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HomeMy WebLinkAboutDS Streetlight Master License AgreementSTREETLIGHT MASTER LICENSE AGREEMENT THIS STREETLIGHT LICENSE AGREEMENT ("Agreement") is made and entered into on May 14, 2020 (the "Effective Date"), by and between the MARIN GENERAL SERVICES AUTHORITY, a Joint Powers Authority, ("MGSA") and the CITY OF SAN RAFAEL ("City"), each being referred to individually as a "Party" and collectively as the "Parties." RECITALS WHEREAS, MGSA owns, operates and maintains certain streetlight facilities located in the geographic areas within the political jurisdiction of MGSA and MGSA's member agencies neither own nor control the streetlight facilities; and WHEREAS, the City desires to enter into this Agreement for the attachment and installation of certain telecommunication equipment including, wires, cables, antennas, wireless microwave and other similar equipment for the reception and broadcast of wireless internet service to specified MGSA streetlight poles; and WHEREAS, MGSA is willing to grant the City a non-exclusive, revocable license for the attachment of the Equipment to MGSA streetlight poles, subject to the terms and conditions set forth in this Streetlight Master License Agreement. NOW, THEREFORE, incorporating the foregoing recitals herein, the Parties agree as follows: 1. EFFECTIVE TERM OF AGREEMENT. 1.1 This Agreement shall be and remain in effect for a period of two (2) years from the date of mutual execution. 1.2 This Agreement shall automatically extend thereafter for successive terms of two (2) years each, unless otherwise terminated by either Party on not less than six (6) months advance written notice to the other Party prior to the date when such termination shall become effective. Such termination under this paragraph does not require a showing of cause. The initial term and all extension terms shall be hereinafter referred to as the "Term." 2. MASTER STREETLIGHT LICENSE. 2.1 MGSA does hereby confer on the City a non-exclusive, revocable master license ("License") to access and attach its Equipment to certain streetlight pole(s) and support arms owned by MGSA (the "MGSA Property") and to replace, operate, maintain, upgrade, and use such Equipment during the term of this Agreement, subject to the installation and documentation requirements in Section 3 below. 2.2 Pursuant to the terms contained in this Agreement, the MGSA may co - locate other equipment on MGSA Property. The City's Equipment shall be placed within or on MGSA's Property at the sole cost of the City. 2.3 The City shall use the MGSA Property for the purposes of transmission and reception of wireless communication signals forwhich it has received all necessary permits and governmental approvals. No other rights are granted to the City herein. MGSA makes no warranties, implied or otherwise, as to the fitness of the MGSA Property for the City's intended use or the condition of MGSA's Property. The City has inspected MGSA's Property and accepts the same "AS IS", and agrees that MGSA is under no obligation to perform any work or provide any materials to prepare MGSA's Property for the City's Equipment. The City agrees that, at no time during the Term (as defined in Paragraph 1 above) of this Agreement will it use or permit the use of the Equipment in ways that are inconsistent with the terms of this Agreement. 3. INSTALLATION. 4.1 Prior to installation, the City shall have a licensed engineer inspect each streetlight pole or arm that is intended to hold City equipment and provide a letter to MGSA attesting that based on equipment weight and placement there are no apparent structural issues. 4.2 The City agrees that all installation work shall be performed at the City's sole cost and expense, performed by an MGSA-approved licensed contractor. 4.3 The contractor shall install and maintain the Equipment in accordance with the requirements of California Electric Code, National Safety Electric Code IEEE C2 (NESC) and any applicable local electrical code existing and as any of those codes may be amended. 4.4 The contractor shall repair any damage to the MGSA Property to the extent such damage is caused by the contractor, or by the Equipment as a result of the installation, construction, operation, maintenance, and repair of the Equipment, at the City's sole cost, as soon as possible, but in no event more than ten (10) business days after the date the City was first notified by the MGSA of such damage. All repairs shall be performed such that the MGSA Property is restored to the condition in which it existed immediately prior to the damage and to the reasonable -satisfaction of the MGSA. If the City fails to repair any such damage within thirty (30) days of receipt of notice of the same, MGSA may, in its sole and absolute discretion, repair such damage and the City shall reimburse MGSA for all costs and expenses incurred in such repair within thirty (30) days following receipt of an invoice and reasonable supporting documentation. The City's obligations under this subparagraph shall survive termination of this Agreement. 4.5 The contractor shall not during installation or otherwise impede access to or in any way obstruct, interfere with or hinder the use of the MGSA Property or access thereto. If any of the foregoing occurs, the City shall take immediate 2 corrective action, and shall use best efforts to correct same within twenty-four (24) hours of notice by MGSA. 4.6 In performing installation or removal of Equipment on MGSA Property, the contractor shall leave the MGSA Property in as good or better condition than existed prior to said work taking place. 4.7 The City shall provide to MGSA via e-mail a list of all equipment placed on any streetlight, referencing the MGSA streetlight identification number. Said list shall be provided both for installation of new equipment and updated for replacement equipment. 