Loading...
HomeMy WebLinkAboutNew Cingular Wireless PCS/Eng/Small Cell Facilities Attachment License AA g SMALL CELL FACILITIES ATTACHMENT LICENSE BETWEEN THE CITY OF CARMEL and NEW CINGULAR WIRELESS PCS,LLC This SMALL CELL FACILITIES ATTACHMENT LICENSE ("Agreement"), dated as of the latter of the signature dates below (the "Effective Date"), is entered into by and between THE CITY OF CARMEL ("Municipality"), a municipal corporation, having a mailing address of and NEW CINGULAR WIRELESS PCS, LLC, a Delaware limited liability company ("Provider"), having a mailing address of 1025 Lenox Park Boulevard NE, Atlanta,Georgia 30319 ("AT&T"). BACKGROUND AT&T,as a communications service provider,may access public rights-of-way pursuant to, inter alia,I.C. §8-1-32.5-14.The Municipality owns or controls and maintains within the public rights- of-way and other municipally-owned property interests, street light poles, traffic signals, and other infrastructure, which the Provider desires to use in connection with its communications business. The Provider has requested the Municipality to provide the Provider with a non- exclusive license to use municipally owned street light poles, traffic signals, and other infrastructure in accordance with this Agreement and pursuant to the Laws of the State of Indiana. The Provider and the Municipality are entering into this Agreement to establish the process for, and respective obligations arising from, the Provider's attachment of Small Cell Facilities on Municipal Structures in accordance with applicable Laws. Both Parties acknowledge that this agreement is made will full knowledge of the Federal Communications Commission's small cell rules published in the Federal Register on October 15th and effective January 15, 2019. Both Parties further agree that this Agreement is in compliance with those rules and therefore said rules do not constitute a Change of Law. In executing this License,the City of Carmel is acting only in its proprietary capacity. Nothing herein shall be read to excuse Provider from obtaining all necessary regulatory approvals,but this License does serve as Landlord's approval of any requested regulatory approval. Accordingly,the parties agree as follows: 1.0 DEFINITIONS Except as otherwise defined herein,the following terms have the meanings given below: 19941696.7 1.1 "Agency" means any governmental agency other than those of the Municipality, including, but not limited to, the Federal Communications Commission (FCC), and the Indiana Utility Regulatory Commission(1URC). 1.2"Approved Small Cell Facility(ies)"means Small Cell Facilities as defined in Indiana statues and which have been approved for installation by the Municipality pursuant to Section 3 and may refer to such facilities in the singular or plural, as appropriate to the context in which used. 1.3 "Attachment" means the placement or installation of an approved small cell facility(ies)collocated on a Municipal Structure within the rights-of-way. 1.4 "Authorized Designee" means a Person authorized by the Provider in writing to act on the Provider's behalf under this Agreement. 1.5"Board" means the Municipal Board of Public Works or the Board's designee. 1.6"Business Day" means any Day other than a Saturday. Sunday. or a day observed as an official holiday by the Municipality. 1.7"Distributed Antenna System (DAS)"means a network of spatially separated antenna nodes connected to a common source by means of a transport medium that provides ireless service within a geographic area or structure. 1.8 "Day" means any calendar day, unless a Business Day is specified. For the purpose hereof, if the time in which an act is to be performed falls on a Day other than a Business Day, the time for performance shall be extended to the following Business Day. For the purpose hereof,the time in which an act is to be performed shall be computed by excluding the first Day and including the last. 1.9"FCC" means the Federal Communication Commission. 1.10"Hazardous Material(s)"means any substance, waste, or material which,because of its quantity, concentration, or physical or chemical characteristics is deemed by any federal, state, or local governmental authority or under any Law to pose a present or potential hazard to human health or safety or to the environment. 1.11 "Interference" in the context of spectrum licensed by the FCC refers to material adverse effects resulting from transmitting outside of the licensed spectrum or otherwise in violation of the authority granted by the license of the party alleged to be causing the Interference. In the context of unlicensed spectrum, it means the material adverse effect of unwanted energy due to one or a combination of emissions, radiations, or inductions upon reception in a pre-existing radio communication system,manifested by any material performance degradation, misinterpretation, or loss of information which could be extracted in the absence of such unwanted energy. 1.12"Law(s)"means any federal, state,or local statute,ordinance, resolution,regulation, rule, tariff, administrative order,certificate,order,or other requirement in effect either at the time of execution of this Agreement or at any time during the period of this Agreement, including, without limitation, any lawful regulation or order of an official entity or body to the extent applicable to the circumstances of,and the parties to,this Agreement.Law(s) also means uniform building, fire, electrical, plumbing, or mechanical codes adopted by a recognized national code organization or local amendments to those codes enacted solely to address threats of destruction of property or injury to persons, or local codes or ordinances adopted to implement this subsection. The term includes the Carmel City Code, including without limitation, those provisions relating to Small Cell Facilities, as well as published standards of the Carmel Board of Public Works implementing the City Code. 1.13 "Municipal Engineer"means the City Engineer or his designee. 1.14 "Municipal Structure(s)" means street light poles, traffic signals, and other infrastructure owned or controlled and maintained by the Municipality and located in the Public Rights-of-Way and may refer to such facilities in the singular or plural, as appropriate to the context in which used. The term does not include street lights or street poles which are not owned by the Municipality, nor any Municipal Property located outside of the Public Rights-of-Way. It is contemplated that Municipal Structures used for the attachment of an Approved Small Cell Facilities pursuant to this Agreement may, as appropriate given the existing condition and other circumstances of any particular Municipal Structure, be installed by and at the sole cost and expense of the Provider as replacements for existing Municipal Structures with such replacement or new Municipal Structures to be owned by the Municipality. The attachment of an Approved Small Cell Facility pursuant to this Agreement shall not: (i) change the primary purpose of the Municipal Structure,which shall remain the purpose for which the Municipality originally installed the Municipal Structure; or(ii) cause the Municipal Structure to be a "wireless base station" within the meaning of Section 6409(a) of the Spectrum Act, 47 U.S.C. § 1455. All Parties acknowledge that Municipality reserves the right to reserve space on any Municipal Structure for its own future use. 1.15 "Person" means an individual, a corporation, a partnership, a sole proprietorship, a joint venture, a business trust, or any other form of business association or government agency. 1.16 "Public Rights-of-Way" means the area in, upon, above, along, across, under, and over the public streets, sidewalks, roads, lanes, courts, ways, alleys, boulevards, and places within the Municipality as the same now or may hereafter exist and which are under the control of the Municipality and the permitting jurisdiction of the Municipality. 1.17 "Release" when used with respect to Hazardous Material means any actual or imminent spilling, leaking, pumping,pouring,emitting,emptying,discharging, injecting, escaping, leaching, dumping, or disposing into or inside any existing improvements or any improvements constructed hereunder by or on behalf of the Provider. 