
and costs of defense, to the extent directly or proximately resulting from Licensee's
activities undertaken pursuant to this Agreement, except to the extent arising from
or caused by the gross negligence or willful misconduct of Licensor, its elected and
appointed officials, officers, employees, agents, or contractors. Licensor shall
promptly notify Licensee of any claim, action or proceeding covered by this Section
14(a).
b. Right to Audit. During the term of this Agreement, Licensee shall maintain
originals, or when originals are not available copies, of all records, books, papers
and documents relating to this Agreement and all accompanying agreements
between Licensee and Sublicensees (subject to Licensee's right to reasonably
redact such records, books, papers and documents to the extent they are
proprietary, represent confidential information, or constitute trade secrets). At all
reasonable times, Licensee shall allow Licensor to have access to, examine, copy,
and audit such records, including but not limited to access to and audit of
information pertaining to the identities of the Sublicensees whom Licensee has
attempted to sublicense the Licensed Premises.
15. Waiver of Claims and Rights of Subrogation. The parties hereby waive any and
all rights of action for negligence against the other on account of damage to the
Improvements, Licensor's Property or to the Licensed Premises resulting from any fire or
other casualty of the kind covered by property insurance policies with extended coverage,
regardless of whether or not, or in what amount, such insurance is carried by the parties.
All policies of property insurance carried by either party for the Improvements, Licensor's
Property or the Licensed Premises shall include a clause or endorsement denying to the
insurer rights by way of subrogation against the other party to the extent rights have been
waived by the insured before the occurrence of injury or loss.
16. Eminent domain. If Licensor receives notice of a proposed taking by eminent
domain of any part of the Licensed Premises or the Access/Utility Licenses, Licensor will
notify Licensee of the proposed taking within five days of receiving said notice and
Licensee will have the option to: (i) declare this Agreement null and void and thereafter
neither party will have any liability or obligation hereunder other than payment of Rent for
so long as Licensee remains in physical possession of the Licensed Premises; or (ii)
remain in possession of that portion of the Licensed Premises and Access/Utility Licenses
that will not be taken, in which event there shall be an equitable adjustment in Rent on
account of the portion of the Licensed Premises and Access/Utility Licenses so taken.
17. Right of First Refusal. If, during the License term, Licensor receives an offer to
purchase, make a loan, or give any consideration in exchange for any of the following
interests in all or a portion of any of the Licensed Premises: (i) fee title, (ii) a perpetual or
other easement, (iii) a lease, (iv) any present or future possessory interest, (v) any or all
portions of Licensor's interest in this Agreement including rent, or (vi) an option to acquire
any of the foregoing, Licensor shall provide written notice to Licensee of said offer
(Licensor's Notice). Licensor's Notice shall include the prospective buyer's name, the
purchase price being offered, any other consideration being offered, the other terms and
18
conditions of the offer, the due diligence period, the proposed closing date and, if a portion
of Licensor's Property is to be sold, a description of said portion. Licensee shall have a
right of first refusal to purchase, at its election and on the terms and conditions as in
Licensor's Notice, a fee simple interest in Licensor's Property or the Licensed Premises
or a perpetual easement for the Licensed Premises. If the Licensor's Notice is for more
than the Licensed Premises, Licensee shall have the option of purchasing the property
subject to Licensor's Notice in its entirety, or in the alternative, negotiating with the
proposed purchaser to acquire a perpetual easement in only the Licensed Premises. If
Licensee does not exercise its right of first refusal by written notice to Licensor given
within thirty days, Licensor may sell the property described in the Licensor's Notice. If
Licensee declines to exercise its right of first refusal, then this Agreement shall continue
in full force and effect and Licensee's right of first refusal shall survive any such
conveyance.
18. Sale of Property. If during the Lease Term, Licensor sells all or part of Licensor's
Property, of which the Licensed Premises is a part, then such sale shall be subject to this
Agreement.
19. Surrender of Property, Upon expiration or termination of this Agreement,
Licensee shall, within a reasonable time, remove all above and below ground
Improvements and restore the Licensed Premises to its original condition, without,
however, being required to replace any trees or other plants removed, or alter the then
existing grading.