5. CO -LOCATION. Consistent with applicable laws and regulations (if any), MGSA maintains the right to decide if more than one entity can locate equipment on any individual pole (Co -location). The City is required to cooperate in good faith to facilitate Co -location if requested by MGSA. 6. MGSA's CONTROL OF MGSA PROPERTY / EMERGENCIES. MGSA reserves the right at any time to make alterations, additions, repairs, deletions or improvements to all or any part of the MGSA Property for any purposes. In performing such work, MGSA shall make good faith efforts to give the City prior notice of such work and shall make reasonable efforts not to damage or disrupt the City's normal use of the City's Equipment on MGSA Property. However, the MGSA's authority and ability to make changes to any MGSA Property shall not be impeded or delayed in any way by the presence of the City's Equipment. The making of any such alterations, additions, repairs, deletions, or improvements shall in no event entitle the City to any damages, relieve the City of its obligation to pay license fees or to perform each of its other covenants or obligations established in this Agreement, provided that the City can still operate the Equipment as intended in this Agreement. In the event of an emergency, the MGSA's work and needs shall take precedence over any operations of the City on MGSA's Property. 7. REMOVAL OF EQUIPMENT. Upon expiration or earlier termination of this Agreement, the City will, at its expense, remove all remaining Equipment from the MGSA property within ninety (90) days of the date of such termination. In the event that the City fails to remove any Equipment from the MGSA Property in a timely manner, no less than ninety (90) days after the date of termination, MGSA may remove, store, and dispose of such Equipment. In the event that the City fails to remove any Equipment from the MGSA Property in a timely manner, the City will be invoiced at 1.5 times the rate charged by MGSA's electrical contractor to perform the removal and related work. 8. INDEMNITY. The City shall indemnify, protect, defend and hold harmless the MGSA , its Board Members, officers, employees, and agents (the "Indemnitees"), from and against claims, demands, losses, damages, liabilities, fines, charges, penalties, administrative and judicial proceedings and orders, judgments, remedial actions of any kind, including the costs of abatementofany "hazardous material," and all other related costs and expenses incurred in connection therewith, including, without limitation, reasonable attorneys' fees and costs of defense, to the extent caused directly, in whole or in part, by the negligence or willful misconduct of the City, its directors, officers, employees, agents, contractors, subcontractors and representatives, or arising from the City's installation, 3 operation, maintenance or repair of the Equipment, but not to the extent arising out of the negligence or willful misconduct of the Indemnitees. 9. GOVERNING LAW. The laws of the State of California will govern the validity of this Agreement, its interpretation and performance. Venue for any action shall be in the Superior Court, County of Marin. 10. FURTHER ASSURANCES. Each Party shall execute and deliver such papers, documents, and instruments, and perform such acts as are necessary or appropriate, to implement the terms of this Agreement and the intent of the parties to this Agreement. 11. NO WAIVER OF DEFAULT. The failure of any Party to enforce against another Party any provision of this Agreement shall not constitute a waiver of that Party's right to enforce such a provision at a later time, and shall not serve to vary the terms of this Agreement. The acceptance of work or services, or payment for work or services, by MGSA shall not constitute a waiver of any provisions of this Agreement. 12. NOTICES. All notices relative to this Agreement shall be mailed by US first class mail and to the email below with acknowledgement of email by recipient. The parties shall be addressed as follows, or at any other address designated by notice: MGSA: Email: michael@michaelsfrank.com Marin General Services Authority Attn: Michael Frank, Executive Officer 555 Northgate Drive, Suite 230 San Rafael, California, 94903 City of San Rafael: Email: City of San Rafael Attn: City Manager 1400 Fifth Avenue San Rafael, CA 94901 13. TERMINATION FOR CAUSE. 13.1 MGSA may terminate this Agreement or the City's right to install, operate and maintain its Equipment on certain MGSA Property for cause upon ten (10) days' prior written notice sent by the MGSA to the City. In that event, the MGSA may exercise its legal rights and/or equitable remedies reserved under this Agreement or by law at any time. 13.2 A termination for cause means: (a) the City has failed to cure a material default of this Agreement within thirty (30) days after it receives the MGSA's notice of default, or, if the default can be cured and such cure reasonably requires more than thirty (30) days to achieve, fails to commence such cure within the specified period and, thereafter, to diligently continue such cure until completion thereof; (b) 4 the CPUC, the FCC or other agency exercising jurisdiction over the Clty has, by final order or action that is no longer subject to appeal, terminated or otherwise revoked the City's approval, authorization, certification or license to operate the City Equipment on certain MGSA Property; (c) the City's authority to do business in California has expired or is rescinded or terminated by final order or action that is no longer subject to appeal; or (d) the City's bankruptcy. 