Wireless Agreement, Exhibit A to Resolution No. 5435
Extracted text (via pymupdf)
121708 characters
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 1 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
WIRELESS AGREEMENT
BETWEEN CELLCO PARTNERSHIP D/B/A VERIZON WIRELESS AND THE CITY OF CHANDLER
FOR THE PHO RUBENSTEIN SITE
City of Chandler Document No.____________
City Council Meeting Date: _______________
This Wireless Agreement ("Agreement") is entered into this ____ day of _________________, 2020 (the
“Effective Date”), by and between the City of Chandler, Arizona, an Arizona municipal corporation (“City”), and Cellco
Partnership, a Delaware general partnership, d/b/a Verizon Wireless (“Company”). City and Company may be referred to
individually as “Party” and collectively as “Parties”.
RECITALS
A.
Company provides wireless communication services through the use of Wireless Facilities (hereinafter defined);
and
B.
City is authorized to grant use agreements operate and maintain Wireless Facilities within the City boundaries
under the Charter and Chandler City Code, and by virtue of federal and state statutes, by the City’s police powers, by its
authority over its public rights-of-way and highways as defined in Chapter 46 of the Chandler City Code, and by other City
powers and authority; and
C.
Company has applied to the City for permission to operate and maintain the Wireless Facilities within the City of
Chandler and located within City Right-of-Way as described on the attached Exhibit “A” at a site known as the “PHO
Rubenstein site” (the "Site") and attached to a SRP transmission pole located on the east side of Cooper Road and north
of the Galveston Street alignment as depicted in Exhibit “B”; and
D.
Company has agreed to provide information required by and comply with the terms and conditions set forth in this
Agreement and other requirements as City may establish from time to time.
AGREEMENT
NOW, THEREFORE, City hereby grants to Company this Wireless Agreement to operate and maintain Wireless
Facilities at the Site within City Right-of-Way under the following terms and conditions.
SECTION 1. DEFINITIONS
For the purposes of this Agreement, the following words, terms, phrases, and their derivations are given the meaning
stated in this Agreement. When not inconsistent with the context, words used in the present tense include the future
tense, words in the plural number include the singular number, and words in the singular number include the plural
number. The word "shall" is always mandatory and not merely directory.
“ACC” means the Arizona Corporation Commission.
“Agreement” means this non-exclusive revocable authorization granted by the City to Company to operate and maintain
Wireless Facilities on the Site.
“Agreement Activities” is ascribed the meaning in section 2.1.5.
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 2 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
“Antenna” means communications equipment that transmits or receives electromagnetic radio frequency signals and that is
used in providing wireless services.
“A.R.S.” means Arizona Revised Statutes, as amended.
“Base Use Fee” means the amount Company must pay City each month of this Agreement for use of City Right-of-way.
“C.C.C.” means Chandler City Code, as amended.
“C.F.R.” means Code of Federal Regulations, as amended.
“City” means the City of Chandler, an Arizona municipal corporation.
“City Council” means the Council of the City of Chandler.
“City Manager” means the Chandler City Manager or the City Manager’s designee.
“Collocate”, “collocating”, or “collocation” refer to the use of Company’s Facilities by another company.
“Communications Equipment” means any and all electronic equipment at the Wireless Facility location that processes and
transports information from the antennas to the Company’s network.
“Company” means Cellco Partnership, a Delaware general partnership, d/b/a Verizon Wireless and related affiliates,
subsidiaries, persons, or entities to which this Agreement is granted.
“Company’s Improvements” means all improvements installed by the Company, including, but not limited to: all elements of
the Wireless Facility, all screening elements, any landscaping plants or materials, and any other elements provided by the
Company in the approved Agreement.
“Competing Users” means entities that own the water pipes, cables and wires, pavement, and other facilities that may be
located within the Right-of-way. Competing Users include without limitation, the City, the State of Arizona and its political
subdivisions, the public, and all manner of utility companies and other existing or future users of the Use Area.
"Critical Infrastructure Information" has the same meaning prescribed in A.R.S. § 41-1801, as amended.
"Day" means a calendar day, except a Saturday, Sunday, or a holiday prescribed in A.R.S. § 1-301.
“Encroachment Permit” means a permit issued pursuant to Chapter 46 of the Chandler City Code that allows the Company to
perform work in the Right-of-Way and to install and operate improvements in the Right-of-Way.
“Environmental Laws” means all federal, state, and local laws, ordinances, rules, regulations, statutes, and judicial
decisions, as amended from time to time, which in any way relate to or regulate human health, safety, industrial hygiene,
environmental conditions, protection of the environment, prevention or cleanup of pollution, or contamination of the air,
soil, surface water, or ground water.
“Facility” or “Facilities” means Company’s plant, equipment, and property, including but not limited to boxes, poles, wires,
pipe, conduits, pedestals, antenna, and other appurtenances, in order to provide the services described in this
Agreement.
“FCC” means the Federal Communications Commission.
“FCC OET Bulletin 65” means the FCC’s Office of Engineering & Technology Bulletin 65 that includes the FCC Radio
Frequency Exposure Guidelines.
“FCC Rules” means all applicable radio frequency emissions laws and regulations.
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 3 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
“Fiscal Year” means a 12 month period that begins on July 1 and ends the following June 30.
“Franchise” has the same meaning prescribed in the Arizona Constitution, article 13, §§ 4 and 6.
“Hazardous Substances” means those substances defined as toxic or hazardous substances, pollutants, or wastes by
Environmental Law or the following substances: gasoline, kerosene, or other petroleum products, toxic pesticides or
herbicides, volatile solvents, materials containing asbestos or formaldehyde, or radioactive materials.
“In-lieu Company” means a single, third party company, using the Site or Company’s Facility, or part thereof, to provide
services in lieu of such services being provided by Company.
“Ordinary Permit Use Fee” means the City’s encroachment permit application, review, and other fees related to the issuance
of the permit.
“Other Facilities” means facilities owned and operated by parties other than City or Company, which facilities occupy
Public Property under authority of a City encroachment permit, Agreement, or franchise.
“Pre-existing Environmental Condition” means the presence, emission, disposal, discharge, or release of any Hazardous
Substance at, in, on, under or about the Wireless Facilities and Site, however caused, existing on the Effective Date,
whether the nature and extent of the contamination is known or unknown.
“Proprietary Information means any document or material clearly identified by Company as confidential and includes, but is not
limited to, any customer lists, financial information, technical information, or other information plainly identified as confidential by
Company and pertains to Company’s services provided to its customers.
"Public Property" means the surface of and the space above and below of real property, which is owned, operated and
maintained by the city. Public Property does not include Right-of-Way.
“RF” means radio frequency.
“RF Letter” means a letter attesting to the Company’s compliance with FCC RF exposure guidelines from the Company’s
senior internal engineer.
“Right-of-Way” means the area on, below or above a public roadway, highway, street, sidewalk, alley, or utility easement.
Right-of-Way does not include a Federal Interstate Highway, a state highway or state route under the jurisdiction of the
Department of Transportation, a private easement, property that is owned by a special taxing district, or a utility easement that
does not authorize the deployment sought by the Company.
"Section" means any section, subsection, or provision of this Agreement.
“Site” means the Use Area for the Wireless Equipment and the pole to which the antenna and other wireless facilities are
attached.
“Site Documents” means the depiction of the Agreement area, schematic plans and map showing location of the installation of
the Facility in the Right-of-Way, including but not limited to the title report of the use area, vicinity map, site plan, elevations,
technical specifications and the cubic feet of the non-antenna wireless equipment.
“Supplemental Parcel Agreement” means an agreement authorizing the Company to use property outside of the Public
Property or Right-of-Way.
“SRP” means Salt River Project and its subsidiaries and affiliates.
"Telecommunications” has the same meaning prescribed in A.R.S. § 9-1401, as amended.
"Telecommunications Company” has the same meaning prescribed in A.R.S. § 9-1401, as amended.
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 4 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
"Telecommunications Service" has the same meaning prescribed in A.R.S. § 9-1401, as amended.
“Third Party Areas” means the portions of the Public Property subject to Third Party Limitations.
“Third Party Limitations” means some or part of the Public Property that may contain limited dedications or regulatory use
restrictions imposed by a third party.
“U.S.C.” means United States Code, as amended.
“Use Area” means the real property used by Company where the Wireless Facilities are located.
“Violation Use Fee” means the types of fees that the City has available to remedy certain breaches of the Agreement by
Company.
“Wireless Facility” means equipment at a fixed location that enables wireless communications between user equipment and a
communications network, including both of the following: (i) Equipment associated with wireless communications; and (ii)
Radio transceivers, antennas, coaxial or fiber-optic cables, regular and backup power supplies and comparable equipment,
regardless of technological configuration. Wireless Facility includes Small Wireless Facilities, but does not include the
structure or improvements on, under or within which the equipment is collocated, wireline backhaul facilities, coaxial or fiber-
optic that is between wireless support structures or utility poles or coaxial or fiber-optic cable that is otherwise not immediately
adjacent to, or directly associated with, an antenna. In addition, Wireless Facility does not include Wi-Fi radio equipment
described in Section 9-506, Subsection I or microcell equipment described in Section 9-584, Subsection E.
“Wireless Facilities Site Permit”, also referred to herein as “Site Permit”, means the permit authorizing the installation of
Wireless Facilities at a specific site in the City’s Right-of-Way.
“Wireless Infrastructure Company” as defined in A.R.S. §9-591(23) means any person that is authorized to provide
telecommunications service in this state and that builds or installs wireless communications transmission equipment, wireless
facilities, utility poles or monopoles but that is not a wireless service company. Wireless Infrastructure Company does not
include a special taxing district.
“Wireless Services” as defined in A.R.S. §9-591(25) means any services that are provided to the public and that use licensed
or unlicensed spectrum, whether at a fixed location or mobile, using wireless facilities.
“Wireless Services Company” as defined in A.R.S. §9-591(26) means a person that provides wireless services. Wireless
Services Company does not include a special taxing district.
“Wireless Support Structure” as defined in A.R.S. §9-591(27) means: (i) a freestanding structure, such as a monopole; (ii) a
tower, either guyed or self-supporting; (iii) a sign or billboard; or (iv) any other existing or proposed structure designed to
support or capable of supporting small wireless facilities. Wireless Support Structure does not include a utility pole.
“Zoning Code” means Chapter 35 of City Code.
SECTION 2. PERMISSION GRANTED
2.1
Grant.
2.1.1
Subject to the provisions of this Agreement, and to the City Code, City grants Company the nonexclusive
revocable permission to operate and maintain its Wireless Facilities within the City Right-of-Way. This Agreement does not
grant Company the right and privilege to operate and maintain its Wireless Facilities on Public Property. Subject to the terms
and conditions of this Agreement and any additional applicable permits later issued for the Site, for use of the PHO Rubenstein
Site as more fully set forth herein. The uses of any other Public Property and installation or construction of any other antennae
and other equipment locations at this Site are subject to approval by the City through additional Encroachment Permit review by
City staff. If Company desires to change the components of any of the Wireless Facilities in a manner that changes its primary
purpose, written approval of such change must be obtained by the City Manager who can refer the matter to the City Council if
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 5 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
required by ordinance, provided that such consent by either may not be unreasonably withheld or delayed. The installation and
construction of a fiber optics or telecommunications network, or cable Wireless Facilities is not authorized by this agreement.
