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Home My WebLink AboutAG 21-132 - VERIZON WIRELESS/ PACIFIC NORTHWEST NETWORK ENGINEERINGRETURN TO: PW ADMIN EXT: 2700 ID #: 3933 CITY OF FEDERAL WAY LAW DEPARTMENT ROUTING FORM 1. ORIGINATING DEPT/DIV: PUBLIC WORKS / ROW 2. ORIGINATING STAFF PERSON: Cole Elliott EXT: 2730 3. DATE REQ. RY: 3. TYPE OF DOCUMENT (CHECK ONE): ❑ CONTRACTOR SELECTION DOCUMENT (E.G., RFB, RFP, RFQ) ❑ PUBLIC WORKS CONTRACT ❑ SMALL OR LIMITED PUBLIC WORKS CONTRACT ❑ PROFESSIONAL SERVICE AGREEMENT ❑ MAINTENANCE AGREEMENT ❑ GOODS AND SERVICE AGREEMENT ❑ HUMAN SERVICES / CDBG ❑ REAL ESTATE DOCUMENT ❑ SECURITY DOCUMENT (E.G. BOND RELATED DOCUMENTS) ❑ ORDINANCE ❑ RESOLUTION ❑ CONTRACT AMENDMENT (AG#); ❑ INTERLOCAL p OTHER rrancnise Agreemerii TOT masier ie 4. PROJECT NAME: Verizon Master Lease Agreement 5. NAME OF CONTRACTOR. Verizon Wireless / Pacific Northwest Network Engineering ADDRESS: 3245 158th Ave SE Bellevue, WA 98008 TELEPHONE: 425 603 8240 E-MAIL: FAX: SIGNATURE NAME: Kari Marino TITLE: Small Cell Strategy Mae 6. EXHIBITS AND ATTACHMENTS: ❑ SCOPE, WORK OR SERVICES ❑ COMPENSATION ❑ INSURANCE REQUIREMENTS/CERTIFICATE ❑ ALL OTHER REFERENCED EXHIBITS ❑ PROOF OF AUTHORITY TO SIGN ❑ REQUIRED LICENSES ❑ PRIOR CONTRACT/AMENDMENTS CFW LICENSE # BL, EXP. 12/31/ UBI # EXP. /_/ 7. TERM: COMMENCEMENT DATE: 1 (� 4 I 2 COMPLETION DATE: 1 2-0( 8. TOTAL COMPENSATION: $)SI(' k (INCLUDE EXPENSES AND SALES TAX, IF ANY) (IF CALCULATED ON HOURLY LABOR CHARGE - ATTACH SCHEDULES OF EMPLOYEES TITLES AND HOLIDAY RATES) REIMBURSABLE EXPENSE: ❑ YES ❑ NO IF YES, MAXIMUM DOLLAR AMOUNT: $ IS SALES TAX OWED: ❑ YES ❑ NO IF YES, $ PAID BY: ❑ CONTRACTOR ❑ CITY RETAINAGE: RETAINAGE AMOUNT: ❑ RETAINAGE AGREEMENT (SEE CONTRACT) OR ❑ RETAINAGE BOND PROVIDED O PURCHASING: PLEASE CHARGE TO: 101-0000-000-345-83-005 9. DOCUMENT / CONTRACT REVIEW INITIAL / DATE REVIEWED INITIAL / DATE APPROVED ❑ PROJECT MANAGER A DIVISION MANAGER CE 06/21/2021 6 DEPUTY DIRECTOR DSW 6/30121 6 DIRECTOR EJW 7/1512021 6 RISK MANAGEMENT (IF APPLICABLE) 8 LAW DEPT KVA 7/2/2021 p r 10. COUNCIL APPROVAL (IF APPLICABLE) SCHEDULED COMMITTEE DATE: q� i�j Zl COMMITTEE APPROVAL DATE: SCHEDULED COUNCIL DATE: 1 12 4 12 COUNCIL APPROVAL DATE: 121 11. CONTRACT SIGNATURE ROUTING -1I `5 (2 % I25 2 ) ❑ SENT TO VENDOR/CONTRACTOR DATE SENT: DATE REC' D: ❑ ATTACH: SIGNATURE AUTHORITY, INSURANCE CERTIFICATE, LICENSES, EXHIBITS ❑ CREATE ELECTRONIC REMINDER/NOTIFICATION FOR I MONTH PRIOR TO EXPIRATION DATE (INCLUDE DEPT. SUPPORT STAFF IF NECESSARY AND FEEL FREE TO SET NOTIFICATION MORE THAN A MONTH IN ADVANCE IF COUNCIL APPROVAL IS NEEDED.) INITIAL / DATE SIGNED ❑ FINANCE DEPARTMENT Lk LAW DEPT 14 SIGNATORY (MAYOR OR DIRECTOR) ❑ CITY CLERK a ❑ ASSIGNED AG # AG# ❑ SIGNED COPY RETURNED DATE SENT: _ to. I COMMENTS: EXECUTE" "ORIGINALS Was reviewed back in 2019 under ID # 3573. Going through new review under 3933, after getting reviewed by outside council_ 1/2020 SMALL WIRELESS COMMUNICATION FACILITIES MASTER LEASE AGREEMENT between THE CITY OF FEDERAL WAY and SEATTLE SMSA LIMITED PARTNERSHIP d/b/a VERIZON WIRELESS {DPK2428001.DOCX;2/13104.080004/ } Table of Contents TERMSOF LEASE...............................................................................................................................3 1. Definitions.................................................................................................................................3 2. City Poles..................................................................................................................................4 3. Allowed Use................................................................................................................................4 4. Effective Date............................................................................................................................5 5. Term...........................................................................................................................................5 6. Compensation............................................................................................................................6 7. Taxes, Assessments & Utilities................................................................................................. 8 8. Permits....................................................................................................................................... 8 9. Non -Interference with City Poles..............................................................................................9 10. Radio Frequency Interference Study......................................................................................... 9 11. City Poles Access & Security..................................................................................................10 12. Hazardous Materials...............................................................................................:...........:....11 13. Pole Replacement....................................................................................................................11 14. Maintenance/Stewardship........................................................................................................12 15. Repairs by City; Increased Maintenance Costs; Emergency Situations..................................13 16. Sub -license & Assignment by Company..................................................................................14 17. Sub -license & Assignment by City..........................................................................................15 18. Improvements, Fixtures and Personal Property; Inspection by City.......................................15 19. Destruction of or Damage to the City Poles or any Site Structures . .......... ::.....::.............. :..... 15 20. Condemnation...........................................................................................,.............................16 21. Insurance.......................................................................................................••-.......................16 22. Hold Harmless.........................................................................................................................16 23. Performance Bond....................................................................................................................18 24. Nondiscrimination..................................................................................................................... 18 25. Stop Work................................................................................................................. 19 26. Prerequisites for Approval. Company acknowledges the following: ..... ............................ 19 27. Review of Plans........................................................................................................................19 28. Default; Remedies...................................................................................................................21 29. Termination.................................................................. •--..... .................. ................................ " 30. Cure.........................................................................................................................................24 31. Relocation..................................................................................................................................24 32. Removal of Site Equipment upon Termination of Agreement ................................................ 25 33. Records; Audits........................................................................................................................25 34. Miscellaneous.............................................................................................- ......................... 26 {DPK2428001.DOCX;2/13104.080004/ 1 2 CERTIFICATE AS TO CORPORATE SEAL...:.....::..., .:...:::::.....:.....:...... ......................................... 43 This SMALL WIRELESS COMMUNICATION FACILITIES MASTER LEASE AGREEMENT hereinafter ("Agreement") is entered into by and between the City of Federal Way, a municipal corporation of the state of Washington, hereinafter referred to as (the "City"), and Seattle SMSA Limited Partnership d/b/a Verizon Wireless, hereinafter referred to as (the "Company"). RECITALS WHEREAS, the City owns certain improved real property and structures, described in Exhibit A, attached hereto and incorporated herein (the "City Poles"), and WHEREAS, the City owns the City Poles in its proprietary capacity; and WHEREAS, the Company is engaged in the operation of small wireless facilities ("Shall Wireless Facilities", as further defined below) and desires to license from the City, and the City is willing to license the City Poles, described in Exhibit A, attached hereto and incorporated herein. NOW THEREFORE, for valuable consideration the sufficiency of which is hereby acknowledged and in consideration of the terms, conditions,,covenants and performances contained herein, it is mutually agreed as follows. TERMS OF LEASE Definitions. 1.1. "City Poles" means street light poles owned and operated by the City in public right-of- way and public utility easements adjacent to the right-of—way and approved for Company's Site Equipment as further described on Exhibit A. The term "City Poles" does not include real property owned by City or the fixtures located thereon or improvements there to, including but not limited to, buildings, water towers and parks. 1.2. "Government Approvals" includes all federal (e.g. FCC and FAA requirements), state and local permits and approvals, including the franchise and compliance with the Federal Way Revised Code (F WRC). 1.3. "Make -Ready Work" means the work required on or in a City Pole to create space for the Site Equipment, which may include, but is not limited to replacing and/or reinforcing the existing City Pole to accommodate the Site Equipment, or rearrangement or transfer of existing Site Equipment and the facilities of other entities, including any necessary fiber connections and electrical power, as further described in Section 13. 1.4. "Site Equipment" means antennas and any associated utility or equipment box, and transmitters, receivers, radios, amplifiers, ancillary fiber-optic cables and wiring, and ancillary equipment for the transmission and reception of radio communication signals for voice and other data transmission, including the means and devices used to attach Site Equipment to City Poles, peripherals, and wiring, cabling, power feeds, and any approved signage attached to the City Poles as further depicted on Exhibit B. {DPK2428001.DOCX;2/13104 080004/ 1 1.5. "Site Lease Addendum" means the document in the form substantially similar to Exhibit C that, when fully executed, incorporates the provisions of this Agreement and authorizes the Company to install, operate, repair, replace, and maintain the Site Equipment on City Poles identified in the specific Site Lease Addendum. A Site Lease Addendum is required in addition to a small wireless facility permit and any right of way use permits required by the City. 1.6. "Small Wireless Facility" means a "small wireless facility" as defined in 47 CFR 1.6002. City Poles 2.1. The City represents as follows: 2.1.1. it owns the City Poles and all appurtenances; 2.1.2. it is fully authorized to enter into this Agreement; and 2.1.3. the individual executing this Agreement is authorized to bind the City to the provisions contained herein. 2.1.4. The City hereby licenses to Company a portion of the City Poles, identified on Exhibit A and as approved on the Site Lease Addenda, the form of which is attached hereto and incorporated herein by reference, together with non-exclusive access rights to and from the City Poles, sufficient for Company's use of the City Poles, as outlined in Section 11 herein. This Agreement allows Company to utilize City Poles within the present limits of the City and as such limits may be hereafter extended through annexation. 2.2. Company's use of an individual City Pole is subject to the City's prior approval of a Site Lease Addendum for each City Pole. City Public Works is authorized to use and modify the Site License Addendum See Exhibit C as necessaa to adeguately review the specific installation sites and is authorized to review and approve Site License Addenda once submitted by the Company, 2.3. The authority granted by this Agreement is a limited, non-exclusive authorization to occupy and use certain City Poles as approved by a Site Lease Addendum. Such use must also follow the Federal Way Revised Code (the "FWRC") and all other federal, state, and local laws and regulations. The provisions of this Agreement are expressly contingent upon the approval by the City Council of a valid telecommunications franchise which expressly authorizes the deployment of Small Wireless Facilities in the public right of way. 2.4. Nothing contained within this Agreement shall be construed to grant or convey any right, title, or interest in the City Poles to the Company other than for the purpose of placing and operating the Site Equipment. Further, nothing in this Agreement shall be interpreted to create or vest in Company any easement or other ownership or property interest to any City Poles, property, or rights -of -way. This Agreement shall not constitute an assignment of any of the City's ownership of or other rights to City Poles, property, or rights -of -way. Allowed Use. 3.1. Company may install, operate, maintain, remove, repair and replace, at Company's sole responsibility and expense, Small Wireless Facilities that are consistent with the Site Lease Addendum. Company shall not use the City Poles for any other purpose whatsoever without the prior written consent {DPK2428001.DOCX;2/13104.080004/ 1 4 of the City, which consent may be withheld for any lawful reason. This Agreement does not grant Company the right or license to utilize City Poles for facilities other than Small Wireless Facilities. 3.2. Prior to use of the City Poles by Company, Company and City must execute a Site Lease Addendum, in the form substantially similar to Exhibit C, that covers the specific Small Wireless Facilities and location of the specific City Poles. 3.3. Company, in the performance and exercise of its rights and obligations under this Agreement, shall not materially or harmfully interfere in any manner with the existence and operation of any and all existing and future public and private rights -of -way, sanitary sewers, water mains, storm drains, gas mains, poles, aerial and underground electrical and telephone wires, traffic signals, communication facilities owned by the City, cable television, location monitoring services, public safety and other existing telecommunications equipment, utility, or municipal property, without the express written approval of the City or owners of the affected property or properties, except as permitted by applicable laws or this Agreement. 3.4. All Site License Addenda are subject to the terms and conditions of this Agreement. Further, the Company acknowledges and agrees that as a result of the City's review of the Site Lease Addenda, the City may deny the installation of Site Equipment outright or require additional terms and/or conditions reasonably related to special circumstances at the subject City Pole location which will be stated in each Site Lease Addendum. The City is under no obligation to accept the installation of the Site Equipment on the City Poles if it determines in its reasonable judgment that the installation will interfere in any way with the City's primary use of the City Poles, or of the public right of way for transportation purposes, including transportation signalization or public safety, city utility, communication facilities or electrical facilities and their maintenance and operations or the City determines that such installation would conflict with City policy as expressed by law, ordinance or regulation. 