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HomeMy WebLinkAboutExhibitMobilitie redline 3-12-18 RIGHTS -OF -WAY AND POLE ATTACHMENT AGREEMENT This Rights -of -Way and Pole Attachment Agreement (`Agreement") is entered into between the City of Miami, Florida, a Florida municipal corporation (`City"), and Mobilitie, LLC, a limited liability company doing business in the State of Florida ("Mobilitie"), and its authorized successors and assigns. WHEREAS, Mobilitie wishes to access certain portions of the public rights -of -way within the City's territorial boundaries (`Rights -of -Way") to provide communications services; and WHEREAS, the City wishes to enable Mobilitie to provide those services to benefit its residents; NOW, THEREFORE, the parties agree as follows: 1. Use of Rights -of -Way. Mobilitie may use the Rights -of -Way to install, maintain, operate, repair, modify, replace, and/or remove Small Wireless Facilities from time to time, including attaching such Small Wireless Facilities to Mobilitie Poles, City -owned Utility Poles, including Authority Utility Poles and City -owned light poles, that are located in the City's Rights -of -Way (collectively "City Poles"). Mobilitie may install Utility Poles and Wireless Support Structures, including light poles, in the City's Rights -of -Way for the purpose of attaching Small Wireless Facilities (collectively "Mobilitie Poles"). Each Mobilitie Pole installed in the Rights -of -Way shall have a substantially similar appearance, including with respect to its material and light arm, to other City -owned and third -party -owned light poles and Utility Poles in the surrounding vicinity. Mobilitie shall be responsible for the operation, energy costs, maintenance, and liability of all Mobilitie Poles throughout the term of this Agreement. Such Small Wireless Facilities and Mobilitie Poles, and the design and construction thereof, must comply with all applicable laws, standards, specifications, and codes for the installation of such within the public rights -of -way. All design, construction, installation, and maintenance for Small Wireless Facilities and Mobilitie Poles shall be executed by persons duly licensed and certified to the extent required by the State of Florida or the City. The terms "Small Wireless Facilities", "Utility Pole", "Wireless Support Structure", and "Authority Utility Pole" as used herein shall have the meanings set forth in Florida Statutes Section 337.401. 2. Application. To obtain City approval to (i) attach Small Wireless Facilities to a City Pole located in the Rights -of - Way and/or (ii) install a Mobilitie Pole in the Rights -of -Way for the attachment of Small Wireless Facilities (such City Pole and Mobilitie Pole, collectively "Poles"), Mobilitie shall file an application with the City. Each installation shall require an application and City approval. The City shall process all permit applications submitted by Mobilitie in a non- discriminatory manner, without cost to Mobilitie, and in conformance with all applicable Laws. In accordance with the City's regulations, codes, and other applicable regulation and manuals, as may be amended from time to time, Mobilitie will submit to the City design drawings and specifications of the Small Wireless Facilities and Mobilitie Poles and their proposed locations within the City's Rights -of -Way. Mobilitie must make a good faith effort, and provide proof of same, to use a City Pole or a Utility Pole owned by a third party before applying to install a Mobilitie Pole. Mobilitie will submit documentation / photographs indicating how its Small Wireless Facility could not be accommodated on existing Utility Poles before it installs a Utility Pole. Mobilitie Pole. 3. Annual Fees. Mobilitie shall pay each calendar year to the City an "Annual Fee" in the amount of $150.00 for each City Pole to which Mobilitie attaches Small Wireless Facilities. Notwithstanding the foregoing, if the City charges fees to third parties for access to the Rights -of -Way for uses substantially similar to those of Mobilitie that are lower in various areas (as opposed to a specified location) than the Annual Fee set forth herein, then the City shall charge Mobilitie the same fees as such third parties in lieu of the Annual Fee set forth herein. Mobilitie's obligation to pay Annual Fees will commence on the first day of the month following the date of installation, and the initial payment thereof will be made payable to the City within thirty (30) days after installation. Each subsequent Annual Fee payment will be made on or before October 1, until such time that the applicable Small Wireless Facilities are removed in accordance with this Agreement or this Agreement is otherwise terminated as further provided herein. Annual Fees shall be made payable in the form of