2.1.2
Company may not install, maintain, construct, or operate Wireless Facilities in the Right-of-Way or provide
services by means of such Wireless Facilities unless a Company first obtains and maintains in good standing at all applicable
times of the following: (i) A City license for video services as provided by Title 9, Chapter 5, Article 7, Arizona Revised Statutes,
or (ii) a City license for telecommunications services as provided by Title 9, Chapter 5, Article 1.1, Arizona Revised Statutes for
facilities located in the Right-of-Way that connect the Company’s Wireless Facilities to Company’s interstate network. Company
must demonstrate compliance with this section when Company submits to the City an application for a wireless agreement. As
of the Effective Date, Company represents and warrants that Company complies with this condition. Company must notify City
as provided in this Agreement of any changes to Company’s compliance with this condition.
2.1.3
Subject to obtaining the permission of the affected property owner, this Agreement also authorizes Company
to operate and maintain its Wireless Facilities on structures owned by third parties located on Public Property, such as an
electric utility company, provided, however, any installation on private property within or on the City’s right-of-way, easements or
other Public Property must comply with Chapters 46 and 47 and any other applicable sections of the City Code. Upon request,
Company must promptly furnish to the City documentation of such permission from such other affected property owner. By
executing this Agreement, the City does not waive any rights that it may have against any public utility or other property owner
to require prior approval from the City for such uses of their property or facilities, or that revenues received by any public utility
or other property owner from Company, by virtue of Company’s use of their property or facilities, be included in the computation
of franchise or Agreement fees owed by such parties to the City.
2.1.4
Except for those Facilities specifically permitted on the PHO Rubenstein Site, no component or part of
Company’s Wireless Facilities may be installed, constructed, located on, or attached to any property within the City by
Company until Company has, for those Facilities to be located on Public Property or other Right-of-Way; obtained
encroachment permits pursuant to Chapter 46 of the City Code. Additionally, Company must comply with all other provisions of
the City Code, including Chapter 35 regarding zoning and other relevant City regulations.
2.1.5
The Site may be used by Company for the transmission and reception of radio communication signals
and for the construction, installation, operation, maintenance and repair of related support Facilities (such as tower and
base, antennas, microwave dishes, equipment shelters and/or cabinets) but only for the provision of what is commonly
known as cellular telephone service (whether or not technically referred to as Personal Communications Service, or some
other term) by the use of "personal wireless service facilities" (as such phrase is defined in §704 of the Federal
Telecommunications Act of 1996, Pub. L. No. 104-104, 110 Stat. 56 (1996), partially codified at 47 U.S.C. §
332(c)(7)(C)(2), hereinafter "1996 Act Section 704") and not for any other purpose. Company must, at its expense,
comply with all present and future federal, state, and local laws, ordinances, rules and regulations (including but not
limited to laws and ordinances relating to health, safety, radio frequency emissions, and radiation) in connection with the
use of (and operations, maintenance, construction and/or installations at) the Site.
2.1.6
Any privilege claimed under this Agreement and Encroachment Permit by Company in any public street or
other Public Property must be subordinate to any prior or subsequent lawful occupancy or use thereof by the City or any other
governmental entity, and must be subordinate to any prior lawful occupancy or use thereof by any other person, and must be
subordinate to any prior easements therein, provided, however, that nothing herein may extinguish or otherwise interfere with
property rights established independently of this Agreement.
2.2
Description of the Wireless Facilities. Company’s Wireless Facilities consists of improvements, personal property
and Facilities necessary to operate its communications Wireless Facilities, including, without limitation, equipment that may be
mounted on City owned poles or poles privately owned by other parties that may be on Public Property, and may include
equipment buildings with perimeter screen walls in accordance with the provisions of Chapter 35 of the Chandler City Code,
and related cables and utility lines (collectively the “Wireless Facilities”) as described in Exhibit A.
SECTION 3. SCOPE
3.1
Agreement. Company agrees to comply with the provisions of Chapter 46 of the City Code.
3.2
Specific Authorization. This Agreement solely authorizes Company to operate and maintain Wireless Facilities to provide
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 6 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
Wireless Services in accordance with the terms of this Agreement.
3.3
Compliance with Laws.
3.3.1
Company must comply with all applicable laws, including, but not limited to, the City Code, in the exercise and
performance of its rights and obligations under this Agreement. There is hereby reserved to the City the power to amend any
section of the City Code so as to require additional or greater standards of construction, operation, and maintenance or
otherwise pursuant to City’s lawful police powers or as provided in the Agreement.
3.3.2
If it is necessary for Company to comply with any law or regulation of the FCC or the ACC to engage in the
business activities anticipated by this Agreement, Company must comply with such laws or regulations as a condition precedent
to exercising any rights granted by this Agreement. Provided, however, no such law or regulation of the FCC or ACC may
enlarge or modify any of the rights or duties granted by this Agreement without a written modification to this Agreement.
3.3.3
Upon request Company must provide to the City copies of any communications and reports submitted by
Company to the FCC or any other federal or state regulatory commission or agency having jurisdiction in respect to any matters
directly affecting enforcement of this Agreement.
3.3.4
Upon request Company must provide the City with regular reports, as reasonably needed, to establish
Company’s compliance with the various requirements and other provisions of this Agreement.
3.4
Interference and Emergency.
3.4.1.
Company must receive approval by the City’s Police and Fire Departments that Company’s Wireless Facilities
will not interfere with the City’s public safety communications Wireless Facilities. Company agrees that all Wireless Equipment
it operates within the City must strictly comply with the FCC's radio frequency emission regulations. In the event City incurs
radio frequency interference with respect to its satellite, City communication Wireless Facilities, television or telephone
equipment that is presumably caused by Company’s operations, then City will give notice to Company via on-call assistance
and in writing. Within ten (10) days following Company’s receipt of such notice, Company must conduct engineering field tests
to determine if such interference is being caused by Wireless Equipment operated by Company. City may conduct engineering
field tests using City’s own engineer to determine if such interference is caused by Company’s Wireless Equipment. City’s
engineer and Company’s engineer will use their best efforts to determine the cause of said interference, but if the two cannot
agree on the cause thereof, a neutral third party engineer will be appointed by City and Company to determine the cause of the
interference. If it is determined that such interference results from any of Company’s Wireless Equipment, Company must
within five business days remedy such interference.
3.4.2.
Company must continuously and without interruption, operate so that its Facilities are not deemed abandoned
pursuant to 35-2209 of City Code.
3.4.3.
Subject to the applicable provisions of the Chandler City Charter, City Code and Arizona Revised Statutes,
City may, in the event of a public emergency, sever, disrupt, dig-up, or otherwise remove Company’s Facilities if the action is
deemed reasonably necessary by the City Manager, Fire Chief, Police Chief, Public Works Director, or Development Services
Director. Notice will be given to Company at (800) 621-2622. A public emergency must be any condition which, in the opinion
of any of the officials named, poses an immediate threat to the lives or property of City residents, caused by any natural or man-
made disaster, including, but not limited to, storms, floods, fire, accidents, explosions, major water main breaks, or hazardous
material spills.
3.5
Reservation to City. The City reserves every right and power, which is required to be herein reserved or provided by
any ordinance or the Charter of the City, and Company, by its execution of this Agreement, agrees to be bound thereby and to
comply with any action or requirements of City in its reasonable exercise of such rights or power, heretofore or hereafter
enacted or established. Neither the granting of any Agreement nor any provision hereof may constitute a waiver or bar to the
exercise of any governmental right or power of the City.
SECTION 4. FEES AND CHARGES
4.1
Application Fee. Company must pay all fees and charges in connection with Company’s performance under this
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 7 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
Agreement. Company agrees to pay City, a fee in the amount indicated on the City fee schedule as of the date of submittal prior
to submittal for approval of this Agreement to the City Council. Company has paid City a one-time payment for the Agreement
Application Fee in the amount of $3,000.00.
4.2
Encroachment Permit Fees. Company must pay any and all fees as required for processing any Encroachment
Permits independently of this Agreement as indicated on the City fee schedule as adopted by the City Council and applicable to
such permits and construction prior to the issuance of such a permit.
4.3
Use Fee and Other Payments.
4.3.1
For the use of the Site, as of the Effective Date, Company must pay City the sum of $1,001.94 (calendar year
2020) per month as use fee for the PHO Rubenstein Site (the “Base Fee”). However, the initial payments of the Base Fee must
be made within 90 days of the Effective Date and subsequent payments must be made on the first (1st) day of each month
thereafter. The Base Fee for any fractional month at the beginning or at the end of the Term or Renewal Term will be prorated.
4.3.2
In addition to the Base Fee, for the use of the PHO Rubenstein Site for the period between Company’s
application for this Agreement in May 2018 and the Effective Date, Company must pay City the sum of $935.32 per month for
the remainder of calendar year 2018 and $968.06 per month for calendar year 2019 and $1001.94 per month in calendar year
2020 as fees for the current use of the PHO Rubenstein Site (the “Current Use Fee”). The City waives any accrued and
accruing interest and penalties due and owing for Company’s failure to make timely payments for Company’s current use of the
Site. Company’s payment of the Current Use Fee must be made within 90 days of the Effective Date.
4.3.3
The City waives the applicable fees due and owing for Company’s unpermitted use of the PHO Rubenstein
Site for the period that ends April 2018 and begins on the original unpermitted installation date (collectively “Unpermitted Use
Period”). The City also waives any accrued and accruing interest and penalties due and owing for Company’s failure to make
timely payments during the Unpermitted Use Period.
4.3.4
Beginning on the annual anniversary of the Effective Date, and on each annual anniversary thereafter, the
Base Fee will increase by 3.5%.
4.3.5
In addition to the Base Fee and Current Use Fee, Company must pay to City any transaction privilege, sales,
excise, rental and other taxes (except income taxes) imposed now or hereinafter imposed by any governmental authority upon
rentals and all other amounts to be paid by Company pursuant to this Agreement.
4.3.6
All fees and costs must be paid to City at the following address or to such other persons or at such other
places as City may designate in writing. All payments must be in lawful money of the United States of America.
City of Chandler, Development Services
Mail Stop 405, P.O. Box 4008
Chandler, AZ 85244-4008
Attention: Development Services Administrator
4.3.7
City will send invoices to Company at the following address:
Cellco Partnership,
d/b/a Verizon Wireless
180 Washington Valley Road
Bedminster, New Jersey 07921
Attention: Network Real Estate
Site: PHO Rubenstein
SECTION 5. TERM OF AGREEMENT
5.1
Term. The term of this Agreement shall be as follows:
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 8 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
5.1.1
Original Term. The original term of this Agreement shall be for a period of ten (10) years commencing on the
Effective Date.
5.1.2
Extension. The term of this Agreement may be extended for one (1) additional ten (10) year period subject to
consent by City and Company, which either may withhold in its sole and absolute discretion as provided in Exhibit F. Both City
and Company will be deemed to have elected to extend unless City or Company, respectively, gives notice to the contrary to
the other at least one hundred eighty (180) days prior to the end of the original term or the current extension. The second term
will begin ten (10) years plus one (1) day after the initial effective date. All of the terms and conditions of this Agreement must be
in effect during the Term and extension of the Term.
5.2
Hold Over. In any circumstance whereby Company remains in possession or occupancy of the Site after the
expiration of this Agreement (as extended, if applicable), such holding over will not be deemed to operate as a renewal or
extension of this Agreement. Instead, the hold over may only create a use right from month to month that may be terminated at
any time by City upon thirty (30) days’ notice to Company or upon sixty (60) days’ notice to City. If Company remains in
possession of the Site at the termination or expiration of the initial term or any extension thereof without a written agreement
with City to do so, such holding over will be construed to be a tenancy at sufferance from month to month at one and one-half (1
1/2) times the amount of the Use Fee (defined in Section 4.3) in effect at the time of the hold over and Company will be subject
to the same terms and conditions of this Agreement.