3.5. Company represents, warrants and covenants that its Site Equipment installed pursuant to this Agreement and each Site Lease Addendum will be utilized solely for providing the following services: the provision of data and voice coverage and capacity for mobile device users or wireless data services. Company is not authorized to and shall not use its Site Equipment to offer or provide any other services not specified herein without prior written permission from the City, and without first obtaining any other necessary permits and approvals, including but not limited to installation and operation of wires and facilities to provide backhaul transmission service to a third party or the expansion of the facility to include additional antenna, radios and other infrastructure that would eliminate concealment or transform the City Poles into a micro or macro cell site as such terms are defined by state and federal law. 3.6. Company shall not place any advertising or lighting devices in, on or about the City Poles, unless such signs or lighting are a part of the design of the pole and provide a public benefit as approved by the City. Examples of installations providing a public benefit include way signage and civic banners. However, Company is required to place a sticker with the contact name and number so that the City can contact the Company as necessary for repairs and in emergency situations. 4. Effective Date All references in this Agreement to the "Effective Date", "the date hereof', or similar references shall refer to If no date, then date of last signature. 5. Term The term of this Agreement shall commence as of the Effective Date and shall expire ten (10) years from {DPK2428001.DOCX;2/13104,080004/ } effective date ("Initial Term" or "Term"). This Agreement will automatically renew for one five (5) year period (the "First Renewal Term"), unless Company provides the City at least ninety (90) days' written notice of its intent not to renew prior to the end of the Initial Terin or unless the franchise between the parties is terminated. At the expiration of the First Renewal Term, this Agreement will automatically renew for one more five (5) year period (the "Second Renewal Term"), unless either party provides the other party at least ninety (90) days' written notice of its intent not to renew prior to the end of the First Renewal Term. The Initial Term, First Renewal Term, and Second Renewal Term will collectively hereinafter be referred to as the "Term". Within ninety (90) days of the fifth (5th) anniversary and the tenth (1 Oth) anniversary of the Effective Date, the parties will meet and confer in good faith regarding the following terms: bonding requirements, insurance levels, extension of the term, and resolution of any compliance issues, and the parties shall modify such terms as deemed reasonably necessary by the City to ensure the public health, safety and welfare. A Site Lease Addendum shall not extend this Agreement; each Site Lease Addendum shall terminate with the expiration or termination of this Agreement, unless this Agreement is extended by mutual agreement of the parties. Compensation 6.1. Prior to execution of this Agreement, Company shall pay a one-time fee for the City's actual incurred administrative costs related to the development of this Agreement, as provided in a Fee Schedule pertaining to the siting of Small Wireless Facilities approved by City Council, and as may be amended from time to time by the City Council (the "Fee Schedule"). If the amount of administrative costs exceed the amount on the Fee Schedule, then the Company shall pay to the City such additional, reasonable and documented costs within thirty (30) days of an invoice by the City. 6.2. Company is permitted, but not required, to reserve up to ten (10) City Poles at any one time, prior to submitting a Site Lease Addendum for such City Pole. This reservation will expire six (6) months from the date of reservation (the "Reservation Period"), unless Company has submitted a Site Lease Addendum for the specific City Pole. The fees associated with reserving the City Pole shall be in accordance with the Fee Schedule. The City will not approve a Site Lease Addendum from another applicant for any reserved pole during the Reservation Period. 6.3. Company shall be responsible for paying a non-refundable administrative fee for the processing and review of the Site Lease Addenda as further described in the Fee Schedule (the "Administrative Fee") for each City Pole requested in a Site Lease Addendum submitted for review and approval. The Administrative Fee shall be submitted with every Site Lease Addendum as a prerequisite to begin review of the Site Lease Addendum. Company shall have the right to amend the Site Lease Addendum to correct errors or provide additional information without having to pay a second Administrative Fee. Any additional, reasonable and documented costs incurred by the City in excess of the Administrative Fee shall be paid by the Company within thirty (30) days of an invoice by the City. The Administrative Fee may be modified based on the City's analysis of actual costs as described in the Fee Schedule. 6.4. Company shall pay to the City the Rent for each Site Lease Addendum, in advance, on the first day of January through the Term of the Agreement, without any prior notice or demand therefor, and without deduction, offset, abatement, or setoff. "Rent" in the year in which the Site Lease Addendum is submitted to the City shall be included in the Administrative Fee, unless Rent is increased as described in Section 6.5 below; thereafter, the Rent is as described in the Fee Schedule, as may be amended by the City Council. As of the date of the Effective Date of this Agreement, Rent will be based upon actual cost to the City or $270, unless Section 6.5 applies. Rent shall be due regardless of whether Company has installed the Site Equipment on the City Pole, provided that the City has approved the Site Lease Addendum for the City Pole. {DPK2428001.DOCX;2/13104.080004/ 1 6 6.5. If the Federal Communications Commission's Declaratory Ruling published in the federal register on October 15, 2018 ("Declaratory Ruling") as it pertains to fees for the usage of City Poles is repealed, modified or overturned, in a manner which allows the City to charge additional fees beyond actual costs to the City, the parties agree that Rent shall increase to the fair market value for the use of the City Poles as determined by the City in the Fee Schedule, as may be amended by the City Council. If the Company disagrees with the new Rent amount it may utilize the arbitration process described in RCW 35.21.860, provided that it requests arbitration within thirty (30) days of the approval of the revised Fee Schedule by the City Council. The increase in Rent for all City Poles in which Company has an approved Site Lease Addendum shall be due sixty (60) days after the City issues the revised Fee Schedule. Rent in the year in which the Site Lease Addendum is submitted to the City shall be paid in full by the Company upon receipt of an approved Site Lease Addendum from the City, and not prorated for a partial year. If after implementation of the increased Rent rate, applicable law is modified so that the increased Rent rate is no longer consistent with applicable law ("Change of Law"), then the Parties agree to promptly amend the Agreement to revise the increased Rent rate consistent with such Change of Law effective as of the date the Change of Law occurred. 6.6. Rent is due annually on or before the 1 st of January for the coming year. The Rent as described in Section 6.5 will increase as of January 1st of each successive year by adding an adjustment equal to the greater of the Consumer Price Index for Seattle -Tacoma -Bellevue or three percent (3%) over the Rent paid for the immediately preceding year. 6.7. Company is responsible for and agrees to reimburse the City for electrical service for its Site Equipment. The reimbursement of such electrical services shall be paid to the City if required by the City's electric utility. Company agrees to place an electrical meter on the City Pole if required by the City to determine electrical usage and if permitted by the local utility provider. Notwithstanding the foregoing, Company reserves the right to contract directly with the City's electric utility for the provision of electrical service to its Site Equipment. 6.8. Rent shall be delivered or mailed to the City of Federal Way, attn: Public Works Department. Rent payment must reference the pole location and assigned site identification number. 6.9. Receipt of any Rent or other fees by the City, with knowledge of any breach of this Agreement by Company, or of any default on the part of Company in the observance or performance of any of the conditions or covenants of this Agreement, shall not be deemed a waiver of any provision of this Agreement nor limit the City's remedies to address such breach or default. 6.10. If after the end of the Term, Company continues to maintain Site Equipment on the City Poles without entering into a new license with City, and/or City has not provided written notice to Company that the Agreement will not be renewed, Company shall become a tenant whose occupancy may be terminated upon thirty (30) days written notice. Company shall pay Rent during the hold over period for all Site Lease Addenda in the amount of One Hundred -Fifty percent (150%) of the annual Rent (the "Holdover Rate"). 6.11. If any sums payable to City under this Agreement are not received by the City on or before the fifth (5th) day following its due date, Company agrees to pay interest compounded at the rate of one percent (1 %) per month from the due date or the highest rate allowed by law, whichever is greater, but not to exceed eighteen percent (18%) in any event for all Site Lease Addenda for which payment was not received. Where a check is returned to the City by a bank or other financial institution with the indication that the check cannot be honored, there shall be a fee assessed to Company based on the current statutory maximum allowed. City and Company agree that such charges represent a fair and reasonable estimate of the costs incurred by City by reason of late payments and uncollectible checks, and the failure by Company {DPK2428001.DOCX;2/13104.080004/ 1 7 to pay any such charges by no later than thirty (30) days after Company's receipt of written demand therefore by City shall be a default under this Agreement. City's acceptance of less than the full amount of any payment due from Company shall not be deemed an accord and satisfaction, waiver, or compromise of such payment unless specifically agreed to in writing by City. 6.12. City hereby agrees to provide to Company certain documentation (the "Rental Documentation") evidencing City's interest in, and right to receive payments under, this Agreement, including a complete and fully executed Internal Revenue Service Form W-9, or equivalent, for any party to whom rental payments are to be made pursuant to this Agreement. From time to time during the Term of this Agreement and within thirty (30) days of a written request from Company, City agrees to provide updated Rental Documentation in a form reasonably acceptable to Company. 7. Taxes Assessments & Utilities. In addition to the Rent, Company shall pay annually in advance to the City the then current, applicable leasehold excise tax, unless the Company is centrally assessed by the State of Washington and provides documentation, that is acceptable to the City, of its central assessment, which evidence shall then be attached to this Agreement as Exhibit D. If Company is centrally assessed by the State of Washington and Company provides satisfactory evidence of its central assessment to City, then for any and all periods that Company reports the property as operating property, as defined in RCW 84.12.200, Company will not be required to pay leasehold excise tax to City. Should the City collect from Company and pay to the Department of Revenue leasehold excise tax which is subsequently determined to be a duplicate payment or over -payment of tax by Company, Company shall not have any claim against the City, but shall look directly to the Department of Revenue for reimbursement. 8. Permits 8.1. Prior to performing any construction, maintenance or repair work on the City Poles, the Company shall secure all necessary federal (including any FCC or FAA requirements), state and local permits and approvals (collectively referred to hereinafter as "Government Approvals") at its sole expense. The City hereby authorizes Company to make any and all applications and/or submissions necessary to obtain all Government Approvals from all applicable governmental and/or regulatory entities required for construction, maintenance, or operation of the Site Equipment on the City Poles. Notwithstanding the above, the City has certain obligations and procedures as a municipality, including but not limited to permitting procedures, zoning requirements and Council approval requirements, and nothing in this Agreement shall be interpreted or applied to deprive the City of the exercise of its administrative or quasi- judicial discretion in any Governmental Approval process, or prevent it from otherwise adhering to its procedures or exercising its obligations under the FWRC. 8.2. Company must obtain Governmental Approvals for each Site Lease Addendum prior to the commencement of any build -out of the Site Equipment. Company shall complete installation of its Site Equipment and commence operations within one (1) year after receipt of Government Approvals. No Site Equipment shall be permitted on the City Poles prior to the granting of such Governmental Approvals. Failure of Company to complete installation, commence operation of the applicable Site Equipment, or apply for Governmental Approvals, as provided above, shall allow the City to terminate the affected Site Lease Addendum upon thirty (30) days' written notice to Company. Company may request, in writing, an extension of the timelines listed in this Section 8.2 for up to an additional three (3) months, provided it has received Government Approvals and commenced installation, which extension shall not be unreasonably withheld, conditioned or delayed. (DPK2428001.DOCX;2/13104.080004/ } Non -Interference with City Poles 9.1. The City shall not be responsible for interference with the Company's Site Equipment caused by the electronics equipment of the City or any senior lessee or licensee on the City Poles. If such interference occurs and cannot be remedied within thirty (30) days after notice, then the Company may cancel the Site Lease Addendum pursuant to Section 29.2.1, without penalty. 9.2. Company has an obligation to cooperate with other users of the City Poles to remedy interference. Further, Company may not cause harmful interference (as defined in 47 C.F.R. Section 90.7, 47 C.F.R. Section 101.3, and the radio frequency regulations for any other equipment or technology which is present at the subject City Pole) with the equipment of the City or of senior lessees or licensees. City usage may include operation of wireless transceivers attached to City Poles. Within seventy-two (72) hours after notice, Company shall remedy interference caused by Company's Site Equipment. Failure of Company to remedy such interference shall be cause for the City to either disconnect power to the Site Equipment on the specific City Pole or terminate the Site Lease Addendum consistent with Section 28.1. 