a money transfer or check to the City's Finance Department. All Annual Fees paid prior to the expiration or earlier termination of this Agreement or removal of the applicable Small Wireless Facilities by Mobilitie shall be retained by the City. Fees not paid within thirty (30) days of when due will accrue interest at the rate of eighteen percent (18%) per annum until paid., 4. Make Ready Work. Mobilitie shall pay to the City any applicable one-time charges for make-ready work for each Authority Utility Pole owned or controlled by the City that supports aerial communication or electric services and to which Mobilitie attaches Small Wireless Facilities pursuant to rates compliant with 47 U.S.C. § 224 and the implementing regulations of the Federal Communications Commission ("FCC"). For all other City Poles to which Mobilitie attaches Small Wireless Facilities, Mobilitie shall perform at its cost all make-ready and all related work pursuant to work plans approved by the City and consistent with generally accepted right-of-way engineering and construction standards. 5. Other Permits, Consents, and Fees. Mobilitie will obtain any other permits and pay any other fees applicable to Mobilitie's use of the Rights -of -Way only as required by the City's Code and/or any other applicable Law. Should Mobilitie seek to attach Small Wireless Facilities to a Wireless Support Structure or Utility Pole in the Rights -of -Way that is owned by a third party, Mobilitie shall obtain all required authorizations and approvals from such third party. Mobilitie shall not be obligated to submit any other applications or pay any other application fees or annual fees in connection with Small Wireless Facilities or the installation of Mobilitie Poles. Notwithstanding anything contained in this Agreement to the contrary, Mobilitie shall not be required to obtain any permit, pay any fee, or be subject to any requirement or condition that does not generally apply to all other occupants of the Rights -of -Way. 6. Removal, Relocation, and Transfer of Title. Mobilitie may remove one or more Small Wireless Facilities from time to time during the term, in which event Mobilitie shall provide advance notice of at least fifteen (15) days thereof to the City, and Mobilitie shall have no further obligations or liability, including for the payment of Annual Fees, in connection therewith. If Mobilitie ceases use of a Small Wireless Facility, it shall immediately remove such Small Wireless Facility within sixty (60) of ceasing use at its own expense, including removal of any Wireless Support Structures and Utility Poles installed by Mobilitie that Mobilitie ceases to use, except that Mobilitie shall assign and transfer to the City without charge, and the City shall acquire from Mobilitie without payment, title to all Mobilitie Poles that are light poles either, upon agreement of the City and Mobilitie (a) during the term of this Agreement, but only once Mobilitie has removed all Small Wireless Facilities from such Mobilitie Poles, or (b) promptly following termination of this Agreement. Any such Mobilitie light pole transferred and assigned to the City shall thereafter qualify as a City Pole (or Authority Pole) and the City shall be solely responsible for the operation and maintenance of such light pole following such transfer and assignment. 7. No Interference. Small Wireless Facilities shall not physically interfere with or cause harmful interference to the City's existing radio facilities located on City Poles. The City, or its authorized representative, shall make a reasonable effort to not physically interfere with or cause harmful interference to Small Wireless Facilities installed by Mobilitie. Mobilitie shall coordinate with the City on any maintenance of City Poles so as not to obstruct or impede the City's performance of such maintenance. Mobilitie shall provide the City with a telephone number that the City can contact to request Mobilitie's coordination pursuant to this paragraph. Notwithstanding any provision of this Agreement, the City reserves the right to remove, disconnect, or relocate any equipment or facilities which interfere with the safe operation of the lighting system or pose a safety risk to the public if Mobilitie has not cured the breach within seven (7) days of notice provided by the City, or immediately if circumstances require an instantaneous response. 