SECTION 6. ACCEPTANCE
6.1
Written Acceptance. Company’s execution of this Agreement constitutes its acceptance of the Agreement as granted
and its agreement to be bound by and to comply with this Agreement. Company’s signature must be acknowledged by
Company before a notary public.
6.2
Validity of Agreement. Company must acknowledge, as a condition of acceptance of this Agreement, that Company
was represented throughout the negotiations of the Agreement by its own attorneys and had opportunity to consult with its own
attorneys about its rights and obligations regarding same. Company has reviewed City’s authority to execute and enforce this
Agreement, and has reviewed all applicable law, both federal and state, and, after considering same, Company acknowledges
and accepts the right and authority of City to execute this Agreement, to issue this Agreement and to enforce the terms herein.
Both parties agree it shall not now or at any time hereafter contest or challenge the other party’s authority under applicable
federal, state and local law to enter into and enforce this Agreement in any city, state or federal court.
SECTION 7. ENCROACHMENT PERMIT – PHO RUBENSTEIN SITE
7.1
Site. City has jurisdictional authority over the Right-of-Way where the SRP pole is located and the Use Area as depicted
in attached Exhibit A.
7.2
Ingress, Egress and Utility Access. Under this Agreement, Company, its employees, agents, subcontractors,
lenders, invitees and guests shall have pedestrian and vehicular access to the Site without notice to CITY twenty-four (24)
hours a day, seven (7) days a week, at no charge. This Agreement grants access to perform work where no excavation is
involved and where previously permitted structures and facilities exist. If excavation is required for utilities, plans must be
submitted to City Staff for approval which will not be unreasonably withheld. Company must submit engineered plans and
drawings through the standard Encroachment Permit application process showing the exact location of Company’s activities
and the plans for installation to City Staff for approval prior to installation.
7.3
Use of Site. The Site must be used solely for the operation of wireless communication services utilizing radio
communication Facilities (“Company Facilities”). Company must not use the Site for any other purpose without the written
consent of City. The Site shall be used only for lawful purposes, and only in accordance with all applicable building, fire and
zoning codes, and applicable local public park ordinances and regulations.
7.4
City Cooperation. City agrees to cooperate with Company, at Company’s expense, in making application for and
obtaining all Agreements and any and all other necessary approvals that may be required for Company’s intended use of the
Site. However, nothing herein shall be deemed to constitute a contractual obligation of City, as a municipality, to issue a
required Agreement where the officer, agent or employee of City responsible for the issuance of such Agreement deems the
issuance of such an Agreement to be inappropriate. This Agreement is not intended to supersede, modify or waive City Code
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 9 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
or Zoning Code requirements applicable to the construction of wireless communication facilities except to the extent they relate
to an encroachment permit for the PHO Rubenstein Site.
7.5
Tests and Construction. Company may enter the Right-of-Way following the full execution of this Agreement to enter
upon the Site for the purpose of making appropriate engineering and boundary surveys, inspections, soil test borings, and other
reasonably necessary tests for construction of Company’s Facilities, except as otherwise limited by Section 7.3. Company
must indemnify and hold City harmless against liability, loss, cost, damage or expense that may arise out of any personal injury
or property damage resulting from Company’s entry upon the Site, except to the extent caused by City’s negligence or willful
misconduct. Company must coordinate with the Development Services Department to avoid interfering with any City operations
while conducting any such tests or construction.
7.6
Company Construction/Improvements.
7.6.1
Company must submit plans and specifications for all the Facilities to be constructed or installed for prior
review and approval by the Development Services Department. Such approval is separate from, but may be obtained
concurrent with, development approvals (building permits, encroachment permits, special use permits, etc.) required and issued
by the Development Services Department. All of Company’s construction and installation work must be performed at
Company’s sole cost and expense and in a good and workmanlike manner.
7.6.2
The construction plans and specifications must include fully dimensioned site plans that are drawn to scale
and show, as applicable, antenna, equipment shelter, the proposed changes in the landscape, the proposed type and height of
fencing, if any, the proposed type of construction material for all structures, including fencing or screening, and any other details
requested by City or required to obtain development approvals.
7.6.3
Company Facilities must remain Company’s personal property and not fixtures, and title to the same shall be
held by Company. Company shall remove all Company Facilities at its sole expense on or before the expiration or earlier
termination of this Agreement and shall repair any damage to the Site caused by such removal, and restore the Site to the
condition it was in at the time of removal reasonable wear and tear and casualty excepted. If this removal includes the removal
of a City owned structure such as a ball field light, a replacement structure approved by the Development Services Department
will be constructed.
7.6.4
Any portion of Company’s Facilities, or any of Company’s personal property, equipment, or improvements on
the Site that is not removed on or before ninety (90) days following the termination of this Agreement, may be removed by City
and all expenses of such removal and site restoration charged to Company.
7.6.5
Company must make no alterations or additional improvements to or upon the Site without first obtaining
written approval of the Development Services Department.
7.7
Utilities. Company must be liable for and must pay throughout the term of this Agreement, all charges for all utility
service furnished to the Site for all Company purposes related to the operation and maintenance of Company’s Facilities.
7.8
Maintenance and Repair. Company must keep their building, fencing or screen walls, if any, and other Facilities in
good repair and in a neat and clean condition and must maintain and preserve any landscaping within and around any fenced
area in accordance with City zoning code.
7.9
Hazardous Substances. Company’s activities upon or about the Use Area are subject to the following regarding any
hazardous or toxic substances, waste or materials or any substance now or hereafter subject to regulation under the
Comprehensive Environmental Response Compensation and Liability Act, 42 U.S.C. §§ 9601, et seq., the Arizona Hazardous
Waste Management Act, A.R.S. §§ 49-901, et seq., the Resource Conservation and Recovery Act, 42 U.S.C. §§ 6901, et seq.,
the Toxic Substances Control Act, 15 U.S.C. §§ 2601, et seq., or any other federal, state, county, or local law pertaining to
hazardous substances, waste or toxic substances and their reporting requirements (collectively “Toxic Substances”):
7.9.1
No Warranties. Company understands the hazards presented to persons, property, and the environment by
dealing with Toxic Substances. City makes no warranties as to whether the Use Area contains actual or presumed asbestos or
other Toxic Substances.
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 10 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
7.9.2
Discovery. Within twenty-four (24) hours after discovery by Company of any Toxic Substances, Company must
report such Toxic Substances to City in writing. Within fourteen (14) days thereafter, Company must provide City with a written report
of the nature and extent of such toxic substances found by Company.
7.9.3
Disturbance of Toxic Substances. Prior to undertaking any construction or other significant work, Company
must cause the Use Area to be inspected to prevent disturbance of potential asbestos or other Toxic Substances. Prior to any
work of any description that bears a material risk of disturbing potential asbestos or other Toxic Substances, Company must
cause Company’s contractor or other person performing such work to give to City notice by the method described in this
Agreement to the effect that the person will inspect for Toxic Substances, will not disturb Toxic Substances, and will indemnify,
defend and hold City harmless against any disturbance in Toxic Substances in the course of the Company’s or other person’s
work. Company must cause any on-site or off-site storage, inspection, treatment, transportation, disposal, handling, or other
work involving Toxic Substances by Company in connection with the Use Area to be performed by persons, equipment,
Facilities and other resources who are at all times properly and lawfully trained, authorized, licensed, permitted and otherwise
qualified to perform such services. Company must promptly deliver to City copies of all reports or other information regarding
Toxic Substances.
SECTION 8. LETTER OF CREDIT.
8.1
Amount; Purpose. Within thirty (30) Days after the Effective Date of this Agreement, Company must deposit
with the City an irrevocable letter of credit in the amount of one hundred thousand dollars ($100,000) (replenish able as
specified in Section 8.3 below) issued by a federally insured commercial lending institution. The form and substance of
said letter of credit will be used to assure (a) the faithful performance by Company of all provisions of this Agreement;
(b) compliance with all orders, permits, and directions of any Department of the City having jurisdiction over Company’s
acts or defaults under this Agreement; and (c) Company’s payment of any penalties, liquidated damages, claims, liens,
and taxes due to the City that arise by reason of the construction, operation, or maintenance of the Wireless Facilities,
including cost of removal or abandonment of any of Company’s property.
8.2
Drawing on Letter of Credit. The letter of credit may be drawn upon by the City by presentation of a draft at
sight on the lending institution, accompanied by a written certificate signed by the City Manager certifying that Company
has been found to have failed to comply with this Agreement, stating the nature of noncompliance, and stating the amount
being drawn. The rights reserved to the City with respect to the letter of credit are in addition to all other rights of the City,
whether reserved by this Agreement or authorized by law, and no action proceeding against a letter of credit will affect
any other right the City may have.
8.3
Replenishing. The letter of credit shall be structured in such a manner so that if the City at any time draws upon
the letter of credit, upon notice to Company by the issuing lending institution, Company must immediately increase the
amount of available credit by the amount necessary to replenish that portion of the available credit exhausted by the
honoring of the City's draft; provided, however the maximum amount available to be drawn on this letter of credit for any
one event may not exceed one hundred thousand dollars ($100,000). The intent of this Section is to make available to
the City at all times a letter of credit in the amount of one hundred thousand dollars ($100,000).
SECTION 9. INSTALLATION, CONSTRUCTION & OPERATION OF THE WIRELESS FACILITIES
9.1
Damage to Right-of-Way. Whenever the installation, removal, or relocation of any of Company’s Wireless Facilities is
required under this Agreement, and such installation, removal or relocation cause damage to the Right-of-Way, Company, at its
sole cost and expense, must promptly repair and return Right-of-Way in which the Wireless Facilities components are located to
a safe and satisfactory condition in accordance with applicable laws, reasonably satisfactory to the Development Services
Director or designee. If Company does not repair the Site as just described, City will have the option, upon fifteen (15) days
prior written notice to Company, to perform or cause to be performed such reasonable and necessary work on behalf of
Company and to charge Company for the proposed costs to be incurred or the actual costs incurred by City at City’s standard
rates, plus an administrative fee of fifteen percent (15%). Upon the receipt of a demand for payment by City, Company must,
within thirty (30) days, reimburse City for such costs. For any pavement cuts by Company, Company agrees to restore the
pavement and to reimburse City for all costs arising from the reduction in the service life of any public road, in accordance with
the provisions of Chapter 46 of the City Code and the fees established by City pursuant thereto. Company agrees to pay within
thirty (30) days from the date of issuance of an invoice from City. Provided, however, in the event Company failure creates a
dangerous condition for which immediate repair or corrective action is necessary for health or safety reasons, no prior notice
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 11 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
need be provided to Company, but City may at City’s option, immediately repair and restore the site to a safe condition and
charge Company as provided above.
9.2
Damage to Facilities of Others. Company must construct, install, locate and relocate its Wireless Facilities in such a
manner that it causes no disruption of other services or damage to the other facilities. If Company damages any City facility,
Company must pay to City, the full costs of all repairs incurred by CITY to repair such damage, together with an administrative
fee of fifteen percent (15%). If Company damages any facility owned by an entity other than City, Company must, at the option
of the entity whose facility was damaged, either repair and restore such facility to its condition before such damage or reimburse
that entity the full cost incurred for repairs and restoration and also for other damages as proved by such other entity.
SECTION 10. TERMINATION
10.1
Termination. This Agreement may be terminated without further liability on thirty (30) days prior written notice as
follows: (i) by either party upon a default of any covenant or term hereof by the other party, which default is not cured within
sixty (60) days of receipt of written notice of default, provided that the grace period for any monetary default is ten (10) days
from receipt of written notice of default; or (ii) by Company if it does not obtain or maintain any Agreement, permit, or other
approval necessary for the construction and operation of the Site; or (iii) by Company if Company determines that the Site is
not appropriate for its operations for economic or technological reason, including without limitation, signal interference; or (iv)
Company’s Insolvency as described in this section.