9.3. Outside of the historic and/or primary use, which includes but is not limited to traffic control infrastructure, emergency management, street lighting, and decorative features such as planters and banners, including future planned primary use of the City Poles, the City shall not use, nor shall the City permit its tenants, employees, or agents to use any portion of the City Poles that are subject of a Site Lease Addendum in any way which materially interferes with the operations of Company authorized by this Agreement. Such new interference shall be terminated within seventy-two (72) hours upon written notice to the City. Notwithstanding the foregoing nothing in this Section shall be construed to imply that Company is seeking or entitled to an exclusive license with the City which will interfere with the historic, and/or primary use, including future primary use of the City Poles by the City. 9.4. The City agrees that it will require any other subsequent occupants outside of the historical uses of the City Poles, which historical uses shall include emergency management, to provide to Company and the City the same assurances against interference, and any subsequent occupants outside the historical uses of the City Poles shall have the same obligation to eliminate any harmful or unreasonable interference with the operations of Company caused by the subsequent occupants. To the extent any Company Site Equipment interferes or disturbs equipment owned by any third party, Company shall notify such third party directly and shall make good faith efforts to resolve the matter with such third party prior to involving the City. 10. Radio Frenuenev Interference Stud 10.1. Company must comply with all laws, including all laws relating to the allowable presence of or human exposure to Radiofrequency Radiation ("RFs") or Electromagnetic Fields ("EMFs") on or off the City Poles, including all applicable FCC standards, whether such RF or EMF presence or exposure results from the Site Equipment alone or from the cumulative effect of the Site Equipment added to all other sources on or near the City Poles. Company shall, at its own cost and expense, perform an RF emissions test following installation to validate that the Site Equipment, once installed, complies with the FCC standards. 10.2. If, after Company initiates operation of its Site Equipment, the City has reason to believe that Company's operation of its Site Equipment has caused or is causing any electrical, electromagnetic, radio frequency, or other harmful interference with the operation and use of any other authorized communications facilities on the City Poles, whether operated by the City, emergency network or another pre-existing lessee, user or occupant with rights prior in time to Company, upon notice, Company shall promptly commence curative measures until the interference has been corrected to the reasonable (DPK2428001.DOCX;2/13104.080004/ ) 9 satisfaction of the City of the facilities being interfered with. If such interference has not been corrected within thirty (30) days of Company's receipt of the initial notice from City, Company shall remove the interfering equipment, or portions thereof causing the interference. If, after removal, the interference continues, then Company or City may terminate the Site Lease Addendum upon thirty (30) days' notice to the other party and neither party shall have any further obligations or responsibilities under the Site Lease Addendum. 10.3. Company shall not affix or mount any antennas, devices, equipment or related material, in any manner or in any location which would cause degradation in the operation or use of communications systems at the City Poles which serve the City or other users. This would include but not be limited to adversely impacting the received or transmitted signal strength or patterns of any systems at the site serving the needs of the City. If at any time the operation of Company's Site Equipment interferes with the reception or transmission of public safety, utility or traffic signalization communications, Company shall immediately cease operation of the site or the specific portion of the Site Equipment causing the interference until such time as the interference is corrected. 11. City Poles Access & Securi Company shall comply with the following: 11.1. Company is hereby granted a non-exclusive right to access the City Poles for maintenance, operation and/or repair of the Site Equipment. Company is required to pull all applicable permits for maintenance, operation, and/or repair (for example, right of way use permits). 11.2. Except in an emergency situation, Company shall use commercially reasonable efforts to perform such repairs during such hours as will minimally interfere with the City's primary use of the City Poles. Company is required to give forty-eight (48) hours advance notice to the City before accessing the City Poles to perform normal/regular maintenance of the Site Equipment or such other period of time as required by the Blanket Annual Right -of -Way Permit. 11.3. Company shall be permitted access to the Site Equipment without being required to give notice in the event of an emergency, provided that the Company shall submit to the City, no later than forty- eight (48) hours after the emergency, or if such 48-hour period falls on a Saturday or Sunday, the following business day, a written report describing the emergency and the reason(s) why immediate access to the City Poles was required. In the event of (i) a public emergency, such as, but not limited to, road failure, evacuation, natural disasters, hazardous substance spills, fatal or serious injury accidents, and/or (ii) during City use at the City Poles, Company's access may, at the reasonable discretion of the City, be temporarily limited or restricted; provided, that any temporary limitation or restriction in Company's access shall be restored as soon as the circumstances shall allow, as determined by the City, in its sole discretion. 11.4. Company shall designate a Site Equipment Manager or a Local Government Affairs Designee, and a secondary contact person to serve as the primary point of contact for the City with regard to Site Equipment located on City Poles. The contact information for such contacts is attached hereto as Exhibit G. Company may designate a new Site Equipment Manager or Local Government Affairs Designee by providing notice to the City pursuant to Section 34.5. Company shall communicate and provide notice to the City staff designated on Exhibit G for all maintenance and access requirements. 11.5. Company shall meet with the City, and other telecommunications operators if necessary, upon request, to schedule and coordinate construction and maintenance of the City Poles, Site Equipment and use of the right-of-way. {DPK2428001,DOCX;2/13104.080004/ 1 10 11.6. Outside the City's regular business hours, Company shall be required to contact the on -call staff detailed on Exhibit G to make arrangements for City staff to provide access. Company shall be responsible for any reasonable costs incurred for the on -call time to respond to the after-hours access. Payment is due thirty (30) days after receipt of invoice. 12. Hazardous Materials Company shall not cause or permit any Hazardous Materials to be brought upon, stored, used, released or disposed of on the City Poles which would cause the City Poles to be in violation of any applicable laws or which would require remediation or correction to the City Poles. "Hazardous Materials" means any dangerous, toxic or harmful substance, material or waste that is or becomes regulated by any local government authority, the State of Washington, or the United States Government due to its potential harm to the health, safety or welfare of humans or the environment. Company shall be responsible for all spills or other releases of any Hazardous Materials that may occur on the City Poles arising out of Company's activities or caused by the Company, its employees, contractors, subcontractors, or invitees. At Company's sole cost, Company shall promptly conduct any investigation and remediation as required by any applicable laws. 13. Pole Replacement. 13.1. Upon adoption of a city standard small wireless facility pole design(s) within the Public Works Engineering & Construction Standards, the Company shall utilize such pole design or may request modifications to the standard pole design to accommodate its small wireless facility without substantially changing the outward visual and aesthetic character of the design. The Company, upon a showing that use or modification of the standard pole design is either technically or physically infeasible, or that the modified pole design will not comply with the City's ADA, sidewalk clearance requirements and/or would violate electrical or other safety standards, may deviate from the adopted standard pole design and propose a different pole design that is consistent with the requirements of the FWRC. 13.2. Company shall bear all costs for all Make -Ready work, including installing Site Equipment, replacing or retrofitting existing City Poles and running all electrical and telecommunications wiring and conduit to the City Pole. Such costs shall include, but are not limited to, costs for dismantling, removal and disposal of the existing City Poles and appurtenances in compliance with the FWRC, removal and replacement of foundation, replacement streetlight, placement and/or replacement of junction boxes to non-skid boxes, placement of additional conduit, and geotechnical analysis (as appropriate for soil and foundation stability, etc.), applicable restoration of the right-of-way, replacement of hardscape, vegetation or other existing urban design features impacted by the work. Any such replacement shall be subject to prior approval by the City and approved as part of the Site Lease Addendum. If Company or a third party, other than City or Company, acting on Company's behalf would have to rearrange or adjust any of its facilities in order to accommodate the Site Equipment, Company shall be responsible, at Company's sole expense, to coordinate such activity and to pay any such third party for any related expenses. If Company is requested by a third party who has the right to be on the City Pole, to relocate or adjust any Site Equipment to accommodate that third party's facilities, subject to City's written approval of such relocation, Company shall reasonably cooperate with such request. 13.3. The design and appearance of any such replacement poles will need to be approved by City through a Site Lease Addendum prior to installation. The approval of the Site Lease Addendum shall be conditioned on the completion of all Make -Ready Work needed to establish full compliance with the latest {DPK2428001.DOCX,2/13104.080004/ } I I edition of the National Electric Safety Code, and with City's regulatory rules and the Public Works Engineering & Construction Standards, and any applicable ADA requirements. 13.4. Upon inspection and acceptance by the City, the Company agrees to assign ownership of any replacement pole (together with the foundation and related access conduits, handholds, etc.) to the City, and prepare any ancillary documentation or agreement. City may require Company to deliver written evidence (reasonably acceptable to the City) of the deed of dedication of the replacement pole (together with the foundation and related access conduits, handholds, etc.), along with the assignment of any warranties applicable to the replacement pole, including, without limitation, manufacturer's, installation, and other service provider warranties. 13.5. Where City approves the installation of a replacement pole, the pre-existing pole and foundation must be removed, to the extent required by the City, by Company within ten (10) business days after the installation of the replacement pole and restored to a condition equal to or better than existed prior to such removal. 13.6. Company shall not place any advertising or lighting devices in, on or about the City Poles, unless such signs or lighting are a part of the design of the pole and provide a public benefit as approved by the City. Examples of installations providing a public benefit include wayfinding signage and civic banners. However, Company is required to place a sticker with the contact name and number so that the City can contact the Company as necessary for repairs and in emergency situations. 13.7. A prototype for a City Pole with Site Equipment may be required to be constructed at a site designated by the City for the City's review and approval prior to installation of a Small Wireless Facility on a City Pole, only if there is a deviation from the standard small wireless facility pole design, in order to establish the design and technical feasibility of the Company's Site Equipment, such technical feasibility shall include, but is not limited to, testing for interference with traffic control devices, electrical equipment, lighting, and wireless transceivers. In the alternative to providing a prototype within the City, Company may provide the City with the site location of an existing small wireless facility with the proposed pole design, provided such site location is within forty (40) miles of the City. 13.8. Any replacement pole must include a method by which the City may install a City -standard pole on the replacement pole foundation, in order to ensure that the City can continue to provide street lighting if such replacement pole were ever removed. This can be achieved by either following the same bolt pattern as the existing City Poles, by providing adapter plates to the City, or through another mutually agreeable method, in order to ensure that the City may install a standard Federal Way street light pole on the same foundation in case of knock -down, abandonment, or other reason in which the pole needs to be replaced. 14. Maintenance/Stewards-hi 14.1. Company shall, at its own expense and at all times, keep the Site Equipment in good order, repair and condition and keep and use the City Poles in accordance with all laws. Company shall permit or cause no waste, damage or injury to the City Poles. Company is responsible for any damage caused to City Poles by Company and shall coordinate with City an appropriate schedule and plans for repairs to any damaged City Poles. City acknowledges and agrees that Company shall not be responsible for ongoing maintenance of lighting on any City Poles. 14.2. City shall have no obligation to the Company to maintain or safeguard the City Poles, except that City shall not intentionally permit access to the Site Equipment to any third party without the prior approval of Company, except as otherwise provided herein or in an emergency situation. (DPK2428001.DOCX,2/13104.080004/ ) 12 15. Repairs by City; Increased Maintenance Costs; Emergency Situations 15.1. City reserves the right to make alterations, repairs, maintenance, additions, removals, improvements, and all other similar work to all or any part of the City Poles for any purpose. City shall make a good faith effort to give Company five (5) days prior notice of any City work if such work will impair the operation of the Site Equipment, except in the case of an emergency, in which case, City will provide as much advance notice as is feasible under the circumstances. Such notice shall be given to Company or the Company's Site Equipment Manager, if one is available. Further, City shall allow a representative of Company to observe the work and City shall take reasonable steps not to disturb Company's normal use of the Site Equipment. Company's use of the City Poles may not impede or delay City's authority and ability to make any changes to the City Poles. 