20. Recording. Licensee shall have the right to record a memorandum of the
Agreement with the Fresno County Recorder's Office. Licensor shall execute and deliver
each such memorandum, for no additional consideration, promptly upon Licensee's
request.
21. Licensor's Covenant of Title. Licensor covenants that Licensor holds good and
marketable fee simple title to Licensor's Property and each of the Licensed Premises and
has full authority to enter into and execute this Agreement. Licensor further covenants
that there are no encumbrances or other impediments of title that might interfere with or
be adverse to Licensee.
22. Interference with Licensee's Business. Each of the covenants made by
Licensor in this Section is a covenant running with the land for the benefit of the Licensed
Premises.
23. Quiet Enmo ment. Licensor covenants that Licensee, on paying Rent and
performing the covenants of this Agreement, shall peaceably and quietly have, hold and
enjoy the Licensed Premises and Access/Utility Licenses.
24. Mortgages. This Agreement, Licensee's interest in the Licensed Premises and the
Access/Utility Licenses shall be subordinate to any mortgage given by Licensor which
currently encumbers the Licensed Premises, provided that any mortgagee shall recognize
the validity of this Agreement in the event of foreclosure. In the event that the Licensed
Premises is or shall be encumbered by such a mortgage, Licensor shall obtain and furnish
to Licensee a mutually agreed upon non-disturbance agreement for each such mortgage,
in recordable form. If Licensor fails to cooperate in providing any Licensee requested
19
non-disturbance agreement, Licensee may withhold and accrue, without interest, the
Rent until such time as Licensee receives all such documentation.
25. Title Insurance. Licensee, at Licensee's option, may obtain title insurance on each
of the Licensed Premises and Access/Utility Licenses at Licensee's sole cost and
expense. Licensor shall cooperate with Licensee's efforts to obtain title insurance by
executing documents or obtaining requested documentation as required by the title
insurance company. If Licensor fails to provide the requested documentation reasonably
necessary to Licensee for Licensee to obtain title insurance within thirty days of
Licensee's request, Licensee, at Licensee's option, may withhold and accrue, without
interest, the Rent until such time as Licensee receives all such documentation.
26. Default.
a. Notice of Default; Cure Period. If there is a default by Licensor or Licensee
(the Defaulting Party) with respect to any of the provisions of this Agreement or
Licensor's or Licensee's obligations under this Agreement, the other party (the
Non-Defaulting Party) shall give the Defaulting Party written notice of such default.
After receipt of such written notice, the Defaulting Party shall have thirty days in
which to cure any monetary default and sixty days in which to cure any non-
monetary default. If a non-monetary default reasonably requires more than a sixty-
day cure period, the Defaulting Party shall diligently pursue cure to completion and
shall request additional time to cure from the Non-Defaulting Party. The Non-
Defaulting Party shall not unreasonably withhold approval of additional time to
cure. The Non-Defaulting Party may not maintain any action or effect any remedies
for default against the Defaulting Party unless and until the Defaulting Party has
failed to cure the same within the time periods provided in this Section.
b. Consequences of Licensee's Default. Licensor acknowledges that under
the terms of this Agreement, Licensee has the right to terminate this Agreement at
any time upon 180 days' written notice to Licensor. Accordingly, in the event that
Licensor maintains any action or effects any remedies for default against Licensee
resulting in Licensee's dispossession or removal, (i) the Rent shall be paid up to
the date of such physical dispossession or removal and (ii) Licensor shall be
entitled to recover from Licensee, in lieu of any other damages, as liquidated, final
damages, a sum equal to six months' Rent which shall be calculated at the highest
value of the Rent which is in effect on the date of default and for the six-month
period thereafter. In no event shall Licensee be liable to Licensor for indirect or
speculative damages in connection with or arising out of any default.