10.2
Rights at Termination. The following provisions will apply at the expiration of the term of this Agreement:
10.2.1 Surviving Obligations. Expiration or termination of this Agreement does not terminate Company’s
obligations existing or arising prior to or simultaneous with, or attributable to, the termination or events leading to or
occurring before termination.
10.2.2 Delivery of Possession. Company must cease using the Site. Company must without demand, peaceably
and quietly quit and deliver up the Use Area to the City thoroughly cleaned, in good repair with the Use Area
maintained and repaired and in as good order and condition, reasonable use and wear excepted, as the Use Area is
now or in such better condition as the Use Area may hereafter be placed.
10.2.3 Confirmation of Termination. Upon expiration or termination of this Agreement for any reason, Company
must provide to City upon demand recordable disclaimers covering the Use Area executed and acknowledged by
Company and by all persons claiming through this Agreement or Company any interest in or right to use the Use
Area.
10.2.4 Removal of Improvements. Company must remove all Facilities and restore the Use Area to its prior
condition, or to a condition matching City’s surrounding land and improvements, as directed by City, at Company’s
expense within 30 days of termination of this Agreement. Without limitation, such work shall include revegetation and
appropriate irrigation Wireless Facilities for revegetated areas.
10.2.5 Prior Improvements. This section also applies to any improvements that Company may have made to the
Site.
10.3
Company’s Insolvency. Company’s insolvency will be deemed an event of default. “Insolvency” means: (a) the
making by Company of any general assignment or general arrangement for the benefit of creditors; (b) the filing by or against
Company of a petition to have Company adjudged a bankrupt or a petition for reorganization or arrangement under any law
relating to bankruptcy (unless, in the case of a petition filed against Company, the same is dismissed within sixty (60) days); or
(c) the appointment of a trustee or receiver to take possession of substantially all of Company’s assets located at the Site or of
Company’s interest in this Agreement, where possession is not restored to Company within thirty (30) days.
SECTION 11. INDEMNITY AND INSURANCE
11.1
Insurance Responsibility. During the entire term of this Agreement, Company must insure its property and activities
at and about the Site and must provide insurance and indemnification as follows. Company must procure and maintain, and
must cause its contractors to procure and maintain substantially the same coverage with substantially the same limits as
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 12 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
required of Company, as provided in Section F below, until all their respective obligations have been discharged, insurance
against claims for injury to persons or damage to property which may arise from or in connection with Company’s obligations
under this Agreement and Company’s activities on the Site, including but not limited to the installation, construction, relocation,
removal, repair, operation, and maintenance of the Wireless Facilities and Communications Equipment by Company, its agents,
representatives, employees, or contractors. The insurance requirements herein in no way limit the indemnity covenants
contained in this Agreement. The City in no way warrants that the limits contained herein are sufficient to protect Company
from liabilities that might arise out of this Agreement by Company, its agents, representatives, employees or contractors, and
Company is free to purchase such additional insurance as may be determined necessary.
11.2
Minimum Scope and Limits of Insurance. Company must provide coverage with limits of liability not less than
stated below.
11.2.1 Commercial General Liability – Occurrence Form. Policy must also include coverage for products
completed operations, independent contractors, personal injury, property damage, and advertising injury.
Products – Completed Operations Aggregate
$10,000,000
Each Occurrence
$10,000,000
The policy must be endorsed to include the following additional insured language: "The City of Chandler, its agents,
representatives, officers, directors, officials, employees, and volunteers shall be included as an additional insured with
respect to liability arising out of the activities performed by the Company." This endorsement may not contain an
exclusion or limitation of completed operations coverage as regards the additional insured except with respect to the
stated aggregate limits of liability. The policy may not exclude the explosion/collapse/underground (“xcu”) hazard.
11.2.2 Automobile Liability. Bodily Injury and Property Damage for any owned, hired, and non-owned vehicles used
in the performance of work under this Agreement.
Combined Single Limit (CSL)
$1,000,000
The policy must contain an “MCS-90” endorsement providing for clean-up of pollution conditions arising from
transported product, if the work performed under the Agreement requires the transportation of any Hazardous
Substances by motor vehicle. The policy must also be endorsed to include the following additional insured language:
"The City of Chandler its agents, representatives, officers, directors, officials, employees, and volunteers shall be
included as an additional insured with respect to liability arising out of the activities performed by Company, including
automobiles owned, leased, hired, or borrowed by Company ".
11.2.3 Worker's Compensation and Employers' Liability.
Workers' Compensation
Statutory
Employers' Liability
Each Accident
$100,000
Disease – Each Employee
$100,000
Disease – Policy Limit
$500,000
Policy must contain a waiver of subrogation against the City of Chandler.
11.2.4 Pollution Liability.
Per Occurrence
$10,000,000
Annual Aggregate
$10,000,000
The policy must be endorsed to include the following additional insured language: "The City of Chandler its
agents, representatives, officers, directors, officials, employees, and volunteers shall be included as an additional
insured with respect to liability arising out of the activities performed by Company." The policy must include
coverage for cleanup of sudden or accidental pollution conditions arising from the Wireless Facilities and
Communications Equipment, as defined in the Agreement; cleanup of new conditions arising from Company's
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 13 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
operations and use of the Site under this Agreement; and third-party claims for on and off-site bodily injury and
property damage. Company warrants that any retroactive date under the policy shall precede the effective date of
this Agreement; and that either continuous coverage will be maintained or an extended discovery period will be
exercised for a period of two (2) years beginning at the time work under this Agreement is completed.
11.2.5 Telecommunications, Media & Technology Errors & Omissions including Network Security & Privacy
Liability Insurance (Cyber).
Per Claim and Aggregate
$10,000,000
The policy must cover professional misconduct or lack of ordinary skill for those positions defined in the Scope of
Services of this Agreement. In the event that the professional liability insurance required by this Agreement is
written on a claims-made basis, Agreement warrants that any retroactive date under the policy shall precede the
effective date of this Agreement; and that either continuous coverage will be maintained or an extended discovery
period will be exercised for a period of two (2) years beginning at the Effective Date of this Agreement. If such
insurance is maintained on an occurrence form basis, Company must maintain such insurance for an additional
period of one (1) year following termination or expiration of this Agreement. If such insurance is maintained on a
claims-made basis, Company must maintain such insurance for an additional period of three (3) years following
termination or expiration of this Agreement. If Company contends that any of the insurance it maintains pursuant
to other sections of this clause satisfies this requirement (or otherwise insures the risks described in this section),
Company must provide proof of same. The insurance must provide coverage for the following risks: (i) Liability
arising from theft, dissemination and / or use of confidential information (a defined term including but not limited to
bank account, credit card account, personal information such as name, address, social security numbers, etc.
information) stored or transmitted in electronic form; (ii) Network security liability arising from the unauthorized
access to, use of or tampering with the System including hacker attacks, inability of an authorized third party, to
gain access to your services including denial of service, unless caused by a mechanical or electrical failure; (iii)
Liability arising from the introduction of a computer virus into, or otherwise causing damage to, a customer’s or
third person’s computer, the System, network or similar computer related property and the data, software, and
programs thereon.
11.3
Additional Insurance Requirements. The policies are to contain, or be endorsed to contain, the following
provisions: Company’s insurance coverage must be primary insurance and non-contributory with respect to the
obligations that Company has undertaken under this Agreement. The policies must contain a severability of interest
clause and waiver of subrogation against the City, its officers, officials, agents, volunteers, and employees, for losses
arising from work performed by the Company under this Agreement.
11.4
Notice of Cancellation. Upon receipt of notice from its insurer(s), Company must provide thirty (30) days prior
written notice of cancellation to the City. Such notice must be sent directly to the addresses listed below and must be sent
by first class mail.
City of Chandler
Attention: Development Services Department
P.O. Box 4008, Mail Stop 405
Chandler, Arizona 85244-4008
Phone: (480) 782-3000
Email: tuf@chandleraz.gov
With a copy to:
Office of the City Attorney
Attention: Risk Management
175 South Arizona Avenue
P.O. Box 4008 Mail Stop 602
Chandler, Arizona 85244-4008
Phone: (480) 782-4640
Fax: (480) 782-4652
Email: legal.notices@chandleraz.gov
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 14 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
11.5
Acceptability of Insurers. Insurance is to be placed with insurers duly licensed or approved unlicensed
companies in the State of Arizona and with an "A.M. Best" rating of not less than A-VII. City in no way warrants that the
above-required minimum insurer rating is sufficient to protect Company from potential insurer insolvency.
11.6
Verification of Coverage. Company must furnish City with certificates of insurance (ACORD form or equivalent
approved by City) as required by this Agreement. The certificates for each insurance policy are to be signed by a person
authorized by that insurer to bind coverage on its behalf. All certificates and endorsements are to be received and
approved by City before work commences. Each insurance policy required by this Agreement must be in effect at or prior
to commencement of work under this Agreement and remain in effect for the duration of the Agreement. Failure to
maintain the insurance policies as required by this Agreement or to provide evidence of renewal is a material breach of
this Agreement. All certificates required by this Agreement must be sent directly to the City of Chandler Development
Services Department with a copy to Risk Management as the addresses listed in Section 11.4. The Agreement number
and description are to be noted on the certificate of insurance. At City’s request, Company must make certified copies of
all insurance policies required by this Agreement available for City’s review through a representative and at Company’s
most proximate location.
11.7
Contractors. Company must require all contractors and subcontractors to obtain and maintain substantially the
same coverage with substantially the same limits as required of Company and must name the City of Chandler its agents,
representatives, officers, directors, officials, employees, and volunteers as an additional insured. Notwithstanding the
above, contractor’s limits of liability must not be less than $1,000,000 per occurrence, $2,000,000 aggregate.
11.8
Approval. Any modification or variation from the insurance requirements in this Agreement must have prior
approval from the Office of the City Attorney, whose decision will be final. Such action will not require a formal contract
amendment, but may be made by administrative action.
11.9
Indemnity. In addition to all other indemnities and other obligations hereunder, to the fullest extent permitted by law,
throughout the term of this Agreement or any and all Permits and until all obligations and performances under or related to this
Agreement are satisfied and all matters described in this paragraph are completely resolved, Company and all other persons
using, acting, working or claiming through or for Company (if they or their subcontractor, employee or other person or entity
hired or directed by them participated in any way in causing the claim in question) shall jointly and severally indemnify, defend
and hold harmless City and all other parties required to be named as additional insureds under this Section 11 (“Additional
Insureds”) for, from and against any and all claims or harm related to Company’s use of the Site or the rights granted to
Company with respect to the Site or Company’s exercise of its rights under this Agreement (the “Indemnity”). Without
limitation, the Indemnity shall include and apply to any and all allegations, demands, judgments, assessments, taxes,
impositions, expenses, proceedings, liabilities, obligations, suits, actions, claims (including without limitation claims of personal
injury, bodily injury, sickness, disease, death, property damage, destruction, loss of use, financial harm, or other impairment),
damages, losses, expenses, penalties, fines or other matters (together with all reasonable attorney fees, court costs, and the
cost of appellate proceedings and all other costs and expenses of litigation or resolving the claim) that may arise in any
manner out of Company’s use of the Site or other property pursuant to this Agreement or any and all Permits, or any actions,
acts, errors, mistakes or omissions relating to work or services in the performance of or related to this Agreement by
Company, including without limitation any injury or damages or cause of action claimed or caused by any employees,
contractors, subcontractors, tenants, subtenants, agents or other persons upon or using the Site or surrounding areas related
to Company’s exercise of its rights under this Agreement, except to the extent caused by City or any other Additional Insured
or anyone for whose mistakes, errors, omissions or negligence City may be liable. Notwithstanding the foregoing, the
Indemnity does not apply to: (i) Claims arising from the sole negligence or intentionally wrongful acts of City; or (ii) Claims that
the law prohibits from being imposed upon the indemnitor.