3 1.18 "Small Cell Facility" means: (1) a personal wireless service facility (as defined by the Federal Telecommunications Act of 1996 as in effect on July 1,2015);or(2)a wireless facility that satisfies the following requirements: (a) each antenna, including exposed elements, has a volume of six (6) cubic feet or less; and (b) the primary equipment enclosure located with the facility has a volume of twenty-eight (28) cubic feet or less. The volume of the primary equipment enclosure does not include the following equipment that is located outside the primary equipment enclosure: (1) Electric meters. (2) Concealment equipment. (3) Telecommunications demarcation boxes. (4) Ground based enclosures. (5) Back-up power systems. (6) Grounding equipment. (7) Power transfer switches. (8) Cut-off switches. 1.19 "Wireless Communication Service" means services, whether mobile or at a fixed location, that are provided using wireless facilities through licensed or unlicensed spectrum. 2.0 TERR1 OF AGREEMENT The term of this Agreement is five (5) years (the "Initial Term"), commencing on the Effective Date, and unless either party objects in writing not less than 180 Days prior to the expiration of either the Initial Term or a Renewal Term,the Agreement shall automatically renew for five (5) additional five (5) year terms (each a "Renewal Term") commencing upon the expiration of the Initial Term or the prior Renewal Term,as the case may be. Each Renewal Term will be on the same terms and conditions set forth in this Agreement,subject to the negotiation at the time of renewal of competitively neutral, mutually acceptable price terms and conditions consistent with applicable law, which may, if the parties agree, include further renewals. Any such terms and conditions so negotiated shall be reduced to writing and executed by the parties as an amendment to this Agreement. If a written objection to Renewal Term is made pursuant to this Section, the next Renewal Term shall not commence until the Parties execute written amendments to this Agreement. 3.0 DESCRIPTION OF WORK 3.1 Grant of License. During the term of this Agreement, the Provider is granted a license by the Municipality and thereby authorized,on a non-exclusive basis, subject to the terms of this Agreement,to install Approved Small Cell facilities on Municipal Structures for use in a distributed antenna system or systems (DAS), small cell facilities, and any and all other applications and configurations to deliver its Services.This Agreement to install Approved Small Cell Facilities on Municipal Structures shall include,subject to all necessary permits, reasonable access to Municipal Structures, including but not limited to, on foot and by vehicle, to connect such Approved Small Cell Facilities to the Municipal Structure,and to power and maintain such Approved Small Cell Facilities, and to upgrade, modify, or replace such Approved Small Cell Facilities and associated equipment,in accordance with this Agreement.Provider must obtain any 4 regulatory approvals required for maintenance and provide notice to Municipality pursuant to Carmel City Code, State Law, and this Agreement for any maintenance activities, if any occur, and the Provider or any subcontractor or third-party entity hired to install or maintain Approved Small Cell Facility may not utilize municipal trails,or multi-use paths unless a permit is received s under applicable provisions of the Carmel City Code when installing or maintaining the Approved Small Cell Facility. 3.2 Municipal Engineer Review,Permitting, Board Review. Prior to installing(a)new street poles or other structures upon the Municipality's property or within the Public Rights-of- Way for the use of an Approved Small Cell Facility(ies);or(b)any Small Cell Facility upon-any Municipal Structure within the Public Rights-of-Way, the Provider or its Authorized Designee shall first submit its work plans for the Small Cell Facility(ies)to the Municipal Engineer and pay the permit application fee as allowed by IC 8-1-32.2-26.The Municipal Engineer shall promptly review the work plans for the Small Cell Facility(ies) for compliance with any applicable Laws concerning land use, zoning,and activities in the Public Rights-of-Way. When accessing Public Rights-of-Way,the Provider agrees to minimize disruption to the public use of the Public Rights- of-Way and to comply with each of the conditions placed upon each Approved Small Cell Facility. Upon the Municipal Engineer's approval of the work plans,the Municipal Engineer shall present the submitted plans to the Board for approval. if the Board approves the submitted plans, the Board shall issue a permit approving the location and installation of the Small Cell Facility on the Municipal Structure or within the Public Rights-of Way, whichever is applicable, and at which time the Small Cell Facility shall be deemed an Approved Small Cell Facility. The permit may be subject to conditions necessary to protect and preserve public safety and convenience, including placing limitations pertaining to access of, and the placement of equipment on, multi- use trails and/or pathways. 3.3 Map and List of Small Cell Facilities. The Provider shall maintain, in a form reasonably acceptable to the Municipality, a current map and list of the location of all Approved Small Cell Facilities it installs pursuant to this Agreement and shall make such map available to the Municipal Engineer upon request.This map shall be updated no less frequently than annually and shall be provided to the Municipal Engineer each year on the anniversary of this Agreement. 3.4 Changes to Small Cell Facilities. As set forth in I.C. 8-1-32.3-15(b),the Provider may perform the routine maintenance of wireless facilities and the replacement of wireless facilities with wireless facilities that are substantially similar to or the same size or smaller than the wireless facilities being replaced without applying for a new application or permit. In addition to any regulatory requirements, Provider shall also provide the Municipality with a courtesy notice no less than thirty(30)days before any planned work referred to in the foregoing sentence to assure, to the extent possible, there are no conflicts with, or obstructions to, the use of the Public Rights-of-Way, as well as other planned or ongoing construction and maintenance activities with the Public Rights-of-Way. This paragraph does not allow a provider to construct a new wireless support structure, substantially modify a wireless support structure, collocate a wireless facility on an existing structure, or construct, place or use a small cell facility without first obtaining a permit,as required under I.C. 8-1-32.3-15 and Carmel City Code. 5 3.5 Provision of Services. The Approved Small Cell Facilities installed pursuant to this Agreement may be used for any Wireless Communication Service as defined under LC. 8-1- 32.3-12.5,and for which the Provider has obtained legal authority to provide,as may be required and as represented by the licenses and/or franchises granted by the Indiana Regulatory Commission and/or the Federal Communications Commission, which ever may be applicable. 3.6 Health Safety, and Welfare: Signage. Nothing in this Agreement precludes the Municipality from applying its generally applicable health, safety, and welfare Laws when granting any permits under this Agreement;provided,however,the Municipality shall not impose environmental testing, sampling, or monitoring requirements that exceed federal Law or impose regulations pertaining to radio frequency emissions or exposure to such emissions that are contrary to or exceed Laws of the FCC. Provider agrees to install and maintain required safety signage upon each Approved Small Cell Facility, samples of which signage shall be included in each Application. 3.7 Utilities.The Provider shall pay any and all charges to install and separately meter electrical, telecommunications, or other utility services to the Approved Small Cell Facilities located on Municipal Structures within the Public Rights-of-Way and shall pay all charges imposed by such utility providers for utilities consumed by its Approved Small Cell Facilities on Municipal Structures. 3.8 Restoration of Work Site Areas. When installing, maintaining, upgrading, modifying,or replacing an Approved Small Cell Facility under this Agreement,the Provider shall promptly restore all work site areas to their prior condition,ordinary wear and tear not caused by the Provider excepted. 