15.2. Pursuant to the design requirements agreed to between the City and Company, Company shall install a disconnect mechanism to enable the City to temporarily disconnect Company's Site Equipment in order to safely work on the City Poles or in case of an emergency. If the disconnect mechanism is utilized by the City, the City must turn the Site Equipment back on or otherwise reconnect the Site Equipment when the work is complete. 15.3. City shall have no duty to Company to make any repairs or improvements to the City Poles. 15.4. City is not responsible for any third party damage to Site Equipment or the City Pole. 15.5. In the event that the presence of Company's Site Equipment on the City Poles results in increased maintenance or repair costs to the City, Company shall, within thirty (30) days of receipt of written notification by the City, which shall include documentation evidencing such increase as the result of Company's use, pay City for the incremental maintenance or repair costs incurred by the City, if such costs exceed the Rent amount described in Section 6.4. 15.6. In the event of any emergency in which any of Company's Site Equipment endangers the property, life, health, or safety of any person, entity or the City Poles, or if Company's construction area is otherwise in such a condition as to immediately endanger the property, life, health, or safety of any person, entity or the City, Company shall immediately take the proper emergency measures to repair its Site Equipment and to cure or eliminate the dangerous conditions for the protection of property, life, health, or safety of any person, entity or the City. Company shall notify the City, orally or in writing, as soon as practicable following the onset of the emergency. The City retains the right and privilege to take proper emergency measures, as the City may determine to be necessary, appropriate, or useful in response to any public health or safety emergency. If the City becomes aware of an emergency before the Company, then the City shall notify Company by telephone promptly upon learning of the emergency and shall exercise reasonable efforts to avoid an interruption of Company's operations. 15.7. The City will not be liable in any manner, and Company hereby waives any claims, for any inconvenience, disturbance, loss of business, nuisance, or other damage arising out of the City's access to the Site Equipment, including the removal of Company's Site Equipment from a City Pole in an emergency. 15.8. City shall not be liable for any damages to any person or property, nor shall Company be relieved from any of its obligations under this Agreement, as a direct or indirect result of temporary interruption in the electrical power provided to the City Poles. Under no circumstance shall City be liable for indirect, special, incidental, or consequential damages resulting from such an interruption. {DPK2428001.DOCX;2/13104.080004/ 1 13 16. Sub -license & Assivnnient by Compan 16.1. Company may not sublicense or co -locate any other broadcast equipment on the City Poles, without express written consent by City, which consent will not be unreasonably withheld. 16.2. Neither this Agreement, nor any rights created by it, may be assigned, or transferred without the express written permission from the City. Any such assignment shall be in writing on a form approved by the City and shall include an assumption of this Agreement and Company's obligations hereunder by the assignee. 16.3. In the case of transfer or assignment as security by mortgage or other security instrument in whole or in part to secure indebtedness, such consent shall not be required unless and until the secured party elects to realize upon the collateral. Further, no assignment or transfer of this Agreement shall be deemed to occur based on the public trading of Company's stock; provided, however, any tender offer, merger, or similar transaction resulting in a change of control shall be subject to the provisions of this Agreement. 16.4. Notwithstanding the foregoing, Company may assign its interest in this Agreement, without the City's consent, to any entity which controls, is controlled by, or is under common control with Company, or to any entity resulting from any merger or consolidation with Company, or to any partner or member of Company, or to any partnership in which Company is a general partner, or to any person or entity which acquires fifty-one percent (51%) or more the ownership of Company or fifty-one percent (51 %) or more of the assets of Company, or to any entity which obtains a security interest in a substantial portion of Company's assets. Further, Company may assign this Agreement and/or any Site Lease Addendum to any entity which acquires all or substantially all of Company's assets within the State of Washington by reason of a merger, acquisition or other business reorganization without approval or consent of City. Any assignment as provided in this Section 16.4 shall be conditioned upon an assumption of all obligations of Company under this Agreement by the assignee; and provided further, that Company shall provide the City with a copy of said written assignment, acceptable to the City, and a copy of the additional insured endorsement and Certificate of Insurance in a and any applicable bonds, all on forms acceptable to the City, prior to the effective date of the assignment. 16.5. The City's consent to one assignment shall not waive the requirement of obtaining the City's consent to any subsequent assignment. 16.6. Except for a permitted assignment as provided in Sections 16.3 and 16.4, Company shall reimburse the City on demand for any reasonable costs that the City incurs in connection with any proposed assignment, including the costs of investigating the acceptability of the proposed assignee and legal costs incurred in connection with considering any requested consent. 16.7. [ONLY APPLICABLE FQR. INFRASTRUCTURE COMPANIES] The Parties acknowledge that Small Wireless Facilities deployed by Company on a City Pole pursuant to this Agreement may be owned and/or remotely operated by a third -party wireless carrier customer ("Carriers") and installed and maintained by Company pursuant to existing agreements between Company and a Carrier. The Site Equipment shall be treated as Company's Site Equipment for all purposes under this Agreement and any applicable Site Lease Addendum. Company shall remain solely responsible and liable for the performance of all obligations under this Agreement and applicable Site Lease Addenda with respect to any Site Equipment owned and/or remotely operated by a Carrier. Company shall identify on the Site Lease Addenda the identity of the Carrier on whose behalf it is operating the Site Equipment on each City Pole. Company is not required to submit its contract with such Carrier. {DPK2428001,DOCX;2/13104,080004/ } 14 17. Sub -license & Assignment by Cit 17.1. Should the City sell, lease, license, transfer, or otherwise convey all or any part of the City Poles that are the subject of this Agreement to any transferee other than Company, such transfer shall be subject to this Agreement. 17.2. The City retains the right to sublicense or enter into any type of agreement for any portion of the City Poles for any reason, including but not limited to, co -locating wireless facilities, if it will not harmfully or unreasonably interfere with the Company's use of the City Poles. 17.3. The City may transfer and assign its rights and obligations hereunder, and no further liability or obligation shall thereafter accrue against the City hereunder, provided that the assignee or transferee assumes, in writing, all of the City's obligations under this Agreement, which shall remain in full force and effect. 18. Imnrovements, Fixtures and Personal Property; Inspection_bv Ci 18.1. The City agrees that, notwithstanding any provision of statutory or common law, the Site Equipment and any other Company improvements to the City Poles, including but not limited to personal property, shall remain the exclusive property of the Company. 18.2. The approved designs of the Site Equipment on a City Pole pursuant to a Site License Addendum are concealment elements intended to maintain the look of a light pole. Accordingly, except with respect to a Minor Modification, any material revision to the Site Equipment listed on a Site Lease Addendum after initial installation shall require the City's prior written approval. Such City approval shall be memorialized in an amendment to the Site Lease Addendum for which Company shall submit an Administrative Fee consistent with Section 6.3. As used in this Section 18.2, "Minor Modification" shall mean routine maintenance and repair of the Site Equipment, or the replacement of an antenna or equipment of similar size, weight and height, provided that such replacement adheres to the requirements of the FWRC and Exhibit B, and does not impact the structural integrity of the pole. Notwithstanding the foregoing, the City and Company acknowledge and agree that the City may, in its discretion, deny any proposed modification to the Site Equipment that undermines or otherwise defeats the concealment elements of a City Pole, as described or depicted in the FWRC or Exhibit B. 18.3. The City may, from time -to -time, access the City Poles to inspect any work done by Company to ensure compliance with the approved plans and specifications, to require reasonable revisions to ensure that the respective uses of the City Poles are compatible, or otherwise. This right to inspect shall not impose any obligation upon the City to make inspections to ascertain the safety of Company's improvements or the condition of the City Poles. 19. Destruction of or Damare to the City Poles or any Site Structures. 19.1. If a City Pole or any structure on a City Pole is destroyed or damaged by collision, fire or casualty so as to render the City Poles and/or Site Equipment unfit for use by the City or Company, then the City, at is sole discretion, may replace such destroyed or damage pole with another pole or a standard City Pole, even if such replacement pole is not capable of maintaining the Site Equipment. The Company may request to reinstall the Site Equipment or to replace the pole itself consistent with the applicable Site Lease Addendum, and City shall approve such request provided that such reinstallation is consistent with {DPK2428001.DOCX;2/13104.080004/ } 15 the currently approved Site Lease Addendum. If Company does not wish to reinstall the Site Equipment, Company or may terminate or amend the Site Lease Addendum without penalty. 19.2. If the Company chooses to reinstall the Site Equipment or a replacement pole and such replacement pole or Site Equipment differs from the approved Site Lease Addendum, then Company shall submit a new Site Lease Addendum or shall amend the Site Lease Addendum. 19.3. City shall not be liable to Company for any direct or indirect or consequential damages including but not limited to inconvenience, annoyance, or loss of profits, nor for any expenses, or any other damage resulting from the collision, fire or casualty, nor from the repair of such damage. 20. Condemnation If all or any portion of the City Poles is needed, taken, or condemned for any public purpose such that Company cannot use its Site Equipment on the City Poles, either party may terminate this Agreement or the applicable Site Lease Addendum without penalty. All proceeds from any taking or condemnation of the Site or City Poles shall belong and be paid to the City. Company shall have all rights to its Site Equipment and personal property if such equipment or personal property are included in any taking or condemnation. 21. Insurance 21.1. At Company's sole cost and expense, Company shall maintain throughout the term of this Agreement insurance as set forth in Exhibit E, attached hereto and incorporated herein. 21.2. Company's maintenance of insurance as required by this Section 21 shall not be construed to limit the liability of Company to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or equity. Further, Company's maintenance of insurance policies required by this Agreement shall not be construed to excuse unfaithful performance by Company. 22. Hold Harmless. 22.1. The City and its elected and appointed officials, officers, employees, contractors, representatives and agents ("Indemnitees") shall not be liable for injury or damage to any persons or property, including City Poles, resulting from the installation (including without limitation Company's replacement of City Poles), operation or maintenance of the Site Equipment on the City Poles. 22.2. Company releases, covenants not to bring suit, and agrees to indemnify, defend, and hold harmless the Indemnitees from any and all claims, costs, judgments, awards, or liability to any person, for injury or death of any person, or damage to property caused by or arising out of any acts or omissions of Company, its agents, servants, officers, employees and contractors in the performance of this Agreement and any rights granted within this Agreement. 22.3. Inspection or acceptance by the City of any work performed by Company at the time of completion of construction shall not be grounds for avoidance by Company of any of its obligations under this Section 22. These indemnification obligations shall extend to claims that are not reduced to a suit and any claims that may be compromised. 22.4. The Indemnitees shall promptly notify Company of any claim or suit and request in writing that Company indemnify the Indemnitees. The Indemnitees' failure to so notify and request indemnification shall not relieve Company of any liability that Company might have, except to the extent that such failure prejudices Company's ability to defend such claim or suit. {DPK2428001_DOCX;2/13104.080004/ } 16 22.5. Company shall indemnify, defend and hold harmless the Indemnitees from any and all claims, judgments, damages, penalties, fines, costs, liabilities or losses, including without limitation, diminution in the value of the City Poles, damages for loss or restriction of use of the City Poles, and sums paid in settlement of claims, attorneys' fees, consultant and expert fees, investigation, clean-up, remediation or other costs incurred or suffered by the City, arising out of any use, storage, release or disposal of Hazardous Materials by Company, its employees, contractors, subcontractors, or invitees. Notwithstanding the foregoing, and any other provision in this Agreement, Company shall not be liable or responsible for any environmental condition except to the extent Company causes or exacerbates the condition. This indemnification shall survive the termination or expiration of this Agreement. 