11.10
Risk of Loss. Company assumes the risk of any and all loss, damage or claims related to Company’s use of the Site
or other property of City, Company or third parties throughout the term of this Agreement and the term(s) of any and all
Permits. Company must be responsible for any and all damage to its property and equipment related to this Agreement unless
caused by the negligence of the City or its agents or contractors.
11.11
Insurance to be Provided by Others. Company must cause its contractors or other persons occupying, working on
or about, or using the Site pursuant to this Agreement to be covered by their own or Company’s insurance as required by this
Agreement. The required policy limits for commercial general liability insurance provided by such persons must be $1,000,000
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 15 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
for each occurrence, $1,000,000 for products and completed operations annual aggregate, and $2,000,000 general aggregate
limit per policy year. This paragraph does not apply to persons who do not actually perform physical labor at the Site (such as
Company’s consulting design engineers).
SECTION 12. ASSIGNABILITY AND TRANSFERABILITY
12.1
Assignability. This Agreements and all permits are not assignable by Company (and any assignment shall be void
and vest no rights in the purported assignee) unless the assignment is made in strict compliance with the following.
12.2
Assignments Affected. Every assignment of any of Company’s interest in the Right-of-way, any Agreement, any
Permit, or any of Company’s rights or interests hereunder is prohibited unless Company first receives from City notice of City’s
consent to the assignment, City’s consent to such assignment not to be unreasonably withheld, conditioned, or delayed. All
references in this Agreement to assignments by Company or to assignees shall be deemed also to apply to all of the following
transactions, circumstances and conditions and to all persons claiming pursuant to such transactions, circumstances and
conditions: (i) Any voluntary or involuntary assignment, conveyance or transfer of Company’s right to use the Right-of-way
under this Agreement or any interest or rights of City under this Agreement, in whole or in part; (ii) Any voluntary or involuntary
pledge, lien, mortgage, security interest, judgment, claim or demand, whether arising from any contract, any agreement, any
work of construction, repair, restoration, maintenance or removal, or otherwise affecting Company’s rights to use the Right-of-
way (collectively “Liens”); (iii) Any assignment by Company of any interest in any Agreement or Permit for the benefit of
creditors, voluntary or involuntary; (iv) A Company Insolvency; (v) The occurrence of any of the foregoing by operation of law or
otherwise; (vi) The occurrence of any of the foregoing with respect to any assignee or other successor to Company.
12.3
Pre-approved Assignments. Subject to certain conditions hereafter stated, City hereby consents to certain
assignments (the “Pre-approved Assignments”). Only the following assignments are Pre-approved Assignments:
12.3.1 Complete Assignment of Agreement and Permits. Company’s complete assignment of all of Company’s
rights and Interests in the Right-of-way and approved Agreements, and issued Permits to a single assignee who meets all of
the following requirements, as determined by City in City’s reasonable discretion (a “Qualified Operator”): (i) The assignee has
experience, management, credit standing and financial capacity and other resources equal to or greater than Company’s and
adequate to successfully perform the obligations set forth herein; (ii) The assignee is experienced in the management and
operation of similar projects; (iii) The assignee assumes all of Company’s obligations herein; (iv) The assignee has a net worth
of not less than Fifty Million and No/100 Dollars ($50,000,000.00).
12.3.2 Stock Transfers. The transfer of publicly traded stock, regardless of quantity.
12.3.3 Merger. The merger or consolidation of Company with another entity that is a Qualified Operator.
12.3.4 Common Ownership Transfer. Company’s complete assignment of all of Company’s rights and interests in
the Right-of-way and approved Agreements to a single assignee who is and remains a majority owned subsidiary of Company’s
owner as of the date of the Agreement (or a majority owned subsidiary of a majority owned subsidiary of Company’s owner as
of the date of the Agreement), or a majority owned subsidiary of Company.
12.4
Limitations on Assignments. City’s consent to any assignment, including without limitation, Pre-approved
Assignments, is not effective until the following conditions are satisfied: (i) Except for the sale of stock, Company must provide
to City a summary of the transaction assigning its interests; and (ii) Each assignee must execute an assumption of any and all
Agreements and Permits to be assigned in the form attached as Exhibit E; and (iii) Each Pre-approved Assignment must
satisfy all other requirements of this Agreement pertaining to assignments.
12.5
Assignment Remedies. Any assignment without City’s consent shall be void and shall not result in the assignee
obtaining any rights or interests. City may, in its sole discretion and in addition to all other remedies available to City under this
Agreement or otherwise, and in any combination, terminate any and all Agreements and Permits; collect Base Fee from the
assignee and/or declare the assignment to be void, all without prejudicing any other right or remedy of City this Agreement. No
cure or grace periods may apply to assignments prohibited under this Agreement or to enforcement of any provision under this
Agreement against an assignee who did not receive City's consent.
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 16 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
12.6
Effect of Assignment. Prior to any assignment, each assignee must execute an assumption of each Agreement and
Permit in the form attached hereto as Exhibit E. No action or inaction by City shall be deemed a waiver of the prohibition on
assignments or any other provision herein, or the acceptance of the assignee, Company or occupant as Company, or a release
of Company from the further performance by Company of the provisions of this Agreement, any agreement or any permit.
Consent by City to an assignment shall not relieve Company from obtaining City’s consent to any further assignment. No
assignment may release Company from any liability hereunder.
12.7
Enforceability after Assignment. No consent by City may be deemed to be a novation. City’s consent to any
assignment does not in any way expand or modify the terms set forth this Agreement or waive, diminish or modify any of City’s
rights or remedies under any agreement or any permit. The terms set forth in this Agreement will be enforceable against
Company and each successor, partial or total, and regardless of the method of succession, to Company’s interest hereunder.
Each successor having actual or constructive notice of this Agreement, any agreement or permit will be deemed to have agreed
to the preceding sentence.
12.8
Grounds for Refusal. Except for the Preapproved Assignments, no assignment of any agreement or permit by
Company is contemplated or bargained for. Without limitation, City has the right to impose upon any consent to assignment
such conditions and requirements as City may deem appropriate.
12.9
Consent to Assignments Company must attach to each Pre-approved Assignment a copy of Company’s notice to
City of the Pre-approved Assignment and other required documents, Company must attach to each other assignment, a copy of
City's notice to Company of City's consent to the assignment. This Agreement will continue to be enforceable according to its
terms in spite of any provisions of any documents relating to an assignment.
12.10
Assignment Fee. Company must pay to City in advance the sum of Five Hundred Dollars ($500) as a nonrefundable
fee for legal, administrative and other expenses related to every Pre-approved Assignment of an Agreement (including any
related Site Permits (other than the sale of publicly traded stock) or to any request for a consent to assignment, whether or not
City grants such request.
SECTION 13. USE AREA
13.1
Authority to Use Right-of-Way. Upon approval of this Agreement, City grants to Company permission to install
Wireless Facilities in the Right-of-Way upon issuance of all required Permits as set forth below.
13.2
Limitations. Notwithstanding anything herein to the contrary, the Use Area includes and is limited to only certain
area that Company is permitted to use and occupy as depicted in Exhibit B. The Use Area will be clearly defined by the
Boundary Plan in the Preliminary Drawings or Construction Drawings.
13.3
Use Area Boundary. The Use Area excludes other parts of the Public Property and all other land. Company
must not occupy or use any other portion of the Public Property or adjoining lands. An approved Agreement or an issued
Permit does not allow any use of land outside the Use Area. If any portion of Company’s work, improvement, or
equipment is to be located on other land, such work, improvements, and equipment are prohibited unless Company first
obtains from the owner of said land (including City, if applicable) an agreement allowing such work, improvements, or
equipment (a “Supplemental Parcel Agreement”).
13.4
Power and Telephone Service. Nothing herein grants permission for any portion of the power, telephone or
other service routes, if any. Use of the Public Property or utility easements for these purposes, if any, is governed by other
City laws, rules, and policies, and by the Agreement or franchise between City and electrical, telephone, and other service
Companies. Any proposed service entrance section, electrical meter pedestal, vault or other equipment and any
associated conduits required by power, telephone, or other service Companies to be constructed by the Company to
provide such services to the Site must be clearly indicated on the Site Construction Drawings to coordinate with and avoid
conflicts with other users.
13.5
Rights in Adjacent Land. Company's interests granted by this Agreement are expressly limited to the real
property defined as the “Use Area” in an issued Permit. Without limitation, in the event any public right-of-way or other
public or private property at or adjacent to the Use Area is owned, dedicated, abandoned, or otherwise acquired, used,
improved, or disposed of by City, such property will not accrue to Company but will be City’s only.
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 17 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
13.6
Variation in Area. In the event the Use Area consists of more or less than any stated area, Company's
obligations hereunder will not be increased or decreased.
13.7
Condition of Title. Company must not amend, modify, terminate, or otherwise change the Site Documents or
create new Site Documents without the City’s written approval.
13.7.1 Title. City does not warrant title or rights to use the Use Area or any other property.
13.7.2 Indemnity. Company must pay, indemnify, defend, and hold harmless the City and its agents and
representatives of, from and against any and all claims, demands, damages, expenses, interest or penalties of any kind or
nature whatsoever, including reasonable attorneys', arbitrators' and experts' fees and court costs that arise from or relate
to Company’s failure to comply with the Site Documents except to the extent caused by City’s negligence or willful
misconduct.
13.8
Condition of Use Area. The Use Area is made available in an “as is” condition without any express or implied
warranties of any kind, including without limitation any warranties or representations as to their condition or fitness for any
use or particular purpose.
13.9
No Real Property Interest. Notwithstanding any provision hereof to the contrary, and notwithstanding any
negotiation, correspondence, course of performance or dealing, or other statements or acts by or between the parties,
Company's rights herein are limited to use and occupation of the Use Area for the Permitted Uses. Company's rights in
the Use Area are limited to the specific rights created herein as an approved Agreement.
13.10
Reserved Right and Competing Users and Activities. Notwithstanding anything herein to the contrary, City
specifically reserves to itself and excludes from any issued Permit a non-exclusive delegable right (the “Reserved Right”)
over the entire Use Area for all manner of real and personal improvements and for streets, sidewalks, trails, landscaping,
utilities, and every other land use of every description, provided the foregoing does not unreasonably interfere with
Company’s use of the Use Area. Without limitation:
13.10.1 Competing Users. Company accepts the risk that City and others (the “Competing Users”) may now or
in the future install their facilities in the Use Area in locations that make unoccupied parts of the Public Property
unavailable for Company’s use.
13.10.2 Competing Activities. Company accepts the risk that there may now or in the future exist upon the Use
Area all manner of work and improvements upon the Use Area (the “Competing Activities”). The Competing Activities
include without limitation any and all laying construction, erection, installation, use, operation, repair, replacement,
removal, relocation, raising, lowering, widening, realigning or other dealing with any or all of the following, whether above,
upon or below the surface of the Use Area and whether occasioned by existing or proposed uses of the Public Property or
existing or proposed uses of adjoining or nearby land: (i) All manner of streets, alleys, sidewalks, trails, ways, traffic
control devices, subways, tunnels, trains and gates of every description, and all manner of other transportation facilities
and their appurtenances; (ii) All manner of pipes, wires, cables, conduits, sewers, pumps, valves, switches, conductors,
connectors, poles, supports, access points and guy wires of every description, and all manner of other utility facilities and
their appurtenances; (iii) All manner of canals, drains, bridges, viaducts, overpasses, underpasses, culverts, markings,
balconies, porches, overhangs and other encroachments of every description and all manner of other facilities and their
appurtenances: (iv) All other uses of the Public Property that City may permit from time to time.