3.9 Removal upon Termination. Except as otherwise provided in this Agreement, upon termination,Provider shall promptly,safely,and carefully remove all Approved Small Cell Facilities installed pursuant to this Agreement from all Municipal Structures. Such obligation of the Provider shall survive the expiration or earlier termination of this Agreement. If the Provider fails to complete this removal work on or before 180 Days subsequent to the termination date, then the Municipality, upon written notice to the Provider,shall have the right at the Municipality sole election,but not the obligation,to perform this removal work using qualified contractors and reasonable care in the removal and handling of the Provider's Small Cell Facility,and charge the Provider for the actual costs and expenses, including, without limitation, reasonable administrative costs, provided that the Provider shall be allowed to continue its removal work beyond 180 Days as long as it is diligently pursuing such removal. The Provider shall pay to the Municipality the reasonable costs and expenses incurred by the Municipality in performing any removal work and any storage of the Provider's property after removal, within 30 Days of the date of a written demand for this payment from the Municipality. After the Municipality receives the reimbursement payment from the Provider for the removal work performed by the Municipality, the Municipality shall promptly provide access to the Provider to retrieve its property removed by the Municipality at no cost or liability to the Municipality. if the Municipality does not receive the reimbursement payment from the Provider within such 30 Days, or if the Municipality does not elect to remove such items at the Municipality's cost after the 6 Provider fails to do so prior to 180 Days subsequent to the issuance of notice pursuant to this Section, any provider property installed pursuant to this Agreement remaining on or about the Municipal Structures or stored by the Municipality after the Municipality's removal thereof may, at the Municipality's option, be deemed abandoned and the Municipality may dispose of such property in any manner allowed by Law.Alternatively, the Municipality may elect to take title to abandoned property, provided that the Provider shall submit to the Municipality an instrument satisfactory to the Municipality transferring to the Municipality the ownership of such property. The provisions of this Section shall survive the expiration or earlier termination of this Agreement. 3.10 Risk of Loss or Damage. The Provider acknowledges and agrees that the Municipality shall not be liable for any cost of repair to the Provider's equipment and materials comprising the Approved Small Cell Facilities and installed on Municipal Structures pursuant to this Agreement,except to the extent that such loss or damage was caused by the gross negligence or willful misconduct of the Municipality, including without limitation, each of its departments, officers, agents,employees, and contractors. Municipality shall bear no liability for any damage caused by the Municipality's removal of such pursuant to Section 3.9. 3.11 Removal or Relocation of Approved Small Cell Facilities at Municipality's Request.The Provider understands and acknowledges that the Municipality,at any time and from time to time, may require the Provider, at the Provider's sole cost and expense, to remove or relocate an Approved Small Cell Facility located on a Municipal Structure, or within the Public Rights-of-Way, on 120 Days' prior written notice from the Municipality, if the Municipality determines, in its sole discretion, that the removal or relocation is needed (i) to facilitate or accommodate the construction, completion, repair, or relocation or maintenance of any infrastructure or Public Rights-of-Way; (ii) because the particular Approved Small Cell Facility causes Interference with or adversely affects proper operation of the Municipal Structure to which it is attached; (iii) because there is damage to the Municipal Structure to which the Approved Small Cell Facility is attached;(iv) because of a sale or vacation of the Public Rights-of-Way,or a change in the Municipality's use of the Public Rights- of-Way where the Approved Small Cell Facility is located;; or(v) for other good cause to preserve the public health, safety,and welfare; provided, however, that the Municipality may provide shorter advance notice if circumstances reasonably require expedited or emergency removal or relocation of a particular Approved Small Cell Facility.The Municipality shall work with the Provider to accommodate the Approved Small Cell Facility at another reasonably equivalent location on the same or another Municipal Structure nearby The Provider shall,at its sole expense,remove and relocate the Small Cell Facility to such other location in such manner,as appropriate, as may be designated or approved, in writing and in advance. Such removal and relocation shall be completed within the time prescribed by the Municipality in its written request and in accordance with the terms of this Agreement, provided that such time shall be extended by the time needed to obtain any other Agency approval required to relocate the Approved Small Cell Facility. If a third party undertakes a project that requires relocation of an Approved Small Cell Facilities attached to Municipal Structures, the Provider shall not be required to relocate the Approved Small Cell Facilities until the Municipality or the third party provides a mutually acceptable alternate location for the affected Approved Small Cell Facilities. The costs of relocating the Approved Small Cell Facilities shall be borne by the third party. 7 3.12 Removal or Relocation of Small Cell Facilities No Longer in Use. The Provider shall remove any Approved Small Cell Facility installed pursuant to this Agreement, at the Provider's expense,within 120 Days after the Provider abandons the use of that Approved Small Cell Facility. If the Provider fails to do so,then the provisions of Section 3.9 shall apply and rent shall be due until the Municipal Structure has been restored to its prior state, normal wear and tear excepted. This Provision expressly applies to the abandonment of any Approved Small Cell Facility that the Provider may abandon by means of upgrading and/or modifying the Approved Small Cell Facility from 4G technology to 5G technology, as well as any abandonment of an Approved Small Cell Facility due to any and all future upgrades and/or modifications. 3.13 Right to Remove a Small Cell Facility. Municipality, as landlord, hereby grants Provider the right,at any time,to remove any Approved Small Cell Facility installed pursuant to this Agreement,provided Provider obtain any regulatory approval for such work. Upon removing an Approved Small Cell Facility and restoring the location in accordance with standards established in this Agreement, the Provider shall no longer be responsible for paying the annual Attachment Fee(as defined in Section 7.1) for that Approved Small Cell Facility. 4.0 PERMIT,LIMITATIONS,AND RESTRICTIONS 4.1 Limited Authorization. Except as expressly provided herein,this Agreement does not authorize the placement of Small Cell Facilities or any other equipment on Municipal Structures, nor does it limit Provider's right to attach and/or locate Small Cell Facilities by law. The process that will apply to the Provider seeking to use or replace Municipal Structures for the attachment of Approved Small Cell Facilities shall be as set forth herein and in accordance with the timelines prescribed by Exhibit A attached hereto. 4.2 All Permitted Activities and Fees at the Provider's Sole Expense. The construction, operation, maintenance, removal, and replacement of Approved Small Cell Facilities, all other activities permitted under this Agreement, and all fees or obligations of the Provider under this Agreement, shall be the Provider's sole responsibility at its sole cost and expense. 4.3 Permits. The Provider shall obtain, at its sole expense, all applicable permits required by the Municipality or any other Agency in accordance with applicable Law and this Agreement to install Approved Small Cell Facilities on Municipal Structures. This includes any subsequent Permit required under Carmel City Code for any and all future substantial medication of an Approved Small Cell Facility installed in the Right-of-Way pursuant to the terms of this Agreement. 4.4 No Property Interest Created. Neither the Provider's license to use Municipal Structures pursuant to this Agreement nor any other right,privilege,or authorities provided to the Provider pursuant to or arising under this Agreement, shall be deemed to grant, convey, create, or vest in the Provider a property interest in any portion of the Public Rights-of-Way or any other Municipal property interest or in any Municipal Structure, including but not limited to, any fee, leasehold, or easement interest in any land. The Provider on behalf of itself and any permitted 8 successor, lessee, or assignee, recognizes and understands that this Agreement may, subject to applicable Laws,create an interest subject to taxation and that the Provider,its successors,lessees. or assignees may be subject to the payment or such taxes. 