C. Consequences of Licensor's Default. If Licensor is in default beyond the
applicable periods set forth above in Section 26(a), Licensee may, at its option,
upon written notice: (i) terminate the Lease, vacate the Licensed Premises and be
relieved from all further obligations under this Agreement; (ii) perform the
obligation(s) of Licensor specified in such notice, in which case any expenditures
reasonably made by Licensee in so doing shall be deemed paid for the account of
Licensor and Licensor agrees to reimburse Licensee for said expenditures upon
demand; (iii) take any actions that are consistent with Licensee's rights; (iv) sue for
20
injunctive relief, and/or (v) set-off from Rent any amount reasonably expended by
Licensee as a result of such default.
27. Force Majeure. If an event or condition constituting a "force majeure"—including,
but not limited to, an act of God, labor dispute, civil unrest, epidemic, or natural disaster—
prevents or delays either the Licensor or the Licensee (Party) from performing or fulfilling
an obligation under this Agreement, said Party is not in Default, under Section 26 of this
Agreement, of the obligation. A delay beyond a Party's control automatically extends the
time, in an amount equal to the period of the delay, for the Party to perform the obligation
under this Agreement. The Licensor and Licensee shall prepare and sign an appropriate
document acknowledging any extension of time under this Section.
28. Applicable Law. This Agreement and the performance thereof shall be governed,
interpreted, construed and regulated by the laws of the State where the Licensed
Premises is located. The parties agree that the venue for any litigation regarding this
Agreement shall be the state where the Licensed Premises is located.
29. Assignment, Sublease Licensing and Encumbrance. Lessee may assign this
Agreement to a person or entity with demonstrated capacity to carry out Lessee's
obligations under this Agreement. Lessee shall provide 30 days' prior written notice of
such assignment to Lessor. Lessee may enter into subleases, licenses, or other
authorizations (Sub-Authorizations) to allow a third party to utilize and operate from the
Leased Premises, so long as such third party is a provider of services that utilize Wireless
Telecommunications Facilities. Sub-Authorizations shall not require the consent of
Lessor.
30. Miscellaneous.
a. Entire Agreement. Licensor and Licensee agree that this Agreement,
together with that certain Consulting Services Agreement Regarding Wireless
Master Planning and Memorandum of Understanding and Agreement Regarding
Licenses and Sublicenses of Publicly-Owned Properties Pertaining to Wireless
Telecommunications Facilities between Licensor and Licensee, contain all of the
agreements, promises and understandings between Licensor and Licensee with
regard to the Licensed Premises. No oral agreements, promises or understandings
shall be binding upon either Licensor or Licensee in any dispute, controversy or
proceeding at law. Any addition, variation or modification to this Agreement shall
be void and ineffective unless made in writing and signed by the parties hereto.
b. Captions. The captions preceding the Sections of this Agreement are
intended only for convenience of reference and in no way define, limit or describe
the scope of this Agreement or the intent of any provision hereof.
C. Construction of Document. Licensor and Licensee acknowledge that this
document shall not be construed in favor of or against the drafter by virtue of said
party being the drafter and that this Agreement shall not be construed as a binding
offer until signed by Licensee.
d. Notices. All notices hereunder shall be in writing and shall be given by (i)
established national courier service which maintains delivery records, (ii) hand
delivery, or (iii) certified or registered mail, postage prepaid, return receipt
21
requested. Notices are effective upon receipt, or upon attempted delivery if delivery
is refused or if delivery is impossible because of failure to provide reasonable
means for accomplishing delivery. The notices shall be sent to Licensor at
Licensor's Notice Address and to Licensee at Licensee's Notice Address.
e. Partial Invalidity. If any term of this Agreement is found to be void or
invalid, then such invalidity shall not affect the remaining terms of this Agreement,
which shall continue in full force and effect.
f. IRS Form W-9. Licensor agrees to provide Licensee with a completed IRS
Form W-9, or its equivalent, upon execution of this Agreement and at such other
times as may be reasonably requested by Licensee. In the event the Property is
transferred, the succeeding Licensor shall have a duty at the time of such transfer
to provide Licensee with a completed IRS Form W-9, or its equivalent, and other
related paper work to affect a transfer in Rent to the new Licensor. Licensor's
failure to provide the IRS Form W-9 within thirty days after Licensee's request shall
be considered a default and Licensee may take any reasonable action necessary
to comply with IRS regulations including, but not limited to, withholding applicable
taxes from Rent payments.