13.11
City’s Rights Cumulative. All of City’s Reserved Rights under various provisions of this Agreement and any and
all issued Permits will be cumulative to each other.
13.12
Use Priorities. This Agreement does not grant to Company or establish for Company any exclusive rights or
priority in favor of Company to use the Use Area. Company must not obstruct or interfere with or prevent any Competing
User from using the Use Area. City agrees that Competing Users may not obstruct or interfere with or prevent Company
from using the Use Area.
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 18 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
13.13
Regulation. City reserves the full authority to regulate use of the Use Area and to resolve competing demands
and preferences regarding use of the Use Area and to require Company to cooperate and participate in implementing
such resolutions. Without limitation, City may take any or all of the following into account in regulating use of the Use
Area: (i) all timing, public, operational, financial and other factors affecting existing and future proposals, needs and plans
for Competing Activities; and (ii) all other factors City may consider relevant, whether or not mentioned in this Agreement
and any and all issued Permits; (iii) differing regulatory regimes or laws applicable to claimed rights, public benefits,
community needs and all other factors relating to Competing Users and Competing Activities.
13.14
Communications Equipment Relocation. Upon ninety (90) days’ notice from City and in connection with the
relocation of the associated SRP transmission pole, Company may temporarily or permanently relocate or otherwise
modify the Communications Equipment (the “Relocation Work”) as follows: (i) Company must perform the Relocation
Work at its own expense when required by the City Manager; and (ii) The Relocation Work includes all work determined
by City to be necessary to accommodate Competing Activities, including without limitation temporarily or permanently
removing, protecting, supporting, disconnecting, or relocating any portion of the Communications Equipment; and (iii) City
may perform any part of the Relocation Work that has not been performed within the allotted time. Company must
reimburse City for its actual costs in performing any Relocation Work. City has no obligation to move Company’s, City’s or
others’ facilities, but may assist Company to find a new location and to expedite the approval process; and (iv) City
reserves the right to use any of Company’s Facilities that are abandoned in place or that are not relocated on City’s
request; and (v) all Relocation Work is subject to and must comply with this Agreement; and (vi) if City and Company
cannot mutually agree on an alternate location, this Agreement will terminate as set forth in section 15.1; and (vii)
Communication Equipment relocated to an acceptable location must be reflected by an amendment to this Agreement and
subject to City Council approval.
13.15
Interference/Disruption by Competing Users. Neither City, nor any agent, contractor, or employee of City will
be liable to Company, its customers nor third parties for any service disruption or for any harm caused them or the
Communications Equipment due to Competing Users or Competing Activities.
.
13.16
Emergency Disruption by City. City may remove, alter, tear out, relocate or damage portions of the
Communications Equipment in the case of fire, disaster, or other emergencies as the City Manager deems such action to
be reasonably necessary under the circumstances. City will make reasonable efforts to contact the Company’s Network
Operations Center at (800) 621-2622. In such event, neither City, nor any agent, contractor or employee of City may be
liable to Company or its customers or third parties for any harm so caused to them or the Communications Equipment.
When practical, City may consult with Company in advance to assess the necessity of such actions and to minimize
damage or disruption of operation of the Communications Equipment to the extent reasonably practical under the
circumstances. City will inform Company after such action is taken. The terms and condition for Relocation Work apply for
Company’s repair for the emergency disruption of Company’s Wireless Facilities.
13.17
Public Safety. If the Communications Equipment or any other Company equipment, improvements, or activities
present any immediate hazard or impediment to the public, to City, to City’s equipment or facilities, to other improvements
or activities within or outside of the Use Area, or to City’s ability to safely and conveniently operate the Public Property or
perform City’s utility, public safety, or other public health, safety, and welfare functions, Company must immediately
remedy the hazard, comply with City requests to secure the Public Property, and otherwise cooperate with City at no
expense to City to remove any such hazard or impediment. Company’s work crews must report to the Use Area within
four (4) hours of any request by City under this section. The City may impose violation use fees and civil sanctions as
provided in C.C.C. chapter 46 for Company’s failure to comply with this section, this Agreement, or City Code.
13.18
Third Party Permission. Company’s Wireless Facilities must not be located on Third Party Areas without the
third party’s written permission. This Agreement may be suspended for Company’s failure to obtain the third party’s
written permission to use Third Party Areas.
SECTION 14. PROPRIETARY INFORMATION
14.1
Notice to Company. If City receives a request to disclose information identified by Company as Proprietary
Information, City will notify Company of such request as provided in section 19.15 to permit Company at Company’s cost
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 19 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
a reasonable opportunity to prevent the disclosure of the requested information. If the City does not receive a court order
to prevent disclosure within five business days from the date of the notice, the City will disclose the requested information.
14.2
Public Records Law. Notwithstanding any provision in this Agreement, Company acknowledges and understands
that City is a political subdivision of the State of Arizona and is subject to the disclosure requirements of Arizona’s Public
Records Laws (A.R.S. § 39-121 et. seq.).
SECTION 15. ABANDONMENT
15.1
Abandonment; Removal of Facilities. In the event that the use of a substantial part of any of the Wireless
Facilities is discontinued for any reason for a continuous period of two (2) years for reasons other than Force Majeure, or
in the event such Wireless Facilities or property has been installed in any Public Property without complying with the
requirements of this Agreement, or this Agreement has terminated or been revoked, Company must promptly, upon being
given 60 days’ notice from the City, begin removal of such Wireless Facilities and related appurtenances from the Public
Property other than such underground facilities which the City may permit to be abandoned in place. In the event of such
removal, Company must promptly restore the Public Property or other area from which such property has been removed
to a condition satisfactory to the City subject to the City’s customary practice to review upon request of Company. As a
minimum, Company must restore the Public Property to a condition as existed prior to the removal of the structure or
property.
15.2
Permanent Abandonment. The Wireless Facilities and any other property of Company remaining on the Public
Property without the consent of the City 180 days after the revocation of this Agreement will be at the option of the City
considered permanently abandoned. Any Company property permitted to be abandoned in place will be abandoned
consistent with C.C.C. §§ 46-2.9, 46-8.12(K), the Utility Permit Manual, Transportation and Development Policy TDP-275,
and any other applicable law.
SECTION 16. AGREEMENT REVOCATION
16.1
Revocation for Nonuse. Not later than 24 months after the date that the City issues a wireless agreement under
C.C.C. chapter 46, or an amended video service agreement under C.C.C. chapter 46, Company must offer and provide
wireless services unless the Company cannot meet the requirement for reasons beyond the Company’s control as provided in
Section 19.22. If Company fails to comply with this section, the City may revoke this Agreement.
16.2
Revocation for Cause. In addition to C.C.C. chapter 46 and subject to Section 16.4 below, this Agreement may,
after public hearing and notice and an opportunity to cure pursuant to Section 16.3 below, be revoked, altered, or
suspended by the City as it deems necessary on any of the following grounds: (i) failure to file and maintain any faithful
letters of credit, insurance coverage or pay Agreement fees as required under this Agreement; (ii) failure to comply with
applicable law regarding the operation of the Wireless Facilities, this Agreement, or the appropriate regulatory authority;
(iii) violation of material terms of this Agreement; (iv) fraud by Company, in its conduct or relations under the Agreement;
(v) willful or grossly negligent repeated violations of this Agreement; (vi) failure to comply with any federal, state, local or
administrative order, law, permit regulation or consent decree as such may apply to Company’s activities, as
contemplated in this Agreement; and (vii) permanent or temporary suspension for a period greater than 180 calendar days
by the United States or the State of Arizona for any authorizations for Company to own, operate, maintain, or construct a
Wireless Facilities.
16.3
Cure Period. If any of the foregoing events occur, Company will be given a period of 60 days after receipt of a
written notice of default from the City to cure the default before the hearing described in Section 16.4. The provisions of
Section 16.4 apply: (i) if Company fails to cure the event of default within the 60 day period; or (ii) when an event of a
default cannot be cured within the 60 day period and Company fails to begin and diligently pursue the cure.
16.4
City Determination; Public Hearing. If Company fails to remedy its default as provided for in Section 16.2, City
will notify Company of that determination and will state the major causes and reasons supporting the determination.
Company will be granted ten days to respond to the determination. The City will consider the response of Company, if
any, and may then terminate, postpone for a period, or proceed with the revocation, alteration, or suspension process. If
the City proceeds with the revocation, alteration, or suspension process, or reactivates a postponed proceeding, a written
statement of revocation, alteration, or suspension will be served upon Company stating the principal reasons for such
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 20 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
action and a copy of the statement must be sent by certified U.S. mail, return receipt requested, to Company as provided
in Section 19.15. The City Council may take final action on the revocation, alteration, or suspension of this Agreement
after the public hearing.
16.5
Removal of Facilities. Upon revocation of this Agreement, the City may declare a forfeiture, whereupon all
rights and privileges of Company under this Agreement will immediately be divested without a further act upon the part of
Company, and Company must remove its structures or property from the Public Property and restore the Public Property
to the condition as existed prior to the removal of the structure or property. Upon Company’s failure to do so within six
months of revocation, the City may perform the work and collect the City’s cost from Company. At the City’s option,
Company may abandon structures or property in place as provided in this Agreement. At a minimum, the Public Property
must be restored to a condition as existed before the removal of the structures or property.
SECTION 17. RADIO FREQUENCY REQUIREMENTS; CITY EMPLOYEE SAFETY
17.1
RF Compliance Requirements. Company must document, report, and confirm its compliance with FCC Radio
Frequency Exposure Guidelines (FCC OET Bulletin 65) and all other applicable radio frequency emissions laws and
regulations in effect from time to time (collectively, the “FCC Rules”). Company must cause its senior internal engineer
responsible for compliance with the FCC Rules to deliver to City a written letter (the “RF Letter”), as follows: (i) The RF
Letter must attest that Company’s operation of the Communications Equipment is in compliance with the FCC Rules. A
statement from Company declaring exemption from reporting to FCC is not acceptable to comply with the requirements of
this paragraph; and (ii) Company must maintain records of radio frequency measurements and Communications
Equipment performance in accordance with the FCC Rules; and (iii) Company must show its compliance with the FCC
Rules.
17.2
Prior Notice for Work Near Wireless Facilities. Prior to performing any work on the Site, the City’s employee
will contact the Network Operations Center (the NOC”) whose information must be located on the ground level
Communications Equipment or on the pole. The City’s employee will identify himself or herself as an employee of City
and will request deactivate the RF signals at the Site for a specified period. Upon completion of the work, the City’s
employee will contact the NOC to inform Company that the Site may activate the RF signals.
17.3
Kill Switch. Company must provide access to a “kill switch” for the Wireless Facilities and Communication
Equipment located at the Site for use by the City's employees, agents, or representatives.
SECTION 18. VIOLATION USE FEES AND PUBLIC SAFETY VIOLATIONS.
18.1
Violation Use Fee. Company agrees to pay Violation Use Fees as provided in C.C.C. chapter 46 when
Company breaches the terms of this Agreement and fails to cure the breach after the applicable notice and cure period.
The City may elect to draw upon the letter of credit required in Section 8 to collect the Violation Use Fees. For continuing
violations within a 24-hour period, each calendar day is considered a separate period for purposes of recovery of Violation
Use Fees. Company’s payment of Violation Use Fees does not excuse Company’s breach of this Agreement or limit the
City’s legal or equitable remedies.