8. Term and Renewal. The term of this Agreement shall be for ten (10) years commencing on the date hereof, and shall automatically renew for four (4) additional five (5) year periods thereafter, unless Mobilitie or the City notifies the other of its intent not to renew at least ninety (90) days prior to the end of the then current term, in which case the Agreement may automatically terminate and end without the necessity of further action by the parties. Notwithstanding the foregoing, either party may terminate this Agreement in the event the other party materially breaches a provision 2 herein and the breach is not cured within sixty (60) days after receipt of written notice thereof from the non -breaching party. If the nature of the breach reasonably requires more than sixty (60) days to cure, the breaching party will not be in default hereunder if such party promptly commences such cure and is diligently pursuing the same. Mobilitie shall remove all Small Wireless Facilities, appurtenances, and Mobilitie Poles from the City's Rights -of -Way within ninety (90) days of the expiration or termination of this Agreement, except for Mobilitie Poles that the parties agree will transfer to the City as indicated in this Agreement. In the event that Mobilitie fails to remove the Small Wireless Facilities, appurtenances, or Mobilitie Poles within the ninety (90) days of the expiration or termination of this Agreement, the City may remove said property at Mobilitie's sole cost and expense. 9. Compliance with Laws. Mobilitie's use of the Rights -of -Way must be consistent with the City's Code and regulations regarding its Rights -of -Way and all applicable federal, state, and local laws, statutes, ordinances, regulations, or administrative orders (including, but not limited to, those issued by the FCC and/or the Florida Public Service Commission, or their successor agencies) and any binding judicial interpretations thereof (collectively, "Laws"). If any Laws that govern any aspect of the rights or obligations of the parties under this Agreement shall change after the effective date and such change makes any aspect of such rights or obligations inconsistent with the then -effective Laws, then the parties agree to promptly amend the Agreement as reasonably required to accommodate and/or ensure compliance with any such legal or regulatory change. If any Law renders any provision of this Agreement invalid, the remaining provisions shall remain in full force and effect. It is the intention of the City and Mobilitie that this Agreement conform to Florida Statutes Section 337.401. 10. Indemnification. Mobilitie shall indemnify, defend, save and hold harmless the City and its elected officials, employees, officers, instrumentalities, and directors ("Indemnitees") from and against all costs, claims, damages, losses, expenses, fees, fines, penalties, liability, and suits ("Claim') to the extent that such Claim is caused by any negligent acts or omissions of Mobilitie while in the exercise of the rights or performance of the duties under this Agreement. The indemnity provided for in this paragraph shall not apply to any Claims resulting or arising from the negligence of the City or an Indemnitee. The Indemnitee shall give prompt written notice to Mobilitie of any Claim for which the Indemnitee seeks indemnification. Mobilitie shall have the right to investigate, defend, and settle these Claims subject to the City's prior approval, which shall not be unreasonably withheld, delayed or conditioned. It shall not be unreasonable for the City to withhold consent if (i) the settlement will not be fully funded by Mobilitie, or (ii) the proposed settlement contains an admission of liability or wrongdoing by any Indemnitees. The City's withholding its consent as allowed in the preceding sentence does not release or impair Mobilitie of any obligations or rights under this section. Mobilitie must give City at least twenty (20) days advance written notice of the details of a proposed settlement before it becomes binding. This Indemnity Section shall survive the expiration or cancellation of this Agreement in accordance with the Statute of Limitations for Florida 11. Limitations of Liability. Neither party shall be liable for consequential, indirect, or punitive damages (including lost revenues, loss of equipment, interruption or loss of service, or loss of data) for any cause of action, whether in contract, tort (including negligence), strict liability, or otherwise, even if the party was or should have been aware of the possibility of these damages. 