[Signatures follow on the next page.]
22
IN WITNESS WHEREOF, Licensor and Licensee, having read the foregoing and
intending to be legally bound hereby, have executed this Agreement as of the day and
year this Agreement is fully executed.
LICENSOR LICENSEE
CITY OF FRESNO, XG COMMUNITIES, LLC.,
A California municipal corporation A Delaware im ed Liabili ompany
By: By:
Name:
APPROVED AS TO FORM: Title: '
DOUGLAS T. SLOAN (if co ation r LLC., Board Chair,
City Attorney P s. or Vice s.)
i
y
Raj Sing adhesha Date p=jim.,`\�" Supervising Deputy City Attorney Name: tkvl PC 6t
Title: �K-'t S( L��
ATTEST: (If corporation or LLC., CFO,
YVONNE SPENCE, MMC Treasurer, Secretary or Assistant
City Clerk Secretary)
s r
Deputy
23
EXHIBIT A TO AMENDED AND RESTATED LICENSE AGREEMENT
LICENSED PREMISES
[Attached]
24
EXHIBIT A TO AMENDED AND RESTATED LICENSE AGREEMENT
LICENSED PREMISES
[Attached]
Attached sites have been redacted
24
EXHIBIT B
AMENDED AND RESTATED RIGHT OF ENTRY AGREEMENT
This Right of Entry Agreement (this Agreement) is made as of the date of the final
signature below, by and between the City of Fresno, a municipal corporation, having a
mailing address of 2600 Fresno Street, Fresno, CA 93721 (Grantor) and XG
Communities, LLC., a Delaware limited liability company, with an address at 4675
Macarthur Court, Newport Beach, CA 92660 (Grantee). Grantor and Grantee are
sometimes collectively referred to as "Parties" or individually as "Party."
RECITALS
A. Grantor is the fee owner of record of that certain real property (the Property).
B. Grantor and Grantee have entered into that certain Wireless Marketing Agreement
Regarding Wireless Master Planning (Subscription Agreement) and a License Agreement
pursuant to which Grantee has agreed to provide certain consulting, marketing, and
management services relating to the placement of Wireless Telecommunications
Facilities on some or all of the Property.
C. Pursuant to the Subscription Agreement, Grantor and Grantee have agreed to
enter into this Agreement to that Grantee may enter upon the Property, upon 24 hour
written notice to Grantor, to inspect, conduct, perform and examine soil borings, drainage
testing, material sampling, surveys and other geological or engineering tests or studies
of the Property, to apply for and obtain all licenses and permits required for Grantee's use
of the designated Property from all applicable governmental or regulatory entities, and to
do those things on or off the designated Property that, in the sole opinion of Grantee, are
necessary to determine the physical condition of designated Property, the environmental
history of the designated Property, and the feasibility or suitability of the designated
Property for Grantee's use (Due Diligence /Investigation).
NOW, THEREFORE, in consideration of the mutual promises, covenants and
conditions contained herein, and other good and valuable consideration, the receipt and
sufficiency of which is acknowledged by each of the Parties, the Parties agree as follows:
AGREEMENT
1. Right of Entry. Grantor hereby grants to Grantee and its agents, employees,
contractors, subcontractors, and volunteers non-exclusive permission to enter over and
across, as well as to use the Property as is reasonable and necessary, for the express
purpose of conducting, at Grantee's sole expense, the Due Diligence Investigation. (The
above-described activities are collectively referred to hereafter as the Work).
2. Term. The Right of Entry granted pursuant to Section 1, above, shall be for a
limited term, commencing as of the date of this Agreement and expiring upon the
expiration or earlier termination of the Subscription Agreement.