18.2
Enforcement of Violation Use Fees. The City Manager may issue a warning for Company’s first violation under
this section. The City Manager will issue notice to the Company as listed in Section 19.15. If City determines that
Company is liable for Violation Use Fee, the City assesses the Violation Use Fee by setting forth the nature of the
violation and the amount of the assessment. Within ten days of the notice of violation date, Company may appeal the
violation as provided in C.C.C. chapter 46 or must pay the Violation Use Fee.
18.3
Public Safety Violations; Civil Sanctions. In addition to imposing a Violation Use Fee, as provided in C.C.C.
chapter 46 the City Manager may issue notices of violation of this Agreement and may take those measures necessary to
promote, preserve, and protect public health, safety, and welfare within the public right-of-way. The City Manager may
issue a warning for Company’s first violation under this section. The City Manager will issue notice to the Company as
listed in Section 19.15, and Company’s violation may result in a civil sanction as provided in C.C.C. chapter 46. For
continuing violations within a 24-hour period, each calendar day is considered a separate period for civil sanctions.
18.4
Civil Action for Violations. These remedies are cumulative and the City may proceed under one or more
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 21 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
remedies. Any party who causes, permits, facilitates, or aids or abets any violation of any provision of this section or who
fails to perform any act or duty required by this section is subject to a civil sanction as provided in C.C.C. chapter 46.
SECTION 19. GENERAL CONDITIONS.
19.1
Agreement Administrator and Enforcement. In all matters of Agreement administration, the City Manager has
authority to determine Company’s compliance with the terms and provisions of the Agreement, and in the event of non-
compliance, to exercise any or all of the remedies provided in this Agreement and to the full extent provided by law.
19.2
Right of Inspection of Construction. The City may inspect all construction or installation work performed
subject to the provisions of this Agreement and to make such tests as it deems necessary to ensure compliance with the
terms of this Agreement and other pertinent provisions of law.
19.3
Right of Intervention. The City may intervene in any suit or proceeding related to or arising out of this
Agreement to which Company is party, and Company may not oppose such intervention by the City.
19.6
Compliance With Laws. Company must comply with all federal, state, and City ordinances, resolutions, rules,
and regulations related to the rights and duties granted Company under this Agreement.
19.7
No Recourse. Company has no recourse whatsoever against the City or its officials, boards, commissions,
agents, or employees for any loss, costs, expense, or damage arising out of any provision, requirement, enforcement, or
defect in this Agreement.
19.8
Non-Enforcement by the City. Company will not be relieved of its obligation to comply with any of the
provisions of this Agreement by reason of the City’s failure to insist upon or to seek compliance with any term and
condition.
19.9
Agreement Documents. Company must submit to the City the letter of credit and insurance certificates as
required by the Agreement within 30 days of the Effective Date. The Agreement granted is not legally operative until all of
Company’s requirements in this Section are completed. In the event Company does not timely satisfy these, this
Agreement will be deemed null and void unless Company’s time period to comply is extended by the Council.
19.10
Survival of Warranties. Company’s representations and warranties made as part of the grant of this Agreement
or any permit issued under this Agreement survive termination or revocation of this Agreement.
19.11
Right of Cancellation. Company acknowledges that this Agreement is subject to cancellation by the City under
A.R.S. § 38-511.
19.12
Covenant Against Contingent Fees. Company warrants that no person has been employed or retained to
solicit or secure this Agreement upon an agreement or understanding for a commission, percentage, brokerage, or
contingent fee; and that no member of the City Council or any employee of the City has any interest, financially or
otherwise, in this Agreement. For breach or violation of this warranty, the City has the right to annul this Agreement
without liability, or at its discretion to deduct from the Agreement price or consideration, the full amount of such
commission, percentage, brokerage, or contingent fee.
19.13
Independent Contractor. Any provision in this Agreement that may appear to give the City the right to direct
Company or Company the right to direct the City as to the details of accomplishing the work or to exercise a measure of
control over the work means that the party will follow the wishes of the other party as to the results of the work only.
19.14
Governing Law; Jurisdiction. Arizona law governs this Agreement, both as to interpretation and performance.
Any action at law, suit in equity, or judicial proceeding to enforce this Agreement must be instituted in Maricopa County,
Arizona courts.
19.15
Delivery, Procedure of Notices and Communications. All notices, consent, or other communication under this
Agreement must be in writing and: (i) delivered in person; or (ii) deposited in the United States mail, postage prepaid,
registered or certified mail, return receipt requested; or (iii) deposited with any commercial air courier or express service
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 22 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
and addressed as follows:
To City:
To Company:
City of Chandler
Cellco Partnership,
P.O. Box 4008, Mail Stop 405
d/b/a Verizon Wireless
Chandler, Arizona 85244-4008
180 Washington Valley Road
Attention: Development Services
Bedminster, New Jersey 07921
Phone: (480) 782-3000
Attention: Network Real Estate Site: PHO Rubenstein
e-mail: tuf@chandleraz.gov
Phone: 800 264-6620
With a copy to:
City of Chandler
Office of the City Attorney
P.O. Box 4008, Mail Stop 602
Chandler, Arizona 85224-4008
Notice will be deemed received at the time it is personally served, on the second day after its deposit with any commercial
air courier or express service or, if mailed, three (3) calendar days after the notice is deposited in the United States mail
as above provided. Any time period stated in a notice will be computed from the time the notice is deemed received
unless noted otherwise. Any party may change its mailing address, phone number, email address or the person to
receive notice by notifying the other party as provided in this Section. Notices sent by electronic mail must also be sent by
regular mail to the recipient at the above address. This requirement for duplicate notice is not intended to change the
effective date of the notice sent by electronic mail.
19.16 Organization/Employment Disclaimer. This Agreement is not intended to constitute, create, give rise to, or
otherwise recognize a joint venture, agreement, or relationship, partnership, or formal business organization of any kind,
and the rights and obligations of the Parties will be only those expressly set forth in this Agreement.
19.17 Entire Agreement; Amendment; Waivers. This Agreement, and the below listed exhibits which are
incorporated herein by this reference and are attached and/or on file at the City and available for inspection, constitute
the entire agreement between the City and Company with respect to the transactions contemplated therein and
supersede all prior negotiations, communications, discussions and correspondence, whether written or oral, concerning
the subject matter hereof. No supplement, modification, or amendment of any term of this Agreement will be deemed
binding or effective unless executed in writing by the Parties. No waiver of any of the provisions of this Agreement will be
deemed, or will constitute, a waiver of any other provisions, whether or not similar, nor will any waiver constitute a
continuing waiver. No waiver is binding unless expressly executed in writing by the Party making the waiver.
Exhibit “A” – Site Drawings
Exhibit “B” – Use Area or Legal Description
Exhibit “C” – Chandler Department Approval Form
Exhibit “D” – Form Letter of Credit
Exhibit “E” – Assumption Wireless Use Agreement
Exhibit “F” – Extension of Wireless Use Agreement
19.18
Right of Parties. Nothing in this Agreement, whether express or implied, is intended to confer any right or
remedies under or by reason of this Agreement on any persons other than the Parties to this Agreement and their
respective successors and permitted assigns, nor is anything in this Agreement intended to relieve or discharge any
obligation or liability of any person who is not a party to this Agreement, nor will any provisions in this Agreement give any
persons not a party to this Agreement any right of subrogation or action over or against any Party to this Agreement.
19.19
Construction. This Agreement is the result of negotiations between the Parties, none of whom has acted under
any duress or compulsion, whether legal, economic or otherwise. Accordingly, the terms and provisions of this
Agreement will be construed in accordance with their usual and customary meanings. The Parties hereby waive the
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 23 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
application of any rule of law that otherwise would be applicable in connection with the construction of this Agreement that
ambiguous or conflicting terms or provisions should be construed against the party who (or whose attorney) prepared the
executed Agreement or any earlier draft of the same. Unless the context of this Agreement otherwise clearly requires,
references to the plural include the singular and the singular the plural. The words "hereof,” "herein," "hereunder" and
similar terms in this Agreement refer to this Agreement as a whole and not to any particular provision of this Agreement.
All references to "Sections" herein refer to the sections and paragraphs of this Agreement unless specifically stated
otherwise. The section and other headings contained in this Agreement are inserted for convenience of reference only,
and they neither form a part of this Agreement nor are they to be used in the construction or interpretation of this
Agreement.
19.20
Severability. If any covenant, condition, term, or provision of this Agreement is held to be illegal, or if the
application of this Agreement to any person or in any circumstances to any extent be judicially determined to be invalid or
unenforceable, the remainder of this Agreement or the application of such covenant, condition, term, or provision to
persons or in circumstances other than those to which it is held invalid or unenforceable, must not be affected, and each
covenant, term, and condition of this Agreement is valid and enforceable to the fullest extent permitted by law.
19.21
Cooperation and Further Documentation. Each of the Parties agree to provide the other with such additional
and other duly executed documents as are reasonably requested to fulfill the intent of this Agreement.
19.22
Force Majeure. For the purpose of any of the provisions of this Agreement, neither Company nor the City, as the
case may be, will be considered in breach of or in default of their obligations under this Agreement as a result of the
enforced delay in performance of such obligations due to unforeseeable causes beyond its control and without its fault or
negligence, including, but not limited to: acts of God, acts of the public enemy, acts of the Federal Government, acts of
the Salt River Project, acts of Maricopa County, acts of the State of Arizona or any of its departments, acts of any railroad,
fire, floods, epidemics, strikes, lock outs, freight embargoes, and unusually severe weather; it being the purpose and
intent of this provision that in the occurrence of any such enforced delay, the time for performance of Company’s and the
City’s obligations, as the case may be, will be extended for the period of the enforced delay, provided that the party
seeking the benefit of this provision will have notified the other party in writing of the cause or causes, and requested an
extension for the period of the enforced delay. If notice by the party claiming such extension is sent to the other party
more than 30 days after commencement of the cause, the period of delay will be deemed to commence 30 days prior to
the giving of such notice.
19.23
On-Call Assistance. Company must be available to staff employees of any City department having jurisdiction over
Company’s activities twenty-four (24) hours a day, seven (7) days a week, regarding problems or complaints resulting from
the installation, operation, maintenance, or removal of its Wireless Facilities. City may contact by telephone the control
center operator at telephone number (800) 621-2622 regarding such problems or complaints. In the event of a public
emergency, pursuant to Sections 13.16 and 13.17, the emergency contact can be reached at (800) 621-2622.
19.24
Legal Worker Requirements. A.R.S. § 41-4401 prohibits the City from awarding a contract to any party who fails, or
whose contractors fail, to comply with A.R.S. § 23-214(A) in connection with this Agreement. Therefore, Company and each
contractor it uses warrant their compliance with all federal immigration laws and regulations that relate to their employees and
their compliance with§ 23-214, subsection A in connection with this Agreement. A breach of this warranty will be deemed a
material breach of this Agreement and may be subject to penalties up to and including revocation of the Agreement. City retains
the legal right to inspect the papers of Company’s or contractor’s employees who provide services under this Agreement to
ensure that Company and its contractors comply with this warranty.
19.25
Lawful Presence Requirement. A.R.S. §§ 1-501 and 1-502 prohibit the City from awarding a contract to any natural
person who cannot establish that such person is lawfully present in the United States. To establish lawful presence, a person
must produce qualifying identification and sign a City-provided affidavit affirming that the identification provided is genuine. This
requirement will be imposed at the time of contract award. This requirement does not apply to business organizations such as
corporations, partnerships, or limited liability companies.