12. Insurance. Mobilitie shall obtain and maintain in full force and effect for the duration of this Agreement insurance requirements in accordance to Exhibit A. Mobilitie's failure to carry the required insurance shall be cause for the City to cancel this Agreement if the failure to perform is not fully cured by Mobilitie within 30 days of the date of notice of such non-compliance being mailed to Mobilitie by the City per the notice Section below. The City of Miami Risk Management Department Director must approve, in writing, any change or modification of the insurance requirements set forth in Exhibit A. 13. Notice. Notices required by this Agreement may be given by registered or certified mail by depositing the same in the United States mail, postage prepaid, or by commercial overnight courier. Either party shall have the right, by giving 3 written notice to the other, to change the address at which its notices are to be received. Until any such change is made, notices shall be delivered as follows: If to City: City of Miami Attn: Director of Public Works 444 SW 2nd Avenue, 8th Floor Miami, FL 33130 If to Mobilitie: Mobilitie, LLC Attn: Legal Department 660 Newport Center Drive Suite 200 Newport Beach, CA 92660 With a copy to: City of Miami Attn: City Attorney 444 SW 2nd Avenue, 9th Floor Miami, FL 33130 With a copy to: Mobilitie, LLC Attn: Asset Management 660 Newport Center Drive Suite 200 Newport Beach, CA 92660 14. Governing Law and Venue; Attorney's Fees. The provisions of this Agreement shall be construed under, and in accordance with, the Laws of the State of Florida without regard to its conflict -of -laws principles. In the event any court action is brought directly or indirectly by reason of this Agreement, the courts of Miami -Dade County shall have jurisdiction over the dispute and venue shall be in Miami -Dade County. Each party shall bear its own respective attorney's fees. 15. Miscellaneous. The failure of either party to enforce its rights under this Agreement at any time for any period shall not be construed as a waiver of such rights. This Agreement is the complete and exclusive statement of the parties' agreement with respect to the subject matter and supersedes all other oral and written agreements or communications between the parties prior to the execution of this Agreement relating to this subject matter. This Agreement will not be deemed to provide third parties with any remedy, claim, right of action, or other right. There are no express or implied third -party beneficiaries to this Agreement. This Agreement may be executed, whether by hand signature or electronic signature via Docusign, in two or more counterparts, and delivered in multiple counterparts, which counterparts may be delivered by facsimile or via electronic mail with the same effect as delivery of the originals, all of which shall be considered one and the same original agreement and shall become effective when one or more counterparts have been signed by each of the parties. This Agreement shall take effect on the date that is the later of the dates on which each of the parties have executed this Agreement. IN WITNESS WHEREOF, the duly authorized representatives of the parties hereto have executed this Agreement as of the dates below. [Signatures on next page.] 4 [Signature page for Rights -of -Way and Pole Attachment Agreement.] CITY OF MIAMI, MOBILITIE, LLC A municipal corporation of the State of Florida Emilio T. Gonzalez, Ph.D. Signature City Manger Name Title Date APPROVED AS TO CONTENT RELATED TO PUBLIC WORKS: Juvenal Santana, P.E. CFM Director, Department of Public Works APPROVED AS TO INSURANCE REQUIREMENTS: Anne -Marie Sharpe Director of Risk Management APPROVED AS TO LEGAL FORM AND CORRECTNESS: Victoria Mendez City Attorney EXHIBIT A INSURANCE REQUIREMENTS I. Commercial General Liability A. Limits of Liability" Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Products/Completed Operations Personal and Advertising Injury $1,000,000 $ 2,000,000 $ 1,000,000 $1,000,000 B. Endorsements Required" City of Miami listed as an additional Contingent Liability & Contractual Liability Premises & Operations Liability Primary Insurance Clause Endorsement Explosion, Collapse, and Underground Hazard II. Business Automobile Liability A. Limits of Liability" Bodily Injury and Property Damage Liability Combined Single Limit Any Auto/Owned Autos/Scheduled Including Hired, Borrowed or Non -Owned Auto Any One Accident $ 1,000,000 B. Endorsements Required: City of Miami listed as an additional insured III. Workers Compensation Limits of Liability: Statutory -State of Florida Employer's Liability A. Limits of Liability: $1,000,000 for bodily injury caused by an accident, each accident. $1,000,000 for bodily injury caused by disease, each employee $1,000,000 for bodily injury caused by disease, policy limit IV. Umbrella Liability (Excess Follow Form) A. Limits of Liability: Each Occurrence Policy Aggregate $1,000,000 $1,000,000 The City of Miami listed as an additional insured. Umbrella is excess over all applicable liability policies contained herein. The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not less than (30) days prior to any such cancellation or material change, or in accordance to policy provisions. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above. The company must be rated no less than "A-" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and/or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. 7