3. Entry at Own Risk; No Duty to Warn. Grantee and its agents, employees,
contractors, subcontractors, and volunteers shall access, enter and use the Property at
their own risk and peril. Grantor shall have no duty to inspect the Property (or any portion
25
thereof) and no duty to warn of any latent or patent defect, condition or risk which may
exist on the Property.
4. Liens. Grantee shall not permit to be placed against the Property, or any part
thereof, any mechanics', materialmen's, contractors' or other liens (collectively, the Liens)
arising out of the acts or omissions of the Grantee or its agents, employees, contractors,
subcontractors, or volunteers hereunder. Grantee hereby indemnifies and agrees to hold
the Grantor and the Property free and harmless from all liability for any and all such Liens,
together with all costs and expenses, including, but not limited to, attorneys' fees and
court costs reasonably incurred by Grantor in connection therewith.
5. Hazardous Substances. Grantee and its agents, employees, contractors,
subcontractors, and volunteers shall not use, store or transport or allow the use, storage
or transportation of any hazardous substances on or onto the Property.
6. Restoration of the Property. Except to the extent otherwise contemplated by this
Agreement, Grantee shall, at its own cost and expense, restore the Property to the same
condition in which it was prior to Grantee's entity.
7. Indemnification by Grantee. Except to the extent otherwise provided below,
Grantee agrees to hold harmless and indemnify Grantor from and against any and all,
claims, demands, actions, and causes of action for injury or death of any person, or
damages to property, arising out of or resulting from the use or access of the Property by
the Grantee or its agents, employees, contractors, subcontractors, and volunteers
pursuant to this Agreement. Notwithstanding the foregoing, the Grantee shall have no
obligation to indemnify Grantor from a pre-existing condition at the Property, any
encroachments of the wall on any other property or for claims related to the gross
negligence or willful misconduct of Grantor.
8. Authority to Execute. Grantor(s) warrants and represents to Grantee that
he/she/it/they is/are the sole owner(s) of the Property and may execute and approve this
Agreement and no permission or consent of any other person is required to approve this
Agreement.
9. Successors and Assigns. This Agreement shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and assigns.
10. Entire Agreement. No representations or covenants of any kind other than those
expressly contained herein have been made by either party hereto. This Agreement may
only be modified or amended by an agreement in writing duly executed and delivered by
each of the Parties hereto.
11. Severability. If any provision of this instrument, or the application thereof to any
person or circumstances, is found to be invalid, the remainder of the provisions of this
instrument, or the application of such provision to persons or circumstances other than
those as to which it is found to be invalid, as the case may be, shall not be affected
thereby.
12. Permits. Prior to beginning any work, Licensee at its sole expense, shall obtain all
necessary permits to use the Premises as permitted under this Agreement.
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13. All Expenses to Be Borne by Licensee. Licensee shall bear any and all costs
and expenses associated with the rights granted to Licensee to use the Premises, or any
unforeseen costs or expenses incurred by the City relating to Licensee's use of the
Premises in the performance of this Agreement.
14. Hours of Operation. The hours of operation that Licensee shall be permitted to
conduct its project shall be between 7 am and 5 pm, Monday through Friday. No weekend
work shall be permitted.
15. Governing Law. This Agreement shall be governed in accordance with the laws
of the State of California.
16. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original and which together shall constitute a single agreement.
[Signatures follow on the next page.]
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IN WITNESS WHEREOF, Licensor and Licensee having read the foregoing and
intending to be legally bound hereby, have executed this Agreement as of the day and
year this Agreement is fully executed.
GRANTOR GRANTEE
CITY OF FRESNO, XG COMMUNITIES, LLC.,
A California municipal corporation A Delaware li ' ed liabb ity comp ny
By: By:
Nam , !:�
APPROVED AS TO FORM: Title: G
DOUGLAS T. SLOAN (If c ration ❑ LLC., Board Chair,
City Attorney P es. or Vice Pr s.)