19.26
Written Acceptance. Company’s execution of this Agreement constitutes Company’s acceptance of this Agreement
as granted and its agreement to be bound by and to comply with the terms and conditions of this Agreement. Company’s
signature must be acknowledged by Company before a notary public.
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 25 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
EXHIBIT “A”
SITE DRAWINGS
TITLE SHEET
PHO_RUBENSTEIN
TOWN OF GILBERT
COOPER RD & BUCHANAN ST
CHANDLER, AZ 85255
PCS MODIFICATIONS
6/4/2018 6:15 PM
SITE PLAN
6/4/2018 6:15 PM
TOWER ELEVATION
AND TMA
CONFIGURATION
6/4/2018 6:15 PM
Add shrouds to the bottom of the
existing antennas to cover the bottom
fed coax cables. Pain the shrouds to
match the existing antennas.
Proposed equipment should be
mounted behind the existing antennas
and should not protrude above or
below the antennas.
EQUIPMENT DETAILS
6/4/2018 6:15 PM
RF DATA AND
ANTENNA
INFORMATION
6/4/2018 6:15 PM
TMA SPECIFICATIONS
6/4/2018 6:15 PM
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 26 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
EXHIBIT “B”
USE AREA OR LEGAL DESCRIPTION
(If not already included as part of Exhibit A)
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 29 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
INSTRUCTIONS: DEPARTMENT APPROVAL FORM FOR WIRELESS COMMUNICATION FACILITIES IN RIGHT-OF-
WAY
Section I. Department Where Site is to be Located
Requires signature of Department Director or his/her designee of the Department whose manages the facility or public
land/right-of-way where the wireless facility/structure is to be located. For example, if the facility is desired to be located in
the following areas, the corresponding signature is required:
City Property
Department Contact
Community Services/Parks
Mickey Ohland, Park Development and Operation Manager
480-782-2743, mickey.ohland@chandleraz.gov
175 S. Arizona Ave., 4th Floor
Fire Station
Keith Hargis, Assistant Fire Chief
480-782-2161, keith.hargis@chandleraz.gov
151 E. Boston St.
Water/Wastewater Treatment Facility
John Knudson, Public Works Director
480-782-3590, john.knudson@chandleraz.gov
1475 E Pecos Rd.
Public Right-of-Way
Dennis Aust, Development Project Administrator
480-782-3315, dennis.aust@chandleraz.gov
215 E. Buffalo St.
Police Department
William Edel, Police Tech Manager
480-782-4153, william.edel@chandleraz.gov
250 E Chicago St.
The Company and the City Department should agree that the facilities can locate on the property under discussion without
disrupting City operations. This may require an on-site tour to determine if there is an acceptable location. Some general
discussions of aesthetics/screening should also take place, as well as if there are any benefits the Department might
receive such as collocation opportunities. Once a site has been agreed upon, then proceed to get signature for Section II.
Fees for use for that site will be determined through the Use Agreement process once all signatures for the “Chandler
Department Approvals for Wireless Communication Facilities” form have been received and submitted to the City at
Development Services Dept., 215 E. Buffalo St., Chandler, AZ 85225, (480) 782-3315.
Section II. Development Services: Company should be familiar with Chandler City Code Chapter 35, XXII, Section 35-
2209 regarding requirements for Wireless Communications Facilities and show that their plans are in accordance with City
Code.
Planning/Zoning Contact: Development Services Department, 215 E. Buffalo St., One-Stop Shop Front Counter, 480-782-3000 or
Susan Fiala, City Planner, Planning Division, (480) 782-3067, Susan.Fiala@chandleraz.gov
Real Estate Contact: Erich Kuntze, Real Estate Coordinator, (480) 782-3397, erich.kuntze@chandleraz.gov
Section III. Police/Fire Departments: Company’s technical staff should confer with the City’s public safety communication
staff to assure that all wireless communications equipment it will operate within the City is in compliance with the FCC's radio
frequency emission regulations and that the frequencies used will not interfere with the City’s emergency communication
Wireless Facilities for either the Police or Fire Departments. There will be more detail language for the Company to agree
regarding interference issues when applying for the Public Property Use Agreement.
Contact (both Fire & Police Clearance is Required):
Fire Department
Police Department, Communications Division
Fire Department Assistant Chief
Police Tech Manager
Keith Hargis, keith.hargis@chandleraz.gov
William Edel, william.edel@chandleraz.gov
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 30 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
151 E. Boston St., 480-782-2161
250 E. Boston St., 480-782-4153
EXHIBIT “D”
STANDARDS FOR LETTERS OF CREDIT
In addition to any other requirements imposed upon a letter of credit (the “Letter of Credit”) issued pursuant to this
Agreement, the Letter of Credit must meet and be governed by the following additional standards and requirements:
1. Letter of Credit Requirements. The Letter of Credit shall be printed on Bank Safety Paper. The following terms and
no others shall be stated on the face of the Letter of Credit:
1.1 The Letter of Credit is clean, unconditional, and irrevocable.
1.2 The Letter of Credit is payable to CITY upon presentation of CITY’S draft.
1.3 CITY may make partial draws upon the Letter of Credit.
1.4 The Letter of Credit is for payment solely upon presentation of a sight draft and a copy of the Letter of Credit.
1.5 Within ten (10) days after CITY’S draft on the Letter of Credit is honored, CITY must make the original of the
Letter of Credit available to the issuer in Maricopa County, Arizona upon which the issuer may endorse its payments.
1.6 The issuer specifies a telefax number, email address, and street address at which CITY may present drafts
on the Letter of Credit.
1.7 The Letter of Credit is valid until a specified date.
1.8 The Letter of Credit will be automatically renewed for successive one (1) year periods, unless at least one
hundred twenty (120) days prior to expiration the issuer notifies CITY in writing, by either registered or certified mail, that
issuer elects not to renew the Letter of Credit for the additional period. In the event of such notification, any then unused
portion of the Letter of Credit shall be available by draft on or before the then current expiration date.
1.9 The Letter of Credit is otherwise subject to the most recent edition of the Uniform Customs and Practices for
Documentary Credits, published by the International Chamber of Commerce.
1.10 The Letter of Credit need not be transferable.
2. Approved Forms. The form of the Letter of Credit and of drafts upon the Letter of Credit shall be as follows:
2.1 Except as approved in writing by City’s Development Services Department, the form of the Letter of Credit
shall be in the form set out below.
2.2 Except as approved in writing by City’s Development Services Department, the form of drafts upon the Letter
of Credit shall be in the form set out below.
3. Issuer Requirements. The issuer of the Letter of Credit shall meet all of the following requirements:
3.1 The issuer shall be a federally insured financial institution with offices in Maricopa County, Arizona, at which
drafts upon the Letter of Credit may be presented.
3.2 The issuer shall be a member of the New York Clearing House Association or a commercial bank or trust
Company satisfactory to CITY.
3.3 The issuer shall have a net worth of not less than $1 billion.
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 31 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
FORM OF LETTER OF CREDIT
Date ___________________, 20__
Letter of Credit No.:______________
Site Location: ___________________
Development Services Department
Site Address: ___________________
City of Chandler
P.O. Box 4008
Mail Stop 405
Chandler, AZ 85244-4008
Dear Sir or Madam:
We hereby establish our clean, unconditional and irrevocable Letter of Credit in your favor at the request and for the account
of
___________________________________________________
in
the
aggregate
amount
of
_____________________________________ ($________________), available upon presentation of your draft in the form
attached hereto as Schedule 1.
We will honor each draft presented to us in compliance with the terms of this Letter of Credit. Partial draws are permitted.
Each draft must be accompanied by a copy of this Letter of Credit. Within ten (10) days after we honor your draft, you must
make the original of this Letter of Credit available to us in Maricopa County, Arizona upon which we may endorse our
payment. Drafts may be presented by any of the following means:
1. By telefax to (_____) _____-__________.
2. By email to _____________________________________________________.
3. By hand or overnight courier service delivery to:
4. [This address must be in Maricopa County, Arizona.]
_________________________
_________________________
_________________________
5. By hand or overnight courier service delivery to:
[This address need not be in Maricopa County, Arizona]
_________________________
_________________________
_________________________
This Letter of Credit is valid until _______________________, 20____ and shall thereafter be automatically renewed for
successive one (1) year periods, unless at least one hundred twenty (120) days prior to expiration we notify you in writing, by
either registered or certified mail, that we elect not to renew the Letter of Credit for such additional period. In the event of such
notification, any then unused portion of the Letter of Credit shall be available upon your presenting to us your draft on or
before the then current expiration date.
This Letter of Credit is subject to the UCP600. This Letter of Credit is not assignable.
_____________ [bank name] _____, a _______________
By ___________ [bank officer’s signature] _____________
___________ [bank officer’s name printed] ___________
Its __________ [bank officer’s title] __________________
Phone: ___ [bank officer’s phone number] _________
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 32 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
Form of Draft on Letter of Credit
To:
_____________________
_____________________
_____________________
From: Development Services Department
City of Chandler
P.O. Box 4008
Mail Stop 405
Chandler, AZ 85244-4008
Date: ___________________, 20_____
Ladies and Gentlemen:
Pursuant to your Credit No. ___________________, the City of Chandler hereby demands cash payment in the amount of
________________________________________________ ($________________).
Please make your payment to the City of Chandler in the form of a wire deposit to:
_____________________
_____________________
_____________________
_____________________
If such deposit cannot be accomplished immediately for any reason, please make your payment in the form of a cashier’s
check issued by your institution and delivered to me at the address listed above.
I certify that I am the Development Services Director of the City of Chandler.
If there is any imperfection or defect in this draft or its presentation, please inform me immediately at (480) 782-3410 so that I
can correct it. Also, please immediately notify the City Attorney at (480) 782-4656.
Thank you.
_____________________________________________
City of Chandler, Development Services Director
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 33 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
EXHIBIT “E”
ASSUMPTION OF WIRELESS USE AGREEMENT
Regarding ______________________________
This assumption is made pursuant to paragraph 12.1.5 of that certain Wireless Use Agreement (the “Agreement”)
between City of Chandler, an Arizona municipal corporation (“CITY”) and __________________________, a
_________________________ (“Company”) dated ________________, 20____.
__________________________, a __________________________ (“Assignee”), having acquired the rights of the
Company under the Agreement, hereby assumes the Agreement, agrees to be bound thereby, and obligates itself to
perform the terms and conditions of the Agreement, all in favor of CITY. The person signing this document on behalf of
Assignee warrants to CITY his authority to do so.
Dated: ______________________, 20_______
ASSIGNEE: _________________________________,
a _______________________________
By:
Its:
STATE OF _________________
)
) ss.
COUNTY OF _______________
)
The foregoing instrument was acknowledged before me this ____ day of ______________, 20__, by
___________, _____________ of _____________, a _______________.
Notary Public
My Commission Expires:
_____________________________
Date
PHO Rubenstein Site
Macro Cell Agreement Form March 2019
Page 34 of 34
Final PHO Rubenstein Site Version 6 Dated 10-21-2020
EXHIBIT “F”
EXTENSION OF WIRELESS USE AGREEMENT
Regarding:
This extension is made pursuant to paragraph 5.1 of that certain Wireless Use Agreement (the “Agreement”) between City
of Chandler, an Arizona municipal corporation (“CITY”) and __________________________, a
_________________________ (“Company”) dated ________________, 20____.
COMPANY: _________________________________,
a _______________________________
By: _____________________________
Its: _____________________________
CITY OF CHANDLER
a municipal corporation
By: ____________________________________
Its: Development Services Director or Designee
APRROVE AS TO FORM:
___________________________
City Attorney