4.5 All Rights Nonexclusive.Notwithstanding any other provision of this Agreement, any and all licenses, rights, privileges, and authorities expressly or impliedly granted to the Provider under this Agreement shall be non-exclusive,and shall be subject and subordinate to(i) the continuing right of the Municipality to use, and to allow other Person or Persons to use, any and all parts of the Public Rights-of-Way,concurrently with any other Person or Persons entitled to do so, and (ii) the public easement for streets and any and all other deeds, easements, dedications, conditions, covenants, restrictions, encumbrances, and claims of title (collectively, "Encumbrances")which may affect the Public Rights-of- Way now or at any time during the term of this Agreement, including without limitation any Encumbrances granted, created or allowed by the Municipality at any time. 4.6 Special Provisions Relating to Municipal Structures Financed with Tax-Exempt Bonds. Provider and Municipality acknowledge that certain of the Municipal Structures within the Public Rights-of-Way may have been financed, in whole or in part,with the proceeds of tax- exempt bonds or other debt instruments. If Municipality determines, in its sole discretion, that Provider's use of a particular Municipal Structure (or Structures) would impair the financing relating to the Structure(s),or the tax exemption for such financing,then,in such event,the parties may determine in good faith to: (i)replace that particular Structure(or Structures),at Provider's sole cost, allowing the Municipality to redeploy the replaced Structure(s) elsewhere; or (ii) identify an alternative Structure (or Structures) mutually satisfactory to both parties, where the use of such alternative Structure (or Structures) poses no risk of impairing the Municipality's financing of such Structure or any underlying tax exemption pertaining to such Structure. Without limiting the foregoing, in the event the Municipality determines, in its sole discretion, that its receipt of the License Fee for use of a Structure (or Structures), where such Structure (or Structures) has been financed with the proceeds of tax-exempt bonds or other debt instruments, will impair the financing relating to the Structure (or Structures), or the tax exemption for such financing,then, in such event, Provider agrees to cooperate in good faith with the Municipality to ensure that the License Fees payable under this Agreement are restructured, or re-cast, in such a manner as to permit the Municipality to maintain the tax exemption on the underlying financing as determined by the Municipality's bond counsel in its professional judgment and in accordance with applicable Laws. 5.0 WAIVERS,INDEMNIFICATION,AND INTERFERENCE 5.1 Limitation of Liability: Indemnification.Neither party to this Agreement, nor any of its, departments, boards,officers, officials, agents, attorneys, or employees, shall be liable for any damage to the property of the other,or for any bodily injury or death of its officers,officials, agents, attorneys, employees, contractors or subcontractors, or their employees, resulting or arising from actions or inactions related to this Agreement, and/or resulting or arising from or in connection with Providers use of municipal property, except to the extent caused by the other party's negligence or willful misconduct. The Provider agrees to indemnify, defend, and hold harmless the Municipality and its departments, boards, officers, officials, agents, attorneys, 9 employees, contractors or subcontractors, for any and all third party claims, actions, causes of action, judgments, and liens to the extent they arise out of any negligent or wrongful act or omission or breach of any provision of this Agreement by the Provider,its Authorized Designee, or either of their officers, agents, employees, or subcontractors, except to the extent it is caused by the negligence of a party indemnified hereunder. Such indemnity shall include, but not be limited to, reasonable attorney's fees,all court costs,and any or all direct costs arising therefrom and shall not be limited by reason of the enumeration of any insurance coverage required herein. These indemnification obligations shall survive the termination of this Agreement. 5.2 Waiver of Claims Regarding Fitness of Municipal Structures. The Provider acknowledges that the Municipality makes no warranties or representations regarding the fitness, availability,or suitability of any Municipal Structure for the installation of Approved Small Cell Facilities,or for any other activities permitted under this Agreement,and that,except as expressly provided in this Agreement, any performance of work or costs incurred by the Provider or provision of Services contemplated under this Agreement by the Provider is at the Provider's sole risk and expense.The Municipality agrees: (i)to allow the Provider to investigate the location of a Municipal Structure, and (ii) to work cooperatively with the Provider to facilitate the investigation of a Municipal Structure under consideration for attachment of an Approved Small Cell facility,for the possible presence of lead based paint,asbestos,or other Hazardous Materials. 5.3 Waiver of All Claims. The Provider acknowledges that the Municipality may terminate this Agreement under certain circumstances as set forth herein,and in view of such fact the Provider expressly assumes the risk of making any expenditures in connection with this Agreement,even if such expenditures are substantial,and the Provider expressly assumes the risk of selling its Services which may be affected by the lawful termination of this Agreement. Notwithstanding anything to the contrary contained in this Agreement, the Provider does not intend to waive, and hereby specifically reserves, all rights at law or in equity to contest any termination by the Municipality. 5.4 No Liability for Consequential or Incidental Damages. The Provider and the Municipality each expressly acknowledge and agree that neither of them will be liable for any consequential or incidental damages incurred by the other, including, but not limited to, lost profits and loss of good will,arising out of a lawful and justifiable termination of this Agreement in accordance with its terms, or the construction or operation of or disruption to, one or more Approved Small Cell Facilities installed under this Agreement, or to any other activities contemplated under this Agreement. Neither party would be willing to enter into this Agreement in the absence of such waiver. Accordingly, without limiting any waivers contained in this Agreement, and as a material part of the consideration for this Agreement, the Provider and the Municipality each fully RELEASES, WAIVES,AND DISCHARGES the other forever from any and all claims, demands, rights, and causes of action for consequential and incidental damages (including without limitation, lost profits and loss of good will), and covenants not to sue the other party or any Persons acting by, though, or under that party, for consequential or incidental damages arising out of this Agreement or the work and activities authorized hereunder regardless of the cause, and whether or not due to negligence or gross negligence of the other party or its agents. 10 5.5 No Disruption. The Provider shall not unreasonably disrupt any public or private facilities existing now or in the future, including but not limited to sanitary sewers, water mains, storm drains, gas mains, poles, aerial and underground electric and telephone wires, cable television, telecommunications facilities, utility, and municipal property, without the express written approval of the owner or owners of the affected property or properties,except as permitted by applicable Laws. The Municipality shall not be responsible for any disruption to a public or private utility caused by the Provider or for curing such disruption. The Provider shall be responsible for repair and restoration of any damage to facilities belonging to the Municipality, to the extent that the Provider causes disruption resulting in such damage. Notwithstanding the foregoing, the Provider shall not be responsible for any interference with third party communications equipment installed after the installation of the Provider's equipment, unless Provider has changed the way it operates and said change is resulting in the complained of interference. Nothing in this Paragraph precludes or prevents the Municipality from granting a permit to another communications provider, if required by any Law, upon a subsequent communication providers' request for the installation or attachment of small cell facilities that are similar to the terms as contemplated herein. 