22.6. Company may choose counsel to defend the Indemnitees subject to this Section 22.6. In the event that Company refuses the tender of defense in any suit or any claim, as required pursuant to the indemnification provisions within this Agreement, and said refusal is subsequently determined by a court having jurisdiction (or such other tribunal that the parties shall agree to decide the matter), to have been a wrongful refusal on the part of Company, Company shall pay all of the City's reasonable costs for defense of the action, including all expert witness fees, costs, and attorney's fees, and including costs and fees incurred in recovering under this indemnification provision. If separate representation to fully protect the interests of both parties is necessary, such as a conflict of interest between the City and the counsel selected by Company to represent the City, then upon the prior written approval and consent of Company, which shall not be unreasonably withheld, the City shall have the right to employ separate counsel in any action or proceeding and to participate in the investigation and defense thereof, and Company shall pay the reasonable fees and expenses of such separate counsel, except that Company shall not be required to pay the fees and expenses of separate counsel on behalf of the City for the City to bring or pursue any counterclaims or interpleader action, equitable relief, restraining order or injunction. The City's fees and expenses shall include all out-of-pocket expenses, such as consultants and expert witness fees, and shall also include the reasonable value of any services rendered by the counsel retained by the City (including the use of in-house counsel) but shall not include outside attorneys' fees for services that are unnecessarily duplicative of services provided the City by Company. Each party and indemnitee agrees to cooperate and to cause its employees and agents to cooperate with the other party in the defense of any such claim and the relevant records of each party shall be available to the other party with respect to any such defense. 22.7. Except to the extent that damage or injury arises from the sole negligence or willful misconduct of the Indemnitees, the obligations of Company under the indemnification provisions of this Section 22.6 shall apply regardless of whether liability for damages arising out of bodily injury to persons or damages to property were caused or contributed to by the concurrent negligence of the Indemnitees. Notwithstanding the proceeding sentence, to the extent the provisions of RCW 4.24.115 are applicable, the parties agree that the indemnity provisions hereunder shall be deemed amended to conform to said statute and liability shall be allocated as provided therein. It is further specifically and expressly understood that the indemnification provided constitutes Company's waiver of immunity under Title 51 RCW, solely for the purposes of this indemnification, relating solely to indemnity claims made by the City directly against the Company for claims made against the City by Company's employees. This waiver has been mutually negotiated by the parties. 22.8. Company acknowledges and agrees that Company, bears all risks of loss or damage or relocation or replacement of its Site Equipment and materials installed on City Poles pursuant to this Agreement from any cause, and the City shall not be liable for any cost of replacement or repair to damaged Site Equipment, including, without limitation, damage caused by the City's removal of the Site Equipment, loss of line of sight path, activities conducted by the City, its officials (elected or appointed), officers, agents, employees, volunteers, elected and appointed officials, or contractors, except to the extent any such damage or destruction is caused by or arises from any sole negligence, willful misconduct, or criminal actions on the part of the City, its officials (elected or appointed), officers, agents, employees, volunteers, {DPK2428001,DOCX;2/13104.080004/ 1 17 or elected or appointed officials, or contractors. Company releases and waives any and all such claims against the City, its officers, agents, employees, volunteers, elected or appointed officials, or contractors. 22.9. In no event shall either party be liable to the other for any indirect, incidental, special, consequential, exemplary, or punitive damages, including by way of example and not limitation lost profits, lost revenue, loss of goodwill, or loss of business opportunity in connection with its performance or failure to perform under this Agreement. The Company releases and waives any and all such claims against the City, its officers, agents, employees, volunteers, or elected or appointed officials, or contractors. Company further agrees to indemnify, hold harmless and defend the City against any claims for damages, including, but not limited to, business interruption damages, lost profits and consequential damages, brought by or under users of Company's Site Equipment or networks as the result of any interruption of service due to damage or destruction of Company's Site Equipment caused by or arising out of activities conducted by the City, its officials (elected or appointed), officers, agents, employees or contractors. 22.10. The provisions of this Section 22 shall survive the expiration, revocation, or termination of this Agreement. 23. Performance Bond 23.1. Company shall furnish a surety bond or bonds, a copy of which is attached in substantially the same form to this Agreement as Exhibit F, covering faithful performance of this Agreement and payment of all obligations arising thereunder, including but not limited to proper construction, long-term facility maintenance, rent, timely removal of equipment and restoration. The bond shall be in -force during the entire term or subsequent extensions. The bond shall be in a form acceptable to the City. The performance bond for this Agreement shall not only indemnify City for the usual performance provisions of this Agreement, but in addition shall be a bond to guarantee payment of any and all tax liability of any type, kind, nature or description due as a result of this Agreement. Said performance bond shall be issued to City prior to the issuance of any approvals for the construction of its facilities on the licensed property. If City so uses or applies any portion of the performance bond, Company shall upon notice, restore the performance bond to the full amount above specified, and Company's failure to do so shall constitute a material breach of this Agreement. This performance bond shall be in addition to any construction or maintenance bonds imposed by the City as part of its permitting process. This performance bond shall remain in place until all of Company's Site Equipment has been removed by Company unless otherwise permitted to remain by City. The amount of the bond shall be dependent on the number of City Poles used by the Company as follows: a. $100,000 bond for usage of 1-10 City Poles; b. $250,000 bond for usage of 11-50 City Poles; and C. $500,000 bond for usage of 50 or more City Poles. 24. Nondiscrimination Company, for itself, its successors, and assigns as a part of the consideration hereof, does hereby covenant and agree to comply with all civil rights and anti -discrimination requirements of federal, state or local laws applicable to the City Poles, including, without limitation, Chapter 49.60 RCW and Title 49, Code of Federal Regulations, U.S. Department of Transportation, Subtitle A, Office of the Secretary, Part 21, Nondiscrimination in Federally assisted programs of the U.S. Department of Transportation ---Effectuation of Title VI of the Civil Rights Act of 1964, and as said regulations may be amended. In the event of breach {DPK2428001,DOCX;2/13104.080004/ } 18 of any of the above nondiscrimination covenants, the City shall have the right to terminate the Agreement without penalty and to re-enter and repossess the City Poles, consistent with Section 29.1. 25. Stop Work If Company defaults in the performance or observation of any covenant or agreement contained in this Agreement, the City, without notice if deemed by the City that an emergency exists, or if no emergency, with thirty (30) days' written notice, may direct Company to stop work and may itself perform or cause to be performed such covenant or agreement and may enter upon the City Poles for such purpose. Such an emergency shall include, but not be limited to, endangerment of life, endangerment of the City Poles or rights of way, or failure of Company to obtain in a timely manner any insurance. Company shall reimburse the City the entire cost and expense of such performance within thirty (30) days of the date of the receipt of the City's invoice. Any act or thing done by the City under the provisions of this Section 25 shall not be construed as a waiver of any agreement or condition herein contained or the performance thereof. 26. Prerequisites for Approval, Company acknowledges the following: 26.1. City Council review and approval is required prior to the City entering into this Agreement. 26.2. The City Council, has by approval of this Agreement, expressly authorized the Mayor or his/her designee to execute Site Lease Addenda consistent with this Agreement in the exercise of the powers granted by law and ordinance to insure the faithful performance of City contracts. 26.3. The City Council, has by approval of this Agreement, expressly authorized the Mayor or his/her designee to allow modifications, made by mutual agreement between the City and the Company, to Exhibits A, B, C, F and G without further Council action or approval. 26.4. A fully executed Site Lease Addendum between the City and Company, and any required Governmental Approvals are required prior to construction or installation of the Site Equipment on the City Poles. 26.5. The execution of this Agreement by the City shall in no way constitute review and/or approval by other applicable jurisdictions and permitting authorities, including other City Departments. 26.6. The City requires the Company to obtain a telecommunications franchise from the City, and such franchise must be obtained from the City prior to or upon the same date as the execution of this Agreement by the City. 27. Review of Plans. 27.1. Prior to installation of any Site Equipment, the Company shall submit the following documents to the City for review, approval or denial: (i) completed Site Lease Addendum, (ii) a copy of the nonionizing electromagnetic radiation ("NIER") Report, and (iii) the Administrative Fee. 27.1.1. Upon submission of a Site Lease Addendum, the City shall use good faith efforts to process the Site Lease Addendum in a timely manner. The Administrative Fee shall accompany the submission of all Site Lease Addenda. City may request additional information during its review of the Site Lease Addendum. An application will be considered to be complete when all City questions are resolved. {DPK2428001_DOCX;2/13104.080004/ 1 19 27.1.2. All Site Lease Addenda requesting access to a City Pole must include a load bearing study to determine whether the attachment of Site Equipment may proceed without City Pole modification or whether the installation will require City Pole re -enforcement or replacement. If City Pole re -enforcement or replacement is necessary, Company shall provide engineering design and specification drawings demonstrating the proposed alteration to the City Pole. All engineering drawings submitted must be completed and stamped by a registered engineer licensed in Washington State. All Site Lease Addenda requesting the installation of a new or replacement City Pole shall include engineering design and specification drawings. For each Site Lease Addendum, the City shall: a. Verify that the Site Lease Addendum is complete, and the Administrative Fee has been submitted. b. Review engineering design documents to validate: (1) compliance with contractual requirements under this Agreement; (2) the applicant's evaluation of existing public safety radio systems, traffic signal or street light systems, automatic meter readers, utility communications devices, or other communications components that would be effected by the Site Equipment and determined that there is no interference; (3) inclusion of appropriate design of stealth and camouflage components necessary to comply with City Pole design requirements; and (4) compliance with City regulations. C. Determine if the City Pole is available and if the license of such City Pole is consistent with City's municipal obligations and proprietary interests consistent with Section 2.3. d. Determine compliance with any other applicable requirements. 27.1.3. As appropriate, City may require Company to make design modifications in order to comply with applicable contractual, regulatory, or legal requirements or may ask additional questions as necessary to determine feasibility of use of the City Poles. Failure to make the requested design modifications or to answer feasibility questions in a manner acceptable to the City shall result in an incomplete Site Lease Addendum which may not be processed under this Agreement. 27.1.4. Installation of the Site Equipment must be completed in accordance with all Government Approvals, including without limitation obtaining all final inspections required by any permits issued by the City. 27.1.5. Any Site Equipment that has not been approved by City or has not received all required Governmental Approvals shall not be installed or if already installed shall be removed immediately by Company at Company's sole cost and expense. 27.2. Company expressly acknowledges and agrees that the City's rights under this Agreement to review, comment on, disapprove and/or accept designs, plans specifications, work plans, construction, equipment, and/or installation, (i) exist for the benefit and protection of the City and its employees and agents, (ii) do not create or impose upon the City, and its employees and agents any standard or duty of care toward Company, all of which are hereby disclaimed, (iii) may not be relied upon by Company in determining whether Company has satisfied any and all applicable Governmental Approval standards and requirements, and (iv) may not be asserted, nor may the exercise or failure to exercise any such rights by the City and its employees and agents be asserted against the City and its employees and agents by Company as a defense, legal or equitable, to Company's obligation to fulfill such Governmental Approval standards and requirements, notwithstanding any acceptance of work by the City and its employees and agents. {DPK2428001.DOCX;2/13104.080004/ 1 20 28. Default; Remedies 28.1. Default by Company. The following occurrences shall each be deemed an "Event of Default" by Company and may be subject to stop work order per Section 25, subject to the cure period set forth in Section 30: 28.1.1. Failure to Pay. Company fails to pay any sum, including Rent or taxes, due under this Agreement. 28.1.2. Abandonment. Company's failure to remove Site Equipment as further described in Section 32.2. 28.1.3. Insolvency. Immediately, upon written notice, if a receiver is appointed to take possession of Company's assets, Company makes a general assignment for the benefit of creditors, or Company becomes insolvent or takes or suffers action under the Bankruptcy Act. 28.1.4. Lapsed Governmental Approvals. Company fails to obtain or maintain any Governmental Approvals required to install and operate Site Equipment. 28.1.5. Failure to Maintain Insurance. Company fails to maintain appropriate insurance as required pursuant to Exhibit E. 28.1.6. Prohibited Assignment. Company assigns this Agreement in violation of Section 16. 28.1.7. Interference. Company operates or maintains its Site Equipment in a manner that interferes (as defined in 47 C.F.R. Section 90.7, 47 C.F.R. Section 101.3, and the radio frequency regulations for any other equipment or technology which is present at the subject City Poles) with or impairs other communication or computer equipment used by the City, the emergency network (or is successor entity), or other entity given prior rights to use the City Poles. 