By. ,; vt,Kd� B
QS �;+ hh4 ryh� Date
—Ct'P.Deputy City Attorney Name: f i VC ��C(�--
Title: ?(tS t -
ATTEST: (If corporation or LLC., CFO,
YVONNE SPENCE, MMC Treasurer, Secretary or Assistant
City Clerk Secretary)
By: C&" ?o
Puty
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EXHIBIT C
INSURANCE REQUIREMENTS
Wireless Marketing Agreement between City of Fresno (City)
and XG Communities, LLC. (Consultant)
MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. The most current version of Insurance Services Office (ISO) Commercial General
Liability Coverage Form CG 00 01, providing liability coverage arising out of your
business operations. The Commercial General Liability policy shall be written on
an occurrence form and shall provide coverage for "bodily injury," "property
damage" and "personal and advertising injury" with coverage for premises and
operations (including the use of owned and non-owned equipment), products and
completed operations, and contractual liability (including, without limitation,
indemnity obligations under the Agreement) with limits of liability not less than
those set forth under "Minimum Limits of Insurance."
2. The most current version of ISO *Commercial Auto Coverage Form CA 00 01,
providing liability coverage arising out of the ownership, maintenance or use of
automobiles in the course of your business operations. The Automobile Policy
shall be written on an occurrence form and shall provide coverage for all owned,
hired, and non-owned automobiles or other licensed vehicles (Code 1-Any Auto).
If personal automobile coverage is used, the City, its officers, officials, employees,
agents, and volunteers are to be listed as additional insureds.
3. Workers' Compensation insurance as required by the State of California and
Employer's Liability Insurance.
4. Professional Liability (Errors and Omissions) insurance appropriate to the
Consultant's profession.
MINIMUM LIMITS OF INSURANCE
The Consultant, or any party the Consultant subcontracts with, shall maintain limits of liability of
not less than those set forth below. However, insurance limits available to the City, its officers,
officials, employees, agents, and volunteers as additional insureds, shall be the greater of the
minimum limits specified herein or the full limit of any insurance proceeds available to the named
insured:
1. COMMERCIAL GENERAL LIABILITY:
(i) $1,000,000 per occurrence for bodily injury and property damage;
(ii) $1,000,000 per occurrence for personal and advertising injury;
(iii) $2,000,000 aggregate for products and completed operations; and,
(iv) $2,000,000 general aggregate applying separately to the work performed
under the Agreement.
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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.
4. EMPLOYER'S LIABILITY:
(i) $1,000,000 each accident for bodily injury;
(ii) $1,000,000 disease each employee; and,
(iii) $1,000,000 disease policy limit.
5. PROFESSIONAL LIABILITY (Errors and Omissions):
(i) $1,000,000 per claim/occurrence; and,
(ii) $2,000,000 policy aggregate.
UMBRELLA OR EXCESS INSURANCE
In the event the Consultant 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.
DEDUCTIBLES AND SELF-INSURED RETENTIONS
The Consultant shall be responsible for payment of any deductibles contained in any insurance
policy(ies) required herein and the Consultant shall also be responsible for payment of any self-
insured retentions. Any deductibles or self-insured retentions must be declared to on the
Certificate of Insurance, and approved by, the City's Risk Manager or designee. At the option of
the City's Risk Manager or designee, either:
(i) The insurer shall reduce or eliminate such deductibles or self-insured
retentions as respects the City, its officers, officials, employees, agents,
and volunteers; or
(ii) The Consultant shall provide a financial guarantee, satisfactory to the City's
Risk Manager or designee, guaranteeing payment of losses and related
investigations, claim administration and defense expenses. At no time
shall the City be responsible for the payment of any deductibles or self-
insured retentions.
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OTHER INSURANCE PROVISIONSIENDORSEMENTS
The General Liability and Automobile Liability insurance olicies are to contain, or be endorsed
to contain, the following provisions:
1. The City, its officers, officials, employees, agents, and volunteers are to be covered
as additional insureds. The Consultant shall establish additional insured status for
the City and for all ongoing operations by use of ISO Form CG 20 10 11 85 or
CG 20 10 10 01 or by an executed manuscript insurance company endorsement
providing additional insured status as broad as that contained in ISO Form
CG 20 10 11 85.
2. The coverage shall contain no special limitations on the scope of protection
afforded to The City, its officers, officials, employees, agents, and volunteers. Any
available insurance proceeds in excess of the specified minimum limits and
coverage shall be available to the Additional Insured.
3. For any claims relating to this Agreement, Consultant's insurance coverage shall
be primary insurance with respect to the City, its officers, officials, employees,
agents, and volunteers. Any insurance or self-insurance maintained by the City,
its officers, officials, employees, agents, and volunteers shall be excess of
Consultant's insurance and shall not contribute with it. The Consultant shall
establish primary and non-contributory status by using ISO Form CG 20 01 04 13
or by an executed manuscript insurance company endorsement that provides
primary and non-contributory status as broad as that contained in ISO Form CG
2001 0413.
The Workers' Compensation insurance policy is to contain, or be endorsed to contain, the
following provision: the Consultant and its insurer shall waive any right of subrogation against the
City, its officers, officials, employees, agents, and volunteers.
If the Professional ffirrors and Omissions insurance policV is written on a claims-made form:
1. The retroactive date must be shown, and must be before the effective date of the
Agreement or the commencement of work by the Consultant.
2. Insurance must be maintained and evidence of insurance must be provided for at
least five years after completion of the Agreement work or termination of the
Agreement, whichever occurs first, or, in the alternative, the policy shall be
endorsed to provide not less than a five-year discovery period.
3. 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 the commencement of work by the Consultant, the Consultant must purchase
"extended reporting" coverage for a minimum of five years' completion of the
Agreement work or termination of the Agreement, whichever occurs first.
4. A copy of the claims reporting requirements must be submitted to the City for
review.
5. These requirements shall survive expiration or termination of the Agreement.
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All policies of insurance required herein shall be endorsed to provide that the coverage shall not
be cancelled, non-renewed, reduced in coverage or in limits except after thirty calendar days
written notice by certified mail, return receipt requested, has been given to the City. The
Consultant is also responsible for providing written notice to the City under the same terms and
conditions. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non-
renewal, or reduction in coverage or in limits, the Consultant shall furnish the 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 the City, the Consultant shall provide a new certificate,
and applicable endorsements, evidencing renewal of such policy not less than fifteen calendar
days prior to the expiration date of the expiring policy.
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.
The fact that insurance is obtained by the Consultant shall not be deemed to release or diminish
the liability of the Consultant, including, without limitation, liability under the indemnity provisions
of this Agreement. The policy limits do not act as a limitation upon the amount of indemnification
to be provided by the Consultant. Approval or purchase of any insurance contracts or policies
shall in no way relieve from liability nor limit the liability of the Consultant, its principals, officers,
agents, employees, persons under the supervision of the Consultant, vendors, suppliers, invitees,
consultants, sub-consultants, subcontractors, or anyone employed directly or indirectly by any of
them.
VERIFICATION OF COVERAGE
The Consultant shall furnish the City with all certificate(s) and applicable endorsements
effecting coverage required hereunder. All certificates and applicable endorsements are to be
received and approved by the City's Risk Manager or designee prior to the 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. Upon request of the City, the
Consultant shall immediately furnish City with 4 c�)rnplete copy of any insurance policy required
under this Agreement, including all endorseme�ts�, with said copy certified by the underwriter to
be a true and correct copy of the original polidy. This requirement shall survive expiration or
termination of this Agreement.
SUBCONTRACTORS - If the Consultant subcontracts any or all of the services to be performed
under this Agreement, the Consultant 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 subcontractor must be reviewed and preapproved by the
City Risk Manager or designee. If no side agreement is required, the Consultant shall require and
verify that subcontractors maintain insurance meeting all the requirements stated herein and the
Consultant shall ensure that the City, its officers, officials, employees, agents, and volunteers are
additional insureds. The subcontractors' certificates and endorsements shall be on file with the
Consultant, and the City, prior to cgmmenceMent of any work by the subcontractor.
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