5.6 Interference Caused by Approved Small Cell Facilities.Notwithstanding anything in this Agreement to the contrary, it is expressly agreed and understood that, if any of the Provider's Approved Small Cell Facilities installed on Municipal Structures pursuant to this Agreement, or Services provided thereby causes Interference with any systems impacting the Municipality's emergency preparedness, law enforcement activities, or other public safety obligations, the Municipality may take any and all such steps which may include immediately discontinuing the electricity supplied to such Approved Small Cell Facilities, until such Interference is resolved. If such Interference cannot be corrected, then the Municipality may require removal pursuant to Section 3.1 1. To the extent feasible,the Municipality agrees to give the Provider reasonable verbal notice prior to undertaking any action under this Section that will result in cutting off power to an Approved Small Cell Facility on a Municipal Structure or otherwise preventing the Provider from operating any Services from one or more Approved Small Cell Facilities in the Municipality. 5.7 The Parties acknowledge that there will not be an adequate remedy at law for noncompliance with the provisions of Sections 5.5 and 5.6,and, therefore,either Party shall have the right to equitable remedies, such as, without limitation, injunctive relief and specific performance. 6.0 INSURANCE 6.1 Amounts and Coverages.The provider shall maintain in force,during the full term of this Agreement(including any Renewal Term),occurrence forms of insurance in the following amounts and coverages: 6.1.1 Commercial General Liability Insurance with limits of$ 1,000,000.00 per occurrence and$2,000,000.00 annual policy aggregate on Insurance Services Office(ISO) policy form CG 00 01 or its equivalent. 11 6.1.2 Umbrella or Excess Liability Insurance with limits of$5,000,000.00 per occurrence and in the aggregate. This requirement may be met by any combination of primary and umbrella/excess insurance. This will provide a total limit of $6,000,000/Occurrence and $7,000,000 annual policy aggregate. 6.1.3 Worker's Compensation Insurance in amounts required by Indiana Law. 6.2 The Provider shall submit to the Municipality a Certificate of Insurance illustrating the insurance required hereunder for each company insuring Provider. The Municipality shall be included as an Additional Insured in such required liability policies. All insurance required shall remain in force until all Approved Small Cell Facilities installed pursuant to this Agreement have been removed from Municipal Structures. The Provider must provide at least 30 days written notice to the Municipality in the event of cancellation or non-renewal of any insurance policy that is not replaced if required to be maintained by this Section 6. 6.3 The Provider shall require all contractors and subcontractors working hereunder to maintain insurance as established in this Section 6 in commercially reasonable amounts given the scope of the work. 6.4 Self-Insurance. Notwithstanding anything to the contrary contained herein, Provider shall have the right to self-insure so long as the market capitalization of Provider or any guarantor guaranteeing Provider's obligations under this Agreement shall equal or exceed Five Billion Dollars($5,000,000,000.00). 7.0 LICENSE FEES. 7.1 License Fees. 7.1.1 Pursuant to IC. 8-I-32.3-26(d)(I), The Provider shall pay to the Municipality, on an annual basis in advance, as compensation for the Provider's deployment of Approved Small Cell Facilities on Municipal Structures within the Public Rights-of-Way, the amount of Fifty Dollars ($50.00) per Municipal Structure within the Public Rights-of-Way,to which the Provider attaches an Approved Small Cell Facility as authorized under this Agreement("License Fee"). 7.1.2 Payment of the first annual License Fee for each Approved Small Cell Facility shall be due upon issue of the permit for the subject Small Cell Facility(ies) and before Provider commences installation of any Approved Small Cell Facility; but may be prorated for the time of the year that the Provider commences installation by multiplying the License Fee by a fraction in which the numerator is equal to the number of months remaining in the calendar year after the date that such installation commences, and the denominator is 12.Thereafter,payment of the annual License Fee shall be due on or before the first Business Day of each year. Each payment of License Fees will be accompanied by an accounting by the Provider, in a form reasonably satisfactory to the Municipality, setting forth the Provider's calculation of License Fees due to the Municipality. 12 7.2 Removed Facilities.The Provider's obligation to pay the annual License Fee for a Municipal Structure from which the Provider removes all attached Approved Small Cell Facilities as provided in Section 3.09 or any of Sections 3.11 through 3.13, or pursuant to Sections 5.5 or 5.6, shall not cease until the end of the calendar year in which the Approved Small Cell Facility is removed (the "Removal Date"). If on the Removal Date the Provider has not yet paid the annual License Fee,the Provider shall pay the annual License Fee. 7.3 Termination or Expiration of the Agreement. The Provider's obligation to pay License Fees pursuant to this Agreement shall cease as of the last Day of the year in which the initial Term or any Renewal Term of Agreement expires or in which this Agreement is terminated if all Approved Small Cell Facilities are removed in accordance with Section 3.9. This Section 7.3 shall survive termination or expiration of the Agreement. 7.4 License Fee Adjustment. The annual License Fee for an Approved Small Cell Facility installed pursuant to this Agreement shall be adjusted every five (5)years beginning as of April 1, 2024 (an "Adjustment Year") in an amount agreed to by the Parties, unless such License Fee is established by Law. To the extent such License Fee is not dictated by Law (applicable Law, as of the execution of this Agreement, caps the License Fee, and no Adjusted License Fee would be permitted above the cap)the Municipality and the Provider will negotiate in good faith during the third quarter of the calendar year immediately preceding each Adjustment Year in order to determine the new License Fee("Adjusted License Fee"). If by September 1 of such preceding calendar year the parties are unable to agree upon an Adjusted License Fee (and such License Fee is otherwise not capped by Law), either party may terminate the Agreement in accordance with Section 9.2. Notwithstanding the foregoing, the License Fee shall be automatically adjusted, at any time, to reflect a change in the Law adjusting the amount that a government unit may charge for the construction, placement,or use of such Approved Small Cell Facilities on a Municipal Structure. 7.5 Documentation. Upon payment of a reasonable administrative fee of one hundred dollars($100.00) per request, said fee being subject to the escalation established in Section 7.4, the Municipality hereby agrees to provide to the Provider (i) a complete and fully executed Internal Revenue Service form W-9, and(ii)other documentation pertinent to the Municipality's ability to receive payments from the Provider as may be requested by the Provider in its reasonable discretion, from time to time. The Provider shall at all times keep and maintain full, true,and correct business and financial records associated with this Agreement, including records of all installation work under this Agreement,basic descriptive information of all Approved Small Cell Facilities installed under this Agreement, and such other records sufficient to confirm the Provider's compliance with this Agreement. The Provider shall respond promptly to requests from the Municipality for specific information contained in such records and shall forward to the Municipality for inspection,electronic or other copies of all records and information as described above within twenty (20) Business Days of a written request. 