28.1.8. Improper Construction. Company constructs Site Equipment on City Poles without approval of a Site Lease Addendum. 28.1.9. Other Defaults. Company violates any material agreement, term or covenant of this Agreement. 28.2. No Waiver. Waiver or acceptance by the City of any default of the terms of this Agreement by Company shall not operate as a release of Company's responsibility for any prior or subsequent default. 28.3. City Remedies. Subject to the cure period described in Section 30 below, the City shall have the following remedies upon an Event of Default. The City's rights and remedies under this Agreement shall be cumulative, and none shall exclude any other right or remedy allowed by law. 28.3.1. Continuation of Agreement. Without prejudice to its right to other remedies, the City may continue this Agreement and applicable Site Lease Addenda in effect, with the right to enforce all of its rights and remedies, including the right to payment of Rent and other charges as they become due. {DPK2428001.DOCX;2/13104.080004/ 1 21 28.3.2. Termination of Agreement. If Company's default is of such a serious nature in the City's reasonable judgment that the default materially affects the purposes of this Agreement, the City may terminate this Agreement. Termination of this Agreement will affect the termination of all Site Lease Addenda issued under it automatically and without the need for any further action by the City. The City will provide thirty (30) days written notice of termination and shall specify the reasons for such termination. The City will specify a reasonable amount of time Company will have to remove its Site Equipment from any affected City Poles, which will be at least thirty (30) days after the date of the City's notice. The City will have the right to make any terminated portion of the City Poles available for use to other parties as of the effective date of the termination, even if Company's Site Equipment is still on the City Poles. Upon such termination of this Agreement, Company will remain liable to City for damages in an amount equal to the Rent and other sums that would have been owed by Company under this Agreement for the balance of the then current term. Further, Company will remain liable for Rent as long as the Site Equipment remains on City Poles unless the City has authorized abandonment of such Site Equipment. 28.3.3. Termination of Site Lease Addenda. If an Event of Default specific to one or more Site Lease Addenda is not cured by Company within the applicable cure period, City may terminate such specific Site Lease Addendum(s). 28.3.4. Default Fees. Without limiting City's rights and remedies under this Agreement, the City may require Company to pay the following default fees ("Default Fees") in the amount of $100 per day, upon Company's failure to cure, pursuant to Section 30, any of the following: a. Company constructs or installs any alteration or improvement without City's prior consent. b. Company fails to make a repair on a timely basis. C. Failure to meet FCC regulations. d. A material breach of this Agreement. Failure to provide reports or notices pursuant to this Agreement. 29. Termination. 29.1. City's Termination Rights 29.1.1. Subject to the cure provision of Section 30, the City has the right to terminate, this Agreement or any Site Lease Addendum if the City determines that Company's exercise of its rights under this Agreement: a. Interferes with the City's use of the City Poles and/or the structures on the City Poles for the municipal purposes for which the City owns and administers such structures/site, which may include, without limitation, the necessity to widen a street or for other municipal projects that result in removing the City Pole, and the Site Equipment cannot be relocated pursuant to Section 31; b. Poses a threat to public health or safety or constitutes a public nuisance. (DPK2428001.DOCX;2/13104.080004/ ) 22 C. The City determines that Company's exercise of its rights under this Agreement interferes with the use of the City Poles or structures thereon by a governmental agency with which the City has an agreement to provide services to the City, e.g. the emergency network, and the Site Equipment cannot be relocated pursuant to Section 31; or d. Company ceases to operate as a provider of telecommunications services under federal law. In such a situation the City shall have the option, in its sole discretion and upon six (6) months' written notice to Company, to terminate this Agreement and to require the removal of the Site Equipment from the City Poles, pursuant to Section 32, including the cost of any site remediation, at no cost to the City. 29.1.2. Immediate Removal. The City may, in its sole discretion, determine that exigent circumstances require immediate removal of Site Equipment from a City Pole. Such exigent circumstances may only include reasons of public health, safety or the need to provide street lighting. Company shall remove its Site Equipment within forty-eight (48) hours' notice unless such longer period is provided by the City. The applicable Site Lease Addendum will terminate upon the removal of the Site Equipment or an amendment to the Site Lease Addendum will be required. 29.1.3. Pole Removal. The City has the right to remove any City Pole that it determines in its sole judgment is unnecessary for its municipal purposes (for example street light operations). If the City decides to remove a City Pole, it shall provide Company with at least sixty (60) days written notice to remove its Site Equipment from the City Pole. The applicable Site Lease Addendum will terminate upon the removal of the Site Equipment. 29.1.4. Pole Replacement. The City has the right to replace any City Poles that it determines, in its sole judgment, is necessary for its municipal operations. At City's option, the applicable Site Lease Addendum will terminate upon the removal of the Site Equipment. 29.1.5. No Further Obligation. Except those provisions that survive the termination of this Agreement, upon termination under this Section 29.1, neither party will owe any further obligation to the other party, except as otherwise provided in Section 34.15 below, provided that Company is not in arrears in making its Rent or other required payments; provided however that Company shall, at Company's sole cost, remove its Site Equipment and restore the City Pole. If the City terminates a Site Lease Addendum pursuant to this Section 29.1, the Company may request alternative sites on other City Poles in order to allow Company to continue to provide service within the City as further described in Section 31. Further, to the extent that the City received any pre -paid Rent related to the terminated Site Lease Addendum, City shall refund such pre -payments to Company. 29.2. Company's Termination Rights. Company may terminate this Agreement or applicable Site Lease Addenda, as follows: 29.2.1. Upon thirty (30) days' notice at anytime Company determines in its sole discretion that it desires to discontinue use of some or all of the City Poles for any reason whatsoever; provided, however, that if Company terminates this Agreement or a Site Lease Addendum pursuant to this Section 29.2.1, Company shall not be entitled to a refund of any pre -paid Rent and shall pay the City a sum equal to twelve (12) months' Rent for each terminated Site Lease Addendum; or 29.2.2. The City breaches any material term or provision of this Agreement, subject to the cure period described in Section 30 below. {DPK2428001.DOCX;2/13104.080004/ 1 23 29.3. Company's Risk of Loss; Suspension Rights. 29.3.1. In choosing to locate Site Equipment on City Poles, Company acknowledges and accepts all risks, including but not limited to: a. Acts of God or third parties that may damage Site Equipment (including, but not limited to, fires, earthquakes, storms, and car accidents). b. Loss of line of sight path, including where caused by City action. C. City change in the use of the City Poles. 29.3.2. Company explicitly acknowledges that these risks include bearing all costs associated with such risks, except such costs caused by the sole negligence or willful misconduct of the City. 29.3.3. Upon the occurrence of any of the events described in Section 29.3.1, the Company will not be liable for any Rent during the time the Site Equipment is rendered unusable, except when caused by action of the Company or failure of the Company to perform its obligations under this Agreement. Company at its option may prorate such Rent for the succeeding year to account for such downtime but must detail its proration and associated calculation upon submission of such Rent payments. 30. Cure. Neither party shall be in default under this Agreement until thirty (30) days after receipt of written notice of default from the other; provided, however, where such default cannot reasonably be cured within thirty (30) days, the defaulting party shall not be in default if it commences to cure such default within said thirty (30) day period and diligently pursues cure to completion. 31. Relocation. 31.1. Company understands and acknowledges that City may require Company to relocate, temporarily or permanently, one or more of its Site Equipment installations. Company shall at City's direction and upon sixty (60) days prior written notice to Company, relocate such Site Equipment at Company's sole cost and expense whenever City reasonably determines that the relocation is needed for any of the following purposes: (a) if required for the construction, modification, completion, repair, relocation, or maintenance of a City or other public agency project; (b) because the Site Equipment is interfering with or adversely affecting proper operation of City -owned poles, traffic signals, communications, or other City Poles; (c) to protect or preserve the public health or safety; (d) as described in Section 29; or (e) the City is abandoning or removing the City Pole. In any such case, City shall use reasonable efforts to afford Company a reasonably equivalent alternate location. If Company shall fail to relocate any Site Equipment as requested by the City in accordance with the foregoing provision, City shall, upon thirty (30) days prior written notice to Company be entitled to remove or relocate the Site Equipment at Company's sole cost and expense, without further notice to Company. Company shall pay to City actual costs and expenses incurred by the City in performing any removal work and any storage of Company's property after removal within thirty (30) days of the date of a written demand for this payment from the City. City will promptly inform Company of the displacement or removal of any City Pole on which any Site Equipment is located. 31.2. In the event Company desires to relocate any Site Equipment from one City Pole to another, Company shall so advise City and shall submit a Site Lease Addendum for approval by City. {DPK2428001.DOCX;2/13104.080004/ 1 24 31.3. Company acknowledges that the signing of this Agreement does not entitle the Company to assistance under the Uniform Relocation and Real Property Acquisition Policy (Ch. 8.26 RCW). 32. Removal of Site Equimnent upon Termination ofAlzreement 32.1. Within one hundred twenty (120) days after the expiration or earlier termination of a Site Lease Addendum or this Agreement, Company shall promptly, safely and carefully remove the Site Equipment from applicable City Poles and shall restore the City Poles as instructed by the City, reasonable wear and tear and casualty excepted. Upon the 121st day, Rent shall accrue at the Holdover Rate described in Section 6.10. If Company fails to complete this removal work pursuant to this Section 32, then the City, upon written notice to Company, shall have the right at the City's sole election, but not the obligation, to perform this removal work and charge Company for the actual, documented costs and expenses, including, without limitation, reasonable administrative costs. Further, the City may use the performance bond in Section 23 and may require the bonding company to supply contractors to perform such removal, storage and restoration work. Company shall pay to the City actual, documented costs and expenses incurred by the City in performing any removal work and any storage of Company's property after removal within thirty (30) days of the date of a written demand for this payment from the City. After the City receives the reimbursement payment from Company for the removal work performed by the City, the City shall promptly make available to Company the property belonging to Company and removed by the City pursuant to this Section 32 at no liability to the City. If the City does not receive reimbursement payment from Company within such thirty (30) days, or if City does not elect to remove such items at the City's cost after Company's failure to so remove pursuant to this Section, or if Company does not remove Company's property within thirty (30) days of such property having been made available by the City after Company's payment of removal reimbursement as described above, any items of Company's property remaining on or about the rights of way, City Poles, or stored by the City after the City's removal thereof may, at the City's option, be deemed abandoned and the City may dispose of such property in any manner by law. Alternatively, the City may elect to take title to abandoned property, provided that Company shall submit to the City an instrument satisfactory to the City transferring to the City the ownership of such property. Provided, however, that nothing contained within this Section shall prevent the City from compelling Company to remove any such Site Equipment through judicial action when the City has not permitted Company to abandon said Site Equipment in place. 32.2. The Site Equipment, in whole or in part, may not be abandoned by Company without written approval by the City. Any plan for abandonment or removal of Site Equipment shall be at the sole cost of the Company, must be first approved by the City, and all necessary permits must be obtained prior to such work. Notwithstanding the above, the City may permit Company's Site Equipment to be abandoned and placed in such a manner as the City may prescribe. Upon permanent abandonment, Company shall execute such necessary documents to transfer title to City. 32.3. The provisions of this Section 32 shall survive the expiration, revocation, or termination of this Agreement. 33. Records; Audits 33.1. No more than twice during any calendar year, the City may require such information, records, and documents from Company pertaining to this Agreement from time to time as are appropriate to reasonably monitor compliance with the terms of this Agreement. 