13.3 Upon termination for cause with respect to certain MGSA Property, the right to attach to such MGSA Property will immediately terminate after the MGSA delivers ten (10) days prior written notice to the City. In such event, the City shall, within sixty (60) days of the effective date of termination of this Agreement and/or the City's right to operate its equipment on specified MGSA Property, as applicable, remove or cause the removal of the City's Equipment from such MGSA Property. If the City fails to remove or cause such removal within such —sixty (60) day period, MGSA may remove the same for the account of and at the sole cost and expense of the City. In such case, the City will be invoiced at 1.5 times the rate charged by MGSA's electrical contractor to perform the removal and related work. Such costs will be paid to MGSA by the City within thirty (30) days after receipt of MGSA's written demand and reasonable supporting documentation. 14. TERMINATION WITHOUT CAUSE. The Parties hereto agree that (a) the City may terminate its right to operate its Equipment as it relates to any individual location upon thirty (30) days advance written notice to MSGA, and (b) MSGA may terminate the City's right to operate its Equipment as it relates to any individual location upon (i) the occurrence of a material default hereunder related to such individual location that constitutes a cause event or, (ii) a determination by MSGA in its reasonable discretion that public necessity requires that the applicable streetlight be removed or relocated. Any termination of this Agreement shall not relieve the City of any obligations, whether of indemnity or otherwise, which have accrued prior to such termination or completion of removal of the City's Equipment, whichever is later, or which arises out of an occurrence happening prior thereto, except to the extent arising from the negligence or willful misconduct of MSGA. In the event the City engages in any street repair work that necessitates the removal of a streetlight, MGSA agrees that the City may install new Equipment on any replacement light in accordance with all requirements of this Agreement. 14.1 Except as specifically set forth herein, MGSA and the City agree that neither Party shall terminate this Agreement in the event of an alleged breach nor default hereunder before the defaulting Party has been given written notice of and a reasonable time and opportunity to respond to and cure any such breach or default. For purposes of the foregoing, a reasonable time to cure any breach or default shall be deemed to be thirty (30) days after receipt of written notice 15. TERMINATION FOR PUBLIC NECESSITY. MGSA may for consideration of the public health, safety, or welfare, including, without limitation, safety, reliability, security or engineering reasons, terminate or otherwise modify the scope of the non-exclusive license granted by thisAgreement with respect to any individual locations, upon thirty (30) days prior written notice. In the event a city or county law enforcement authority says it must use a 5 streetlight pole, the City will remove equipment and MGSA will use its best and most reasonable efforts to find a site to relocate the City's equipment. 16. MODIFICATION. All prior agreements between the Parties are incorporated in this Agreement which constitutes the entire agreement. Its terms are intended by the Parties as a final expression of their agreement with respect to such terms as are included herein and may not be contradicted by evidence of any prior agreement or contemporaneous oral agreement. The Parties further intend this Agreement constitutes the complete and exclusive statement of its terms and no extrinsic evidence whatsoever may be introduced in any judicial or arbitration proceeding involving this Agreement. This Agreement may be modified only in a writing approved and signed by all the Parties. [Signature Page Below] Signature: Email: michael@michaelsfrank.com IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed, the day and year first -above written. MARIN GENERAL SERVICES AUTHORITY By: Michael S. Frank Michael S. Frank Title: Executive Officer CITY OF SAN RAFAEL By: Ji chutz TitleCity Mahager APPROVED AS TO FORM: � FL ROBERT F. EPSTEIN, C ty At orney 6 CONTRACT ROUTING FORM INSTRUCTIONS: Use this cover sheet to circulate all contracts for review and approval in the order shown below. TO BE COMPLETED BY INITIATING DEPARTMENT PROJECT MANAGER: Contracting Department: Digital Project Manager: Rebecca Woodbury Extension: `'lick here to enter tev' Contractor Name: MGSA Contractor's Contact: Michael Frank Contact's Email: michael@michaelsfrank.com ❑ FPPC: Check if Contractor/Consultant must file Form 700 Step RESPONSIBLE DESCRIPTION COMPLETED REVIEWER DEPARTMENT a. Email PINS Introductory Notice to Contractor DATE Click here to Check/Initial ❑ 1 Project Manager enter a date. N/A b. Email contract (in Word) and attachments to City Click here to Attorney c/o Laraine.Gittens@cityofsanrafael.org enter a date. ❑ 2 City Attorney a. Review, revise, and comment on draft agreement 5/1/2020 and return to Project Manager Click here to D LG b. Confirm insurance requirements, create Job on enter a date. PINS, send PINS insurance notice to contractor P9 _NA_ 3 Department Director Approval of final agreement form to send to Click or tap © _RW_ contractor to enter a date. Click here to ❑ 4 Project Manager Forward three (3) originals of final agreement to contractor for their signature enter a date. 5 Project Manager When necessary, contractor -signed agreement ❑x N/A agendized for City Council approval * *City Council approval required for Professional Services Agreements and purchases of goods and services that exceed Or $75,000; and for Public Works Contracts that exceed $175,000 Click here to PRINT Project Manager Date of City Council approval enter a date. CONTINUE ROUTING PROCESS WITH HARD COPY 6 Forward signed original agreements to City Attorney with printed copy of this routing form 7 City Attorney Review and approve hard copy of signed 2t) % %Q� agreement j 8 City Attorney Review and approve insurance in PINS, and bonds - jor-/ ew (for Public Works Contracts) 9 City Manager/ Mayor Agreement executed by City Council authorized official 10 City Clerk Attest signatures, retains original agreement and �/ forwards copies to Project Manager