7.6 Late Payment Charge. If the Provider fails to pay any amounts payable under this Agreement within ten (10) Days following the due date thereof, such unpaid amount shall be subject to a late payment charge equal to the greater of(i)one percent(1%)of the unpaid amount 13 in each instance or (ii) the maximum amount allowable under Law, which late payment charge shall he incurred each month that the unpaid amount is due and owing. 7.7 Other Payments. In addition to all other fees to be paid to the Municipality under this Agreement, the Provider shall timely pay to the Municipality all applicable deposit fees, permit fees, and other fees or amounts the Provider is required by any Laws to pay to the Municipality in connection with obtaining permits or performing work under this Agreement, within 30 days from the Effective Date of this Agreement and/or approval of a Permit,whichever is applicable. 8.0 WORK STANDARDS 8.1 Performance of Work. The Provider shall exercise due care, caution, skill, and expertise in performing all work under this Agreement and shall take all reasonable steps to safeguard and maintain in a clean and workman like manner, all work site areas, including, without limitation, the areas around Municipal Structures. All work the Provider undertakes in the Public Rights-of-Ways and other Municipally-owned property interests pursuant to this Agreement shall at all times be performed by workers in accordance with generally accepted industry practice and in compliance with all Laws. 8.2 Work Plans. Prior to performing any work on Approved Small Cell Facilities subject to this Agreement within the Public Rights-of Way and on other Municipally- owned property interests, the Provider shall present a map and written proposal describing the work to be performed and the facilities, methods and materials (if any) to be installed ("Work Plan") to the Municipal Engineer for review.In addition,prior to conducting any work in the Public Rights- of-Way on Approved Small Cell Facilities under this Agreement, the Provider shall provide to the Municipality a current emergency response plan identifying staff who have authority to resolve,twenty-four(24)hours a Day,seven(7) Days a week, problems or complaints resulting, directly or indirectly, from the Approved Small Cell Facilities installed pursuant to this Agreement. 8.3 Repair or Replacement of Damaged Facilities or Property. Upon written request by the Municipality, the Provider agrees to repair or replace, to the Municipality's reasonable satisfaction based on standards equivalent to those the Municipality requires of any other similarly situated party, any Municipal Structure or Municipally-owned or controlled property that the Municipality reasonably determines has been damaged,destroyed, defaced,or otherwise injured as a result of work performed by the Provider under this Agreement. The Provider shall perform such work at no expense to the Municipality, except to the extent such damage, destruction, defacement,or injury was caused by the negligence or willful misconduct of the Municipality or an ascertainable third party. 8.4 Maintenance and Annual Inspection Report. Provider consents and agrees to maintain the Approved Small Cell Facility in good working order and repair, consistent with industry standards and further to provide the Municipality with an annual report reporting the current status of maintenance and upkeep of each Approved Small Cell Facility within the Municipality. 14 9.0 TERMINATION 9.1 Termination upon Notice in Certain Circumstances. In addition to all other remedies provided by Law or in equity,either party("Non-Defaulting Party")may terminate this Agreement upon written notice to the other party ("Defaulting Party") in the event that the Defaulting Party has failed to perform any of its material obligations under this Agreement; provided, however, that if a specific notice or cure period of time for performance of such obligation is not otherwise specified in this Agreement, then the Non-Defaulting Party shall provide the Defaulting Party with notice of the Defaulting Party's failure to perform or comply and provide the Defaulting Party with ninety (90) Days from the date of the notice to cure the failure to perform or comply. If within such time the Defaulting Party cures its failure to perform to the Non-Defaulting Party's reasonable satisfaction,the termination shall not take effect. If the Defaulting Party is unable to cure such failure to perform or comply within the time provided for such cure, the Non-Defaulting Party shall extend the time for cure so long (not to exceed an additional 90 Days)as the Defaulting Party continues to diligently pursue such cure,and then the termination shall not take effect until such time, if any,as the Defaulting Party has failed to cure to the reasonable satisfaction of the Non-Defaulting Party and is no longer diligently pursuing such cure. 9.2 Termination for Failure to Agree on Adjusted License Fee. In the event that the parties are unable to negotiate an Adjusted License Fee(only to the extent that the License Fee is not dictated by law as it is as of the execution of this Agreement under current law) pursuant to Section 7.4, either party may terminate this Agreement upon written notice to the other party, provided, however, that such termination is effective 180 Days after such notice, and provided further that the right to terminate this Agreement under this Section must be exercised before January 1 of each respective Adjustment Year. 9.3 Effect of Any Other Termination. In the event of termination of this Agreement, the Provider shall immediately cease all work being performed under this Agreement, excepting only that work necessary for the Provider to remove all Approved Small Cell Facilities installed on Municipal Structures pursuant to this Agreement. Termination of this Agreement by the Municipality, as herein provided, shall constitute the withdrawal of the license, permit, consent, or authorization of the Municipality for the Provider to perform any construction or other work under this Agreement in the Public Rights-of-Way or on Municipal Structures, excepting only that work necessary for the Provider to remove all Approved Small Cell Facilities from Municipal Structures and leave all work site areas in a clean and safe condition and in accordance with the terms of this Agreement,or as the Municipality may otherwise expressly provide. Upon any such early termination,the Municipality shall promptly remit to the Provider a prorated portion of the annual License Fees paid to the Municipality in accordance with Section 7. Termination or expiration of this Agreement shall not preclude the Provider from maintaining or modifying existing Approved Small Cell Facilities on structures within the Public Rights-of-Way, but not located on Municipal Structures, subject to applicable Laws. 15 10.0 NOTICES Except as otherwise expressly provided in this Agreement, any notice given hereunder shall be effective only if in writing and given by delivering the notice in person,or by sending it certified mail with a return receipt requested, postage prepaid, or reliable commercial overnight courier, return receipt requested, with postage prepaid,to: CITY OF CARMEL ATTN: OFFICE OF CORPORATION COUNSEL DOUGLAS C. HANEY One Civic Square Carmel, IN 46032 And: CITY OF CARMEL ATTN: OFFICE OF THE MAYOR Mayor James Brainard One Civic Square Carmel, IN 46032 For submittal of Work Plans, payment of License Fees, notices of Provider's modification to Approved Small Cell Facilities: CITY OF CARMEL ATTN: CITY ENGINEER-JEREMY KASHMAN One Civic Square Carmel, IN 46032 For all other types of notices: CITY OF CARMEL OFFICE OF CORPORATION COUNSEL One City Square Carmel, IN 46032 AT&T New Cingular Wireless PCS, LLC Attn: Network Real Estate Administration 575 Morosgo Drive Atlanta, GA 30324 16 With a Copy to: New Cingular Wireless PCS, LLC Re: Cell Site#: ;Cell Site Name: Fixed Asset#: ; State Where Site Located: AT&T Legal Department—Network New Cingular Wireless PCS, LLC Attn: Network Counsel 208 S. Akard Street Dallas, TX 75202-4206 or to such other address as either the Municipality or the Provider may designate as its new address for such purpose by notice given to the other party in accordance with the provisions of this Section at least ten (10) Days prior to the effective date of such change. Any notice under this Section shall be deemed to have been given (a) two (2) Days after the date when it is mailed, if sent by first- class or certified mail, return receipt requested, postage prepaid, (b) one (1) Day after the date it is made, if sent by commercial overnight courier, or (c) upon the date personal delivery is made. Emergency Notice: In the event of an emergency, including the need for a temporary power shut-down or temporary disabling of a Small Cell Facility,the Municipality's personnel shall use their best efforts to contact Provider at 1 (800)638-2822,with an email to 11.0 COMPLIANCE WITH LAWS Both parties shall comply with all applicable Laws in the performance of this Agreement. This Agreement may be modified as appropriate to comply with any applicable statute or final, non-appealable,and binding decision or rule to the extent necessary to comply with such statute, decision or rule, and the parties shall enter into good faith negotiations regarding such modifications. All Approved Small Cell Facilities installed pursuant to this Agreement shall be constructed to comply with all applicable lawful federal, state, and local construction requirements, laws, ordinances,bonds,and regulations. 