33.2. Company shall provide such records within twenty (20) business days of a request by the City for production of the same unless additional time is reasonably needed by Company, in which case, Company shall have such reasonable time as needed for the production of the same, but no longer than forty {DPK2428001.DOCX;2/13104.080004/ } 25 (40) days. If any person other than Company maintains records on Company's behalf, Company shall be responsible for making such records available to the City. 33.3. Company shall be responsible for clearly and conspicuously identifying any records as confidential or proprietary and shall provide a brief written explanation as to why such information is confidential and how it may be treated as such under State or federal law. In the event that the City receives a public records request under Chapter 42.56 RCW or similar law for the disclosure of information Company has designated as confidential, trade secret, or proprietary, the City will endeavor to provide written notice of such disclosure request so that Company can take appropriate steps to obtain injunctive relief to prevent disclosure of claimed confidential records. Nothing in this Section prohibits the City from complying with Chapter 42.56 RCW or any other applicable law or court order requiring the release of public records. City shall not be liable to Company for its good faith acts in determining that release of records, including confidential records, is in compliance with any law or court order requiring the release of public records. The City shall comply with any injunction or court order properly obtained by Company and not stayed that prohibits the disclosure of any such confidential records; however, in the event a higher court overturns such injunction or court order and such higher court action is or has become final and non - appealable, Company shall reimburse the City for any fines or penalties imposed for failure to disclose such records as required hereunder within sixty (60) days of a request from the City. In addition to the indemnification obligations pursuant to Section 22, Company shall indemnify and defend the City from and against any and all losses, penalties, fines, claims, demands, expenses (including, but not limited to, attorneys' fees and litigation expenses), suits, judgments or damages arising from or relating to any failure of Company to comply with this Section. 34. Miscellaneous 34.1. Modifications. This instrument contains all the agreements and conditions made between the parties hereto and may not be modified orally or in any manner other than by an agreement in writing signed by all parties thereto. No failure on the part of either party to enforce any covenant or provision herein contained, nor any waiver of any right hereunder, unless in writing signed by the waiving party, shall discharge or invalidate such covenant or provision or affect the right of either party to enforce the same in the event of any subsequent breach or default. 34.2. Broker's Fee. If Company is represented by a real estate broker or other agency in this transaction, Company shall be fully responsible for any fee due such broker and shall hold the City and its employees and agents, harmless from any claims for a commission by such broker or agency. 34.3. Cooperation in Execution of Subsequent Documents. The City and Company agree to cooperate in executing any documents necessary to protect the rights of the parties granted by this Agreement. 34.4. Headings. The headings to paragraphs or sections of this Agreement are for convenience only and shall have no effect on the construction or interpretation of any paragraph hereof. 34.5. Notices. Except as otherwise designated in this Agreement, all notices hereunder must be in writing and shall be deemed valid if sent by certified mail, return receipt requested, or overnight delivery, addressed as follows (or any other addresses as designated by like notice): If to City: City of Federal Way Attn: Public Works Department 33325 8th Ave S. Federal Way, WA 980003 {DPK2428001.DOCX;2/13104.080004/ 1 26 If to Company: Seattle SMSA d/b/a Verizon Wireless Attn: Network Real Estate 180 Washington Valley Road Bedminster, NJ 07921 With a copy to: Verizon Wireless 3245 158`' Ave SE Bellevue, WA 98008 Attn: Kari Marino 34.6. Entire Agreement. This Agreement and any attached exhibits constitute the entire agreement between the City and the Company; no prior written or prior, contemporaneous or subsequent oral promises or representations shall be binding except that any subsequently adopted City policies and procedures for telecommunications/communications lease agreements, license agreements, Site Lease Addenda and final applicable permits shall be binding on the parties. 34.7. Executed in Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute but one instrument. 34.8. Governing Law. This Agreement shall be governed by applicable federal laws and the laws of the State of Washington without regard to its conflict of laws principles. 34.9. Venue. Company agrees that the venue of any action or suit concerning this Agreement shall be in the King County Superior Court or the federal district court for the Western District of Washington, and all actions or suits thereon shall be brought therein. 34.10. Binding on Successors. This Agreement shall be binding upon and inure to the benefits of the heirs, executors, administrators, successors and assigns of the parties, subject to the conditions set forth in Sections 16 and 17 herein. 34.11. Failure to Insist upon Strict Performance. The failure of either party to insist upon strict performance of any of the terms or conditions of this Agreement shall not constitute a waiver thereof. 34.12. Business License. Prior to constructing any Site Equipment or providing services within the City, Company shall obtain a business and/or utility license from the City. 34.13. Severability. The provisions of this Agreement shall be deemed severable and if any portion shall be held invalid, illegal or unenforceable for any reason, the remainder of this Agreement shall be effective and binding upon the parties. 34.14. No Third Party Beneficiaries. It is not intended by any of the provisions of this Agreement to create for the public, or any member thereof, a third -party beneficiary right or remedy, or to authorize anyone to maintain a suit for personal injuries or property damage pursuant to the provisions of this Agreement. {DPK2428001.DOCX;2/13104.080004/ 1 27 34.15. Survival. All of the provisions, conditions and requirements of Sections 12, 22, 32, 34.9, and 34.15 survive the expiration or termination of this Agreement, and any renewals or extensions thereof. 34.16. Authority. Each individual executing this Agreement represents and warrants that such individual is duly authorized to execute and delivery this Agreement on behalf of the party it represents. {DPK2428001.DOCX;2/13104.080004/ } 28 IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the respective dates below indicated. LANDL : CITY OF FEDERAL WAY Arl as to fo By: Ryan Call, City Attu Na Jim Ferrell Title: Mayor COMPANY: Seattle SMSA Limited Partnership d/b/a Verizon Wireless By Cellco Partnership, Its General Partner By: Ok" Name: Na Combo,/ C 06k N Title:-S/R TOP f/E[.l> il/LrSof'j CWCr12QV?Mlj(� !9 9"c— zayl STATE OF WASHINGTON COUNTY OF KING I certify that I know or have satisfactory evidence that is the person who appeared before me, and said person acknow on oath stated that (he/she) was authorized to execute e of voluntary act of such party for the uses and DATED this day of (SEAL) ;Ared that (he/she) signed this instrument, instrument and acknowledged it as the to be the free and mentioned in the instrument. 20 Notary Public Residing at My appointment expires {DPK2428001.DOCX;2/13104.080004/ 1 29 STATE OF WASHINGTON ) ) ss. COUNTY OF KING On this i l __._ ` day of , 2021, before me, a Notary Public in and for the State of Washington, personally appe ed Gordon Cook, personally known to me (or proved to me on the basis of satisfactory evidence) to be the person who executed this instrument, on oath stated that he was authorized to execute the instrument, and acknowledged it as the Director - Network Field Engineering of Seattle SMSA Limited Partnership d/b/a Verizon Wireless, By Cellco Partnership, Its General Partner, to be the free and voluntary act and deed of said party for the uses and purposes mentioned in the instrument. IN WITNESS WHEREOF, I have hereunto set my hand and official seal the day and year first above written. KART C MARIN0 Notary Public State of Washington Commission # 209213 My Comm. Expires Aug 10, 2023 i✓ L NOTARY PUBLIC in and for the State of WA, Residing at: Bellevue My appointment expires: 8/10/2023 Print Name: Kari C Marino Rebecca Kovar From: Marino, Kari <kari.c.marino@verizon.com> Sent: Wednesday, September 1, 2021 2:31 PM To: Rebecca Kovar Subject: Notary Clarification for City of Federal Way/Verizon MLA [EXTERNAL EMAIL WARNING] This email originated from outside of the City of Federal Way and may not be trustworthy. Please use caution when clicking links, opening attachments, or replying to requests for information. If you have any doubts about the validity of this email please contact IT Help Desk at x2555. Rebecca, Thank you for your call this afternoon. This note is intended to clarify the situation related to my notarization, on August 19th 2021, of the Small Wireless Communication Facilities Master Lease Agreement between the City of Federal Way and Seattle SMSA Limited Partnership d/b/a Verizon Wireless. Instead of handwriting the information on page 29 of our document, I chose to strike the notary section and replace it with a separate page that had most of the information legibly typed. Based on your call, I realize now that this page does not reference the agreement. The inserted page is intended to notarize Gordon Cooks' original signature on page 29 of our MLA referenced above. Please advise if this note sufficiently clarifies the situation or if I need to come down next week and provide additional information or update the document appropriately. Sincerely, verizon Karl Marino (she/her) Principal Engineer - Network Regulatory/Real Estate M 425 941 0300 Bellevue, WA Exhibit A — City Poles Exhibit B — Site Equipment/Approved Designs for City Poles Exhibit C — Template Site Lease Addendum Exhibit D —Leasehold Excise Tax Exemption Exhibit E — Insurance Requirements Exhibit F — Performance Bond Exhibit G — Contact Information {DPK2428001.DOCX;2/13104.080004/ } 30 Exhibit A City Poles Only the Federal Way Luminaire Pole (DWG No. 3-39) may be used for installation of Site Equipment pursuant to the terms of this Agreement. Usage of any other type of City Pole must be specifically approved by an amendment to this Exhibit A. {DPK2428001.DOCX;2/13104.080004/ 1 31 Exhibit B Site Equipment/Approved Designs for City Poles Insert design for standard SWF pole design on Federal Way pole {DPK2428001.DOCX;2/13104.080004/ 1 32 Exhibit C Site Lease Addendum Company shall apply to the Cityfor approval of this Site Lease Addendum by filling out the below form and submitting the form to the City for approval with the applicable Administrative Fee. For each Small Wireless Facility, the Company shall fill out a Site Lease Addendum. This Site Lease Addendum ("Addendum"), made this day of , 20 (the "Site Lease Addendum Effective Date") between the City of Federal Way, hereinafter designated the "City" and _, d/b/a ., with its principal offices at , hereinafter designated "Company": 1. Addendum. This is a Site Lease Addendum as referenced in that certain Master Lease Agreement between The City and Company dated ("Agreement"). All of the terms and conditions of the Agreement are incorporated hereby by reference and made a part hereof without the necessity of repeating or attaching the Agreement. In the event of a contradiction, modification or inconsistency between the terms of the Agreement and this Addendum, the terms of this Addendum shall govern. Capitalized terms used in this Addendum shall have the same meaning described for them in the Agreement unless otherwise indicated herein. 2. Proiect Location. Attachment 1 identifies the physical location of the City Poles on which the Site Equipment shall be attached. 3. Pro'ect Description. Attachment 2 identifies the Site Equipment to be installed on the City Poles, and shall include the construction details (e.g. electrical and fiber connections, antennas, radios and accessory components). If deviating from the standard detail, Company shall provide photo simulations of such Site Equipment attached to the City Poles and a load bearing study. The photo simulations shall include photos indicating the existing City Pole without the Site Equipment and with the proposed Site Equipment attached. If there are any accessory components, for example conduit holding backhaul or electrical, such accessory components shall be depicted in the photo simulations. 4. NIER Report. Company has commissioned a NIER Report for the City Poles. Such report is attached hereto in Attachment 3. 5. Backhaul. Backhaul services shall be provided to the Site Equipment as follows: ❑ underground fiber ❑ aboveground fiber ❑ microwave ❑ other and from the following entity: _ Access to the backhaul system shall be separate from the City's communication and electrical conveyance system. The Company, or its third party contractor, is responsible for the placement and installation of any junction boxes. 6. Term. The term of this Addendum shall run concurrently with the Agreement and shall terminate upon the Agreement termination unless earlier terminated by a party consistent with the Agreement. 7. Commencement Date. The Company shall notify the City upon the installation of its Site Equipment on the City Pole. 8. Fees. The Rent and Administrative Fee for the Site Equipment installed pursuant to this Addendum shall be in accordance with Section 6 of the Agreement. (DPK2428001.DOCX;2/13104.080004/ ) 33 9. Counterparts. This Site Lease Addendum may be signed in counterparts, each of which shall be deemed an original, but all of which will constitute one and the same document. 10. Au% ri Each individual executing this Site Lease Addendum represents and warrants that such individual is duly authorized to execute and delivery this Site Lease Addendum on behalf of the party it represents. 11 Carrier. The following third -party wireless carrier's equipment will be located on this City Pole: or ❑ same as Company. 12. Acknowledgment. Company acknowledges that (i) this Site Lease Addendum is only effective upon the signatures of both parties and (ii) Company shall not have the right to install its Site Equipment on the City Poles until it has received Government Approvals and complied with the requirements (including any insurance or bonding requirements) of such Government Approvals. EXECUTED to be effective as of the Site Lease Addendum Effective Date. CITY OF FEDERAL WAY: COMPANY By: By: Name: Name: Title: Title: Exhibits: Attachment 1 — Physical Location of City Poles Attachment 2 — Photo Simulations, Description of Site Equipment and Load Bearing Study Attachment 3 — NIER {DPK2428001.DOCX;2/13104.080004/ 1 34 Attachment 1 Physical Location of City Poles {DPK2428001.DOCX;2/13104.080004/ } 35 Attachment 2 Photo Simulations, Description of Site Equipment & Load Bearing Study {DPK2428001.DOCX;2/13104.080004/ } 36 Attachment 3 NIER Report {DPK2428001.DOCX;2/13104.080004/ } 37 Exhibit D Leasehold Excise Tax Exemption {DPK2428001.DOCX;2/13104.080004/ } 38 Exhibit E Insurance Requirements Company shall carry and maintain for so long as Company has Facilities in the Public Ways, insurance against claims for injuries to persons or damages to property which may arise from or in connection with the acts or omissions of Company in connection with this Agreement. Company shall require that every subcontractor maintain substantially the same insurance coverage with substantially the same policy limits as required of Company. Company shall procure insurance from insurers with a current A.M. Best rating of not less than A- VII. Company shall provide a copy of a certificate of insurance and blanket additional insured endorsement as respects this Agreement to the City for its inspection upon the execution of this Agreement, and such insurance certificate shall evidence a policy of insurance that includes: Commercial Automobile Liability insurance with limits of $15,000,000 combined single limit for each accident for bodily injury and property damage; Commercial General Liability insurance per ISO Form or its equivalent, written on an occurrence basis with limits of $15,000,000 per occurrence for bodily injury and property damage and $15,000,000 general aggregate including personal and advertising injury, blanket contractual liability; premises -operations; independent contractors; products and completed operations; explosion, collapse and underground (XCU); Pollution liability shall be in effect throughout the entire Agreement term, with a limit of one million dollars ($1,000,000) per occurrence, and two million dollars ($2,000,000) in the aggregate; Workers' Compensation coverage as required by the Industrial Insurance laws of the State of Washington and Employer's Liability with a limit of $1,000,000 each accident/disease/policy limit. Evidence of qualified self-insurance is acceptable; and Payment of deductible or self -insured retention shall be the sole responsibility of Company. The required insurance policies, with the exception of Workers' Compensation and Employer's Liability obtained by Company shall include the City, its officers, officials, and employees ("Additional Insureds"), as an additional insured by endorsement as their interest may appear under this Agreement with regard to any work or operations performed under this Agreement or by or on behalf of the Company. The coverage shall contain no special limitations on the scope of protection afforded to the Additional Insureds. In addition, the insurance policy shall contain a clause stating that coverage shall apply separately to each insured against whom a claim is made, or suit is brought, except with respect to the limits of the insurer's liability. Company shall provide to the City upon acceptance a certificate of insurance and blanket additional insured endorsement. Receipt by the City of any certificate showing less coverage than required is not a waiver of Company's obligations to fulfill the requirements. Company's required general and auto liability insurance shall be primary insurance with respect to the City. Any insurance, self-insurance, or insurance pool coverage maintained by the City shall be in excess of Company's required insurance and shall not contribute with it. Upon receipt of notice from its insurer(s), Company shall provide the City with thirty (30) days prior written notice of any cancellation of any required coverage that is not replaced of any {DPK2428001.DOCX;2/13104.080004/ 1 39 insurance policy, required pursuant to this Exhibit E. Company shall, prior to the effective date of such cancellation, obtain replacement insurance policies meeting the requirements of this Exhibit E. Failure to provide the insurance cancellation notice and to furnish to the City replacement certificates of insurance meeting the requirements of this Exhibit E shall be considered a material breach of this Agreement and subject to the City's election of remedies described in this Agreement. Company's maintenance of insurance as required by this Exhibit E shall not be construed to limit the liability of Company to the coverage provided by such insurance, or otherwise limit the City's recourse to any remedy available at law or equity. Further, Company's maintenance of insurance policies required by this Agreement shall not be construed to excuse unfaithful performance by Company. The City may review all insurance limits once every three years during the Term and upon prior written notice to, and acceptance by the Company, which shall not be unreasonably withheld, conditioned or delayed, may make reasonable adjustments in the limits upon thirty (30) days' prior written notice to Company. Company shall then provide a certificate of insurance to evidence the insurance coverage required by this Agreement and the additional insured endorsement. As of the Effective Date of this Agreement, Company is not self -insured, except with respect to workers' compensation for Washington state. Should Company wish to become self -insured at the levels outlined in this Agreement at a later date, Company or its affiliated parent entity shall comply with the following: (1) provide the City, upon request, a copy of Company's, or its parent company's, most recent audited financial statements, if such financial statements are not otherwise publicly available; (2) Company or its parent company is responsible for all payments within the self-insurance program; and (3) Company assumes all defense and indemnity obligations as outlined in the indemnification section of this Agreement. {DPK2428001.DOCX;2/13104.080004/ 1 40 Exhibit F Performance Bond CITY OF FEDERAL WAY PERFORMANCE/PAYMENT BOND KNOW ALL PEOPLE BY THESE PRESENTS: We, the undersigned , ("Principal") and the undersigned corporation organized and existing under the laws of the State of and legally doing business in the State of Washington as a surety ("Surety"), are held and firmly bound unto the City of Federal Way, a Washington municipal corporation ("City") in the penal sum of Dollars and no/100 ($ ) for the payment of which we firmly bind ourselves and our legal representatives, heirs, successors and assigns, jointly and severally. This obligation is entered into pursuant to the statutes of the State of Washington and the ordinances, regulations, standards and policies of the City, as now existing or hereafter amended or adopted. The Principal has entered into an Agreement with the City dated , 20J for NOW, THEREFORE, if the Principal shall perform all the provisions of the Agreement in the manner and within the time period prescribed by the City, or within such extensions of time as may be granted under the Agreement, and shall pay all laborers, mechanics, subcontractors and material men or women, and all persons who shall supply the Principal or subcontractors with provisions and supplies for the carrying on of said work, and shall hold the City, their officials, agents, employees and volunteers harmless from any loss or damage occasioned to any person or property by reason of any carelessness or negligence on the part of the Principal, or any subcontractor in the performance of said work, and shall indemnify and hold the City harmless from any damage or expense by reason of failure of performance as specified in the Agreement, or from defects appearing or developing in the material or workmanship provided or performed under the Agreement within a period of two (2) years after its final acceptance thereof by the City, then and in the event this obligation shall be void; but otherwise, it shall be and remain in full force and effect. And the Surety, for value received, hereby further stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Agreement or to the work to be performed thereunder or the specifications accompanying the same shall in any way affect its obligation on this bond, and it does hereby waive notice of any change, extension of time, alterations or additions to the terms of the Agreement or to the Work. The Surety hereby agrees that modifications and changes may be made in the terms and provisions of the Agreement without notice to Surety, and any such modifications or changes increasing the total amount to be paid the Principal shall automatically increase the obligation of the Surety on this Performance Bond in a like amount, such increase, however, not to exceed twenty-five percent (25%) of the original amount of this bond without the consent of the Surety. Within forty-five (45) days of receiving notice that the Principal has defaulted on all or part of the terms of the Agreement, the Surety shall make a written commitment to the City that it will either: (a) cure the default itself within a reasonable time period, or (b) tender to the City, the amount necessary for the City to remedy the default, including legal fees incurred by the City, or (c) in the event that Surety's evaluation of the dispute is not complete or in the event the Surety disputes the City's claim of default, the Surety shall {DPK2428001.DOCX;2/13104.080004/ 1 41 notify the City of its finding and its intent, if any, to interplead. The Surety shall then fulfill its obligations under this bond, according to the option it has elected. Should Surety elect option (a) to cure the default, the penal sum of the Bond shall be reduced in an amount equal to the costs actually incurred by the Surety in curing the default. If the Surety elects option (b), then upon completion of the necessary work, the City shall notify the Surety of its actual costs. The City shall return, without interest, any overpayment made by the Surety and the Surety shall pay to the City any actual costs which exceed the City estimate, limited to the bond amount. Should the Surety elect option (c), the Parties shall first complete participation in mediation, described in the below paragraph, prior to any interplead action. In the event a dispute should arise between the Parties to this Bond with respect to the City's declaration of default by the Principal, the Parties agree to participate in at least four hours of mediation to resolve said dispute. The Parties shall proportionately share in the cost of the mediation. The mediation shall be administered by Judicial Dispute Resolution, LLC, 1425 Fourth Avenue, Suite 300, Seattle, Washington 98101. The Surety shall not interplead prior to completion of the mediation. DATED this day of , 20. , CORPORATE SEAL OF PRINCIPAL: [PRINCIPAL] (Name of Person Executing Bond) Its: (Title) (Address) (Phone {DPK2428001.DOCX;2/13104.080004/ 1 42 CERTIFICATE AS TO CORPORATE SEAL I hereby certify that I am the (Assistant) Secretary of the Corporation named as Principal in the within bond; that who signed the said bond on behalf of the Principal, was of the said Corporation; that I know his or her signature thereto is genuine, and that said bond was duly signed, sealed, and attested for and in behalf of said Corporation by authority of its governing body. Secretary or Assistant Secretary STATE OF WASHINGTON ) ss. COUNTY OF ) On this day personally appeared before me to me known to be the of that executed the foregoing instrument, and acknowledged the said instrument to be the free and voluntary act and deed of said limited liability company, for the uses and purposes therein mentioned, and on oath stated that he/she was authorized to execute said instrument. GIVEN my hand and official seal this day of 120 Notary's signature Notary's printed name Notary Public in and for the State of Washington. My commission expires CORPORATE SEAL OF SURETY: ME APPROVED AS TO FORM: J. Ryan Call, City Attorney Surety Attorney -in -Fact (Attach Power of Attorney) (Name of Person Executing Bond) (Address) (Phone) {DPK2428001.DOCX;2/13104.080004/ } 43 Exhibit G Contact Information Verizon Wireless Contact: National Operations Center 1-800-264-6620 City Contact: Desiree Winkler, P.E. Deputy Public Works Director desiree.winkler@ci[yoffeder,alway.com 253.835.2711 {DPK2428001.DOCX;2/13104.080004/ 1 44 COUNCIL MEETING DATE: �?T?6M C--jL J.1 I ". Z2 _ ITEM #: 5c CITY OF FEDERAL WAY CITY COUNCIL AGENDA BILL SUBJECT: MASTER LEASE AGREEMENT WITH VERIZON WIRELESS FOR SMALL WIRELESS FACILITIES POLICY QUESTION: Should City Council approve entering into a Master Lease Agreement with Verizon Wireless for small wireless facilities? COMMITTEE: Land Use and Transportation MEETING DATE: September 13, 2021 CATEGORY: ® Consent ❑ Ordinance ❑ Public Hearing ❑ City Council Business ❑ Resolution ❑ Other STAFF REPORT BY: Cole Elliott, P.E., Development Services Manager DEPT: Public Works Attachments: 1. Staff Report 2. Master Lease Agreement Options Considered: 1. Approve the proposed agreement. 2. Do not approve the proposed agreement and provide direction to staff. MAYOR'S RECOMNIEND ]Option 1. MAYOR APPROVAL:r'i 3! d l DIRECTOR APPROVAL: - ILI 1 ZOZ4 nmmInitial/Date Initial/Date lnaial lY:� COMMITTEE RECOMMENDATION: "I move to forward the proposed Agreement to the veccver consent agenda for approval. " S ��{ ,,. (, e r V, l Zc) 2- l V V a zoo O vun Vic-- Zo c Greg Baruso, Committee Chair Hoang V. Tran, Committee Martin Moore, Committee Member Member PROPOSED COUNCIL MOTION: "I move approval of the proposed Agreement, and authorize the Mayor to execute said agreement. " BELOW TO BE CO.'IfPLETED BY CITY C/_B'RK'S OFFICE► COUNCIL ACTION: ❑ APPROVED COUNCIL BILL # ❑ DENIED First reading ❑ TABLED/DEFERRED/NO ACTION Enactment reading ❑ MOVED TO SECOND READING (ordinances only) ORDINANCE # REVISED—11/2019 RESOLUTION # CITY OF FEDERAL WAY MEMORANDUM DATE: September 13, 2021 TO: City Council VIA: Jim Ferrell, Mayor _ FROM: EJ Walsh, P.E., Public Works Director�� Cole Elliott, P.E. Development Services Manager SUBJECT: Verizon Wireless — Small Wireless Master Lease Agreement FINANCIAL IMPACTS: Verizon Wireless (Verizon) paid a fee of Two Thousand Dollars ($2,000.00) to compensate the City for the administrative expenses incurred that are directly related to preparing and approving this Master Lease Agreement. Verizon will be required to pay additional permitting fees for installation, operation and maintenance of their facilities, including, but not limited to right-of-way use permits, master lease addendum, and small wireless permits. Annual rental fees for attachment to city infrastructure are limited by Federal Communications Commission (FCC) ruling to $270 per site. There are currently no applications for installations, nor detailed deployment plans to estimate potential revenue. BACKGROUND INFORMATION: Verizon was approved for a City of Federal Way Franchise in March 2020 in order to install, operate, maintain and repair a telecommunications network consisting of small wireless facilities in, across, over, along, under, through and below the City of Federal Way rights -of -way. Verizon Wireless intends to deploy some of its small wireless equipment in areas where there are no utility poles (due to undergrounding) and therefore proposes to install small wireless facilities on city street lights. In order to do this, a Master Lease is required to outline the conditions by which small wireless should be constructed on city poles. The Master Lease allows for administrative approval of specific installations in the form of "Site Lease Addendums." The term of this Master Lease is for a period of ten (10) years commencing on the effective date of this Agreement consistent with the franchise term. The lease will automatically renew for an additional five (5) years unless, after mutual agreement, that provision is changed to allow the City the option to not renew. Verizon Wireless shall provide City with a bond between $100,000 to $500,000 depending on how many city poles that are leased ("Franchise Bond") running or renewable for the term of this Lease. In addition, Verizon Wireless (as part of their existing Franchise Agreement) shall guarantee work they complete in the right-of-way during project construction to final acceptance through a September 13, 2021 Land Use and Transportation Committee Verizon Wireless — Small Wireless Master Lease Agreement Page 2 Performance Bond in an amount of 120 percent (120%) of the value of work performed followed by a two-year Maintenance Bond valued at 10% of the value of construction work not to exceed $250,000. Verizon Wireless, per their Franchise, will maintain insurance of $5 Million for commercial general liability, $5 Million for automobile, and carry an excess umbrella liability policy with limits of $10,000,000 per occurrence and in the aggregate.