12.0 ASSIGNMENT Neither party shall assign this Agreement or its rights or obligations to any firm, corporation, individual, or other entity without the written consent of the other party. 13.0 MISCELLANEOUS 13.1 Amendments. Neither this Agreement nor any of its terms or provisions* may be changed, waived,or discharged,except by a written instrument signed by both of the parties. 13.2 Interpretation of Aareement.This Agreement has been negotiated at arm's length and between Persons sophisticated and knowledgeable in the matters it concerns, and shall be 17 interpreted to achieve the intents and purposes of the parties,without any presumption against the party responsible for drafting any part of this Agreement. Use of the word"including"or similar words shall not be construed to limit any general term, statement or other matter in this Agreement, whether or not language of non-limitation, such as "without limitation" or similar words,are used. 13.4 Governing Law & Venue. This Agreement shall be construed and enforced in accordance with the Laws of the State of Indiana. Any dispute regarding the terms of this Agreement shall be heard by a court of competent jurisdiction in Hamilton County, Indiana.This Agreement shall not limit, waive, substitute or replace any right of Provider under the Laws of the State of Indiana. 13.5 Entire Agreement. This instrument contains the entire agreement between the parties regarding the subject matter hereof and supersedes all prior written or oral negotiations, discussions, understandings,and agreements.The parties further intend that this Agreement shall constitute the complete and exclusive statement of its terms and that no extrinsic evidence whatsoever (including prior drafts of this Agreement) may be introduced in any judicial, administrative,or other legal proceeding involving this Agreement. 13.6 Time of Essence. Time is of the essence with respect to all provisions of this Agreement in which a definite time for performance is specified. 13.7 Cumulative Remedies. All rights and remedies of either party set forth in this Agreement shall be cumulative, except as the Agreement may otherwise provide. 13.8 Relationship of Parties. This Agreement is not intended nor shall it be construed to create any third-party beneficiary rights in any third party,unless otherwise expressly provided. 13.9 Non-Waiver. Unless,and only to the extent, specifically stated in this Agreement, nothing in this Agreement is intended or shall be interpreted to waive, limit,or abridge any rights the Provider has under state or federal Laws by virtue of its status as a federally licensed wireless services provider, or otherwise, with respect to the installation and operation of Approved Small Cell Facilities within the Public Rights-of-Way. Likewise, nothing in this Agreement is intended or shall be interpreted to waive, limit, or abridge any rights of the Municipality under state or federal Laws, or otherwise, with respect to the maintenance of its Public Rights-of-Way or municipal owned structures and/or property interests. If, after the Effective Date, there is (i) a change in Law that changes the nature or extent of the obligations that the Municipality may require from or impose upon a party attaching to Municipal Structures or (ii) the Municipality agrees that this Agreement should be modified to reflect actual practice, notwithstanding any other provision of Law or this Agreement, then upon the Provider's written notice, the Provider and the Municipality shall, within thirty (30) Days of the Municipality's receipt of such notice, commence negotiations to modify this Agreement to conform to such change in Law or such other agreement. Likewise, if after the Effective Date, there is (i) any change in Law that changes the nature or extent of the obligations of the Municipality may require or impose obligations upon the Provider 18 with respect to attaching Small Cell Facilities to Municipal Structures within the rights-of-way, or placing Small Cell Facilities within the Public Rights-of-Way, or (ii) a change in Law or an agreement between the Provider and another Indiana Municipality that contains more favorable provisions such that the terms of this Agreement and place the Municipality at a material disadvantage to other Indiana municipalities,the Provider agrees that, notwithstanding any other provision of law or this Agreement,then upon the Municipality's written notice,the Provider and the Municipality shall,within thirty(30)Days of the Provider's receipt of such notice,commence negotiations to modify this Agreement to conform to such change in Law or such other agreement. 13.10 Aureement Not Confidential. The Provider acknowledges that the Municipality will not treat this Agreement as confidential information. Use by the public of any document or the information contained therein shall not be considered an act of the Municipality. 13.11 Minority, Women, Veterans and Disability Owned Business Enterprise Participation. To the extent the Provider uses subcontractors or other agents in the performance of services under this Agreement, the Provider shall demonstrate a good faith effort to achieve such percentages, in compliance with the policies and to the satisfaction of the Municipality's Department of Minority& Women Business Development. 13.12 Necessary Documentation. Provider certifies that it will furnish the Municipality, if requested, any and all documentation, certification, authorization, license, permit, or registration required by the Laws of the Municipality,the County of Hamilton,other units of local government, the State of Indiana, and the United States. The Provider further certifies that it is now an entity eligible for the benefits of I.C. § 8-1-32.5-14 and will remain in good standing with such governmental agencies and that it is now and will maintain its license, permit, registration, authorization, or certification, as applicable, in force during the term of this Agreement. Failure of the Provider to comply with this Section shall constitute a material breach of this Agreement. 13.13 Termination for Failure of Funding. Notwithstanding any other provision of this Agreement, and to the extent applicable to this Agreement, if funds for the continued fulfillment of this Agreement by the Municipality are at any time insufficient or not forthcoming through failure of any entity to appropriate funds or otherwise, then Municipality shall have the right to terminate this Agreement without penalty by giving written notice documenting the lack of funding, in which instance this Agreement shall terminate and become null and void on the last day of the fiscal period for which appropriations were received. 13.14 Non-discrimination. The Provider, its authorized designee and their officers, agents, employees, and subcontractors shall not discriminate against any employee or applicant for employment to be employed in the performance of this Agreement,with respect to her or his hire,tenure,conditions, or privileges of employment,or any manner directly or indirectly related to employment because of her or his race, sex,sexual orientation,gender identity,religion,color, national origin, ancestry, age, disability, or United States military service veteran status. Breach of this section shall be regarded as a material breach of this Agreement. 13.15 Conflict of Interest. For purposes of compliance with IC. § 36-1-21, the Provider certifies that it is a publicly held corporation and it is impossible to determine that the Mayor of 19 Carmel,Indiana or a member of the City Council of Carmel, Indiana have any ownership interest in the Provider's stock. The Provider represents that the Provider is not aware of any material conflict of interest. 13.16 Debarment and Suspension. 13.16.1 To the extent applicable to this Agreement, the Provider certifies, by entering into this Agreement, that neither it nor its principals are presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from or ineligible for participation in any Federal assistance program by any Federal department or agency, or by any department, agency,or political subdivision of the State of Indiana. The term "principal" for purposes of this Agreement means an officer, director, owner, partner, key employee, or other person with primary management or supervisory responsibilities,or a person who has a critical influence on or substantive control over the operations of the Provider. 13.16.2 The Provider certifies, by entering into this Agreement, that it does not engage in investment activities as more particularly described in LC. § 5-22-16.5. 13.16.3 The Provider shall provide immediate written notice to Municipality if,at any time after entering into this Agreement,the Provider learns that its certifications were erroneous when submitted, or the Provider is debarred, suspended, proposed for debarment, declared ineligible, has been included on a list or received notice of intent to include on a list created pursuant to I.C. § 5-22-16.5, voluntarily excluded from or becomes ineligible for participation in any Federal assistance program. Any such event shall be cause for termination of this Agreement as provided herein. 13.16.4 The Provider shall not subcontract with any party which is debarred or suspended or is otherwise excluded from or ineligible for participation in any Federal assistance programs by any Federal department or agency,or by any department,agency, or political subdivision of the State of Indiana. 13.17 Compliance with E-Verify Program. Pursuant to 1.C. §22-5-1.7,the Provider shall enroll in and verify the work eligibility status of all newly hired employees of the Provider through the E-Verify Program ("Program"). The Provider is not required to verify the work eligibility status of all newly hired employees through the Program if the Program no longer exists. 13.17.1 The Provider and its subcontractors shall not knowingly employ or contract with an unauthorized alien or retain an employee or contract with a person that the Provider or its subcontractor subsequently learns is an unauthorized alien. If the Provide violates this Section, the Municipality shall require the Provider to remedy the violation not later than thirty(30) Days after the Municipality notifies the Provider. If the Provider fails to remedy the violation within the thirty (30) Day period,the Municipality shall terminate the contract for breach of contract. If the Municipality terminates the contract, The Provider shall, in addition to any other 20 contractual remedies, be liable to the Municipality for actual damages. There is a rebuttable presumption that the Provider did not knowingly employ an unauthorized alien if the Provider verified the work eligibility status of the employee through the Program. 13.17.2 If the Provider employs or contracts with an unauthorized alien but the Municipality determines that terminating the contract would be detrimental to the public interest or public property, the Municipality may allow the contract to remain in effect until the Municipality procures a new contractor. 13.17.3 The Provider shall, prior to performing any work, require each subcontractor to certify to the Provider that the subcontractor does not knowingly employ or contract with an unauthorized alien and has enrolled in the Program."Ile Provider shall maintain on file a certification from each subcontractor throughout the duration of the Project. If the Provider determines that a subcontractor is in violation of this Section, the Provider may terminate its contract with the subcontractor for such violation. Pursuant to LC. § 22-5-1.7 a fully executed affidavit affirming that the business entity does not knowingly employ an unauthorized alien and confirming the Provider's enrollment in the Program, unless the Program no longer exists, shall be filed with the Municipality prior to the execution of this Agreement. This Agreement shall not be deemed fully executed until such affidavit is filed with the Municipality. 13.18 Post-Employment Restrictions. To the extent applicable to this Agreement, the Provider certifies to the Municipality that no employee.contract employee,or sub- contractor of the Provider: 13.18.1 Participated in any way in the solicitation,negotiation,or awarding of this Agreement while previously employed by an agency of the Municipality for a period of one(1) year prior to the execution of this Agreement; 13.18.2 For a period of one (1) year after such employee ceased supervising the administration or performance of this Agreement on behalf of an agency of the Municipality, shall perform any functions on behalf of Contractor under this Agreement with respect to the Municipality, unless the employee's former agency has consented to the employee's performance for Contractor in writing; 13.18.3 Is currently an official or deputy of, or has appointing authority to, any agency of the Municipality;and 13.1 8.4 Was previously employed by the Municipality within one(I) year of this Agreement and currently has the performance of lobbying activity related to an agency or an official as a responsibility of his or her employment or contractual relationship with Contractor. Violation of this certification shall constitute a material breach of this Agreement and, upon such notice of a violation, the Municipality may terminate this Agreement. In 21 addition,upon a violation of this certification,the Municipality shall report such violation to the Office of Corporation Counsel who may,at its discretion, debar the Provider from eligibility for future Municipal purchasing, bids,contracts, or projects. 13.19 Dispute Resolution. 13.19.I Good Faith Participation. Prior to the initiation of any litigation,the Parties shall in good faith attempt to settle any dispute arising out of or relating to this Agreement through the upper management escalation and non-binding mediation processes set forth herein. Good faith participation in these processes shall be a condition precedent to any litigation.All negotiations pursuant to this Article shall be confidential and shall be treated as compromise and settlement negotiations for purposes of the Federal Rules of Evidence and any state's rules of evidence. 13.19.2 Upper Management Escalation and Mediation. Either Party may give the other Party written notice of any dispute not resolved in the normal course of business. The dispute shall be escalated to upper management and, thereafter, representatives of both Parties with authority to settle the dispute shall meet at a mutually acceptable time and place within fourteen (14) Business Days after receipt of such notice, and thereafter as often as reasonably deemed necessary, to exchange relevant information and attempt to resolve the dispute. If the matter has not been resolved within thirty(30)Business Days of receipt of the disputing Party's notice,or if the Parties fail to meet within fourteen(14) Business Days, either Party may initiate mediation. Such mediation shall take place at a mutually agreeable location. In the event that such dispute is not resolved within ninety (90) Calendar Days following the first day of mediation, either Party may initiate litigation. 13.19.3 The parties regard the aforesaid obligation to escalate to upper management and mediate as an essential and material provision of this Agreement and one that is legally binding upon them. In case of a violation of such obligation by either Party, the other may seek specific enforcement of such obligation in the courts having jurisdiction hereunder. [SEE NEXT PAGE FOR SIGNATURES] IN WITNESS WHEREOF, the parties hereto have caused this License Attachment Agreement to be duly executed as of the Effective Date. "PROVIDER" NEW CINGULAR WIRELESS PCS, LLC By: Printed: r/TN/Z.. /40'Zr 0/ Title: Pt j)7,-T 19941696.7 til Approved and Adopted this l day of /it/145 1-- , 20/ 1 . CITY OF CARMEL, INDIANA By and through its Board of Public Works and Safety BY: N-&-.4-- li ci `)2M-- James Brainard, Presiding Officer Date: Mary 4 it2.-- )41.2.4 urke, Nketyler Date: 7/ 1 7 Lori S. Vatso e be Date: g3 'j 19 ATTEST: 4 Christin S. Pauley, rk-Treefj� Date: